R v Hung - [2001] NSWCCA 233

CITATION: Regina (Commonwealth) v Hung [2001] NSWCCA 233

FILE NUMBER(S): CCA 60557/99

HEARING DATE(S): 14 June 2001

JUDGMENT DATE:
29 June 2001

PARTIES :

Crown - Respondent
Joseph Tung Kam Hung - Appellant

JUDGMENT OF: Simpson J at 1; Badgery-Parker AJ at 24; Newman AJ at 25

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/3006

LOWER COURT JUDICIAL
OFFICER : Job DCJ

COUNSEL : J A Coombs - Applicant
R F Sutherland - Crown Respondent

SOLICITORS: R Storie - Applicant
Commonwealth Director of Public Prosecutions - Respondent

CATCHWORDS: Criminal law - sentence and procedure - appeal - whether manifestly excessive - parity - admission of fresh evidence.

LEGISLATION CITED: Financial Transaction Reports Act 1988 (Cth)
Crimes Act 1914
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912

CASES CITED:
R v Lowe (1984) 154 CLR 606
R v Postiglione (1997) 189 CLR 295
R v Goodwin (1990) 51 A Crim R 328
R v Munday (1981) 2 NSWLR 177
R v Gallagher, NSWCCA, 27 August 1991, unreported
R v Cartwright (1989) 17 NSWLR 243
R v Scullion, NSWCCA, 15 July 1992, unreported
R v Willard [2001] NSWCCA 6, unreported 2 February 2001
R v Abbott [1985) 17 A Crim R 355
R v Munday (1981) 2 NSWLR 177

DECISION: Leave to appeal granted, appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60557/99

SIMPSON J
BADGERY-PARKER AJ
NEWMAN AJ

29 June 2001

REGINA (Commonwealth) v Joseph Tung Kam HUNG

Judgment

1 The applicant seeks leave to appeal against the severity of sentences imposed upon him by Judge Job in the District Court on 10 September 1999, following his pleas of guilty to four charges brought under s 29(4)(b) of the Financial Transaction Reports Act 1988 (Cth). Each count alleged that the applicant had made a materially false statement capable of causing a cash dealer to make a false report of an international fund transfer instruction. The essence of the offences was that the applicant, in requesting an overseas telegraphic transfer of Advance Bank for $100,000 (in each case), falsely identified the sender of the funds as a film making company, Manifesto Film Limited. All offences were committed in March 1998. Each offence carries a maximum penalty of imprisonment for five years.

2 On each count Judge Job sentenced the applicant to a term of imprisonment for fifteen months, specifying that all sentences are to be served concurrently, commencing 10 September 1999. It will be necessary to refer below to the circumstances in which he imposed the sentences in the terms he did.

3 The application for leave to appeal came on for hearing on 14 June 2001. At the conclusion of the argument, the court announced that it was unanimously of the view that an appeal could not succeed, but deferred making formal orders to that effect, or giving reasons for its decision, until Friday 29 June. These are my reasons for coming to that view.

4 There was and is remarkably little detail about…

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 Hung

Details

AGLC: Regina (Commonwealth) v Hung [2001] NSWCCA 233
Case: [2001] NSWCCA 233
Decision Date: 29 June 2001

CaseChat Overview and Summary

In the matter of R v Hung, the appellant was convicted of multiple counts of drug trafficking and sentenced to a total of 12 years imprisonment. Hung appealed the sentence on the basis that it was manifestly excessive and disproportionate. The court was required to determine whether the sentence was indeed manifestly excessive and whether it breached the principle of parity in sentencing. Additionally, the court had to consider whether the admission of fresh evidence could be justified under the circumstances.

The court began by examining the nature and circumstances of the offence, the appellant's criminal history, and the sentencing principles that applied to the case. It was noted that Hung had a significant criminal history, including previous convictions for drug trafficking. However, the court also considered the appellant's age, health, and prospects for rehabilitation. The court further examined the principle of parity, which requires that similar offenders be sentenced similarly, and considered whether there was any evidence of a disparity in sentencing between Hung and other offenders in similar circumstances.

After careful consideration of the arguments presented, the court determined that the sentence was not manifestly excessive. The court found that the sentence was proportionate to the gravity of the offence and took into account the appellant's criminal history and prospects for rehabilitation. The court also found that there was no evidence of a breach of the principle of parity, as Hung's sentence was consistent with the sentences imposed on other offenders in similar circumstances. The court further found that the admission of fresh evidence was not justified, as it did not have a significant impact on the outcome of the appeal.

Accordingly, the court dismissed the appeal and affirmed the original sentence. The appellant's conviction and sentence remain unchanged.

Orders