KA Ming Chong v The Queen
[2022] VSCA 156
•5 August 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0194 |
| KA MING CHONG | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | MACAULAY JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 5 August 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 156 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1933 (Judge Hogan) |
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Application for leave to appeal sentence – Kidnapping – Applicant sentenced to 7 years 6 months’ imprisonment for that offence – Co-offender sentenced to 1 year 6 months’ imprisonment for same offence – Applicant was architect of the offending – Co-offender lured victim for financial reward – Whether judge erred in applying principle of parity – Whether judge erred in cumulating the sentence imposed for an unrelated summary offence upon the sentence for the kidnapping offence – Whether denial of procedural fairness − Leave to appeal granted on grounds 1 and 3, refused on ground 2.
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| Counsel | |||
| Applicant: | Mr G Hughan | ||
| Respondent: | Mr G Buchhorn | ||
Solicitors | |||
| Applicant: | Tao Jiang Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
MACAULAY JA:
The applicant pleaded guilty in the County Court to one charge of kidnapping (charge 1),[1] together with a summary charge of possession of an imitation firearm without exemption or approval.[2] On 2 December 2021 he was sentenced by a judge to imprisonment for 7 years and 6 months on the kidnapping offence and for 2 months on the imitation firearm offence, with the whole of the latter sentence to be served cumulatively upon the former. In the result, he was sentenced to a total effective sentence of 7 years and 8 months’ imprisonment with a non-parole period of 5 years and 6 months.
[1]Contrary to s 63A of the Crimes Act 1958, carrying a maximum penalty of 25 years’ imprisonment.
[2]Contrary to s 5AB of the Control of Weapons Act 1990, carrying a maximum penalty of 240 penalty units or 2 years’ imprisonment. The applicant consented to the summary charge being determined in the County Court.
His co-offender in respect of the kidnapping charge, Weiting Lu, who also pleaded guilty, was sentenced by the same judge on 18 August 2021 to 1 year and 6 months’ imprisonment with a non-parole period of 9 months. Ms Lu faced no other charges.
The applicant seeks leave to appeal his sentence on three grounds:
(a)Ground 1: The sentencing judge erred in law imposing a sentence on charge 1 in breach of the principles of parity because the sentence gives rise to a justifiable sense of grievance when compared with the sentence imposed upon the applicant’s co-accused for the same offence.
(b)Ground 2: The sentencing judge erred in law by directing that the sentence imposed on the summary charge (possession of an imitation firearm) be served cumulatively on the sentence imposed on charge 1.
(c)Ground 3: The sentencing judge denied procedural fairness to the applicant, by taking into account adversely to the applicant that at the committal proceedings the complainant ‘… was also gratuitously cross-examined about his visa status here in Australia’, without giving the applicant notice that her Honour would do so.
For the reasons that follow, the applicant shall be granted leave to appeal his sentence on grounds 1 and 3 but leave shall be refused on ground 2.
Factual circumstances
The offending occurred between May and June 2020. At that time, the applicant was aged 29 years. While operating a newly commenced business importing and exporting goods, he sought to illegally import a consignment of cigarettes with a street value of $500,000. The package that was expected to contain the cigarettes was delivered to the applicant on 23 April 2020 by truck driver Yu-wen Chen, a subcontractor for AGL Logistics. The package did not contain the cigarettes and the applicant suspected Chen to be responsible for the missing shipment. Chong determined to kidnap Chen in order to find out what occurred to the cigarettes.
In her reasons for sentencing the applicant, the judge explained what happened next:[3]
You knew your co-accused, [Lu], as she was a receptionist at an online escort agency which was regularly used by you. You used to chat with her via WeChat and you became aware that she apparently needed some furniture moved. In a series of messages over a period of approximately one week prior to the offending on 24 May 2020, you asked her to contact the victim [ie Chen] to ask if he would move a bedframe for her. You gave her the victim’s WeChat account and she contacted him with a request using the name of “Cindy”. Amongst the messages between yourself and Lu was one on 18 May 2020, where you indicated that two teams of people were interested in this job, one being “blacks” and other “Arabs”. You told Lu this was necessary “[b]ecause need to capture and kidnap him for a few days until he confesses who is the instructor. Quite brutal”. Thereafter, Lu built up a relationship of trust with the victim via a series of messages and ensured that he would be alone when he came to move the bedframe on Sunday, 24 May 2020, for which he was to charge $120. He was to use his employer’s truck and had the permission of his employer to undertake this job privately outside his normal employment. You asked Lu to confirm the victim’s car registration and to ensure the bedframe was downstairs when he arrived to collect it.
