R v Li

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

SPIGELMAN CJ: I agree with Barr J.
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.
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.
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 the Court’s approach in that case was appropriate and that, in all the circumstances, the substituted sentence was not inadequate.
I appreciate that the development which led to the Court’s intervention in Mandagi was unfortunate, particularly given that the experienced sentencing judge had carefully distinguished the culpability of each offender in the light of the evidence upon which each of them had stood for sentence. I am also aware that to give the decision in Mandagi the effect I think it should be given is to generate something of a chain reaction, leading to a reduction of the sentences of these applicants, while creating an imbalance between those sentences and the sentences faced by Ismunandar and Siregar. Nevertheless, in the light of that decision, I am satisfied that justice demands some adjustment of each of the applicants’ sentences.
As I am aware that my view is not shared by the other members of the Court, no purpose would be served by specifying the sentences which I would have substituted. It is sufficient to say that I would have sentenced each applicant to a substantial determinate sentence. In the cases of Li, Fan and Chung, I would have specified non-parole periods not much less than those fixed by the sentencing judge and, in the case of Chan, a non-parole period not much less than that proposed by Barr J. Such an approach could have yielded sentences which remained adequate to reflect the undoubted gravity of each applicant’s criminality.
BARR J: The applicants, Kai Kong Li, Chung Tak Chan, Po Chong Fan and Tat Sang Chung, seek leave to appeal against sentences imposed in the District Court after each pleaded guilty of or was convicted of having been knowingly concerned in the importation into Australia of prohibited imports to which s233B Customs Act1901 applied, namely narcotic goods consisting of not less than the commercial quantity of heroin. The Crown appeals against the sentence imposed on Kai Kong Li.
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.
His Honour referred to the judgment of the High Court of Australia in The Queen v Olbrich (1999) 199 CLR 270, where it was observed that there was a practical reason why sentencing judges are not obliged to enquire about the cause of events before or after an importation of drugs and how the Court often has only the most limited information about how the offender standing for sentence came to commit the offence, especially where there has been a plea of guilty and the offence has had its genesis outside the country. His Honour referred to what the Court said about the distinction that might be made between different participants in a business venture organised hierarchically and the usefulness of indicating where an offender fits into the hierarchy. His Honour cited a further passage from the judgment to the effect that the sentence to be passed depends on what the offender did and who the offender was, not on what others may have hoped to gain from his activity. His Honour continued -
However, the part each played in the commission of the crime before this Court, because the inquiry was so long and thorough, is to some extent known. To the extent to which the activities of each is before the Court, it is possible to distinguish and differentiate one from the other.
Of those apprehended because either by design or accident they came within this jurisdiction, are some who must be regarded as principals. Lau, Chen and Chan are in this group. There will of course, always be someone somewhere else who is said to be more controlling than those apprehended, someone to whom those apprehended will point to as boss and who will always remain in the shadows elsewhere, but in this case, so large was the importation, so great the risk of apprehension or hijack, that those entrusted with its purchase and care were themselves part of the organising gang. They were not then only the most involved of those who came within this jurisdiction and were caught, but most involved in the enterprise itself.
In regard to those who stand today to be sentenced, their conduct will be analysed in accordance with the following nine points:
1 The precise nature of the task performed.
2 The part that function played in the whole.
3 The degree of capacity for independent action as far as it was exposed by the evidence.
4 Any special skills required to perform the task.
5 The capacity to make structural alterations to the plan.
6 The contact maintained with others performing other activities.
7 The degree of trust reposed by others in the prisoner under consideration.
8 The degree of knowledge of the whole operation.
9 The capacity to stop the crime.
The sentences imposed on the several participants were as follows -
Krist Tito Mandagi: Imprisonment for life with a non-parole period of twenty-five years;
Sidiki Ismunandar: Imprisonment for life with a non-parole period of twenty years;
Kong Hoi Lau: Imprisonment for life without a non-parole period;
Chi Keung Chan: Imprisonment for thirteen years with a non-parole period of ten years;
Wei Ming Chen: Imprisonment for life without a non-parole period;
Saud Siregar: Imprisonment for life with a non-parole period of twenty years;
Kai Kong Li: Imprisonment for twenty-four years with a non-parole period of eighteen years;
Po Chong Fan: Imprisonment for life with a non-parole period of twenty-eight years;
Chung Tak Chan; Imprisonment for life with a non-parole period of thirty years; and
Tak Sang Chung: Imprisonment for life with a non-parole period of twenty-eight years.
As will appear, Mandagi’s sentence was reduced on appeal to the Court of Criminal Appeal to imprisonment for twenty-seven years with a non-parole period of nineteen years.

Kai Kong Li

Li’s first ground of appeal is that his Honour erred in not finding that Li did not know that the substance being imported was heroin. The Crown appeals partly on the ground that his Honour erred in finding that the precise nature of Li’s role was that of driver and general hand and that the degree of trust placed in him by his colleagues was limited.

Dealing with the case against Fan, Li and Chan, his Honour said this -

The case against Fan, Li and Chan to which they have each pleaded guilty is as that against Chung.

So ample is the evidence of preconcert that all the conversations are to be regarded as common to each, these conversations being in furtherance of the common purpose.

Chung, Li and Fan all arrived on the same flight to Sydney on 07/08/98 and whilst they separated into two hotels, Chung to the Holiday Inn and the others to the Sheraton, they moved shortly thereafter to 5/2A Tangara Street Croydon Park, which was rented on a six month lease. They were in Sydney eight days before the Uniana sailed. Chung undertook lessons with the Hong Kong Driving School to gain his New South Wales driver’s licence.

In the weeks that led up to 14 October, they drove around Sydney to orientate themselves and to familiarise themselves with the suburbs.[Moll Master Tape 1 @ page 6] On 28 August additional premises were rented by Chung, who later moved into them.[Moll Master Tape 1 @ 10] Whilst they drove around Sydney, Federal Agents, who had placed devices in the cars they hired, listened to them talking about the job, its location, the need for security, [Moll Master Tape 3 @ page 21] the need for camouflage, [Moll Master Tape 53A @ pages 8&9] the overheads of the job, training and getting licences.[Moll Master Tape 12 @ pages 5&6] Li and Fan conducted a reconnaissance of McBride’s Beach, [Moll Master Tape 6 @ pages 7-8] which was later rejected as unsuitable because of the steep decent, which made vehicular access impossible.[Musk Master Tape 47 @ page 41] Codes were discussed, public telephones randomly chosen for use and the need for a further flat to be leased for the ‘cut’.[Moll Master Tape 25 @ pages 20-21]

Chan arrived on 6 October and was met by Fan. Chan and Fan were monitored [Moll Master Tape 28 @ page 98] discussing what had to be moved, namely 500 pieces in 14 cardboard boxes. In reality, there were some 564 blocks which had arrived on the Uniana in 13 rice sacks. So much was there, that it took all night to unpack, rewrap and repack into sports bags. Chen, who came on board with the heroin, is referred to in these conversations as the ‘jockey’.[Moll Master Tape 28 @ page 97] In the course of this context, they were seen to be in the expectation of receiving 500 kilos and discussed the capacity of the group to lift and carry it. It was probably in this conversation that McBride’s Beach was abandoned and Grants Beach favoured. More importantly, during 6 October another conversation was recorded when all four were present, when it was suggested that local labour could be recruited to carry the drugs as had been done in mainland China with a cargo of marijuana, but this was different. “Your stuff is different and heavy.” In this conversation the hidden compartment is mentioned.[Moll Master Tape 30 @ page 7] A further four wheel drive was hired and together the two Taragos were driven north, complete with eight new bags, broom (handles), torches, thermal underwear, fishing gear and flippers.[Moll Master Tape 31 @ pages 5-6]

Chan and Li booked into the All Seasons Country Lodge Motel at Port Macquarie whilst Fan and Chung booked into a motel at Bulahdelah. In a conversation between these two, one of them spoke to the other about the difficulty of driving when carrying several ‘hundreds’, which was a ‘threat to peace of mind’.[Oxen Master Tape 2 @ page 18]

All four were observed on the beach, torches were placed, two stationary and two mobile. At approximately 1.40 car headlights were seen both by police and the prisoners. It was not a police car and its presence there was purely coincidental, but the incident served to startle the prisoners and they left, abandoning passports, torches, poles and food as they fled.

Dealing with Li’s case on sentence, his Honour said this -
The prisoner Li also asserts that he was ignorant of the precise nature of what was to be imported. He claims to have been recruited as an unsuccessful business man indebted to his sister to the extent of $150,000HK by fellow prisoner Chung Tak Chan. It was this sum that he intended to recoup by this criminal enterprise.
He thought it to be an exercise in the nature of people smuggling. It was only later that he learnt that it had been changed to marijuana and only after his arrest did he learn that it had been changed, once again, to heroin, a matter which deeply shocked him. He came to Australia twice, once for the initial reconnaissance by Chan Chi Keung of Grants Beach and later for the operation itself. He came here with Fan, Chung and a woman, Jane Wong, the latter person forming no part of these trials. Whilst he too used mobiles with untraceable cards, or made calls from public telephone boxes, he did so only for the sake of convenience. It was only for the sake of convenience that he obtained a driving licence.
Under cross-examination, it appears that his association with Chung Tak Chan was continued in Hong Kong despite the fact that he knew him to be a criminal. He had also known Fan for approximately the same time. He claims to have come here on the first of two visits in connection with the Uniana, without any express reason, with no known function and entirely at the generous insistence of Chan. Despite the fact that Chan had not paid him some $3000 for a previous DVD smuggling episode which he assumed was because Chan had lost money on the deal, he never asked him for it. He seeks the Court to accept that he was only invited because he was a good driver. His time here seems to have been spent driving around and having yum cha.
The prisoner is quick to ignore inconsistencies, to deny previous inconsistent statements and to fall to making emphatic speeches when he felt threatened. His account of this visit is quite beyond belief.
He had throughout the cross-examination equivocated and denied the obvious, particularly in response to his state of knowledge during the first journey to this country. To say that he was invited to come to Australia to ‘do something’, of which he made no further inquiry, is unacceptable. It was plain that he knew he would be returning despite his denials. That is why he was required on the first trip to familiarise himself with the route to be taken to Port Macquarie.
When cross-examined regarding the leasing of flats, he gave as a reason that they would be required to accommodate 10-20 illegal immigrants, all of whom were to be housed in the one 2 bedroomed flat.
His desire for secrecy to be seen in buying untraceable phone cards, using public telephones and in using a credit card in a false name, is in sharp contradistinction to his assertion that people smuggling is hardly to be regarded as illegal. The attempt to hide behind the orders of Chan, cannot be accepted. Equally, his lack of recollection as to the place where he was told that the task would be importing marijuana, points to his unwillingness to position it anywhere where the conversations were overheard and taped, which prove indubitably that it did not occur.
He, as Fan, is unable to point to any recorded conversation along this line.[Transcript 4/6/03]
His knowledge of locations A and B and their respective merits, [Moll 28 @ pages 2 & 3] belies his claim to ignorance of the plan. He knew when he bought the sports bags they were to be used in an imminent importation and that he would be collecting narcotics and returning them to Sydney. That he believed that eight sports bags of marijuana would have recouped his expenses for two trips to Australia, his sustenance for two months here and a promised reward of over $100,000, is not accepted.
The limitation of his knowledge advanced by way of mitigation fails on balance to satisfy the Court and is rejected.
Turning to Li’s position in the offence and subjecting his conduct to the matrix of the nine points, it appears that the precise nature of the task he performed was one of driver and general hand. The part that he played in the function of the whole is of great significance. He had to all intents and purposes no capacity for independent action, nor was there any special skills apart from driving, required to perform his task.
I am prepared to accept that he had no capacity to make any structural alternations to the plan. He had contact with Chan, but no-one above. The degree of trust reposed in him by others appears to be very limited. He is described by Fan and others as “not up to the class”, “does not know what is going on”, “not capable” and “not soaked in the society long enough”. It was said of him that he was a “dumb person” who “needed training”.
I am satisfied beyond reasonable doubt that he knew precisely why he was here and what he was to do, but once having made the decision to come, was financially and probably physically incapable of stopping the crime.

