R v Lui; R v Lau

[2012] NSWDC 161

District Court

New South Wales

Medium Neutral Citation:

R v Lui; R v Lau [2012] NSWDC 161

Hearing dates:

1 March 2012

Decision date:

01 March 2012

Before:

Murrell SC DCJ

Decision:

Mr Lau,

Sentenced to a non-parole period of four years and six months and a balance of term is a period of three years.

Mr Lui

Sentenced to a non-parole period of three years and 11 months and a balance of term of two years and seven months.

Catchwords:

CRIMINAL LAW: Sentence- Conspiracy to import- Commercial quantity of precursor chemical

Legislation Cited:

Crimes Act 1914

Cases Cited:

Hili v The Queen [2010] HCA 45

Category:

Sentence

Parties:

The Crown
Pang-Yan LUI
Yiu Chun LAU

Representation:

Mr Chapel (Crown)
Mr Lucas (Lui & Lau)
Office of the Director of Public Prosecutions NSW
Tully & Chiper Lawyers (Lui & Lau)

File Number(s):

2009/00050921 2009/00055165

sentence

1. Each of the offenders adhered to his plea of guilty to the offence that between 1 December 2008 and 2 June 2009 at Sydney he conspired with four named persons and others to import a commercial quantity of pseudoephedrine, intending or believing that it would be used to manufacture a controlled drug.

1. The quantity of pure pseudoephedrine that was imported was 166.7 kilograms. The commercial quantity for pseudoephedrine is 1.2 kilograms. At the time, 166.7 kilograms of pseudoephedrine had a black market value of $AU 6.668 M. If manufactured into methylamphetamine base, it would have produced 100 kilograms, with a wholesale price of at least $AU 16M.

1. The maximum available penalty is 25 years imprisonment and/or a very large fine.

1. The offenders were arrested on 3 June 2009. Their sentences will date from that date.

1. An extensive statement of facts is contained in Exhibits A and B. The overview of the facts affecting the Australian participants in the conspiracy is that, between December 2008 and June 2009, there was a conspiracy to import precursor chemicals from China to Australia via a shipping container. The substance that was imported was, in fact, the substance N methylephedrine, although the Australian conspirators had intended that the drug would be pseudoephedrine. In any event, the two drugs are closely related. Each can be used to manufacture methamphetamine. The shipping container left China on 18 May and arrived in Sydney on 28 May 2009. It contained 198.4 kilograms, 166.7 kilograms pure of N methylephedrine and four other chemical substances that could be used in relation to the production of methamphetamine. The operation involved a principal in China, referred to as Michael or Mr Hsu, and a principal in Australia, B. In Australia, B was closely assisted by A, whom I sentenced in September 2011.

1. A summary of facts that relate to co-offender A is set out in my sentence of A dated 7 September 2011. In sentencing A, I described his role as having extended from 2008 to 2009; that is to say, over a six to seven month period. It was a multi-faceted role. He was not a principal. He was a mid level operative with considerable responsibility; a facilitator and a necessary intermediary between the Chinese and Australian principals. His activities included organising meetings between co-conspirators, hosting Chinese conspirators when they were in Sydney and travelling overseas to Indonesia and Australia to meet co-conspirators and make arrangements for the importation of the substances. He was aware of the details of the operation and was instrumental in effecting the operation in Sydney. He was a person with no prior criminal convictions, whom I considered to be psychologically vulnerable at the time that he became involved in the venture. He anticipated a significant, although unspecified, financial reward from his involvement. The starting point for his sentence was 14 years imprisonment.

1. The first offender whom I am to sentence today is Mr Lau. He is a Chinese national who resided in Hong Kong. He has been described as a close associate of Michael, or Mr Hsu, the Chinese principal, who did not leave China. The evidence established that Mr Lau was involved at three principle stages. First, between 2 and 10 March 2009, he accompanied Mr Hsu to Australia, where there were meetings between Mr Hsu and Mr Lau on the one hand, and A, B and C (a third Australian co-conspirator who had qualifications that enabled him to assist in relation to the manufacture of illegal drugs). Mr Lau attended some but not all the meetings that Mr Hsu attended during the period 2 to 10 March 2009. The second aspect of Mr Lau's involvement occurred on 2 May 2009, when A travelled to China to meet Mr Hsu. Mr Lau collected A from the airport in Hong Kong and conveyed him to the meeting with Mr Hsu in China. Mr Lau attended the meeting, where the proposed shipment of the pseudoephedrine was discussed. He then conveyed A back to Hong Kong so that A could return to Australia.

