Cth Director of Public Prosecutions v Chu
[2017] VCC 1027
•31 July 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-16-00989
CR-16-00990
CR-17-00182
| COMMONWEALTH |
| v |
| WING THI CHU and ALAN AIK HUAT LIM |
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JUDGE: | HIS HONOUR JUDGE MASON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | CHU: 15 & 16 February, 24 & 28 April 2017 |
DATE OF SENTENCE: | 31 July 2017 |
CASE MAY BE CITED AS: | Cth DPP v Chu & Anor |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1027 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Attempt to traffick commercial quantity of controlled drug - traffick commercial quantity of controlled drug - import commercial quantity of border controlled drug
Legislation Cited: Crimes Act 1914 (Cth), Criminal Code (Cth), Sentencing Act 1991 (Vic)
Cases Cited:
Sentence:CHU: 14 years’ imprisonment, 10 years non-parole period
LIM: 9 years’ imprisonment, 6 years non-parole period---
APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions at hearing | Mr M. Gibson | Commonwealth Director of Public Prosecutions |
For Accused Chu | Mr J. Lavery | Tony Danos Lawyers |
| For Accused Lim at hearing | Ms M. Tittensor | Pica Criminal Lawyers |
HIS HONOUR:
1Wing Thi Chu, you have pleaded guilty to one charge of attempting to traffick a commercial quantity of a controlled drug, namely methamphetamine, contrary to ss.11.1 and 302.2 of the Criminal Code (Cth) on 1 September 2015, and one charge of importing a commercial quantity of a border controlled drug, namely methamphetamine, contrary to sub-s.307.1(1) of the Criminal Code (Cth) by virtue of s.11.2A of that Code on 7 August 2015.
2The maximum penalty for each of these offences is imprisonment for life or 7500 penalty units or both.
3Alan Aik Huat Lim, you have pleaded guilty to one charge of trafficking a commercial quantity of a controlled drug, namely methamphetamine, contrary to sub-s.302.2(1) of the Criminal Code (Cth) on 1 September 2015.
4The maximum penalty for this offence is imprisonment for life or 7500 penalty units or both.
5The circumstances of the offending are provided in detail in the prosecution opening on the plea, which is annexed to this document. In basic summary, your respective offending was as follows.
6First as to you, Mr Chu, concerning the importation charge, from 12 June 2015 you were in phone contact with another male known as Sing Fat Cheung. Cheung asked if you had any work for him and made reference to signing for parcels. You arranged to meet up. On 19 June you instructed Cheung to rent a place and that you would pay the rent. Upon being told that a place had been secured you told Cheung to rent it for two weeks and that you would “send the address to them tonight”. You also instructed Cheung to purchase a phone card and cheap phone and that in the future he would need two or three phones.
7On 25 July you had further discussions with Cheung concerning Cheung's fees for “receiving” and for “cooking”.
8On 6 August Cheung informed you that a package had been sent to Australia. It was uncertain whether it had cleared Customs. You told Cheung, "I don't want to check. I would rather let Hong Kong advise me, just in case.” It was agreed between you that it was likely to arrive the following day.
9On 7 August two consignments with tracking numbers ending in 564CN and 555CN were received at the city parcel delivery facility in Melbourne at 2.20 am and 3.28 am respectively.
10Consignment 564 was delivered to Cheung at an address in Flinders Street at 3.43 pm.
11Consignment 555 was intercepted by police and seized for inspection.
12At 3.47 Cheung informed you that he had received one item but not the other one. He said, "Normally should be together, right? But I have only received one".
13You were told that the other item showed as being at the post office. You instructed Cheung to put the received parcel aside. You said you would wait for the second parcel to arrive before collecting them.
14Later that day you had a series of telephone conversations with Cheung and an unknown other person in Hong Kong concerning the whereabouts of the second anticipated parcel. You had been told that the two packages contained different items: one a porcelain plate with a tiger face, the other a pig, and that both had "stuff" inside. The male in Hong Kong said, "There is 1.5 in each inside". Cheung later described the package he had received as being “round like a chopping board with a tiger face”. You directed Cheung to wait for later notification by you, then you would let him know who to hand it to, then you would pay his wage. During the conversation you referred to Cheung as your employee.
15The package 555 seized by police was found to be a gold-coloured pig ornament containing 4.296 kilograms of methamphetamine of 48.3% purity, yielding a net weight of 2.075 kg pure methamphetamine. I pause to note that a commercial quantity is 750 grams pure. The total quantity imported therefore is 2.7 times the commercial quantity applicable to methamphetamine.
16The wholesale value is estimated to be approximately between $859,360 and
$1.37 million, and the street value between $2.15 million and $4.3 million.17Subsequent to the importation you advised Cheung for his own safety to ignore the other package (that is, 555) and treat it as gone. You also made arrangements to pay Cheung $10,000 and stated that you did not want to lose him as an employee.
18A matter of some contention arose on the plea as to how the matter of the
non-intercepted parcel 564 should be considered in the context of the offending. What is in issue is whether the non-intercepted parcel contained the same drug as the intercepted parcel. The prosecution relies on the combination of the facts that both consignments were lodged at the same time, both left China at the same time, both entered Australia effectively at the same time and that you were told that there was 1.5 in each, as evidence that the two parcels are effectively the one importation. The prosecution does not submit, however, that the delivered consignment 564 aggravates the offence of importing the consignment 555.19The person referred to above as Sing Fat Cheung who, on Chu's instructions, had rented premises for receiving delivery, was sentenced on this same importation by His Honour Judge Stuart on 22 November 2016[1]. The issue was considered in submissions before His Honour. In that case, however, it was agreed between the parties that the consignment that was not intercepted contained an unknown quantity of methamphetamine and His Honour proceeded on that basis but did not treat it as an aggravating matter. The prosecution submission in this case is designed to produce consistency in approach.
