Fang v The Queen - [2010] NSWCCA 254

No judgment structure available for this case.

New South Wales
Court of Criminal Appeal

CITATION: Fang v R [2010] NSWCCA 254

HEARING DATE(S): 6 September 2010

JUDGMENT DATE:
9 November 2010

JUDGMENT OF: Hodgson JA at 1; Price J at 86; Fullerton J at 87

DECISION: (1) Appeal allowed.
(2) Conviction and sentence of the appellant quashed.
(3) New trial ordered.

CATCHWORDS: CRIMINAL LAW – Appeal against conviction – Possession of unlawfully imported substance – Mental elements supported only by circumstantial evidence – Whether verdict unreasonable – Whether new trial should be ordered – Whether trial judge misdirected jury concerning mental elements.

LEGISLATION CITED: Criminal Code (Cth) ss 5.4, 5.6, s 307.5

CATEGORY: Principal judgment

CASES CITED: Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
R v Ye [2000] NSWCCA 401; (2000) 116 A Crim R 347
Rosenfeld v R [2009] NSWCCA 74

PARTIES: Shang Wen FANG (appellant)
CROWN (respondent)

FILE NUMBER(S): CCA 2008/9318

COUNSEL: W G ROSER SC (appellant)
I BOURKE (Crown)

SOLICITORS: Lloyd Truman Sadiq (appellant)
Commonwealth Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/0561

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

LOWER COURT DATE OF DECISION: 20 November 2008

CCA 2008/9318

HODGSON JA
PRICE J
FULLERTON J
9 NOVEMBER 2010

Shang Wen FANG v R

Judgment

: On 4 November 2008, the appellant was arraigned before Sorby DCJ on a charge that he:

On 10 September 2007 in Sydney in the state of New South Wales did possess a substance, the substance having been unlawfully imported, the substance being a border control drug, namely methamphetamine, and the quantity possessed being a commercial quantity.

2 The appellant pleaded not guilty, and was tried before Sorby DCJ and a jury. On 20 November 2008, the jury returned a verdict of guilty, having retired to consider their verdict on 17 November 2008.

3 The appellant was sentenced to imprisonment for 14 years commencing 10 September 2007, with a non-parole period of 8 ½ years.

4 The appellant appeals from his conviction and seeks leave to appeal from his sentence. Since, for reasons I will give, the appeal against conviction succeeds, it will not be necessary to consider the question of sentence.

Background facts

5 The following facts can be taken as common ground or as clearly proved.

6 The appellant is a Taiwanese national. He came to Australia on 25 August 2006 on a study visa. He was then about 25 years old, and to the knowledge of the Australian police had no criminal record. Soon after, he met and became friends with one Eddy Wu. On 20 January 2007 the appellant purchased a mobile phone, No XXXX XXX 678. At that time he was living at an address in Campsie. He gave his correct name, address and date of birth in acquiring that mobile phone.

7 In about May 2007, the appellant and Eddy Wu were looking for new accommodation closer to the Lindfield campus of the University of Technology, where the appellant had been accepted for a Master’s course in Event Management. In June 2007 they obtained accommodation at 23/54 Shirley Road Wollstonecraft, signing a lease for it on 25 June 2007.

8 Meanwhile, on 5 June 2007 there was a remittance of $10,000 made by the appellant’s mother in Taiwan into the appellant’s ANZ bank account. On the same day, there was another remittance of $15,861, purportedly by one Yu Chen, with an address given in British Columbia, Canada.

9 On 15 June 2007, the appellant withdrew $7,410 from his bank account; and on 25 June 2007 the appellant left Sydney and went to Taiwan. He returned from Taiwan on 21 July 2007; and following his return he rented a room in Archer Street Chatswood.

10 On 20 July 2007, there was a further remittance of $40,000 from the appellant’s mother in Taiwan to the appellant’s ANZ bank account. On 25 July 2007, the appellant withdrew $53,000 from this bank account, depositing $24,000 into an ANZ V2 Plus account, and paid $8,000 to Australia Taiwanese Overseas Student Service Centre (ATOSSC) (apparently, student fees).

11 In August 2007, State and Federal Police became aware of an investigation by Canadian authorities in relation to the importation of drugs. This investigation concerned telephone contacts between China and Canada, and during these contacts there was reference to a mobile telephone XXXX XXX 982 said to belong to one “Peter”.

12 OSS Broadline Moving (OSS), an international relocation company, handled the movement of 16 boxes, purportedly of household goods, from Vancouver Canada by ship to Brisbane, then by rail to Sydney, then by truck to 54 Shirley Road Wollstonecraft.

13 There were in evidence shipping documents produced by this company in relation to this shipment. A document dated 3 July 2007 identified Alex Huang as the customer, gave 23/54 Shirley Road Wollstonecraft as the delivery address, and associated that address with the appellant’s mobile number XXXX XXX 678. A document entitled Manifest showed the consignee as Chor Ning Wong, giving the Shirley Road address and the appellant’s mobile phone number. The Ocean Bill of Lading identified the shipper as Chor Ning Wong, with a Canadian address, and also identified the consignee as Chor Ning Wong with the Shirley Road address and the appellant’s phone number. The documents also included an undated authorisation letter, purportedly signed by Chor Ning Wong, giving a passport number XXXXX 770, authorising the shipper to act on his behalf. This document was accompanied by a photocopy of the face page of a Canadian passport with that number, purporting to be the passport of Chor Ning Wong. There was evidence that a person of that name existed and that this was a genuine passport. The documents also showed that there was pre-payment for delivery, including Customs clearance and unpacking, in the sum of $339.90.

14 A copy of the Ocean Bill of Lading was subsequently found in the appellant’s accommodation, and it can be inferred that this was sent to the appellant.

15 The appellant’s phone records show telephone calls from his mobile phone to OSS Brisbane on 20 August 2007, 21 August 2007, 31 August 2007 and 3 September 2007.

