Regina v Jack Chick Chen

Regina v Jack Chick Chen - [2003] NSWCCA 326 - NSWCCA 2003 case summary — Zoe

[33]

28 The particular conversations are summarised as follows in the Crown outline: "At 5.10 pm on 9 April (WAV 187) Chen telephoned Hong Kong and spoke with Liang. He enquired as to the "total number sent over here …. I mean what your total number is, for today, today, arriving on today". Chen was advised by Liang that the total was "21" and in that and a number of subsequent calls Chen enquired as to the precise number of "pieces" which were included in the consignment. Following telephone calls between Chen and Liang and Chen and "Cousin" in mainland China, it was eventually confirmed that there were twenty four 500 gram packages and eight packages of 350 grams. In conversation with Lian (WAV192; 17.23, 9 April 2000) Chen indicated the ongoing nature of the conspiracy: "Next time … next time you'll need to ask. In the future when the fucking package is different, in different style and you should have advised me the first thing." Chen further told Liang: "But when this happens, advise me the first time and I'll tell the other side in advance so that when they open it up they will know straight away that it is right and take it. If it is not right they will not take it. Do you understand?" Chen then telephoned Cousin in mainland China (WAV193, 17.24, 9 April 2000) and confirmed the size and weight of the packages which had been received and complained: "… the style is different from those before so people dare not take it …. Next time when there is anything different, please ring and advise me the first thing. OK?" In a subsequent call to Cousin (WAV 194) Chen told him: "Next time when it happens again, report to me the first thing." He also told Cousin: "Besides, you need to prepare for 28. Do you know? The date of 28th … Get prepared straight away." Chen also phoned Liang back (WAV 195) and asked whether he had told his cousin about the date of the 28th. Telephone contact between Phillip He and El-Hassan (WAV 237) confirmed that He was going to be provided with "22" (blocks). He advised El-Hassan: "I said next time he should tell you what's happening … Now listen because over there, the country, this is heroin alright. A couple of days. So this guy has got to do a collecter. Different things you know what I mean."

[35]

30 The applicant's case on sentence can be summarised by reference to the following submissions put for him to the learned sentencing Judge: "True it is that in terms of the actual hands on distribution Phillip He did not have in his hands the block of heroin but it is quite clear from the evidence in my respectful submission that Phillip He and El Hussan were partners and that they were the central figures in the organisation that brought about these importations or the importation that we're specifically dealing with and if one has regard to the contents of the conversations between Phillip He and El Hussan, it appears quite clear that the nature of their relationship was that they were the persons who wanted the heroin in Australia. It will be our submission that so far as Mr. Chen was concerned he was in fact recruited by Phillip He to assist and to assist at a time when it seems that apparently some source of supply overseas had been disrupted by various arrests there and that Mr. Chen, because he knew Liang through gambling and by reputation here, went to Hong Kong and on the material your Honour would be able to conclude that he went to Hong Kong to re-establish or call He some source of - or to establish with He some source of supply. He of course knew Liang as well and knew people in China but Liang was a particular friend of Mr. Chen. Liang had from time to time been in Australia and he and Chen were known to go gambling together and undoubtedly had discussions. It's quite open on the material that when a problem had arisen in relation to He's business and it was He's business, Phillip He's business, that it's then that Mr. Chen went to Hong Kong, went overseas. Indeed the belated surveillance material that we had in relation to his being seen with Mr. Liang is consistent with the notion that Chen was an intermediary for Phillip He to facilitate the importation into Australia for Phillip He and his partner so that they would distribute it. So the theme in the submission by the prosecution seems to be that they want to paint Mr. Chen as the principal. In my respectful submission the evidence does not make him out as the principal and does not establish a proprietary interest in the heroin by him. It establishes the role of a significant organiser obviously, that he went overseas as an intermediary between the persons who wanted the heroin, that is Phillip He and El Hussan and their organisation and the person Liang or cousin who were in a position to supply it and did supply it. Chen went over as the facilitator as it were and he did so on our instructions on the basis that he would receive a commission, that he would receive a commission of $2,000 per kilogram at this end and an equivalent commission at the other end in relation to the heroin."

[76]

69 I observe as to the foregoing calculations: [1] I would not disturb the 10 per cent discount allowed by the learned sentencing Judge; but I consider that the applicant is thereby treated generously when it is remembered that for a month or so he defended himself upon a basis that he knew to be false; and that he only changed his plea when he had to face up to the fact that that particular game was up. [2] A discount of 20 per cent for the section 16G factor is less than the normal range of 30-33 per cent. There is, however, nothing lapidary about that range. If that range would produce an end result that would not be "of a severity appropriate to the circumstances of the offence" then it is proper, in the spirit and the letter alike of section 17A, to make a fair adjustment. [3] For the same reason, I would set the non-parole period at, in practical terms, 75 per cent of the head sentence rather than at a point in the range 60-66 per cent. [4] The foregoing calculations seem to me to meet fairly any justified grievance that the applicant might otherwise have felt on account of the sentences passed upon He. [5] An additional ground, not previously canvassed herein, was taken by the applicant and was put as follows in the applicant's written submissions: "It is submitted that a procedural unfairness occurred by the failure to supply relevant and cogent evidence to the Applicant and those advising him at the committal stage. That defect was remedied at trial immediately prior to the re-arraignment and plea of guilty. Having regard to what happened at trial upon disclosure, it seems highly probable that if disclosure had been made at the committal, the Applicant would have pleaded guilty to the substantive charge he then faced and that plea would have been accepted. He would then have been sentenced with Phillip He in circumstances which would have allowed parity considerations to be given immediate and full effect. In those circumstances, the principles in Cameron v The Queen (2002) 76 ALJR 382 of "facilitating the administration of justice" would have operated in the Applicant's favour by further reducing the sentence imposed."

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