GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
YU SHING CHENG APPLICANT
AND
THE QUEEN RESPONDENT
Cheng v The Queen [2000] HCA 53 5 October 2000 A8/1999
ORDER
Application dismissed.
On appeal from the Supreme Court of South Australia
Representation:
T A Gray QC with G J S Mancini, S F Stretton and S J Doyle for the applicant (instructed by George Mancini & Co)
M F Gray QC with F Propsting for the respondent (instructed by Commonwealth Director of Public Prosecutions)
Intervener:
D M J Bennett QC, Solicitor-General of the Commonwealth with M Sloss intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
HIGH COURT OF AUSTRALIA
GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
GANG CHENG APPLICANT
AND
THE QUEEN RESPONDENT
Cheng v The Queen 5 October 2000 A9/1999
ORDER
Application dismissed.
On appeal from the Supreme Court of South Australia
Representation:
T A Gray QC with G J S Mancini, S F Stretton and S J Doyle for the applicant (instructed by McGee & Associates)
M F Gray QC with F Propsting for the respondent (instructed by Commonwealth Director of Public Prosecutions)
Intervener:
D M J Bennett QC, Solicitor-General of the Commonwealth with M Sloss intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
HIGH COURT OF AUSTRALIA
GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
BACH AN CHAN APPLICANT
AND
THE QUEEN RESPONDENT
Chan v The Queen 5 October 2000 A25/1999
ORDER
Application dismissed.
On appeal from the Supreme Court of South Australia
Representation:
T A Gray QC with G J S Mancini, S F Stretton and S J Doyle for the applicant (instructed by George Mancini & Co)
M F Gray QC with F Propsting for the respondent (instructed by Commonwealth Director of Public Prosecutions)
Intervener:
D M J Bennett QC, Solicitor-General of the Commonwealth with M Sloss intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Cheng v The Queen
Constitutional law (Cth) – Trial by jury – Trial on indictment for offence against law of the Commonwealth – Pleas of guilty following rejection of demurrer raising constitutional objection to information – Whether any issue for trial – Whether any infringement of s 80 of Constitution.
Customs – Offences – Prohibited imports – Narcotic goods – Differential punishment for trafficable and commercial quantities – Whether elements of offence – Whether in a trial on indictment must be decided by jury – Requirements of s 80 of Constitution.
Words and phrases – "trial…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Cheng v The Queen [2000] HCA 53
Case
[2000] HCA 53
Decision Date
CaseChat Overview and Summary
The applicants, Yu Shing Cheng, Gang Cheng, and Bach An Chan, challenged the validity of provisions of the *Customs Act 1901* (Cth) under which they were convicted. The central issue concerned the constitutional validity of these provisions in light of section 80 of the Australian Constitution, which mandates trial by jury for indictable offences. The applicants had pleaded guilty to being knowingly concerned in the importation of prohibited narcotic goods, following the rejection of their demurrers which raised constitutional objections to the information laid against them.
The High Court was required to determine whether the provisions of the *Customs Act* concerning the classification of prohibited imports as either "commercial quantities" or "trafficable quantities" for sentencing purposes, and the differential penalties attached to these classifications, infringed section 80 of the Constitution. Specifically, the Court had to consider whether the determination of these quantity-based elements, which significantly impacted the available penalties, constituted an essential element of the offence that must be decided by a jury in a trial on indictment.
The Court reasoned that section 80 of the Constitution guarantees the right to trial by jury for "treason, felony and other crime" and applies to offences against the laws of the Commonwealth. However, the Court distinguished between the elements of an offence that define guilt and those that relate to the severity of the penalty. The Court held that the determination of whether narcotic goods met the threshold of a "commercial quantity" or "trafficable quantity" for the purposes of sentencing under section 235 of the *Customs Act* did not constitute an element of the offence itself, but rather a matter for the sentencing judge to determine. Therefore, the determination of these quantities by the judge, rather than a jury, did not infringe section 80 of the Constitution.
The applications were dismissed.
Orders
Orders of the court
Application dismissed.
