Ho v The Queen

COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0848
KAM TIN HO
v
THE QUEEN
and
S APCR 2009 0857
HO KAM HO
v
THE QUEEN
KAM TIN HO	S APCR 2009 0901
v
THE QUEEN
and
S APCR 2009 0897
SARISA LEECH
v
THE QUEEN

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JUDGES:	BUCHANAN, ASHLEY and TATE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 June 2011
DATE OF JUDGMENT:	11 November 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 344
JUDGMENT APPEALED FROM:	[2009] VSC 437 (Cummins J) [2009] VSC 495 (Lasry J)

- - -

CRIMINAL LAW – Conviction – First trial - Offences under s 270.3 of the Criminal Code (Commonwealth) and s 31(1) of the Financial Transactions Reports Act 1998 (Commonwealth) – Possessing a slave – Whether judge failed to adequately direct the jury as to the meaning of the term ‘possession’ – Whether judge failed to adequately define elements of slavery - Whether judge failed to properly put defence case to jury – Whether verdicts unsafe and unsatisfactory - Whether aggregation of errors – Applications refused.

CRIMNAL LAW – Sentence - First trial – Manifest excess - Delay - Double punishment – Role of each applicant in commission of the offences – Leave to appeal granted – Appeal allowed – Appellants re-sentenced.

CRIMINAL LAW – Conviction - Second trial - Intentionally possessing a slave – Whether judge’s directions wrong with respect to what the Crown must have proved to establish condition of slavery – Whether evidence supported conclusions that complainant was in a condition of slavery and was used - Whether judge misdirected jury that it should return verdicts on the possession and use counts – Whether judge gave inadequate direction as to the use of admissible evidence against each applicant – Applications refused.

CRIMINAL LAW – Sentence - Second trial – Manifest excess – Parity principle – Delay – Overlap between counts - Leave to appeal granted – Appeal allowed – Appellants re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Applicant K T Ho	Mr L C Carter	Theo Magazis & Assocs
For the Applicant H K Ho	Mr C B Boyce	Slades & Parsons
For the Applicant Leech	Mr S R Johns	Balmer & Associates
For the Respondent	Mr C W Beale	Commonwealth Director of Public Prosecutions

BUCHANAN JA
ASHLEY JA:

There were two trials in the Supreme Court. In the first trial, the accused were Kam Tin Ho (‘Kam’) and Ho Kam Ho (‘Ho’). In the second trial, the accused were Kam and Sarisa Leech (‘Leech’). Each of the accused was found guilty of an offence or offences under s 270.3 of the Criminal Code (Commonwealth). In the first trial, Kam and Ho were also found guilty of offences against s 31(1) of the Financial Transactions Reports Act 1998 (Commonwealth). Now each of them seeks leave to appeal against their convictions and sentences.

The first trial

In the first trial, Kam was charged with five counts of intentionally possessing a slave (‘possession count’) and with four counts of intentionally exercising over a slave a power attaching to the right of ownership, namely, the power to use (‘use count’). He was also charged with four counts of being a party to non-reportable cash transactions entered into for the sole or dominant purpose of attempting to ensure that the transactions would not give rise to a significant cash transaction (‘cash transaction count’). He was found guilty on all five possession counts (counts 1, 3, 4, 5 and 7), one use count (count 12) and all cash transaction counts (counts 9, 11, 13 and 14). The jury could not agree on three use counts, and no verdict was taken.

After a plea hearing the trial judge sentenced Kam on 29 September 2009 to a total effective sentence of 14 years imprisonment.[1] He fixed a non-parole period of 11 years’ imprisonment.
[1]He was sentenced to nine years’ imprisonment on each of the slavery counts, and to six months imprisonment on each of the cash transaction counts. There was partial cumulation of sentence passed on four of the slavery counts.

In the first trial, Ho was charged with four possession counts, four use counts and two cash transaction counts. The case put against him was that he was a principal in the offending; or else that he had aided and abetted Kam.

Ho was found guilty on all four possession counts (counts 1, 3, 5 and 7) and one cash transaction count (count 11). He was found not guilty on all four use counts and one cash transaction count. Upon which of the alternative bases the jury found him guilty is unknown.

After a plea, Ho was sentenced to a head term of 10 years’ imprisonment.[2] The judge fixed a non-parole period of 7 years.
[2]He was sentenced to seven years imprisonment on each of the slavery counts, and to six months’ imprisonment on the cash transaction count. The judge ordered partial cumulation of sentence passed on three of the slavery counts.

Legislation

We have referred to ‘possession’ and ‘use’ counts. The offences are created by s 270.3 of the Code, which relevantly provides:

(1) A person who, whether within or outside Australia, intentionally:
(a)possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership;
….
is guilty of an offence.

It was not in issue before us that s 270.3(1)(a) creates two offences – one of possessing a slave, the other of exercising over a slave ‘any of the other powers attaching to the right of ownership’.

Although s 270.3(1)(a) twice refers to ‘a slave’, the Code does not define that word. Rather, by s 270.1, it defines ‘slavery’, and thus gives a description of the circumstances in which a person, in Australia, is to be taken to be a slave:

For the purposes of this Division, slavery is the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person.

The cash transaction offence the subject of counts in the first trial is created by s 31(1) of the Financial Transactions Reports Act 1988 (Cth), which provides:

(1) A person commits an offence against this section if:
(a)the person is a party to 2 or more non‑reportable cash transactions; and

(b) having regard to:
(i)the manner and form in which the transactions were conducted, including, without limiting the generality of this, all or any of the following:
(A)the value of the currency involved in each transaction;

(B) the aggregated value of the transactions;
(C)the period of time over which the transactions took place;
(D)the interval of time between any of the transactions;
(E)the locations at which the transactions took place;

(ii)any explanation made by the person as to the manner or form in which the transactions were conducted;

it would be reasonable to conclude that the person conducted the transactions in that manner or form for the sole or dominant purpose of ensuring, or attempting to ensure, that the currency involved in the transactions was transferred in a manner and form that:
(iii) would not give rise to a significant cash transaction; or
(iv) would give rise to exempt cash transactions.