On 24 May 2020 at 12.45pm, the victim arrived at the address appointed by Lu, 60 A’Beckett Street, Melbourne. After the bedframe was loaded onto his truck, via WeChat, she sent to him a delivery address supplied by you, namely, 4 Weemala Court, Meadow Heights.
The victim drove to the delivery address, where he arrived at about 1.45pm. CCTV footage shows that you had arrived nearby in a black BMW and had stood on the footpath about 15 metres from Weemala Court, smoking cigarettes. After the victim delivered the bedframe, he returned to the back of his truck. A Toyota vehicle had parked directly behind him. This vehicle contained three men who had been hired by you. The three men approached the victim. One had a baseball bat, with which he struck the victim, who raised his arm to protect his head. Shortly thereafter, he fell to the ground and covered his head with his hands as he was punched, kicked and hit with the bat. He estimates that, overall, he was struck twenty to thirty times by the three assailants, mostly to his upper body, arms and head. When the victim initially resisted, he was hit with more force, so he gave up protecting himself. He was very dizzy and thought he was going to die. The three men then grabbed him by the arms and legs and put him into the back of the truck, where his hands were bound together with white plastic cable ties, as were his ankles. The victim asked why they were doing this to him and one of the men told him to “[s]hut up, you will meet someone later”. He was then left alone in the back of the truck, which drove off from the delivery address. You left the area in a black BMW shortly after the victim was put into the rear of the truck.
Inside the rear of the truck, the victim noticed that the Toyota vehicle was following the truck. He ultimately managed to loosen the cable ties which bound his hands together, but noticed that fingers on his left hand were broken because they were out of place. He pulled the tie off, which hurt a great deal. He then managed to take off his boots and slipped his feet out of the cable ties which bound his feet together and put his boots back on. He lay down and looked through a gap in the truck door and, when he was sure that the truck was on a main road, he squeezed his body through a gap in the door and jumped out of the truck. The Toyota vehicle behind was tooting the car horn.
The victim managed to flag down some assistance and was taken by ambulance to the Royal Melbourne Hospital. There, he was found to have suffered the following injuries: a fractured elbow, a displaced fracture of two fingers, defensive wounds to the back of the left forearm, bruising to the head and arms, and swelling and pain to the spinal region.
After the victim had escaped, at about 3:00pm that same afternoon you met with Lu and gave her $500, which Lu understood to be payment for her bedframe.
[3]DPP v Ka Ming Chong [2021] VCC 1933, [4]–[9].
On 2 June 2020 police executed a search warrant at each of Lu’s and the applicant’s premises, discovering at the applicant’s premises the imitation firearm which was the subject of the summary offence. At Lu’s premises the police unearthed the content of the WeChat messages passing between the applicant and Lu between 16 May and 24 May concerning arrangements to lure Chen to a place from which he could be kidnapped, a portion of which is described above.
The applicant was arrested and charged with kidnapping on 2 June 2020 and remained on remand until he was sentenced on 2 December 2021. He contested a committal hearing held on 24 June 2021 and was committed to stand trial. He pleaded guilty to the kidnapping charge on 23 July 2021 after learning (as described below) that Lu had indicated a willingness to cooperate with police by making a statement against him.
Lu was arrested and charged with kidnapping on 3 June 2020 but released on bail on 12 June 2021. She remained on bail until she was sentenced on 18 August 2021. The charge against her proceeded by way of straight hand-up brief, without committal, and Lu pleaded guilty on arraignment on 18 June 2021 after a sentence indication hearing. On 5 July 2021 her plea hearing was adjourned after she indicated a willingness to provide a statement in relation to the applicant’s involvement. Lu made two statements to police on 19 July 2021 which were tendered at her plea hearing on 4 August 2021.
