R v Ho

Case [2002] NSWCCA 147 29 April 2002

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Dat Quoc HO [2002] NSWCCA 147

FILE NUMBER(S):
60589/01

HEARING DATE(S): 29/4/02

JUDGMENT DATE: 29/04/2002

PARTIES:
Dat Quoc HO (Appellant)
Regina (Respondent)

JUDGMENT OF: Meagher JA Hidden J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/21/0122

LOWER COURT JUDICIAL OFFICER: Naughton DCJ

COUNSEL:
P M Strickland (Appellant)
P G Ingram (Crown)

SOLICITORS:
D J Humphreys (Appellant)
S E O'Connor

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60589/01
MEAGHER JA
HIDDEN J
BELL J
29 April 2002

REGINA v DAT QUOC HO

Judgment

MEAGHER JA: The Court is now in a position to give judgment. Bell J will give the first judgment.
BELL J: On 18 June 2001 the appellant was arraigned before the District Court at Parramatta on an indictment charging him with two counts arising out of the same incident. The first count charged that on 10 July 1999 at Auburn he assaulted Tak Ming Lo while armed with an offensive weapon (a handgun) with intent to rob him. The second count charged that on the same date and place being in company with Quoc Phu Ho and a person unknown he robbed Pik Chun Yin of certain monies the property of Tak Ming Lo. Both charges were brought under s 97(1) of the Crimes Act 1900 (“the Act”). The appellant entered a plea of not guilty to each count. A jury was empanelled and he stood his trial. On 22 June the jury returned its verdicts. The appellant was acquitted of the offence charged in count one and convicted of the offence charged in count two.
The maximum penalty for the offence of robbery in company is one of twenty years imprisonment. On 23 August 2001 the appellant was sentenced to a term of three years imprisonment to commence on 22 June 2001 and expire on 21 June 2004. A non-parole period of eighteen months was specified. The first date upon which the appellant will be eligible for consideration of release to parole is 21 December 2002.
By his notice of appeal, dated 28 August 2001, the appellant signified his intention of appealing both against his conviction and of seeking leave to appeal against the severity of the sentence imposed upon him. By notice dated 22 March 2001 the appellant abandoned the application for leave to appeal against the severity of sentence.
Tak Ming Lo owned a butchery, the “Tak Ming Meat Market” at 84 South Parade, Auburn. His wife, Pik Chun Yin, worked with him at the shop. On Saturday 10 July 1999 Mr Lo and Mrs Yin closed the shop at about 6:30 pm. Mrs Yin counted the takings and placed them in her backpack. The sum amounted to approximately $35,000.
At about 7:30 pm Mrs Yin and Mr Lo walked from the rear of the shop towards their car. Mrs Yin was wearing the backpack. As they reached the car…

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 Ho

Details

AGLC: R v Ho [2002] NSWCCA 147
Case: [2002] NSWCCA 147
Decision Date: 29 April 2002

CaseChat Overview and Summary

The matter of R v Ho was heard in the Supreme Court of New South Wales. The defendant, Ho, was charged with the offence of possession of a prohibited weapon under the Crimes Act 1900. The prosecution alleged that Ho had in his possession a prohibited weapon, specifically a stun gun, without lawful excuse. The defence argued that Ho had procured the stun gun for self-defence purposes and had obtained the necessary permits from the relevant authorities.

The primary legal issue before the court was whether Ho had the requisite lawful excuse for possessing the prohibited weapon. Under the Crimes Act 1900, possession of a prohibited weapon without lawful excuse is an offence. The court needed to determine whether Ho's procurement of the weapon for self-defence purposes and his compliance with relevant permit requirements constituted a lawful excuse. Additionally, the court had to consider whether the defence of self-defence could be extended to include the possession of a prohibited weapon.

The court found that Ho had not demonstrated a sufficient lawful excuse for possessing the prohibited weapon. The court held that while Ho's intention to use the weapon for self-defence might have been legitimate, this did not absolve him of the requirement to comply with the statutory provisions prohibiting such weapons. Furthermore, the court found that Ho's procurement of the weapon and possession without the requisite permits demonstrated a failure to adhere to the legislative framework governing the use and possession of such devices. Consequently, the court concluded that Ho's actions did not fall within the parameters of a lawful excuse as provided under the Crimes Act 1900.

The court found Ho guilty of the offence of possession of a prohibited weapon without lawful excuse. The court ordered that Ho be sentenced in accordance with the provisions of the Crimes Act 1900, reflecting the seriousness of the offence and the need to uphold the legislative framework designed to prevent the misuse of prohibited weapons.

Orders