The burden of proving that he did not know that what was being imported was heroin rested on Li. In this Court Mr Stratton SC referred to transcripts of conversations between the co-offenders, some involving Li, which had been recorded by investigating police officers. These are the relevant ones -
Part of a conversation on 30 September 1998 between Chan, Fan, Li and Chung, translated by Wendy Chen -
4204
FAN: Fei Chai, let’s look around the street, find some ‘devil kids’ (meaning western kids), ignorant ‘devil kids’, invite a few ignorant ‘devil kids’ to help.
CHAN: No way.
FAN: Just like in Mainland China, the whole group of courier went to lift them …
CHAN: Of course you can do it in Mainland China, they are ignorant, when I was in Mainland China, over … marijuana, we could not carry them, we thought about it earlier that night, when the boat approached, we went down to the street and got courier, $100 each, …. ….after we all left and we let them go …….. ‘four eyed man’ (man with glasses) good on him …
FAN: That time when I was with ‘War Lung’, $150 dollars, … ,rent that car, just like taking a taxi, even carried things for us, …
CHAN: He would not be guilty.
LI OR CHUNG: Yes. (Not Guilty)
FAN: But, …, your ‘stuff’ is different, and is heavy.
FAN: In Mainland China, people are very ignorant, they do not know things, they actually do not know … things lying around is quite frightening.
LI OR CHUNG: They see it as playing games, they do not know it is, they just think that it is herbal medicine.
CHAN: Will you keep herbal medicine in a hidden compartment? Have to weld it open, take it out one by one from the hidden compartment, at the bottom of the boat?
4308
FAN: You know, when I was with ‘War Lung’ that time, when leaving, they asked what is the thing that was so heavy.
CHAN: How did you reply?
FAN: I do not have the shit (guts) to reply, how about you reply, …, my mandarin is not good.
CHAN: Tell him it is ‘white powder’ (heroin) (jokingly)
FAN: Ha ha …
4335
FAN: People here have lots of …..
4439
Part of a conversation between Li and Chung on 5 October 1998, translated by Stephen Chan -
LI: But I do not want my wife to know, … ,right?
CHUNG: You do, and don’t let your wife, I also don’t let my wife know, I just said to help other people convey smuggling goods, not telling the type of goods. It can’t be exposed to light [a common expression in Cantonese used in Hong Kong meaning ‘it’s not acceptable according to the norm of society’ or ‘it’s not legal’] but it’s not a serious matter. Just to say transporting the unlicensed goods, copying from the other people to make quick money…It has been such a long time and it’s still not yet transported, why? You said end of August, mid September and now October is coming …
Parts of conversations between Fan and Chan on 6 October 1998, translated by Stephen Chan -
FAN: …[IND] It’s only fourteen cardboard boxes only.
CHAN: Ten so big boxes of Da Ma [Phonetic spelling of words spoken. In Cantonese, it may mean Marijuana]? Then, Ah [pause]. Then there is one who is definitely coming down here. Is the jockey also coming down here.
…
FAN: A few days ago, a few days ago, he sucked Da Ma [Phonetic spelling of the words spoken. It sounds similar to the Cantonese words meaning ‘Marijuana’] Gave him/her six hundred dollars for him to do it yet he still has not done it so far. I said to let me have a share.
…
FAN: Didn’t take my money? … took five pieces of ‘Da Ma’ [Phonetic spelling of words spoken. The literal meaning of the Cantonese is ‘Marijuana’]
Part of a conversation between four unidentified speakers on 7 October 1998, translated by Stephen Chan -
UNIDENTIFIED SPEAKER: In fact, this Dai Ma [Phonetic spelling of the words spoken. May mean marijuana] that we are doing is not a small sum of money. It’s just that we have been eaten [our share is being kept] by Lo, the Vietnamese guy.
Part of a conversation between Li, Fan, Chan and Chung on 9 October 1998, translated by Betty Chung -
UNIDENTIFIED SPEAKER: The luckiest is [IND] wear back-pack. The poorest are I and [ah Bill]. One or two take/takes the mah [It can be the abbreviated form for grandma, hessian, straw, grass or marijuana] [IND] and immediately drive to leave. I and ah Bill will wait to be the last to leave…[IND] keep fucking working until the last to leave. [IND]
The numbers which appear in the transcripts are of the counter on the recording equipment. I have mentioned the names of the translators in order to draw attention to their different styles. The words in brackets were added by the respective translators in order to give a better explanation of the meaning of the words used by the speakers or to explain the choice of meanings open to the translator. I have omitted frequently repeated expletives. “[IND]” means indecipherable.
Li gave evidence on oath, the effect of which was that he first believed that the enterprise was to smuggle people. Early in September Fan told him that the nature of the job had changed or might change. It might become smuggling marijuana or people or both. Although his and Fan’s conversations during that time were being recorded, no such conversation appears on any of the tapes made. Li said that he could not remember where he and Fan were when Fan told him those things.
Mr Stratton informed this Court that the expression generally used (in Cantonese) to denote heroin is ‘white powder’.
In his evidence on sentence Li was asked about the conversation of 30 September. There were these questions and answers -
Q Sir, there was a clear reference to white powder or heroin in the course of that conversation, wasn’t there?
A Yes.
Q Prior to that reference to white powder or heroin you had heard Mr Fan say words to the effect: “Your stuff is different and it’s heavy”?
A Sort of.
Q I want to suggest to you that it was your understanding that when Mr Fan said the words “Your stuff is different and it’s heavy” he was talking about heroin?
A I didn’t know.
Q He was talking about heroin as opposed to marijuana which might have been the subject of some importation in mainland China previously?
A I didn’t know.
Q What did you think when you heard the word “heroin” mentioned in that conversation?
A I took it as a joke.
Q Did it ever occur to you when that word was mentioned that it might refer to the importation that was about to occur?
A No.
Q Are you able to explain, sir, the nature of this joke you thought arose from the use of the word “heroin”?
A They were talking about stories.
Q Stories about drug smuggling?
A They were talking about work they had previously done.
Q And the work was drug smuggling, wasn’t it?
A They talked about marijuana and also other stuff but since those are none of my business, I didn’t participate.
Q And they talk about heroin, didn’t they?
A At the last bit, yes.
By his plea of guilty Li admitted knowing that the importation was of narcotic goods. The goods were undoubtedly heroin. His case was that he thought they were marijuana. He had to satisfy his Honour that he was telling the truth in that respect.
Mr Stratton’s first submission on appeal was that there was no support for his Honour’s finding that the expression “dai ma” was ambivalent. The submission referred to a portion of his Honour’s remarks in dealing with Fan’s case. In dealing with Fan’s appeal I have extracted below a substantial portion of those remarks. The particular words referred to by Mr Stratton were these -
…the incomprehensible re-translation of two passages where the ambivalent word “dai ma” is used…
It seems to me that his Honour’s remark does not have the importance contended for. In other parts of the remarks on sentence his Honour accepted that the words “dai ma” or the word or words translated as marijuana in the conversation of 30 September meant marijuana and that the co-offenders were discussing measures they had taken on an earlier occasion to hire labour to move quantities of that substance in mainland China. Of course, the translator himself said that the words had more than one meaning, so they were ambivalent. Another possibility is that the word or words were used as a code. I would reject this submission.
The thrust of Mr Stratton’s submissions relied on the parts of the recorded conversations extracted above, particularly to Chung’s statement to Li that “it can’t be exposed to light but it’s not a serious matter” and Chan’s statement to Fan referring to “ten so big boxes of dai ma”.
The difficulty for Li on appeal is that while these extracts appear favourable to the case he was putting, they were only a part of the evidence. Li had to impress his Honour as a person who was probably telling the truth. He signally failed to do so. And to prove his case he had to explain away a number of things. One was why a co-importer, Fan, should deliberately misinform him about the nature of the goods. Another was the conversation of 30 September in which he and his colleagues appeared to talking about heroin. A third was why, when on 2 October 1998 Fan and Chung were discussing premises, one said to the other -
I understand your working’s not a problem. The question is about the “cut” and after the “cut” is finished…
“Cut” could hardly have meant the division of the proceeds of sale of the imported goods. Premises would not be needed for such a purpose. And marijuana would not seem to be susceptible of cutting, if that expression was to be given the meaning it ordinarily bears in the drug distribution industry.
Li’s principal difficulty may have been the reference in the conversation of 30 September to heroin. His explanation of the joke was unimpressive. It is not unknown for people wishing to conceal the identity of an illicit substance or purpose to say exactly what the substance or purpose is, on the assumption that the hearer will not believe the truth. That might be the explanation for the laughter at the suggestion that someone be told that what was being imported was heroin. If the words “…your stuff is different and is heavy” meant different from marijuana and heavy when compared to marijuana that would add support to such an explanation.
In my opinion it has not been shown that his Honour was bound to find that Li had proved his case on the balance of probabilities. Li’s first ground of appeal has not been made good.
In attacking his Honour’s findings about Li’s role, the Crown submitted that evidence showed that on his first visit to Australia, when the importation was being planned, Li went with Fan and Chan to inspect Grant’s Beach on the north coast of New South Wales. The purpose of the inspection was to decide whether the beach was suitable. Within days of his arrival on his second visit, on 7 August 1998, Li hired a four wheel drive vehicle and went with Fan to look again at Grant’s Beach. On 9 September he and Fan drove to McBride’s Beach to see whether it was suitable. He formed and expressed views about the suitability of the beaches.
It was submitted that in categorising Li as a driver and general hand his Honour had overlooked his first visit to the north coast. That visit showed that Li’s position was far higher than driver and general hand. This was said to amount to “a role of determining the suitability of locations”.
I do not think that his Honour overlooked Li’s first visit to the north coast or that his Honour erred in finding in effect that Li was present on each occasion to learn the way and transport the others and that it was others’ function to decide where to beach the narcotics. The others must have had some reason for going there. The obvious reason for Li’s going there was that he was the driver. His observations that a beach was unsuitable because egress was too steep or because it was too close to houses were hardly profound and there was no evidence that his opinion swayed that of the others. It must also be observed that, as his Honour found, the others thought little of his ability.
It was further submitted that Li’s function extended to the distribution of narcotics after he had delivered them to Sydney. Attention was drawn to this evidence, in which Li was cross-examined about a document which Fan had, setting out codes for certain locations in Sydney -
Q And they were codes to be used in association with the distribution of these drugs once they had been imported?
A At that time I didn’t know this fact.
Q Sir, you learned that to be the case after you had first seen the document, didn’t you?
A It showed me how to find a location.
Q For the purpose of distributing drugs?
A Yes.
However, there was also the following evidence about the bags he had bought -
Q You knew because you bought 8 of these bags that there was going to be a significant quantity of narcotics arriving in Australia within a few days?
A Yes.
Q And it was going to be your function to be there when the narcotics arrived?
A If the need arise we would use those bags.
Q And you were going to transport the narcotics from the beach to the car?
A Yes.
Q And you were then going to be responsible for transporting the narcotics back to Sydney?
A Correct.
Q And then distributing them by reference to the codes that you had developed some weeks before with Mr Fan?
A As for this part, it wasn’t decided yet.
The only evidence on this topic pointed to by the Crown came from the mouth of Li himself. For reasons which his Honour explained, Li was an unsatisfactory witness, but even he could not on the evidence be said to have admitted to any responsibility for distributing the narcotics after he had delivered them to Sydney. Even if his Honour disbelieved Li’s answer-
As for this part, it wasn’t decided yet.
that could not amount to proof that it had been decided.
In my opinion his Honour did not err in not finding that Li’s role included the distribution of narcotics.
The Crown attacked his Honour’s conclusion about the degree of trust the others placed in Li. The Crown conceded that Li had been described by Fan and others in the ways cited by his Honour but submitted that Fan’s opinion was largely irrelevant. I do not agree. Then it was submitted, in the alternative I think, that Fan criticised the ability of others as well. The implication was that his Honour ought to have found that Fan did not hold the views he expressed or, perhaps, that they were of no consequence. I would reject such a submission.
The Crown also relied on the role which it submitted Li played and was to play in planning, deciding on the suitability of beaches, expressing his opinion about such matters and in distributing narcotics as showing that the others must have put their trust in him. I would reject that submission for the reasons I have already explained.
The final submission is best repeated verbatim from the Crown’s written submissions, thus -
60. Further, at ROS 11.9 his Honour found that the co-accused Chung was “a trusted member of the organisation”. His Honour did not seek to qualify that finding in any way by placing (as he did in the case of the Respondent) a limitation on the degree of trust reposed in the co-accused Chung. Significantly, there was no evidence that Chung played any role in the planning of the operation, nor was there any evidence from which it might be concluded that it was part of his role to ascertain the suitability of locations for the importation to be carried out. It is submitted that such matters further highlight the error in his Honour’s finding regarding the limited degree of trust said to have been reposed in the Respondent.
61. His Honour’s conclusion that the degree of trust reposed in the Respondent was limited, but that the trust reposed in the co-accused Chung was not similarly limited, was unsupported by the evidence. It is submitted that there was a little to differentiate between the Respondent and the co-accused Fan in respect of this issue. But for the matters referred to in paragraph (60) above, there was little or no difference in their activities.
The submission depended for the most part on the unwarranted assertion that Li was a planner, which he was not, and I reject it.
Li’s remaining grounds of appeal are as follows -
2. His Honour erred in applying the principle of parity, leaving the applicant with a legitimate sense of grievance;
3. The sentence imposed upon the applicant is manifestly excessive.
It is necessary before comparing Li’s and others’ sentences to make some general remarks. There is no rule of law that requires co-offenders to be given the same sentence for the same offence, even if no distinction can be drawn between them: Lowe v The Queen (1984) 154 CLR 606, per Dawson J at 623. As Street CJ said in R v Tisalandis [1982] 2 NSWLR 430 at 431, an assertion that there is a disparity between a sentence under challenge and another which ought to be comparable, if not identical, is but a particular instance of the general proposition that the sentence under challenge falls outside what might be described as the general pattern of sentencing for the crime under consideration. The objective on appeal is the attainment of even-handedness in sentencing and there remains in this Court a power to modify a sentence which conforms with the general pattern, and thus does not offend the concept of general even-handedness, so as to bring it into or towards conformity with another leniently disparate sentence in order to achieve particular even-handedness as between individual sentences which ought to be equivalent or at least comparable. His Honour said this at 431-432 -
Consistently with the foregoing, it has long been recognised that ordinarily the initial inquiry by the appellate court is directed to whether the sentence under challenge, viewed individually, is so heavy as to attract of itself appellate intervention before it will be corrected with a view to eliminating or diminishing any disparity vis-à-vis another sentence which it could have been expected to be equivalent or comparable. Special significance is to be attached to the adverb “ordinarily” in the foregoing formulation of the general approach of the court. An analysis of many cases where an argument based on disparity has been considered, and either upheld or rejected, in recent years will disclose that, where the interest of justice so require, the Court of Criminal Appeal will not refrain from interfering with a sentence which, in the absence of particular disparity, would not have been the subject of appellate intervention. In the interests of justice it has at times been thought necessary, in eliminating or diminishing disparity, to reduce a sentence to a level which would probably be criticised as inadequate.
Nagle CJ at CL said this at 441 -
It is probably correct to observe that no single circumstance is more given to creating dissatisfaction, not only in the prison community but to the public at large, than sentences which are obviously disparate. However, this does not mean that in each and every case where it can be demonstrated that there is a disparity between sentences this Court should interfere. It goes without saying that disparity can be minimal or maximal and to lay down as a principle of law that once disparity was shown to exist a sentence appealed against should be interfered with is so obviously wrong that it needs no argument.
The principle there stated continues to be the law of Australia, as is demonstrated by the judgments of the majority of the Justices of the High Court of Australia in Lowe v The Queen: see the judgments of Gibbs CJ at 609-610, Brennan J at 617 and Dawson J at 623. Wilson J agreed with Gibbs CJ and Dawson J.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality: Postiglione v The Queen (1997) 189 CLR 295 per Dawson and Gaudron JJ at 302.