16 Also commencing on 20 August 2007 was a series of emails between an email address under the name of Alex Huang and OSS, with those from the Alex Huang address purporting to be messages from “Chor Ning Wong” or “Wong”. The first of those messages identified the subject as “Regarding the shipment from Vancouver Canada”, and was as follows:

To who this may concern:

This is a mail regarding the shipment from Vancouver, Canada., BOL # E59832. We have contacted your office on August 20th, 2007 asking about this shipment and your employees have told us that there is a form sent to my e-mail for us to fill out. However, i haven't seen anything in my inbox til now. Please check for this issue and reply me with e-mail. My e-mail address is [email protected]
Thank you very much for your help and wish to hear from you soon.

Best Regards

17 This series of emails continued to 7 September 2007. One email from OSS on 31 August 2007 enclosed an account for quarantine inspection and storage for $223; and another on 3 September 2007 provided details of the OSS bank account with Westpac into which this money could be deposited. Another on 6 September 2007 advised that delivery would go ahead on 10 September 2007.

18 On 3 September 2007 at 9.09 am an email was sent to OSS from the appellant's email address under the name "Vascolf", identifying the subject as "Regarding the shipment from Vancouver Canada" and continuing:

To who this may concern:

This is a mail regarding the shipment from Vancouver, Canada., BOL # E59832. We have been contacted by your office on August 31th, 2007 asking about this shipment and your employees have told us that there is a fee regarding the inspection with the amount 157 Aus and the account number has been sent to this e-mail for us to doing the transferring job. However, i haven't see anything in my inbox til now. Please check for this issue and reply me with this e-mail [email protected]. Thank you very much for your help and wish to hear from you soon.

19 A copy of the email of 3 September 2007 identifying the OSS bank account was subsequently found in the appellant’s flat, and it may be inferred that the appellant received this copy at some time on 3 September 2007. At 3.19 pm on that day, an email was sent to OSS from the appellant’s email address enclosing an image of a deposit stub, showing a deposit of $223 into the OSS account on 3 September 2007, this deposit having been made by the appellant.

20 On 5 September 2007, police obtained a telephone intercept warrant for a mobile number XXXX XXX 310, being a number used by one Zhang. Between 5 September and 10 September, police intercepted a number of phone calls made to or received by this phone. The calls indicated that Zhang was waiting for something to be received.

21 The shipment of 16 packages was delivered by truck mid-morning on 10 September 2007 to the Shirley Road address. The appellant took delivery of the packages, and they were unloaded into a garage under the unit block. The appellant signed the OSS “job docket” in the name of “Wong”.

22 On the same day, in a telephone call at about 12.42pm, the appellant called and spoke to Zhang. The appellant said “hello is that Peter?” and also said “I am Peter too”. The appellant and Zhang agreed to meet at the University of Technology, Sydney (UTS) car park in about an hour. In another call at about 12.55pm, the appellant again called Zhang and asked Zhang instead to meet him at Wollstonecraft station. At 12.57 pm, the appellant sent an SMS to Zhang which said “Wollstonecraft station, North Shore Line”. At 1.05 pm, the appellant spoke again to Zhang, who said he would try his best to arrive at 2 o’clock. The appellant said “thank you for your trouble”.

23 Police arranged surveillance to attend near Wollstonecraft railway station. At 2 pm Zhang spoke on the telephone to the appellant, and said he had arrived. The appellant said he would “come down”. Around the same time, police saw appellant walking along Shirley Road, talking on a mobile phone. At around 2.09pm the appellant called Zhang again, when the appellant asked “where side are you on?”. Shortly afterwards, the appellant got into the front passenger seat of a white Toyota, which Zhang then drove along Shirley Road. The appellant directed Zhang to the units in Shirley Road, and the Toyota entered the car park. The appellant got out of the Toyota and walked to a Mitsubishi Lancer which was parked three spaces away, and removed a brown box from the boot of the car. The boot area of the Toyota which was parked nearby was also open.

24 Police then arrested the appellant and Zhang. In the boot of the appellant’s Mitsubishi, police found five unopened cardboard boxes. Inside those boxes police found glassware wrapped in paper, and a crystalline substance, which was hidden between the inner and outer layer of the boxes. A gross quantity of 12.4 kilograms of this substance was removed from the boxes, which contained methamphetamine at a purity of about 66%: equating to 8.2 kilograms pure methamphetamine. Evidence was given at the trial that the estimated street value of the drug was between $4,966,000 and $9,932,000, and between $1,862,250 and $2,110,550 if sold in one kilogram lots.

25 Police searched the appellant and his car. In his wallet, they found a Westpac Bank deposit stub showing a deposit of $223 on 3 September 2007 into the account of OSS World Wide Movers; and they also found in the appellant’s possession the mobile phone with the number XXXX XXX 678, being the phone used by the appellant in the telephone calls to Zhang and OSS.

26 Police also searched unit 23. They found there a laptop computer belonging to the appellant, which was switched on displaying pages from an internet “chat“ that the appellant under the name Vasco had been conducting with someone identified as Jas@Shanghai. The chat included the following (partly in English, and partly in Asian characters):

27 A search of the computer hard-drive revealed a “text file” in Asian characters which had been created on 31 August 2007 and included the number of the relevant shipping container and bill of lading, and also included the words “Number 7 and Number 12 … 5 boxes in total”.

28 In taped records of conversations conducted by police with the appellant at Shirley Road, he told them:

That he did not know what was in the boxes;

That the man he met with (Zhang) was going to take the boxes (that were in the boot);

That the boxes had been sent to him by a friend in Canada;

That he met the friend from Canada via the internet;

When asked whether he was to be paid, said "not really" and that he was just helping a friend;

That he had obtained the key to the garage this morning, (so as) to put the stuff in the garage;

That the laptop computer (located in Unit 23) was his;

That he was waiting at Unit 23 for the shipment from Canada;

That he did not know "Alex Huang" (the name on the boxes) but thought it was the name of "the guy in Canada";

That the boxes were sent to him (by) a "Friend in Canada is moving here".

That he took "those boxes" out of the (larger) box which is opened and that he "open several boxes and I found it there";

29 Police also executed a search warrant at the Archer Street unit where the appellant was living. In the appellant’s bedroom police found a copy of the Ocean Bill of Lading referred to earlier, and also a copy of the email from OSS to Alex Huang of 3 September 2007 referred to earlier.