Lu’s sentence
In sentencing Lu to a term of imprisonment, the judge found facts as briefly summarised below:
(a)from his description of the event, his injuries and their effect upon him, Chen suffered ‘terrible consequences’ which Lu’s ‘deception … enabled’;
(b)although only 22 at the time of offending, Lu was well educated, intelligent, earning good money, and well supported by her family and a partner, but in spite of those circumstances was ‘callously prepared to put in jeopardy the welfare of the victim’ for her own financial betterment;
(c)Lu’s involvement was not the product of naivete as submitted by counsel but was motivated by financial reward of three types: additional commissions should Chong be encouraged to make further bookings at the escort agency, the promise of $10,000 from Chong for Lu luring Chen into his hands (after Lu had requested money for doing so), and the prospect of employment with Chong in his business;
(d)Lu was told by Chong that he intended to hire a ‘team’ to kidnap Chen, that they would hold him until he confessed and it would be ‘quite brutal’, following which Lu was proactive in dealing with Chen to ensure he would be alone delivering the bedframe and enthusiastically wished Chong to be successful in recovering what belonged to him;
(e)Lu played a ‘crucial role’ in enticing Chen to be dealt with by Chong, and had no apparent ‘moral qualms’ in doing so despite the number of days she had to consider the matter; and that
(f)Lu’s role could not be ‘characterised as a peripheral one’ as she was ‘the crucial line of communication’ with the victim and ‘clearly concerned to know what was in it for [her]’; her ‘role was an active and important one in [the] planned serious offending and [her] moral culpability was high’.
By way of mitigatory factors, the judge took into account that Lu:
•had no prior criminal history;
•had pleaded guilty with it being ‘possible’ that she had ‘some remorse’, although from what she told the psychologist who prepared a report on her for sentencing she did not appear to have ‘great insight’ into her actions;
•had made a statement to the police indicating a willingness to assist the prosecution of Chong,[4] although doing so was prompted by a desire to assist herself and, given what the police already knew, the value of her assistance was ‘less than moderate’;
•was likely to be deported (being only on a student visa), a matter to be taken into account; and
•had ‘fairly good’ prospects of rehabilitation given her youth, education, level of support and lack of prior convictions.
[4]In conformity with s 5(2AB) of the Sentencing Act1991 the judge caused to be recorded that the court imposed a less severe sentence because of the assistance. See, for example, R v Su [1997] 1 VR 1, 77.
The judge rejected a submission by Lu’s counsel that a Community Corrections Order (CCO) was appropriate and said she was ‘puzzled’ by the prosecutor’s concession that a combination sentence of 1 year imprisonment and a CCO was within range. Her Honour considered that only a head sentence and a non-parole period was appropriate.
The applicant’s sentence
In sentencing the applicant for the kidnapping offence, the judge considered that a number of matters contributed to the gravity of his offending. These included the very serious adverse impact of the offending upon Chen; that the offending demonstrated a serious lack of morality and fundamental sense of decency in respect for another human being, all for the purpose of financial gain; the brutality of the assault; the applicant’s role as the instigator; and that this was a serious example of the offence of kidnapping.
On the other hand, the judge took into account a number of matters by way of mitigation, including that the applicant:
•was then 30 years of age with only limited prior criminal history;
•had a childhood background that featured psychological abuse from his mother, an early pattern of abuse of alcohol and the subsequent use of methylamphetamine;
•was diagnosed with an Adjustment Disorder with depressed mood which, whilst not having a nexus to his offending, were nonetheless to be taken into account as part of his personal circumstances in a general way;
•would find prison to be more onerous than would a person without his particular psychological problems and that there was potential for his mental health to deteriorate because of his custody;
•performed certain voluntary work for the State Emergency Service revealing ‘some decent character traits’;
•pleaded guilty at a time of the restrictions occasioned by the COVID-19 pandemic; and
•faced mandatory cancellation of his visa, meaning that he would likely experience a greater burden of imprisonment due to his prospects of deportation and was likely to lose the opportunity of settling permanently in Australia.
The judge considered the application of the principle of parity in light of the sentence previously imposed on Lu for the kidnapping offence. Her Honour referred to the particular importance of comparing the role of each co-offender noting that, generally speaking, a person who was the architect of an offence would bear heavier moral culpability than a co-offender who did not conceive the plan. Her Honour rehearsed some of the features of Lu’s role and her culpability in the offending, specifically stating that Lu was the ‘crucial line of communication’ and was motivated by financial incentives to perform her role.
Nevertheless the judge considered that there was ‘a very large disparity’ in the roles played by the applicant and Lu, referring particularly to five differences, namely:
•The differences in their age (28 and 22) and station in life;
•The applicant devised the plan (including recruiting a ‘team’ of people to capture Chen), knew that what would take place would be ‘quite brutal’ and stood by ‘like a coward’ while the capturing and beating of Chen took place, whereas Lu (although callously indifferent) neither knew nor had any interest in the victim, such that the applicant bore ‘very markedly more serious moral culpability’ than Lu;
•The applicant’s net profit was ‘likely’ to be very much in excess of Lu’s expected fee of $10,000;
•The applicant ran a contested committal which included Chen being ‘gratuitously cross-examined about his visa status here in Australia’; and
•Lu pleaded guilty sooner than Chong, and her offer to provide assistance to the law enforcement authorities was an ‘important distinction’ between her situation and the applicant’s.
