R v Choi (Pong Su) (No 16)
[2005] VSC 48
•3 March 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1424 of 2004
| THE QUEEN |
| v |
| 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: | 3 March 2005 | |
CASE MAY BE CITED AS: | In the Matter of the Pong Su (Ruling No. 16) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 48 | |
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CRIMINAL LAW – Evidence – Admissibility of documents – Whether documents purporting to associate one accused person with an uncharged person are admissible – Probative value – Prejudice.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Champion S.C. with Mr M.P. Cahill | The Solicitor for the Commonwealth Office of Public Prosecutions |
| For Yau Kim Lam | Mr G. Meredith | Tony Danos |
| 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:
It is alleged by the prosecution that on 16 April 2003 the accused man Yau Kim Lam aided and abetted the importation of a commercial quantity of a narcotic good.
Lam was arrested on 16 April 2003 whilst driving a hired blue Ford Focus motor vehicle. A business card with the name of Lam as a representative of an entity called KIMTO printed on it was found in the glove box by police soon after the arrest of Lam. A later search by police of room 1106 at Crown Towers Hotel, found a KIMTO business card purporting to be in the name of one John Thompson.
Mr Meredith of Counsel submits that neither business card should be admitted into evidence. In essence his argument is that to do so may well invite the jury to engage in improper speculation and guesswork.
In order to understand properly the submission made by Mr Meredith it is necessary to explore in some detail other evidence in the case in the context of the two KIMTO business cards which he seeks to exclude.
The KIMTO business cards
The KIMTO business card located in the Ford Focus motor car driven by Lam had the name of Lam Yau Kim printed on it. The card stated that Lam was a representative of KIMTO. The address of KIMTO is stated to be Unit 114, Wisma MPL, Jalan Raja Chulan 50200 Kuala Lumpur, Malaysia. The card had a drawing of a ship printed on it.
The KIMTO business card located in room 1106 at Crown Towers Hotel was similar to the card found in the Ford motor car driven by Lam, except that instead of the name of Lam it bore the name of John Thompson and stated that Thompson was a representative of KIMTO.
The evidence relating to the KIMTO company
The evidence is that the address of KIMTO given on the business cards is not the address of that organisation or of any similar organisation. The evidence is that a Mr Ng has owned the premises situated at the address printed on the card since 22 April 2002 and he has never leased the premises, nor entered into any arrangement with nor had any association with Lam, a John Thompson, or KIMTO.
There is evidence that a company called KIMTO was registered in Malaysia on 26 October 1988, but that the registration expired on 11 April 1996. That registration has not since been renewed. Furthermore, the address of KIMTO, when it was registered was different from the address printed on the business cards.
The evidence as to the connection between KIMTO and the Pong Su
There is evidence that in early March 2003 an Asian person calling himself John Thompson approached one Greg Gibson, a Melbourne customs agent. Thompson purported to act on behalf of KIMTO. On that occasion, Thompson and Gibson discussed the export of a number of BMW motor vehicles from Australia to Malaysia. On 25 March 2003, Gibson received a facsimile purporting to be from John Thompson which facsimile appeared to be sent from the Shangri La Hotel in Kuala Lumpur. The facsimile advised Gibson that the Pong Su, registered in Tuvalu, would be the vessel involved in the transport of the cars.
In addition, the prosecution relies upon material supplied to the Australian Crime Commission by the solicitors for the Pong Su Shipping Company in June 2003. Those documents consist of:
· A business card in the name of KIMTO with John Thompson’s name printed on it as “representative”;
· a document dated 18 February 2003, described as a “fixture note” which relates to a charter arrangement between KIMTO as charterers and Pong Su Shipping Co as owners;
· a document dated 17 March 2003 relating to payment of US$150,000 from a charterer described as KIMTO in relation to bunkering charges for the Pong Su;
· a document purporting to be a facsimile from Greg Gibson of Gibson Customs and Forwarding Agents addressed to the attention of Mr John Thompson of KIMTO in Malaysia and dated 28 March 2003; (It should be noted that Mr Gibson will give evidence that this document is a forgery and that no such document was ever created or sent by him.)
