R v Lim and Yeung - [2002] NSWCCA 293

CITATION: R v Lim & Yeung [2002] NSWCCA 293

FILE NUMBER(S): CCA 60646/01; 60876/01

HEARING DATE(S): 13 June 2002

JUDGMENT DATE:
30 July 2002

PARTIES :

Cheong Boon Lim - Appellant
Chi Wai Yeung - Appellant
Crown - Respondent

JUDGMENT OF: Spigelman CJ at 1; O'Keefe J at 2; Simpson J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0507
01/11/0566

LOWER COURT JUDICIAL
OFFICER : Backhouse DCJ

COUNSEL : MC Ramage QC - Lim (Appellant)
SJ Odgers SC - Yeung (Appellant)
M Allnutt - Crown

SOLICITORS: Naomi Hamilton - Lim (Appellant)
Nyman Gibson & Co - Yeung (Appellant)
Cth DPP - Respondent

CATCHWORDS: appeals against conviction - possession of not less than commercial quantity of prohibited imports - evidence of intercepted telephone calls to which appellants were not party - admissibility of statements made by participants to joint criminal enterprise against other alleged participants - reasonable evidence of pre-concert - prejudicial value of evidence vis-a-vis probative value - not tendency evidence - verdicts not unsafe and unsatisfactory - conversations in furtherance of conspiracy - application for leave to appeal against sentence - error in finding judgment verdict entailed knowledge of actual quantity of drugs - nevertheless no error in sentencing process

LEGISLATION CITED: Customs Act 1901
Evidence Act 1995

CASES CITED:
Tripody v R (1961) 104 CLR 1
Ahern v R (1988) 165 CLR 87
R v AH (1997) 42 NSWLR 702

DECISION: Appeals against conviction dismissed. Leave granted to Yeung to appeal against sentence; appeal dismissed.

60646/01
60876/01

SPIGELMAN CJ
O’KEEFE J
SIMPSON J
30 July 2002

REGINA v Cheong Boon LIM

REGINA v Chi Wai YEUNG

Judgment

1 SPIGELMAN CJ: I agree with Simpson J.

2 O’KEEFE J: I agree with Simpson J.

3 SIMPSON J: On 27 August 2001 the appellants were jointly charged in the District Court on an indictment alleging that, on 19 October 2000, they had in their possession prohibited imports, being not less than the commercial quantity of the drug shortly known as MDMA and commonly known as ecstasy. On 18 December 2001 the jury returned verdicts of guilty against each appellant. By s235 of the Customs Act 1901, the appellants were, by reason of their convictions, exposed to maximum penalties of life imprisonment. On 11 December 2001 Backhouse DCJ sentenced each appellant to imprisonment for nine years with a non-parole period of five years and four months, each sentence to commence on 19 October 2000, the date of the offences and the date the appellants were taken into custody.

4 Each appellant now appeals against his conviction. Yeung seeks leave to appeal against the sentence imposed. Lim, who had previously filed an application for leave to appeal against sentence, abandoned that application on the date fixed for hearing.

5 The Crown case was that the appellants, together with two other men (Cong Tam Dang and Chiap Nam Tan) were parties to a joint enterprise to possess the drug. Both Tan and Dang pleaded guilty…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lim and Yeung

Details

AGLC: R v Lim and Yeung [2002] NSWCCA 293
Case: [2002] NSWCCA 293
Decision Date: 30 July 2002

CaseChat Overview and Summary

The appeal concerns the convictions of two individuals, Lim and Yeung, who were found guilty of possessing a quantity of prohibited imports, specifically drugs, that was not less than commercial in nature. The case was heard by the High Court of Australia, which was tasked with determining the admissibility of certain intercepted telephone conversations and statements made by participants in a joint criminal enterprise. The appellants contested the admissibility of this evidence, arguing it was prejudicial and did not meet the threshold for probative value. The court was also required to consider the sentences handed down to the appellants, including whether the trial judge had erred in concluding that the verdict of the jury implied knowledge of the actual quantity of drugs involved.

The court examined the principle that evidence of a joint criminal enterprise is admissible against other participants if there is reasonable evidence of pre-concert. The appellants argued that the prejudicial value of the intercepted conversations outweighed their probative value. However, the court found that the evidence in question was not tendency evidence but rather conversation evidence in furtherance of the conspiracy. The court concluded that the verdicts were not unsafe and unsatisfactory, and the evidence did not prejudice the appellants to the extent that it would result in a miscarriage of justice. Regarding the sentence, the court acknowledged an error in the trial judge's finding that the jury's verdict implied knowledge of the actual quantity of drugs. However, the court found that this error did not impact the overall sentencing process. Consequently, the convictions were upheld, and the application for leave to appeal against the sentence was dismissed.

Orders