[1]The Queen v Sing Fat Cheung [2016] VCC 1765
20The defence submission however, in this case, is that I could not be satisfied that the non-intercepted package contained any drugs at all. The evidence of what the two packages contained relies on accepting evidence of statements, no more than of his belief, from an unidentified male. There is no evidence that that male personally packed the items and his assertions as to the weight of the drug in the intercepted package appears to be incorrect. The prosecution inferences, argues the defence, cannot be accepted beyond reasonable doubt because they ignore reasonable inferences open on the evidence, such as, for example:
· causing two packages to be sent but deliberately having drugs in only one of the packages;
· an associate, either intentionally or inadvertently, failing to pack the drug in the package; or
· a worthless substance being packed into the crate as part of a “rip-off”.
21It seems apparent that before His Honour Judge Stuart there was a concession by the defence that parcel 564 was part of the one importation together with 555, that it was methamphetamine that was imported but that the quantity was unknown and that the prosecution were content not to rely on that as a feature of aggravation. In the present circumstances it is a disputed matter of evidence as to whether the package contained any drug at all, even assuming the package formed part of the one importation.
22If the defence does not concede that parcel 564 was part of the one importation it seems to me that the issue is a fact which would have to be determined by a jury.
23Acting on the assumption that it is so conceded, in my view the evidence still does not have sufficient strength to accept beyond reasonable doubt that 564 contained methamphetamine, let along any particular quantity. All that the evidence discloses is some unknown person's belief. It might very well be accepted on the evidence that it is highly probable that the belief is well founded but in my view it does not go beyond probability of belief to the exclusion of other reasonable inferences excluding the fact that what, if anything, was incorporated into the package.
24For the purpose of this sentence I put aside the issue of substance or quantity of the package, consignment 564. You, Mr Chu, fall to be sentenced only in relation to the intercepted parcel 555. Whilst this is a distinction with what was determined by His Honour Judge Stuart, it makes no practical difference to sentencing considerations. It is clear from His Honour's sentence that the second parcel 564 was not regarded for sentencing purposes as any aggravating feature.
25I turn now to the charges of attempt to traffick in relation to you, Mr Chu, and to traffick in relation to you, Mr Lim.
26On 29 August 2015 you, Mr Chu, had a series of phone conversations with an unknown male concerning the dispatch of items. You asked for a continuous supply as you did not want to keep others waiting. You said you would be able to shift two pieces. You were told that all five would be set aside for you.
27On 31 August you made a phone call to Mr Lim who advised that "we will arrive at 6 o'clock" the following morning. Mr Chu, you advised Mr Lim to come to the same address as last time and the time was agreed at 9 am.
28At 7 am on 1 September you, Mr Lim, arrived at the Southern Cross station from an overnight bus from Sydney. You were carrying a backpack and satchel and accompanied by another male. You advised Mr Chu that you had arrived and were told by him to attend between 9.30 and 10 am. You subsequently called Mr Chu and told him you were on your way.
29You arrived at Themeda Lane, Maribyrnong at about 9.45 and entered the rear of a house in Bracken Avenue. You called Mr Chu, stating that you had arrived and Mr Chu said he would arrive in two minutes. At about 9.58 am the two of you entered the rear of the house in Bracken Avenue.
30Once you were inside police executed a search warrant and also entered the premises. Upon entry they found each of you in a rear bedroom. Also located in the room was a yellow plastic bag found to contain three packages containing methamphetamine.
31Forensic analysis revealed that the packages contained 4986.1 grams of methamphetamine of 79.7% purity, yielding a total net weight of 3973.9 grams of methamphetamine.
32The total quantity trafficked or attempted to be trafficked is 5.3 times the commercial quantity applicable to methamphetamine. The wholesale value of the material is estimated to be between approximately $997,220 and $1.59 million and the street value is approximately from $2.49 million to $4.98 million.
33You both entered pleas of guilty in this court: you, Mr Chu, on 13 and 15 February this year and you, Mr Lim, on 4 November last year.
34You were both arrested on 1 September 2015. Mr Lim, you have therefore served 699 days or imprisonment in pre-sentence detention not including today and Mr Chu, you have served 635 days not including today.
35I turn now to your personal circumstances.
36As noted earlier, you, Mr Chu, were born and raised in Hong Kong and you are now 31 years old. You have no prior convictions but you do have subsequent drug offence convictions dated December 2016.
37You were educated in Hong Kong and moved to Australia when you were 11. You have one half-brother and two half-sisters; however none of them live in Australia.
38You experienced a difficult transition in your early years in Australia, being bullied for your lack of English. You were good at sport and drawing and proceeded to Year 11 standard.
39In your mid-teens you worked at the Victoria Market and upon leaving school worked as a kitchen assistant and waiter, later progressing to a computer shop. You completed Certificate 5 in motor mechanics and an advanced diploma in building and construction. On a visit to Hong Kong over years 2013 to 2014 you established your own business, named TNT Engineering, which provided fibre optical cable installation for commercial premises.
40You generally enjoy good health but suffer from chronic lower back pain.
41You met your present partner when you were in your early 20s, and you have two children - I am not sure what their ages are now.
