R v Choi (Pong Su) (No 12) - [2005] VSC 32

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1424 of 2004

THE QUEEN

YAU KIM LAM
CHIN KWANG LEE
TA SONG WONG
DONG SONG CHOI
MAN SUN SONG
MAN JIN RI
JU CHON RI

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JUDGE:	KELLAM J.
WHERE HELD:	MELBOURNE
DATE OF RULING:	21 February 2005
CASE MAY BE CITED AS:	In the Matter of the Pong Su (Ruling No. 12)
MEDIUM NEUTRAL CITATION:	[2005] VSC 32

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CRIMINAL LAW - Complicity – Aiding, abetting, counselling or procuring the importation of a prohibited import being a commercial quantity of narcotic – The elements of the offence – Whether it is sufficient to prove recklessness on the part of the accused as to whether the other person commits the offence of importation – Customs Act s.233B(1) – Criminal Code Act 1995 s.11.2

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

HIS HONOUR:

Ta Song Wong is indicted with the offence of importing a commercial quantity of heroin into Australia in breach of s.233B(1)(b) of the Customs Act 1901 (C’th). Each of the other accused persons is charged with aiding, abetting, counselling or procuring the commission of the offence of importing heroin into Australia.

The Criminal Code Act 1995 (“the Code”) applies to the offences upon which the accused persons are indicted.

By Part 2.4 of the Code, under the heading “Extensions of Criminal Responsibility” the Code makes provision for “complicity and common purpose” in the following terms:

“11.2 Complicity and Common Purpose
(1)A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.
(2)For the person to be guilty:
(a)the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and
(b)the offence must have been committed by the other person.

(3)For the person to be guilty, the person must have intended that:
(a)his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or
(b)his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.

(3A)Subsection (3) has effect subject to sub-s.(6).

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: [2005] VSC 32
Decision Date: 21 February 2005

CaseChat Overview and Summary

The appellant, Choi (Pong Su), was convicted for his role in the importation of a commercial quantity of a prohibited narcotic, contrary to section 233B(1) of the Customs Act, and as an accessory after the fact, contrary to section 11.2 of the Criminal Code Act 1995. The primary issue before the court was whether it was sufficient to establish the appellant's guilt as an accessory by proving recklessness on his part as to whether the offence of importation was committed by another person, or whether it was necessary to prove that the appellant had knowledge of the importation.

The court considered the legislative framework and the established principles of complicity in criminal law. It held that recklessness on the part of the accused regarding the commission of the primary offence by another is sufficient to establish the accused's guilt as an accessory. This aligns with the broad understanding of accessorial liability, which does not require the same level of mens rea as the principal offence. The court concluded that the statutory language and judicial precedents support a recklessness standard for proving accessorial liability.

The appeal was dismissed by the court, affirming the conviction of the appellant. The court's reasoning and outcome were based on the legislative intent and the established legal principles regarding accessorial liability. The appellant's conviction for aiding, abetting, counselling or procuring the importation of a commercial quantity of a prohibited narcotic, and as an accessory after the fact, was upheld.

Orders