What these authorities make clear is that disparity between sentences is not of itself a basis of appellate intervention but a factor to be weighed when the Court considers whether the sentencing process has been attended by error and, if so, whether the Court should intervene.

One of the participants with whose sentence the applicants would wish to compare their sentences was the Captain of the Uniana, Mandagi. His Honour sentenced Mandagi to imprisonment for life with a non-parole period of twenty-five years. His Honour sentenced another co-offender, Chi Keung Chan, to imprisonment for thirteen years with a non-parole period of ten years. In order to arrive at those figures his Honour started with a head sentence of thirty-six years and reduced it to twenty-six years, with a non-parole period of twenty years, to allow, under s16G Crimes Act, Commonwealth for the lack of remissions in New South Wales, and reduced those terms by fifty per cent for assistance Chan had given and had promised to give to the authorities.
Mandagi brought on his application for leave to appeal for hearing in this Court after Chan had given evidence in accordance with his undertaking. Mandagi’s only successful ground of appeal asserted a justifiable sense of grievance by comparison of his sentence with Chan’s. In short, his Honour sentenced Chan on facts established by the evidence before him. Chan’s subsequent evidence showed that his criminality was greater than had appeared to his Honour. Thus, through no fault of the sentencing judge, Chan had been given an unduly lenient sentence. Mandagi’s criminality was no greater than Chan’s. His sentence should be reduced accordingly. This Court accepted the submission.
In sentencing Chan, his Honour found these facts -
(1) The prisoner was employed for one journey.
(2) He was to be paid in a sum certain for his part in the enterprise.
(3) He brought to the enterprise special skills as a speed boat driver and navigator.
(4) He purchased items such as wet suits and goggles.
(5) He brought on board the co-ordinates for the rendezvous at the Thai/Burma border. A piece of paper with these co-ordinates on them he had received from Fei Lo Nam.
(6) He was never without money because he appeared to have outlaid cash for fares, goods and equipment purchased and was reimbursed 10,000 Hong Kong dollars.
(7) He was required to negotiate with the captain who was becoming impatient at the delay at the rendezvous at the Thai/Burma border.
(8) He reported the safe arrival of the cargo but apparently was to take orders from Man Chai, who had come on board with the packages, as to their proper stowing. It was clear in the conversations that Fei Lo Nam knew the layout of the ship precisely.
(9) He took instructions from Fei Lo Nam and kept him informed.
His Honour said -
It is difficult to determine with precision his position in the hierarchy of this enterprise, firstly, because he has to be believed and this is difficult and secondly, because the relationship between the captain and those who either owned, purchased or transported the heroin is not clear.
His Honour regarded Chan as a specialist employed for one trip only with reporting duties but with no greater decision-making role than the performance of his duties to load and unload the heroin.
His Honour found that Chan was not among those most deeply involved in the importation.
Chan had given two accounts of himself, one on 14 October 1998, not long after his arrest, and the other in March 1999. In his evidence in Mandagi’s sentencing hearing his account went further. This is what this Court said of it in the principal judgment in Mandagi’s appeal -
[93] The materials before the judge included a statement by Chan on 19 March 1999. Allowing for some or much of it not being true it reveals that in April 1998 Chan sought work from Fei Lo Nam (Nam) knowing that it may involve smuggling people. Chan said that Nam, whose headquarters were in mainland China, told him that he had a vacancy for a speedboat driver and that he needed someone to take a very important person and his possessions to Australia. Chan was told:
...you will be taking one person and some precious luggage from a small boat to a big boat and then later take them to Australia. You will be paid $300,000 and I can give you $50,000 now.
Nam did so and said that he could give Chan another fifty thousand Hong Kong dollars if Chan needed it. Nam inquired if Chan spoke Mandarin. Chan recommended Ah Lung.
[94] Nam stated that he would contact Chan when there were further developments. Nam instructed Chan to buy a mobile telephone for himself and one for Nam and some phone cards including sim cards in another name. Chan was told never to purchase anything in his own name. Chan caused the cards and the mobile phones to be purchased, advised Nam, who arranged for them to be collected and Chan to be reimbursed.
[95] Chan stated that in early June 1998 Nam instructed him to go to Australia to look at some beaches to see if they were suitable to get a speedboat ashore. He would be met at Sydney Airport. Chan arranged for a visa and Nam caused arrangements to be made for airline tickets. Chan collected and paid for them. They included one night's accommodation in Sydney. Chan flew from Hong Kong to Sydney. Fei Chai met him, took him to his hotel and the following morning drove him to the Port Macquarie area. Fei Chai took Chan to three separate beaches. Chan considered the first beach he saw to be the most suitable and another one to be suitable. Fei Chai took a recording from a hand held Global Positioning System (GPS) and made notes. They stayed at a local motel. Fei Chai received calls on his mobile telephone (up to 3 or 4 each hour). They returned to the beach which Chan had nominated as most suitable on two more occasions, one at night and one during the day and assessed if the conditions were any different and to observe high and low tides. Fei Chai paid for everything in cash.
[96] On his return to Hong Kong Chan reported to Nam, who told him that the job would be done next month, that Chan's job was to drive the speedboat and that Ah Lung was to take care of the satellite telephone on the boat. Nam undertook to organise some special travel permits for Chan and Ah Lung and Chan gave Nam a passport photograph. Nam advised that they would be on the boat for two months and requested Chan to obtain medicines for the trip to take on the boat. Nam gave Chan a further fifty thousand Hong Kong dollars.
[97] About 12 August 1998 Nam instructed Chan to buy three wetsuits, three life jackets, three pairs of goggles and some torches for the trip. He did so, except that he could only purchase two pairs of goggles. Nam, Ah Lung and Chan had dinner together that night. Nam gave a new contact pager and mobile telephone number for himself to Chan and instructed him:
Give these co-ordinates and frequencies to the interpreter when you get on the boat, he will need to give them to the ship’s captain. … when you get to these co-ordinates call ‘Man Chai’ on the radio and someone will respond.
[98] Nam handed Chan a piece of paper containing all the details including the number of the satellite telephone on board the ship. Pursuant to instructions from Nam, Chan and Ah Lung put the 3 diving suites, 2 pairs of goggles, diving knife, 2 non-slip shoes, a mobile GPS, medical supplies, food, magazines and Chan’s personal mobile telephone on board the Uniana on the morning of 15 August 1998. Chan handed the pieces of paper given to him by Nam containing the radio frequencies and shipping co-ordinates to Ah Mong the Indonesian/Mandarin interpreter on board who handed such papers to the appellant (Mandagi). He later returned the pieces of paper. Chan and Ah Lung returned to Aberdeen, Hong Kong and had lunch. Nam instructed them to rejoin the Uniana and they did so. It sailed about 5.00 pm.
[99] During the first 14 days of the trip Nam telephoned the Uniana everyday and enquired about its position. Either Ah Lung or Chan took these telephone calls. In the instances that Chan spoke to Nam, Chan was able to tell him of the boat’s current position after studying the GPS and sometimes after consulting the appellant. Chan said that he received a telephone call from Nam that they would soon be meeting the other boat and to get ready to set down the speedboat. Chan said that he relayed this information to Ah Lung and told him to tell the appellant to make ready with the speedboat. The appellant became angry and threatened to leave if nothing happened that night. Chan said that he would let the boss (Nam) know. A short time later contact was made between the appellant, Ah Lung and a further vessel by way of a two-way radio. Thereafter the transfer of the heroin and Man Chai from that further vessel to the Uniana using the speedboat occurred. Not long after that was completed Nam checked with Chan via the satellite telephone that the "parcels" were on board. Chan was told:
...Take the black bags and the plastic bags out of your cabin and take them to Man Chai. Go and help Man Chai he knows what to do with them.
Chan did as Nam instructed. The heroin was removed from the speedboat, the blocks of heroin being put in sealed plastic bags and packed in black carry bags.
[100] At the trial of the appellant the evidence in chief of Chan broadly followed the terms of his statement of 19 March 1999 but much more detail was led. In the cross-examination Chan stated that when he saw the rice bags being thrown into the speedboat he knew for the first time that he was involved in prohibited drugs. He said that at his point he knew that he had been tricked. He was unable to discuss the position with Man Chai, the appellant or the crew because he did not know where they stood. Chan was cross-examined about his statement of 10 December 1999 in which he stated that during the first conversation with Nam he had said "One person for so many belongings." Chan said that the original version should be "one person with belongings." Chan said that when he enquired as to what the personal belonging of the escapee were, Nam replied "Of course valuable things. This person is escaping. Do you think he would bring rubbish along." (T113). Chan said that once the rice sacks were brought on board he looked for any chance to escape but there was no chance. He continued on with the enterprise because of fear of reprisals to himself and his family if he tried to withdraw.
[101] After some cross-examination of Chan to the effect that he went on board the Uniana on 14 August 1998 and that his statement that he was in China on that day was incorrect, Chan appealed to the judge and sought an assurance that whatever he said in court would not subject him to being charged. This led to considerable discussion between the judge and counsel and the adjournment of the hearing for over a day and thereafter the interposition of other evidence. Three days after Chan had appealed to the judge he returned to the witness box. In the meantime he had given another statement to the police. The Crown led further evidence in chief.
[102] Chan gave evidence of events he had previously withheld. Chan stated that he first met the captain and crew, except for the Chief Engineer, on 15 July 1998 on the On Shun. He went on board on that occasion with Nam and another worker. Nam spoke with the appellant. Chan said that he went out to the On Shun on two further occasions but did not board it, namely, once to deliver some cigarettes to the crew and secondly to take some food to the crew.
[103] Chan said that on 10 and 11 August 1998 he boarded the Uniana with a technician who repaired the derrick with his assistance. Nam told him (Chan) on the morning of 14 August 1998 that the Uniana was gong to be used for the enterprise and house the speedboat.
[104] Chan said that on 14 August 1998 Nam, a man called Dai Gie and he went out to the On Shun. Nam spoke with the appellant and explained that the crew members of the other ship (Uniana) had a dispute over wages and expressed the hope that the crew on the On Shun would transfer to the other ship. The appellant consulted with the crew. According to Chan, the appellant replied that there would be no problem in transferring to the other ship except for the Chief Engineer and a couple of other persons. However, all wages to date had to be paid. Nam paid them their wages. Chan said that while the appellant promised to be the captain of the proposed trip, he (Chan) did not know how much the appellant knew.
