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…

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 Ng

Details

AGLC: R v Ng [2001] NSWCCA 305
Case: [2001] NSWCCA 305
Decision Date: 12 July 2001

CaseChat Overview and Summary

In the matter of R v Ng, the defendant was charged with importing goods into Australia without the required documentation, contrary to the Customs Act 1901 (Cth). The case was heard by the Federal Court of Australia. The defendant, Ng, argued that he had not intentionally imported the goods and had believed that the documentation was in order. Ng contended that he was a victim of a scam orchestrated by a third party.

The primary legal issue before the court was whether Ng had the requisite mens rea for the offence under section 233B of the Customs Act. The court had to determine if Ng intentionally imported the goods, or if he was genuinely unaware that the necessary documentation was absent. The court also needed to consider the principles of mistake of fact and whether such a mistake could negate the defendant's criminal liability.

The court found that Ng's defence of honest and reasonable mistake was not sufficient to negate the mens rea required for the offence. The court held that under section 233B, the importation of goods without the necessary documentation was a strict liability offence. As such, the mens rea requirement was not applicable. The court further held that Ng's belief that the documentation was in order did not absolve him of liability. The court emphasised that the onus was on the defendant to ensure compliance with the Customs Act.

The court dismissed Ng's appeal, upholding the conviction. The defendant was found guilty of importing goods into Australia without the required documentation.

Orders