R v Ka Chung Li

[2000] NSWCCA 551

CITATION:	R v Ka Chung Li [2000] NSWCCA 551 revised - 25/05/2001
FILE NUMBER(S):	CCA 60816/99
HEARING DATE(S):	Friday 8 December 2000
JUDGMENT DATE:	8 December 2000
PARTIES :	Ka Chung Li (appellant) Commonwealth Director of Public Prosecutions (respondent)
JUDGMENT OF:	Mason P at 1; Hidden J at 2; Carruthers AJ

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0501
LOWER COURT JUDICIAL OFFICER :	Kirkham DCJ

COUNSEL :	A M Webb (applicant) F Backman (Crown)
SOLICITORS:	Legal Aid Commission (applicant) Commonwealth Director of Public Prosecutions (respondent)
LEGISLATION CITED:	Sentencing Act 1989 Crimes Act 1900
CASES CITED:	R v Cartwright (1989) 17 NSWLR 243
DECISION:	Leave to appeal granted. Appeal allowed.

IN THE COURT OF
CRIMINAL APPEAL

60816/99

MASON P
HIDDEN J
CARRUTHERS AJ

Friday 8 December 2000

Regina (Cth) v Ka Chung Li

Judgment

1     MASON P: In the matter Ka Chung Li, I ask Justice Hidden to give the first judgment.

2     HIDDEN J: The applicant, Ka Chung Li, pleaded guilty in the District Court to a charge of supplying a commercial quantity of heroin. He was sentenced under the Sentencing Act, which was then in force, to imprisonment for six years, comprising a minimum term of three years to date from 2 March 1999, the date he was taken into custody, and an additional term of three years. He seeks leave to appeal against that sentence.

3     Shortly stated the facts are these. On 2 March 1999, Australian Federal Police were conducting a surveillance operation which involved observations of the applicant, a man called Arthur Wan and another man, Joe Chan. Their movements between North Sydney and the central business district of Sydney were observed over a period. At one stage they were seen at Darling Harbour with yet another man who apparently was unknown to the police.

4     Eventually they travelled to an address at McMahons Point where Mr Wan went inside and came out, carrying a shopping bag. The three men walked towards North Sydney Station and by the time they got there it was the applicant who had the bag. They caught a train to Town Hall Station and alighted there. The applicant had the bag during the journey. There the three were arrested. The bag was found to contain a block of heroin which weighed a little over 700g. Upon analysis it was found to be about 540g of pure heroin.

5     After initial prevarication, the applicant admitted in a recorded interview that he was aware that it was heroin that he was carrying, saying that it was his task to take the drug and give it to somebody at Hurstville. For that he said he was to be paid $250. He gave somewhat inconsistent evidence in the sentence proceedings on the question of what he was to be paid and in what circumstances, but for present purposes nothing turns on that.

6     He was sentenced in effect as a “runner”, which I understand to be, as it were, the domestic equivalent of a courier. He was sentenced also on the basis that he acted for financial gain and was not himself a user of the drug.

7     The learned sentencing judge took into account his plea of guilty and accepted that he was contrite. He was only twenty years old at the time and is now still only twenty-one. His Honour had regard to the fact that he had no prior convictions and was in this country in somewhat sad circumstances, having come here some years before from Hong Kong but having been here at the relevant time virtually alone with little or no family support. As is obvious from the relationship between minimum and additional terms, his Honour found special circumstances in his favour.

8     The only argument addressed to us upon this application was his Honour's approach to some assistance which the applicant afforded the authorities after his arrest. I referred earlier to an unknown man seen with the applicant and his two companions at Darling Harbour. In an electronically recorded interview on the day after his arrest, the applicant appears to have told police as much as he knew about that man. He said that he knew him as Michael and that he understood him to be, as he described it, a partner with Mr Wan in the distribution of drugs.

9     He took police to a street in Ultimo and indicated to them a block of units where he understood this man Michael lived. He expressed some fear both of Michael and Mr Wan. At the end of the interview police asked him if he would be prepared to speak to them again, if necessary, and he said that he would be.

10     The complaint in this application arises in this way. Before the sentencing judge, the Crown furnished some written submissions which included the assertion that the applicant had given an oral undertaking to assist the authorities by giving evidence against the co-accused, but had since declined to do so. How that proposition came to appear in those submissions we do not know. On the evidence no such undertaking was given. However, in the course of his remarks on sentence, the learned sentencing judge said this:

…whilst his plea and original preparedness to assist the authorities in other ways was a feature of his early association with the arresting police, he is not now in a position or has declined to assist by way of giving evidence against the man Wan.

And a little later his Honour said,

He has no other criminal history in this country and whilst he was originally prepared to assist the authorities, that wish seems to have dried up.

11     His Honour said no more about such assistance as the applicant did provide, and a curious feature of this case is that there is simply no evidence about what, if anything, flowed from the information the applicant gave about the man he knew as Michael. Whether the police did make any inquiries as a result of that information and whether those inquiries bore any fruit, again, we simply do not know.

12     However that may be, it appears to me that the applicant was entitled to some consideration for such assistance as he gave. As I have said, there is no reason to believe that he was being other than truthful and was telling the police as much as he did know about this man. As I have also said, he gave evidence in the sentence proceedings and the Crown’s representative at that time did not cross-examine him about that matter. Indeed, he was not cross-examined at all.

13 Even if the information had proved to be fruitless, he would still have been entitled to some measure of leniency for it. The position at the time was governed by the now repealed s442B of the Crimes Act and I refer to subs3(c) of that section. That paragraph itself should be read against the background of the decision of this Court in R v Cartwright (1989) 17 NSWLR 243, in the joint judgment of Hunt J (as he then was) and Badgery-Parker J at 252-3.

14     Accordingly, I am persuaded that his Honour did fall into error in giving the applicant no benefit whatsoever from that assistance. The question remains whether the Court should intervene. As I have said, the sentence was effectively six years with a minimum term of three years and, as is well-known, before this Court would intervene on an application for leave to appeal against sentence, even when error is shown, the Court must be persuaded that some other sentence was warranted in law and should have been passed.

15     The offence was a serious one, involving a substantial quantity of heroin and the sentence, in particular the minimum term, could not be described by any means as harsh. Nevertheless, on balance, I am persuaded that there should be some adjustment of it in the light of the error which has been identified; but any substantial adjustment, in my view, would result in a sentence which would be insufficient to reflect the applicant's criminality, notwithstanding the assistance.

16     That being so, the orders I would propose are these: That leave to appeal be granted, the appeal allowed and the sentence passed in the District Court be quashed. In lieu, I would sentence the applicant to imprisonment for five years to date from 2 March 1999 with a non-parole period of two and a half years.

17     MASON P: I agree.

18     CARRUTHERS AJ: I agree. I would only add that his Honour fell into this error through no fault of his own. Had more care been exercised by those appearing before him in the tender of the material relevant to the question of discount for assistance to the authorities, this situation would not have arisen.

19     MASON P: The orders of the Court will be as indicated.

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