Regina v Chun Hing Law

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

ON SENTENCE 1 SULLY J: The prisoner, Mr. Chun Hing Law, was arrested in Hong Kong on 2 October 1996 and has been in custody since that date. He was extradited to Australia, arriving on 9 February 1997. He was committed for trial, and in due course was arraigned, upon a charge that between about 1 December 1993 and about 13 January 1995 at Sydney and elsewhere conspired with one Joseph Law Ling, with one Alan Tam, with one Mao Huang Tung, with one Brian Alexander Kuan, and with others unnamed, to import into Australia not less than the commercial quantity of heroin in contravention of section 233B(1)(cb) of the Customs Act (C'th). 2 The prisoner pleaded not guilty, and thereupon was tried by Ireland J and a jury. That trial extended from 18 March 1998 to 24 April 1998. The jury found the prisoner guilty as charged; and on 31 March 1999 Ireland J convicted him and sentenced him to imprisonment for life, without a non-parole period. 3 The prisoner appealed against his conviction and applied for leave to appeal against sentence. On 27 July 2001 the Court of Criminal Appeal quashed the conviction and sentence and ordered a new trial. 4 That re-trial commenced in this Court on 11 March 2002, and continued with some interruptions until 11 April 2002. Once again, the jury found the prisoner guilty as charged. The prisoner was thereupon convicted and was remanded in custody until 20 June 2002; but that date was subsequently vacated and the remand was extended to 13 September 2002. On that day the Court received written submissions from the Crown and oral submissions from learned Senior Counsel for the Crown and from learned Queen's Counsel for the prisoner. The Court reserved its decision on sentence.

The Relevant Facts: Introduction 5 The Crown case at trial was that between December 1993 and January 1995 there was on foot a particular conspiracy, the objective of which was the regular importation into Australia of large consignments of heroin for distribution and sale within Australia. 6 An incident of the carrying into effect of the conspiracy was the regular remitting to overseas destinations of substantial sums of money. The amount of each remittance fell below the threshold that is reportable pursuant to the Financial Transaction Reports Act 1988 (Cw'th); but in December 1994 the police received information suggesting that one Joseph Law Ling had been making suspiciously frequent overseas remittances. It was ensuing police enquiries, and then police investigations, that uncovered the conspiracy of which the prisoner has been found by the jury to have been a member. 7 The structure of the Crown case at trial laid out all the known facts and circumstances pertaining to five identified importations which had taken place, respectively, in January, July, August and November 1994, and in January 1995. It was the Crown case that the methodology of each importation followed a consistent pattern; and that it was possible, therefore, to identify the sequence of importations as successive particular executions of an ongoing unlawful joint enterprise. 8 The detailed evidence by means of which the Crown essayed to establish at trial the foregoing propositions was, not surprisingly, voluminous. That body of evidence has been canvassed in the written Crown submissions on sentence: see Exhibit C1 on sentence. Included in that exhibit is a document entitled "Chronological Facts" and a document entitled "Outline of Facts. The former document contains 199 numbered items occupying some 20 closely typed pages. The latter document comprises 15 closely typed pages of narrative. It is neither practical nor useful simply to regurgitate in some slightly changed form what is readily accessible from a reading of the exhibit. It is impossible to reduce such a body of material into a few simple paragraphs. I think that a more useful approach to my present task is to leave the detail of that material to speak for itself, and to record the following particular findings of fact, as to all of which I am satisfied beyond reasonable doubt, and all of which seem to me to be consistent with the verdict of the jury:

[1] It is, in my opinion, incontestable that there was in fact on foot throughout the period charged in the indictment just such an ongoing joint criminal enterprise as was alleged at trial by the Crown.

[2] It is, in my opinion, incontestable that the prisoner was actually involved in the carrying into effect of the importations of July, August and November of 1994.

[3] There is, in my opinion, an overwhelming rational inference that the prisoner intended to be associated actively at the Australian end of the January 1995 importation; that the only reason why he did not in fact return to this country for that purpose was that he was refused the necessary entry visa; and that the appearance on the relevant scene of Brian Kuan was the direct result of the need for the conspirators to find a last-minute substitute for the prisoner at the Australian end of the January 1995 importation.

[4] The prisoner cannot be associated as a co-conspirator with the January 1994 importation. No circumstantial evidence so links the prisoner; and the direct evidence at trial of Alan Tam is to the contrary.