· a document dated 11 April 2003 from Pong Su Shipping Management Co Limited addressed to KIMTO Malaysia for the attention of Mr John Thompson;
· a further document dated 14 April 2003 from Pong Su Shipping Management Co Limited to KIMTO Malaysia, addressed to the attention of Mr John Thompson;
· a further facsimile dated 15 April 2003 addressed to KIMTO in Malaysia, attention Mr John Thompson regarding the Pong Su.
The above documents purport to demonstrate that KIMTO is the charter party for the purposes of the Pong Su’s voyage to Victorian waters.
Connection of Lam to the voyage of the Pong Su
The prosecution contends that it would be open to a jury to find that KIMTO was a name used by the organisers of the importation of heroin and that KIMTO was the purported charter party of the Pong Su’s voyage to Victorian waters. It is submitted that given Lam’s possession of the KIMTO business card in his own name, he is linked directly to the voyage of the Pong Su to Australia. In addition to the business card in Lam’s name, a business card was found in the Ford Focus motor vehicle in the name of Yue On Company Limited which business card nominates one Kwok Wah Biu as the president of that organisation. There is evidence that the Yue On company is the Hong Kong shipping agent for the Pong Su Shipping Company and there is evidence that Kwok Wah Biu was the person who delivered a mobile service telephone to representatives of the Pong Su in September 2002. There is evidence that the telephone service provided by Kwok to the Pong Su was used in Australian waters up until 16 April 2003.
Furthermore, a slip of paper was found (along with other materials which show a connection with Lam) on the Deans Marsh Road on 21 April 2003, which slip of paper appears to be a facsimile header and has the name of the Pong Su Shipping Management Company printed on it.
Mobile telephone evidence
There is evidence that Lam used a number of mobile telephones, none of which was registered in his name. In particular, there is evidence, from which the jury may draw the inference that mobile telephone number 0401 360 097 was used by Lam during the period between 27 March 2003 and 14 April 2003 in Australia. The evidence is that this telephone number is a pre-paid Optus account which was first registered in the name of John Thompson on 28 February 2003. A Nokia mobile telephone located on the floor of the blue Ford Focus in which Lam was arrested on 16 April 2003 had been used with the SIM card relating to telephone service 0401 350 097 connected in the name of John Thompson. Furthermore, that phone number is the number Lam provided to Europcar as a contact number when he rented the Ford Focus from them on 15 April 2003.
The Prosecution submission
The prosecution submits that the above evidence establishes a series of objective connections between Lam and the Pong Su and for that reason both the KIMTO business card in his name and the KIMTO business card in the name of John Thompson are admissible as part of the circumstantial case against him.
Submissions for the accused Lam
Mr Meredith of Counsel who appears for Lam submits that the John Thompson KIMTO business card should be excluded on the basis that the nature of the connection between Lam and the people who had dealings with Mr Gibson is “a mystery”. Furthermore, he submits that the nature of the connection between Lam and John Thompson is likewise not clear. As the nature of these connections is not clear he submits that the jury would be invited to engage in “speculation and guesswork”. In addition, he submits that although the room in the Crown Towers Hotel in which the John Thompson business card was found may be linked with Lam by other documents also found in that room, the room was, according to the hotel records, in the name of Lam’s co-accused, Teng. He submits that it cannot be established that Lam was in occupation of room 1106 to the exclusion of others and in particular to the exclusion of Teng. Mr Meredith argues that the meeting between Gibson and the person purporting to be John Thompson took place in early March when it is clear that Lam did not arrive in Australia until 27 March 2003. Furthermore, Mr Meredith submits that the link between Lam and the facsimile header in the name of the Pong Su Shipping Management Company found on the Deans Marsh Road is not as clear as is submitted by the Crown. He relies upon the evidence that police used a GPS device which they found in the possession of Wong that revealed a series of locations, which ultimately led to the collection of documents found on the Deans Marsh Road. It is submitted by Mr Meredith that the evidence is unclear as to who had possession of the GPS device when it was in that location and thus it cannot be established affirmatively that Lam left the documents in the location in question.
