R v Lim and Yeung - [2002] NSWCCA 293

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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 to similar charges.

6 The prosecution case depended heavily upon evidence of surveillance of the men over a period of three days commencing on 17 October 2000, although surveillance had, in fact, been in progress for a very much longer period of time. The surveillance evidence encompassed both physical observation of the men’s movements, and evidence of legally intercepted telephone conversations. In fact, the evidence adduced at the trial was largely confined to evidence of events and conversations that took place on 19 October. It is necessary to recite, generally in chronological order, those events.

7 On 6 October 2000 Yeung arrived in Australia on a Malaysian Airlines flight that originated in Kuala Lumpur. The following day Lim arrived in Australia, having departed also from Kuala Lumpur. During the morning of 19 October, Tan drove a white Toyota Cressida to the Airport Hilton Hotel at Arncliffe. He was then alone. At the Airport Hilton Hotel, Yeung joined him and travelled in the Cressida as the front seat passenger. They drove together to the eastern suburbs, eventually arriving, at about 1.55 p.m., at Anzac Parade Kensington, near its intersection with Todman Avenue. The vehicle stopped near the Post Office, Yeung alighted and walked to the median strip. He had a mobile phone on which he appeared to be having a conversation. At about the same time, or shortly after, Lim was standing on Anzac Parade, also apparently speaking on a mobile telephone. Next to Lim was a black suitcase on wheels. Yeung walked towards Lim, they engaged in conversation for a short time. Yeung returned to the Cressida, had a conversation with Tan, then rejoined Lim and had another, shorter, conversation. The two appellants walked together toward the Cressida, Lim towing the black suitcase, which he then placed in the boot of the vehicle. Yeung took his place again in the passenger seat. Lim walked off along Anzac Parade, apparently making another mobile telephone call. Just a few minutes later, Yeung and Lim were again together standing on the footpath of Anzac Parade. They entered a taxi and travelled (indirectly) to Coogee.

8 Tan drove the Cressida to a house in Worland Street, Yagoona, premises that had been under surveillance. He removed a black suitcase from the boot of the Cressida and took it into the house. The suitcase he removed was of identical description to that placed by Lim in the boot of the Cressida at Anzac Parade. The overwhelming inference from the evidence is that it was the same suitcase. Tan then drove to Kareela, where he was stopped and arrested.

9 At about 3.10 p.m. Yeung used a public telephone in Coogee, while Lim waited outside. The two appellants walked to and entered an apartment block in Beach Street, Coogee.

10 At about 4.23 p.m. the two appellants left the apartment building and walked along the Coogee Beach foreshore. At about 4.40 p.m. they entered Bloom’s Pharmacy in Coogee Bay Road. Lim emerged and sat on a bench, apparently waiting for Yeung. When Yeung emerged from the pharmacy he was carrying a white paper bag. He joined Lim and they walked along Coogee Bay Road and then separated. Yeung entered the Coogee Bay Hotel. He was inside the hotel for about fifteen minutes before he emerged and walked again to the Coogee Bay promenade. He deposited a white object in a garbage tin. The garbage tin was subsequently searched by Federal Police and a white object retrieved. This was a white paper bag with Bloom’s Pharmacy printing on it. Inside the bag were two yellow boxes which had contained Futuro Spiral Lift Elbow Supports. Although some items such as pamphlets remained in the boxes, they were otherwise empty.

11 Yeung walked to the apartment block in Beach Street where he remained for a little over three hours. The two appellants then entered a taxi and loaded into it a number of suitcases. Federal Police stopped the taxi and arrested the two appellants. They were searched. Each was found to have a quantity of Australian currency strapped, by means of bandages, to each leg. Each appellant had in his possession, in total, $40,000, strapped to each leg in bundles of $20,000. Each appellant was also in possession of a business class airline ticket for travel to Malaysia. Yeung had originally held a booking for a departure date of 11 October but had not travelled on that date. There appears to have been no substitute booking made, but evidence from a Malaysian Airline employee showed that flights could, subject to seat availability, be arranged at the airport.

12 At about 11.00 p.m. Federal Police converged upon the premises at Worland Street, Yagoona and, after Federal Agent William had spoken to Dang, they entered and searched the premises, pursuant to a search warrant. Among items seized as a result of the search was a black suitcase containing numerous bags of various coloured tablets which later proved to be ecstasy. There were more than 46,000 tablets. The black suitcase was, again, of identical description to that placed in the boot of the Cressida by Lim, and removed from the boot of the Cressida at Yagoona by Tan.