The terms ‘non-reportable cash transaction’ and ‘significant cash transaction’ are defined by that Act as follows:

non‑reportable cash transaction means a cash transaction:
(a) to which a cash dealer is a party; and
(b) that is not a significant cash transaction or is an exempt cash transaction; and
(c)that is not a designated service transaction that occurred after the commencement of Division 3 of Part 3 of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006.

significant cash transaction means a cash transaction involving the transfer of currency of not less than $10,000 in value.
Circumstances of the offending generally described

Much of the evidence was not in dispute. What follows is a general description of the circumstances of the offending. For convenience, we refer now to the circumstances referable to both trials. We must later refer to aspects in respect of which the broad picture was disputed.

The slavery counts – possession and use – of which Kam was found guilty concerned six women.[3] With one exception, he faced both a possession and a use count in respect of each woman. The slavery counts of which Ho was found guilty involved four of the same women. In the case of Leech, the possession and use counts concerned a single woman.
[3]Five in respect of the first trial; and one in respect of the second.

The principal witnesses in respect of the slavery counts were the six women it was alleged that the applicants possessed and used as slaves. Each woman entered Australia from Thailand on a three month tourist or business visa arranged by persons overseas. False histories were concocted in order to obtain the visas. As a means of prolonging their stay in Australia, the women signed applications for protection visas prepared by agents, in which the women falsely claimed that they were fleeing from persecution in Thailand.

The offending of which the applicants were found guilty was alleged on a ‘between dates’ basis. At the earlier date, the approximate age of each woman was as follows: N, 36 years; Y, 28; T, 34; R, 23; K, 33; and WK, 30.

Four of the women had worked as prostitutes overseas. All of them came to Australia knowing that they were to work as prostitutes. They also knew that they had to pay a price to secure their trip to Australia and the opportunity to earn money to assist their families in Thailand. The price was a contract debt. Before earning money of their own, the women were required to service a specified number of clients, either 650 or 750. Each client was to be given services for 30 minutes. Customers were charged $125 per half hour. It took each woman about three to four months to extinguish the debt, working six days a week to do so. The norm was that the woman was paid $5 from each $125 earned, and that $50 was deducted from the debt. On the seventh day of each week, so long as any part of the debt remained, the women were allowed to keep $50 from each $125 job. After the debt was fully repaid, they were characteristically allowed to keep that amount from each job.

The sexual services performed by the women took place at one of two brothels in South Melbourne.

Although there was some debate at the margins, the burden of the evidence was that the women’s activities, both their work as prostitutes and their leisure, were strictly controlled. For at least the duration of their contracts, and usually longer, they were not permitted to keep their passports. They were transported between brothels and their place of residence. They were effectively restricted to the brothels and the premises in which they lived. They were not allowed to have a key to their residences, and were given clear instructions that they were not to go outside unaccompanied. On occasion, Kam forbade at least some of the women from leaving their places of residence.

Even when their contracts had been fulfilled, the women were expected to continue working for at least the balance of 12 months after their arrival. As we have already said, after the contracts had been completed, the women were allowed to keep $50 from each job they performed, but the restrictions on their freedom of movement generally remained in place.

We focus now upon evidence given in the first trial. According to that evidence, the main person involved in the implementation of the arrangements, in Melbourne, was Kam. Kam stipulated the terms of the work the women were to perform, the conditions in which they worked and their living arrangements. Ho, who is his brother, played a practical role in taking the women to and from the brothels, escorting them on trips from their places of residence for shopping, and so on. Colloquially, he was a ‘gofer’.

The evidence with respect to the cash transaction counts was to the effect that on a number of occasions cash deposits into bank accounts had been structured so as to be in amounts less than $10,000. This was alleged to have been for the sole or dominant purpose of avoiding the reporting requirements of the Financial Transactions Report Act 1988, which would have required the persons transferring the funds to identify themselves had any individual amount exceeded $10,000. Evidence of the transactions was given by bank employees. On the basis of intercepted telephone conversations, of which evidence was also given, the Crown alleged that the cash transaction offences were linked to the slavery offences. A number of the conversations were also relied upon with respect to the slavery counts.

No evidence was led by or on behalf of the applicants.

The conviction applications
The meaning of ‘possession’ (Kam, ground 2, Ho, ground 2)

The first ground argued on the applications by Kam and Ho for leave to appeal against conviction was that the trial judge erred by failing to adequately direct the jury as to the meaning of the term ‘possession’.

The judge said to the jury:

So what does possession mean? Because the charge is that the accused possessed a slave. Possession is a power attaching to the right of ownership and that means the exercise of custody or control by a person over another.
Now, it obviously does not mean any old custody or control, because you have custody or control over your children, you have custody or control over your secretary and they might have it over you. We are not talking about that sort of ordinary custody or control. It is in the context of slavery which we are talking about.

Counsel for the applicants submitted that the trial judge should have said that possession meant the complete subjection of one person to another. The submission was based upon the observations of Hayne J in Wei Tang v R[4] as to the meaning of the terms ‘ownership’ and ‘possession’ in s 270.3. His Honour said:

Just as the word “ownership” evokes notions of the dominion of one person over another, to speak of one person possessing another (in the sense of having physical custody of or control over that other) denotes one person having dominion over the other. Or to put the same point in different words, possession, like ownership, refers to a state of affairs in which there is the complete subjection of that other by the first person.[5]

Counsel submitted that the element of possession required proof of a degree of intensity akin to an overbearing of will.

[4](2008) 237 CLR 1.

[5]Ibid, 27 [58].

Immediately prior to the direction quoted above, his Honour had instructed the jury as to the expression ‘powers attaching to the right of ownership’ in the statutory definition of slavery. He said:

Now, you may say to yourselves well, why do we have all these words of “powers attaching to the right of ownership” – why cannot you just say, well, slavery is owning someone. It would be a lot simpler. Well, the answer is, you cannot legally own someone. That is why we do not say slavery is ownership because you cannot own someone. That is why we have the words “powers attaching to the right of ownership”. So there is a good reason for it … you cannot legally own another person. If you then say what does ownership mean, ownership includes dominion overall complete subjection of the worth of a person by another.