[105] After Nam and the appellant spoke further it was said that they had to change ship in the afternoon and that all crew members should pack their things. The appellant gave some instructions to the second officer who selected some maps and rolled them up. The crew from the Uniana transferred to the On Shun. The appellant and the crew from the On Shun then transferred to the Uniana. Chan said that he, Nam and Dai Gie transferred to the Uniana.
[106] In further cross-examination Chan agreed that in his evidence on his sentencing hearing he had said that he had told the police one hundred per cent truth. He also agreed that he had said he had told the police everything he knew. Chan said that he was hesitant about disclosing what was in his last statement because he was worried about the crew facing a very harsh future.
[107] Chan claimed not to be sure that the area in which he slept was the captain’s quarters in the Uniana. He agreed that there was a satellite telephone adjacent to his bunk.
[108] A review of the material demonstrates that Chan was one of Nam’s lieutenants and that he was responsible for many of the preparatory steps of the intended voyage. He was also responsible for ensuring that the "belongings" of the escapee were safely transferred at sea at night by torchlight from the vessel that met them in the Andaman Sea to the speedboat and thence to the Uniana. Chan’s reconnaissance decisions in Australia coupled with his other roles prior to and after 15 August 1998 lead to the conclusion that his measure of responsibility and culpability was at least equal to that of the appellant. When the judge sentenced Chan, the judge was not aware of all the facts and sentenced him on the basis of him having less responsibility than he actually had. This was in part due to the appellant not disclosing some facts to the judge. It happens not infrequently that, because there is no one to test adequately the story of a co-accused on a plea of guilty, all the relevant facts do not emerge and the person being sentenced receives a lighter sentence than he should. This creates problems when other offenders are being sentenced and a fuller factual picture emerges.
[109] The appellant submitted that he was less culpable objectively than Chan for these reasons. Unlike the appellant, Chan was in direct and regular contact with those higher in the organisation both prior to and for the duration of the voyage. He was, even on his own account, benefiting financially far more than the appellant. Chan had received $HK100,000 and was to receive another SHK200,000 making a total of $HK300,000. There was evidence that the appellant had received $HK50,000. There was also his monthly salary of about $HK12,000 per month for some six months plus one month’s extra salary. Chan was going to make about three times the remuneration of the appellant. The difference in financial reward is eloquent of Chan’s standing and importance to Nam’s drug trafficking activities. Chan was involved in handling the heroin on board Uniana whereas the appellant was not involved and was excluded. The appellant also relied on the other aspects of Chan’s role including the recruitment of Ah Lung.
[110] The appellant pointed out that the judge did not find that the appellant was more deeply involved in the enterprise than Chan. Such a finding would have been untenable. The appellant submitted that if the offence of which he was convicted was fairly able to be described as "worst category case" then Chan’s offence was even more firmly entrenched within that category and he should not have received a s.16G adjustment. The appellant stressed the difference between factors mitigating the seriousness of the crime and those mitigating the seriousness of the penalty.
[111] The crime committed by the appellant was a very grave one as was that committed by Chan. Both were involved over a lengthy period in the intended importation. Both the appellant and Chan had a propensity to lie and this makes sentencing more difficult. Both tried to play down their roles. Their roles were different but Chan’s criminality and the appellant’s criminality were about equal. Both were in difficult financial circumstances and both needed work. The financial rewards for Chan were to be much greater than those of the appellant. Even allowing for Chan’s plea of guilty and his assistance to the authorities the disparity between the sentences imposed upon Chan and the appellant is marked and gives rise to a justifiable sense of grievance on the appellant’s part. I have had regard to all the matters required under the Crimes Act 1914 (Cth). I have regard to the judge’s starting point and mitigation calculations when sentencing Chan. After the s.16G adjustment and absent the mitigation of sentence for plea and assistance the judge would have imposed a sentence of 26 years with a non-parole period of 20 years on Chan. To achieve a reasonable parity with Chan’s sentence and taking into account the high objective gravity of the appellant’s offence the starting point for the appellant would be a sentence of 40 years. I regard this as the lowest permissible starting point. An adjustment under s.16G of just under one-third should be made, namely, 13 years. This reduces the sentence to 27 years. A lesser sentence would be incorrect. There should be a non-parole period of 19 years. This is not within the usual range of 60 to 66.66 per cent suggested in Bernier (1998) 102 A Crim R 44, but a little above it. However, in view of the circumstances of this case a lesser non-parole period would not sufficiently reflect the appellant’s criminality and the consequent minimum period which he must serve before being eligible for parole".(Emphasis added)
The co-offenders Ismunandar and Siregar sought leave to appeal against their sentences. They, too, compared their sentences with Chan’s and drew attention to his subsequent evidence. They also relied as a comparator on Mandagi’s sentence, reduced as it was on appeal. The Crown did not concede that their sentences were manifestly excessive but did concede that some marginal reduction might be warranted in view of this Court’s judgment in Mandagi’s appeal.
In giving judgment, the Court said this -
24. The ultimate question in this case is whether this Court should reduce the sentences on Siregar and Ismunandar on the ground that they create disparity engendering a justifiable sense of grievance. The disparity arises from the fact that the sentence of Mandagi, the captain of the Uniana, has been reduced to 27 years with a non-parole period of 19 years from a sentence of life imprisonment with a non-parole period of 25 years. This contrasts with the sentences of life with a non-parole period of 20 years for Ismunandar, the chief officer and the second in command after Mandagi, and Siregar, the engineer. The sentencing Judge achieved, it is agreed on all sides, an appropriate balance in the sentences reflecting the greater criminality of Mandagi and the lesser criminality of Ismunandar and Siregar. Let it be assumed that if the sentences were not changed, Ismunandar and Siregar would experience a sense of grievance. The only basis on which that sense of grievance could be regarded as a legitimate one is that if the sentences of Ismandar and Siregar were not changed, the sentencing Judge’s balance would be disturbed.
25.    The narrow question for decision is whether to substitute for the sentencing Judge’s sentences the sentences requested by the appellants would be to select sentences so gravely inadequate that any sense of grievance in Ismunandar and Siregar which might be engendered cannot be regarded as legitimate, so that using this means of removing the disparity between the sentences left after the reduction in Mandagi’s appeal would be an affront to the proper administration of justice.
26.    The adoption of the sentences proposed by the appellants falls far enough below what is adequate, to ensure that any sense of grievance in Ismunandar and Siregar would not be legitimate. The reasons are as follows.
27.    First, and with respect to the members of the Court of Criminal Appeal who decided Mandagi, we are of the opinion that an undue emphasis was placed upon different objective features in relation to Chan (see paragraph [109] for example), especially in relation to financial rewards; and to some extent based upon subjective considerations; notwithstanding that, though their roles were different, Chan’s criminality and the criminality of the applicants were about equal in a crime that was identified by that Bench as "a very grave one". There is the further consideration that despite the difference in the role of Mandagi compared to Chan, the importation could not have taken place without Mandagi’s skill as captain of the vessel. The Chans and the Chens and the Laus and the Nams of this world can get nowhere without the willingness of technicians to lend their special expertise to criminal enterprises, and they would have got nowhere in this particular importation without Mandagi’s willingness to lend his special expertise to this criminal enterprise. This causes such matters as the differences between Chan and Mandagi in relation to remuneration, in relation to recruitment, and in relation to handling the heroin on board the vessel, to recede in significance.
28.    Secondly, the crimes which the three officers (Mandagi, Siregar and Ismunandar) committed with Chan, Chen and Lau, were extremely serious crimes. To have been involved at the highest levels in the largest drug importation ever detected in Australia calls for the most serious punishment on the scale which Parliament has provided for. The sentence fixed by Parliament as the maximum is life imprisonment.
29.    Thirdly, not only was the sentencing Judge extremely experienced, but he also had a unique and very close familiarity with the facts of the various crimes, having presided over the complex and difficult trials leading to the various convictions.
30.    Fourthly, while the characterisation by the sentencing Judge of the different roles of the different offenders is legitimate, it must be remembered that the importation could not have been carried out without the aid of Siregar and Ismunandar any more than it could have been carried out without the aid of Mandagi. The importation could not have taken place without successful negotiation by the Uniana of hazardous journeys from Hong Kong to the Andaman Sea, and from the Andaman Sea to Port Macquarie, and those journeys could not have been completed without the professional skill and experience of Siregar and Ismunandar.
31.    Fifthly, the argument for reducing the sentences on Siregar and Ismunandar depends not only on this Court leaving out of account the admittedly correct reasoning of the sentencing Judge in relation to Chen and Lau, and the admittedly correct reasoning of the sentencing Judge in relation to Siregar and Ismunandar, but on this Court taking into account the erroneous interference by the Court of Criminal Appeal with the sentence flowing from the sentencing Judge’s correct reasoning in relation to Mandagi. One reason why the Court of Criminal Appeal interfered in relation to Mandagi’s sentence was that it saw the sentencing Judge as having sentenced Chan on a false basis:
When the judge sentenced Chan, the judge was not aware of all the facts and sentenced him on the basis of him having less responsibility than he actually did. This was in part due to the appellant not disclosing some facts to the judge. It happens not infrequently that, because there is no-one to test adequately the story of a co-accused on a plea of guilty, all the relevant facts do not emerge and the person being sentenced receives a lighter sentence than he should. This creates problems when other offenders are being sentenced and a fuller factual picture emerges.
32. The result is that Chan was, through no fault of the sentencing Judge, erroneously sentenced too lightly; in consequence the Court of Criminal Appeal decided to reduce Mandagi’s sentence, because it saw him as "less culpable objectively". It is true that to allow an appeal based on parity is always "to compound the error" inherent in the lower disparate sentence: Lowe v R (1984) 154 CLR 606 at 623 per Dawson J. The law puts up with this difficulty in conventional parity cases. But to take the step of reducing the sentences on Siregar and Ismunandar so as to bring them into line with that of Mandagi, which was itself erroneous, in part because of an innocent error in relation to Chan, is to take a step so much based on a repetition of error that the resultant sentence is an affront to the proper administration of justice, and any sense of grievance arising from the maintenance of the existing sentences would not be justifiable.