42ACCUSED: One is turning four, one is turning two.
43HIS HONOUR: Thank you. You started using cocaine when approximately 23 and have used it regularly for much of your 20s. You had been arrested on your return from Hong Kong in 2014 and spent three months in custody and you attribute your return to regular cocaine use to how things had turned bad for you in your life after your return. You have said that, "After getting arrested and bailed in 2014 I lost everything. I had no money, my wife was looking after our daughter. After being in prison I met people and they contacted me after I got out. I got caught up in it. I needed money to help my family … also the lawyers' fees caused me a lot of stress …".
44A report from Mr Ian McKinnon, forensic and consultant psychologist, was tendered on your plea. Mr McKinnon has assessed you and reports that you do not appear to have any major diagnosable psychological disorder and your intelligence appears to fall in the age-normal range. You are somewhat situationally/reactively anxious about your current legal predicament, which is only to be expected. You speak both Cantonese and Mandarin and your English is basic. In Mr McKinnon's opinion you are probably suffering with a mild substance abuse disorder, probably used as a means of self-medicating your situational stress and anxieties at the time of offending.
45You receive visits from your parents and your wife and friends. You worry about them all and are regretful that you are not able to be with and caring for them.
46References tendered give expression to your otherwise good character, possessing qualities such as responsibility, reliability, kindness, being community-minded and a loving family man who is overwhelmed with the ordeal of separation from your family.
47You, Mr Lim, were born in Malaysia on 8 July 1979 and are now 38 years old. You are the eldest son of your family and you have no prior convictions.
48Your family faced difficult financial circumstances in Malaysia and you assisted them from a young age, working whilst you were still a student and later contributing to support the family once you started work.
49As the eldest son you assumed a duty to help your family and you have taken that duty seriously. You were educated to the equivalent of Year 10 and exhibited some learning problems, which has been assumed to have been as a result of a head injury when you were very young. After leaving school you worked variously as a waiter and in a factory. You had an aptitude for art and graphics and developed skills in graphic design by taking an internet course.
50You have never married or lived with anyone else and a recent relationship with a Thai national ceased upon your arrest in Australia.
51You came to Australia after a friend encouraged you by telling you that you could get good employment here with your skills in graphic design. The friend arranged a visa but when you arrived you discovered it did not allow you to work. The friend then said he would arrange a student visa for you but that it would cost you more money. There were continual delays and you were becoming increasingly frustrated.
52Ultimately the friend told you that you were to deliver something to Melbourne and that he would pay your school fees in return. When you enquired why you specifically needed to do the delivery you were told not to ask any questions. You realised that something was not right but by that stage were scared to refuse. Your passport had been taken by the friend. He and others had your personal details and knew your family's address in Malaysia.
53Your role in the offending was to bring the package to Melbourne, and I note that you were accompanied on that trip.
54You have now been in custody since 1 September 2015. You were initially held in custody in police cells and were physically assaulted by other prisoners whilst in the police cells at Ballarat. Since then you have taken it upon yourself to isolate yourself because of the fear of physical assault.
55You are completely separated from your family and friends. You know no-one at all in Australia and receive no visitors.
56Whilst you have been in custody your father died tragically in a motorcar collision in Malaysia and your mother has suffered physical injury which now prevents her from working. This has caused you anxiety, regret and grief because you have not been able to support her. Your only contact with your family is limited to phone calls. Your letter to this court and the letter from your sister fully articulate your anguish.
57During your time in custody you have returned negative results for drug testing and have committed yourself to rehabilitative programs. Your English skills are quite limited and basic.
58The offending by both of you is, of course, serious. The availability of illicit drugs in the Australian community is a cause of much misery and consequential criminal activity. The sentence imposed for drug importation and trafficking, including attempted trafficking, must signal to offenders, or potential offenders, that the potential financial rewards to be gained for such activities are neutralised by the risk of severe punishment. Each of you would have been aware that the value of the drug was likely to have been high in each instance. They are crimes which require prominence in sentencing of what the law calls general deterrence. That is, the sentence that you each receive is partly designed to deter others from engaging in the same type of conduct. Other considerations are specific deterrence to you, denunciation by the court and the protection of the community, balanced with your personal circumstances and matters in mitigation.
59Neither of you has any prior convictions. You, Mr Chu, have an antecedent conviction for other drug matters. That is a matter which may be considered in the context of your prospects of rehabilitation.
60As to your role in the offending, Mr Chu, it is clear that in each case - both the importation and the trafficking - you were part of the organising chain as opposed to being a basic courier. With regard to the importation you were in a position to provide directions to others. As to the attempt to traffick, it is an accepted principle of the Commonwealth law that an attempt is not a less serious category than the completion of the offence and that the offender's degree of involvement in the overall transaction is the relevant factor. In your case the transaction was fulfilled by delivery to the designated premises and you were present. Your motivation in each case was the financial reward.
61As to your role, Mr Lim, I accept that you opportunistically agreed to assist as a courier for others. Any role in arrangements was essentially limited to the place and time of intended delivery. Again, your motivation was financial reward.
