R v Ng - [2001] NSWCCA 305

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Ng [2001] NSWCCA 305

FILE NUMBER(S):
60826/99

HEARING DATE(S): 12 July 2001

JUDGMENT DATE: 12/07/2001

PARTIES:
Regina v Kwok Hung Ng

JUDGMENT OF: Hodgson JA Mathews AJA Studdert J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/11/0691

LOWER COURT JUDICIAL OFFICER: Kinchington DCJ

COUNSEL:
David Staehli (Crown)
In Person (Appellant)

SOLICITORS:
Commonwealth DPP (Crown)
In Person (Appellant)

CATCHWORDS:

LEGISLATION CITED:
Customs Act 1901 (Cth), s233B

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60826/99

HODGSON JA
MATHEWS AJA
STUDDERT J
THURSDAY 12 JULY 2001

REGINA v KWOK HUNG NG
JUDGMENT

HODGSON JA: I will ask Mathews AJA to give the first judgment.
MATHEWS AJA: This is an application for leave to appeal against the severity of a sentence imposed in the District Court following the applicant's plea of guilty to a charge under s 233B(1)(c) of the Customs Act 1901 (Cth), that he was knowingly concerned in the importation into Australia of prohibited imports, to wit narcotic goods consisting of a quantity of heroin being not less than the commercial quantity applicable to heroin.
The commercial quantity applicable to heroin is 1.5 kilograms. The weight of the total substance involved in the importation in this case was 93.567 kilograms, with a net weight of slightly over 69 kilograms of pure heroin. The street value was estimated at between $80 million and $95 million. At the time of sentence it was the fourth largest known importation of heroin into Australia.
The maximum sentence for this offence is life imprisonment. On 17 December 1999 the applicant was sentenced to life imprisonment with a non-parole period of eighteen-and-a-half years to date from 17 July 1998, when he first went into custody.
The heroin in question was concealed within three commercial baking ovens which arrived with a number of other ovens into Australia on 7 July 1998 by ship from China. The drugs were detected by Customs officers as a result of two associates of the applicant going to the Federal Police and expressing their concern as to the legitimacy of the applicant's operations. These associates, Mr Chung and Ms Nguyen, had been recruited, according to the Crown, earlier that year, 1998, to assist the applicant in receiving and distributing the ovens upon the basis that this was to be a legitimate business enterprise. The applicant said in court today that he did not recruit Ms Nguyen, but rather she asked to work with him on this enterprise. In my view, that does not affect the situation in any significant way.
On 17 July 1998 the crates containing at least some of the heroin were delivered to an address in Wentworthville, being a house which Ms Nguyen had earlier rented at the applicant's request with money provided by him. The evidence shows that the applicant was extremely nervous of the possibility of police surveillance and adopted various devices to detect whether he was being followed. That evening he realised that he was in fact under surveillance and he tried to flee. However, he was apprehended by the police. Subsequent searches showed drivers' licences and other forms of identification in two other names, all bearing the applicant's photograph.
The evidence showed that the applicant arrived in Australia in November 1997. In February 1998 Mr Chung and Ms Nguyen started to work with him. It can thus be inferred that he had been involved in planning the importation for a considerable period.
The applicant was born in June 1967 and was thirty-two years old at the time of his sentence. He had two prior convictions, one in Hong Kong for theft and one in Holland for importing heroin. In relation to the latter, he was sentenced to eighteen months imprisonment, so one must infer it was a much lesser offence than this one.
He was born and raised in Hong Kong, where his parents still live, but has spent much of his adult life in Thailand, where his wife and three children still live.
In passing sentence on the applicant, Judge Kinchington made the following observation:
"Both from a specific and general deterrence point of view those involved in the importation of illicit drugs must be severely dealt with whatever role or roles they play therein. In the present case, I am satisfied that the offender was not a small cog in the organisation or syndicate behind this criminal enterprise. To my mind he was, as the Crown has contended, a high level operative who played a central role in the importation and I am satisfied that he was part of a well-organised and sophisticated heroin importation syndicate and it is clear from the evidence here that his role was central to its success or failure. In all the circumstances of the case I am also satisfied beyond a reasonable doubt that his place in the hierarchy of those involved in the operation was very much at the upper end of the scale and that his participation therein was for financial gain and I also agree with the Crown's contention that his objective criminality is of the highest order and falls within the worst case category so far as this type of offence is concerned."
His Honour then sentenced the applicant, as indicated, to life imprisonment with a non-parole period of eighteen and a half years, the latter to take into account the family considerations which had been put before him.
On 15 June 2001 the applicant, who is unrepresented, wrote to the Court saying that he was proposing to proceed with the appeal himself. His letter, as relevant here, said:
"I have three children, aged, 4, 7, 12 and they are currently under their mother's care in Thailand. The lengthy sentence imposed has no doubt placed enormous stress on the family and I would like to be able to secure an earlier release in an attempt to re-build the relationship and catch up lost time.
More so, my parents are now in their late sixties, and whilst my actions have brought great shame to the family, I would like to seek your consideration to reduce the sentence to enable me to offer some care comfort in their final years.
I realised that the crime committed warrants a penalty and deserved imprisonment. I fully regretted choosing this path and will serve out the sentence, as it seemed fit. Within the three years already in custody, I have maintained a good behaviour and will continue to do so.
It would be most appreciated if you would give this matter your consideration and exercise your discretion and allow a reduction of the sentence imposed on compassionate grounds."
In court today the applicant repeated his concern for members of his family. He referred to his plea of guilty and asked for a lighter sentence.
Later, having had the Crown submissions interpreted to him, he described to us the circumstances surrounding the entry of his plea of guilty. He also adverted to the facts of the matter and said that he played a relatively minor, passive role in the importation.
As is apparent from the passage I have read from his Honour's judgment on sentence, this is a matter which was raised during the sentencing process. His Honour's finding was that the applicant occupied a high position and an integral role in the importation. That finding was available to him on the evidence before him. The applicant's submissions on that matter do not, in my view, reveal any error in the sentencing process.
The Crown presented written submissions in which the following observations were made:
"The importation was a massive one. The applicant played an instrumental role in it. He was, as the sentencing judge found, very much at the upper end of the scale of the hierarchy of those involved. He had a previous conviction in Holland for a similar offence, although presumably for a much lesser quantity. The maximum penalty was appropriate. The non-parole period was set taking into account the lack of contact the applicant would have with his family. It is noted he was prepared to absent himself from his family for many months in organising and committing the offence. The applicant seeks compassion or mercy from this Court. It is submitted there is nothing in the circumstances which would justify the intervention of the Court on that basis or any other."
I must concur with the Crown submissions on this matter. No error of principle has been shown in the sentencing process. Nor, to my mind, can it be said, bearing in mind the extreme seriousness of this importation and the applicant's role in it, that the sentence was manifestly excessive.
Accordingly, I would allow the application but dismiss the appeal.
HODGSON JA: I agree.
STUDDERT J: I also agree.
HODGSON JA: The order of the Court is, the application for leave to appeal is granted but the appeal is dismissed.
**********

LAST UPDATED: 21/08/2001