KA Ming Chong v The Queen - [2022] VSCA 156

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:…

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 KA Ming Chong v The Queen

Details

AGLC: KA Ming Chong v The Queen [2022] VSCA 156
Case: [2022] VSCA 156
Decision Date: 5 August 2022

CaseChat Overview and Summary

KA Ming Chong was the applicant in an application for leave to appeal his sentence against the respondent, the Crown. Chong was convicted of kidnapping and sentenced to a total of 7 years and 6 months’ imprisonment, whereas his co-offender received a sentence of 1 year and 6 months’ imprisonment for the same offence. Chong was found to be the mastermind of the offending, with the co-offender acting under Chong's direction. The co-offender had lured the victim to the location where the kidnapping took place in return for a financial reward. Chong appealed against the sentence imposed by the sentencing judge, raising three grounds for leave to appeal.

The first ground of appeal was that the sentencing judge had erred in applying the principle of parity in sentencing Chong to a significantly higher term of imprisonment than his co-offender. The second ground of appeal was that the sentencing judge had erred in cumulating the sentence imposed for an unrelated summary offence upon the sentence for the kidnapping offence. The third ground of appeal was that the denial of procedural fairness by the sentencing judge amounted to a miscarriage of justice. The court was required to determine whether the applicant had made out a case that was sufficiently compelling to merit the grant of leave to appeal on each of the three grounds.

The court found that the applicant had made out a case that was sufficiently compelling to merit the grant of leave to appeal on the first and third grounds. The court found that the sentencing judge had failed to properly apply the principle of parity in sentencing Chong to a significantly higher term of imprisonment than his co-offender, who had acted under Chong's direction. The court found that the sentencing judge had failed to adequately consider the mitigating factors that were relevant to Chong's offending, and had placed undue emphasis on the principle of parity. The court found that the denial of procedural fairness by the sentencing judge amounted to a miscarriage of justice, as Chong had not been given an adequate opportunity to respond to the allegations against him. The court found that the second ground of appeal was not sufficiently compelling, as the cumulation of the sentence for the unrelated summary offence was a matter within the discretion of the sentencing judge.

The court granted leave to appeal on the first and third grounds, and refused leave to appeal on the second ground. The case will now proceed to a full appeal hearing, where the applicant will have the opportunity to argue his case in more detail. The court's decision highlights the importance of proper application of the principle of parity in sentencing, and the need for adequate procedural fairness in criminal proceedings.

Orders