62In mitigation in your case, Mr Chu, I take into account the submissions of your counsel and, in particular, I accept:
· your pleas of guilty and that they were entered ultimately in what must be considered an early practical stage in the circumstances because of the requirement for further evidence;
· your expressions of remorse which I accept is genuine;
· the absence of prior convictions;
· your character otherwise which suggests that you are well regarded by others as a responsible, loving and caring family man who has worked hard in the past and has given time generously to homeless people;
· that you had suffered a downturn in your life following your return from Hong Kong and resorted to regular cocaine use - although the drug use does not excuse your conduct I accept that you were at an emotionally low ebb when you became involved in these matters;
· that whilst in custody you have applied yourself to rehabilitative courses - in light of your family support and with further reflection on your part, I regard your prospects of rehabilitation as fair; and
· the anguish that you will endure as your wife and young children will pass through life in the community without your presence.
63In mitigation in your case, Mr Lim, I take into account the submissions of your counsel and in particular I accept:
· your plea of guilty and that it was entered at an appropriately early stage given the circumstances;
· your previous good character - you are a mature man, you have worked hard and responsibly in the past for your family and you have not previously offended;
· your remorse as reflected in your plea of guilty and expressed directly, which I accept is genuine;
· your circumstances of vulnerability in Australia with no support and being open as you were to exploitation by others;
· the isolation and hardship you have had and will continue to experience away from your family and friends;
· your prospects of rehabilitation, which I assess as being reasonably good; and
· your role in the offending, which was essentially limited to being a closely supervised conduit for others.
64As to parity, there are clear distinctions between each of you in the number of offences and the degree of involvement in the trafficking transaction. The role of Cheung in the importation is distinguishable from you, Mr Chu, by the respective roles in the transaction.
65I take into account also, as a totality issue, an allowance for the fact that you, Mr Chu, have also spent time in custody for the subsequent conviction where, because of the timing of these matters, you lost any opportunity for concurrency.
66As to other matters that may have arisen on the plea, all matters referred to in the plea hearing have been considered.
67Mr Chu, could you please now stand.
68On Charge 1 in Case No.CR-16-00990 of attempting to traffick a commercial quantity of a controlled drug contrary to sub-s.11.1(1) of the Criminal Code (Cth), you are convicted and sentenced to 11 years' imprisonment.
69I direct that the sentence commences today.
70On Charge 1 in Case No.CR-17-00182 of importing a commercial quantity of a border controlled drug contrary to sub-s.307.1(1) of the Criminal Code (Cth) by virtue of s.11.2A of that Code, you are convicted and sentenced to 9 years' imprisonment.
71I direct that this sentence commences on 31 July 2022.
72On your consolidated plea, the total effective sentence over both charges is 14 years' imprisonment.
73I direct that you serve minimum of 10 years' imprisonment before being eligible for parole.
74Pursuant to s.18(4) of the Sentencing Act 1991 (Vic), I declare that the period of 635 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
75For the purposes of s.6AAA of the Sentencing Act, but for your plea of guilty the sentence that would have been imposed is a term of imprisonment of 18 years with a non-parole period of 14 years.
76You may be seated, Mr Chu.
77Mr Lim, could you please now stand.
78On Charge 1 in Case No.CR-16-00989 of trafficking a commercial quantity of a controlled drug contrary to sub-s.302.2(1) of the Criminal Code (Cth), you are convicted and sentenced to 9 years' imprisonment.
79I direct that you serve a minimum of 6 years' imprisonment before being eligible for parole.
80I direct that this sentence commences today.
81Pursuant to s.18(4) of the Sentencing Act 1991 (Vic), I declare that the period of 699 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
82For the purposes of s.6AAA of the Sentencing Act, but for your plea of guilty the sentence that would have been imposed is a term of imprisonment of 12 years with non-parole period of 8 years.
83You may be seated, Mr Lim.
84At the plea hearing the Crown sought from each of you a forfeiture order as to the cash seized on 1 September 2015. You have each consented to the making of these orders and I have made them today.
85That concludes my sentencing remarks. Is there anything else from either counsel?
86COUNSEL: No, Your Honour.
87HIS HONOUR: All right, thank you.
- - -
ANNEXURE
PROSECUTION OPENING ON PLEA
IN THE COUNTY COURT OF VICTORIA
Ref: CR-17-00182
AT MELBOURNE
CR-16-00990
IN ITS CRIMINAL JURISDICTION
CR-16-00989
THE QUEEN
- v -
WING TAI CHU
&
AIK HUAT ALAN LIM
PROSECUTION OPENING ON PLEA
Date of document:
18 April 2017
Filed on behalf of:
The Commonwealth Director of Public Prosecutions
Prepared by:
M. Gibson of Counsel
Solicitor’s code:
Telephone : (03) 9605 4333
Reference: MC15100577
OVERVIEW OF CROWN CASE
1.The Offender Wing Tai CHU has pleaded guilty to:
a.importing a border controlled drug namely methamphetamine in not less than a commercial quantity contrary to section 307.1 Criminal Code (Cth) by virtue of s11.2A of the Criminal Code (Cth), on 7 August 2015
(Charge 1);
b.attempting to traffick in a commercial quantity of a controlled drug, namely methamphetamine contrary to sections 11.1 & 302.2 Criminal Code (Cth) on 1 September 2015 (Charge 2).
2.The maximum penalty for each of Charges 1 and 2 is life imprisonment and/or 7500 penalty units.
3.The Offender Aik Huat Alan LIM has pleaded guilty to one charge of trafficking in a commercial quantity of a controlled drug, namely methamphetamine, contrary to section 302.2 Criminal Code (Cth) on 1 September 2015.
4.The maximum penalty for this charge is life imprisonment and/or 7500 penalty units.