Background
Background to the litigation
All three applications involve a challenge to the validity of the provisions of the Customs Act 1901 (Cth) under which the applicants were convicted and sentenced. In addition, the first two applicants, Yu Shing Cheng and Gang Cheng, rely upon an argument concerning the manner in which certain facts, said to be relevant to sentence, were dealt with by the Court of Criminal Appeal. It is convenient to consider first the principal issue, which is common to all three applications, and, for that purpose, to examine the facts of the cases, and the course of proceedings in the Supreme Court of South Australia.The facts In circumstances which will be described in more detail below, each applicant pleaded guilty to the offence of being knowingly concerned in the importation of a prohibited import. Subject to a matter going to the subsidiary issue, the facts were not in dispute. The following summary is taken from the remarks on sentence made by Debelle J. In November 1997, a quantity of 13,462 grams of heroin powder, of approximately 70 percent purity, said to have a street value of more than $13 million, arrived in Adelaide by air from Bangkok. Its ultimate destination was Sydney. The heroin was contained in five marble pedestals. The column of each pedestal was hollow, and filled with heroin. The pedestals were packed in five crates. On arrival in Adelaide, the crates attracted the attention of the authorities. The crates were opened and the pedestals were removed. Heroin was found inside. Federal police officers removed the heroin and replaced it with substitute powder, and then repacked the pedestals. Listening devices were placed in two crates and in one pedestal. The crates were addressed to the first applicant, Yu Shing Cheng. The third applicant, Bach An Chan, had persuaded the first applicant to agree to be the person to whom the imported goods were addressed. The first applicant went to the airport, and arranged for the crates to be delivered to his home address. The third applicant was informed of their arrival, and went with another person to collect the crates from the first applicant's flat. On the following day, the second applicant rented a motor vehicle, and, on the day after that, he and another person drove the vehicle, with the crates loaded on board, to Sydney. In the meantime, the third applicant had flown to Sydney to meet the crates when they arrived there. The second and third applicants were arrested in Sydney. The first applicant was arrested in Adelaide. The first applicant maintained that he was unaware, when he went to the airport, that the imported goods, which had been addressed to him, and which he had agreed to collect, consisted of a large quantity of heroin. He said that he thought what was involved was only two small parcels of cocaine. He was to be paid $6,000 for his involvement. The second applicant, who was to be paid $3,000, admitted that he knew drugs were involved, but said he did not know the quantity or nature of the drugs.
Section 233B of the Act relevantly provides:"(1) Any person who:...(d)aids, abets, counsels, or procures, or is in any way knowingly concerned in, the importation, or bringing, into Australia of any prohibited imports to which this section applies, or the exportation from Australia of any prohibited exports to which this section applies;...shall be guilty of an offence....(2)The prohibited imports to which this section applies are prohibited imports that are narcotic goods ...(3)A person who is guilty of an offence against subsection (1) of this section is punishable upon conviction as provided by section 235."Section 235 relevantly provides, in sub-section (2), that:" Subject to subsections (3) and (7), where:(a)a person commits an offence against ... subsection 233B(1); and(b)the offence is an offence that is punishable as provided by this section;the penalty applicable to the offence is:(c)where the Court is satisfied:(i)that the narcotic goods in relation to which the offence was committed:(A)are a narcotic substance in respect of which there is a commercial quantity applicable; and(B)consist of a quantity of that substance that is not less than that commercial quantity; or(ii)that the narcotic goods in relation to which the offence was committed consist of a quantity of a narcotic substance that is not less than the trafficable quantity applicable to that substance and also that, on a previous occasion, a court has:(A)convicted the person of another offence, being an offence against a provision referred to in paragraph (a) that involved other narcotic goods which consisted of a quantity of a narcotic substance not less than the trafficable quantity that was applicable to that substance when the offence was committed; or(B)found, without recording a conviction, that the person had committed another such offence;imprisonment for life or for such period as the Court thinks appropriate;(d)where the Court is satisfied that the narcotic goods in relation to which the offence was committed consist of a quantity of a narcotic substance that is not less than the trafficable quantity applicable to the substance but is not satisfied as provided in paragraph (c):(i)if the narcotic substance is a narcotic substance other than cannabis–a fine not exceeding $100,000 or imprisonment for a period not exceeding 25 years, or both; or(ii)if the narcotic substance is cannabis–a fine not exceeding $4,000 or imprisonment for a period not exceeding 10 years, or both; or(e)in any other case–a fine not exceeding $2,000 or imprisonment for a period not exceeding 2 years, or both."Sub-section (3) of s 235 provides:"Where:(a)the Court is satisfied that the narcotic goods in relation to which an offence referred to in subsection (2) was committed consist of a quantity of a narcotic substance that is not less than the trafficable quantity applicable to that substance, but is not satisfied as provided in paragraph (c) of that subsection in relation to those narcotic goods; and(b)the Court is also satisfied that the offence was not committed by the person charged for any purposes related to the sale of, or other commercial dealing in, those narcotic goods;notwithstanding paragraph (d) of that subsection, the penalty punishable for the offence is the penalty specified in paragraph (e) of that subsection."Sub-section (7) of s 235 is concerned with summary proceedings and has no relevance to the questions raised in these applications.The decision in Kingswell
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ, GUMMOW AND HAYNE JJ,
GAUDRON J,