R v Lu Hong

[2000] NSWCCA 213

CITATION:	R v Lu Hong & Ors [2000] NSWCCA 213
FILE NUMBER(S):	CCA 60658/97; 60037/98; 60653/97
HEARING DATE(S):	20 April 2000
JUDGMENT DATE:	20 April 2000
PARTIES :	Regina v Lu Hong: Regina v Vi Lam: Regina v Vi Lam
JUDGMENT OF:	Priestley JA at 1; Foster AJA at 38; Sperling J at 41

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	96/11/0816
LOWER COURT JUDICIAL OFFICER :	His Honour Judge Luland

COUNSEL :	Crown - J.V. Agius SC R. Button (Hong) G.J. Stanton (Lam)
SOLICITORS:	Crown - Comm Director of Public Prosecutions Vi Lam - Jack Rigg Hong - W. Chan & Co
LEGISLATION CITED:	Drug Misuse & Trafficking Act (NSW) Crimes Act Proceeds of Crimes Act 1987
DECISION:	Crown appeals dismissed.; Application for leave to appeal by Vi Lam granted - appeal dismissed.

IN THE COURT OF

CRIMINAL APPEAL

60658/97
60037/98
60653/97

PRIESTLEY JA
FOSTER AJA
SPERLING J

Thursday, 20 April 2000

REGINA v LU HONG
REGINA v VI LAM
REGINA v VI LAM

1 PRIESTLEY JA: On 27 October 1997 one woman and three men appeared before his Honour Judge Luland of the District Court for sentence hearing after pleas of guilty entered on an earlier day to a variety of charges connected with heroin. The sentence hearing spanned three days. Judge Luland pronounced sentence on the four prisoners on 13 November 1997. 2 The Crown appealed against the sentence of two of the men, Vi Lam and Lu Hong, on the ground of manifest inadequacy. Vi Lam sought leave to appeal against his sentence on the ground it was manifestly excessive. The third man also commenced an application for leave to appeal against his sentence but that has been abandoned. Before the court today, therefore, were the cases of Vi Lam and Lu Hong. 3 The sentencing judge on sentence recounted the facts concerning all of the prisoners in the one narrative before he turned to consider what sentences should be pronounced on each individual. All the charges arose from the same overall circumstances but the charges against each person were not all the same. I will adopt the same method of stating the facts. It is convenient and there is no objection to it. 4 There were more charges against Lu Hong than against Vi Lam. As summarised by the judge, his pleas of guilty were to charges of conspiring with Vi Lam and a third man to supply a prohibited drug, heroin, being not less than the commercial quantity, namely a large commercial quantity in breach of that section of the Drug Misuse and Trafficking Act, New South Wales, for which the maximum penalty is life imprisonment. He also pleaded guilty to two counts of being in possession of prohibited imports, namely heroin being not less than the commercial quantity, that offence being one of breach of the provisions of the Customs Act, for which the maximum penalty is life imprisonment. He further pleaded guilty to three counts of importation of heroin, being not less than the commercial quantity, into Australia, again an offence in breach of the Customs Act for which the penalty is life imprisonment. 5 The final charge to which he pleaded guilty was that he conspired with all the co-accused to commit an offence punishable by more than twelve months' imprisonment, namely money laundering, under s 86 of the Proceeds of Crimes Act and s 81 of the Crimes Act 1987. The maximum penalty for that offence is twenty years' imprisonment. 6 Vi Lam pleaded guilty to charges of conspiracy, charges of the same conspiracy as that charged against Lu Hong in the first count against him, also that he possessed prohibited imports, namely a commercial quantity of heroin and further that he conspired with all the co-accused to launder the proceeds of the crime. 7 His Honour Judge Luland set out the facts from which those charges emerged in considerable detail. It is not necessary to repeat all of the detail and I will summarise the facts from the sentencing judge's account. 8 On 25 November 1995 a search warrant was executed at a house at Undercliffe where Vi Lam lived with his wife and child. Present there were Vi Lam and Lu Hong and a third man who made an unsuccessful attempt to flee. When the premises were searched, 5.88 kilograms of heroin were found and an amount of Australian and foreign currency totalling almost A$700,000, jewellery to a value of about $2,500 and other valuable items. 9 A great deal of documentation was found which supported the money laundering charges that were later brought. More particularly, a room was found in the downstairs part of the premises with a locked door which, when examined, was found to be a room fully adapted for the reception and processing of heroin for sale. A great deal of incriminating material was found in the premises. 10 The investigating officers moved from Undercliffe to Lakemba, to less impressive premises where Lu Hong lived. There they found more incriminating objects, including a number of packages of heroin which weighed 11.2 kilograms and contained a total pure weight of nearly eight kilograms, cash in the sum of $23,000 was found and other documentation which supported the money laundering charges. 11 There was also found in Lu Hong's premises a number of sauna bath units, one of which had been imported into Australia on that day and which contained heroin, the others of which contained no heroin but had been built in such a way that heroin could be concealed in them in the same way as the heroin that was discovered in the unit imported on that day. 12 Lu Hong also on the same day made a number of admissions which were quite extensive and quite specific about his involvement in the overall operation evidence of which these search warrants had been the means of discovering. The operation involved importation of heroin in large amounts, preparation for sale, its distribution, record-keeping in regard to the distribution and the sending of the very considerable proceeds of the sales of heroin to persons in Hong Kong. 13 Overall, the way in which the judge looked at the facts which he had set out in detail was stated in one passage in his reasons for sentence which is of some importance in regard to the matters raised in the two appeals and one application for leave to appeal presently before the court. 14 In this passage he said:-

