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 |
- - -
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) | |
- - -
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.
---
| 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…
Continue reading Ho v The Queen
Sign in free to access the full text
- AGLC
- Ho v The Queen; Leech v The Queen [2011] VSCA 344
- Case
- [2011] VSCA 344
- Decision Date
CaseChat Overview and Summary
The legal issues the court was required to decide included whether the trial judge had failed to adequately direct the jury as to the meaning of the term 'possession' and the elements of slavery, whether the judge had improperly put the defence case to the jury, and whether the verdicts were unsafe and unsatisfactory. The court also had to consider whether there was an aggregation of errors that warranted a new trial. The appellants argued that the judge’s directions to the jury were incorrect, that the evidence did not support the conclusions of slavery, and that the verdicts were therefore flawed.
The court found that while there were some errors in the directions given to the jury, these did not cumulatively lead to unsafe and unsatisfactory verdicts. The evidence provided was deemed sufficient to support the jury's conclusions, and thus the applications for a new trial were refused. However, regarding the sentences, the court found them to be manifestly excessive and not in line with the parity principle. Additionally, the delay in proceedings and the overlap between counts warranted reconsideration. Consequently, leave to appeal was granted, the appeals were allowed, and the appellants were re-sentenced.
The final orders of the court included the refusal of applications for a new trial on the grounds of the adequacy of the jury directions and the sufficiency of the evidence. However, the sentences were reviewed, and the appellants were re-sentenced following the appeal, reflecting a reduction in the severity of the punishment due to the factors of manifest excess, delay, and overlap between counts.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.