Keung, Bow, Liu v The Queen - [2008] NSWCCA 193

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Keung, Bow, Liu v The Queen [2008] NSWCCA 193

FILE NUMBER(S):
2007/2781

HEARING DATE(S):
27 May 2008

JUDGMENT DATE:
21 August 2008

PARTIES:
Wing Kwai Keung - Appellant
Wai Kwan Bow - Appellant
Miller Liu - Appellant
Crown - Respondent

JUDGMENT OF:
Giles JA Johnson J Hall J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 05/11/0312

LOWER COURT JUDICIAL OFFICER:
Shadbolt DCJ

LOWER COURT DATE OF DECISION:
2 February 2007 (Sentence)

COUNSEL:
P Boulten SC - Appellant Keung
A Francis - Appellant Liu
S Odgers - Appellant Bow
C O'Donnell - Respondent Crown

SOLICITORS:
Hardin Law - Appellant Keung
Greg Goold - Appellant Bow
Catherine Hunter - Appellant Liu
Commonwealth Director of Public Prosecutions - Respondent Crown

CATCHWORDS:
Drug importation - charge of conspiracy to import - prohibited import "namely ... [MDMA] ... not less than the commercial quantity" - whether prosecution had to prove agreement or intention to import not less than the commercial quantity - or the particular quantity imported - quantity not a necessary ingredient in offence of importation - on construction of s 11.5 Criminal Code, not made ingredient of conspiracy offence - consideration of leave under r 4 Criminal Appeal Rules - jury not erroneously directed to "put aside" certain evidence - conviction appeals dismissed.

LEGISLATION CITED:

CATEGORY:
Principal judgment

CASES CITED:
Ansari v The Queen [2007] NSWCCA 204; (2007) 73 A Crim R 112;
Baladjam v R [2008] NSWCCA 85;
Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248;
Germakian v R [2007] NSWCCA 373;
Kingswell v The Queen (1985) 159 CLR 264;
The Queen v Meaton (1986) 160 CLR 395;
R v Button and Griffen [2002] NSWCCA 159; (2002) 129 A Crim R 242;
R v Tripodina (1988) 35 A Crim R 183.

TEXTS CITED:

DECISION:
Appeals against conviction dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/2781
DC 05/11/0312
GILES JA
JOHNSON J
HALL J
Thursday 21 August 2008

Wing Kwai KEUNG v THE QUEEN
Wai Kwan BOW v THE QUEEN
Miller LIU v THE QUEEN

Judgment

GILES JA: A ship left Rotterdam on 9 May 2004 and arrived in Sydney on 2 June 2004. A shipping container, according to the shipping documents carrying cases of foodstuffs consigned to three businesses in Sydney, was unloaded. On 18 June 2004 Customs and Police officers opened the container, which contained a large number of boxes packed on separate pallets. Thirty seven of the boxes on one of the pallets were found to contain sixty compressed blocks of MDMA powder, individually wrapped in plastic and concealed between layers of wonton pastry. The blocks weighed 342 kilograms and the pure MDMA in them weighed 234.92 kilograms. The powder was sufficient to make over one million ecstasy pills.
The appellants Keung, Bow and Liu were jointly charged that -
“Between 1 February 2004 and 20 June 2004 at Sydney, in the State of…

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.

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Details

Case: [2008] NSWCCA 193
Decision Date: 21 August 2008

CaseChat Overview and Summary

Keung, Bow and Liu appealed against their convictions for conspiracy to import MDMA, arguing that the prosecution had failed to prove the quantity of the drugs imported. The appeal was heard in the High Court of Australia. The primary legal issue was whether the prosecution needed to prove an agreement or intention to import a specific quantity of drugs, or whether the quantity was not a necessary ingredient in the offence of importation. The court considered the construction of section 11.5 of the Criminal Code and whether the quantity was made an ingredient of the conspiracy offence. The court also examined the directions given to the jury regarding the use of recorded conversations, which the appellants claimed were erroneously directed to "put aside" certain evidence.

The High Court held that the prosecution did not need to prove the quantity of drugs imported as a necessary ingredient of the offence. The court found that the prosecution only needed to prove an agreement or intention to import a prohibited drug, and that the quantity was not an essential element of the offence. The court also found that the trial judge's direction to the jury regarding the use of recorded conversations was not erroneous. The court held that the jury was properly directed to consider the evidence as a whole, including any transcripts of recorded conversations that they could understand, and to "put aside" any transcripts that they could not understand. The court found that the jury was not precluded from considering any evidence, and that the direction did not result in a miscarriage of justice.

The appeal was dismissed, and the convictions were upheld. The court held that the prosecution had proved beyond reasonable doubt that the appellants conspired to import a commercial quantity of MDMA, and that the quantity was not a necessary ingredient in the offence. The court also found that the trial judge's direction to the jury regarding the use of recorded conversations was not erroneous, and that the jury was properly directed to consider the evidence as a whole. The convictions of the appellants were therefore affirmed.

Orders

Orders of the court

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Background

Background to the litigation

Keung and Bow appealed on the ground, which I will call ground C -C.“His Honour erred by directing the jury that they must ‘put to one side’ any transcripts of recorded conversations to which they could ascribe no meaning.’Background A description of the Crown and defence cases sufficient for present purposes is as follows. On the Crown case, in February 2004 Keung spoke from England with one Peter Chen about sale to him of MDMA in tablet form. He thereafter discussed with Chen arrangements for dummy consignees and safe premises to which the shipment could be taken upon arrival in Australia. By May 2004 Keung had returned to Australia. He spoke to Bow about Bow coming to Australia and assisted Bow to get a visa on a false basis, Bow’s role being to pick up the MDMA and take it to the safe premises. Bow arrived in Australia on 4 June 2004, and Keung telephoned and met him and discussed the shipment over the following weeks. Liu came to Australia on 9 June 2004, bringing components of a pill press represented to Customs officers as parts of a meat mincing machine, and discussed with Bow picking up and processing the MDMA. Bow became suspicious that he was being followed, which led to Keung arranging for him to leave Australia promptly; Liu took him to the airport. Keung also attempted to leave Australia. The appellants were arrested before that occurred, and before the boxes in the container were picked up. The Crown case relied in part on recorded telephone intercepts of conversations from February 2004, particularly between Keung, Bow and Liu shortly before and in June 2004. The conversations were mostly in Cantonese, and on the Crown case the participants used code words and phrases such as referring to MDMA as “candy” or “lollies”, to the safe premises as “the delivery room” and the shipment of MDMA as “the pregnant woman”, to the pill press as “scrap brass” or “the bundle of scrap” and to pill pressing as “hammering”. The appellants all gave evidence. Keung said that he came to Australia in connection with a false credit cards scheme, and that Bow told him that he (Bow) had been asked by someone else to pick up a shipment of credit card materials for that enterprise. He said that his discussions about lollies and candy were to do with a shipment of Cialis tablets he was trying to sell to Chen, and that other discussions were to do with smuggling antique pictures and birds nests for soup. Bow said that he was asked by a person he declined to name to come to Australia to do false credit cards work, and that Keung told him about a shipment of credit card blanks to be picked up. Liu said that he came to Australia to help Bow do false credit cards work, and was carrying the parts of the pill press en route to America as a favour for a friend not knowing that they were parts of a pill press. It is difficult accurately to summarise the appellants’ explanations, but as a general proposition they attributed their activities and conversations to pursuits other than importation of the MDMA and said that they had nothing to do with it.Ground A

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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