R v Duncan Sak Cheung LAM, Ting Man NGAI & Tin Fong SO (Aka Man Kwan LAM) - [2000] NSWCCA 252

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v Duncan Sak Cheung LAM, Ting Man NGAI & Tin Fong SO (aka Man Kwan LAM) [2000] NSWCCA 252

FILE NUMBER(S):
60388/00

HEARING DATE(S): 6 July 2000

JUDGMENT DATE: 06/07/2000

PARTIES:
Crown - Appellant
Duncan Sak Cheung Lam, Ting Man Ngai and Tin Fong So (aka Man Kwan Lam) - Respondents

JUDGMENT OF: Sheller JA Sully J James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/0711

LOWER COURT JUDICIAL OFFICER: Holt DCJ

COUNSEL:
M Grogan - Crown
E Fullerton SC/ C Dowd - 1st Respondent
P Bodor QC - 2nd Respondent
3rd Respondent - N/A

SOLICITORS:
SE O'Connor - Crown
Gregory J Goold - 1st Respondent
Naomi Hamilton - 2nd Respondent
HardinLaw - 3rd Respondent

CATCHWORDS:

LEGISLATION CITED:
Criminal Appeal Act 1912

DECISION:
Application refused

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60388/00

SHELLER JA
SULLY J
JAMES J

Thursday, 6 July 2000

REGINA v Duncan Sak Cheung LAM, Ting Man NGAI & Tin Fong SO (aka Man Kwan LAM)

