R v Phong - [2005] VSCA 149

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 280 of 2001

THE QUEEN
	v.
KEN HA KHANH PHONG

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JUDGES:	WINNEKE, A.C.J., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 December 2004
DATE OF JUDGMENT:	10 June 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 149

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EXTRADITION – Extradition to and from Commonwealth countries – What persons may be surrendered for what offences – Extradition from Hong Kong – Proof of conduct – Principle of speciality – Extradition granted for offence of being knowingly concerned in importation of prohibited imports – Applicant presented and convicted on count of importation of prohibited imports – Appeal allowed –Applicant presented again and convicted on count of being knowingly involved in importation of prohibited imports – Whether breach of principle of speciality – Abuse of process – Double jeopardy – Meaning of “conduct” constituting any such offence – Extradition Act 1988 (Cth) ss.10, 42 – Customs Act 1901 (Cth) s.233B(1)(b)(d) – Crimes Act 1958 (No. 6231) s.568(2) – Truong v. The Queen (2004) 78 A.L.J.R. 473, 205 A.L.R. 72.

CRIMINAL LAW – Being knowingly concerned in importation of prohibited import – Directions as to use of circumstantial evidence – Intercepted telephone conversations – Voice identification – Adequacy of judge’s warning and directions – Verdict of guilty not unsafe.

CRIMINAL LAW – Sentence – Importation of 2.996 kg. of pure heroin – Sentence of 15½ years with non-parole period of 11½ years not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr O.P. Holdenson, Q.C. with Mr J.P. Ayres	Director of Public Prosecutions (Cth)
For the Applicant	Mr C.B. Boyce	Theo Magazis & Associates

WINNEKE, A.C.J.:

I have had the advantage of reading, in draft form, the reasons given by Charles, J.A. for refusing the applications for leave to appeal against conviction and sentence. For the reasons which his Honour gives, I agree that the applications for leave to appeal against conviction and sentence should be refused.

CHARLES, J.A.:

On 1 October 2001 the applicant pleaded not guilty to one count of being knowingly concerned in the importation into Australia of prohibited imports consisting of a commercial quantity of heroin contrary to s.233B(1)(d) of the Customs Act (Cth) 1901. The maximum penalty for this offence was life imprisonment. After a trial of some twenty days duration, in which the applicant did not call any evidence, on 2 November 2001 the jury returned a verdict of guilty. After a plea in mitigation the judge on 16 November 2001 convicted the applicant and sentenced him to fifteen years’ and three months’ imprisonment. A non-parole period of eleven years and three months was set. The applicant now seeks leave to appeal against both conviction and sentence on grounds to which I shall turn shortly. I shall deal first with the application touching conviction.

The prosecution case

In the first week of December 1995 a package containing 2.996 kg. of pure heroin arrived in Australia, having been sent from Bangkok to an address in Springvale. On…

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 Phong

Details

AGLC: R v Phong [2005] VSCA 149
Case: [2005] VSCA 149
Decision Date: 10 June 2005

CaseChat Overview and Summary

The case of R v Phong involves an extradition matter from Hong Kong to Australia, focusing on the applicant's involvement in the importation of prohibited substances. The court was tasked with determining whether the applicant could be lawfully extradited for the offence of being knowingly concerned in the importation of prohibited imports. The legal issues encompassed the interpretation of the Extradition Act 1988, the principle of speciality, and the adequacy of the evidence presented during the trial.

The court examined whether the principle of speciality had been breached when the applicant was subsequently convicted in Australia for the same conduct that led to his extradition. The principle of speciality stipulates that an individual extradited should not be prosecuted for any offence other than the one for which they were extradited. Additionally, the court considered whether the applicant's retrial in Australia constituted an abuse of process or a violation of double jeopardy principles. The court found that the conduct constituting the offence of being knowingly involved in the importation of prohibited imports was sufficiently proven based on intercepted telephone conversations and voice identification.

The reasoning of the court was that the evidence, including intercepted telephone conversations and voice identification, was sufficient to establish the applicant's involvement in the importation of prohibited substances. The court also concluded that the applicant's sentence of 15½ years imprisonment with a non-parole period of 11½ years was not manifestly excessive given the severity of the offence. Ultimately, the appeal was dismissed, and the conviction and sentence were upheld.

Orders