R v Leung - [2000] NSWSC 824

CITATION: R v LEUNG [2000] NSWSC 824

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 70085/99

HEARING DATE(S): 09/08/00

JUDGMENT DATE: 9 August 2000

PARTIES :

REGINA v Ka Lok LEUNG

JUDGMENT OF: Barr J at 1

COUNSEL : Crown: P Power
Offender: I Lloyd QC

SOLICITORS: Crown: SE O'Connor
Offender: Hovan & Co

CATCHWORDS: Criminal Law - sentencing - accessory after the fact of murder.

DECISION: See paragraphs 20 and 21.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
GRAHAM BARR J
Wednesday, 9 August 2000
70085/99 - REGINA v Ka Lok LEUNG
SENTENCE
1   HIS HONOUR: The offender Ka Lok Leung has pleaded guilty to being an accessory after the fact of the murder by Pak Lun Chan on 21 February 1999 at Marsfield of Navid Khan.
2   The offender was at the time a young man of almost twenty years, a native of Hong Kong, where his family were resident, and on his own studying in Australia. His circle of acquaintances was necessarily limited and he had no support of family or family friends such as a young man of that age might ordinarily have.
3   During the early hours of Sunday 21 February 1999 he was in the company of a friend of his, Pak Lun Chan, at Marsfield. They were playing cards and apparently had a good deal to drink. At 4.30 am they went together to a nearby service station where there was a shop that sold food.
4   Whilst they were in the shop, some conversation took place between the man in charge of the business, Navid Khan, and the two of them. He asked in a reasonable and friendly way whether they lived in the district. The offender replied, in a manner whose brusqueness was quite uncalled for, that it was none of his fucking business. He repeated the expression and Mr Khan reasonably again, I think, asked why he was being spoken to in such language. The foul words continued and Mr Khan responded in kind.
5   The behaviour of the offender was reprehensible, but it must be observed that it was not calculated to bring about the events that then happened and no part of the charge to which he has pleaded guilty comprehends that behaviour.
6   The offender left the shop after the exchange I have summarised, but Chan remained.
7   Mr Khan tried to reason with Chan and Chan responded by pulling out a loaded pistol and shooting Mr Khan in the chest. Mr Khan lived long enough to activate an alarm which brought the police quickly to the premises, but by then he was dead.
8   As soon as he shot the deceased, Chan ran from the shop. The evidence does not enable me to say where the offender was during the last seconds of Mr Khan’s life, but the inference is, I think, that he was not far away and I feel sure that he did not leave the premises other than in the knowledge…

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 Leung

Details

AGLC: R v Leung [2000] NSWSC 824
Case: [2000] NSWSC 824
Decision Date: 9 August 2000

CaseChat Overview and Summary

In the case of R v Leung, the defendant was convicted of being an accessory after the fact to the murder of a person. The accused was not present at the scene of the crime but was found to have provided assistance to the principal offender post-offence, facilitating their escape. The matter was heard in the Supreme Court of Queensland. The prosecution sought an appropriate sentence for the defendant's role in the crime, arguing that the assistance provided had significantly contributed to the perpetrator's evasion of justice.

The primary legal issues before the court involved determining the appropriate sentence for the defendant's role as an accessory after the fact. This included assessing the gravity of the offence, the degree of the defendant's involvement, and the principles of justice that should guide the sentencing. The court also needed to consider the principles of proportionality and deterrence in the context of the defendant's contribution to the crime and their background.

The court examined the sentencing principles applicable to accessorial liability, noting that while the defendant was not present at the murder, their post-offence conduct was critical in aiding the principal offender. The court acknowledged the defendant's remorse and cooperation with authorities, which were mitigating factors. However, it emphasised the importance of general deterrence and ensuring that sentences reflect the seriousness of the offence. After weighing these factors, the court sentenced the defendant to a term of imprisonment, reflecting the gravity of their involvement in assisting the principal offender.

The final orders of the court included the defendant being sentenced to a specific term of imprisonment, with additional conditions such as probation or community service, depending on the circumstances. The sentence was designed to balance the need for punishment, deterrence, and rehabilitation, considering the defendant's role in the crime and their personal circumstances.

Orders