As far as the imitation firearm was concerned, the judge noted that the item had the appearance of a real firearm that ‘could have a menacing impact’ and, further, that there was no evidence it had been used in connection with the kidnapping. Being ‘discrete offences’ the judge saw no reason for imposing a sentence for the imitation firearm offence that was not cumulative upon the sentence for the kidnapping.
Proposed grounds of appeal
Proposed ground 1
Concerning parity, the applicant submitted that the brief recitation of the offending in her Honour’s reasons for sentencing the applicant effectively elided Lu’s crucial role in the offence. Some of the matters listed by the judge as differentiating the roles between the applicant and Lu, the applicant submitted, did not go to role at all. The applicant pointed out that the sentence imposed on him was five times the sentence imposed on Lu for the same offence and his non-parole period was 7.33 times the non-parole period set for Lu. The differences in sentence and non-parole period, the applicant submitted, were far too great and failed to reflect the features in common between the applicant and Lu.
Notwithstanding the assistance given by Lu to the police, her youth and good rehabilitation prospects, and her lesser role in the offending compared with the applicant’s role, in my view it is reasonably arguable that the disparity between the two sentences for the same offence would engender a justifiable sense of grievance having regard to the respective culpabilities and personal circumstances of Lu and the applicant.
Further, as I explain below, I think that ground 3 (which I consider to be reasonably arguable) is related to and potentially supports ground 1.
I conclude that proposed ground 1 is reasonably arguable.
Proposed ground 3
Turning next to proposed ground 3, concerning the cross examination of Chen at the committal proceeding, it appears that the judge’s finding that the applicant ‘gratuitously cross-examined [Chen] about his visa status’ at the committal informed her view that the applicant’s conduct of the committal exacerbated his overall culpability and, in turn, contributed to the ‘very large disparity’ between his role and that of Lu. In this respect, proposed ground 3 and proposed ground 1 are related.
The applicant submitted that the questions asked of Chen on this topic at the committal were brief, had a legitimate forensic purpose and were asked in a polite manner. He pointed out that no objection was taken to those questions at the committal. Moreover, although the conduct of a contested committal per se was the subject of discussion on the plea, no attention was paid to the specific questions asked about Chen’s visa status, their relevance or whether or not they may be characterised as ‘gratuitous’. He submitted that, in the circumstances, he was denied procedural fairness in not being afforded the opportunity to address the court on a matter which, it appears, the judge took into account adversely to him.
I also think that this ground is reasonably arguable.
Proposed ground 2
As for the remaining proposed ground — the complaint about the cumulation of the sentence imposed for possessing the imitation firearm upon the sentence for kidnapping — in my opinion it lacks substance.
While s 16(1) of the Sentencing Act 1991 establishes a prima facie rule in favour of concurrency, this rule is not inviolable, and the sentencing judge is conferred the ‘widest judicial discretion’[5] when considering whether cumulation should be ‘otherwise directed’. As pointed out by the judge, there was no evidence that the imitation firearm had anything to do with the kidnapping. The judge also considered that it had a particularly realistic and menacing appearance. The event of kidnapping and the possession of the imitation firearm did not involve a single incident but, rather, represented two separate events each with their own distinct aspects of criminality.
[5]R v Mantini [1998] 3 VR 340, 348.
Cumulation ensures that the distinct criminality of each offence is recognised. Its application avoids the appearance that an offender may commit a series of separate crimes with effective impunity should all the sentences for a series of unconnected offences be served concurrently.[6] At the same time, the totality principle requires that the aggregation of sentences imposed for each offence is a just and appropriate measure of the total criminality involved[7] and avoids a crushing sentence.[8]
[6]DPP v Grabovac [1998] 1 VR 664, 676.
[7]Postiglione v The Queen (1997) 189 CLR 295, 307–8; Mills v The Queen (1988) 166 CLR 59, 62–3.
[8]DPP v Alsop [2010] VSCA 325, [30].
Here, it was open to the judge to regard the criminality involved in the firearm offence as being entirely separate from the kidnapping offending and that, in order to reflect the total criminality of both offences, the two sentences should be served cumulatively. Although expressed in a somewhat compendious form, it is clear enough that is what the judge decided. Standing back, it is not reasonably arguable that the order for cumulation produced a disproportionate total effective sentence relative to the total criminality involved in both sets of offending or rendered the head sentence ‘crushing’.
Leave to appeal on proposed ground 2 must be refused.
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