R v Truong Hong Phuc
[2000] VSC 296
•16 June 2000
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1449 of 1999
| THE QUEEN |
| v. |
| TRUONG HONG PHUC |
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JUDGE: | VINCENT, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF SENTENCE: | 16 JUNE 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 296 | |
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CATCHWORDS: Kidnapping – Murder – Importation of drugs – International drug dealing.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. G. Hicks Mr. A. Moore Ms. K. Judd | Office of Public Prosecutions |
| For the Accused | Mr. P. Morrissey | Clarebrough Pica |
HIS HONOUR:
Truong Hong Phuc, you have been found guilty by the jury empanelled upon your trial of the abduction, on 29 April of 1996 at Glen Waverley in the State of Victoria, of a young man, named Le Anh Tuan, and of his subsequent murder.
It is now my responsibility to impose sentence upon you.
In that context, it is to be noted that you have admitted a number of prior convictions. They, relevantly for present purposes, include convictions for wounding and common assault before the North Kowloon Magistrates' Court in Hong Kong, on 9 July 1980.
More significantly, you were convicted before the Hong Kong High Court, on 5 January 1984, of manslaughter and you were then sentenced to serve six years imprisonment. The precise circumstances surrounding these various offences are not clear and I have considerable reservations about the descriptions that you advanced through your counsel concerning them. I think that all that can be said with confidence is that, consistent with your later behaviour, they are indicative of a preparedness to employ criminal violence to attain your ends.
There is no need to set out in elaborate detail the factual matrix that emerged in the course of your trial and on the basis of which the jury returned their verdicts. A broad outline only is necessary at this stage. Consequent upon an introduction arranged by your sister Truong Thi Van, you met a Vietnamese woman named Ha Thi Que Mai in a room at the Regent Hotel in Melbourne on 16 March 1996. Two very different versions have been given as to what took place. Ha Thi Que Mai asserted in evidence that you, being aware that she operated a Russian based import/export business, decided that she could be of use to you in drug importing activity in which you were then engaged. Under an arrangement in which you believed you could induce or force her to participate, consignments of clothing would be imported through her company into Australia in which quantities of heroin would be concealed. She has claimed that she indicated to you that she was interested in legitimate business opportunities and was prepared to become involved in the trade in clothing, but that she rejected the notion of any engagement in any unlawful conduct. She has also asserted that when, two or three days later and at a further meeting at the same location she repeated her rejection of the proposal, you substituted a demand for the payment of the sum of $400,000 as both a form of compensation and a demonstration of your power.
By contrast, it was contended in the trial, through evidence and argument presented on your behalf, that her version was untrue and that at the first meeting you handed that amount of money to her for transfer out of Australia. It was claimed that you were engaged in the movement of money on behalf of a Hong Kong based syndicate and there is evidence which suggests that this was very likely to have been the case. At around that time, you secured the assistance of a number of Vietnamese people living in the Sydney area to arrange bank transfers of large sums of money totalling more than $200,000 to specified Hong Kong bank accounts. Bundles of notes, usually carried in plastic bags but on one occasion in a suitcase, would be delivered to the transferor for this purpose. Neither the origin of this money, nor that allegedly given to Ha Thi Que Mai has been disclosed, although it would not require any great leap of imagination to suspect that you were, as she claimed, engaged in international drug dealing. Substance has been given to your version of the meetings by the evidence of payment into the bank accounts of Ha Thi Que Mai, her then de facto husband (a man named Ilgar Khassanianov), the deceased and his girlfriend, of large sums of money totalling many thousands of dollars. The origin of these deposits was the subject of considerable attention in the trial and no adequate explanation concerning them was ever provided. Specifically, Ha Thi Que Mai demonstrated a high degree of unreliability on this aspect.
Accordingly, I am prepared to accept, for present purposes, that you may well have handed money to her for transfer which she then misappropriated. I think that it is highly probable that shrewd and worldly wise as she undoubtedly is, Ha Thi Que Mai did not fully appreciate the true character of the person with whom she had become involved and tragically underestimated your power, international connections and your personal potential for violence. I also accept that, as you claimed, you may well have been accountable to others in what was euphemistically called "your company" for this money.