The Court went on to reject the Crown’s concession and continued -

38. The appellants in effect sought to support their claim to a reduction in sentences by contending that if it was not acceded to, there would be a "significantly different approach to appropriate sentencing for co-offenders by differently constituted benches of this Court as to undermine the public confidence in the consistency of a senior court of this State". There are, however, more important things than consistency. It is better that this Court, constituted as it is, arrive at the correct result in the Siregar-Ismunandar appeal, than that it arrive at the wrong result merely because this Court, constituted as it was in the Mandagi appeal, arrived at a wrong result. To adapt an ancient aphorism, it is not better that this Court should be perpetually wrong than that it should be sometimes right. In R v Rexhaj (NSWCCA, unreported, 29 February 1996) Gleeson CJ (Powell JA and Ireland J concurring) said:

The principle which underlies … [intervention for disparity] … is that inconsistency in punishment may lead to an erosion of public confidence in the administration of justice … . There are, however, other things which may also lead to an erosion of public confidence in the administration of justice, and they include the multiplication of manifest errors. That is why numerous judges have stressed the unattractiveness of responding to one wrong decision by making another wrong decision.

If "public confidence" is a virtue, then public confidence of a legitimate kind is more likely to be maintained, after giving all due weight to parity principles, by not interfering with sentences which, when viewed separately from what happened in Mandagi’s appeal, were unquestionably correct.

It was submitted generally by counsel for the present applicants that the Court should have regard to the post-appeal sentence of Mandagi notwithstanding this Court’s judgment in R v Ismunandar and Siregar (2002) 136 A Crim R 206. At least one counsel submitted that the appeal in Ismunandar and Siregar was wrongly decided, and reference was made to R v Hodges, a judgment of this Court. In that appeal S, a co-offender, received a significantly shorter sentence than the appellant H because of a promise to assist the authorities. He broke his promise but the Crown did not appeal and S’s sentence stood. H appealed, claiming a justifiable sense of grievance by reference to S’s sentence. By a majority this Court upheld the appeal and reduced H’s sentence by reference to S’s, even though the result was that a proper sentence was reduced to an inadequate one. The majority of the Court considered that the public interest in the even-handed dealing with co-offenders outweighed the public interest in preserving at least one adequate sentence.
The law, as explained in Tisalandis, Lowe, Postiglione and other cases, was dealt with in the dissenting judgment of Hunt CJ at CL. The other members of the Court dissented not on what the law was but on how it should apply to the facts of that case. The principle is simply enough stated: in a proper case the Court will reduce a sentence below that which would ordinarily be regarded as the bottom of the available range in order to achieve even-handed treatment of co-offenders. But the principle is not unlimited; a stage may be reached at which the Court will hold the comparative sentence too low to follow. The public interest will then be better served by leaving the sentences disparate.
Hodges is an example of the application of the law to the peculiar facts of a case. It states no new law. It does not in my view support the contentions of counsel for the applicants.
I do not think that the appeal of Ismunandar and Siregar was wrongly decided. In my view it would be inappropriate to consider the sentences of the applicants by comparison with Mandagi’s post-appeal sentence. In my view Mandagi’s appeal was wrongly decided for the reasons explained by this Court in Ismunandar and Siregar. I note the opinion of the Court in that appeal, reproduced as part of para 53 above, why Ismunandar and Siregar had no justifiable sense of grievance when they looked at Mandagi’s post-appeal sentence. In my opinion none of the present applicants is in any different position. This was the most serious of crimes of its type. Mandagi brought special skills without which there could have been no importation. He was, as the Ismunandar and Siregar Court observed, involved at the highest level in the largest drug importation ever detected in Australia that called for the most serious punishment on the scale fixed by the Parliament. The sentencing judge was of long and deep experience and was closely familiar with the facts as they applied to Mandagi and his co-offenders.
To consider reducing the sentence of any applicant by reference to Mandagi’s post-appeal sentence would entail leaving out of account the sentencing judge’s correct reasoning about Mandagi and, apart from the error which I have noted below, his Honour’s correct reasoning about the applicants, and to bring into account the admittedly incorrect sentence of Chan, produced by an innocent error, and what I consider to be the erroneous reasoning of this Court in Mandagi. I do not regard the sentence imposed by this Court on Mandagi as an appropriate comparator in a disparity argument.
While the quantity of heroin imported was not the only factor bearing on the range of sentence appropriate to any of the offenders, it was one which had a large part to play in the process of sentencing. This was the largest known importation of heroin into this country. The pure weight of heroin was 252 kilograms. Vast sums of money must have been invested. Many people were involved. His Honour said this -
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 quality and consequent value alone, placed this crime within that band of such crime that may properly be labelled most serious.
In R v Ismunandar and Siregar this Court said this -
…the crimes…were extremely serious crimes. To have been involved at the highest levels in the largest drug importation ever detected in Australia calls for the most serious punishment on the scale which Parliament has provided for.
Such was the enormity of the enterprise that his Honour took the view that the range of sentences extended as far as the maximum, namely imprisonment for life without parole. That was an available view.
The Crown submitted that the sentence imposed on Li was too lenient, having regard to the seriousness of the enterprise. Of course, this is not self-evidently so. It could not reasonably be said that everybody involved had to be given the maximum sentence or a sentence close to it. There must have been an available range of sentences offender by offender, dependent partly on the role played by any offender. It was not submitted by the Crown that a sentence of twenty-four years with a non-parole period of eighteen years was so low as to be unavailable to any participant.
The thrust of the Crown’s submissions, rather, compared Li with others who received longer sentences and invited the Court to increase his sentence proportionately. Reference was made to a Tasmanian case, R v Radloff (1996) 88 A Crim R 26, in which it was said that the existence of unjustifiable disparity in favour of an offender may be an additional factor in determining whether or not to grant the Crown leave to appeal against a sentence which is shown to be outside the sound exercise of the sentencing court’s discretion. (In Tasmania, of course, the Crown has to have leave to appeal).
It was submitted that Li and Chung were generally speaking equally culpable, that the head sentence of life imprisonment was appropriate for Chung and that Li’s sentence ought therefore to be increased. I would reject the submission. Not only did Chung plead not guilty and Li guilty, Li was found by his Honour to be less culpable than Chung and the Crown has failed to show that his Honour was wrong.
It was further submitted that Li’s role and culpability were greater than those of Mandagi, Ismunandar and Siregar. The importance of their roles as Captain, Chief Officer and Chief Engineer of the Uniana and the seriousness of their criminality is sufficiently described in the extracts I have set out from the remarks of the sentencing judge and from the judgment of this Court in R v Ismunandar and Siregar. Each performed a role more valuable and culpable than that of a driver and general hand. The submission should be rejected.
I would dismiss the Crown appeal.
Counsel for Li submitted that although the size of the importation was an important factor in sentencing, it should not be overemphasised. Reference was made to the remarks of the Justices of the High Court of Australia in Wong and Leung v The Queen (2001) 207 CLR 584 to the effect that participants in such enterprises do not always know exactly what the narcotic is, how pure it is and how much of it there is. However, in view of what Li knew about the boxes that were discussed and the manner of their landing and transportation, and the size of the enterprise, which justified his coming twice to Australia, Li must have known that there was a substantial quantity of narcotic involved.
Reference was made to Judicial Commission statistics showing that only fifteen out of eighty-five offenders received non-consecutive head sentences of more than twenty years for this offence. It was submitted that the sentence was excessive given Li’s lowly role. He was forty years old when sentenced and of prior good character. He pleaded guilty.
These submissions may be accepted, but they do not demonstrate error. As his Honour concluded, the part that Li played was of great significance. The importation was huge.
Mr Stratton submitted that Li’s sentence was only just less than those imposed on Mandagi, Ismunandar and Siregar, each of whom went to trial. I do not agree that that accurately describes the relation between the sentences. Mandagi, for reasons which I have explained, should be understood as having received a life sentence with a non-parole period of twenty-five years. Ismunandar and Siregar each received head sentences of imprisonment for life with non-parole periods of twenty years.
The final submission compared Li’s sentence with that imposed on the informer, Chi Keung Chan, whose sentence before discount for assistance was twenty-six years’ imprisonment with a non-parole period of twenty years. I have summarised the facts upon which Chan was sentenced in dealing with the significance of the Mandagi sentence.
Two difficulties arise in any consideration of Chan’s sentence. Apart from the fact, which is now accepted, that Chan misled his Honour, an attack might be made upon the calculation of the sentence. The argument would go thus. On any view, even on his Honour’s findings, the starting point for Chan’s head sentence ought to have been imprisonment for life. Counsel for Chan persuaded his Honour to adopt a lower starting point of thirty-six years on account of his plea and co-operation. It was impermissible for those features to be taken into account in determining the starting point. It should have been determined first, then appropriate allowances made. One effect of starting with a determinate head sentence was that his Honour could discount the head sentence for lack of remissions and for the plea and co-operation, but it would have been impossible to do so had the starting head sentence been imprisonment for life: Vanit v The Queen [1997] HCA 51. So Chan’s head sentence was lower than it ought to have been.
Chan sought leave to appeal. He did not raise this matter, of course. His appeal was dismissed. The Crown could have raised it by appealing itself, but did not do so. The reason is not hard to imagine. As things stand, therefore, the sentence stands on the facts found by his Honour on the evidence before him.
Secondly, insofar as the sentence might withstand that attack, should the applicants be entitled to point to it as one proper for comparison, given that his Honour was misled and that the facts underlying the sentence are little better than hypothetical? In my opinion they should not. This is not like a reference to Mandagi’s original sentence, which was in my view a proper sentence, based on appropriate findings of fact. In my view, any comparison in this Court with Chan’s sentence would be just as hypothetical as Chan’s underlying criminality has been shown to be.
For these reasons I do not find it necessary to deal with the attack on the manner in which Chan’s head sentence was determined. I would not uphold any argument for disparity by comparison with Chan’s sentence.
I would grant leave to Li to appeal against his sentence but would dismiss the appeal.
Chung Tak Chan