In our opinion, the trial judge’s direction served to convey to the jury the essential idea that possession of a slave was the exercise of a power associated with ownership, and ownership meant the complete subjection of the will of one person by another. The trial judge emphasised that the possession was that of a slave and appropriately contrasted that possession with lesser forms of control. If, at this point of the charge, the trial judge had said that possession meant complete subjection of the will of a person, he would have equated possession with ownership, a step more likely to confuse than enlighten the jury.[6]
[6]See Wei Tang v R (2008) 237 CLR 1, 18 [27] (Gleeson CJ).

Need to define the elements of slavery (Kam, ground 3; Ho, ground 3)

Ground 3 of Kam’s application is as follows:

The learned trial judge erred by failing to specify what powers attaching to the right of ownership would need to be found proved before the jury could be satisfied of the elements of slavery and possession.

The third ground of the application by Ho is in similar terms.

Counsel for the applicants submitted that the trial judge failed to adequately define the elements of slavery and possession and effectively left it to the jury to make a value judgement as to whether the line between exploitative employment and slavery had been crossed.

The trial judge said:

You might find most of these of no use. These are just a guide, which I hope assists you in looking at the evidence, but you decide the matters which matter, and I put some here.
You look to all the matters you find proved, including the nature and extent of the powers exercised over the person, so you look to the powers exercised, the nature of them, the extent of them. You can look to the capacity to deal with the person as a commodity including as an object of sale or purchase. You can look to that. The capacity to deal with the person as a commodity, including as an object of sale or purchase. You look to the exercise of powers of control over the movement of the person, which clearly extends beyond exploitative employment.
I mean you know in all jobs, ladies and gentlemen, there is some control over movement. I mean in the old days people used to go out and have a smoko, which is not done any more, but the boss can say, “you’re not going out, stay by the phone and answer the phone”. That is an ordinary thing, that does not involve slavery. So it is the exercise of powers of control over movement of the person which extended clearly beyond exploitative employment.

The trial judge supplied the jury with written instructions. The instructions dealing with the elements of the offence of intentionally possessing a slave contained the following passage:

What are the matters you look to in deciding whether the prosecution has proved the elements beyond reasonable doubt?
(a) you look to all the matters you find proved, including –
(i) the nature and extent of the powers exercised over the person;
(ii)the capacity to deal with the person as a commodity including an object or sale or purchase;
(iii)the exercise of powers of control over movement of the person which extended clearly beyond exploitative employment;
(iv)the exercise of powers of control over the person’s freedom of other action;

(v) the consent of the person to those conditions;
(vi)the absence or extreme inadequacy of payment for the services of the person.

Slavery as a legal status does not exist in Australia. Legal ownership of one person by another is impossible. Accordingly, the statutory definition is couched in terms of the manner in which the person said to be a slave is treated by the exercise of powers over that person by another. The offence is treating another person as if that person were a slave. There are a number of possible indicia of a slave, including being the subject of a sale and purchase; being used at another’s behest without restriction; being exploited by receiving wholly inadequate remuneration for one’s labour; being physically confined; being denied the choice between continued service and freedom; and being deprived of the means of returning to one’s country of origin.

In our opinion, the judge’s charge did draw the jury’s attention to the requirement that the gist of the offence lay in the applicants’ treatment of each of the women as if she were a slave. The jury was not left at large to determine whether the women answered the description of slaves or badly treated employees. The trial judge accurately stated the essential nature of slavery and also conveyed to the jury that the exercise of dominion by one person over another was to be determined having regard to all the incidents of the relationships between the applicants and the women said to be slaves.

Bearing in mind the fact that the evidence as to the victims’ living and working arrangements in general terms was not in dispute, it was, we think, ultimately a question for the jury whether the line between exploitative employment and slavery had been crossed, guided by the judge’s directions as to the considerations which pointed one way or the other. It was not necessary for the judge to provide the jury with an exhaustive list of circumstances denoting slavery. Indeed, to have done so might be seen as usurping the jury’s function as the tribunal of fact. In our view, the judge’s directions in this case were sufficient for the purpose of conveying to the jury the nature of the findings which could warrant the conclusion that one or more of the offences against s 270.3 had been committed.

The judge’s obligation to relate the law to the facts and properly describe the defence case (Kam, ground 4, Ho, ground 4)

The next ground argued was that the trial judge failed adequately to relate the law to the facts and the issues, and failed to properly put the defence case to the jury.

Counsel for the applicants complained that the trial judge’s summary of the parties’ arguments as to the issue of slavery was perfunctory, that he failed to deal with the relevance of the consent of the women, and that he failed to refer to certain evidence favouring the defence.

A judge’s charge is not required to conform to a standard pattern, but should be adapted to the particular circumstances of the case.[7] We think that here the positions of the parties emerged from the nature of the case itself. Counsel for the applicants at trial highlighted the material advantages enjoyed by the women as the result of their work. They were described as business women. The prosecutor, on the other hand, stressed the women’s isolation, without friends, family, support or familiarity with an alien society, so that they were vulnerable and dependent to the point that they were enslaved.
[7]Alford v Magee (1952) 85 CLR 437, 466.

Those positions were accurately conveyed to the jury by the trial judge, who said that counsel for the defence had argued that you do not have slaves who are ‘Rolex-adorned, Louis Vuitton-carrying, high end mobile user slaves‘. That was not slavery. These were mature, experienced businesswomen acting in their own interests in order to make money. They were ‘business women in the business of sex’.

His Honour said that the prosecutor had conceded that the women came to Australia and entered into contracts voluntarily but had argued that -

When they got here they were vulnerable and dependent because no language, no friends, no family, no support, no knowledge of system, and in that context of vulnerability and dependence the accused disempowered them, controlled them, removed their power and reduced them to slavery. … He said these women were not shackled in chains, but they were shackled in debt, shackled in vulnerability, shackled by the conditions and shackled by the restrictions placed upon them.

In our opinion, the picture painted by the trial judge, while pithy, adequately conveyed the rival positions of the parties. The trial judge described in some detail the evidence of the manner in which the women lived and were treated by the applicants. He also recapitulated at length the points made by counsel in their final addresses. In our opinion, the relative simplicity of the cases advanced by the defence and the prosecution, and the nature of the evidence, called for no further explanation by the trial judge to enable the jury to grasp the issues they were to determine. We think that his Honour adequately focussed the attention of the jury on the real issues in the case.[8] He communicated the legal principles to the jury in a manner which would assist them in carrying out their role. Further, his Honour put the defence case fairly to the jury so that they must have had a clear understanding of the position of the applicants.[9]
[8]R v VN (2006) 15 VR 113, 144 [126]; R v Zilm (2006) 14 VR 11, 23 – 25 [54]-[58], 28 [71].
[9]See R v AJS (2005) 12 VR 563; R v Dao (2005) 156 A Crim R 459, 645-6; R v Zilm (2006) 14 VR 11, 25 (Eames JA); R v VN (2006) 15 VR 113, 144-5 (Redlich JA).

