Chan Chee Hong v The Queen; Tai Ka Kin v The Queen

[1991] HCATrans 61

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--

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane Nos B27 and B28 of 1990

B e t w e e n -

CHAN CHEE HONG

and TAI KA KIN

Applicants

and

THE QUEEN

Respondent

Applications for special

leave to appeal

BRENNAN J
DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

Hong 1 7/3/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 MARCH 1991, AT 2.16 PM

Copyright in the High Court of Australia

MR P.J. ALCORN:  May it please the Court, I appear for the

applicant, Mr Ka Kin Tai. (instructed by the

Public Defender)

MR T. RAFTER:  May it please the Court, I appear for the

applicant, Chan Chee Hong. (instructed by the

Public Defender)

MR M. WEINBERG, QC: If the Court pleases, I appear together

with my learned friends, MR J.A. FRASER and

MSC. BENNETT, on behalf of the respondent to each

application. (instructed by the Commonwealth

Director of Public Prosecutions)

BRENNAN J: Yes, Mr Alcorn.

MR ALCORN:  May it please the Court, the applicant,

Ka Kin Tai, was sentenced in the Supreme Court at

Townsville on 17 September 1989 for an offence,

possession of a narcotic substance contrary to the
provisions of section 233B of the Customs Act. The
applicant was convicted after a trial of possession

of a quantity of heroin of the order of 5.4

kilograms and the learned sentencing judge imposed

a term of imprisonment of 15 years.

The Court of Criminal Appeal, as a result of

an appeal by the Commonwealth Director of Public

Prosecutions, allowed the appeal, set aside the sentence of 15 years and substituted a sentence of

20 years in lieu. The factual basis on which the

applicant was sentenced is - - -

BRENNAN J:  I think you can take it the Court has read the

remarks of the sentencing judge in the Court of

Criminal Appeal, Mr Alcorn.

MR ALCORN:  Thank you, Your Honour. Your Honours, the

important aspects, in my submission, that the

learned sentencing judge had regard to were,

namely, that the applicant had no prior

convictions; that he had been in custody for some

eight months at the time sentence was imposed and

that the gain that he made from his part of the

offence was relatively small.

Your Honours, the learned sentencing judge had

regard to all of those factors and the submission

is that when he imposed the sentence which he did
he had full regard to all of those features and

considered the aspect of deterrence in conjunction with the other factors relevant to the question of sentence.

Your Honours, the Court of Criminal Appeal, in

our submission, in substituting the sentence of

20 years, had subordinated the principle of

Hong 2 7/3/91

proportionality to the principle of deterrence.

The court, in a joint judgment, made reference to

all of the facts that were placed before the

learned sentencing judge.

BRENNAN J:  To make good that proposition you have to

establish that the sentence imposed by the Court of

Criminal Appeal was outside the range which

proportionality would have allowed, is that

correct?

MR ALCORN: That is the principle.

BRENNAN J: Are you able to make good that proposition?

MR ALCORN:  Your Honour, with respect, in this way that the

Court of Criminal Appeal merely paid lip service, as it were, to the matters of mitigation which should have been taken into account more properly

than they were and paid greater attention to the
questions of deterrence. When one looks at the

joint judgment of Their Honours in the Court of

Criminal Appeal, the matters that were regarded as important were the value of the drug; the
comparative sentences which were placed before the
court by the Director of Prosecutions; the aspects

of consideration for parole which, in my

submission, played a significant role in the

consideration of the court, namely, as to when they

were likely to get out under the existing

sentences.

All of those factors, in my submission, taken

in conjunction lead one to the conclusion that
deterrence was uppermost in the Court of Appeal's
mind and that matters of mitigation, as I indicated
earlier, were not paid proper regard to.

TOOHEY J:  But are you suggesting that the non-parole

period played an undue part in the sentences that

the Court of Criminal Appeal imposed?

MR RAFTER:  With respect, Your Honour, that is a factor

that seems to have featured significantly at

page 52 of the record about line 38. The court

there makes reference to the situation of persons
convicted for terms of imprisonment for life and
when, in the normal course of events, their parole

is considered, together with the circumstances

under which these applicants would have been

considered for parole if the sentences had not been

interfered with, the comparative sentences to which
the court was referred and which were, in fact,
reflected in the joint judgment, without going to
them in detail, if the Court pleases, are all

distinguishable, but they concentrate, in my

submission, heavily on the aspects of value, the

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fact that the applicants were involved in

importation and those factors indeed were heavily

relied on by the court.

