R v Fung - [2002] NSWCCA 479

Reported Decision:
(2002) 136 A Crim R 95

New South Wales

Court of Criminal Appeal

CITATION: Regina v Vincent Yiu Chen Fung [2002] NSWCCA 479

FILE NUMBER(S): CCA 60107/02; 60041/02

HEARING DATE(S): 6 September 2002

JUDGMENT DATE:
5 December 2002

PARTIES :

Regina
Vincent Yiu Chen Fung

JUDGMENT OF: Beazley JA at 1; Sully J at 2; Hulme J at 76

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0178

LOWER COURT JUDICIAL
OFFICER : Dodd DCJ

COUNSEL : D. Woodburne - Crown
G. Bashir - Fung

SOLICITORS: S. E. O'Connor - Crown
Murphys Lawyers Inc - Fung

LEGISLATION CITED: Drug Misuse & Trafficking Act 1985 (NSW)
Criminal Appeal Act 1912 (NSW)
Customs Act 1901 (Cth)
Evidence Act 1995

CASES CITED:
Bahri Kural v The Queen [1987] 162 CLR 502
Pereira v Director of Public Prosecutions [1988] 35 A Crim R 382
Festa v The Queen [2001] HCA 72 (13 December 2001)
M v The Queen (1994) 181 CLR 487
KRM v R (2001) 206 CLR 221
Lau (1998) 102 A Crim R 167

DECISION: Appeal against conviction allowed; conviction and sentence quashed; new trial ordered

- 53 -IN THE COURT OF

60107/02
60041/02

BEAZLEY JA
SULLY J
HULME J
Thursday 5 December 2002

REGINA v vincent yiu chen FUNG

Judgment

1 BEAZLEY JA: I agree with Sully J.

2 SULLY J: In October 2001 the appellant, Mr. Fung, stood trial in the District Court at Sydney. He was charged with having supplied not less than the large commercial quantity, as prescribed by statute, of a prohibited drug, namely heroin. Such an offence contravenes section 25(2) of the Drug Misuse & Trafficking Act 1985 (NSW) and attracts upon conviction, relevantly, a statutory maximum penalty of imprisonment for life. On 11 October 2001 the jury found the appellant guilty as charged. On 2 November 2001 the appellant was convicted and sentenced to imprisonment for 5 years with a non-prole period of 3 years and 9 months. The appellant appeals against his conviction and applies for leave to appeal against his sentence. The Crown appeals, pursuant to section 5D of the Criminal Appeal Act 1912 (NSW), against the asserted inadequacy of the sentence passed in the District Court.

The Crown Case at Trial

3 The appellant did not come under police surveillance until the afternoon of 24 June 2000. Observations were then made of the appellant and of two men named Tony Micalizzi and Gary Lammas.

4 On 26 May 2000 police officers who were conducting surveillance operations at the Qantas Sydney International Departure Terminal observed Micalizzi in the course of leaving Australia. On 22 June 2000 Lammas was observed near a baggage collection carousel in the Qantas Sydney Domestic Terminal. He met Micalizzi outside that terminal, and they drove together to Warwick Farm in a Holden motor vehicle with the registration number MYV-263. On 10 June 2000 Micalizzi had received at his place of employment, namely Wallace Laboratories, where he was employed as a driver, a…

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 Fung

Details

AGLC: R v Fung [2002] NSWCCA 479
Case: [2002] NSWCCA 479
Decision Date: 5 December 2002

CaseChat Overview and Summary

The case of Regina v Vincent Yiu Chen Fung involved an appeal against conviction and sentence by the appellant, Vincent Yiu Chen Fung, and a separate appeal by the Crown against the adequacy of the sentence. The appellant was convicted of supplying a large commercial quantity of a prohibited drug, namely heroin, in breach of the Drug Misuse and Trafficking Act 1985 (NSW). The Court of Criminal Appeal allowed the appeal against conviction, quashed the conviction and sentence, and ordered a new trial.

The appellant was charged with having supplied not less than the large commercial quantity, as prescribed by statute, of a prohibited drug, namely heroin, which is a contravention of section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The Crown's case at trial relied on circumstantial evidence, including police surveillance, intercepted telephone conversations, and the similarity in packaging and method of supply of heroin by other individuals, to prove that the appellant knew that the substance he was delivering was heroin.

The appellant's primary ground of appeal against conviction was that the learned trial judge erred in allowing "relationship evidence" to be admitted, which included evidence of his telephone calls and records of conversations with two other individuals, Michael Lam and Lam Sik, as well as evidence of their subsequent arrests and seizures of heroin. The appellant argued that this evidence was irrelevant and prejudicial, and that its admission led to a substantial miscarriage of justice. The Court of Criminal Appeal agreed with the appellant, finding that the evidence was not relevant to proving the appellant's knowledge at the time of the alleged offence, and that its admission had a prejudicial effect that unfairly influenced the verdict of the jury.

The Court of Criminal Appeal also considered other grounds of appeal against conviction, including the adequacy of the trial judge's directions to the jury, the refusal to admit evidence of the character and criminal history of alleged co-offenders, and the refusal to admit evidence of a particular phone call. However, the Court found that these grounds did not warrant interference with the jury's verdict.

In light of the conclusion that the appeal against conviction should be allowed, the Court did not consider the Crown's appeal against the adequacy of the sentence. The Court ordered a new trial for the appellant.

Orders