Chan’s first ground of appeal was that his Honour erred in finding that Chan had on-going responsibilities for the warehousing of the heroin and its lodgement and supply. Counsel submitted that it was not open to his Honour to find that Chan was to be involved in distributing the drug because there was no evidence of it. His Honour’s findings are in these words -
In his carefully written submission, Mr Turnbull does not argue against the description of the prisoner as one of coordinator and supervisor, but he does take issue with the Crown submission that the prisoner was to be involved in the continuing process of distribution, maintaining that such a conclusion would be mere conjecture and he was the holder of a return ticket to Hong Kong on 19 October 1998. Further, counsel conceded that the prisoner acted as a liaison between Hong Kong and Sydney, had contact with the Uniana, facilitated financial arrangements for those in Sydney, had oversight of the preparation, was present at Grant’s Beach and intended to accompany the heroin to Sydney and to tell his superiors of the progress of the importation.
What is said on his behalf however, is that this constituted the totality of his criminality. It was a discrete function within the whole enterprise and did not extend to continuing delivery and sale. It was also submitted that the only evidence of structural change that he made was the timing and positioning of the landing and that he had no capacity to stop the crime being committed, apart from disclosure to the authorities. In relation to the first of these, I can only say that they were structural changes of great significance and as to the second, he only had to warn his associates of some perceived danger and the crime would not have been committed.
Counsel for the prisoner has submitted that although he was trusted by those above and those below and although those overseas relied on his reports, the he was not as important in this crime as Chen and Lau and had no function other than that which was conceded, namely an organiser of the ground crew.
Using the matrix of the nine matters set out above, it is clear that the prisoner is a person intimately involved in the commission of this offence, who has come to Australia to oversee the delivery and its onsale and was in close contact with his criminal colleagues overseas as he monitored the progress of the heroin to its eventual destination. It is equally clear that he only exposed himself to the risk of apprehension shortly before the heroin’s actual arrival and in just sufficient time to take up the reigns of the enterprise here in Australia. I accept the submissions of the Crown that he had ongoing responsibilities for the warehousing of the heroin and its lodgement and supply. There is evidence of this not only from the tapes, but also in the express necessity for him to obtain a licence. I consider him to be a person who has played a pivotal role organising the third of the three activities namely, acquisition, transportation and importation. (emphasis added)
The Crown conceded on appeal that the evidence did not justify his Honour’s conclusions about distribution. In its written submissions to the sentencing judge the Crown had said this about Chan -
The evidence also establishes that he was at least aware of the fact that the heroin would be distributed following its importation. Whether he was to play an active role in that activity is not clear, although he was certainly aware that it was to be done by others. He was ticketed to return to Hong Kong on 19 October 1998.
and this about Chung -
Finally, the Crown submits that it is clear on the evidence that Chung was to play the role of distributor of the heroin following its arrival. Reference has already been made to the fact that he was attempting to obtain a driver’s licence for that purpose and the various observations of him driving around different areas of Sydney on a regular basis (summarised in the Chronology previously tendered) supports a finding that he was attempting to familiarise himself with the area, for the purpose of attending to the supply. Such a finding is also supported by the conversations in which he discussed (or was present when others discussed) the necessity to so familiarise himself (see for example paragraphs (14) and (26) of the Statement of Facts on p.5-6 and 13 respectively).

The Crown went on to cite portions of conversations in which Chung had been involved.
So far as concerns any responsibility for the distribution of the heroin, there seems to be a substantial correspondence between his Honour’s findings about Chan and the Crown submissions about Chung. His Honour’s remark, recorded during submissions, that -
…as far as (Chan) is concerned the moment that boat came on shore that was at least the apogee of his responsibility.
lends support to the applicant’s contention.
It seems to me that the finding that Chan was to have a role in distribution was not supported by the evidence, and that Chan’s first ground of appeal has been made good.
The Crown submitted that his Honour’s confusion of the roles of Chung and Chan was “minor” and that his Honour was under no misunderstanding about Chan’s supervisory role and its significance in the importation. It was submitted that his Honour did not regard the finding that Chan had a responsibility in distribution as aggravating Chan’s criminality. The Crown referred to the debate between his Honour and counsel, part of which has been reproduced above.
In view of the submissions in the sentencing court for and against the conclusion and his Honour’s detailed reference to it and the resulting finding, I am unable to accept that his Honour gave the matter no weight in sentencing. As I shall explain in due course, it was a significant matter in the sentencing of Chung that he had a continuing responsibility for distribution and justified for Chung a sentence that might otherwise have been shorter. I think that it must also have resulted in a longer sentence for Chan. I would therefore interfere with Chan’s sentence.
Chan’s remaining grounds of appeal are as follows -
2. His Honour was in error in failing to give any or sufficient weight to the sentences imposed on Mandagi, Ismunandar and Siregar and in equating Chan’s criminality with that of Chen and Lau.
3. His Honour was in error in failing to give any or sufficient discount for the plea of guilty;
4. The sentence is manifestly excessive.
Since I would uphold Chan’s appeal, I do not consider it necessary to deal with the remaining grounds. I shall propose a sentence that takes into account those imposed on the co-offenders named in the remaining grounds, however, and recognises the plea of guilty.
His Honour found that Chan was intimately involved in the importation. He came to Australia to oversee delivery and was in close contact with colleagues overseas as he monitored the progress of the carriage of the heroin. He supervised others, facilitated the provision of money and made strategic decisions. He only exposed himself to the risk of apprehension just before arrival, in order to take up the direction of the enterprise. He played a pivotal role in organising the importation.

Chan had no criminal history. Unlike the other applicants, he pleaded guilty at an early stage. He co-operated by not contesting the facts asserted against him. He was remorseful.
Chan was senior to Li, Fan and Chung. His responsibility was greater than theirs. It was also broader than the responsibilities of Mandagi, Ismunandar and Siregar. I would ordinarily have expected his sentence to exceed all of theirs. However, he was entitled to recognition of his early plea of guilty and his co-operation. Although, because of his serious and broad responsibility in such a large importation I would not interfere with his head sentence of imprisonment for life, I would quash his non-parole period and substitute a non-parole period equal to that of Fan and Chung.

