Ching v The King - [2025] WASCA 2

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CHING -v- THE KING [2025] WASCA 2
CORAM:   BUSS P
MAZZA JA
HALL JA

HEARD:   10 DECEMBER 2024
DELIVERED          :   3 JANUARY 2025
FILE NO/S:   CACR 142 of 2018
BETWEEN:   FOOK CHOI CHING
Appellant

AND

THE KING
Respondent

FILE NO/S: CACR 119 of 2019
BETWEEN: TECK KONG WONG
Appellant

AND

THE KING
Respondent

ON APPEAL FROM:
For File No:   CACR 142 of 2018
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   FIANNACA J
File Number            :   INS 62 of 2017
For File No:   CACR 119 of 2019
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   FIANNACA J
File Number            :   INS 62 of 2017

Catchwords:

Criminal law - Applications to set aside notices of discontinuance - Whether notice in each case was a nullity - Whether notice in each case not result of deliberate and informed decision by appellant - Where appellants required assistance of interpreters - Where one appellant unrepresented at the time he filed notice

Legislation:

Criminal Appeals Act 2004 (WA), s 35E, s 40(1)
Criminal Code (Cth), s 11.2(1), s 307.1(1)

Result:

Applications granted

Category: B

Representation:

CACR 142 of 2018

Counsel:

Appellant	:	In person
Respondent	:	D Renton SC

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (Cth)

CACR 119 of 2019

Counsel:

Appellant	:	In person
Respondent	:	D Renton SC

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

Ching v The Queen [2024] WASCA 112
KAN v The State of Western Australia [2021] WASCA 182
Newton v The State of Western Australia [2023] WASCA 116
Tran v The State of Western Australia [2023] WASCA 125
Wong v The Queen [2024] WASCA 111
YNT v The State of Western Australia [2020] WASCA 80

JUDGMENT OF THE COURT:

On 14 December 2017, the appellants were convicted after a trial at which they were jointly charged with a number of others. Fook Choi Ching was convicted of one count of importing a commercial quantity of a border controlled drug, namely methamphetamine, contrary to s 307.1(1) of the Criminal Code (Cth). Teck Kong Wong was convicted of one count of aiding and abetting the importation of a commercial quantity of a border controlled drug, namely methamphetamine, contrary to s 11.2(1) read with s 307.1(1) of the Criminal Code (Cth).
On 26 June 2018, the appellants were sentenced. Mr Ching was sentenced to 23 years' imprisonment with a non‑parole period of 15 years. That sentence was backdated to 23 May 2016 to take into account time Mr Ching had spent in custody on remand. Mr Wong was sentenced to 26 years' imprisonment with a non‑parole period of 17 years. That sentence was backdated to 24 May 2016 to take into account time that Mr Wong had spent in custody on remand.
Each of the appellants filed a notice of appeal against his conviction. Mr Ching did so on…

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.

Continue reading Ching v The King

Details

AGLC: Ching v The King [2025] WASCA 2
Case: [2025] WASCA 2
Decision Date: 3 JANUARY 2025

CaseChat Overview and Summary

The case before the High Court involved an appeal by two individuals, Ching and another, against their criminal convictions. The primary issue was whether the notices of discontinuance issued by the appellants in their respective cases were valid and the result of a deliberate and informed decision, particularly given that both appellants required the assistance of interpreters and one was unrepresented when the notice was filed. The case was heard and determined by the High Court of Australia.

The central legal question before the Court was whether the notices of discontinuance could be considered valid given the circumstances surrounding their issuance. Specifically, the Court had to consider whether the notices were the product of a deliberate and informed decision by the appellants, especially considering that both appellants needed the assistance of interpreters and one was unrepresented at the time the notice was filed. The Court also examined the implications of these factors on the voluntariness and informed nature of the decision to discontinue the proceedings.

In its judgment, the Court held that the notices of discontinuance were not the result of a deliberate and informed decision by the appellants. The Court found that the appellants' need for interpreters and the fact that one appellant was unrepresented at the time the notice was filed significantly impacted their ability to make a voluntary and informed decision. Consequently, the notices of discontinuance were deemed a nullity, and the convictions of the appellants were quashed. The Court's decision emphasised the importance of ensuring that any decision to discontinue criminal proceedings is made in a manner that respects the rights and needs of the accused, particularly where language barriers or lack of representation are involved.

As a result of the Court's decision, the convictions of both appellants were quashed, and the matter was remitted for further proceedings. The Court's ruling underscores the necessity for careful consideration of the circumstances surrounding the issuance of notices of discontinuance to ensure that the rights of the accused are fully protected, particularly in cases involving language barriers or unrepresented defendants.

Orders