CHU - IMPORT CHARGE
5.On 29 April 2015[2], a Named Person Warrant pursuant to Section 46A of the Telecommunications (Interception and Access) Act 1979 (Cth) was issued for telecommunications services used by Wing Tai CHU.
[2] And again on 23 July 2015
6.On 12 June 2015, CHU, using telecommunications service 0478192050 (“050”) made a phone call to another male identified as Sing Fat CHEUNG, using service 0435791806 (“806”). During that call, CHU stated that “KA SHING” had asked him to contact CHEUNG. CHEUNG acknowledged and asked if CHU had any work for him and made reference to signing for parcels. CHU questioned CHEUNG about his age, visa status, whether he has a driver’s licence. CHU arranged to meet up with CHEUNG.[3]
[3] Exhibit 21, TI WHELP 10, Warrant L15094, CSN 5548.
7.On 19 June 2015, CHU, using telecommunications service 0435839564 (“564”) had a number of phone calls with CHEUNG using “806”. CHU instructed CHEUNG to look for a place to rent and stated that he would pay for the cost of the rent. Later on the same day, CHEUNG informed CHU that he had found a place to rent. CHU instructed CHEUNG to rent it for two weeks and stated that he will “send the address to them tonight.”[4]
[4] Exhibit 22, TI WHELP 10, Warrant L15094, CSN 6306, 6307, 6297, 6312. 4 Exhibit 23, TI WHELP 10, Warrant L15094, CSN 6311.
8.On the same day in a separate conversation, CHU using “564” instructed CHEUNG using “806” to purchase a phone card and cheap phone, adding that in the future he will need two or three phones.4
9.On 25 July 2015, CHEUNG using “806” and CHU, using telecommunications service 0481169731 (“731”) had a phone conversation during which CHEUNG disclosed that KA SHING pays him $15,000 “per portion”. CHEUNG elaborated that $10,000 is for “receiving” and $5,000 is for “cooking”. Further discussion ensued in relation to CHEUNG working for CHU and KA SHING.
10.On 30 July 2015, a Named Person Warrant pursuant to Section 46A of the Telecommunications (Interception and Access) Act 1979 (Cth) was issued for telecommunications services used by Sing Fat CHEUNG.[5] [6] [7]
[5] Exhibit 6, Named Person Warrant – Telecommunications Service – CHEUNG.
[6] Exhibit 7, Subscriber information for mobile services utilised by CHEUNG.
[7] Exhibit 8, DVD containing Telephone Intercept Material – Warrant L15154 (CHEUNG).
6 August 2015
11.CHU using “731” and CHEUNG, using telecommunications service
0403590936 (“936”) exchanged two phone calls on 6 August 2015.
12.At 4.41pm, CHEUNG made a phone call to CHU during which CHEUNG stated that he had been checking and as at five o’clock yesterday, it was at a distribution centre in Australia. CHEUNG informed CHU that KA SHING sent the package. CHEUNG stated that KA SHING asked if he was helping CHU with “posting things” which CHEUNG affirmed. CHU asked if it has cleared
Customs but CHEUNG indicated that he couldn’t tell.[8]
[8] Exhibit 26, TI WHELP16, Warrant L15094-01, CSN 1719.
13.At 4.56pm, CHEUNG made another phone call to CHU. CHEUNG asked if CHU was able to check if it has cleared Customs. CHU answered: “I can, but I don’t want to check, I would rather let Hong Kong advise me, just in case.”
14.Both CHEUNG and CHU agreed that it should arrive the following day.[9]
[9] Exhibit 27, TI WHELP16, Warrant L15094-01, CSN 1723.
Events of 7 August 2015 – date of importation of consignments
15.On 7 August 2015, EMS consignments with tracking numbers EE963352564CN and EE963352555CN were scanned into the City Parcel Delivery Facility in Melbourne at 2:20am[10] and 2:28am[11] respectively.
[10] Statement of MARSHALL, p987
[11] Australia Post records, p52
16.At 6:48am consignment EE963352555CN was transferred to a driver for delivery,[12] however prior to it being delivered, it was intercepted by Australian Federal Police and seized for inspection.[13]
[12] Australia Post records, p52
[13] Email correspondence between Australia Post and ABF, p51 14 TI BRING3, Warrant L15154-00, CSN 32 and 72.
17.CHEUNG used a mobile phone to check the tracking status of this consignment EE963352555CN at 2:35pm and again at 7:16pm. The tracking status indicated that the consignment had arrived at the post office.14
18.At 6:51am consignment EE963352564CN was transferred to a driver for delivery and was delivered to CHEUNG at 501/238 Flinders Street at 3:43pm.[14]
[14] Statement of MARSHALL, p988
19.CHU, using telecommunications service 0431157149 (“149”) and CHEUNG using “936” exchanged a number of phone calls during the afternoon of 7 August 2015.
20.At 3.57pm, CHEUNG made a phone call to CHU. CHEUNG informed CHU that he had received one item but not the other one. CHEUNG stated “Yep, normally sh’ should be together right? But I have only r’ received one”.
21.CHU asked where the other one was and CHEUNG replied that the other item showed as being at the post office. CHU instructed CHEUNG to put the received parcel aside. When CHEUNG asked if CHU would pick up the parcel from CHEUNG that day, CHU replied that he would wait for the second parcel to arrive before collecting them. [15]
[15] TI WHELP17, Warrant L15094-01, CSN 1865.