In any event, whether or not you gave money to her and whether or not you were simply an extortionist or actively engaged in drug dealing, or a money transferor for some hidden international syndicate, are ultimately not of great significance for present purposes as it is evident that repeated demands for the payment of $400,000 were made in the following weeks until eventually an anonymous caller chillingly suggested to Ha Thi Que Mai that her failure to comply could result in her death.
Precisely when the plan to kidnap the deceased was formulated has not emerged, but it is clear that as the month of April passed preparations for action of some kind were undertaken. Two Vietnamese men then living in the United States were contacted and brought to Australia. It appears reasonably clear that an Australian resident, named Le Thanh Long, was also recruited. There is evidence connecting these individuals with the kidnapping of the deceased and with the motor car used in it. That vehicle, it is to be noted, was purchased by your sister some days before the kidnapping took place.
Finally, on the morning of 29 April 1996 Le Anh Tuan was present at a house that he had just purchased waiting for an electrician who was to connect some power and light fittings. After some time Le Anh Tuan decided to return to his home at Regal Court, Glen Waverley in order to obtain the telephone number of this tradesman who had not arrived at the appointed time and to ascertain what had happened. Again, it is not possible to state precisely what occurred on his arrival at that location but it appears very likely that he there encountered his kidnappers. He was observed by witnesses trying to escape from two men who chased him along the street outside, whilst another waited in a car. One of the witnesses indicated that the young man was crying and pleading. He was seized and forced into the boot of the vehicle which then left the scene.
Le Anh Tuan was not seen again until 4 June when his body was observed by two school boys floating in a drain in Springvale. He had been shot in the head.
However, the kidnapping had been observed by the witnesses to whom I have earlier referred and the police were contacted almost immediately after it had taken place. I consider that it would be reasonable to infer that you were of the view that for more than one reason Ha Thi Que Mai would not dare approach them.
Following the kidnapping of the deceased the demands for money, which to that time had proved unsuccessful, were converted into a demand for ransom. It was made clear to his mother in conversations with you, and which were intercepted by the police, that his life and her happiness were dependent upon full compliance.
In due course, on 4 May 1996 and under their direction, a payment of ransom money was arranged to take place at an interstate bus terminal in Spencer Street, Melbourne. However, the presence of the police members was detected, or at least they believed that that had occurred, and the collectors of the money who were referred to as "black pawns" were arrested. No further contact was thereafter made with Ha Thi Que Mai and nothing further was heard of the deceased until his body was located.
Central to the prosecution case against you was the contention that you were, to use terms employed by Mr Hicks, who appeared as senior prosecutor, "the controlling mind", "the shadow force" and "the shadow master" who directed all that took place in relation to the kidnapping. It was never argued that you may have been implicated in some less important way or that you may have performed some other role. The jury was instructed and must, accordingly, be taken to have found you guilty on that very clearly identified basis.
With respect to the count of murder, when and where Le Anh Tuan was executed by a bullet being fired into the back of his head is unknown and it is highly unlikely that we will ever learn who fired this single fatal shot. What we do know is that he was kidnapped with the threat being made explicitly and implicitly that if the ransom was not paid as demanded his life would be forfeited. It was, of course, integral to the viability of your plan that you at least induced the mother of the kidnap victim to believe that he would be killed if payment was not made and almost inconceivable that you did not contemplate at the outset that it could occur. The jury has found beyond reasonable doubt that you directed that kidnapping and that you well appreciated that a reasonable possible consequence of your actions was the death of the deceased.
The crime of kidnapping for ransom is fortunately not common in our community. At minimum it involves the physical seizure and detention of the person abducted and the conscious creation of a terrible fear in the minds of those from whom ransom is demanded. Conduct of this kind cannot be accepted whatever the circumstances. Those who engage in such activity must anticipate that if convicted they will be subjected to substantial terms of imprisonment.