The trial judge did not summarise all the evidence. He was not required to do so[10], as long as it was clear that all significant evidence was in the contemplation of the jury. In the light of the identification by counsel of the evidence upon which they relied, which his Honour largely summarised, we do not think that the aspects of the evidence that he omitted from his summary deprived the applicants of the proper consideration of their cases by the jury.

Directions on the use counts (Kam, ground 5)

[10]Domican v R (1992) 173 CLR 555, 561.

The next ground relied upon by Kam repeated arguments raised in the context of grounds 2, 3 and 4. In our opinion, the arguments fail for the reasons we have stated.

Whether verdicts Unsafe and Unsatisfactory (Kam, ground 6, Ho, ground 5 )

Finally, in oral argument it was contended on behalf of Kam and Ho that the verdicts of guilty were unreasonable and could not be supported by the evidence.

Counsel for the applicants adopted the arguments advanced by counsel at trial in their final addresses. The main thrust of the case put below was that the women and the applicants operated in a joint enterprise to earn as much money as they could in a short time. The women were described as ‘entrepreneurs, they’re business women … prepared to travel around the world in furtherance of their aim … to make as much money as they can in the shortest possible time … ‘.

Counsel relied upon the evidence that most of the women had been employed as prostitutes for many years in several countries. The woman who had not previously worked as a prostitute was educated and sophisticated and, for the purpose of earning money, willingly entered into the arrangements said to constitute slavery. The women were engaged in legal work in licensed brothels. The restrictions on the living arrangements, movements and conduct of the women were characterised as designed to achieve the goals they shared with the applicants of promoting a successful business and avoiding detection by the authorities. The debts undertaken by the women were said to represent the cost of obtaining visas, travel to Australia, accommodation, food and transport in Australia. When the debts were repaid, the women continued to live and work in much the same manner, but earned tens of thousands of dollars.

In this Court, counsel for the applicants submitted that the jury were bound to have a reasonable doubt that the women were in a condition of slavery and, further, the jury ought not to have been satisfied that they were possessed or used by the applicants with the requisite intention.

In addition, counsel for Kam submitted that the failure of the jury to convict his client of three counts of using a slave was inconsistent with his conviction on the possession counts in relation to the same women.

The jury were not bound to accept the picture painted by counsel for the applicant of free spirited entrepreneurs willingly co-operating with the applicants in a business enterprise. The evidence of the women warranted the conclusion that each of them was effectively imprisoned by their lack of knowledge and resources to deal with an alien environment. The applicants exploited the position of the women and effectively controlled all aspects of their working lives and leisure. The women did consent to the arrangement to come to and work in Australia to pay off a debt but the jury could conclude that once they arrived in Australia, the women were treated as chattels by the applicants.

We do not think that the jury were bound to have a reasonable doubt as to the guilt of the applicants.[11] Despite certain concessions made by the witnesses in cross-examination, there was ample evidence, which the jury could have accepted, to warrant the conclusion that the applicants possessed the women as slaves and that Kam used one of the women as a slave.
[11]Nguyen v R (2010) 271 ALR 493, 500, [33]; Libke v The Queen (2007) 230 CLR 559, 596-7, [113] (Hayne J), SKA v The Queen (2011) 276 ALR 423, 429-430 [20]-[24] (French CJ, Gummow and Kiefel JJ).

The fault element in respect of the conduct of possessing and using a slave is established by proving that the applicants meant to engage in that conduct.[12] It was not necessary to prove that the applicants knew or believed that the women were slaves. It was sufficient that they knew that the women possessed the qualities which, by virtue of s 270.1 of the Code, made them slaves and intended to possess and use them as they did.[13] In our opinion, there was abundant evidence to establish the element of intention.
[12]See s 5.2(1) of the Code.
[13]Wei Tang v R (2008) 237 CLR 1, [25] (Gleeson CJ).

As to the alleged inconsistency in the verdicts, the evidence of Y, whom Kam was found to have used as a slave, disclosed a greater degree of control by Kam of the work she performed as a prostitute than appears to have been exerted by Kam in respect of the other women. She was made to work although she was ill, she was not allowed to leave the brothel even escorted and she had insufficient time to rest and eat. The jury may have been sufficiently impressed by that evidence to find that Y was used as a slave although the other women were not.

The verdicts of guilty in respect of the financial transaction offences were said to be unsafe and unsatisfactory in that the jury ought not to have been satisfied beyond reasonable doubt that the sole or dominant purpose in making deposits was to evade reporting obligations rather than to avoid divulging the identity of the applicants.

Counsel for the applicants at trial practically conceded that the applicants structured the transfer of funds so that the amounts did not exceed $10,000. The only issue was whether that was done for the sole or dominant purpose of ensuring that the transactions did not constitute a transfer of not less than $10,000. Counsel for the applicants contended that the real purpose was to ensure that the authorities did not investigate the applicants’ association with prostitutes who had entered the country on visas obtained on a false basis. In our opinion, the inference was clearly open that the real purpose the applicants had was to avoid the reporting obligations of the legislation, an inference that could be more readily drawn in the absence of evidence from the applicants.

Aggregate of errors (Kam, ground 7, Ho, ground 6)

In written argument, but not orally, counsel for Kam and Ho relied upon an aggregation of errors, as described in R v Kotzmann.[14] In light of our conclusions generally with respect to the other grounds - that is, not just that those grounds individually fail – this ground also fails.
[14][1999] 2 VR 123.

Conclusion

For the foregoing reasons, we would refuse Kam and Ho leave to appeal against the convictions entered at the conclusion of the first trial.

The sentence applications

Kam is 42 years old. He came to Australia from Hong Kong with his family in 1984. He left school in Melbourne at year 9 and thereafter had various forms of employment. Kam married, but the marriage failed, leaving a daughter born in 2001, who was brought up by him. When he was convicted, Kam was living with and caring for his daughter, his mother and his elderly grandmother. His mother and grandmother were in ill health.

