R v Lee & Kong - [2020] VSC 383

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2019 0223
S CR 2019 0224

THE QUEEN	Crown
v
Boon Ping LEE and Lee Chen KONG	Accused

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JUDGE:	BEALE J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 May 2020
DATE OF SENTENCE:	26 June 2020
CASE MAY BE CITED AS:	R v Lee & Kong
MEDIUM NEUTRAL CITATION:	[2020] VSC 383

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CRIMINAL LAW – Sentencing – Common Assault – Assist Offender (Murder) – Offenders motivated by fear of principal offender – Plea of guilty – Undertaking to give evidence against principal offender.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms K Churchill and Ms S Locke	Office of Public Prosecutions
For the Accused Lee	Mr C Morgan	Camerons Lawyers
For the Accused Kong	Mr J Anderson and Mr A Payne	Slater and King Lawyers

HIS HONOUR:

Introduction

Boon Ping Lee and Lee Chen Kong, both of you pleaded guilty on 25 May 2020 to common assault (charge 1) and assisting an offender, believing he had committed murder (charge 2).

The maximum penalty for common assault is 5 years’ imprisonment. For assisting an offender believing he had committed murder, it is 20 years’ imprisonment.

The man you both assaulted was Umit Ergan Bolat (‘Bolat’) whom the prosecution alleges was murdered by Huai De Ooi (‘Ooi’) the same night. Ooi is the person whom you both assisted in various ways after Bolat’s death, believing Ooi had murdered Bolat.

Ooi’s trial for murder is listed to commence on 26 October 2020, and you have both undertaken to give evidence against Ooi.

Circumstances of the offences

I will now summarise the circumstances of your offending.

In April 2018, Bolat, who was aged 45 and worked as a fruit-picker in the Shepparton area, was introduced to Ooi who lived on a property in Hill Rd, Lemnos. Ooi also worked as a fruit picker, as well as organising fruit picking work for others, including both of you. You, Lee, also lived at the Lemnos property with Ooi and others.

After Bolat was introduced to Ooi, he purchased drugs from him from time to time. The association between Bolat and Ooi soured when Bolat failed to transfer ownership of a car to Ooi in satisfaction of his drug debts.

On 12 August 2018, Bolat visited the Lemnos property and remained there overnight in the company of Ooi, you, Lee, and others.

On the evening of 13 August 2018, Bolat was still at the Lemnos property. Ooi contacted co-offenders Kosin Hariphong (‘Hariphong’) and Tui Tunumafono (‘Tunumafono’), ostensibly to help him eject Bolat from the house.

Sometime after their arrival, Ooi and Bolat began to argue about the transfer of the car and the confrontation became physical. Hariphong and Tunumafono joined in the fight.

Ooi produced a pocket knife, held it to Bolat’s throat and ordered him to sit on the floor in the dining room. Once there, Ooi hit Bolat in the leg multiple times with a wooden stick until the…

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 Lee & Kong

Details

AGLC: R v Lee and Kong [2020] VSC 383
Case: [2020] VSC 383
Decision Date: 26 June 2020

CaseChat Overview and Summary

In the case of R v Lee & Kong, the defendants were convicted for their involvement in an incident of common assault. The matter was heard by the Supreme Court of New South Wales. The defendants, Lee and Kong, were found to have assisted the principal offender in committing the assault, driven by fear of the principal offender rather than any malicious intent of their own. Both defendants entered a plea of guilty and undertook to provide evidence against the principal offender, who was separately charged with murder.

The legal issues before the court included the appropriate sentencing for Lee and Kong, considering their plea of guilty and the mitigating circumstances of their involvement being motivated by fear. The court was required to balance the severity of the crime with the defendants' cooperation and the potential deterrence of future criminal behaviour. Another issue was the extent to which their fear of the principal offender could be considered in determining their culpability and sentencing.

The court held that while the crime was serious, the mitigating factors of the defendants' fear and their cooperation in providing evidence against the principal offender warranted a reduced sentence. The court acknowledged the complex dynamics of fear and coercion in criminal behaviour, and while it did not excuse the defendants' actions entirely, it did influence the sentencing decision. The court ultimately determined that a custodial sentence was necessary but opted for a shorter term than might otherwise be imposed, reflecting the mitigating factors. The final orders included a custodial sentence for both Lee and Kong, with specific details of the sentence length and any conditions attached.

Orders