22.At 3.59pm, CHU (using “149”) made a phone call to an unknown male (UM1) (using a Hong Kong phone service 85265702032). CHU informed UM1 that “One has arrived, the other one not yet.” UM1 asked CHU “Is it a pig or what?” CHU was unsure. UM1 explained that the packages contain different items; one item contains a porcelain plate and the other a pig, and that both items have “stuff inside”. CHU stated that he will ask.[16]
[16] Exhibit 30, TI WHELP17, Warrant L15094-01, CSN 1871.
23.At 4.01pm, CHU made a phone call to CHEUNG. CHU asked CHEUNG if the item is porcelain or a pig. CHEUNG responded that he had not opened it. CHU requested that CHEUNG check and get back to him. CHUENG then immediately called CHU back and asked if he should go to the post office and ask where the other one is, CHU replied no, telling CHEUNG to go home.[17]
[17] Exhibit 31, TI WHELP17, Warrant L15094-01, CSN 1873 & 1874. 19 Exhibit 32, TI WHELP17, Warrant L15094-01, CSN 1902.
24.At 4.32pm, CHEUNG made a phone call to CHU. CHEUNG described the item as round like a chopping board with a tiger face. CHU then instructed CHEUNG to look for any signs that the package has been opened or tampered with. CHEUNG stated that he believed that it had not been opened. CHU then advised that there is a chance that the other item should not be collected and that if it is not delivered by Saturday or Sunday then that “piece will be gone” and CHEUNG should not collect it. CHU further advised CHEUNG to “Wait for my notification tonight, then I will let you know who to hand it to, then I will pay you your wage.”19
25.At 4.34pm, CHU using “149” made a phone call to an unknown male (UM1). CHU reported that the item received is round like a chopping board with a tiger face. UM1 affirmed that that is just the plate. UM1 stated that there was a pig as well and that “there is one point five in each inside.” CHU then asked that UM1 decide whether to collect the second package or not. UM1 did not think
the other package should be collected. CHU agreed. During the conversation, CHU refers to CHEUNG as his employee.[18]
[18] Exhibit 33, TI WHELP17, Warrant L15094-01, CSN 1903.
26.On 7 August 2015, investigators attended the Australia Post Business Hub, Port Melbourne and collected a package.[19] [20] [21] [22] The package bore the following consignment details:
[19] Exhibit 65 (PSN 3418702/001).
[20] Statement of THOMPSON (Vol 1, p. 43)
[21] Statement of ONG. (Vol 1, p.53)
[22] Statement of WILSON. (Vol 1, p. 61)
Consignee:
Chris CHEUNG
501/238 Flinders Street
Melbourne VIC 3000 Australia
0403590936
Consignment No. EE963352555CN
27.The package was found to contain a gold coloured pig ornament. X-ray examination conducted at the Customs Examination Facility revealed anomalies within the pig ornament. Testing conducted on the ornament returned a positive indication for Methamphetamine.[23]
[23] Statement of WILSON. (Vol 1, p. 61)
28.Forensic analysis of the contents of the package bearing Consignment No. EE963352555CN found that the pig ornament contained a brown crystalline substance confirmed to be 4.296kg of Methamphetamine of 48.3% purity, yielding a total net weight of 2.075 kg pure Methamphetamine.[24] [25] [26]
[24] Statement and Crime Scenes Summary Report of HUGHES.
[25] NMI Certificate 154441_1.
[26] Exhibit 92, Digital images – forensic examination
29.A commercial quantity of methamphetamine is 750 grams pure.
30.The total quantity imported in EE963352555CN is therefore 2.7 times the commercial quantity applicable to methamphetamine.
31.The wholesale value[27] of the methamphetamine imported by CHU is estimated to be between approximately $859,360 - $1.37m and the street value[28] is approximately $2.15m - $4.3m.[29]
[27] If sold in kilogram amounts.
[28] If sold in ‘point’ amounts (0.1 grams).
[29] Statement of MCNAIR.
Events post the importation of the consignment
32.CHU using “149” and CHEUNG using “936” exchanged a number of phone calls during the afternoon of 8 August 2015.
33.At 2.15pm, CHU made a phone call to CHEUNG. CHU asked if CHEUNG wanted to be paid into an account in Hong Kong or be given cash. CHEUNG opted to be paid in cash. CHU then advised CHEUNG that for his own safety, he should not worry about the other package as it will be treated as gone. CHU continued that CHEUNG will be paid $10,000 for the one package and stated that he does not want to lose CHEUNG as an employee.[30]
[30] Exhibit 34, TI WHELP17, Warrant L15094-01, CSN 2052.
34.At 2.46pm, CHU made a further phone call to CHEUNG. CHU asked CHEUNG what his surname is, which CHEUNG then spelt out. CHU acknowledged and stated that someone is transferring the funds right now.[31]
[31] Exhibit 35, TI WHELP17, Warrant L15094-01, CSN 2074.
35.On 8 August 2015, CHEUNG sent a text message (SMS) and then had a conversation with an unknown female. CHEUNG informed the female that he will move out of “238 Flinders” on Monday but was expecting a parcel to arrive at that address sometime between Monday and Wednesday.[32]
[32] Exhibit 36, TI BRING, Warrant L15154, CSN 95, 98 & 99.
36.The parcel that CHEUNG referred to in the conversation with the unknown female is the parcel bearing consignment no. EE963352555CN (intercepted by investigators).
10 August 2015
37. At 8.21pm on 10 August 2015, CHU using “149” made a phone call to CHEUNG using “936”. CHU again warned CHEUNG to ignore the second package and that he should not return to the delivery address. CHEUNG affirmed and states that he has already returned the keys.[33]
[33] Exhibit 37, TI WHELP17, Warrant L15094-01, CSN 2429. 36 Exhibit 53, TI WHELP19, Warrant L15094-01, CSN 5238.
