R v Wong

[2009] NSWDC 376

CITATION:	R v WONG [2009] NSWDC 376
HEARING DATE(S):	17/12/2009, 18/12/2009
JUDGMENT DATE:	18 December 2009
JUDGMENT OF:	Williams DCJ
DECISION:	The orders I make are that he is convicted. He is sentenced to six years’ imprisonment with a non-parole period of four years to date from 21 December 2008 which means he is eligible for release on parole on 20 December 2012.
CATCHWORDS:	SENTENCE-import commercial quantity of prohibited drug-642grams MDMA-Middleaged Canadian citizen-no particular background difficulties-questionable reasons for behaviour.
CASES CITED:	Tyler [2002] NSWCCA 272 R v Nguyen [2006] NSWCCA 369
PARTIES:	Regina Gus Chi Yung WONG
FILE NUMBER(S):	2009/11999
SOLICITORS:	Ms S Anderson (The Crown) Ms S Radiq (The Offender)

JUDGMENT

1. HIS HONOUR: Mr Wong is a forty-year-old Canadian financial consultant who has pleaded guilty to importing a commercial quantity of a border controlled drug, namely MDMA, being an amount of 642 grams in a bulk of 2,498.3 grams consisting of about 9,993 ecstasy tablets. The maximum penalty for this offence is life imprisonment. A commercial quantity of MDMA is an amount in excess of 500 grams.

2. There is an agreed statement of facts and, as well, Mr Wong has also given evidence. The important objective facts from the agreed statement of facts are that Mr Wong arrived at Sydney Kingsford Smith Airport on 20 December 2008 by Air Canada. He listed on his incoming passenger card that his intended address in Australia was Rydges World Square, 389 Pitt Street, Sydney 2000, New South Wales and that his intended length of stay in Australia would be fourteen days. His airline ticketing showed a booked and prepaid Air Canada flight corresponding with that length of stay.

3. A Customs drug sniffer dog reacted to Mr Wong’s person resulting in him being subjected to a full luggage and person search by Customs officers. During the course of that search the following conversations took place.

Customs officers said, “Is this all your baggage?” He said, “Yes.” Customs officer said, “Can I please have your itinerary and baggage tags.” He said, “My itinerary is in my computer and I’m not sure where my baggage tags are.” Customs officers said, “Have you collected all of your baggage today, Mr Wong?” He said, “Yes.” “What is the purpose of you travelling to Australia?” He said, “I’m here to visit my girlfriend who I haven't seen in six months.” “Why did you leave it so late to book your holiday?” He said, “I work as a financial adviser and getting time off is not easy. My girlfriend suggested I come to Australia over Christmas.” “Is your girlfriend Australian or Canadian?” He said, “Canadian. She is living with her parents in Melbourne and is applying for a permanent resident status.” “If your girlfriend is in Melbourne, why didn't you fly directly to Melbourne?” He said, “She lives in Melbourne with her parents and she’s coming up to Sydney today.” “Do you have a hotel booking for Sydney?” He said, “Yes, it’s in my computer. I made the booking over the Internet.” How much did your booking cost?” He said, “It cost me $165 Australian per night.” How will you get to Melbourne after finishing your stay in Sydney?” He said, “I’ve been looking at travelling to Melbourne via train in one of the sleepover cabins.”

4. The search located no illegal substances and he was subsequently released by Customs without charge or further investigation. He immediately departed the airport without approaching the special baggage counter.

5. On 21 December 2008 Customs examined an item of unclaimed luggage left at the special baggage section at Sydney Airport. The item was a tightly wrapped and taped clear plastic bag containing two cardboard boxes; each box containing a Duogongnendunguo stainless steel cooking pot. The bag had an Air Canada baggage sticker number AC719452 in the name of Wong. The first pot examined contained a plastic bag with a large number of off-white coloured tablets with a Transformers logo stamped into one face. It was determined that it was MDMA and weighed about 1,228 grams. There were similar items in the second pot. They arrived at Sydney on Air Canada flight AC33 from Vancouver, Canada on 20 December as special baggage due to its unusual shape and apparent fragility. Special baggage is typically collected by a passenger presenting their boarding pass or baggage claim receipt at the special baggage counter and items are generally not returned to any person without the requisite receipt or identification. The item in question had not been collected and no person had made inquiries about its collection.

6. Also on 21 December 2008 Mr Wong was detained by Customs at Sydney Airport whilst attempting to depart Australia on Cathay Pacific flight CX100 to Vancouver via Hong Kong. Located on his person and in his luggage were the following items of interest: a boarding pass for Air Canada flight AC033 in his name. Attached to the rear of the pass was a luggage collection slip with the number AC719453 in the name of Wong which corresponds with his large black suitcase. This slip was consecutively numbered with the slip attached to the seized drug item and bears the same name. A Sony Ericsson mobile telephone for which the screensaver on the mobile telephone depicted the Transformers’ logo, a receipt itinerary from M’s Travel, Canada for Wong’s travel to Australia departing Vancouver on 18 December 2008 and departing Sydney on 31 December 2008, that was paid in full on 16 December 2008 in cash.