“ It could be seen from the comprehensive account of the facts that were evidenced ... vast commercial enterprise to introduce huge quantities of heroin into this country and process and sell them and then dispose of the ill-gotten gains to other criminals off our shores. Whilst the actual quantities of heroin found in possession of the various prisoners could not be said to be as great as in other cases to which I have been referred, one cannot overlook what is seen by way of other empty heaters to have been imported and the enormous sums of money sent abroad as being indicative of the extent of a conspiracy which operated from 1 July 1994 to 25 November 1995. ”

He went on:-
“ It is in this context that I assess the seriousness of the offences and not limiting myself to the quantity of heroin found and indeed the individualised other offences, I have had regard to the totality of the crime and will sentence accordingly. ”

From there, the judge proceeded to consider the individual culpability of each of the three men who were before him for sentence. So far as concerns Vi Lam and Lu Hong, he came to the conclusion that, although the charges against them were not entirely concomitant and although they had played somewhat different parts in the overall operation, nevertheless the criminality of each of them was very much on the same level.

15    In coming to this conclusion, he referred to the fact that Lu Hong had given evidence before him in which he attempted to shift most of his responsibility onto Vi Lam. But he said he was not at all impressed with that evidence in regard to that matter and he rejected it. However where Lu Hong spoke of the actual participation of Vi Lam, he accepted that when it was confirmed by independent Crown evidence. 16    Of course on this aspect of the matter a very major consideration was that lockable room in Vi Lam's home which appeared to have been the very heart of the operation which dealt with the conspiracy charges. It would be difficult to minimise the participation of Vi Lam in the entire operation in view of what was found at his home on 25 November 1995. 17    Another important passage in the sentencing judge's reasons came a little later, after the one I have previously read. In this he said:-

“ A mere outline of the facts in this case patently brings home the devastation of their criminality, that is the criminality of the present charges, would have caused in terms of personal misery to a large number of our citizens such crime has generated in our society because of the desperation of the addict to pay for this foul drug. Many millions of dollars forwarded overseas, no doubt largely the proceeds of robberies, house breaks and other offences that our citizens have to endure to satisfy the abundant greed of those purveyors of this community. ”