McHUGH J:  But the court was entitled to rely on them

heavily, were they not? After all, the two

applicants, one on board a ship at Mackay, brought

between $40 million and $90 million worth of heroin

into the country and were then going to take it

from Mackay to Sydney. How can it be said that a

sentence of 20 years is disproportionate to the

offence? Some might say that the sentence could

have been higher.

MR RAFTER:  Yes, an argument can be made for that

propostion, Your Honour, but the submission in

reply is this, that the comparative sentences dealt

with persons involved in importing drugs into the

country from overseas. These applicants were

simply interstate couriers on a much lower level of

operation. The profit that they made -

DAWSON J:  It must be one of the biggest amounts of heroin

that the courts have ever encountered.

MR ALCORN:  It is a very substantial amount, Your Honour,

certainly.

DAWSON J:  I know of no other case in which there was more.

MR ALCORN: It was a substantial amount, but if I can go

back to the sentencing basis of the learned

sentencing judge, he sentenced them on the basis

that both men were aware of the likelihood of

narcotic substances being carried. That was as

high as he put their involvement in the operation,

and the submission is that that situation is

different to somebody who becomes substantially

involved in the chain of importation, as it were,

by knowing what they are bringing in, how much they are bringing in, and for what sort of consideration

and reward.

BRENNAN J:  Mr Alcorn, are you able to point to a special

leave point in this as distinct from pointing to

circumstances which you say the Court of Criminal

Appeal wrongly evaluated?

MR ALCORN:  The special leave point, Your Honour, is framed

in this way: that in imposing sentence there is no

occasion, or no justification, for departing from

the principle of proportionality.

DAWSON J: But does not deterrence enter into

proportionality?

Hong 4 7/3/91

MR ALCORN:  It enters into it, with respect, Your Honour,

yes, but as - - -

DAWSON J:  As a component part of it?

MR ALCORN: It is a component part, yes, certainly,

Your Honour, but the submission is that it is part

of a whole series of considerations including

rehabilitation, deterrence and the like, but not as

a principal consideration.

BRENNAN J: It is a question of the relative weight of the

fact that is material.

MR ALCORN:	That is so, Your Honour. The submission is that in this case the Court of Criminal Appeal by not
considering the matters of mitigation properly
failed to give adequate weight to those matters of
mitigation and, as a result, those factors were subordinated in an effort to impose what can only be described as a purely deterrent sentence. That really is the special leave point.

BRENNAN J: Yes, thank you. Is there anything you wish to

add to that?

MR ALCORN:	Not formally, Your Honour, except to say this in conclusion, that any sentence that was imposed must
be in respect of and related to the particular offence committed rather than any particular
notions of deterrence or other factors. That
really is the submission. Unless there is
something further, they are my submissions,
Your Honour.
BRENNAN J:	You need an extension of time, do you, to make

this application?

MR ALCORN:  I do, Your Honour, yes. I make that

application.

BRENNAN J: Is there any objection to the extension of time?
MR RAFTER:	No objection to that, Your Honour.
BRENNAN J:	Time will be extended.
MR ALCORN:	Thank you, Your Honour. Yes, Mr Rafter.
MR RAFTER:	Your Honours, the only factual features that are

any different to those in the other applicant's

case, in Hong's case, are these, that he pleaded

guilty to the offence before Mr Justice Byrne in

the Supreme Court at Townsville. The sentence

imposed after pleading guilty was 13 years

imprisonment and the Court of Crimin~l Appeal

substituted a sentence of 18 years imprisonment in

Hong 5 7/3/91

his case.	He was a little bit younger than the
other applicant.	He was 21 at the time and those,

essentially, are the only factual differences.

I have provided the Court with an outline of

submissions which sets out all of the factual

matters and with respect to the principal argument

there is probably nothing that I can add to what

Mr Alcorn has already submitted to the Court.

Thank you.

BRENNAN J: Thank you, Mr Rafter. We need not trouble you,

Mr Weinberg. I take it there is no objection to

the extension of time in Rafter's case?

MR WEINBERG:  No, Your Honour.

BRENNAN J: There will be an extension of time for the

making of the application for special leave in both

of these cases. However, each case involves no

question of sentencing principle; it turns simply

on the weight which the Court of Criminal Appeal

attributed to the various factors relevant to

sentence. Neither is a case in which special leave

should be granted; see White v Reg,

(1962) 107 CLR 174. Accordingly, special leave is

refused.

AT 2.30 PM THE MATTER WAS ADJOURNED SINE DIE

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