7. Police inquiries reveal that on the night of 20 December 2008 Mr Wong did not stay at the Rydges Hotel at World Square, Sydney. Further there was no reservation or booking made by him to stay at this hotel at any recent time. Inquiries with Air Canada reveal that his return ticket to Australia was not refundable and that the return ticket could not have been changed in a short period of time to an alternate travel date. Inquiries with Cathay Pacific revealed a one-way was purchased on 20 December 2008 in Vancouver, Canada for Mr Wong, paid for in cash at a total cost of $2,298.30 Canadian, which is equivalent to about $2,757.96 Australian.

8. The net weight of all the items seized was 2,498.3 grams. It is estimated that wholesale these drugs were worth between $69,000 and $149,000 and their value on the street between $199,000 and $399,000.

9. As I stated, Mr Wong gave evidence. He is a person of prior good character. He was married and his wife still lives in Canada. He claims that he was checking in at Vancouver Airport when a trolley bumped into his foot. He turned around and saw a number of young girls accompanied by an attractive older woman. They spoke for several minutes. She asked him if he would check-in two Chinese cooking pots because their luggage was overweight. How she knew that her baggage was overweight at that point of time, that is before check-in, is difficult to understand.

10. Mr Wong says he checked-in his luggage and then went to the special section to check-in the pots because they were fragile. He says he felt suspicious that it might have been a bomb or something illegal, that is why he checked it through the special section because they have scanners. That does not make a great deal of sense given that all baggage going onto an aircraft is scanned. However Mr Wong says that the woman was so beautiful that, despite his suspicions, he thought he would risk it and try his luck although he knew he would be in deep trouble if he was caught. He says he gave the woman the baggage ticket but did not see her either on the plane, although he looked for her, or getting off at Sydney airport. He said that he looked for the woman on the plane because she was very attractive. I note that no-one made any attempt to collect these items in Sydney. He said not finding the woman either on the plane or again in Sydney at the airport made him very nervous. He rang his wife and she told him to come straight back to Canada and purchased a ticket for him. When attempting to leave Australia, he was asked why he was engaged on such a short trip and agreed that he lied when he said to the inquirer that he just found out that his grandmother was dying. He says that the Transformer logo on his mobile phone is not a Transformer but a Japanese cartoon robot but conceded that it was the same as the emblem on the tablets that were found, another interesting coincidence.

11. Mr Wong is an intelligent, well educated man who is not naive to the ways of the world. I note that his fare to Australia was paid in cash two days before he departed. He explains this by saying that he and his wife had a quarrel and he decided he had to go away for a break, so the trip was unplanned, another coincidence. I also note that his urgent trip back to Canada arranged on a different airline was also paid for in cash in Canada on 20 December 2008, being I think a Saturday. The total airfares paid for him in cash within a period of four days was some $6,248 Canadian. It was somewhat odd that his wife, with whom he had just quarrelled, was prepared to pay cash of $2,298 Canadian for his urgent return trip to Canada from Australia.

12. It is somewhat inconceivable that another offender, a complete stranger, would have entrusted that quantity of drugs to another complete stranger without making any arrangement to collect or attempt to collect the goods at the other end and presumably not having travelled on the same flight as the person who was carrying the goods for them.

13. After coming through Customs, Mr Wong gave evidence of contacting his former girlfriend in Melbourne and the arrangements they made to meet up. The pre-sentence report indicates that parole officer was able to contact his girlfriend in Melbourne and that Mr Wong had travelled to Australia with arrangement then to meet up, yet there is no corroborative evidence of any description from her as to the truth of Mr Wong’s assertions in evidence as to those arrangements, nor is there any evidence of any kind to corroborate what he says about his wife buying him a ticket on 20 December 2008. He claimed he booked a train to Melbourne but then cancelled that ticket and got a refund when he was persuaded by his wife to go back to Canada. There is no evidence to corroborate that transaction.

14. I am not satisfied that Mr Wong has adequately explained his involvement in this offence. I therefore see no reason to treat him other than as someone who chose to import drugs into Australia in the hope of getting away with it and making a profit.

15. The pre-sentence report relevantly states that he was born in China, that he moved with his family to Hong Kong when he was six, where he almost completed his schooling and then he emigrated to Canada when he was seventeen years of age and finished his schooling there. He had a positive childhood with no instances of domestic violence, or alcohol or other drug use in the family home. He commented that he maintains a positive relationship with his parents and sister in Canada. Indeed, they have written letters in support of him to the Court. He married his wife when he was twenty-one years of age. They had difficulties in regard to fertility problems. When he was thirty-three he commenced an extramarital relationship which resulted in his wife leaving him and returning to Hong Kong. That relationship resumed; the pre-sentence report says, three months later but in evidence he said about a year later. But he also apparently continued his extramarital relationship until his girlfriend married someone else and moved to Australia.

