R v Lau - [2002] QCA 542

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lau [2002] QCA 542

PARTIES:

R
v
LAU, Ho Sum
(applicant)

FILE NO/S:

CA No 273 of 2002
SC No 339 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 December 2002

DELIVERED AT:

Brisbane

HEARING DATE:

27 November 2002

JUDGES:

McPherson and Williams JJA and Philippides J
Separate reasons for judgment of each member of the court, each concurring as to the order made

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – DRUG OFFENCES – PENALTIES – PRODUCING OR CULTIVATING – where applicant pleaded guilty to 4 counts of production of the dangerous drug methylamphetamine and was sentenced to 3 years’ imprisonment suspended after nine months with an operational period of 5 years – where applicant was a chemist who sold large quantities of Sudafed tablets and Iodine to an undercover police officer – whether the learned trial judge erred in not giving consideration to the fact that the sale was requested by an undercover police officer and that no dangerous drugs would be in fact produced – consideration of authorities where offences committed within covert police operations – consideration of the distinction between inducement by police and the detection and obtaining of evidence

Drugs Misuse Act (Qld) 1986, s 4

R v Barker (1988) 34 A Crim R 141, followed
R v Brown [1978] 2 NZLR 174, distinguished
R v Lim (unreported) Philippides J, 31 January 2001, referred to
R v Mandica (1980) 24 SASR 394, followed
R v Masters (1974) 15 CCC (2d) 142, distinguished
R v Miller [1990] 2 Qd R 566, followed
R v Rahme (1991) 53 A Crim R 8, considered
R v Sang (1980) AC 402, considered
R v Swift (1999) 105 A Crim R 279, followed

COUNSEL:

A Boe (solicitor) for the applicant
T A Fuller for the respondent

SOLICITORS:

Boe & Callaghan for the applicant
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: I agree with the reasons of Williams JA for dismissing this application.

I wish to reserve opinion on the relevance or applicability, if any, to the Queensland drugs misuse legislation of the Ontario decision in R v Masters (1974) 15 CCC (2d) 142 and the New Zealand decision in R v Brown [1978] 2 NZLR 174. In each of those cases there was a statutory provision in effect making it an offence to offer to supply or to deal in a substance represented to be an illicit drug even if in fact it was not.

Here the applicant was charged with doing or offering to do an act for the purpose of producing a scheduled drug. By his own admission or as a matter of inference from the huge quantity of Sudafed being sold, he knew the purpose to be the production of methylamphetamine. The fact that the offeree was, unknown to the applicant, an undercover police agent or…

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 Lau

Details

AGLC: R v Lau [2002] QCA 542
Case: [2002] QCA 542
Decision Date: 13 December 2002

CaseChat Overview and Summary

The case of R v Lau involved a chemist who pleaded guilty to four counts of producing the dangerous drug methylamphetamine. The applicant was sentenced to three years’ imprisonment, suspended after nine months, with an operational period of five years. The applicant, a chemist, had sold large quantities of Sudafed tablets and Iodine to an undercover police officer. The primary legal issue before the court was whether the trial judge erred by not considering that the sale was requested by an undercover police officer and that no dangerous drugs would actually be produced. The court was required to assess whether the trial judge should have taken into account the context of the covert police operation and the distinction between inducement by police and the detection and obtaining of evidence.

The court examined the authorities concerning offences committed within covert police operations and the significance of the role played by police in such scenarios. It was established that the trial judge had a broad discretion in sentencing, and the court was not inclined to interfere with the exercise of that discretion unless there was a clear error of principle. The court found that the trial judge had appropriately considered the relevant factors, including the applicant’s role and the nature of the offence. The court concluded that the trial judge had not erred in the manner in which the sentencing was conducted.

In light of the above, the court refused the application for leave to appeal against the sentence. The court found no basis to interfere with the trial judge’s sentencing decision, as it was satisfied that the trial judge had properly exercised their discretion and considered all relevant factors. The court's reasoning was grounded in the well-established principles of judicial discretion in sentencing and the need to avoid interference with the trial judge's decision unless there was a clear error of principle. The court's decision underscored the importance of the trial judge’s role in balancing the circumstances of the offence and the offender in the sentencing process.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Lau [2002] QCA 542
PARTIES:	R v LAU, Ho Sum (applicant)
FILE NO/S:	CA No 273 of 2002 SC No 339 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	13 December 2002
DELIVERED AT:	Brisbane
HEARING DATE:	27 November 2002
JUDGES:	McPherson and Williams JJA and Philippides J Separate reasons for judgment of each member of the court, each concurring as to the order made
ORDER:	The application for leave to appeal against sentence is refused.
CATCHWORDS:	CRIMINAL LAW – DRUG OFFENCES – PENALTIES – PRODUCING OR CULTIVATING – where applicant pleaded guilty to 4 counts of production of the dangerous drug methylamphetamine and was sentenced to 3 years’ imprisonment suspended after nine months with an operational period of 5 years – where applicant was a chemist who sold large quantities of Sudafed tablets and Iodine to an undercover police officer – whether the learned trial judge erred in not giving consideration to the fact that the sale was requested by an undercover police officer and that no dangerous drugs would be in fact produced – consideration of authorities where offences committed within covert police operations – consideration of the distinction between inducement by police and the detection and obtaining of evidence Drugs Misuse Act (Qld) 1986, s 4 R v Barker (1988) 34 A Crim R 141, followed R v Brown [1978] 2 NZLR 174, distinguished R v Lim (unreported) Philippides J, 31 January 2001, referred to R v Mandica (1980) 24 SASR 394, followed R v Masters (1974) 15 CCC (2d) 142, distinguished R v Miller [1990] 2 Qd R 566, followed R v Rahme (1991) 53 A Crim R 8, considered R v Sang (1980) AC 402, considered R v Swift (1999) 105 A Crim R 279, followed
COUNSEL:	A Boe (solicitor) for the applicant T A Fuller for the respondent
SOLICITORS:	Boe & Callaghan for the applicant Director of Public Prosecutions (Queensland) for the respondent