[5] The reference in [4] above to Alan Tam makes it expedient to say, now, something about that witness.

Tam was, of course, a very controversial trial witness. Beyond any shadow of a doubt he was a significant co-conspirator throughout the whole of the relevant period after March 1994. He was to be the active Australian connection in respect of what is described in the Crown Outline of Facts as an aborted importation of March 1994. Following that miscarriage, Tam recruited the prisoner to become the Australian connection for subsequent importations.

There are many obvious and cogent criticisms that can be made about Tam's credit and credibility. He exhibited characteristics which are not infrequently found in drug traffickers who become Crown witnesses, and which can best be summarised collectively as cynical and ruthless amorality.

The difficulty which arises necessarily with any such witness is that of distinguishing, with a proper confidence and with a proper regard for the criminal standard of proof, what part or parts of his evidence, if any, can be relied upon. There is, obviously, no magic formula. The tribunal of fact must do its dutiful best to draw rational inferences from the demeanour of the witness, especially as seen under the test of a skilled and careful cross-examination; and from the essential rationality of what the witness has to say about a particular matter after that particular evidence has been tested against the other relevant and credible evidence at trial.

Approached in that way, I am satisfied to the requisite standard that Tam can be accepted, and I do therefore in fact accept him, in what he says about the recruitment into an ongoing conspiracy of the prisoner.

The Relevant Facts: the Particular Conspiratorial Culpability of the Prisoner 9 It is, yet again, unnecessary to canvass in detail what can be read in Exhibit C1 on sentence. Two practical questions arise:

[1] The quantification of the heroin imported into Australia in the operations of July, August and November 1994 and January 1995;

[2] The identification of the prisoner's standing in the conspiratorial chain of command. 10 It should be acknowledged at once that the submissions that were put on sentence for the prisoner were prefaced by a distinct re-affirmation of the prisoner's stance at trial, namely, a simple and comprehensive denial of any criminal culpability as alleged by the Crown. 11 The prisoner gave no evidence at his trial; and called no witnesses in his case at trial. There was, however, a trial exhibit, - Exhibit C62, - which was a transcription of an electronically recorded interview conducted with the prisoner on 15 January 1995 in Hong Kong by Chief Inspector Hung of the Hong Kong Police. The exhibit comprises 57 pages of typescript. It is expressed in English, but has an idiomatic style that is sometimes difficult. It is, however, clear enough that the prisoner sought throughout the interview to convey that all his Australian connections had to do with legitimate business affairs. I say "sought to convey" because the assertions of the prisoner as to those affairs were conspicuously imprecise. The assertions were unsupported, in my opinion, by any credible evidence at trial. The jury's verdict warrants, in my opinion, the drawing of an inference that the jury rejected any reasonable possibility that the demonstrated activities of the prisoner had a legitimate, lawful explanation. I am satisfied, for my own part, of the correctness of that conclusion. 12 The quantification of the heroin actually imported in the four relevant operations is not without its difficulty. I am satisfied beyond reasonable doubt of the following:

[1] It is incontestable that the January 1995 operation introduced into Australia in the order of 40 kilograms by pure weight.

[2] It is incontestable that the November 1994 operation introduced into Australia a quantity of heroin, the pure weight of which cannot be fixed precisely. It is, however, clear in my opinion that the precise quantity was more, and a good deal more, than the 1.5 kilogram statutory threshold for a commercial quantity of heroin. There can be, in my opinion, no reasonable doubt about that conclusion when sensible regard is had to the similarity, indeed the virtual identity, of the comparative methodology of each of the two consignments.

[3] The July and August consignments are more difficult to assess, in that no heroin was actually recovered from either consignment. Two possible inferences arise. One is that the consignments contained heroin; the other is that they did not. I do not think that it matters a great deal in practical terms, for present purposes, which alternative is preferred.

Should the correct inference be that the consignments did not contain heroin, then the overwhelming inference would be that the consignments were in effect trial runs for, relevantly, the importations in fact effected in November 1994 and January 1995. That further inference could not affect the quantification now being discussed; but it would certainly affect the criminality of the ongoing conspiracy, and of the individual conspirators.