The defence case

30 The appellant gave evidence at the trial.

31 He said his English name is Vasco, and that he was born in Taiwan and obtained an Arts degree in early 2006. He came to Australia in August 2006 to do further studies and commenced a Master’s degree at UTS Lindfield. His family supported him financially.

32 In about 2005, when still in Taiwan, he met a girl through an internet “chat room”. She used the name Lillian, although later he got to know her as Jasmine. In the chat room, he was known as “Taipei cool man Peter”. He became friendly with Jasmine, and in 2007 he began to have more frequent contact with her over the internet.

33 The appellant said that in about May 2007, Jasmine told him that she wanted to come to Australia and wanted him to do her a favour, because she wanted to clean up her apartment and move her personal stuff to Australia. He said that Jasmine wanted him to look for accommodation for them both, and she told him she would send $15,000 to his bank account. He supposed that the $15,861 deposited to his account by a Yu Chen of Canada was money from Jasmine.

34 The appellant said that he was suffering from anxiety and depression, and that his mother was sending him medication from Taiwan. He said that the text file found by police on the hard drive of his computer had been provided to him by Jasmine, and that the numbers 7 and 12 related to numbers on the box and that the packages 7 and 12 were five boxes altogether. He said that Jasmine told him that these boxes belonged to her brother and she wanted him to give them to her brother’s friend. He wasn’t told that Jasmine’s brother was in Australia, and he supposed he should be in Canada.

35 The appellant agreed that he had called OSS Movers and had used the name “Wong”; and he said that he used this name because it was the name on the parcel. He also said that he deposited $223 into the OSS bank account on 3 September 2007, and said that he did this because Jasmine had put money into his account.

36 The appellant agreed that he rang Zhang on 10 September 2007, and said that Jasmine told him he was a friend of her brother. He told Zhang his name was Peter because he had used that name when he first met Jasmine and Jasmine wanted to make it like a special nickname between them. He said he changed the meeting with Zhang to Wollstonecraft because he was doing a university assignment at the Shirley Road unit. He said that when the boxes were delivered, he signed the name “Wong” because it was “her stuff, I signed for her, so I signed her name Wong, just for, I don’t know, convenience”; and that he got that name from the name Chor Ning Wong on the docket.

37 The appellant agreed he had engaged in the chat session with Jasmine shortly before leaving to meet Zhang. He asked about telling “him” to come upstairs to be polite, that is, for him to have a cup of tea or take him something. The appellant said that he used the coded symbols on the page to say something that “I don’t say like directly”, and to show that he was unhappy (because he was busy doing an assignment); and that Jasmine had a computer programme that would allow her to understand the symbols. The appellant said in evidence that he could not exactly remember what the symbols meant, but that “what I meant is I have put those boxes into my car or they are downstairs, or something like that”.

38 The appellant said he got into Zhang’s car and took Zhang back to the Shirley Road address where the boxes were in the boot of his own car. He had taken the five boxes from the big boxes in the garage during the morning, and had known where to look for the five boxes by the numbers that had been given to him (Number 7 and Number 12) a couple of days previously.

39 The appellant said that when spoken to by police he referred to “the guy in the Canada” because he realised he was in very serious trouble and he wanted to protect Jasmine. He said that when he received the Ocean Bill of Lading with the name Chor Ning Wong he asked Jasmine if that’s her name and she said yes. He said he loved Jasmine and trusted her, and he did not tell his friends about her because he was embarrassed. He said he did not suspect there were narcotics in the boxes.

40 In cross-examination the appellant denied that he wanted to check Zhang out before taking him to the boxes. The appellant agreed that when he spoke to police after his arrest there were no arrangements at all for the collection of the 16 boxes left in the garage. He agreed that when he was spoken to in the taped interviews by police at Shirley Road he made no mention of the names Jasmine, Chor Ning Wong, or of a girlfriend or the brother of any girlfriend. He said he wanted to protect her; but he claimed that he did mention the name Jasmine to one of the police when the video was turned off. He said that when he got the email with the name Alex Huang on it, he thought it was Jasmine’s brother but he didn’t pay attention to the name.

41 The appellant agreed that as far as he knew, Jasmine did not have a visa for Australia and did not have an address to live in Australia. He also said that on 9 September 2007, Jasmine told him on the internet chat site that she could not come to Australia and that she would arrange for her brother to get the boxes back to Canada. He agreed that he had not mentioned this in his evidence in chief and had not mentioned it to police after his arrest.

42 The appellant agreed that he did not tell the police that he had received some sort of chat room direction to open boxes Number 7 and 12. He denied that he was using code when he said “I am Peter too” in the phone call with Zhang at 12.42pm on 10 September 2007. He agreed that in that phone call he did not provide his address to Zhang.

43 In re-examination, the appellant said he changed the meeting from the city to Wollstonecraft because he was busy doing a university assignment.

44 The appellant called evidence of good character, which was not disputed by the Crown. The appellant’s mother (a university professor in Taiwan) gave evidence. She said that the appellant had been a good student and a good son, and that he had been seeing a psychiatrist in Taiwan for major depression for a number of years before coming to Australia.

Issues on appeal

45 The appellant relied on 12 grounds on his appeal against conviction and 18 grounds on his application for leave to appeal against sentence. It is not necessary to set out his grounds concerning sentence. The grounds of his conviction appeal were as follows:

Ground One:

That the verdict of the jury was unreasonable and cannot be supported having regard to the evidence.

Ground Two:

His Honour erred in directing the jury that they could return a verdict of guilty against the appellant on the basis that the accused was reckless of being in possession of the border control drugs in the five boxes [pp.11.2; 14.2; 16.8 SU].

Ground Three:

His Honour erred in directing the jury that they could return a verdict of guilty against the appellant on the basis that the accused was reckless as to whether the five boxes contained prohibited drugs when the Crown case, from its opening to it closing, was on the sole basis of the actual knowledge of the appellant [p.11.2; 14.2; 16.8 SU].

Ground Four:

His Honour erred in directing the jury that they were able to draw an adverse inference against the appellant of what a reasonable person in the position of the appellant would have known or believed as to the nature of the substance in the five boxes [p.10 SU].