Kam had a large number of previous convictions for obtaining a financial advantage and property by deception. He had not previously served a term of imprisonment.

The grounds of the application by Kam for leave to appeal against sentence are as follows:

1.The individual sentences on the slavery counts, the total effective sentence and the non-parole period are each manifestly excessive.
2.The learned sentencing judge erred by giving inadequate weight to the very lengthy delay of nearly five years between being arrested in December 2004 and sentence in September 2009.
3.The learned sentencing judge erred in finding that the applicant was the Melbourne principal in the scheme to bring the Thailand women into Australia.
4.The learned sentencing judge erred by doubly punishing the applicant on count 3 (possession of slave) and count 4 (use of slave).
5.The learned sentencing judge erred by failing properly to take into account the fact that the women the subject of the slavery counts largely consented to their condition of slavery.

Whilst acknowledging that the offences were serious, counsel for Kam relied upon a number of factors said to reduce his culpability: all of the women, save one, were experienced adult sex workers; each of the women voluntarily entered into the contracts creating the debt which they were required to repay by work; the applicant adhered to the terms of the contracts, including remitting funds back to the families of the women in Thailand; there was no trickery, threats, ill treatment or forced labour; and the applicant was not the owner of the contracts or the brothels.

Counsel for the applicant also submitted that the facts were analogous to a bad case of debt bondage, an offence which was not in existence at the time of the commission of these offences.

The gravity of the offences of possessing and using a slave is reflected by the maximum sentence of 25 years’ imprisonment for each offence. Nevertheless, there were a number of factors which tended to place Kam’s offending at the lower rather than the higher end of the scale of the offending which may be readily imagined. The contracts were harsh in the sense that the work required of the women was hardly commensurate with their remuneration. Nevertheless, the contracts appear to have been freely made by the women and were honoured by the applicant. The applicant was not the promisee of the contracts and did not own the brothels in which the women were employed.

We are inclined to think there is substance in the submissions based upon delay, double punishment and the judge’s characterisation of the role of Kam as ‘the architect and director of the Melbourne part of the scheme of slavery.’

The delay was considerable and was not caused by the applicant. Next, the sentence imposed upon Kam for possession of Y was nine years’ imprisonment. The same sentence was imposed for the offence of using Y and one year of that sentence was ordered to be cumulated upon the base sentence. As discussed below in connection with the offences of which Leech was found guilty and convicted, the offence did not strictly overlap, yet in the particular circumstances it hardly warranted cumulation of one years’ imprisonment. Again, it appears that his Honour treated Kam as if he were responsible for the entire Melbourne operation, yet the evidence disclosed no more than that Kam acted in the management of brothels as a employee and conducted the rosters for two brothels.

For the foregoing reasons, we would set aside the sentence imposed upon Kam and re-sentence him to be imprisoned for a term of seven years on each of the slavery counts[15] and for a term of six months on each of the financial transaction counts. We would cumulate three months’ of the sentence on each of counts 3, 4, 5, 7 and 12 upon the sentence imposed on count 1 and upon each other, creating a total effective sentence of eight years and three months’ imprisonment. We would fix a minimum term of five years’ imprisonment before the applicant is to be eligible for parole.
[15]Counsel did not argue that a lesser sentence should be imposed on one of the counts involving Y. Contrast the argument for Leech - as to which, see later.

Ho is the younger brother of Kam and is now 41 years old. He came to Australia with his brother in 1984 and attended Melbourne schools until year 11. He had various jobs after that and two marriages, which both failed. In 1994, the applicant was convicted on a number of deception offences but was not ordered to serve a term of imprisonment.

Ho played a lesser role in the commission of the offences than his brother. Otherwise, Ho was entitled to rely upon the same mitigating factors.

We would set aside the sentence imposed upon Ho and re-sentence him to be imprisoned for five years on each of the slavery counts and to a term of six months on the financial transaction count. We would cumulate three months of each of the sentences on counts 3, 5 and 7 upon count 1 and upon each other, creating a total effective sentence of five years and nine months’ imprisonment and we would order that the applicant serve a term of three years’ imprisonment before he is to be eligible for parole.

The second trial

In the second trial, Kam and Leech were both charged with one possession count and one use count. Kam was found guilty only on the use count. Leech was found guilty on both counts.

The count of intentionally possessing a slave specified the period 8 June 2003 to 4 October 2004. The count of intentionally using a slave specified the period 1 September 2003 to 4 October 2004. The different starting dates reflected the delay between the complainant arriving in Australia and going to work in the brothels.

After a plea, Kam was sentenced on 4 November 2009 to six years imprisonment. The judge directed that six months of that sentence be served cumulatively upon the sentences imposed upon him in the first trial. The new head term was 14 years and six months’ imprisonment. His Honour confirmed the non-parole period of 11 years which had earlier been fixed.

After a plea, Leech was sentenced to five years imprisonment on each count. With cumulation, the head term was six years’ imprisonment. The judge fixed a minimum term of three years and six months’ imprisonment.

The conviction applications
Grounds

Kam relied upon the following grounds:

1.The learned trial judge erred by failing to specify what powers attaching to the right of ownership would need to be found proved before the jury could be satisfied that the complainant was in a condition of slavery.
2.The guilty verdict is unreasonable or cannot be supported by the evidence.

Leech ultimately relied upon these grounds:

2. The facts alleged in support of each of counts 1 and 2 were the same:
a)The finding that [the complainant] was in the condition of slavery was dependant upon ‘all of the evidence’ and the ‘complete picture’;
b)In order to make the finding it was necessary to have regard to both evidence of ‘possession’ and ‘use’;

- as such a verdict upon Count 2 should not have been open once a verdict was received on Count 1.
3.The trial miscarried due to the learned trial Judge’s inadequate warning in relation to evidence admissible only against the co-accused particularly in relation to the element of slavery.
6.The trial miscarried by reason of the learned trial judge directing the jury to return verdicts on counts one and two in circumstances where;
a)the proper construction of s.270.3(1)(a) provides ‘any of the other powers attaching to the right of ownership’ as an alternative basis for conviction to possessing a slave;
b)conviction on both counts exposed the appellant to double jeopardy;
c)consideration of both counts separately involved circular reasoning and depended upon an artificial separation of conduct.

