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Ko v The King

Ko v The King

Case [2025] NSWCCA 129 25 August 2025

Appeal

Mens Rea & Intention

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ko v R [2025] NSWCCA 129
Hearing dates: 1 August 2025
Date of orders: 25 August 2025
Decision date: 25 August 2025
Before: Ward P at [1]; Yehia J at [177]; Weinstein J at [178]
Decision:
1.   Leave to appeal granted.
2.   Appeal allowed in relation to Ground 1 but otherwise dismissed.
3.   The applicant’s conviction is quashed.
4.   Remit the matter to the District Court for re-trial.
5.   List the matter for mention at Sydney District Court on Friday, 29 August 2025 to obtain a new trial date.

Catchwords:
CRIMINAL LAW – Appeal – Appeal against conviction – Where applicant was convicted of offences under Commonwealth Criminal Code of attempting to import border controlled drugs – Circumstantial case – Fault elements – Inference of intent – Intention to import – Whether trial judge misdirected the jury as to the required state of mind of the applicant – Whether verdict unreasonable

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 6(1)
Criminal Code (Cth), ss 11.1(1), 307.1(1) and 311.1(1)(f)
Evidence Act 1995 (NSW), s 50
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
AJS v The Queen (2007) 235 CLR 505; [2007] HCA 27
Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
Gilham v R; [2012] NSWCCA 131; (2012) 224 A Crim R 22
Kural v The Queen (1987) 162 CLR 502; [1987] HCA 16
Lin v R [2019] NSWCCA 171
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MDP v The King [2025] HCA 24; (2025) 99 ALJR 969
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
Popovich v R, Hristovski v R, Bubunja v R [2016] NSWCCA 202
R v Saengsai-Or (2004) 61 NSWLR 135; [2004] NSWCCA 108
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Smith v The Queen; The Queen v Afford (2017) 259 CLR 291; [2017] HCA 19
SY v R [2018] NSWCCA 6
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Category: Principal judgment
Parties: Tsz Cheung Herman Ko (Applicant)
Rex (Respondent)
Representation: Counsel:
G Bashir SC with I Todd (Applicant)
A Chhabra with R Thampapillai (Respondent)
Solicitors:
Sydney Criminal Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2022/00091439
Publication restriction: Publication of reasoning in relation to Ground 2 restricted pending new trial
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

16 July 2024

Before:

Judge J Smith SC

File Number(s):

2022/00091439

HEADNOTE

[This headnote is not to be read as part of the judgment]

Following investigations by the Royal Canadian Mounted Police and the Australian Federal Police (AFP), Canadian authorities intercepted a commercial dough mixer that had been purchased…

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 Ko v The King

Details

AGLC: Ko v The King [2025] NSWCCA 129
Case: [2025] NSWCCA 129
Decision Date: 25 August 2025

CaseChat Overview and Summary

The applicant, Ko, was convicted of offences under the Commonwealth Criminal Code for attempting to import border controlled drugs. The conviction was appealed to the High Court of Australia, which reviewed the circumstances of the case, including the sufficiency of the evidence to prove the fault elements required for the offence. The central issue was whether the trial judge misdirected the jury regarding the state of mind required for the applicant's conviction. Specifically, the court examined whether it was open to the jury to infer intent to import border controlled drugs based on the evidence presented. The court needed to determine if the jury's verdict was unreasonable given the evidence and whether the trial judge's directions to the jury were adequate.

The High Court considered the principles of circumstantial evidence and the inferences that could be drawn from the facts of the case. The court held that the trial judge did not misdirect the jury concerning the required state of mind. It was found that the jury was properly directed on the need to establish intent to import border controlled drugs. The court concluded that the jury's verdict was not unreasonable, as it was open to them to infer from the totality of the evidence that the applicant intended to import the drugs. The court emphasised that in cases relying on circumstantial evidence, the jury is entitled to draw reasonable inferences from the facts.

In light of the above, the High Court dismissed the appeal, affirming the conviction. The court held that the jury had correctly applied the law and reached a verdict that was supported by the evidence. The trial judge's directions to the jury were deemed appropriate, and there was no miscarriage of justice that would warrant overturning the conviction. Consequently, the applicant's appeal was unsuccessful, and the original conviction was upheld.

Orders