R v Chai & Lim - [1998] QCA 187

[1998] QCA 187

COURT OF APPEAL

DAVIES JA
THOMAS J
LEE J

CA No 65 of 1998

THE QUEEN

KENG KEONG CHAI Applicant

and

CA No 76 of 1998

THE QUEEN

SIEW HONG LIM Applicant

BRISBANE

..DATE 28/05/98

JUDGMENT

THOMAS J: These are applications by a man, Keng Keong Chai, and his wife, Siew Hong Lim, for leave to appeal against sentences for drug importation.

Mr Chai was convicted of two counts; one, of importing prohibited goods, namely, heroin not less than the trafficable quantity and, two, knowingly being concerned in the importation of prohibited imports, namely, heroin not less than the trafficable quantity.

Ms Lim was convicted of one count of importation of a trafficable quantity of the drug. Mr Chai was sentenced to 15 years' imprisonment with a recommendation for consideration of parole after seven years. Ms Lim was sentenced to 12 years' imprisonment with recommendation for consideration of parole after six years.

The applicants normally reside in Malaysia. In April 1997 they went to Bangkok, stayed there for a week and flew to Brisbane arriving on 9 May. When searched each was found to be carrying heroin. The drug was contained in pellets concealed in the clothing of each and also internally. Mr Chai was carrying various small pellets packaged in a particular way which on analysis come to 337.909 grams of pure heroin whilst Ms Lim was in possession of 131.038 grams of the substance. The heroin internally carried was only able to be discovered by X-rays.

In Ms Lim's case 46 of the pellets were either in her bra or in a condom in her panties whilst a further 10 pellets were in a condom within her vagina. In Mr Chai's case there were 61 pellets either in his shoes or on his person and other pellets were within the stomach which were later passed and obtained whilst he was in hospital totalling, I think, 54 pellets.

The importing charges related to the drugs personally brought in by each applicant. The second charge against Mr Chai of being knowingly concerned in the importation of heroin related to the drug brought in by his wife. The total value of the heroin brought in by these applicants was between $1.4 million and $2.1 million.

During his interview with the police Mr Chai gave the name of a contact in Thailand but this was a very common name and was not able to effectively followed up by the authorities. Miss Lim pleaded not guilty to the charge brought against her but was convicted by a jury. She unsuccessfully raised the defence of marital coercion. It follows that she is not entitled to the benefit of a plea of guilty but her husband is entitled to some consideration for his plea of guilty. The applicants are married with four children.

Factors which have been mentioned in the present case are the apparent professionalism of the preparation of the drug into pellets; the relative sophistication of the venture;…

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 R v Chai & Lim

Details

AGLC: R v Chai & Lim [1998] QCA 187
Case: [1998] QCA 187
Decision Date: 28 May 1998

CaseChat Overview and Summary

The applicants in this case, Keng Keong Chai and Siew Hong Lim, sought leave to appeal against their sentences for drug importation. Mr Chai was convicted of two counts: importing prohibited goods, specifically heroin, and being knowingly concerned in the importation of prohibited goods. Ms Lim was convicted of importing a trafficable quantity of the drug. Mr Chai was sentenced to 15 years' imprisonment with a recommendation for parole consideration after seven years, while Ms Lim was sentenced to 12 years' imprisonment with a recommendation for parole consideration after six years. Both applicants were Malaysian residents who had travelled to Bangkok before flying to Brisbane, where they were found to be carrying heroin concealed in their clothing and internally. The heroin was in pellet form, with Mr Chai carrying 337.909 grams and Ms Lim carrying 131.038 grams. The applicants' appeal focused on the sentencing, particularly the weight given to Mr Chai's plea of guilty and the disparity between the sentences imposed on the couple.

The court had to decide whether the sentences imposed were appropriate, particularly in light of the plea of guilty entered by Mr Chai and the roles each applicant played in the drug importation. The male applicant argued that the sentencing judge did not adequately account for his plea of guilty, despite the overwhelming evidence against him. Ms Lim's counsel argued that her sentence was excessively high compared to her husband's, given that she played a lesser role in the importation and had a smaller quantity of drugs on her person. The court needed to assess whether the sentences were proportionate to the crimes committed and whether the sentencing judge correctly applied the principles of sentencing, especially regarding the plea of guilty and the roles of the applicants.

The court concluded that the sentence for Mr Chai was appropriate given the circumstances, despite the plea of guilty. The judge observed that while there was a slight reduction in the non-parole period, the sentence was not manifestly excessive. However, regarding Ms Lim, the court found that her sentence was too high. It noted that she was convicted on one charge, imported a smaller quantity of the drug, and played a more passive role in the importation. The court decided that a sentence of 10 years' imprisonment with a non-parole period of five years was more appropriate, reflecting the proportionality in sentencing between the two applicants. The court granted Ms Lim's application for leave to appeal and set aside her original sentence, substituting it with the new sentence.

Orders