I am satisfied beyond reasonable doubt that it is the former of the two postulated alternatives that should be preferred. Put another way, I do not think that the latter of those alternatives, while literally possible, is reasonably possible. There is no persuasive evidence that there was, at the relevant times, any market, let alone a thriving market, for the so-called "glass sculptures". There is no persuasive evidence of any other legitimate commercial objective(s) of either consignment. That lack of evidence, coupled with what is undoubtedly established about the November 1994 and January 1995 consignments, is more than sufficient to rule out a reasonable possibility of some innocent explanation(s) for the July 1994 and August 1994 consignments.

Once that point has been reached, then the reasoning in [2] above as to quantity applies also to these two further consignments. 13 The identification of the prisoner's particular standing in the conspiracy is, also, not capable of being made with absolute precision. It is, in my opinion, clear beyond reasonable doubt:

[1] That the prisoner's role cannot be equated, to point the obvious contrast, simply to that of Brian Kuan. The prisoner's role was much more than a single involvement with a single consignment, and was not comparably supervised by his fellow conspirators.

[2] That the prisoner cannot fairly be characterised as having been a principal: that is to say, as someone at the very apex of the on-going joint criminal enterprise.

[3] That the prisoner can fairly be characterised in the terms employed by Ireland J: that is to say, as having been "at a senior level within the organisation when he was largely unsupervised and fulfilling a critical and central role in the overall conspiracy up until the time when he was unable to once again obtain entry into Australia in late December 1994" .

Sentence : Objective Criminality 14 It is useful to recall the following propositions, stated by Badgery-Parker J in R v Twala (NSW) CCA 4 November 1994: "………….. (I)n order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed)." 15 Applying those principles to the given facts of the prisoner's case, I am well satisfied that the prisoner's case falls into the worst case category. He took part knowingly and actively in an ongoing conspiracy to bring into Australia quantities of heroin amounting to, on the view most favourable to the prisoner, a total in the order of 30 times the statutory threshold for a commercial quantity. If that is not sufficient to constitute a worst case of the kind, then I find it difficult to envisage what would so suffice.

Sentence: Subjective Features 16 Very little can be said about these matters, because such evidence of them as there is, is sparse. 17 The prisoner was born on 26 July 1958. He is, thus, now aged 44 years and some 3 months. His ethnic extraction is Hong Kong Chinese; but he is in fact a naturalised Canadian citizen. He has health problems. He is diabetic, and his cholesterol level is elevated. He is receiving appropriate medication, although he appears not to be always meticulous about taking it. 18 An ordained Minister of the Sydney Chinese Christian Disciples Church, and an associated outreach worker, have submitted letters which speak of the prisoner's having had, so to speak, a spiritual re-awakening. The letters attest to the prisoner's comparative isolation by reason of limited education, virtually no English, and no opportunity to be in contact with relatives and friends. I take these matters into account. 19 I have considered the matters prescribed for my consideration by section 16A(1) and (2) of the Commonwealth Crimes Act 1914. I note in particular that there is no evidence of contrition; and no entitlement to any other mitigation of sentence by reason of a demonstrated willingness to facilitate the course of justice. There are no relevant criminal antecedents.

[1] The offence of which the prisoner stands convicted attracts a statutory maximum penalty of life imprisonment.

[2] Such a penalty does not attract the mitigating effect of section 16G of the Commonwealth Crimes Act .

[3] Such a penalty does have to comply, in its terms, with section 19AB of the Act: i.e. an accompanying non-parole period must be set unless the sentencing Court is of the view that, relevantly, "the nature and circumstances of the offence" make it inappropriate to set a non-parole period.

[4] I have considered to what extent it is necessary to have regard, in sentencing the prisoner, to the well-established principle of parity. 20 Of the prisoner's fellow conspirators, Tam and Mao have been sentenced upon conviction for having conspired to import not less than the commercial quantity of heroin. Both sentences were passed by Barr J on 5 September 1997. 21 Barr J was of the opinion that life imprisonment was an appropriate sentence in each case; but his Honour erroneously applied section 16G of the Commonwealth Crimes Act to that putative head sentence, thereby reducing the head sentence to one of 24 years' imprisonment. In Tam's case, his Honour reduced the head sentence further, and to 16 years' imprisonment, in consideration of Tam's past, and promised future, assistance to law enforcement authorities. Both Tam and Mao had entered late pleas of guilty. Non-parole periods were set in each case: 10 years for Tam; 16 years for Mao. 22 The erroneous application of section 16G and the other mitigating considerations which I have mentioned entail, in my opinion, that the present prisoner's proper sentence does not have to be adjusted in order to assuage that justified sense of grievance of which the relevant authorities speak.