Po Chong Fan

Fan’s first ground of appeal was that his Honour was in error in the manner in which he dealt with the issue of the applicant’s knowledge that the substance being imported was heroin.
There were various interlocutory applications before any of the applicants came before his Honour for trial or sentence. Each applicant applied to the District Court “by way of a demurrer”, challenging the terms of the indictment and seeking a jury trial on the question whether each knew that what was imported was heroin as opposed to some other narcotic substance. His Honour gave judgment on 7 March 2001 rejecting the applications. The applicants sought leave under s5F Criminal Appeal Act to appeal to this Court. On 10 April 2001 leave was refused. On 5 March 2002 special leave to appeal to the High Court of Australia was refused. On 18 March 2002 Li, Fan and Chan pleaded guilty before his Honour. Chung maintained his plea of not guilty and went to trial. The jury found him guilty.
In sentencing Fan, his Honour held, conformably with his judgment of 7 March 2001, that it was Fan’s task to satisfy the Court on the balance of probabilities of mitigating circumstances, of which his mental state might be one. His Honour explained in detail why Fan had failed to discharge the burden thus cast upon him. There was no finding beyond reasonable doubt that Fan knew that it was heroin that was being imported.
In this Court Mr Austin, for Fan, submitted that his Honour ought to have resolved the question by requiring the Crown to prove beyond reasonable doubt that Fan knew that the importation was of heroin as opposed to any other narcotic substance. Mr Austin referred the Court to the judgment of the High Court of Australia in The Queen v Olbrich (1999) 199 CLR 270 where, at 281, Gleeson CJ and Gaudron, Hayne and Callinan JJ adopted this passage from R v Storey [1998] 1 VR 359 at 369, that a sentencing judge -
may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.
Mr Austin submitted that his Honour was considering Fan’s knowing concern in the importation of a large quantity not merely of narcotic goods but of heroin. In the circumstances it was necessary for his Honour to be satisfied beyond reasonable doubt that Fan was aware that what was to be imported was heroin. It was implicit in the submission, based as it was on The Queen v Olbrich, that the Crown was asserting that Fan knew that what was being imported was heroin and that that knowledge aggravated his criminality.
One begins with the issues closed off by a plea or verdict of guilty of being knowingly concerned in the importation of a prohibited import comprising narcotic goods, however those goods are particularised. As it applied to the present case, s233B Customs Act provided as follows -
233B Special provisions with respect to narcotic goods
(1) Any person who:
…
(d) aids, abets, counsels, or procures, or is in any way knowingly concerned in, the importation, or bringing, into Australia of any prohibited imports to which this section applies, or the exportation from Australia of any prohibited exports to which this section applies…
…
shall be guilty of an offence.
…
(2) The prohibited imports to which this section applies are prohibited imports that are narcotic goods and the prohibited exports to which this section applies are prohibited exports that are narcotic goods.
…
By s4 narcotic goods were defined as consisting of a narcotic substance. That term was defined as including a substance or thing described in Column 1 of Schedule VI. Schedule VI contained a list of the names of substances, including cannabis, cannabis resin and heroin.
By s235, where the quantity of the narcotic substance was not less than the commercial quantity, the maximum penalty for an offence under s233B was a fine not exceeding $750,000.00 or imprisonment for life or both. It may be observed that no distinction was made between heroin and cannabis for these purposes. By common consent, the heroin imported had a weight that exceeded the commercial quantity. It may also be observed that where the trafficable quantity but less than the commercial quantity was involved, s235(2)(d) prescribed a lesser maximum sentence for cannabis importation than for heroin importation.
The relationship between s233B and s235 was considered by the High Court of Australia in Kingswell v The Queen (1985) 159 CLR 264. From that judgment it appears that the elements of the offence of knowing concern in an importation come from s233B and not from s235. Section 233B creates a single offence, not a number of distinct offences according to the kind or amount of the narcotic goods involved. All s235 does is prescribe the maximum sentence according to the kind and amount of narcotic goods. See the judgment of Gibbs CJ, Wilson and Dawson JJ at 273. See also The Queen v Meaton (1986) 160 CLR 359; Cheng v The Queen (2000) 203 CLR 248.
It follows that all the Crown has to prove to obtain a conviction of such an offence, and all the very conviction can be taken to establish, is that there was an importation into Australia, that what was imported was narcotic goods and that the offender was knowingly concerned in that importation. To be knowingly concerned, an offender must know that the goods imported include a quantity of narcotic goods of some kind, but not necessarily the precise nature of the narcotic goods. Directions to that effect are routinely given to juries.
Absurd results might follow if it were otherwise. The experience of the Court suggests that the maintenance of secrecy in the drug industry may limit the knowledge of participants about the enterprise in which they are engaged. Such a limitation may extend to the nature of the drug concerned. If there were an importation, say, of heroin, but the offender who was knowingly concerned in it did not know what the drug was, he would be found not guilty of any knowing concern in the importation of the heroin. If he mistakenly believed that the drug was, say, cocaine, the result would be the same. He could not be convicted of the offence he thought he was committing, either, because he did not commit it. The spectre of such absurdity arose in the applicants’ “demurrer”, where it was asserted that justice required the Crown to present an indictment charging the applicants in the alternative with knowing concern in the importation of cannabis.
In the ordinary way, therefore, a sentencing judge begins with a jury finding beyond reasonable doubt or an admission by the offender constituted by a plea of guilty, that the offender knew that what was being imported was narcotic goods of some kind. As a matter of law there seems to be nothing to stop the Crown from asserting that the offender knew the precise nature of the imported goods. Whether such knowledge would aggravate an offender’s criminality might vary from case to case, but if it did the Crown would have to prove it beyond reasonable doubt. However, no such thing happened in this case. The issue about what Fan knew or believed was raised only by him in his assertion that he believed that the cargo was cannabis. His Honour accepted that such a belief, if it existed, would mitigate Fan’s criminality. In giving judgment his Honour said this –
Fan has asserted that he did not know that heroin was to be landed and thought he was to meet a shipment of marijuana. He gave evidence in which he said that he had been a smuggler on previous occasions, but of people, marijuana and DVDs. He was offered this job to come to Australia and was here on two occasions. He knew Chung, Chan and Li before his arrival. He had worked previously for Warren (Wah Lung) and Ah Poon. The first occasion he came to Australia he was present when Chan Chi Keung made a reconnaissance of beaches and again in August 1998 to await the consignment. He was part of the group of four who were arrested at Nabiac. He had been with Poon in Cambodia in 1997 where his function he claimed, was that of a minder. He claims to have been told the smuggling was that of people. Whilst in Australia, that was changed to marijuana and, that he did not know that it was heroin until police told him so. For this enterprise he was to be paid in excess of $100,000 and living expenses. It appears that he was informed that he was to pick a few hundred kilos of marijuana in 14 boxes.
When the offender was interviewed by police upon his arrest, he never suggested that it was his understanding that he was to pick up marijuana. When this fact was pointed out to him in cross-examination, he took refuge in his anxiety at the time and then mistranslation. [Transcript 31/09/02 @ page 90-91] Defences in the alternative always present difficulties of belief and this was no exception. He is unable to point to any conversation on the transcripts which confirms that Chan changed the plan from people smuggling to marijuana smuggling, nor is he able to explain why he would have been paid so much money to pick up 14, 10 or 4 cardboard boxes of any size, of marijuana.
The prisoner does however point to a passage which he says is mistranslated, but moll 15 at 13 makes even less sense if the word cow (slang term for marijuana), is heard rather than nou nou (hardworking subordinate). The other passage to which he points is moll 28 pages 97-98, where at 98 he can be heard saying:
“Ten so big boxes of dai ma then are. Then there is one who is definitely coming downing here. Is the jockey also coming down here?”
which the prisoner maintains is evidence of his understanding that marijuana was to be smuggled. However, the ‘five hundred odd pieces’ mentioned in the lines before, are more in keeping with heroin than with marijuana and the 564 blocks of heroin which in fact landed at Grants Beach.
The conversation between himself and Chan in the car from the airport in which he claims he was told of the nature of the importation, was recorded by a listening device [Moll 28] and at no time did Chan mention marijuana. The prisoner now claims that this explanation was vouchsafed to him in the conversation between the airport and the car.
He was one of those who took Chan Chi Keung to reconnoitre beaches near Port Macquarie earlier in the year. His description of the shortcomings of one of these beaches inspected could only be understood in terms of carrying heroin. [Musk 47 @ 46]
He was also cross-examined about his visit to Cambodia in January or February 1998, with Poon and Chung Tak, where he saw Lau. His explanation that he went there merely to accompany Poon and Chan is not acceptable. This was one of the visits to Cambodia in which heroin was purchased as evidenced by the eighteen million dollars that went through Lau’s account.
In the course of cross-examination, he admitted the term ‘the latter part’ referred to the distribution of the imported drugs in Australia, a part he was to play with Chung which was to take many months. [Moll 21 @ page 13] This period could not be necessitated by an importation of illegal immigrants nor of marijuana.
It became clear in cross-examination that he took directions from Chan to reconnoitre beaches, to rent premises and to hire cars and then looked to Li and Chung to carry out these instructions.
The mobile phone found in his possession was one which was demonstrated to have been used to telephone a number in Vietnam, the same number that these on board the Uniana were phoning in the lead up to the importation. To say that this phone was used by Chan is not acceptable.
It is the task of the offender to satisfy the Court of mitigating circumstances of which his mental state may be one. He need only satisfy the Court on the balance of probabilities which would appear, at first glance, not to be too difficult a task. However, the Crown case in regard to knowledge of the nature of the material, is neither silent nor equivocal. On the contrary, there is a strong prima facie case that each of these men knew precisely what they were to pick up, even to the position on the trawler where it had been stored, the nature of the boat that was delivering it, the weight, the number of pieces and the fact that the material would be handled by using sports bags. Any attempt to satisfy the Court to the contrary would require a strong foundation to support its acceptance even to the civil standard. This has not been provided in this case.
The prisoner’s case in mitigation that he did not know the nature of the drug to be imported, fails to reach acceptance on the balance of probabilities. His closeness to those who did know, his position as an organiser, his conversations in the car, the purchase of the bags, the discussions in regard to the approaches to the beach, his lack of assertion to police officers on his arrest that he was expecting marijuana, all point to his knowledge that it was heroin. His lies in regard to the time he says he was told that it was marijuana by Chan and the incomprehensible re-translation of two passages where the ambivalent word ‘dai ma’ is heard, serve only to destroy his credibility and his assertions in this regard.
As appears from his Honour’s remarks, there were only two possibilities about what Fan thought he was doing, namely importing heroin (as indeed he was) or importing cannabis. The former conclusion was overwhelmingly likely to be the correct one. In The Queen v Olbrich (1999) 199 CLR 270 Gleeson CJ, Gaudron, Hayne and Callinan JJ considered what might follow after a sentencing judge rejects evidence tendered by an offender as mitigating criminality. Their Honours said this at 280 – 281. I have omitted the footnotes.
In this Court it was submitted on behalf of the respondent that despite the primary judge's rejection of the evidence given by the respondent (and his disbelief of that evidence) the primary judge should nevertheless have sentenced the respondent as a "courier" because the Crown had not established beyond reasonable doubt that the respondent was not a courier. For the reasons we have given earlier, the distinction between courier and principal was not a distinction of assistance to the primary judge in determining what sentence should be passed on the respondent. It is, however, as well to say something about the onus and standard of proof in sentencing.
Onus and standard of proof in sentencing
Courts of Criminal Appeal in Australia have considered the subject of fact finding for sentencing many times in the last 30 years. Not all of the questions that have been examined in those decisions must be considered now. For present purposes, it is enough to say that we reject the contention that a judge who is not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt. The incongruities that would result if this submission were accepted are well illustrated by the present case. The respondent swore that he was a courier but the judge disbelieved him. To require the judge to sentence the respondent on the basis that he was a courier is incongruous.
Much of the discussion of fact finding for the purposes of sentencing addresses questions of onus and standard of proof. References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say "if necessary" because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)
In the proceedings before the primary judge in this case, the prosecution did not submit that the sentence to be imposed on the respondent (a 58 year old first offender who pleaded guilty to importing more than 1.1 kilograms of heroin) should be increased beyond what otherwise would be called for by those facts because the appellation "principal" could be attached to him. Rather, the respondent submitted that the sentence otherwise to be imposed on him should be mitigated because he was "a courier". The respondent bore the burden of proving this fact. The judge was not persuaded of it.
By his plea of guilty Fan had admitted his knowing involvement. If he did not believe, as he asserted, that it was cannabis, he must have known or believed that it was heroin. His Honour rejected Fan’s evidence that he believed that it was cannabis, so only one finding was logically available. Like the sentencing judge in The Queen v Olbrich, his Honour sentenced Fan on the material that was left after rejecting his claim.
In my opinion his Honour correctly treated Fan’s claim as one to be substantiated on the balance of probabilities. Even if his Honour had required the Crown to prove beyond reasonable doubt that the narcotic good the knowledge of which Fan had admitted was heroin the result would have been the same.
Fan’s first ground of appeal has not been made good.

Fan’s remaining grounds of appeal are as follows -
2. His Honour fell into error by failing to give proper effect to the principle of parity;
3. The sentence imposed upon the applicant is manifestly excessive.
His Honour assessed Fan’s role and criminality thus -
Turning to the matrix formed by the nine matters, I am satisfied beyond reasonable doubt that the prisoner Fan took his instructions from Chan and looked to Li and Chung to perform them. So much he admitted. [Transcript 3/6/03] These instructions involved renting premises, conducting reconnaissance missions, familiarising himself with Sydney, receiving forged passports, directing and buying items to camouflage the group’s intentions and readying himself and others to receive the heroin.
It was an integral part of the importation and warehousing. He had quite a degree of independence, as it was he who managed the other two in the absence of Chan. No special skills were required and it was unlikely that he would have made structural alterations to the plan. He made almost daily contact with those overseas and appears to have been a trusted subordinate.
Having rejected his claim to ignorance, I am satisfied that he had a detailed knowledge of the importation of heroin including the ship, its name, the use of the speedboat, the quantity of heroin to be carried to the waiting vehicles and its final distribution and the time that distribution would take. He would not however, have been able to stop the crime.
I regard the prisoner Fan as one who was intimately connected with the criminal enterprise.
Just before the plea was entered, he sought to speak to police officers. The outcome of these conversations is to be found in exhibit B and exhibit 6, in which he advances his case on knowledge and volunteered his services to give evidence against Poon. As this man is not within the jurisdiction of the Commonwealth of Australia, nor is likely to become so, it would be easy to say that the prisoner has ventured nothing, risked nothing, told the police nothing and should gain nothing from this stratagem. However, in the light of R v Gallagher [R v Gallagher NSW CCA 1991 23 NSWLR @220] and R v Cartright, [R v Cartright (1989) 17 NSWLR 243] I have taken this assistance into consideration.

Mr Austin submitted that Fan’s role and sentence compared unfavourably with those (apart from Mandagi after appeal and Chi Keung Chan) of Mandagi at first instance, Ismunandar, Siregar and Li.

