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Ho v The Queen

Ho v The Queen

Case [2011] VSCA 344 11 November 2011

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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) [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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ho v The Queen

Details

AGLC: Ho v The Queen; Leech v The Queen [2011] VSCA 344
Case: [2011] VSCA 344
Decision Date: 11 November 2011

CaseChat Overview and Summary

The case of Ho v The Queen involved an appeal against both convictions and sentences in two trials, concerning offences under the Criminal Code and the Financial Transactions Reports Act. The appellants were convicted of possessing a slave and related offences, and the central issues revolved around the adequacy of the trial judge's directions to the jury, the sufficiency of the evidence to support the convictions, and the appropriateness of the sentences imposed.

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