Sentence: Conclusions 23 It is useful to cite as follows from the remarks on sentence of Barr J in the matters of Tam and Mao: "The importation of forty kilograms of pure heroin, a drug which leads only to crime, misery and death, is wicked in the extreme. (The offender's) motive was self-enrichment. The maximum penalty for conspiring to do so is imprisonment for life. Notwithstanding the other matters to be taken into account under the section, the need to punish (the offender) and to deter others is the overwhelming consideration and persuades me that the imposition of the maximum sentence would be appropriate." 24 I agree entirely with that approach which I consider to be equally appropriate in the case of the present prisoner. I supplement Barr J's observations by re-affirming three general propositions which I articulated on 22 March 1991 when sentencing one Cheung Wai Man and five others: "1. The importation of heroin into this country in any amount and at any time constitutes a deliberate threat to the well-being of the Australian community. The same is to be said of any form of trafficking of heroin within this country. 2. The importation or the attempted importation of, and the trafficking or attempted trafficking in, a quantity of heroin of the amount here in question is in a very real sense a declaration of war upon this community. It is a distinct challenge both to concepts of human dignity and to moral values otherwise which are fundamental to our way of life. It is no less a challenge to the rule of law which is in the end the ultimate guarantor of the personal freedoms and of the social stability which all of us Australians take for granted. 3. In the face of such challenges each of the institutional supports of our society has a role to play. That of the Courts is to punish and deter according to law. Obviously, the Courts alone cannot meet adequately, let alone defeat, the challenge of which I have been speaking. What the Courts can do is to punish drug-related crime in a way which signals plainly to drug traffickers, especially foreign drug traffickers, that the Courts are both able and willing to calibrate their sentences until a point is reached at which, to a significant extent even if never perfectly, fear of punishment risked will neutralise the greed which is the only possible motive of those who, like the present prisoners, engage in drug-related crime when they are themselves not drug dependent." 25 In my opinion a head sentence of life imprisonment should be passed in the case of the present prisoner. 26 It then becomes necessary to consider whether a non-parole period should be set. I have found this a very difficult matter to resolve in the present case. There is, in my opinion, a good case to be made for the proposition that the time has come to make it plain to foreign nationals who run huge quantities of heroin into this country that, if they are brought to justice, they will be treated as having forfeited permanently their personal liberty. 27 I must say, however, that I do not think that the Court can simply brush aside the eloquent submission put by learned Queen's Counsel for the prisoner to the effect that even in such a case as the present one, something is owed to common humanity, at least to the extent of giving the prisoner "some glimmer of hope after serving what must necessarily be a long sentence". 28 Not without hesitation, I have decided that the better course is to fix a non-parole period. It must be, given the nature and circumstances of the offence, a very substantial period. In my opinion, 30 years is the appropriate period. 29 Chun Hing Law, for the offence of which the jury found you guilty, and of which I have previously and formally convicted you, you are sentenced to imprisonment for life. I set a non-parole period of 30 years. The sentence and the non-parole period will date from 2 October 1996, the day upon which you entered into your present custody. 30 I am required to explain to you the following matters:

[1] You will serve in prison a minimum period of 30 years back-dated to commence on 2 October 1996. That period will expire on 1 October 2026.

[2] Prior to that latter date consideration will be given by the appropriate authorities to your release to parole upon the expiration of the minimum period of 30 years.

[3] If those authorities consider that your conduct while in prison is deserving of parole, then you will be released accordingly to parole, and you will remain on parole for the remainder of your life. Any such parole will be subject to appropriate conditions. They may be varied from time to time. If you fail to comply with those conditions, your parole will be revoked and you will be returned to prison.

[4] You should not assume that you will be released to parole as a matter of course at the conclusion of your 30-year non-parole period. In your particular case, the relevant authorities might well take the view that having served your non-parole period of 30 years, you should be at once deported from Australia and never again be allowed at large in Australia. 31 The exhibits, other than the exhibits on sentence, may be returned. The exhibits on sentence will remain with the Court file until further order.

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