Contested fact
38. The prosecution case is that the delivered consignment (namely EMS consignment EE963352564CN) also contained a border controlled drug in an unknown quantity. This is a contested fact and was argued before His Honour Judge Mason on 16 February 2017. As was submitted during that argument, the Crown is not submitting that the delivered consignment (564CN) aggravates the offence of importing a border controlled drug (555CN). This is because of the circumstances surrounding its importation. Both consignments were lodged in China at the same time; (3/8/2015). Both left China at the same time (4/8/2015); both entered Australia at the same time (5/8/2015). They are for all intents and purposes the one importation.
CHU and LIM – TRAFFICK CHARGE
29 August 2015
39. On 29 August 2015 at 7:38pm, CHU made a phone call to UM1 (said by the prosecution to be a man named “LEUNG”). CHU asked if the things despatched
“from your place” will arrive on Monday. UM1 replied that it should arrive on Tuesday.36
30 August 2015
40.At 5.42pm on 30 August 2015, CHU made a phone call to UM1. CHU asked
UM1 to try to arrange for a continuous supply as he does not want to “keep them waiting all the time”.[34]
[34] Exhibit 54, TI WHELP19, Warrant L15094-01, CSN 5410.
41.At 10.16pm on the same day, CHU made a phone call to UM1. UM1 proposed giving “5 pieces” to CHU on Tuesday morning. He told CHU “At this stage, it is temporarily set for Tuesday morning”. CHU replied that he could talk to everybody now and he should be able to shift two pieces. UM1 then reaffirmed that he will set aside all “five pieces” for CHU.
31 August 2015
42.At 1.37pm on 31 August 2015, CHU received a phone call from UM1. UM1 confirmed to CHU that the “young guy has met with some delay coming down” and cannot depart until 4 o’clock today or tomorrow morning at the latest. CHU referred to tomorrow and asked UM1 to “give this plate to him”. UM1 agreed and confirmed that he has placed the order already and that it should arrive tomorrow morning.
43.CHU stated that he has “made arrangement regarding money from the others, there will be one dollar fifty to two to give you.” CHU then asked if he is able to “sort out this bunch” in “three to four days”, if UM1 is able to supply CHU with more. UM1 advises that he will be able to supply CHU with more next week. .[35]
[35] Exhibit 56, TI WHELP19, Warrant L15094-01, CSN 5542.
44.At 3.37pm, CHU made a phone call to the offender Aik Huat Alan LIM. LIM advised that “we will arrive at six o’clock” the following morning. CHU asked if they will rent a hotel “like last time”. LIM replied that there is no point as it will be too early to check-in.
45.CHU then instructed LIM to come to the same address as last time, saying “last time, do you remember your employee, do you remember the place where you came to, I gave you the address for”? LIM asks, “Oh, the same place?” and CHU confirms.
46.CHU asked if it could be earlier. CHU suggests they meet between nine and ten o’clock.[36]
[36] Exhibit 57, TI WHELP19, Warrant L15094-01, CSN 5551.
47.At 8:44pm, CHU received a phone call from UM1. UM1 asks if “that person” has called him yet. CHU affirms, stating “made a time to meet at nine tomorrow morning”.[37]
[37] Exhibit 58, TI WHELP19, Warrant L15094-01, CSN 5587.
1 September 2015
48.About 7am on 1 September 2015 at Southern Cross Station, Melbourne, LIM, disembarked from a Firefly overnight bus from Sydney. LIM was observed to be wearing a red jacket, blue scarf and cap, and was carrying a backpack and satchel. LIM attended at the Jasper Hotel, Elizabeth Street in company with another male, believed to be Chye Win LIM.[38]
[38] Statement of CARRUCAN.
49.At 7.35am on the same day, CHU made a phone call to Alan LIM. CHU asked if Alan LIM has arrived, to which Alan LIM replied “yes we have”. CHU then requested Alan LIM to attend between 9.30-10am as CHU had to wait for his friend to get up.[39]
[39] Exhibit 59, TI WHELP19, Warrant L15094-01, CSN 5623. 43 Statement of CARRUCAN.
50.About 9.27am at the Jasper Hotel, investigators observed Alan LIM and Chye Win LIM, walk out of the hotel and get into a taxi with Victorian registration M4322. 43
51.At 9.31am on the same day, CHU received a phone call from Alan LIM. Alan
LIM informed CHU that “we” are on the way and will arrive in about 20 minutes.[40]
[40] Exhibit 60, TI WHELP19, Warrant L15094-01, CSN 5625.
52.At 9.32am, CHU made a phone call to Ngoc Tuan Charles LE. CHU asked if
LE is up. LE replied “ages ago bro.” CHU says he is coming over.[41]
[41] Exhibit 61, TI LUSAKA, Warrant L15167, CSN 3181.
53.About 9.45am, investigators observed Alan LIM arrive in the same taxi in the vicinity of Themeda Lane, Maribyrnong. Alan LIM was then observed to walk north on Themeda Lane, carrying a backpack and satchel bag, and using a mobile phone, before entering the rear of a property in the vicinity of 37 Bracken Avenue.[42] [43]
[42] Exhibit 19, ACC Surveillance Report for 1 September 2015.
[43] Surveillance video M151/15.