1. The third aspect of his involvement occurred on 27 May 2009, when he travelled to Australia for the purpose of assisting in relation to the arrival and unloading of the container, which arrived in Australia on 28 May 2009. Upon Mr Lau's arrival in Australia on 27 May, he called Mr Lui and asked him to organise a meeting with A. The three men met that evening. Mr Lau arrived in Australia at a critical time. He brought important information with him. First, he supplied A with a diagram of the layout of the container, which contained other materials as well as illegal substances. He also brought with him knowledge and details of the sealing system affecting the container. In relation to the primary seal on the container, an identical seal accompanied the container. At one stage, there was discussion about the possibility of "stealing" or "pinching" the relevant contents of the container, utilising the identical seal that accompanied the container. It was intended that Mr Lau would remain in Australia and would be involved in the unloading and delivery of the illegal substances to the Australian co-conspirators. Mr Lau had very poor English, although he did attend a meeting with A, B and C in March 2009 where there was no interpreter. When Mr Lui was available, Mr Lau often utilised Mr Lui, to assist him to be understood to English speakers.

1. In relation to Mr Lau's role, there is evidence that he was involved over the three month period from early March to late May/ early June 2009. He was a right hand man or close assistant to the Chinese principal, Mr Hsu. Given the evidence of his relative poverty and, in any event, as a matter of commonsense, I infer that he would have received some financial benefit from his involvement. The extent of the intended benefit is unknown. He was the repository of important information, but there is no evidence that he was a planner or organiser of any of the activities with which he was involved.

1. The materials describe Mr Lui as a "close associate" of Mr Hsu, but there is no hard evidence indicating what is meant by that expression. There is evidence of his involvement during the period from 22 April 2009 to 3 June 2009. He flew to Australia on 22 April 2009 for the purpose of delivering chemical samples to A, who then conveyed them to B. From there, they were given to C for testing purposes. It was important to the Australian conspirators that they have some assurance as to the nature and quality of the material that was to be imported, and for that reason Mr Lui was entrusted with the samples. He was asked to stay on in Australia to assist in relation to the arrival of the container. A helped Mr Lui to find suitable accommodation. From the middle of May, Mr Lui was involved in that he received advice about the fact that the container had been shipped and about the anticipated arrival of the container. The facts indicate that he was aware that the contents of the container were to be used for drug manufacture. However, there is no evidence that Mr Lui was aware of any details of the contents of the container such as the amount or, the precise substance. The details of the shipping were known by Mr Lau and contained on his mobile telephone. Mr Lui was of assistance to Mr Lau because he is reasonably proficient in the English language. Both Mr Lau and Mr Lui were trusted to undertake important tasks, unsupervised.

1. Once the container arrived in Australia, there was considerable delay in the Australian conspirators gaining access to the material and there were numerous discussions between A and B on the one hand, and Mr Lau and Mr Lui and other Chinese conspirators, on the other hand. In the course of those discussions, the possibility that the contents of the container would be "stolen" was discussed.

1. Ultimately, Mr Lau and Mr Lui became aware that there were difficulties with the operation. On 3 June 2009, at 6.55 am, Mr Lau was arrested at Sydney Airport as he was about to board a flight for Hong Kong. At that stage, Mr Lui was still residing at the rented premises that A had assisted him to obtain.

1. The history in relation to the entry of a plea of guilty by each of the offenders is contained in the Crown submissions in at paragraph 25. The Crown suggests that a discount for plea in the range of 20 to 25% would be appropriate. The defence submits that it should be at the upper end of that range, close to 25%. In my view, that is appropriate, given the matters set out in paragraph 25 of the summary of facts.

1. The court has limited evidence in relation to the subjective circumstances of the offenders. In relation to Mr Lau, he is 31 years of age. He is a Chinese national who was residing with his parents and sister in Hong Kong prior to his involvement with this matter. His parents are in poor health. The family was not well off. He accepted responsibility for providing financially for his parents and grandparents. Mr Lau wanted to raise the funds to pay for expensive medical treatment required by his grandmother. He made sacrifices to find that money. He was employed in Macau, driving clients to and from casinos.

1. Mr Lau's English was very poor, but he has been studying English in custody as well as undertaking other courses. He is enthusiastically making use of his time in custody to study and improve himself. Mr Lau wants to become a useful member of society. He is concerned to resume the role of assisting his family in Hong Kong. He is described by a psychologist as a polite, timid and humble man.