Kam’s conviction appeal
Ground 1

Section 270.3(1)(a) of the Code, as we have already noted, creates two offences with respect to slaves. Since by s 270.2 of the Code, ‘slavery remains unlawful and its abolition is maintained’, the reference to ‘slave’ in s 270.3(1)(a) is to be understood by the definition of ‘slavery’ in s 270.1 - that is, ‘the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’.[16]
[16]The history of this provision and its implication was traced by Gleeson CJ in R v Wei Tang (2008) 237 CLR 1, 16-19 [21]-[28].

Kam was convicted of exercising over a slave ‘a power attaching to the right of ownership, namely the power to use’. Ground 1 attacks the judge’s directions with respect to what the Crown must have proved to establish that the complainant was in a condition of slavery. Whilst that might be described as the threshold matter which the Crown was required to prove, Hayne J pointed out in The Queen v Wei Tang[17] that there is a merger of the question whether the accused possessed or exercised some other power attaching to the right of ownership over the complainant, and the question whether the complainant was a slave. His Honour observed –

… proof of the intentional exercise of any of the relevant powers over a person suffices to establish both that the victim is a slave and that the accused has done what the legislation prohibits.[18]

[17]Ibid 57 [144].

[18]Ibid 57 [145].

It was said by Hayne J that ownership -

…is a word that must be read as conveying the ordinary English meaning that is captured by the expression ‘dominion over’ the subject matter. … as identifying a form of relationship between a person (the owner) and the subject matter (another person) that is to be both described and identified by the powers that the owner has over that other.[19]

[19]Ibid 56 [139].

His Honour also referred to -

… the powers which, taken together, would constitute the complete subjection of that other person to the will of the first.[20]

[20]Ibid 57 [145].

But it is important to understand that, by operation of ss 270.1 and 270.3(1)(a)

… proof of the intentional exercise of any of the relevant powers over a person suffices to establish both that the victim is a slave and that the accused has done what the legislation prohibits.[21]

[21]Ibid 57 [145].

One power attaching to the right of ownership is shown by s 270.3(1) to be possession. But it is evidently not the only such power.[22] So much is clear from ss 270.1 and 270.3(1)(a). Those other powers were said by Gleeson CJ in Wei Tang to include the capacity to make a person an object of purchase, the capacity to use a person and a person’s labour in a substantially unrestricted manner, and an entitlement to the fruits of a person’s labour without compensation commensurate to the value of the labour.[23] His Honour also referred to Prosecutor v Kunarac,[24] where the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia identified as pertinent features –

Control of movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour.[25]

[22]See our discussion of the matter at [32] above.

[23]R v Wei Tang (2008) 237 CLR 1, 17-18, [26].

[24]Case No IT-96-23-T and IT-96-23/1-T (22 February 2001).

[25]R v Wei Tang (2008) 237 CLR 1, 18, [28].

Three further points made by Gleeson CJ should be noted: First, the presence of consent is not inconsistent with slavery; second, some of the factors mentioned in Kunarac involved questions of degree. Slavery does not equate with harsh and exploitative conditions of labour.[26] Third,

the kind of exercise of power that deprives a person of freedom to the extent that the person becomes a slave is said to be the exercise of any or all of the powers attaching to the right of ownership.[27]

[26]Ibid 21, [33]; 20, [32].

[27]Ibid 17, [25].

A judge, when directing a jury as to the matters which the Crown must prove to make out a s 270.3(1)(a) offence, must give the jury practical assistance, not simply provide a sterile recitation of legal principle. In a case in which the Crown alleges that ‘the powers attaching to the right of ownership’ are possession and use, matters of fact and degree intrude. In that connection, the jury’s determinative function should be made clear by the judge.

Counsel for Kam described the judge’s charge as being ‘decidedly better’, with respect to the matter raised by ground 1, than the charge at his client’s first trial. But still, he submitted, it was fatally flawed. We disagree with the last submission.

The judge relevantly directed the jury as follows:

The first clear issue raised is whether or not [the complainant] was, in fact, in a condition of slavery.

and
… slavery is defined in the law as ‘the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person’.

and
… you can have a debt or a contract or an agreement which involves slavery, but, equally, on the other hand, the fact that you have a debt or a contract does not automatically mean that the condition of slavery is established. So the debt or contract in this case for the servicing of 650 men may involve slavery but does not necessarily involve slavery; in other words, because there are debts and contracts in all aspects of commercial life, that, of itself, does not amount to slavery.

and
… you may think, on reviewing the evidence, that in the course of wanting to earn the money she wanted to earn, [the complainant] consented to the conditions that she was in … clearly there was no trickery involved, she knew what she was getting into… if you conclude that she consented to the conditions that she was in amount[ed]to slavery, it doesn’t mean that it wasn’t slavery; in other words, the consent by [the complainant] to live as she lived and to work as she worked and to be involved as she was involved does not mean that because she consented she wasn’t in a condition of slavery. Her willingness to participate is something you can take into account in deciding whether she was or was not in a condition of slavery, but the consent does not mean the condition she was in was not slavery.

and
… it is not possible for a human being living in Australia to legally own another human being. However, having said that, the condition of slavery that this offence involves requires the Crown to prove the exercise of powers of control of the kind and degree that would attach to a right of ownership, if such a right were legally possible, not just powers of a kind that are no more of an incident of harsh employment, either generally or at a particular time or place. They are powers of effective, although not legally possible, ownership.

and
You might ask yourselves as members of the jury: ‘Well, how is it that we can distinguish between slavery, on the one hand, and what might be described as harsh or exploitative conditions of labour on the other?’ The answer to that question is entirely a matter for you because you are the judges of the facts, but the answer to that question may be found in the nature and the extent of the powers exercised over the person alleged by the Crown to be in a condition of a slavery, in this case [the complainant]. In particular, if the Crown has proved beyond reasonable doubt that [the complainant] was dealt with as a commodity or an object of sale and purchase, that may assist you in resolving the issue; likewise, you may resolve the issue in the negative if you are not satisfied about those things. So also may the exercise of powers of control over movement which extend well beyond powers exercised even in the most exploitative of employment circumstances. You might also consider the absence or the extreme inadequacy of payment for services …

and
… if the position is that while you think, therefore, that this has been harsh employment in some respects and that there were benefits of the kind that counsel referred to which demonstrated that she was not a mere commodity or an object of sale or purchase, then in those circumstances you might not be satisfied the Crown has proved that she was in a condition of slavery.

and
… if you thought the evidence in this case took it well beyond harsh employment into a condition where you are satisfied beyond reasonable doubt that [the complainant] was an object of sale and purchase and a mere commodity, then you would be satisfied that that aspect of the case had been proved.

