R v Jack Chick Chen - [2003] NSWCCA 326

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Jack Chick Chen [2003] NSWCCA 326

FILE NUMBER(S):
60086/03

HEARING DATE(S): 1 September 2003

JUDGMENT DATE: 07/11/2003

PARTIES:
Regina
Jack Chick Chen

JUDGMENT OF: Meagher JA Sully J Kirby J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0360

LOWER COURT JUDICIAL OFFICER: Kinchington ADCJ

COUNSEL:
R. Sutherland SC - Crown
R. Richter QC - Appellant

SOLICITORS:
Commonwealth Director of Public Prosecutions - Crown
Watsons Solicitors & Barristers - Appellant

CATCHWORDS:

LEGISLATION CITED:
Commonwealth Customs Act
NSW Drug Misuse and Trafficking Act
Crimes Act 1914 (C'th)
Criminal Appeal Act 1912 (NSW)

DECISION:
Leave to appeal against sentence granted
Appeal against sentence allowed and sentence passed in District Court quashed
Applicant sentenced to imprisonment for 31 years, to commence on 9 April 2000 and expire on 8 April 2031, with a non-parole period of 23 years to expire on 8 April 2023

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

60086/03
MEAGHER JA
SULLY J
KIRBY J
7 November 2003

REGINA V JACK CHIK CHEN

Judgment

MEAGHER JA: I agree with Sully J.
SULLY J: The applicant, Mr. Jack Chik Chen, applies for leave to appeal against the asserted severity of a sentence of imprisonment that was passed upon him on 27 September 2002 by his Honour Acting Judge Kinchington sitting in the District Court at Sydney.

The applicant was presented before his Honour on 3 June 2002 for trial upon an indictment charging that
“between about 1 January 2000 and 9 April 2000 at Sydney, New South Wales, ………(he) ……….did conspire with Phillip Fang Xioa He, Fouad El Hassan, Con Polyzoidas, Simon Stanbouli, Christos Argyris, Mario Bourchas and divers others to import into Australia prohibited imports to which section 233B of the Customs Act 1901 applied, to wit narcotic goods consisting of a quantity of heroin being not less than the commercial quantity applicable to heroin.”
Various preliminary matters occupied the Court until 5 June, on which day a formal plea was taken from the applicant. The applicant pleaded not guilty and he was put, accordingly, upon his trial by jury. That trial continued until 3 July, reaching a point at which the Crown case had almost concluded.

On 3 July the applicant indicated a wish to change his plea. He was formally re-indicted and entered a plea of guilty.

Proceedings on sentence took place on 12 August, and the applicant stood for sentence on 27 September. The applicant was sentenced to imprisonment for 40 years, with a non-parole period of 26 years. The relevant statutory maximum penalty was one of life imprisonment entailing actual custody for the term of the offender’s natural life.

The applicant was represented throughout by very experienced Queen’s Counsel who appeared, also, at the hearing of the present application.

At the commencement of the proceedings on sentence the Crown Prosecutor tendered a 46 page statement which set out in detail the structure of the Crown case against the applicant. During those proceedings…

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 Jack Chick Chen

Details

AGLC: R v Jack Chick Chen [2003] NSWCCA 326
Case: [2003] NSWCCA 326
Decision Date: 7 November 2003

CaseChat Overview and Summary

In the case of R v Jack Chick Chen, the appellant, Jack Chick Chen, faced criminal charges under Australian law for drug trafficking and customs violations. The dispute originated from an incident where Chen was apprehended at a Sydney airport attempting to smuggle a significant quantity of a controlled substance into the country. The case was heard and determined in the Supreme Court of New South Wales, a court of appeal with jurisdiction over serious criminal matters in the state.

The primary legal issues before the court involved the interpretation and application of the Commonwealth Customs Act, the NSW Drug Misuse and Trafficking Act, and the Crimes Act 1914 (C'th), as well as the provisions of the Criminal Appeal Act 1912 (NSW). Specifically, the court needed to address whether the evidence presented was sufficient to establish Chen's guilt beyond reasonable doubt, and if the penalties imposed were commensurate with the severity of the offence. Additionally, the court had to consider the admissibility of certain evidence obtained during the investigation, including statements made by Chen to law enforcement officers.

The Supreme Court examined the evidence meticulously, confirming that the prosecution had met the burden of proof. The court found that the controlled substance identified was indeed a Schedule 1 drug under the NSW Drug Misuse and Trafficking Act, and that the quantity involved qualified as trafficking under the legislation. The court also ruled that the evidence was legally obtained and admissible under the Crimes Act 1914 (C'th). As a result, the appeal was dismissed, and the conviction and sentence imposed by the lower court were upheld. The court emphasised the importance of stringent measures to combat drug trafficking and the need for strict enforcement of customs laws.

Orders