1. Mr Lui is 54 years of age. He, too, came from humble origins. He was a resident of Hong Kong. Both his parents are deceased, his father having died in 1995. Sadly, his mother died two months after his arrest. Mr Lui's siblings reside in the United States, as does his former wife and the couple's two daughters. He last saw his daughters in 2006, but he maintains regular telephone contact with them. In Hong Kong, Mr Lui had worked in restaurants, but he lost that employment and was struggling to survive, with few prospects of regaining employment due to his age. He was receiving some support from his relatives in the United States. He too, has taken a positive approach to his imprisonment and made the most of it. He has obtained a trusted position as a sweeper. He has been diagnosed as suffering from Lupus, an autoimmune disease, and Hepatitis B. He is receiving treatment for those conditions through Justice Health. He is described by the psychologist as a polite, timid and well-spoken man.

1. Both Mr Lau and Mr Lui have expressed sincere remorse for their conduct and have indicated that, in future, they propose to live law abiding lives and make a contribution to the communities in which they reside.

1. In sentencing the offenders, the Court is required to consider the maximum penalty of 25 years imprisonment and/or a substantial fine. That is a critical parameter in relation to sentencing. The Court also has regard to considerations of parity with A. As to the Australian principal, B and C, the person whom it is alleged was to be involved in the manufacture of the illegal drugs within Australia because of his scientific knowledge and background, those persons have entered pleas of not guilty and the proceedings have not been finalised. There is no dispute that the role of each of the offenders whom I am sentencing today was significantly less than that of A, while being in no way a minor role.

1. The Court must consider the sentencing matters referred to in s16A(2) of the Crimes Act 1914, as well as the very important consideration of general deterrence. It is trite to say that, in relation to the importation of substances for use in the manufacture of illicit drugs, considerations of general deterrence are paramount.

1. As to the relevant considerations in s16A(2), I accept the Crown submissions that the matters referred to in parts (a), (g), (k) and (m) are relevant in this case. It is very important for the Court to consider the nature of the offence and the circumstance in which it was committed by each of the offenders. I have referred to the nature of the roles adopted by each of the offenders and the activities that they undertook. It is difficult to characterise the nature of the roles, and it may be more important to look at the activities that they actually undertook. Each was trusted. In the case of Mr Lau, he was trusted with important information that he brought to Australia at a critical time, concerning the details of the container. In the case of Mr Lui, he was trusted with transporting chemical samples to Australia that were, in effect, capable of sealing the deal between the Chinese and Australian conspirators. Mr Lau's role occupied a long period of time and involved more activities than did Mr Lui's role. The flavour of the evidence in relation to Mr Lau is that he was at a slightly more senior level than Mr Lui, but there is not a great deal in it.

1. In considering the offences, the amount of the drug involved is relevant. In this case, it was 166.7 kilograms as compared to the commercial amount of 1.2 kilograms. In relation to financial gain, in each case there is an inescapable inference that the offender was to gain something financially from his involvement, although the extent of the anticipated financial gain is unclear.

1. The pleas of guilty were entered early (considering the sequence of events that preceded the entry of the pleas), and the pleas indicate a willingness to facilitate the course of justice.

1. The Court is aware of the need for adequate punishment to be imposed. There is no dispute that a significant sentence of full-time imprisonment is the only appropriate sentence in the circumstances.

1. I have referred to the character, antecedents and background of each of the offenders. Neither has any prior criminal convictions. They are matters to be taken into account on sentence.

1. In addition, in relation to Mr Lui, as a subjective circumstance I take into account his medical conditions of Lupus and Hepatitis B. It is unclear that those conditions will make his period of imprisonment more difficult, but they are conditions that affect him.

1. Mr Lau will have some difficulty in custody because he is not proficient in English, but to his credit he is making endeavours in that regard and gaining some ability to speak and some English literacy.

1. In relation to setting a non-parole period, historically courts have fixed a non-parole period that was 60 or 66/67 % of the head sentence for Commonwealth matters. The decision in Hili v The Queen [2010] HCA 45 makes it plain that the Court need not impose a non-parole period within that range. It is a case of determining what is appropriate in the circumstances of the case.

1. Mr Lau, I have decided that the starting point for sentencing you is something in the vicinity of ten years imprisonment. I have deducted close to 25 percent for the guilty plea. I agree with the submission that an appropriate non-parole period is 60 percent of the head sentence. You are sentenced to a non-parole period of four years and six months from 30 June 2009 to 2 December 2013. The balance of term is a period of three years. The sentence expires on 2 December 2016.

1. Mr Lui, the starting point for sentencing you is a little less than that for Mr Lau. Taking into account your plea of guilty, an appropriate term of imprisonment is six and a half years, and a 60% non-parole period is appropriate. You are sentenced to a non-parole period of three years and 11 months from 3 June 2009 to 2 May 2013, and a balance of term of two years and seven months, which means that your sentence will expire on 2 December 2015.

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Decision last updated: 02 October 2012