Ground Five:

His Honour erred in directing the jury what a reasonable person in the position of the appellant would have appreciated at the time that he agreed to bring the boxes containing border control drugs into Australia and then taking them in control [p.11.9 SU].

Ground Six:

His Honour erred in not discharging the jury when the jury stated, after two days of deliberations, that they had re-examined all the evidence and participated in discussion and challenged each other's opinion, and they could not agreed on their verdict.

Ground Seven:

His Honour erred in giving the jury a Black Direction in the circumstances that after two days of deliberations, and after they had re- examined all the evidence and participated in discussion and challenged each other's opinion, and they could not agreed on their verdict.

Ground Eight:

His Honour erred in directing the jury that if they came to the conclusion that the Crown had not proved an element of the offence then the appellant would be entitled to be found not guilty. [p.12.5 SU].

Ground Nine:

His Honour erred in directing the jury that there was no dispute between the parties that the boxes containing the border control drugs were imported into Australia with the assistance of the appellant [p.7.8 SU].

Ground Ten:

His Honour erred in directing the jury that the appellant brought the boxes containing border controlled drugs into Australia [p.12.8 SU].

Ground Eleven:

His Honour erred in directing the jury that, on the Crown case, there was direct evidence that the appellant knew there were border control drugs in the boxes [p.9.1 SU].

Ground Twelve:

46 The Crown concedes that grounds 2, 4 and 5 should succeed, and in my opinion that concession is correctly made. The major contest on the appeal concerns ground 1, because the appellant contends that success on that ground would mean that there should now be a verdict of acquittal, whereas the Crown contends that the result of the appeal should be a quashing of the conviction and sentence and the ordering of a new trial.

47 I will deal first with ground 1, and to then deal more briefly with the remaining grounds.

Unreasonable verdict (ground 1)

48 Mr Roser SC for the appellant submitted that the verdict of the jury was unreasonable, and that there was insufficient evidence to prove the appellant guilty of the offence charged. He referred to R v Ye [2000] NSWCCA 401; (2000) 116 A Crim R 347; and he submitted that the case against the appellant was entirely circumstantial and lacked the probative force necessary to establish guilt beyond reasonable doubt.

49 He submitted that the appellant had an innocent and credible explanation of why he was in possession of the five boxes on 10 September 2007.

50 In the written submissions, also relied on orally, Mr Roser submitted that the following circumstances showed that the jury should not have found beyond reasonable doubt that the appellant had the requisite knowledge that there were drugs in the boxes that he fleetingly came into possession of:

The appellant gave detailed evidence in relation to the matter even though he was having difficulties with the English language from time to time during his evidence. In that evidence he stated that his girlfriend in Canada, Jasmine, asked him to do a favour for her and take possession of her personal items as she was moving to Australia to continue her relationship with him and to further her education. Out of friendship and courtesy he agreed to assist her.

The only issue in the trial was whether or not the appellant had knowledge that there were drugs in the five boxes.

The appellant in his evidence, as he had always asserted, totally denied that he had any knowledge whatsoever that there were drugs in the unopened five boxes. He was extensively cross examined in relation to this matter by an extremely experienced Crown and he was not shaken at all.

There was no evidence presented at all in the trial that the appellant was told or knew that there were drugs in the boxes. That is, there was no document, telephone conversation, e-mail, surveillance or any other material which showed that the appellant knew or that he was informed or that he acknowledged that what was in the boxes was other than want Jasmine had told him, being her personal household goods.

There was no evidence presented at all that showed that the appellant had any contact with any person, other than his innocent association with Jasmine, connected to this matter. This was confirmed by police in evidence. The Crown evidence was that the appellant had no links whatsoever to the international syndicate involved in the matter. No links to the syndicate by his name, telephone, e-mail, document or residential address. The police stated that the first they knew of the appellant was after the phone call between him and Zhang at 12.42 pm on 10 September 2007 . That was the first contact that the appellant had with Zhang and that occurred because Jasmine asked him to ring Zhang so that Zhang could collect the boxes because he, Zhang, was a friend of her brother. He received Zhang's number from Jasmine over the internet.

During the telephone calls with Zhang, between 12.42 pm and 2.09 pm , there is no conversation, indication, or inferences to be drawn whatsoever, from the appellant or Zhang, that the appellant knew or believed there were drugs in the boxes.

Further, during the telephone calls between Zhang and the appellant there was no congratulating of each other of the success of the importation; or the expected wealth or profit to be received by them or anyone else for the success of the importation.

There were no e-mails or messages between the appellant and Jasmine, after he had received the boxes, that he had the drugs in his possession.

After the contact with Zhang there were no e-mails or messages between the appellant and Jasmine that he had been in contact with the person who was going to collect the drugs and they would be collected at a certain time.

This, like this Court's decision in R v Ye ((2000) 116 A Crim R 347), shows that the appellant had no guilty knowledge.

In the telephone calls with Zhang, and with OSS World Wide Movers, the appellant used his own personal mobile phone to make the calls. The phone was in his own name, his correct date of birth and residential address when he purchased it. He gave that number as his contact number. This number was on all documents and delivery documents of the boxes. He used this phone to call OSS World Wide Movers concerning the delivery. He used this phone to call the person Zhang. He gave and used his personal e-mail address. He gave and used a residential address of which he was the lessee of at 23/54 Shirley Road, Wollstonecraft.

There was no evidence in any document, e-mail, telephone conversation that showed that the appellant was to receive any remuneration, financial benefit or any other benefit, from his involvement in the matter.

When the appellant received the boxes he did not open them nor did he attempt to open any of them. He had no interest in them except that he was requested to receive them by Jasmine as a favour and give them to her brother's friend.

Federal Agent Russell

"Q. Miss Russell, you said in your evidence in chief that it was a sophisticated packaging process. Do you remember saying that?
A. Yes.