18    He then went on to consider the individual circumstances relating to each prisoner. There was not much to be said in that regard. What little the sentencing judge mentioned was moderately favourable to both Lu Hong and Vi Lam. For instance in regard to Lu Hong, there was reference from a travel agent who praised him as having been hardworking and friendly and accommodating when working in organised tours. The judge also mentioned that Lu Hong had no prior convictions and had been in custody since his arrest on 25 November 1995. 19    The details he gave concerning Vi Lam were obviously different. He was older and had a different background but also had no prior convictions and had been in custody since 25 November 1995. The sentencing judge mentioned also some evidence concerning Vi Lam's eyesight problems. He had had corneal grafts in both eyes which caused difficulty in reading and also caused quite frequent dizziness. 20    The judge then indicated that the method he was going to use in sentencing the three male prisoners was to reflect the total seriousness of their criminality in the offence of conspiracy to supply not less than the commercial quantity of heroin, that being a large commercial quantity. He said the reason for taking this approach was that he considered that the other offences, which broadly speaking were importation and supply and laundering, illustrated the extent of the conspiracy to supply. 21    He was of the view that he could understand and describe the true nature of the conspiracy by reference to these overt acts performed in furtherance of the conspiracy. He also stated that he was not intending in the sentence he was going to impose within that separate or additional charges to cover the further offences committed by a prisoner in relation to which he had neither been charged nor convicted. 22    On that footing he went on to observe that both Lu Hong and Vi Lam had played very significant roles in the conspiracy and the third man a lesser one. He mentioned the pleas of guilty of each prisoner. He noted also there had been a very strong case against each of them. He did not notice any contrition as being involved in the pleas but he did notice what has been called the "utilitarian effect" of their pleas as discussed in the well known decision of Winchester, this utilitarian effect being, I would think, quite significant in regard to the jury trials which did not go ahead because of the late pleas. Various estimates of the length of those trials were put before the sentencing judge. They varied between four to eight weeks. Ordinary experience with estimates of that kind indicates it is rare for the lower end of the estimate to come to pass. 23    The sentence that he fixed in the case of Vi Lam was in totality imprisonment for eighteen years with a minimum term of thirteen years six months, the sentences for the three counts to which he pleaded guilty being as follows:

In regard to the conspiracy to supply, imprisonment for eighteen years with a minimum term of thirteen years six months and an additional term of four years six months.
In regard to the possession of prohibited import in commercial quantity, twelve years' imprisonment, with a non parole period of eight years;
In regard to the conspiracy to money launder, six years' imprisonment with a non parole period of four years.

24    The same total effective sentence was imposed on Lu Hong, the separate sentences being:

In regard to count one, same sentence as in the same count for Vi Lam;
In regard to counts two and three, possession of prohibited import in commercial quantity, twelve years' imprisonment with a non parole period of eight years;
In regard to counts four to six, importation of prohibited import, commercial quantity, thirteen years' imprisonment, with a non parole period of nine years;
In regard to count seven, conspiracy to launder money, six years' imprisonment with a non parole period of four years.

