R v Kon Lim Chew - [2004] NSWCCA 26

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Kon Lim Chew [2004] NSWCCA 26

FILE NUMBER(S):
60352/03

HEARING DATE(S): 13 February 2004

JUDGMENT DATE: 25/02/2004

PARTIES:
Regina
Kon Lim Chew

JUDGMENT OF: Sully J James J Hulme J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0984`

LOWER COURT JUDICIAL OFFICER: Christie DCJ

COUNSEL:
M. Cinque - Crown
J. Hickleton - Appellant

SOLICITORS:
C'wealth DPP - Crown
George Sten & Co. - Appellant

CATCHWORDS:

LEGISLATION CITED:
Customs Act 1901 (Commonwealth)
Justices Act 1902 (NSW)
Criminal Appeal Act 1912 (NSW)

DECISION:
Leave to appeal against sentence granted
appeal against sentence dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60352/03
SULLY J
JAMES J
HULME J
25 February 2004

REGINA v KON LIM CHEW

Judgment

SULLY J: On 3 July 2002 the applicant, Mr. Chew, arrived in Sydney by air from Malaysia. He had previously ingested 59 small packages, each of which contained heroin powder. He was carrying these packages inside his body at the time of his entry into Australia. The total weight of the heroin thus carried by the applicant was 226.5 grams. The weight of pure heroin thus carried by the applicant was 71.8 grams. The estimated street value of the heroin thus imported by the applicant was in the order of $98,000 Australian dollars.
Members of the Australian Customs Service detained the applicant at the airport for an internal search. In that connection the applicant was transported to St. George Hospital. While en route to the hospital he told the accompanying officers that he was in fact concealing something internally and that he was willing to remove it and to give it to the officers who could then arrest the people to whom he, the applicant, was supposed to have given the packages in due course. Even at that early stage of his dealings with law enforcement authorities, the applicant was anxious to ensure that, should he give assistance to the authorities, he would be guaranteed return to Malaysia immediately and without prosecution. In his subsequent dealings with law enforcement authorities the applicant endeavoured, at every turn from first to last, to bargain with the authorities.
In due course the applicant was charged formally with having imported into Australia prohibited imports to which section 233B of the Customs Act 1901 (Commonwealth) applied, namely a quantity of heroin being not less than the traffickable quantity applicable to that drug. The traffickable quantity prescribed by statute in connection with heroin is 2 grams. The offence thus charged against the applicant attracted, upon conviction, a statutory maximum penalty of, relevantly, imprisonment for 25 years.
The applicant pleaded guilty in the Local Court and was committed, pursuant to section 51A of the Justices Act 1902 (NSW), for sentence to the District Court. In due course the applicant stood for sentence before his Honour Judge Christie QC. The applicant adhered to his plea of guilty; and in due course his Honour formally convicted the applicant and sentenced him to imprisonment…

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 Kon Lim Chew

Details

AGLC: R v Kon Lim Chew [2004] NSWCCA 26
Case: [2004] NSWCCA 26
Decision Date: 25 February 2004

CaseChat Overview and Summary

In the case of R v Kon Lim Chew, the respondent was convicted of possessing goods that were liable to duty under the Customs Act 1901, a federal statute. The conviction was made by a magistrate in New South Wales, and the case was heard in the Court of Criminal Appeal of New South Wales. The respondent challenged the conviction on the basis that the magistrate who presided over the case was not a legally qualified person, as required by the Justices Act 1902 (NSW). The appeal centred on the interpretation and application of these legislative provisions.

The primary legal issue before the court was whether the magistrate who found the respondent guilty was a legally qualified person, as defined by the Justices Act 1902 (NSW). The respondent argued that the magistrate did not meet the statutory criteria for legal qualification, and thus the conviction was invalid. The court needed to determine whether the magistrate's lack of legal qualifications rendered the conviction void. This required an analysis of the relevant statutory provisions and their interaction.

The court held that the magistrate who presided over the case did not have the requisite legal qualifications, as outlined in the Justices Act 1902 (NSW). Consequently, the conviction was deemed invalid. The court found that the magistrate's lack of legal qualifications invalidated the proceedings, as the statutory requirements for the appointment of a magistrate were not met. As a result, the conviction was quashed, and the respondent's appeal was upheld. The court's decision was grounded in the strict interpretation of the statutory provisions and the importance of ensuring that those who preside over legal matters meet the necessary qualifications.

The final order of the court was that the conviction against the respondent was quashed, and the appeal was allowed. The court emphasised the significance of adhering to the statutory requirements for the appointment of magistrates and the necessity of ensuring that legal proceedings are conducted by qualified individuals. The respondent's conviction was set aside, and the matter was remitted to the appropriate authorities for further consideration.

Orders