R v Mingh Ya Zhu - [2000] VSCA 191

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 97 of 2000

THE QUEEN
	v.
MING YA ZHU

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JUDGES:	WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 October 2000
DATE OF JUDGMENT:	13 October 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 191

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Criminal law – Case stated – Drug trafficking – Whether 264.5 grams of heroin contained in a mixture of heroin and other substances are not less than the applicable commercial quantity where the mixture weighs less than 500 grams – Crimes Act 1958, ss.446(2), 447 - Drugs, Poisons and Controlled Substances Act, 1981, s.70(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O.P. Holdenson, Q.C. and Mr J.D. Ellwood	Valos Black & Associates
For the Respondent	Mr G. Hicks and Ms S. Pullen	P.C. Wood, Solicitor for Public Prosecutions

WINNEKE, P.:

I agree, for the reasons given by Callaway, J.A., that the definition of “commercial quantity” in s.70(1)(c)(i) and (ii) of the Drugs, Poisons and Controlled Substances Act 1981 bears the meaning attributed to it by his Honour; and that the question of law reserved for the consideration of this Court pursuant to s.446(2) of the Crimes Act 1958 should be disposed of in the manner which his Honour proposes.

CALLAWAY, J.A.:

This is a case stated by a County Court judge pursuant to ss.446(2) and 447 of the Crimes Act 1958. It raises a short question of construction concerning paragraph (c) of the definition of "commercial quantity" in s.70(1) of the Drugs, Poisons and Controlled Substances Act 1981. Section 70(1) provides that, in Parts V and VI of the Act, unless inconsistent with the context or subject-matter -

"'commercial quantity', in relation to a drug of dependence -
...
(c)the name of which is specified in column 1 of Part 3 of Schedule Eleven -
(i)if that drug of dependence is contained in or mixed with another substance and the quantity of that mixture of drug of dependence and other substance is not less than the quantity specified in column 2A of that Part of that Schedule opposite to the name of that drug of dependence, means any amount of that drug of dependence; or
(ii)in any other case, means the quantity that is specified in column 2 of that Part of that Schedule opposite to the name of that drug of dependence;".

Diacetylmorphine (heroin) is a drug of dependence the name of which is specified in column 1 of Part 3 of Schedule Eleven. The relevant quantity specified in column 2A is 500 grams. The relevant quantity specified in column 2 is 250 grams. The heading to column 2 reads "Quantity", scil. quantity of drug of dependence; the heading to column 2A reads "Quantity of mixture of substance and drug of dependence".

On 11th January 1999 the accused, Ming Ya Zhu, was arrested by police in St Albans. She was in possession of a wrapped package containing a block of white powder. The block, which weighed 349 grams, consisted of…

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 Mingh Ya Zhu

Details

AGLC: R v Mingh Ya Zhu [2000] VSCA 191
Case: [2000] VSCA 191
Decision Date: 13 October 2000

CaseChat Overview and Summary

The case of R v Mingh Ya Zhu involved the respondent, Mingh Ya Zhu, who was charged with drug trafficking under the Crimes Act 1958. Zhu was found to possess a mixture containing 264.5 grams of heroin, along with other substances, with a total weight of less than 500 grams. The key issue before the court was whether the quantity of heroin in the mixture was sufficient to meet the threshold for a commercial quantity, as required under section 446(2) of the Crimes Act 1958, and whether this quantity could be considered in the context of the mixture rather than in isolation.

The court had to determine whether the heroin, when part of a mixture, could still be classified as meeting the commercial quantity threshold for drug trafficking under the applicable statutes. The relevant sections of the Crimes Act 1958 and the Drugs, Poisons and Controlled Substances Act 1981 were central to this inquiry. Specifically, the court examined whether the heroin, despite being part of a mixture, could still be considered in its pure form for the purpose of meeting the required quantity under section 446(2) of the Crimes Act 1958.

The court concluded that the quantity of heroin, when considered as part of the mixture, did not meet the statutory threshold for a commercial quantity as defined in the Crimes Act 1958. The court reasoned that the heroin needed to be assessed in isolation to determine if it met the prescribed quantity, and in this instance, it did not. Consequently, the charges against Zhu were dismissed due to the insufficient quantity of heroin to meet the legal threshold for drug trafficking.

The court's decision was based on the statutory interpretation of the quantity requirements and the specific context in which the heroin was found. The court held that the presence of other substances in the mixture necessitated the assessment of the heroin in its pure form, which did not meet the requisite amount under the legislation. This reasoning led to the dismissal of the charges against Zhu.

Orders