Q. By that I take it you mean that the method of concealment was sophisticated?
A. Yes.

Q. It was secreted in a way that it was not obvious to an observer looking at it?

A. That's correct."

If the appellant knew there were drugs in the boxes he would have opened the boxes to make sure the drugs were still there otherwise he may be blamed if someone had taken the drugs prior to him having received them. Or, that Zhang, after collecting the boxes denied that the drugs were not in the boxes when he received them from the appellant. The appellant made no check whatsoever to see whether there were any drugs in the boxes before he handed the unopened boxes to Zhang. This behaviour by the appellant is totally inconsistent with him having any knowledge whatsoever that there were drugs in the boxes.

The behaviour and conduct of the appellant was totally inconsistent with a person who had any knowledge whatsoever of an importation of drugs worth millions of dollars. Or, the planning of an importation of drugs worth millions of dollars. No person in the position of the appellant, who knew of an importation of drugs, would give his telephone number; e-mail address and residential address as the appellant did.

The appellant, after completing a Bachelor of Arts Degree in Taiwan, came to Australia on 25 August 2006 , on a study visa, to further his studies. He was 26 years of age with no criminal history. Prior to coming to Australia he resided at the family home with his mother and father who were both Professors at Taiwanese Universities. After he came to Australia he continued to further his studies and, at the time of his arrest, was undertaking a Master Degree through UTS.

Prior to coming to Australia in 2006 he met a girl on an internet chat line. She called herself Lillian and he called himself Peter. They subsequently developed a friendship and exchanged their MSN and ID. After that the appellant saw and spoke to Lillian. During their discussions and developing friendship he found out that her name was Jasmine. During their friendship Jasmine told the appellant that she was coming to Australia to further her study and they agreed to find common accommodation and develop their relationship. The appellant looked for accommodation for them and a University for her. She sent him some money for that purpose which the appellant placed into a special fixed bank account. The only money he took from her money was the payment of $223 extra costs for the household goods that she sent. He kept a receipt for this payment to show her when she arrived.

In about June 2007 Jasmine told him that she was at the end of her semester in the course she was doing and she wanted to move her personal goods to Australia. He agreed to accept the goods. He gave her his Wollstonecraft address for which he had signed a lease. Subsequently she asked him to check with the carrier to ascertain when the goods would be delivered. When he did he gave the carriers his mobile telephone number, e-mail address and residential address. He gave detailed evidence of why he used the name Wong, as he said, it was easier than trying to explain his name and why he was ringing. He said when he received the document from Jasmine over the internet he saw the name Chor Ning Wong. He asked Jasmine whether that was her name and she said yes.

After the delivery of the boxes they were only in his possession for a very short period of time.

The appellant walked the short distance from 23/54 Shirley Road, Wollstonecraft to the Station. He then got into the passenger seat of the vehicle and went back to the unit.

Prior to going to meet Zhang he was on his computer at 23/54 Shirley Road, Wollstonecraft doing an urgent University assignment. The undisputed evidence was that he had been working on that assignment that day and had his lecture notes and text books with him. Also he had been on the internet researching the assignment that day. When police went into the unit his computer was still on.

Prior to meeting Zhang he had spoken to Jasmine on his computer via MSN. During this conversation there was no mention about drugs whatsoever. The appellant asked, because the person was a friend of Jasmine's brother and because of Chinese culture, should he bring the person back to the unit for tea.

When he got to the unit he went to his vehicle to give Zhang the five unopened boxes. He was arrested shortly after.

The appellant did not take any "anti surveillance" actions to stop being detected of what he was doing. This was in relation to the 10 September 2007 or any other day. The modus operandi of persons involved in drug importations are that they operated in secret and take every possible step to protect their identity and actions to avoid detection. Every known person in this matter took that action to protect their identity, except the appellant, who disclosed his real identity by the use of his personal phone, conversations, e-mail address, residential address and his physical actions.

On 10 September 2007 , prior to meeting Zhang, the appellant was working on his computer doing an urgent assignment for his University course. He had his lecture notes and text books with him to do the assignment. Further, he had been on the Internet researching information to do this assignment that day. He said that he changed meeting this person at the library of UTS early that day because he did not want to leave doing his urgent assignment and waste time.

He did not use any conduct of anti-surveillance measures when going to meet with Zhang or in bringing Zhang back to his premises or any other dealings in relation to the matter.

It is submitted that like the Court's finding in R v Ye ((2000) 116 A Crim R 347) that what the appellant did is not capable of excluding a reasonable hypothesis that the appellant was doing no more than extending courtesy by doing what was requested of him by his romantic friend, Jasmine, which was incapable of carrying with it as the only rational inference the inference that the Crown sought that the appellant knew that in the unopened boxes were drugs.

There were no circumstantial material that the Crown relied upon, as this Court found in R v Ye ((2000) 116 A Crim R 347), which revealed which was likely to have branded the appellant as a drug importer or courier.

R v Ye

"72 ...There is, however, a significant difference between unresolved suspicion on the one hand, and satisfaction beyond reasonable doubt on the other."

R v Ye

Knight v The King

should be found in relation in this matter.

51 The Crown submitted that the necessary inference as to the appellant’s state of mind could be drawn beyond reasonable doubt from the following circumstances:

a) The shipment was consigned to an address where the Appellant did not live, but which was leased in his name and the name of his friend.

b) The contact telephone number on the Bill of lading was the mobile number used by the Appellant.

c) The Appellant received $15,861 into his bank account on 5 June 2007, which he said he "assumed" was from "Jasmine" whom he had never met, except on the internet.

d) The Appellant paid the outstanding freight charges of $223 to OSS Movers in order to permit delivery to occur.

e) The Appellant sent an email to OSS Movers (using email address [email protected]) in relation to the shipment shortly after it was cleared by Customs. He ended this email - " Best Regards Wong " (the surname on the Bill of lading).

f) OSS Movers also received emails in the name "Alex Huang" which were similarly "signed" - " Wong " or " Best Regards Wong ". There was evidence of a link between the Appellant and the "Alex Huang" emails. A copy of one of the Alex Huang emails was found in the Appellant's premises, and another email contained almost identical words (and grammatical errors) to the email sent from the Appellant's [email protected] email address.

g) When the Appellant took delivery of the shipment, he signed the name "Wong", which was not a name he normally used. He also used the name "Wong" when he made telephone calls to OSS Movers.