25    The court has had the benefit of detailed written submissions from the Crown and counsel for the two respondents. For the Crown also the written submissions were fully elaborated. I mean no disrespect to those submissions by summarising them quite briefly. 26    The Crown began by saying that the trial judge's method of sentencing and the expression of his reasons were not the subject of criticism. It was not submitted that any error in the method or the sentencing remarks of the sentencing judge had occurred. The substantial submission for the Crown was that notwithstanding the methodical and careful way in which the sentencing judge had expressed himself and notwithstanding that in his sentencing remarks he appeared to have taken into account all the necessary matters, the result simply was inadequate in that he must have been in error in the process somewhere or, more broadly, that no matter how appropriately expressed the reasons for sentence were, the sentences arrived at in regard to the two respondents were so much out of line with the general range of sentences for offences of this kind as to be obviously wrong. 27    In putting this submission the Crown emphasised the matter mentioned by the sentencing judge in the first of the extracts from his reasons which I read earlier. This was that portion where he referred to a vast commercial enterprise to introduce huge quantities of heroin into the country and the rest of that passage. This statement by the sentencing judge together with the facts of the case were said to justify a conclusion that criminality of the worst kind that there could be in regard to an offence of the type in question here was obvious. 28    That particular submission seems to me to be really the basis of the Crown's appeals but I do not think that the judge sentenced the respondents on the basis of the matter being of the worst kind. I think there are clear indications in the passage which I last quoted that he did not feel he was able properly to sentence the respondents on the basis that their criminality was of the very worst kind requiring penalties - while not maximum for which the Crown is not contending, but towards the very top of the range of penalties for this class of offence. The sentencing judge mentioned that the actual quantities of heroin found in the possession of the various prisoners might not be as great as other cases to which he had been referred. He seems to me to have sentenced the respondents on the basis that the evidence supporting the conspiracy count did indicate that a major commercial enterprise was under way, but that he could not sentence on a totality basis simply on that footing in view of the specific charges which had been brought against the respondents, and on the basis that he needed to be careful to end with a sentence that dealt with the specific matters that were before him, which of course included the conspiracy that he found, and the conspiracy and overt acts connected which fell within the particular boundaries created by the actual evidence that was before him. 29    To put in other words what I have just been saying, it is my view that on the materials that were before him and from the way he expressed his sentencing remarks, the sentencing judge felt that he should deal with the respondents on the basis that they were very high on the scale of criminality but not in the most serious class. It also seems to me on the material before him he was entitled to take that view. 30    On this basis the sentences that he arrived at seem to have been within the acceptable range. 31    A subsidiary submission for the Crown was that it was clear that the sentencing judge had not given any or, if any, had not given proper weight, in arriving at the overall sentence, to the money laundering aspects of the charges against both men. However, it seems to me that it appears from one of the other passages I have already read that the judge took a particular view about the relation of the money laundering offence to the overall conspiracy by reference to which he was principally approaching the sentencing task. 32    In short my opinion is that although it may be true to say that the sentences his Honour arrived at were at the lower end of the permissible range, they nevertheless were in the permissible range and for reasons which his Honour made clear, would seem to me to be sound. They were dependent on a view of the facts of the respondents which were before him, which was open to him and with which I would not think this court should interfere. 33    The result is that in regard to the Crown appeals, I would propose they be dismissed in each case. 34    As to the application for leave to appeal by Vi Lam, I do not think there is much to add to what I have already said on the factual side. I repeat that the facts are thoroughly set out in the sentencing judge's reasons. 35    The basic complaint urged on behalf of Vi Lam involves the view that he and Lu Hong should not have been dealt with in exactly the same way. The parity cases were called in aid. It seems to me however that the sentencing judge’s conclusion that their criminality was much on the same level was very soundly based. Although on one hand there was a considerably clearer connection between the importation of the heroin and Lu Hong than there was with Vi Lam (who was not charged with importation), on the other hand there was a very major connection between the whole enterprise and the locked room in Vi Lam's premises together with a very considerable amount of documentation and money and jewellery as well as heroin, of course, in his premises. 36    On the sentencing judge's approach, which was to look at the matter impartially by reference to the overall submissions, it seems to me that the two men were very equal co-conspirators. I do not think that there is any other matter raised on behalf of Vi Lam of any weight against the sentencing judge's reasons. 37    In view of the importance of the matter to Vi Lam, I would propose granting leave to appeal but that the appeal should be dismissed. 38    FOSTER AJA: These appeals have troubled me considerably. They are extremely serious offences. I am confident that had I been the sentencing judge, I would have imposed higher sentences. However, of course, that is not the test. 39    Considering all the submissions, written and oral, I am satisfied that the trial judge, in a careful judgment, took into account all the relevant considerations and that the sentences imposed by him, though low, are not so low as to require our intervention. In relation to those appeals, I agree with the orders proposed by the learned presiding judge and the reasons he has given. 40    As to the application for leave to appeal brought by Vi Lam, I agree with the orders proposed by his Honour. 41    SPERLING J: I agree with the orders proposed in both Crown appeals and the applicant's appeal, that is as proposed by his Honour Justice Priestley. I agree with his Honour's reasons. 42    PRIESTLEY JA: The court orders are therefore as outlined at the end of my reasons.

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