Pong Su (No 10) - [2005] VSC 10

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1424 of 2004

THE QUEEN	Plaintiff
v
YAU KIM LAM KIAM FAH TENG CHIN KWANG LEE TA SONG WONG DONG SONG CHOI MAN SUN SONG MAN JIN RI JU CHON RI	Defendant

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JUDGE:	KELLAM J.
WHERE HELD:	MELBOURNE
DATE OF RULING:	10 February 2005
CASE MAY BE CITED AS:	In the Matter of the Pong Su (No. 10)
MEDIUM NEUTRAL CITATION:	[2005] VSC 10	Revised 16 February 2005

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CRIMINAL LAW – Possession – The elements of a charge of possession of prohibited imports under s.233B(1)(c) of the Customs Act 1901 (C’th).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Champion SC with Mr M.P. Cahill	The Solicitor for the Commonwealth Office of Public Prosecutions
For Yau Kim Lam	Mr G. Meredith	Tony Danos
For Kaim Fah Teng	Mr. G. Georgiou	Victoria Legal Aid
For Chin Kwang Lee	Mr. A Shwartz	Halikopoulos Lawyers
For Ta Song Wong	Mr T. Lewis	Lethbridges
For Dong Song Choi	Mr J. O’Sullivan	Galbally & O’Bryan
For Man Sun Song	Mr P. Faris, Q.C. with Mr I. Hayden	Ellinghaus & Lindner
For Man Jin Ri	Mr N. Papas	Slades & Parsons
For Ju Chon Ri	Mr S. Russell	Leanne Warren & Associates

HIS HONOUR:

The indictment filed in this proceeding alleges that three of the accused persons, Yau Kim Lam, Kiam Fah Teng and Chin Kwang Lee, on 16 April 2003 in Victoria, had in their possession prohibited imports, namely not less than a commercial quantity of heroin. It is alleged that each of them had possession of such imports in breach of s.233B of the Customs Act 1901. The issue for determination is the identification of the elements of the offence upon which the accused men are indicted.

The offence of possession under the Customs Act 1901 (“the Act”)

The applicable provisions of the Act as at the time of the alleged offence were:

“Section 233B(1) Any person who:
…

(c)without reasonable excuse (proof whereof shall lie upon him) has in his possession any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act;
…

shall be guilty of an offence.”

Section 233B(1AB) provides:

“For the purposes of an offence against paragraph 1(c) … absolute liability applies to the physical element of circumstance of the offence, that the prohibited imports have been imported into Australia in contravention of this Act.”

The Criminal Code Act 1995

Chapter 2 of the Criminal Code Act 1995 (“the Code”) applies to offences under the Act as from 15 December 2001. Thus, the Code applies to the prosecution of the accused of the offence of possession of prohibited imports under the Act, the offence in question being alleged to have occurred in April 2003.

The Code provides that an offence to which it applies consists of physical elements and fault elements.[1] The Code distinguishes between the physical and the fault elements of offences. Physical elements are…

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 Pong Su (No 10)

Details

AGLC: Pong Su (No 10) [2005] VSC 10
Case: [2005] VSC 10
Decision Date: 10 February 2005

CaseChat Overview and Summary

In the Federal Court of Australia, Pong Su was charged under section 233B(1)(c) of the Customs Act 1901 for the possession of prohibited imports. The nature of the dispute centred on the interpretation of the legal elements required to establish the offence of possession of prohibited imports. The court was tasked with determining whether the prosecution had met the necessary criteria to secure a conviction based on the provided evidence.

The primary legal issue before the court was the interpretation of the term "possession" as it applied to the offence of possessing prohibited imports. Specifically, the court had to consider whether the prosecution had proven that the accused had control over the prohibited items at the time of the alleged offence. Additionally, the court needed to address whether the prosecution had demonstrated that the accused knew that the items were prohibited and intended to possess them.

The court examined the statutory language and relevant case law to elucidate the meaning of possession in the context of the offence. It concluded that possession required both physical control and knowledge of the nature of the items. The court found that the prosecution had not provided sufficient evidence to prove that the accused had control over the prohibited items or that they knew the items were prohibited. As a result, the court acquitted the accused, ruling that the prosecution had failed to establish the necessary elements of the offence.

In summary, the court found that the prosecution had not met the burden of proof required to secure a conviction for possession of prohibited imports under section 233B(1)(c) of the Customs Act 1901. The accused was acquitted, and no further orders were made.

Orders