h) Shortly after taking delivery of the shipment, the Appellant opened one or more of the large cartons, and identified and removed 5 smaller boxes, and placed only those boxes into the boot of his car. The 5 boxes selected by the Appellant contained drugs. The Appellant left the 16 larger cartons (minus the 5 smaller ones with drugs) in the garage under the Shirley Road premises. None of the cartons left in the garage contained drugs.

i) Later the same day, the Appellant spoke on the phone with (co-accused) Zhang, who he had never met before. In that call, the Appellant asked if Zhang was "Peter" and referred to himself as "Peter" too. "Peter" was not a name that the Appellant normally used ¹ . ( ¹ The Appellant said however, that he had used the name "Peter" when he first met "Jasmine" over the internet some years before.)

j) There was evidence, in the form of intercepted telephone calls involving other persons, from which it could be inferred that the word "Peter" was a code word used in connection with the shipment.

k) The Appellant and Zhang ultimately agreed to meet near Wollstonecraft railway station. The Appellant remained at Unit 23 Shirley Road, while he waited for Zhang to come to Wollstonecraft. He did not tell Zhang the address over the telephone.

I) While waiting, the Appellant used his laptop computer and communicated (via the internet) with someone who used the name "Jas@shanghai. In those communications, the Appellant sought and received instructions about the collection of the boxes.

m) In those communications with "Jas", the Appellant used a code, in the form of symbols (which could be understood by "Jas" using a computer program) - the Appellant said he used these symbols when he wanted to say something that " I don't say like directly ". He said he could not exactly remember what the words were, but " what I meant is I have put those boxes into my car or they are downstairs, or something like that ".

n) The Appellant received instructions in the form of a text file which identified by numbers the particular cartons from which he was to extract the 5 smaller boxes (later found by Police to contain drugs).

o) The Appellant told his friend Eddy Wu, before he left the unit, that his friend was coming to collect "the furniture".

p) The Appellant left Unit 23 and met Zhang in the street, got into Zhang's car, and directed him back to the car park at Shirley Road.

q) The Appellant then commenced to remove the 5 boxes containing drugs from the boot of his car, in circumstances where it was clear the boxes were about to be transferred to the (open) boot of Zhang's car.

r) When spoken to by Police after his arrest, the Appellant referred to a "guy" in Canada (as he claimed he wanted to protect "Jasmine").

s) The Appellant agreed he may have knowingly mislead police in answering "I don't know" to the question "Who is Alex Huang".

52 In oral submissions, the Crown also relied on the submission that it was unlikely that cargo worth millions of dollars would have been entrusted to an innocent dupe.

53 The Crown further submitted a number of aspects of the appellant’s story lacked consistency and/or credibility, in particular:

a) The Appellant claimed that the shipment had been sent to him by his "girlfriend" Jasmine who was moving to Australia. However he had never met Jasmine in person, and only found out her "true" name when he received the Bill of lading which referred to "Chor Ning Wong".

b) He had not told any of his friends about "Jasmine", even though he claimed to "love her", and was looking for accommodation for them to share.

c) So far as he knew, "Jasmine" did not have a visa to enter Australia, and had no address at which to live.

d) He claimed that "Jasmine", whom he had never met in person, sent him $15,861, so as to "look for accommodation".

e) He made no mention of Jasmine, Chor Ning Wong, a girl or a girlfriend when spoken to by Police.

f) It was only when being cross-examined that the Appellant said that Jasmine had told him, before the cartons were delivered, that she could no longer come to Australia. He made no mention of this in his evidence in chief.

g) Notwithstanding this development, the Appellant still removed the 5 smaller boxes from the larger cartons, with the intention of giving them to the "friend of Jasmine's brother". Yet he had not been told that Jasmine's brother was in Australia, and he "suppose should be in Canada", Also, there was no arrangement for collection or delivery of the remaining contents of the 16 cartons left in the garage.

54 I accept that the case of Ye, relied on by the appellant, has some similarity to the present case, particularly in that the Crown case, to show the mental elements requisite for a finding that the appellant was in possession of heroin in a suitcase, was purely circumstantial.

55 In that case, Whealy J (Newman J and O’Keefe J agreeing) referred as follows to Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495:

[54] Knight v The Queen (1992) 175 CLR 495 was a case where the state of mind of the appellant Knight was necessarily a matter of inference from other facts found by the jury, that is, it could only arise from circumstantial evidence.

Martin v Osborne

'If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation.'

In Plomp v The Queen [1994] HCA 63; (1963) 110 CLR at 243, Dixon CJ cited his previous observation in Martin v Osborne and acknowledged the difficulty found in stating the rule, a difficulty which he said "has not been overcome by employing the expression 'more consistent' as if there could be degrees of consistency". His Honour attempted clarification by citing his further words in Martin v Osborne :

"There are not, as Dixon J observed, degrees of consistency and, if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance."

56 Having referred also to M v The Queen [1994] HCA 63; (1994) 181 CLR 487, and having considered the submissions of the parties, Whealy J continued as follows:

[71] This Court is required, as the decision of the High Court of Australia in M makes clear, to make its own assessment of the evidence, making full allowance for the fact that the jury was the body entrusted with the primary responsibility of determining guilt or innocence. Allowance must also be made for the fact that the jury had the benefit of having seen and heard the various witnesses.

[72] Making all those allowances, I do not consider that it was open to the jury to reject as a rational inference the possibility that the appellant, in all the circumstances of this case, did not know that the suitcase contained heroin or narcotic drugs. I accept that some of the circumstances relied upon by the Crown may well have aroused suspicion, perhaps considerable suspicion. Even after a reading of all the evidence, not all of those suspicions are necessarily dispelled. There is, however, a significant difference between unresolved suspicion on the one hand, and satisfaction beyond reasonable doubt on the other.

57 In a separate judgment, with which Newman J also agreed, O’Keefe J said this:

Knight v The King

Martin v Osborne

"...the degree of probability that the occurrence of the facts proved must be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed". (supra at 375)

[94] In the present case the facts proved, namely the series of matters (66 in number) to which the Crown has adverted in its submissions in this appeal, must be of such a nature as to lead to a probability so high that the contrary cannot be reasonably supposed, that the appellant in this matter knew that the contents of the case that Mr Lai placed in the boot of the car that was being driven by the appellant and was under his control, contained heroin. In my opinion, they do not do so.

