R v Jack Chick Chen - [2003] NSWCCA 328

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Jack Chick Chen [2003] NSWCCA 328

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:

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 learned Queen’s…

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 328
Case: [2003] NSWCCA 328
Decision Date: 7 November 2003

CaseChat Overview and Summary

The case of R v Jack Chick Chen involved a dispute between the Crown and the defendant, Jack Chick Chen, on charges related to drug importation and trafficking. The matter was heard in the NSW Court of Criminal Appeal. The defendant was originally convicted in the District Court of New South Wales and subsequently appealed to the Court of Criminal Appeal. The appeal centred on the sufficiency of evidence to support the drug importation and trafficking convictions under the Commonwealth Customs Act, the NSW Drug Misuse and Trafficking Act, and the Crimes Act 1914 (C'th).

The central legal issues before the Court of Criminal Appeal were whether the evidence presented was sufficient to establish the defendant's guilt beyond reasonable doubt for the importation and trafficking of drugs. Specifically, the court had to determine if the prosecution had proven that the defendant had intentionally imported the drugs and whether the quantities involved met the threshold for trafficking under the relevant legislation. The defendant argued that the evidence was circumstantial and did not exclude reasonable doubt.

The Court of Criminal Appeal found that the prosecution had established a clear chain of custody and the presence of the drugs in the defendant's possession. The court considered the totality of the evidence, including the defendant's conduct and statements, and concluded that the evidence was sufficient to support the convictions. The appeal was dismissed, and the original convictions were upheld. The Court of Criminal Appeal confirmed the defendant's guilt and the applicability of the drug importation and trafficking offences under the relevant statutes.

Orders