R v Li

Case [2005] NSWCCA 154

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina (Commonwealth) v Kai Kong Li, Regina (Commonwealth) v Chung Tak Chan, Regina (Commonwealth) v Po Chong Fan, Regina (Commonwealth) v Tat Sang Chung, Regina (Commonwealth) v Kai Kong Li [2005]  NSWCCA 154

FILE NUMBER(S):
2004/1720
2004/1683
2004/1719
2004/1864
2003/2973

HEARING DATE(S):               10 December 2004

JUDGMENT DATE: 25/05/2005

PARTIES:
Regina (Commonwealth), Kai Kong Li, Chung Tak Chan, Po Chong Fan, Tat Sang Chung

JUDGMENT OF:       Spigelman CJ Wood CJ at CL Hidden J Barr J Hislop J 

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          00/11/0318 (Li)
00/11/0323 (Chan)
00/11/0317 (Fan)
00/11/0319 (Chung)

LOWER COURT JUDICIAL OFFICER:     Shadbolt DCJ

COUNSEL:
R Sutherland SC/ G Bellew (Crown)
J Stratton SC (Li) (Applicant)
G Turnbull (Chan) (Applicant)
M Austin (Fan) (Applicant)
P Strickland (Chung) (Applicant)
J Stratton SC (Li) (Respondent)

SOLICITORS:
Commonwealth Director of Public Prosecutions (Crown)
Hardinlaw (Li)
Andrew Solicitors (Chan)
Hardinlaw (Fan)
Hardinlaw (Chung)
Hardinlaw (Li)

CATCHWORDS:

LEGISLATION CITED:
Customs Act 1901
Crimes Act, Commonwealth
Criminal Appeal Act 1912

DECISION:
Kai Kong Li: Dismiss the Crown appeal. Grant leave to appeal but dismiss the appeal
Chung Tak Chan: Grant leave to appeal and allow the appeal. Quash the non-parole period and set a non-parole period of twenty-eight years, commencing on 14 October 1998 and expiring on 13 October 2026
Po Chong Fan: Grant leave to appeal but dismiss the appeal
Tat Sang Chung: Grant leave to appeal but dismiss the appeal. 

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/1720
2004/1683
2004/1719
2004/1864
2003/2973

SPIGELMAN CJ
WOOD CJ AT CL
HIDDEN J
BARR J
HISLOP J

25 MAY 2005

REGINA (COMMONWEALTH) v KAI KONG LI

REGINA (COMMONWEALTH) v CHUNG TAK CHAN

REGINA (COMMONWEALTH) v PO CHONG FAN
REGINA (COMMONWEALTH) v TAT SANG CHUNG
REGINA (COMMONWEALTH) v KAI KONG LI

JUDGMENT

  1. SPIGELMAN CJ: I agree with Barr J.

  2. WOOD CJ at CL: I have read in draft form the judgment of Barr J.  I agree with the orders proposed, and with the reasons of his Honour.

  3. HIDDEN J:  I have had the benefit of reading in draft the judgment of Barr J.  I agree that the Crown appeal against the sentence passed upon Li should be dismissed.  However, as to the applications by the four men for leave to appeal against their sentences, I agree with Barr J’s disposition of all the grounds of appeal except the ground of disparity insofar as it is based upon this Court’s decision in Mandagi [2002] NSWCCA 57.

  4. I was a member of the majority in Hodges (1997) 95 A Crim R 85, expressing my agreement with the judgment of Simpson J. As Barr J has observed, that case did not enunciate any new principle about parity of sentence. It was, however, a demonstration of the flexibility with which the familiar principles should be applied to achieve justice in the individual case. So, in my view, was Mandagi, in which the Court was faced with a somewhat similar problem.  With respect, I consider that…

Continue reading R v Li

Sign in free to access the full text

Details
AGLC
R v Li [2005] NSWCCA 154
Case
[2005] NSWCCA 154
Decision Date

CaseChat Overview and Summary

In the case of R v Li, four individuals were convicted of their involvement in the importation of the largest consignment of heroin ever seized in Australia. The heroin, weighing 389 kilos and containing 252.3 kilos of pure heroin, was found on a speedboat launched from the cargo ship Uniana off the coast of northern New South Wales. The Uniana, a fishing trawler converted for the heroin trade, was intercepted by Australian customs and naval vessels beyond territorial limits, and the crew, along with the occupants of the speedboat, were arrested. The case raised significant legal issues regarding the interpretation and application of various provisions under the Customs Act 1901, the Crimes Act, Commonwealth, and the Criminal Appeal Act 1912. The primary issues before the court involved the interpretation of the relevant statutory provisions, the principles of sentencing, and the proportionality of sentences imposed on the offenders.

The court considered the nature of the crime, which was described as a highly sophisticated criminal enterprise involving professional criminals. The court emphasized the seriousness of the offence, given the massive quantity and value of the heroin involved. The court also examined the roles of the offenders in the importation process, considering their knowledge, participation, and the extent of their involvement. The court assessed the sentences imposed by the sentencing judge and determined whether they were appropriate and proportionate to the gravity of the offence and the offenders' respective roles. The court noted that the sentences imposed reflected the serious nature of the crime and the significant roles played by the offenders in the criminal enterprise.