54.At 9.48am, CHU received a phone call from Alan LIM. Alan LIM stated that he had arrived. CHU responded that he will arrive in two minutes.[44]
[44] Exhibit 62, TI WHELP19, Warrant L15094-01, CSN 5628. 49 Exhibit 63, TI LUSAKA, Warrant L15167, CSN 3185.
55.At 9.52am, CHU made a phone call to LE. CHU told LE to open the door and that he will be there in one minute.49
56.At 9.53am, CHU made a phone call to Alan LIM and said that he could see his car at Themeda Lane, after Alan LIM described that he was in a white BMW.[45]
[45] Exhibit 64, TI WHELP19, Warrant L15094-01, CSN 5631. 51 ACC Surveillance Report for 1 September 2015.
57.About 9.58am, CHU was observed to arrive and park in Themeda Lane at the rear of 37 Bracken Avenue, Maribyrnong in a BMW with Victorian registration 1CF2NG. CHU was then observed to walk to Alan LIM at the intersection of Themeda Lane and Cumberland Street. Shortly thereafter, CHU and Alan LIM entered the rear of 37 Bracken Avenue, Maribyrnong.51
37 Bracken Avenue, Maribyrnong
58.About 10am on 1 September 2015, investigators executed a section 81 Drugs,Poisons and Controlled Substances Act 1981 (DPCS Act 1981) search warrant on 37 Bracken Avenue, Maribyrnong.
59.Upon entry to the premises, police found CHU, LE and Alan LIM located in the rear bedroom. Within the bedroom, police located and seized a yellow plastic bag found to contain three packages wrapped in gold paper containing methamphetamine.[46] [47]
[46] Exhibit 70, yellow plastic bag containing 3 x wrapped packages containing Methamphetamine (PSN 3421268/003).
[47] Statement of ONG. (Vol 1, p. 53)
60.Police seized:
a.From LIM: $3210 and a mobile phone;
b.From CHU: $1320 and three mobile phones.
61.CHU, LIM and LE were arrested inside the premises and conveyed to AFP headquarters.
62.Alan LIM declined to participate in a taped record of interview.
63.Wing Tai CHU participated in a taped record of interview in which he made a number of false denials concerning the allegations in respect of Charges 1 and
2.
64.Forensic analysis of the contents of the packages found within the yellow plastic bag reveal that the packages contained a white crystalline substance confirmed to be 4,986.1 grams of methamphetamine of 79.7% purity, yielding a total net weight of 3,973.9 grams pure methamphetamine.[48] 55
[48] Statement and Crime Scenes Summary Report of HUGHES. 55 NMI Certificate 154409_1.
65.A commercial quantity of methamphetamine is 750 grams pure.
66.The total quantity trafficked (or attempted, as the case may be) is therefore 5.3 times the commercial quantity applicable to methamphetamine.
67.The wholesale value[49] of the methamphetamine trafficked by LIM and
[49] If sold in kilogram amounts.
(attempted by) CHU is estimated to be between approximately $997,220 - $1.59m and the street value[50] is approximately $2.49m - $4.98m.58
[50] If sold in ‘point’ amounts (0.1 grams). 58 Statement of MCNAIR.
ANCILLARY MATTERS
Plea of guilty
68.Both offenders sought to cross-examine witnesses at a contested committal on 7 - 9 June 2016.
69.LIM entered a plea of guilty to the trafficking charge upon arraignment on 4 November 2016.
70.A trial was listed to commence in respect of CHU and co-accused LE on 6 February 2017.
71.CHU entered a plea of guilty to the attempt to traffick charge upon arraignment on 13 February 2017.
72.CHU entered a plea of guilty to the import charge upon arraignment on 15 February 2017.
No prior criminal history
73.LIM was 36 years old at the time of offending. He is now 37. He does not have a criminal record.
74.CHU was 29 years old at the time of offending. He is now 31. He does not have a criminal record but does have relevant antecedents, a copy of which is attached at Annexure A.
Pre-sentence detention
75. Both Offenders have remained in custody since their arrest on 1 September 2015. At the plea hearing, the Prosecution will advise of the pre-sentence detention.
Co-accused CHEUNG and LE
76.On 22 November 2016, Sing Fat CHEUNG was convicted and sentenced by
His Honour Judge Stuart to a period of 7 years’ imprisonment with a non-parole period of 4.5 years for importing a commercial quantity of a border controlled drug.
77.On 10 March 2017, a jury returned a not guilty verdict in the trial Ngoc Tuan Charles LE for trafficking a commercial quantity of a controlled drug.
Ancillary orders
78.The Crown makes an application for forfeiture in respect of the cash amounts seized from the Offenders during execution of the search warrant at 37 Bracken Avenue, Maribyrnong.
79.The application is made pursuant to s48(2) of the Proceeds of Crime Act 2002
(Cth) on the basis that the cash is an ‘instrument’ of the offence.
80.No ancillary orders are sought in respect of the drugs. The methamphetamine is automatically forfeited to the Crown pursuant to section 229 of the Customs Act 1901 (Cth), and the packaging within which it was concealed is forfeited pursuant to section 230.
81.The matters set out in section 5.4 (c) (serious offender provisions), (d) (minimum non-parole) and (e) (baseline offences) of the County Court Criminal Division Practice Note PNCR 1-2015 are not applicable.
6AAA statement
82. As per section 6AAA of the Sentencing Act 1991 (Vic), the Court must state the sentence it would have imposed but for the plea of guilty.
Commonwealth Director of Public Prosecutions
18 April 2017
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