16. Contact with Mr Wong’s ex-girlfriend confirmed their relationship and confirmed that Mr Wong had travelled to Australia with arrangements to visit her but she was unaware of the circumstances surrounding his incarceration. She commented that she speaks with the offender once a month and remains supportive of him. Apparently his wife has filed for divorce and is no longer supportive of him.

17. His high school education he completed in Canada. He worked as an electrician for about five to seven years. Then he did qualifications and training in the insurance business and as a financial planner where he worked for some thirteen years before operating his own financial planning business. He said that business has been a successful venture over the years and denies that he has any financial issues.

18. Since being in custody he has not incurred any custodial charges, nor has he been identified as a management issue. He is employed as a supervisor in the textiles division and has positive work reports. There are no medical or mental health issues.

19. In regard to the offending he claimed that he met a woman at the airport in Canada who befriended him and requested that he check some packages that she was carrying in his own name. He claimed that he was initially suspicious but went ahead with her request. He stated that he does not use illicit drugs and reported no history of illicit drug use. He agreed with police facts but denied knowledge of the illicit drugs found in the packages. He acknowledged that he was responsible for his own actions but claimed that he had not engaged in the offences knowingly.

20. Because of the likely fact that he will be deported at the expiration of a sentence, he was not assessed as being suitable for any community-based options.

21. A letter from Mr Wong to the Court confirms some of his background material and apologises, as he did in evidence, for his behaviour, recognising the wrongness of it and the effect such drugs have within the community. Mr Wong is an intelligent and perspicacious man who at best was utterly reckless as to what he was doing or at worst did what he did deliberately and in full knowledge of what he was doing.

22. Since being in custody from 21 December 2008, he has been an excellent prisoner described as an honest, hardworking man who has achieved promotion in the textile industry section to that of supervisor. As well he has also undertaken appropriate technical and developmental courses within the prison system. In evidence he confirmed the history obtained by the Probation and Parole Service with some minor, somewhat inconsequential variations. Also tendered were a large number of certificates of achievement and training in his chosen field.

23. I was referred to a large number of authorities by defence counsel and the Crown. I must say I was somewhat surprised at the leniency of many of the cases referred to by the defence, most of which involved considerably larger importations of MDMA than was imported here. Importations of fifty plus kilograms of MDMA had been attracting sentences in some instances of eight years with a five year non-parole period or slightly above that. The nearest relative matter, at least as far as weight is concerned, that is weight of the importation, is Tyler [2002] NSWCCA 272 where a recruited and paid courier received six years with a non-parole period of three years, the pure weight of MDMA being 947.6 grams.

24. The Crown’s case list in most instances predates the repeal at s 16G. But in the Crown appeal of R v Nguyen [2006] NSWCCA 369, a sentence was increased to six years with a three year non-parole period for importing 537.2 grams of methylamphetamine. However that weight was less than a commercial quantity and was a sentence after trial, the maximum penalty being twenty-five years’ imprisonment.

25. In the present case Mr Wong can offer no justification or pressure of any relevant kind for committing this offence. The seriousness of the offence is encapsulated in two things, the maximum penalty and the amount that Parliament sets as being of a commercial quantity. It is quite clear that MDMA is to be treated as an illegal substance of a serious kind. Except for his plea of guilty, the other factors personal to Mr Wong such as social isolation, effect on his parents and grandmother, his gifts to charity over many years and his prior good character are common to many erstwhile importers of illegal substances.

26. I am urged to treat him as a transporter, not an organiser, as a cog in a wheel, as being breathtakingly amateurish and lacking in judgment at a crucial time. For the reasons that I have given, I find such submissions difficult to accept. The facts suggest that special baggage is picked up after the passengers clear Customs. If it is before, the passenger presents their baggage for inspection at the Customs barrier, then Mr Wong must have decided not to pick the items up after he got off the plane but before he presented himself to Customs. This may tend to lend some credence to his versions of events. In the upshot, probably little turns on it as Mr Wong’s actions from beginning to end speak of a guilty knowledge on his part.

27. I am asked to find special circumstances in order to vary the usual ratio of non-parole period to parole period of between sixty per cent and two-thirds although no particular reason has been advanced as to why that should be varied in this particular case. This is a serious offence and whilst the amount imported is relatively small, and is something that I need to take into account, nonetheless general deterrence requires an appropriate sentence be set.

28. The orders I make are that he is convicted. He is sentenced to six years’ imprisonment with a non-parole period of four years to date from 21 December 2008 which means he is eligible for release on parole on 20 December 2012.

29. What that means, Mr Wong, is that you have been sentenced to six years’ imprisonment with a minimum period that you have to serve in custody of four years which means that you are eligible to be released on parole on 20 December 2012. Whether you are released on parole will depend upon your behaviour whilst in custody. Thank you.

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