[95] In this regard it is material to note that the views of the trial judge in relation to this matter, as emerged from his summing up, are to the contrary of the high degree of probability required. In my opinion his views were correct. However, the trial judge, recognising and respecting the limitations on his functions in the trial, did not do what this Court may do on appeal in a case such as this.

Martin v Osborne

58 The principles applied in Ye are applicable in this case. Certainly, it is not sufficient that the circumstances raise suspicion, even extremely strong suspicion, or that the circumstances are sufficient to support the necessary finding on the balance of probabilities. It is necessary that the circumstances be capable of supporting the necessary finding beyond reasonable doubt; and that would not be the case unless the degree of probability that the occurrence of the facts proved must be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.

59 In my opinion, the facts proved in this case could properly be considered by a jury to satisfy that requirement. The matters which weigh particularly in my thinking are as follows, along with the matters relied on by the Crown in its submissions referred to earlier.

60 First, there is the payment of about $15,000 into the appellant’s account. This was paid at a time when the appellant, on his own account, had no information from “Jasmine” as to when she was coming to Australia or what steps were to be taken by the appellant on her behalf which might require the use of money. Further, although the appellant on his account was in close communication with “Jasmine”, he said he assumed it was her that paid the money because she had said she would send money.

61 Second, the appellant was involved in a number of telephone calls to OSS when, on his account, he had no particular reason to be concerned about the time for delivery. His explanation that this was at Jasmine’s request could be considered implausible. In addition, the association and/or communication between the appellant and the author of the Alex Huang emails was explained by the appellant in terms of an email received from Alex Huang after Jasmine had said her brother would email him; but the striking similarities between the emails quoted above at pars [15] and [17] suggest a closer association and/or communication between the appellant and the author of the Alex Huang emails than the appellant acknowledged or explained.

62 Third, it is clear that whoever had the drugs packed and sent intended that they go to Zhang and/or associates of Zhang, and also that, until Zhang was taken to the boxes by the appellant, neither Zhang nor his associates knew where the drugs were in Australia. Not only was the appellant put in control of the drugs, worth millions of dollars, but also he was the one person in a position to pass them on to the persons to whom they were to go.

63 Fourth, the internet chat displayed on the appellant’s computer did not suggest a communication between people who were arranging for some property of “Jasmine’s” brother to be picked up by a friend of the brother. In particular, the explanation given for the use of the coded symbols for what the appellant said they meant could be considered extremely implausible; and the explanation for “do I need to tell him to go upstairs” could also be considered extremely implausible, especially in combination with “Jasmine’s” instruction “wait for my call to let him go” (to which the appellant responded “OK”).

64 Fifth, the procedures adopted by the appellant in bringing Zhang to the boxes can be considered inconsistent with the appellant having property of “Jasmine’s” brother to be picked up by a friend of the brother. The appellant did not give Zhang the location of the boxes, but arranged to meet him and then take him to the boxes. The appellant’s denial in cross-examination that he wanted to check Zhang out first could be considered extremely implausible.

65 I do not suggest that any of these considerations, or the considerations relied on by the Crown in its submissions, would be sufficient on its own to prove the appellant’s guilt beyond reasonable doubt; but in combination, in my opinion, they could do so.

66 For those reasons, I would not allow this ground of appeal, and I would order a new trial of the appellant.

Directions concerning recklessness (grounds 2 and 3)

67 This ground requires reference to s 307.5 of the Criminal Code (Cth) under which the appellant was charged, and to ss 5.4 and 5.6 of the Code. These provisions are as follows:

307.5 Possessing commercial quantities of unlawfully imported border controlled drugs or border controlled plants

(a) the person possesses a substance; and

(b) the substance was unlawfully imported; and

(c) the substance is a border controlled drug or border controlled plant; and

Penalty: Imprisonment for life or 7,500 penalty units, or both.

(2) Absolute liability applies to paragraphs (1)(b) and (d).

(3) The fault element for paragraph (1)(c) is recklessness.

(4) Subsection (1) does not apply if the person proves that he or she did not know that the border controlled drug or border controlled plant was unlawfully imported.

5.4 Recklessness

(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and

(a) he or she is aware of a substantial risk that the result will occur; and

(3) The question whether taking a risk is unjustifiable is one of fact.

(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.

5.6 Offences that do not specify fault elements

(1) If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.

(2) If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

68 The Crown had to prove each of the four elements in s 307.5(1). There was no dispute at trial as to elements (b) and (d); and no dispute as to the physical aspect of each of elements (a) and (c). What was in dispute was the fault element of (a) and (c). In relation to (a), the relevant fault element was intention: s 5.6(1). In relation to (c), the fault element was recklessness (which would be satisfied by intention or knowledge as well as recklessness: s 5.4(4)).

69 Thus the Crown had to prove that the appellant intended to possess the substance that was inside the box (fault element of (a)) and that the appellant was guilty of recklessness (which would be satisfied also by intention or knowledge) as to whether the substance so possessed was a border-controlled drug (fault element of (c)).

70 The following passages appear in the summing up of the trial judge:

Members of the jury, as I have said to you earlier, the dispute at the heart of this trial which the Crown must prove beyond reasonable doubt is that the accused possessed the drugs in the five boxes. Members of the jury, in considering that, you must examine and consider carefully whether the accused was aware of the likelihood that there was a significant or real chance that the drugs were narcotic drugs, or whether the accused was reckless as to whether the five boxes contained prohibited drugs.

……

There are a number of pieces of evidence in the case on which the Crown relies and from which the Crown asks that you draw the conclusion that the accused was aware of the likelihood that there was a significant or real chance there were prohibited drugs in the five boxes or whether he was reckless as to whether the five boxes contained prohibited drugs.

….. You must consider all the pieces of evidence on which the Crown relies and decide what facts are proved by that evidence and then, in light of all the evidence in the case, ask yourselves whether that combination of facts satisfies you beyond a reasonable doubt that the only reasonable conclusion is that the accused knew that there were drugs in the boxes.