His Honour, fully and carefully, directed the jury’s attention to the legal issue, and as to how the jury might go about resolving it. In the latter connection, he highlighted the factual issues relating to possession and use. Counsel criticised his Honour for saying, in the sixth passage cited above, that the distinction between slavery and harsh and exploitative conditions of labour was entirely a matter for the jury. He submitted that this set the jury at large.

But that is not so. Both immediately before, and following that passage,[28] his Honour pointed the jury to considerations which would enable it to draw the distinction. Further, his Honour was correct to say, matters of fact and degree being involved, that the answer to the question whether the relationship between the applicants and the complainant fell on one or other side of the line dividing slavery and harsh and exploitative conditions of employment was entirely one for the jury.
[28]Both when dealing with what constitutes a person a slave for the purposes of s 270.3, and when dealing with the concepts of possession and use.

Ground 2

Counsel for Kam submitted that the jury ought not have been satisfied that (a) the complainant was in a condition of slavery; (b) his client used the complainant as a slave; or (c) his client knew that the complainant was a slave. He relied upon matters advanced for Kam in counsel’s final address at trial. He directed particular attention, also, to a statement made by the complainant to an undercover police officer, in late 2003, that she was very happy with her circumstances; and to what he submitted was her later change of story when the police and immigration authorities became involved.

Counsel for the Crown identified evidence which, he submitted, the jury was entitled to accept. In consequence of that evidence, he submitted, it could not be successfully argued that the jury ought to have had a reasonable doubt about Kam’s guilt.

The matters relied upon by Kam’s counsel at trial, including the matter highlighted by counsel in this Court, might have left the jury with a reasonable doubt whether the complainant was in a condition of slavery at any time between 1 September 2003 and 4 October 2004,[29] and, if so, whether Kam exercised a power to use at any time during that period. But in our opinion, having analysed the evidence for ourselves, it cannot be said that the jury ought – or must – have had a reasonable doubt about either of those matters.[30] In our view it was well open to the jury to be satisfied to the criminal standard that within the specified period the complainant was used by Kam in a way which could be characterised as the exercise of a power attaching to the right of ownership.
[29]The period relevant to the Court on which Kam was found guilty.
[30]See the authorities cited at n11.

The complainant gave evidence, inter alia, that (a) she was told, in Bangkok, that Leech would take her to Australia because they wanted a girl urgently; (b) she came to Australia, her fare having been paid by others; (c) she came on a ‘short stay’ visa which provided a false basis for her journey. She signed the visa application, but knew little about its detail; (d) she was told that these arrangements created a debt, which she would have to pay off by servicing 650 men; (e) she did not speak English, and had no knowledge of Melbourne or Sydney; (f) she travelled to Australia with others. On her arrival, her passport was taken from her; (g) she lived in an apartment in Nicholson Street. Until the debt was paid off, she had no key to the apartment. In the early period of her stay, she rarely went out. If she did so, it was with a ‘minder’; (h) before commencing work, she was inspected by Kam to see if she was sufficiently good looking; (i) whilst paying off the debt, she was obliged to work six days per week. Customers paid $125 per half hour, out of which $50 set off against her debt; (j) on the seventh day each week before the debt was extinguished, and on each day after it was extinguished, she was paid $50[31] out of each $125; (k) Leech told the complainant what hours she would work. Most days it was between 11.00am or noon and 2.00am the next day; (l) she continued to work even when sick; (m) once she started work, she was not allowed to leave; (n) both Leech and Kam spoke to her about her work. Leech would tell her to pay attention and service customers nicely. Kam would speak to her about customers’ complaints; (o) Kam gave her a working name on her first day at the brothel – ‘Cindy’; (p) before the debt was paid off, her passport was kept in a box at the brothel. Leech – and perhaps Kam, it depended upon what view the jury took of the evidence – told her that it was to be kept there, although she wanted to have it with her; (q) after she had paid off the debt, she was very tired. She asked Leech and Kam if she could stop and work less. Kam said that she had to work because there were no girls at the shop. Leech told her that if she did not work, she would be sent back to Thailand; (r) Leech took her to an immigration agent in an attempt to obtain a protection visa for her. Once, Kam also went with her; (s) Leech acted as her interpreter. She was provided with a false story about fear of religious persecution. Leech (and others) told her to memorise it; (t) she was poorly educated, had worked as a prostitute from age 14, and had arrived in Australia, aged 30, not knowing anything about Australia, having no friends or family here and without money.
[31]$60, later still.

A number of recorded telephone conversations were put into evidence. They revealed, inter alia – (a) Kam instructing the complainant where she was to work; (b) Kam and Leech discussing where the complainant was to work; (c) Kam instructing the complainant what she was to say if the police became involved or asked questions; (d) Kam and Leech discussing arrangements for the complainant to travel to Sydney in connection with the protection visa application; (e) Kam making arrangements with the complainant for her to go to Sydney with respect to the visa application; (f) Kam and Leech discussing what amount the complainant was to be paid for servicing a client after her debt had been repaid.

The evidence to which we have referred strongly supported a conclusion that the complainant was in a condition of slavery, particularly in the period when the debt remained undischarged. It permitted a conclusion that more than one power attaching to the right of ownership was exercised over her. Further, a number of aspects of that evidence were capable of strongly supporting the jury’s verdict that Kam intentionally exercised a power of use over the complainant. Acknowledging that certain concessions were obtained from her in cross-examination, and that the evidence of the undercover policeman, Hopkins, was capable of disclosing not only her consent, but professedly happy consent, it was for the jury to evaluate the complainant’s credibility. We see no compelling reason why it should not have accepted her credibility, and the reliability of her evidence, generally. We do not have a reasonable doubt of Kam’s guilt, let alone a reasonable doubt which the jury’s advantage in evaluating the complainant’s evidence could not assuage.