JUDGMENT

SHELLER JA: This is an application by the Crown by an amended notice of motion that the trial of the respondents, to whom I shall refer to as Mr Lam and Mr Ngai, which is set down to begin on 10 July 2000, be stayed until this Court has heard and determined the Crown’s appeal under s5F of the Criminal Appeal Act 1912.
On 19 June 2000 the trial of the two respondents, to whom I have referred, and Mr So was listed to begin in the Sydney District Court before his Honour Judge Holt QC. Argument took place over the following days about a number of matters to which it is unnecessary to refer.
As a consequence of rulings that his Honour made, a new indictment was proffered against the three accused charging them in short with conspiracy to supply a large commercial quantity of a prohibited drug.
On 28 June 2000 at 10am, when the trial was to continue, Mr Young, who appeared for the accused Mr So, advised that he would be making an application for adjournment of the trial against his client on the basis that he had not had sufficient time to obtain adequate instructions and to prepare his client’s case. That application was made to his Honour and was successful.
His Honour referred to these problems and concluded his reasons for judgment by saying:
“The Crown has objected to the adjournment but it seems to me in all the circumstances that there have been a chapter of circumstances which I have attempted to relate which have led to this application. In all the circumstances I am not prepared to force the accused So on at this stage because I feel that he may well be prejudiced in having a fair trial.”
Accordingly, his Honour granted the application for adjournment.
At some point of time, it apparently occurred to somebody that the granting of this adjournment and leaving the trial against the other two accused to proceed, effected a severance. It is not clear that this matter was ever raised by the Crown to the Judge on Mr So’s application. There is certainly no mention of it in his Honour’s reasons for judgment.
The Crown supported its application this morning with an affidavit of Mr Laird. Mr Laird was cross-examined and it appeared from his cross-examination that he had, in giving evidence about what occurred before the learned Judge, relied simply upon his memory.
From the bar table we have been told by other counsel present that they have no recollection of any question of severance being discussed during the course of Mr So’s application. Neither counsel for the other two accused who were present were called upon to make any submissions on that application nor, understandably, did they feel any need to do so.
After an adjournment during which the Crown considered its position, an application was made on behalf of the Crown on the same day for an adjournment of the trial against the other two accused. This was opposed and his Honour refused the application. His Honour said:
“Here I am faced with two accused ready to proceed who have been in gaol for some sixteen months and face a considerably longer period if I grant the Crown an adjournment. Further, there is the issue raised by Ms Fullerton [who appeared for the accused Lam] about the extreme prejudice to her client of Mr Young’s client’s case. I accept what Mr Justice Hunt said about ‘where the picture of what is likely to [happen at the trial], is unclear’ the trial should proceed and the position reconsidered later on [The Queen v Domican, Unreported, 9 June 1989]. Here that situation would not occur until late in a ten week trial with the possibility of vast expense to the State if the trial was aborted.”
The Crown has not raised any issue that it would be prejudiced in the conduct of the conspiracy charges against Mr Lam and Mr Ngai if they were to proceed alone with Mr So. Accordingly, in the circumstances, it seemed to his Honour appropriate to reject the Crown’s application.
The Crown indicated that if his Honour refused the application, the Crown would appeal to this Court against that decision. On the basis of what the Crown told his Honour, he stood the trial over to continue next Monday, 10 July at 10am.
The Crown filed a notice of appeal relying upon s5F of the Criminal Appeal Act. The ground of appeal expressed in the notice of appeal was:
“that his Honour erred in ordering that the accused Tin Fong SO, (also known as Man Kwong LAM), be severed from the indictment.”
The notice of appeal continued:
“JUDGMENT OR ORDER APPEALED AGAINST
An order severing Tin Fong So, (also known as Man Kwong Lam), from the indictment of the above named accused.
JUDGMENT OR ORDER SOUGHT
1.An order vacating the judgment or order made by his Honour Judge Holt.
2.Such further or other orders as this Honourable Court thinks fit.”
It is immediately apparent that at no stage did his Honour make an order severing Mr So from the indictment of Mr Lam and Mr Ngai. During the course of argument, that was pointed out to the Crown and an application was made which, in part, sought that there be added under the heading “Judgment or Order Appealed Against”: “An order refusing the Crown’s application for an adjournment of the trial against Lam and Ngai.” The Crown seeks to amend the notice of appeal in that manner.
It is accepted by the Crown, or if it is not accepted it is obvious that it must be so, that if the application sought this morning for a stay is granted, the commencement of the trial next Monday will be aborted and it is unlikely, whatever the result of the Crown’s appeal, that the trial would come on for hearing before 2001. That being so, the effect of the order is that the two accused respondents to this application would remain in gaol for something of the order of six to nine months before their trial could take place. As was rightly said on their behalf, this consequence is not the result of any fault of theirs.
There seems to me no good reason why, when Mr So made his application for an adjournment, counsel for the Crown did not point out to his Honour that the effect of granting that adjournment would be to sever the trial unless the trial against the other two accused was also adjourned for hearing at the same time.
There seems no reason why some greater exploration could not have taken place about the time that Mr So’s counsel required properly to prepare his client’s case. Had these matters been brought to the attention of the trial Judge, it seems to me likely that, bearing in mind the particular situation in which Mr So’s representatives found themselves, the trial could have been stood over for a comparatively short period of one or two weeks and then proceeded in the ordinary way. However, that was not done with the consequences that there was an effective severance which then led the Crown to make the second application which was refused.
Having done so and sought time to bring the matter before this Court, the notice of appeal was, on its face, defective. In my opinion, there is no way in which this Court could have granted a stay to allow an appeal to go forward which was, on its face, hopeless.
The ground that the Crown now proposes to add to the notice of appeal would also be hopeless. There is no suggestion of any force at all that his Honour, in refusing the Crown’s application for an adjournment, acted upon any wrong principle. The most that the Crown can say is that his Honour should not have taken account of submissions that were put by Ms Fullerton about the prejudice to her client of Mr So’s case.
I am not persuaded that that was not, in the circumstances in which the trial Judge found himself, an appropriate matter to take account. Accordingly, it seems to me that the application to amend the notice of appeal should be refused on the basis that it has no prospect of success.
Equally, in my opinion, the application for a stay should be refused on the basis that the notice of appeal, as filed, has no prospects of success. Accordingly, the order that I propose is that this application be refused.
SULLY J: I entirely agree.
JAMES J: I also agree.

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LAST UPDATED: 22/08/2000