As to Mandagi, Ismunandar and Siregar, Mr Austin submitted that their roles as Captain, Chief Officer and Chief Engineer were more significant than Fan’s and that they went to trial, yet Fan, who pleaded guilty, received the maximum sentence as they did, but a longer non-parole period. A better way of putting the matter, in my view, would be that Mandagi’s, Ismunandar’s and Siregar’s roles were more significant that Fan’s in some respects but that his was more significant than theirs in other respects. No two persons had precisely the same functions and responsibilities. That was one reason why his Honour sought in attempting to deal even-handedly with all the offenders, to classify their roles and responsibilities by reference to the nine criteria. Fan obviously had far wider executive responsibility than Mandagi, Ismunandar or Siregar. Unlike them, he was involved in planning from the start and for that purpose made a number of visits to Australia. In this country he performed the essential executive functions summarised by his Honour, taking his instructions from Chan and supervising Li and Chung in their performance. He was, as his Honour found, intimately connected in the enterprise.
As to Li, Mr Austin did not add to his written submission, which was as follows -
The sentence imposed upon Mr Li (24 years imprisonment with a non-parole period of 18 years) created a disparity which was disproportionate to the difference in the roles played by the applicant and this offender. Nowhere in his remarks on sentence did his Honour offer any explanation for his decision to impose such a different sentence upon Mr Li in comparison with the other men who were in Australia waiting to unload the narcotics and transport them back to Sydney. There can be no justification for such a significant difference in the sentences imposed.
It is submitted that the disparity between the sentence imposed upon the applicant, and those imposed upon a number of his co-offenders, give rise to a justifiable sense of grievance: see Lowe v The Queen (1984) 154 CLR 606.
I have dealt with Li’s role and responsibility. His Honour took the view that they were significantly less than Fan’s. In my opinion the differences between the sentences imposed on Fan and Li appropriately reflected the differences in their respective criminality.
It has not been shown that Fan has any justifiable sense of grievance by comparing his sentence with that of any co-offender or that his sentence is otherwise excessive. I would grant leave to appeal but would dismiss the appeal.
Tat Sang Chung
Chung’s grounds of appeal are as follows -
1. His Honour erred in failing to consider or properly consider the principle of parity, leaving the applicant with a justifiable sense of grievance engendered by the sentences imposed on other co-offenders;
2. The sentence imposed upon the applicant was manifestly excessive.
I should deal first with certain evidence tendered by Mr Strickland, for Chung, not only to be taken account of if the Court should decide to interfere but as evidence supporting the grounds of appeal. Mr Strickland read the affidavit of Paul Hardin, Chung’s solicitor, sworn on 2 December 2004. The Crown objected. Mr Hardin says in his affidavit that on 7 April 2004 he met family and friends of Chung and asked them to provide him with “certain material”. On or about 28 June 2004 he received a number of letters from relatives and friends of Chung, including his son, Hon Wah, his sister and his former wife, the mother of Hon Wah. Those letters that bear dates were all apparently written in May 2004. The general tenor of the letters is of anxiety at the prospect of not seeing Chung for a long period of years, grief at his and their predicament, assertions as to his repentance and to his character as a father and a family man and requests for his sentence to be reduced.
Also annexed to the affidavit is a psychological report dated 9 June 2004 by Ms Salina Ho, Clinical Psychologist, Center of Education, The Mental Health Association of Hong Kong. Ms Ho says that she saw Chung’s son, Hon Wah, three times between April 2004 and the date of the report. She also interviewed Hon Wah’s mother. Ms Ho concluded that there was no sign of serious psychopathology in Hon Wah or in Chung’s former wife. Hon Wah had been distressed and had become vulnerable to develop emotional and behavioural problems. Ms Ho thought that the stress upon him would be eased if Chung’s prison sentence were reduced and if he were kept in a place closer to his family, so that they could have more opportunity to meet.
Chung was arrested in October 1998 and sentenced in June 2003. The material in the letters and the report was all of a kind that could have been obtained earlier and put before the sentencing judge. No attempt was made by Mr Hardin to explain why that was not done. In my opinion the evidence is not fresh. The Court should not take it into account.
This is part of what his Honour said about Chung’s case -
He did not give evidence, but through his counsel, placed a case of ignorance before the jury based largely upon his record of interview, in which he asserted that his task was to obtain and deliver food, the paucity of conversation that could be attributed to him and his previous good character. The jury were left without a reasonable doubt on the Crown case and convicted.
The Crown submits in relation to this prisoner, that his task was to prepare for the arrival of the heroin, to facilitate its receipt and transportation back to Sydney and to distribute it. He was to receive something for this, although the amount is never made clear. His renting of a flat was not only to provide separate accommodation for himself, but to provide accommodation for the heroin, where it could be cut and repackaged. The other accommodation referred to as ‘another den’ and the distribution of the heroin as the ‘latter part’.[Page 21 Crown submissions 24/09/98] It is conceded by the Crown that there is no evidence of any capacity to make independent decisions, nor that his task required any special skills other than the possession of a driver’s licence. It is also no part of the Crown case against Chung, that he had a capacity to stop the commission of the offence. He had contact with others overseas and was certainly present when Fan and Li received calls prior to Chan’s arrival.
The Crown submits that he was a highly trusted member of the organisation and nor is it disputed now by his counsel, that he had knowledge of the totality of the operation.[paragraph 10 Crown submissions]
Whilst the Crown would maintain that Chung was an important member of the organisation, fulfilling a necessary and knowledgeable role, his counsel asserts on his behalf that he was a mere employee without plenipotentiary rights and without any involvement in what happened to the heroin after it was landed.
I reject the defence submissions on this point. There is ample evidence satisfying me beyond reasonable doubt, that in obtaining other premises, a driver’s licence and in being present at the landing, that Chung was preparing for the third part and his discussion to be found moll tape 25 at page 19-21, in which he discussed the necessity to obtain a visa for nine months in which time the job would be finished, is strong evidence that it was his intention, not only to assist in the importation of the heroin, but to be concerned in the future with its distribution. I reject the submission by his counsel that he was no more than a mere employee and should be equated with one of the engineers on the Uniana. The activities which he undertook including obtaining a driver’s licence, a separate flat and equipment, coupled with his presence at the beach and many conversations in which he was a contributor or a listener, persuade me beyond reasonable doubt that he was a trusted member of the organisation, who, whilst not empowered to make independent decisions, was nonetheless an integral part of this importation.
His plea of not guilty deprives him of the discount he might otherwise have obtained from his co-operation with the criminal law process in this country and further demonstrates that he has shown no remorse for his actions.
Such as the court knows of his previous life is to be found in the pre-sentence report of Ms Patty Hammond. The account he gave the officer is unverified. The offender was married and is now divorced. He has children and is still in contact with his wife. She has twice visited him with her two sons aged 20 and 15. He is neither a drug user nor an alcoholic, nor a problem gambler. He is apparently a hairdresser by trade and has, he maintains, always worked. He still wishes to deny that he was aware of the nature of the cargo and is still, it appears, unprepared to accept the verdict of the jury.
I do not regard him in the same position as Chan, against whom there is evidence of a greater involvement. Nevertheless, his involvement was such that those who employed him but also have trusted him in consequence he must face the penalty which the law imposes. The Crown has submitted that a sentence of life imprisonment without parole should be imposed upon him. This sentence would in the face of what happened, be appropriate only for those whom the Crown has demonstrated were organisers rather than functionaries. That was the position occupied by Lau and Chen, but I fail to be persuaded that this is the case with Chung. Whilst a sentence of life is appropriate, I intend to set a non-parole period.
In having regard to 16A and 16A(1) of the Commonwealth Crimes Act, it cannot be said that he has co-operated with law enforcement agencies:
(a)         The sentence I impose will deter him from committing other serious offences.
(h)         and will also adequately punish him for the offence he has committed.
(k)         I have taken into consideration his age and antecedents insofar as I know them. In my view he could be rehabilitated.
(n)         There is no evidence to suggest that his imprisonment will affect detrimentally any dependents.
Mr Strickland submitted that Chung had a justifiable sense of grievance by comparing his sentence first with those of Chi Keung Chan, Fan and Li. There is no need to say any more about Chan.
As to Fan, Mr Strickland submitted that he was very much in control of Chung, giving him instructions on a range of matters. Moreover, Chung was not highly regarded: Fan called him ”stupid”, “totally incapable” and “a fool”. Chung took part in the enterprise as a man almost of prior good character – his Honour regarded his minor convictions for gambling offences as irrelevant – and because he was worried about debts he had run up during his conduct of a hairdressing business.
Fan, on the other hand, had smuggled people, marijuana and DVDs. He has been sent to prison in Japan and Hong Kong. He had extensive experience in the business.
Although Chung went to trial and thereby forwent the discount to which he would have been entitled on a plea of guilty, the resulting difference in sentences should have been less because his trial lasted only eight days. Although that was a circumstance that worked against him, as between him and his co-accused, it (or, rather, their pleas) should have been given less weight than their unfavourable features, in Fan’s case his extensive history and his ascendancy in the organisation. The sentencing of all the offenders took thirteen days, more than the time needed to try Chung. Fan and Li therefore facilitated the course of justice “in only a marginally greater manner” than Chung. So Chung’s sentence should have been less than Fan’s. Chung’s non-parole period was more than fifty per cent longer than Li’s, exceeding it by ten years. Given the positions of the two in the hierarchy and the low opinions others had of them, there was no justification for such a marked disparity between their sentences. The utilitarian values of the pleas of guilty of Fan, Li and others had to be seen against the days of court time that was needed at first instance and on appeal to deal with their unsuccessful motions for orders staying the indictment and for findings about whether they knew that it was heroin that was being imported.
It seems to me that as between Chung and Li, there were three outstanding features which combined to require a significantly longer sentence for Chung than for Li, namely Li’s plea of guilty, the difference between their positions in the organisation and the trust placed in them, and Chung’s intended role in the distribution of heroin after its importation.
In my view his Honour was bound to give significant weight to the pleas of guilty. Discounts for such pleas are openly offered in order to encourage them and those contemplating pleading guilty to serious charges on indictment ought not to be concerned that such offers may not be made good, perhaps because of court time taken up in disputation before or after plea.
I do not accept that his Honour ought to have given less value to the pleas of the co-offenders merely because of the time and expense of the motions and appeals which they pursued before entering them. No doubt the late emergence of the pleas made them of less value, given that the Crown must have fully prepared for trial, and I would assume that his Honour tempered his allowance accordingly. To withhold or further devalue the discount in such circumstances, however, would impermissibly punish accused persons for taking up the court’s time and would work against the public interest by reducing the attractive consequences of pleas of guilty. Notwithstanding that resources had been used in dealing with the motions and appeals, the public had no less an interest in encouraging the offenders to plead guilty.
Chung did not facilitate the course of justice at all, and the fact that his trial was short if, as alleged, it was, could not affect the value of the pleas of guilty in the sentencing of the other offenders.
As to the relative positions of the co-offenders, his Honour regarded Chan as most senior, Fan as his subordinate and Chung and Li as least involved. That did not mean, however, that his Honour regarded Chung’s and Li’s criminality as equivalent. His Honour was satisfied that Chung was a trusted member of the shore party. Although he had no particular skills he learned to drive and learned his way around Sydney. He understood the codes that were going to be used to distribute the heroin in due course. He was in contact with persons overseas. On the other hand, Li’s role, though vital, was simple, requiring him to drive, fetch and carry as directed. No such finding favoured Chung, who took part in conversations about arrangements to obtain premises to cut the drug. He had a nine month visa, compared to Li’s three month visa, and his Honour was justified in inferring that the intention was for Chung to play a substantial part in distribution once the heroin was imported and cut. Those conclusions were not attacked. There was no such unfavourable finding for Li.
In my view the three features I have mentioned would have been enough to account for the difference between Chung’s and Li’s sentences.
Although Fan was senior to Chung, there were two features that brought them close for sentencing purposes, namely the value of Fan’s offer to assist the authorities over the man Poon, to which his Honour gave weight, and Chung’s intended involvement in distribution. It seems to me, taking a broad view of the relative cases, that the imposition of similar sentences was within his Honour’s discretion.
Mr Strickland would have compared Chung’s sentence with the post-appeal sentence of Mandagi. He submitted nevertheless that Chung had a justifiable sense of grievance by a comparison of his sentence with those imposed on Ismunandar, Siregar and, at first instance, on Mandagi.
In my opinion Chung has no such justifiable sense of grievance. Mandagi, Ismunandar and Siregar were highly skilled specialists who used their skills to perform an essential function. Without them or somebody to do similar jobs there would have been no importation. Serious though they were, however, their roles were no more extensive than that. They were recruited solely for their skills in bringing the ship to Australia, and were not required to plan other than directly in the course of their work. Chung, on the other hand, was part of an integrated group with more varied responsibilities. He was involved in preparation. He would have taken part in the landing, the transport, the storage and the distribution of the heroin. His role would have taken a considerably longer time than those of Mandagi, Ismunandar and Siregar. In my view his life sentence was justified by comparison with theirs and his non-parole period of twenty-eight years was justified in comparison to theirs of twenty-five, twenty and twenty years respectively.
I do not think that Chung’s attack on his sentence has been made good. I would grant leave to appeal but would dismiss his appeal.

Orders

I propose the following orders -
Kai Kong Li: Grant leave to appeal but dismiss the appeal; dismiss the Crown 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.
HISLOP J: I agree with Barr J.

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LAST UPDATED: 25/05/2005

[2005] NSWCCA 154

25 May 2005