13 Also in evidence was a considerable volume of recordings and transcripts of intercepted telephone conversations. Significantly, these included several conversations on the morning of 19 October between Tan and Yeung, the substance of which was to make the arrangement to meet at the Airport Hilton Hotel. Also of significance was the evidence of a telephone call at about 3.09 p.m. initiated by Yeung and received by Tan. This, the evidence disclosed, was the record of a telephone call made by Yeung from the public telephone box in Coogee. The conversation was short but revealing. The record of the conversation became exhibit Y. It is as follows:

14 At this point the transcript records Yeung as saying:

“He will turn off the mobile if no more calls to him. Right?”

15 A note to the transcript suggests that this was addressed, not to Tan, but to a person in Yeung’s presence. There was no audible response. The transcript continues:

16 Given that the evidence showed that this was a record of a telephone call made by Yeung from the Coogee telephone box, and that Lim had been observed to be standing outside the telephone box at the time of the telephone call, it is a reasonable inference that the person off-line to whom Yeung spoke was Lim.

17 Exhibit X was a record of a telephone call which commenced at 2.10 p.m. Neither appellant was a party to this conversation. The participants were Tan and a man who was never identified other than by the name by which Tan addressed him, “Crazy”. The conversation was as follows:

18 A number of other telephone conversations between “Crazy” and Tan were in evidence, but it is unnecessary here to refer to them in detail.

the appeal against conviction

19 On behalf of Lim the following grounds were pleaded and argued:

“Ground 1: That her Honour erred in admitting against Lim the evidence of the telephone calls which occurred prior to the black suitcase being transferred and taken by TAN to the Yagoona premises, except for the telephone call between TAN and YEUNG which occurred at 3.09 p.m. on 1 October 2000 [call number 14].

Ground 2: (not pressed)

Ground 4: That her Honour erred in admitting into evidence the cash found on Lim when he was arrested, in that the probative value of this evidence was not outweighed by the unfair prejudice to Lim.

20 On behalf of Yeung the following grounds of appeal were pleaded and argued:

“Ground 1: The learned trial judge erred in admitting against the appellant exhibit X [the telephone conversation between “Crazy” and Tan which commenced at 2.06 p.m. on 19 October].

Ground 2: The learned trial judge erred in admitting into evidence the cash found on the appellant when he was arrested.

Ground 3: The learned trial judge erred in failing to direct the jury not to engage in tendency reasoning in respect of the cash found on the appellant when he was arrested.

Ground 4: The verdict was unreasonable.”

Lim’s appeal against conviction

Ground 1

21 On behalf of Lim it was conceded that the contents of the telephone call between Tan and Yeung at 3.09 p.m. on 19 October (exhibit Y) was admissible. This concession was, presumably, made because of the evidence which permitted the inference (if it did not convincingly establish) that Lim was present as a bystander during the short conversation, and was consulted by Yeung at one point during the conversations.

22 However, complaint is made that the contents of a number of telephone calls between Tan and “Crazy” on 17 October, and the call of 19 October between the same parties (exhibit X, the call in which reference was made to “fifty thousand”); and calls between Tan and Yeung on 19 October were not admissible against him because there was no evidence that he was present or in any way participated in the conversations, and, so it was submitted, they did not meet the tests for admissibility stated by the High Court in R v Tripodi (1961) 104 CLR 1 and R v Ahern (1988) 165 CLR 87.

23 In Tripodi, the High Court, constituted by Dixon CJ, Fullagar and Windeyer JJ, wrote:

res gestae

24 In Ahern, the High Court, constituted by Mason CJ, Wilson, Deane, Dawson and Toohey JJ, in a joint judgment wrote:

Tripodi

25 The point was taken before Backhouse DCJ. Having considered the tendered evidence, and the argument, her Honour held that there was reasonable evidence of a prima facie case of preconcert. In my opinion, that ruling was clearly correct. The evidence that Lim had been seen with a black suitcase which he placed into the Cressida and which was in turn then driven off by Tan, that shortly after a black suitcase identical in appearance was delivered by Tan to the Yagoona address, and that a little later a black suitcase, again identical in appearance, was found in the premises and containing a large quantity of ecstasy tablets, is alone, a significant step on the way to establishing preconcert between Lim and Tan. Yeung’s participation in the Anzac Parade meeting, in the uncontested telephone call (exhibit Y) and the discovery, on the two men, of a large amount of unexplained cash, are, in my view, further evidence to establish preconcert. However, there was more than this. There was also evidence that Yeung and Lim had travelled to Australia only a day apart, and that they had shared accommodation at two different places, additional factors going to preconcert (although these, alone, would plainly be insufficient).

26 The argument advanced on behalf of Lim was that it was the evidence of the telephone conversations itself from which the Crown sought to establish preconcert between Lim and the other participants.

27 Particular objection was taken to the admission of exhibit X, the conversation between “Crazy” and Tan, which commenced with “Crazy” asking Tan if he had “taken [his] meal”. Reference was then made by “Crazy” to Tan’s receiving “fifty thousand” and Tan’s reply that he was “now driving something with me”.

