R v Yeo

[1995] QCA 308

IN THE COURT OF APPEAL	[1995] QCA 308
SUPREME COURT OF QUEENSLAND	C.A. No. 182 of 1995
Brisbane
Before	Fitzgerald P. McPherson J.A. Demack J.
[R. v. Yeo]

T H E Q U E E N

v.

AH HOCK YEO Appellant

FITZGERALD P. MCPHERSON J.A.

DEMACK J.

Judgment delivered 14/07/1995

REASONS FOR JUDGMENT - THE COURT

APPEAL AGAINST CONVICTION DISMISSED.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:	DANGEROUS DRUGS - IMPORTATION - Customs Act 1901 (Cth); 233D - unsafe and unsatisfactory verdict - whether jury could have been satisfied beyond reasonable doubt of the accused’s guilt
SENTENCE - manifestly excessive
Counsel:	D. Richards for the Appellant D. Boyle for the Respondent
Solicitors:	Legal Aid Office for the Appellant Commonwealth Director of Public Prosecutions for the Respondent
Hearing Date(s):	22 June 1995
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 14/07/1995

On 6 April 1995, the appellant was convicted in the Supreme Court at Brisbane on one count of importing into Australia, contrary to s. 233B of the Customs Act 1901 (Cth), a quantity of heroin being not less than the applicable commercial quantity. On the same day, he was sentenced to imprisonment for 16 years with a non-parole period of eight years; it was ordered that the sentence have effect on and from 25 June 1994, which was when the appellant was arrested. He has appealed against his conviction, and applied for leave to appeal against sentence.

The only ground of appeal argued was that the appellant's conviction was unsafe and unsatisfactory.

The appellant was a member of a tour group which arrived at Brisbane International Airport on a flight from Singapore at about 6 a.m. on 25 June 1994. The appellant and a number of other members of the tour group, including his fiance with whom he was travelling, passed through the Customs area without any baggage examination. They then waited for the tour bus with other members of the tour group, standing approximately 8 to 15 metres away from the bus and 30 to 40 metres from a taxi rank; their luggage had been loaded on the bus. After they were there for about 40 minutes, all were asked to return to the Customs area because the baggage of two members of the group had been found to contain narcotics. The members of the tour group retrieved their baggage, and all baggage, including that of the appellant and his fiance, was examined. Large quantities of high-grade heroin, with a street value of several million dollars, were found in each bag. In an interview by Australian Federal Police later that day, the appellant said that the bags had been given to him in Singapore by a friend by the name of Ah Chye, who told him that the bags contained diamonds and asked him to bring the diamonds illegally into Australia in return for payment of between $5,000-$8,000. He said that he believed Ah Chye when he was told that the bags contained diamonds, and denied knowing that they contained narcotics; he "didn't think of that", and would not have dared to carry heroin in Singapore. He had known Ah Chye for nearly a year, but did not know where he lived; he had contacted him through his pager.

At his trial, the appellant gave evidence that he had met Ah Chye in Thailand approximately one year before his trip to Australia and that he had next met him in a chance encounter at a travel agency about a week before the appellant came to Australia. Ah Chye was an acquaintance, he said, and he did not know his address or occupation. He had been given a pager number at his meeting at the travel agency with Ah Chye and subsequently telephoned that pager number and was contacted by Ah Chye. The bags were delivered to him prior to his departure for Australia. When he asked Ah Chye whether the contraband was "dangerous drugs", he was told that it was diamonds.

Shortly stated, the argument for the appellant was that the Crown case was circumstantial, and that the jury ought to have had a reasonable doubt about the appellant's guilt because he had had ample opportunity to decamp from the airport after he had passed through Customs and yet he returned and participated in the baggage search. Hence, it was submitted for the appellant that it had not been proved beyond reasonable doubt that the appellant either knew, or was aware of the likelihood that, the substance in the bags was heroin.

We cannot see the slightest basis upon which this Court could conclude that it was not open to
the jury to be satisfied beyond reasonable doubt from the evidence, including the appellant's
evidence which the jury must have considered to be false, that the appellant knew the nature of
the substance which he deliberately and illegally imported: see, for example, He Kaw Teh v.
R. (1985) 157 C.L.R. 523; Bahri Kuril v. R. (1987) 162 C.L.R. 502; Saad v. R. (1987) 29
A.Crim.R. 20; Abou Chedid v. R. (C.A. No. 298 of 1993, unreported, judgment delivered 15
October 1993).
The appeal against conviction should be dismissed.
The application for leave to appeal against sentence was essentially based on the propositions
that the sentence was manifestly excessive because of the appellant's age (28 years), and his
cooperation with the police (in attempts made to trace his Australian contact), and the additional
difficulty he will experience in jail because of his nationality. It was not submitted that the
sentencing judge erred in principle in any respect but argued that a sentence of 14 years would
have been the most appropriate. The prosecution, on the other hand, submitted that the range
was 14 to 16 years, so that the sentence was within, although at the upper end of, the permissible
range.

We can see no reason whatever for interfering with the sentencing judge's discretion. The appellant, a foreign national, entered Australia, ostensibly as a tourist, but in fact as an essential participant in a chain of importation into Australia of a large quantity of heroin. The heroin which he brought into this country was of very high grade, and would, at the one time, provide a drug dealer in this country with a large profit and add to the significant damage which the use of heroin is causing in this society. The applicant's sole motive was personal gain. Given these circumstances and that the maximum penalty was life imprisonment, the appellant was not excessively punished. Heavy sentences are one of the few steps which a country like Australia can take to deter criminal activity of this kind.

We would refuse the application for leave to appeal against sentence and, as we have said, dismiss the appeal.