Insofar as the KIMTO business card in the name of Lam is concerned, Mr Meredith submits that the jury can engage in no more than guesswork as to what the existence of the Lam KIMTO card means and what role KIMTO may have had, or not have had, in the venture in question. Mr Meredith submits that the evidence as to the connection between KIMTO and the importation venture is unsatisfactory, and submits that there is insufficient evidence for the jury to reach proper logical conclusions and draw proper inferences that may be open to them. He submits that both KIMTO cards “raise a mystery, they raise the spectre of a connection, but they really invite this jury to embark on a process which is little more than guesswork”.
The strength of the connection between Lam, KIMTO and the Pong Su
(a) The KIMTO business card in the name of Lam: The evidence of the KIMTO business card in the name of Lam is relevant as it demonstrates a link between Lam and KIMTO which in turn is linked to the Pong Su, and the voyage of that vessel to Victorian waters. Therefore, the evidence of the business card establishes a connection between Lam and the voyage of the Pong Su and, as part of a circumstantial case, rebuts the suggestion that Lam’s excursion to and presence at Boggaley Creek was an innocent one. A business card was found in the glove box of the hire car Lam was found driving. The business card states that he is a representative of KIMTO. The evidence clearly links the KIMTO organisation with the Pong Su. More to the point, there is evidence which links KIMTO with the voyage of the Pong Su which brought it to Victorian waters. The link between Lam and KIMTO thus tends to prove Lam’s association with those responsible for the voyage of the Pong Su to Victoria. It is admissible as part of the circumstantial case against Lam. There is nothing speculative about it. The link is established by the evidence. The nature and detail of the link may well be unclear but the jury will be told that their verdict is to be based on the evidence before them.
(b) The KIMTO business card in the name of John Thompson: The KIMTO business card in the name of John Thompson is relevant as it strengthens the link between Lam and KIMTO and thus the conclusion that Lam was not in the Great Ocean Road area in mid April innocently. Furthermore, that business card confirms the evidence of Gibson. Even allowing for the argument that Lam did not have exclusive occupation of the room at Crown Towers Hotel where the card was found and that it cannot be proved affirmatively that the card was in his exclusive possession, other evidence and in particular the mobile telephone service registered in Thompson’s name, which it is open to the jury to conclude was used by Lam demonstrates a connection between the two men. The Thompson KIMTO card is additional evidence of the connectin. The Thompson KIMTO card was found in a room which the jury would be entitled to conclude was used and accessed by Lam. On the face of it, the fact that the two cards purport to show that both persons were representatives of the same organisation tends to prove a connection between them. The connection between Lam and the person purporting to be John Thompson is relevant, as it demonstrates a link between Lam and the person purporting to arrange for motor vehicles to be exported to Malaysia on board the Pong Su. The existence of the card in the name of John Thompson in the room at Crown Towers Hotel makes it less likely that Lam’s use of a mobile telephone registered in the name of John Thompson was a mere coincidence, thereby confirming the link between the two men as suggested by that evidence, and thus is probative of Lam’s link to KIMTO and the Pong Su. The Lam KIMTO business card demonstrates clearly a link between Lam and the KIMTO organisation which in turn links Lam to the Pong Su and to its voyage. Rather than giving rise to speculation, as suggested by Mr Meredith, these links in the chain of reasoning follow logically from the evidence available.
Whilst it is true that the precise nature of Lam’s relationship with KIMTO, John Thompson and indeed the Pong Su, is not established by the evidence, I do not conclude that the two business cards which Mr Meredith seeks to exclude from admission into evidence should be excluded on the basis that the jury is likely to engage in improper speculation. The jury will be told to bring in a verdict on the evidence before them. The jury will be told that they are not to engage in speculation. The jury might well conclude that there were other people involved in the organisation of the importation of heroin into Australia and who are not named upon the indictment. However, there will be evidence before the jury that Lam was found with two telephones into which a SIM card related to a telephone service obtained in the name of Thompson had been placed and used. That evidence alone is admissible to demonstrate that Lam used a telephone service which was in a name which was not his own, as well as using a number of telephones and telephone services. That fact linked together with the evidence that both Thompson and Lam are associated with KIMTO, which in turn is associated with the voyage of the Pong Su to Victorian waters, in my view makes it clear that the evidence is relevant and of probative value, notwithstanding the fact that the detail of the relationship between Lam, Thompson and KIMTO is not revealed by such evidence as the prosecution has been able to assemble.
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