28 The submission put in relation to this transcript was that by this time any possession by Lim had ceased and that whatever discussion took place between “Crazy” and Tan did not relate to any common enterprise to possess the contents of the bag. I would reject this submission. Where the joint enterprise alleged is a joint enterprise to possess an item, that enterprise does not necessarily come to an end when physical possession passes from one of the participants to another. In my view, the correct approach to the admission of the evidence in this case was to regard the joint enterprise alleged by the Crown as being a joint enterprise among the four participants to possess the drugs, although, from time to time, only one, or perhaps more, but certainly not all, of the participants might be in actual physical possession.

29 The inquiry made by “Crazy” about whether Tan had “taken [his] meal” could well have been interpreted as an inquiry whether physical possession of the suitcase had passed to Tan. This should not be seen as a narrative of events, or an admission, but as an inquiry made by one participant of another as to the progress of the joint criminal enterprise – and therefore made in furtherance of that enterprise.

30 I would reject this ground of appeal.

Ground 3

31 Ground 3 is in two parts, but they can be dealt with together. Essentially, the ground is that the evidence of telephone calls, even if prima facie admissible against Lim, should have been excluded in the exercise of the discretion conferred by s135 of the Evidence Act 1995 or as a result of the balancing exercise required by s137 of that Act. In either case, the argument was that the probative value of the contents of the telephone calls was outweighed by the prejudicial value of the evidence. This was put on the basis that the conversations were capable of disclosing a joint criminal enterprise between Dang, Tan, “Crazy” and Yeung to supply drugs, as distinct from the joint criminal enterprise alleged against Lim, to possess the drugs.

32 In my opinion, this argument has an air of unreality about it. The quantity of ecstasy tablets located at Yagoona was almost fifty thousand, with an estimated street value of $60 each, or a total of almost $3 million. To exclude evidence capable of establishing preconcert to possess such a quantity of drugs, even though it might incidentally suggest also a conspiracy or agreement to supply the drugs, would be to take technicalities too far. Any jury faced with evidence such as I have mentioned would reasonably assume that the purpose of an agreement to possess such a quantity of drugs had as its purpose a further intention that the drugs would find their way into the market, although not necessarily be supplied by the same participants. That does not in any way detract from the probative value of the evidence in relation to possession, nor increase the prejudicial effect of the evidence.

33 In my view, the telephone conversations showing that arrangements were being made for meetings on 19 October, and to facilitate communication amongst the participants, had significant probative value, but insignificant prejudicial effect. I would reject Ground 3.

Ground 4

34 Both appellants challenged the admission of the evidence of the large sums of cash found upon them when they were arrested. In Lim’s case, the basis of the challenge is, again, an assertion that the probative value of the evidence was outweighed by its prejudicial effect, and that, therefore, ss135 or 137 should have been invoked to exclude it, even if it was shown to be otherwise admissible.

35 Senior counsel for Lim argued that there no evidence as to the source of the money, when it had been obtained, why it was concealed, or how long he had had it in his possession before his arrest. It was put that there were other possible explanations but no account was taken of these.

36 Again, it seems to me that the submission lacks reality. A jury would know that, in the ordinary course of events, individuals do not travel by taxi (or in any other way) with large sums of cash strapped to their legs and concealed under their clothing. Apart from anything else, the coincidence of time was a relevant factor in the assessment by the jury of the value of this evidence.

37 As a fallback position, it was argued on Lim’s behalf that, at the very least, the jury should have been warned not to engage in “tendency” type speculation. Reliance was placed upon the decision of this Court in R v AH (1997) 42 NSWLR 702.

38 “Tendency evidence” is defined in the Evidence Act as evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, tendered for the purpose of proving that that person had a tendency to act in a particular way or to have a particular state of mind.

39 In my opinion, it is quite clear that the evidence of Lim’s possession of a large sum of cash was not tendered for the purpose of proving that he had a tendency to act in a particular way or to have a particular state of mind. It was a circumstance tendered by the Crown as one circumstance on which the jury might act in considering whether the charge of unlawful possession had been proved. I find it difficult to conceive the nature of the warning it is suggested should have been given. It is not as though the prosecution had tendered the evidence of the possession by Lim of a large amount of money on an occasion unrelated to the occasion in respect of which he was charged. The evidence of his possession of cash related to a time very shortly after the time at which he had been alleged to have been seen in circumstances which permitted the inference that he had actual physical possession of drugs, and at which the joint enterprise among the four men to possess the drugs was still extant. I would reject this ground of appeal also.

Ground 5

40 The final ground argued in relation to Lim was that the verdict was “unsafe and unsatisfactory”. It was submitted that the verdict of guilty was not open to the jury for a number of reasons. One of these was that it was essential to the Crown case that the jury be satisfied that the black suitcase which he placed in the Cressida at about 2.00 p.m. actually contained ecstasy at that time or, if it did, that Lim was aware of it at the time.