Leech’s conviction appeal
Grounds 2 and 6

Counsel for Leech argued these grounds together. In each instance, he relied upon a particular view of the evidence. He submitted that the jury had been invited by the prosecutor to consider all the evidence when determining whether the complainant was in a condition of slavery at a pertinent time, that being relevant to both counts on the indictment. He argued that the jury must be taken to have accepted that invitation, and to have found the facts necessary to prove both possession and use before coming to consider the elements of intentional possession and intentional use. So, he submitted, respecting ground 2, that once a guilty verdict had been received on the first count, ‘a verdict on count 2 should not have been open’.

We turn to the argument on ground 6, which contends that in directing the jury that it should return verdicts on the counts alleging possession and use, the judge misdirected the jury. That was so, it was said, for two reasons. First, whilst s 270.3 (1)(a) creates distinct offences – that is, possessing a slave, and exercising any of the other powers attaching to the right of ownership - what may be described as a residue offence is an alternative which can only arise where the ‘over-reaching power attaching to the right of ownership’ connoted by possession is not made out. Second, conviction on both counts exposed the applicant to double jeopardy.

Counsel argued these two aspects of ground 6 together. The argument went this way:

(1) ‘Possession’ exhausts, because it necessarily encompasses, all other powers attaching to the right of ownership. Were it otherwise, every component constituting possession could be broken down, and separately alleged as the exercise of a power attaching to the right of ownership.

(2) The present case demonstrated that to read s 270.3(1)(a) differently would be to expose an accused to double jeopardy. The prosecutor had urged the jury to look at the evidence as a ‘complete picture’ in determining whether it was satisfied that the complainant was in a condition of slavery.

(3) ‘Use’ of a slave is not specifically identified as an offence. The kind of conduct which the prosecution sought to address by the ‘use’ count is addressed by s 270.3(1)(d). The existence of that paragraph supported the argument that sub-s (1)(a) ‘is concerned only with possessing a slave, or, alternatively, exercising a power that falls short of possession’.

(4) Subsection (1)(a) does not create several offences, but merely identifies the alternative basis upon which an accused could be convicted of the offence created.[32]

[32]Counsel cited R v Australian Char Pty Ltd (1999) 3 VR 834 and R v Wei Tang (2007) 16 VR 454, 461, [27].

Orally, counsel submitted that the whole basis of the debt, of bringing the complainant into Australia, was to get her to work in brothels. There could not have been use without control, and control equated possession. He submitted that the prosecutor’s differentiation between aspects of the control exercised upon the complainant, some going to possession and others to use, was ‘an artificial approach to criminality’.

Respecting his double jeopardy argument, counsel referred to the decision of this Court on the remitter of Wei Tang.[33] But he then submitted, in order to meet the Court’s observation that the decision was conceptually opposed to his argument, that Wei Tang was factually different.
[33]R v Wei Tang (2009) 23 VR 332, 336, [17].

Counsel for the Crown submitted that in Wei Tang it had never been doubted – in this Court or in the High Court – that an accused could properly be proceeded against on possession and use counts in respect of the same complainant. He submitted that it was not difficult to see the different focus of possession and use. The former looked to general control, the latter (in the present case) to the complainant being put to work in a brothel.[34] He distinguished between control over living conditions and control over the complainant’s body. The latter, he submitted, might be the more heinous – as the sentences passed on Wei Tang on remitter from the High Court exemplified. He accepted, nonetheless, that use is, or may be, an aspect of possession.
[34]We note that the meaning of ‘use’ was discussed by Eames JA in R v Wei Tang (2007) 16 VR 454, 472, [79]-[80].

We turn to ground 3. Counsel for Kam argued that there was no basis for his client receiving a heavier sentence on the use count than Leech. Particularly that was so in light of the judge’s findings about the extent of his role. It had been Leech who stipulated the arrangements at the inception of her dealings with the complainant.

Counsel for the Crown submitted that Kam could not have a justifiable sense of grievance with respect to the heavier sentence passed upon him on the use count. Kam’s role had been more extensive than his counsel acknowledged; and the judge had faced a particular problem in sentencing Leech on counts which factually overlapped. Issues of double punishment and totality had required resolution.

We have concluded that Leech’s appeal against sentence imposed on the use count should succeed, and that she should be sentenced to three years and six months’ imprisonment on that count. So Kam’s parity argument falls to be considered on the footing that he was sentenced to six years’ imprisonment on the use count, but that Leech faces a sentence of three years and six months’ imprisonment only.

The judge evidently assessed the overall criminality of Kam and Leech to be approximately equal. On that assumption, it was appropriate to structure Leech’s sentence, on two counts, to provide an overall sentence which was not discordant with the sentence passed on Kam. In those circumstances, we would not be persuaded that Kam should have a justifiable sense of grievance.

But we consider that it is necessary to depart from his Honour’s assessment. Although Leech could call several matters in mitigation which Kam could not, she was found guilty of two offences, and Kam only one. Moreover, the period of offending by Leech on the possession count – on which Kam was found not guilty - was longer than the period of the use offence of which both were found guilty. That is part of the reason why we have concluded that the sentence imposed on Leech in respect of the possession count should be confirmed, but that she should be sentenced to a lesser term on the use count. It is not the case, either, that Kam’s role in the use count was any greater than that of Leech.

In the event, we consider that Kam should have leave to appeal against sentence, that his appeal should be allowed, and that he should be re-sentenced. That does not mean that his sentence should be no more than Leech’s sentence on count 2. Considerations of totality intrude. Not because his sentence was manifestly excessive – we have concluded that it was not – but to address the question of parity, we would re-sentence Kam to four years and six months’ imprisonment. The judge confirmed the non-parole period as fixed at the first trial. We consider that a similar order should be made – although, of course, the length of the non-parole period will be different.

We would refuse the applications by Kam and Leech for leave to appeal against conviction. We would grant their applications for leave to appeal against sentence,[58] allow their appeals, and re-sentence them as we have proposed.

[58]In the case of Leech, to the extent described.

TATE JA:

I have had the benefit of reading the joint reasons of Buchanan and Ashley JJA, with which I agree.

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11 November 2011