In the outcome of the appeals, the court upheld the sentences imposed by the sentencing judge, finding them to be proportionate and appropriate to the gravity of the offences and the offenders' roles. The court rejected the appeals and affirmed the sentences, recognising the significant contribution of the offenders to the criminal enterprise and the need for deterrence and denunciation in such serious cases of drug importation. The court's decision emphasised the need for stringent penalties for those involved in large-scale drug trafficking, reflecting the gravity of such offences and the potential harm to society.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The offenders concerned in these appeals are but four of a substantial number of people who were involved in the importation into Australia of the largest consignment of heroin ever seized. This is how the sentencing judge, Shadbolt DCJ, summarised the facts. I have retained his Honour’s references to offenders not concerned in these appeals because the grounds of appeal give rise to the need to compare sentences of several of the offenders one with another. Background and Trials On 13 October 1998, the Uniana, a small cargo ship, hove to and launched a speedboat with a crew of three off the coast of northern New South Wales, near Port Macquarie. The Uniana was at this point some 20-25 nautical miles from the coast and therefore, at the time, beyond territorial limits. The speedboat reached shore. The occupants were arrested and the shore based support group was pursued and its members taken into custody at Nabiac. These four men are those who stand for sentence today. Fourteen duffle bags containing many kilos of heroin powder were found stowed in the speedboat. In the early hour of 14 October the Uniana, which had strayed within territorial waters, was pursued by two customs boats and the HMAS Bendigo. It was arrested, boarded and searched and the crew was taken into custody. The amount of heroin powder seized on the beach was found to weigh, on analysis, 389 kilos and to contain 252.3 kilos of pure heroin. Its value wholesale was said to be 77 million dollars and retail, 605.52 million dollars. It was the conclusion of a long and doubtless expensive investigation which ranged from Hong Kong to Australia and New Zealand. The Uniana was in fact a fishing trawler which had been specially converted for the heroin trade. Although its gunwales had been raised, its thus enlarged cargo hold contained only a speedboat held in a specifically constructed cradle. The ship’s single functional derrick was installed solely for the purpose of lifting this boat out of the hold and launching it. The remainder of the space was used to accommodate long range tanks to obviate the need for frequent refuelling. One of those intimately concerned in the importation of the heroin, a prisoner called Chan, gave evidence of the ship’s voyage from Hong Kong to the Andaman Sea, where the heroin was loaded at night, many miles from the coast. Also brought on board was a Chinese national, a man called Chen. The voyage then continued south down the Kra Isthmus, through the straits of Malacca to Singapore, where the Uniana was refuelled in international waters by a bunkering lighter which, by prearrangement, came out from Singapore to meet it. It then proceeded without again stopping, except to lower the speedboat in order to test the engine, towards Australia sailing south in the Java Sea, north through the Macassar Straights and then south east along the northern coast of New Guinea until it reached Alotau where it turned south through the Coral Sea to Australia and its final destination of Port Macquarie. The heroin was stowed in a secret compartment beneath the hold, which housed the speedboat. The void space, which could be entered by a hatch in the hold deck, contained a specially constructed valve which could flood the compartment in case of a sudden search and so deceive any customs officers. The crew, largely Indonesian, had been recruited over a period for another small vessel, the Anshun and on the day before they left Hong Kong, this crew was transferred to the Uniana which had, a little time before, been refitted and registered in Belize. Mandagi, the Captain of the Uniana, put forward at his trial an account that he did not know the nature of the cargo he carried. This was plainly rejected by the jury. He was present on the bridge when it came on board and when it left at Port Macquarie. Throughout the voyage he had falsified the log so that nowhere did the voyage to the Andaman Sea appear. Documents found on board, several of them forged, show him as a captain on a voyage from Hong Kong to Manila Harbour and thence to New Zealand, post dated approximately a month after he had sailed from Hong Kong. The log had in fact, quite contrary to what he told the jury, been falsified from the first day. The Uniana had never been nearer a Hong Kong Harbour than the outer port limits and no record of it being there exists. Yet in the log it is recorded as sailing from within the port of Hong Kong.Similarly, the only engine log discovered commenced when the actual course of the Uniana intersected the falsified course from Hong Kong to Manila and south from there.Of Mandagi’s officers, Saud Siregar, the first engineer and Ismunandar, the chief officer, were also convicted. The other officers, including the second mate Puluh, the second engineer, Rumuat and the entire deck crew of Suhendar, Supriadi, Hasbullah, Asrizel, Aliwardana and Maslim, were acquitted. The two Chinese, Chan and Lau, who sailed with the Uniana as some form of supernumeraries, were arrested, Lau while still on board and Chan, who had driven the speedboat, on Grants Beach. Chan pleaded guilty and gave evidence against the others who sailed with the ship. Lau, who pleaded not guilty, was convicted by the jury. Chen, the Chinese national who came on board with the heroin and landed with it on Grants Beach, pleaded not guilty and was convicted by the jury. Lau had maintained, through his counsel, for he did not give evidence, that he had, as Chan told police, been invited on board as a Mandarin interpreter and Chen gave an account of being an economic refugee who had arrived an board coincidentally with the heroin. Neither prisoner’s account raised a reasonable doubt, perhaps in Lau’s case because there had been no explanation for his journeys to Cambodia just prior to the Uniana sailing and the 18 million Hong Kong dollars that had gone through his account at that time and in Chen’s case, his account of travelling from China to Burma had become so convoluted in its telling, as he sought to make it accord with known and established facts, that it was incapable of belief. Lau was never able to explain why a forged passport with his photograph in it was waiting on the beach, nor Chen why someone would have placed a Glock pistol in his luggage. …The importation represented a crime of massive proportion perpetrated in a disciplined manner by criminals able to marshal money, ships, speedboats, crew, other personnel and a refuelling at sea. It was a highly sophisticated criminal enterprise conducted by professional criminals whose connections stretched over several countries. The amount of heroin intercepted, its quantity and consequent value, alone placed this crime within that band of such crime that may properly be labelled most serious.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

SPIGELMAN CJ WOOD CJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: SPIGELMAN CJ, WOOD CJ

Full text does not contain this section.