41 There was, in my opinion, ample evidence to permit the inference to be drawn that the bag observed on three different occasions (at Anzac Parade, outside Worland Street, and being carried inside that address, and at that address during the execution of the search warrant) was the same bag. Indeed, any other inference would be far fetched.

42 It was argued that a contradiction appeared in the evidence of one Federal Police Officer, Federal Agent Chin, who said that he had observed Tan pull the suitcase into the Worland Street premises; but that video recording of his observations showed only that Tan “appeared to go down the driveway towards the rear of the house”. It was argued that this did not establish that the bag was taken into the house. In my opinion the inference was available, and was overwhelming, that when Tan was seen to go down the driveway of the house, with the suitcase, and there was no evidence that he was seen to leave the house with the suitcase, that the bag had indeed been taken into the house.

43 I have considered all of the matters raised on behalf of Lim. I am satisfied that the verdict of guilty was well open to the jury. Indeed, I am satisfied that this was a very strong Crown case.

44 I would dismiss Lim’s appeal against conviction.

Yeung’s appeal against conviction

Ground 1

45 In relation to exhibit X, it was submitted on behalf of Yeung that the record of the conversation between “Crazy” and Tan was not admissible against Yeung. This was because he was not present, and the contents of the conversation could not be taken to be an admission for the purposes of s87 of the Evidence Act. Exhibit X was the record of the telephone conversation in which “Crazy” asked Tan if he had taken his meal and said that in this deal he would receive “fifty thousand”.

46 S87(1) of the Evidence Act is in the following terms:

87. Admissions made with authority

47 S87(1)(c) is the relevant sub-paragraph. On behalf of Yeung it was argued that, because the evidence suggested that possession of the drugs had been transferred to Tan at about 2.06 p.m., the statements in the conversation could not be taken as being made “in furtherance of a common purpose”. For the reasons given in relation to Ground 1 in Lim’s appeal, I would reject this argument. The common purpose did not cease when Tan gained physical possession of the drugs, but continued, in my view, right up until the time when the various participants were arrested. “Crazy’s” inquiry of Tan, which could logically be interpreted as an inquiry as to whether he had obtained possession, could well be taken to have been made in furtherance of the common purpose in that he was supervising, or keeping an eye on, the progress of what was to be done. The same could be said of his representation that Tan would receive “fifty thousand”.

48 I would reject this ground of appeal.

Grounds 2 and 3

49 These grounds are essentially the same as Ground 4 in Lim’s appeal, and for the reasons there given I would reject them.

Ground 4

50 While advancing an argument that the verdict was unreasonable, senior counsel for Yeung conceded that the evidence was “suspicious”. As in Lim’s case, it was put that the evidence of continuity of possession of the black suitcase was insufficient to permit an inference that, at the time the suitcase was placed in Tan’s car at Anzac Parade, it contained the drug found in the black suitcase in the Yagoona house nine hours later.

51 For the reasons given in relation to the corresponding ground of appeal in Lim’s case, I would reject this ground.

52 I would therefore dismiss Yeung’s appeal against conviction.

Yeung – application for leave to appeal against sentence

53 The only matter raised in the application for leave to appeal against sentence concerned a finding of fact by the sentencing judge that the verdict carried with it a finding that Yeung knew that the quantity of narcotic drugs in the suitcase was in excess of the commercial quantity; it was put that the verdict did no more than establish that there was such a quantity in the suitcase and that Yeung knew that there were narcotic drugs in the case, but not that he knew of the quantity.

54 The fact is that the verdict did establish that Yeung had had possession of not less than the commercial quantity of the drug.

55 Effectively, the Crown conceded that the finding that the jury’s verdict of itself entailed a finding that Yeung knew what the quantity was constituted error, but argued that, nevertheless, the sentence imposed was open to her Honour. On behalf of Yeung it was argued that this Court should re-sentence Yeung on the basis that he did not know what the quantity was. I would reject this submission also. Yeung gave no evidence, either in the trial or in the sentencing proceedings. There was no basis on which this Court could infer that he was unaware of the quantity. In my opinion the inference is well available that Yeung did know that the quantity was in excess of the commercial quantity and that it was therefore appropriate that he be sentenced accordingly. There is no error demonstrated in the sentencing process. I would grant leave to appeal against sentence but dismiss the appeal.

56 The orders I propose are:

(i) In each case, the appeal against conviction is dismissed;

(ii) Leave be granted to Yeung to appeal against sentence, but that the appeal be dismissed.

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Citations

R v Lim and Yeung [2002] NSWCCA 293

Most Recent Citation

R v Schofield [2003] NSWCCA 3

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Cases Cited

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Statutory Material Cited

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Osland v The Queen [1998] HCA 75

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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.