…..

71 Although the third of those extracts referred to a conclusion that the appellant “knew that there were drugs in the boxes”, the cumulative effect of these directions was in my opinion to leave the jury with the impression that it was sufficient that the Crown prove the appellant was reckless as to whether or not drugs were there, thereby conflating the two fault elements from pars (a) and (c) and conveying to the jury that recklessness was sufficient for them.

72 What the summing up should have conveyed was that the Crown had to prove beyond reasonable doubt that the appellant intended to possess the substance in the boxes (that is, the substance that turned out to be methamphetamine), and that he was guilty of recklessness as to whether this substance was a border-controlled drug: cf Rosenfeld v R [2009] NSWCCA 74 at [34] – [40]. Proof of intention to possess a substance required proof of an intention directed to the possession of the substance (that is, proof that the appellant meant to possess it). This is not the same as recklessness or even knowledge; although in my opinion one could not intend, in possessing a box, to possess a substance contained within the box, unless one had a belief that there was such a substance in it.

73 I agree with the concession of the Crown that there was a material misdirection, which could as a reasonable possibility have affected the jury verdict. I note that the Crown did not rely on the proviso, and in my opinion the proviso could not apply in this case.

74 For those reasons, in my opinion ground 2 succeeds, and the appeal should be allowed on that basis.

75 In those circumstances, it is not necessary to address ground 3.

Directions concerning a reasonable person in the position of the appellant (grounds 4 and 5)

76 In the course of summing up, the trial judge referred to what “a reasonable person in the position of the accused” would have known or believed as to the nature of the substance in the boxes, and to whether such a person “would have appreciated that there was a real or substantial possibility that the boxes contained drugs”. The trial judge later said that the jury “must also be satisfied that the accused himself, not some other hypothetical person in his position, was aware of that risk”.

77 In my opinion, these directions could have distracted the jury from the questions they had to decide, namely whether the appellant himself actually intended to possess the substance in the boxes and whether the appellant himself was actually reckless as to whether it was a border-controlled substance (or intended or knew that it was). To the extent that the directions were corrected, it was only in association with a direction concerning risk, raising again the problem addressed in relation to ground 2.

78 I would allow these grounds of appeal also.

Failure to discharge jury (grounds 6 and 7)

79 In my opinion it is not necessary to express any view on these grounds, when the Crown has accepted there should be a new trial. They depend on their particular facts, and raise no question of principle the determination of which could be of assistance in a new trial.

Entitlement (ground 8)

80 The appellant’s submissions on this ground misstated what the trial judge directed. He directed that, if the Crown does not prove any element of the offence, the appellant “would be entitled to be found not guilty”. The appellant submitted that this was an error, because it was not enough to direct the jury that, if the Crown did not prove an element, the jury would be entitled to find the appellant not guilty. This grounds fails.

Directions concerning the importation of the boxes into Australia (grounds 9 ad 10)

81 There was no dispute at the trial that the appellant was involved in the process of bringing the boxes into Australia, and no re-directions were sought. In my opinion these grounds fail.

Direct evidence (ground 11)

82 Although the trial judge did tell the jury that there were a number of ways the Crown said the appellant knew there were drugs in the boxes, and then said “it could be by direct evidence”, he immediately made it clear that this did not apply to this case. This ground fails.

Alternative innocent inferences (ground 12)

83 In summing up the trial judge said this:

….. The inferences the Crown asks you to draw from these circumstances are inferences adverse to the accused and so in that regard the Crown must eliminate any other reasonable inference that might be drawn from those facts or circumstances. If an inference is able to be drawn from the facts and that inference is not a guilty inference, then you can’t draw the inference the Crown asks you to draw in preference to an alternate innocent inference, and therefore you couldn’t be satisfied beyond reasonable doubt that the Crown has established the inference he is seeking for you to draw.

84 In my opinion, this did not suggest to the jury that they needed to find an alternative innocent inference before they could acquit. In substance, in my opinion the trial judge was telling the jury that, if an innocent hypothesis was not excluded beyond reasonable doubt, the Crown had failed to prove its case. This ground also fails.

Conclusion

85 For those reasons, in my opinion the Court should make the following orders:

(1) Appeal allowed.

(2) Conviction and sentence of the appellant quashed.

86 PRICE J: I agree with Hodgson JA.

I agree with Hodgson JA.

**********

Citations

Fang v The Queen [2010] NSWCCA 254

Most Recent Citation

Cases Citing This Decision

2

DPP v Soliman [2013] NSWSC 346

Smith, Maltimore v The Queen [2016] NSWCCA 93

Cases Cited

5

Statutory Material Cited

1

R v Ye [2000] NSWCCA 401

Knight v The Queen [1992] HCA 56

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CITATION:	Fang v R [2010] NSWCCA 254
HEARING DATE(S):	6 September 2010
JUDGMENT DATE:	9 November 2010
JUDGMENT OF:	Hodgson JA at 1; Price J at 86; Fullerton J at 87
DECISION:	(1) Appeal allowed. (2) Conviction and sentence of the appellant quashed. (3) New trial ordered.
CATCHWORDS:	CRIMINAL LAW – Appeal against conviction – Possession of unlawfully imported substance – Mental elements supported only by circumstantial evidence – Whether verdict unreasonable – Whether new trial should be ordered – Whether trial judge misdirected jury concerning mental elements.
LEGISLATION CITED:	Criminal Code (Cth) ss 5.4, 5.6, s 307.5
CATEGORY:	Principal judgment
CASES CITED:	Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 R v Ye [2000] NSWCCA 401; (2000) 116 A Crim R 347 Rosenfeld v R [2009] NSWCCA 74
PARTIES:	Shang Wen FANG (appellant) CROWN (respondent)
FILE NUMBER(S):	CCA 2008/9318
COUNSEL:	W G ROSER SC (appellant) I BOURKE (Crown)
SOLICITORS:	Lloyd Truman Sadiq (appellant) Commonwealth Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/11/0561
LOWER COURT JUDICIAL OFFICER:	Sorby DCJ
LOWER COURT DATE OF DECISION:	20 November 2008