The courts, as far as they are able to do so through the imposition of appropriate sentences, must endeavour to protect the community by expressing our society's condemnation of such behaviour and deterring those who may contemplate engaging in it. It is hardly necessary to state that the crime of murder, which you also committed, is of its nature, always regarded as a matter of the utmost seriousness in our society, which attributes profound importance to the human life and uniqueness of any who come within its protective shield. Your conduct constitutes a very serious example of that grave crime.
The life of Le Anh Tuan was almost certainly of little consequence to you, but it is to the other members of this society and to the members of his family who will have to live permanently with the fact of his loss.
With respect to your own personal circumstances and background which must also be taken into account, there is not much that can be stated with confidence. However, I accept that as a member of a Chinese minority in North Vietnam during years of conflict your early life would have been very difficult. I consider that it is quite possible that as you claimed you were subjected to war, persecution and discrimination before you made your way to Hong Kong where you were interned for a number of years in a refugee camp. I think that it would be appropriate to indicate that I have some limited knowledge concerning those camps and have no difficulty in accepting that life for those compelled to reside in them would have been harsh and brutalizing. However, the extent to which that background provides an explanation for your conduct is, for practical purposes, impossible to assess as unfortunately your experiences have been shared by literally thousands of people from Vietnam and other parts of the world who have settled in Australia and who have made not only new lives for themselves and their families, but continue to contribute in many ways to its development.
You appear to have chosen a different path. Although you settled in England with your wife and children and some other members of your family and were ostensibly employed in a menial capacity, you travelled across the world using false travel documents and were obviously involved in criminal activity. You had the contacts and capacity to recruit assistance in Hong Kong, the United States and this country and there is ample evidence that you handled large sums of money which, as a matter of inference, I am satisfied represented the proceeds of crime.
I wish to make it crystal clear that you are not being sentenced for those activities or for the underlying criminality which they represent. However, they do provide a context within which your level of personal culpability for the crimes which have brought you before this court can be assessed.
It is evident that your degree of personal responsibility is very high indeed. There has been nothing advanced on your behalf which suggests in any way the presence of any sense of remorse and I am accordingly unable to take that consideration into account in your favour. Nor have I been able to perceive anything which could instil a measure of confidence concerning the prospects of your eventual rehabilitation.
Nevertheless, you are now only around 40 years of age and the possibility of your rehabilitation is a sentencing consideration that must be taken into account on your behalf and in your favour.
In the course of the plea advanced on your behalf your counsel, Mr Morrissey, submitted that regard should be had to the additional impact of a period of imprisonment in this country which will be created by the extended isolation from your wife and children as well as some other members of your family who reside in England that you are likely to suffer. Whilst I accept that you are likely to experience an increased sense of isolation and, indeed, some distress in this situation which must be taken into account, this aspect can possess only limited significance in circumstances where your predicament arises directly from your engagement in an international criminal enterprise that has taken you far from your home and your only association with this country, apart from the fact that you have a sister living in Victoria, appears to be based upon a desire to engage in criminal activity here.
I have given consideration to the range of sentences that have been imposed in the courts for the crimes of kidnapping and murder over the years but have used them only as a general guide bearing in mind that each case and offender must be considered separately. Ultimately I have arrived at the view that the appropriate sentences in your case are: On the count of kidnapping, imprisonment for a period of 15 years. On the count of the murder of Le Anh Tuan, imprisonment for life. I consider that the proper exercise of discretion would ordinarily result in the fixing of a non-parole period of 25 years with the period of pre-sentence detention already undergone reckoned as having been served. However, you were detained in custody in England for approximately 16 months awaiting extradition which would not be recognized if the usual approach were to be adopted. Accordingly, I have decided, in order to avoid the injustice which would then occur, to reduce the non-parole period to one of 23 years and 8 months. I declare that the period of 547 days during which you have been detained following extradition is to be reckoned as having been served under this sentence and I direct that this declaration and its details be entered in the records of the court.
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