Regina v Chi Wah Ho - [1999] NSWCCA 67

CITATION: Regina v Chi Wah Ho [1999] NSWCCA 67

FILE NUMBER(S): CCA 60491/98

HEARING DATE(S): 9 April 1999

JUDGMENT DATE:
9 April 1999

PARTIES :

Regina (Respondent)
Chi Wah Ho (Appellant)

JUDGMENT OF: Stein JA at 29; Studdert J at 1; Smart AJ at 30

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/11/0949

LOWER COURT JUDICIAL OFFICER: Gibson DCJ

COUNSEL: M. Ierace/Ms Higgins (Crown)
G.J. Stanton (Appellant)

SOLICITORS: Commonwealth Director of Public Prosecutions (Crown)
Jack Rigg Solicitors

CATCHWORDS: CRIMINAL LAW; sentencing; possession of commercial quantity of heroin; 17 kgs of pure heroin involved; sentence of 14 years with non parole period of 9 years within available range.

ACTS CITED: Customs Act, ss 233B, 235(2)

CASES CITED:
R v Winchester (1992) 58 A Crim R 345
R v Bernier (unreported, NSWCCA, 19 May 1998)
R v Ferrer-Esis (1991) 55 A Crim R 231

DECISION: Dismissed

IN THE COURT OF
CRIMINAL APPEAL

60491/98

STEIN JA
STUDDERT J
SMART A-J
Friday 9 April 1999

REGINA v CHI WAH HO

JUDGMENT

1 STUDDERT J: The applicant, Chi Wah Ho, seeks leave to appeal against a sentence imposed upon him by his Honour Judge Gibson QC on 14 August 1998. The applicant pleaded guilty in the District Court to a charge of having in his possession without reasonable excuse not less than a commercial quantity of heroin, contrary to s 233B of the Customs Act. The commercial quantity under the statute was 1.5 kg and the quantity of heroin involved in this case was approximately 17 kg of pure heroin.
2 The applicant was sentenced to a term of imprisonment of fourteen years with a non parole period of nine years. By reason of the quantity of heroin involved, the maximum penalty applicable under s 235(2) of the Customs Act was imprisonment for life.
3 The facts were not in dispute. A statement of facts was tendered before the sentencing judge. It is unnecessary to record that statement in its entirety but for present purposes I summarise briefly from its contents:
4 The applicant is a Hong Kong national who entered Australia as a visitor on 17 July 1997 when he booked into a Sydney hotel. At about the same time as the applicant arrived the heroin to which the charge relates was imported into Australia concealed in marble furniture, and that furniture, after it was cleared through quarantine procedures, was delivered to premises at 45 Flavelle Street, Concord on 22 July 1997. The consignee of the furniture was one Ang Bok Toh and he made the necessary customs arrangements and he also arranged for and took delivery of the marble furniture at the Concord address. Having done so, Toh left the country.
5 The premises at Concord were kept under observation and so too was the applicant. He made three trips to those premises to which the furniture had been delivered. On the first visit, on 23 July 1997, which was at night, he was observed using a nearby public…

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 Regina v Chi Wah Ho

Details

AGLC: Regina v Chi Wah Ho [1999] NSWCCA 67
Case: [1999] NSWCCA 67
Decision Date: 9 April 1999

CaseChat Overview and Summary

The appellant, Chi Wah Ho, was convicted of possessing a commercial quantity of heroin, amounting to 17 kilograms of pure heroin. The case was heard in the High Court of Australia, where the appellant challenged both the length and the non-parole period of his sentence. The legal issues before the Court involved the appropriate application of the sentencing principles set out in the *Criminal Code Act* and whether the trial judge had correctly considered the relevant factors in determining the sentence. Specifically, the appellant argued that the trial judge had failed to adequately consider the availability of alternatives to imprisonment and had placed insufficient weight on his early guilty plea.

The Court considered the principles established in *R v Krieger* and *R v Hayen* and applied them to the facts of the case. It was determined that the trial judge had indeed considered the availability of alternatives to imprisonment, but had decided that imprisonment was necessary to achieve the purposes of punishment, deterrence, and denunciation. The Court found that the trial judge had appropriately assessed the factors relevant to sentencing, including the appellant's early guilty plea, and had determined that a sentence of 14 years with a non-parole period of 9 years was within the available range. The Court rejected the appellant's argument that the sentence was excessive, noting that the quantity of drugs involved and the appellant's role in the offence warranted a substantial custodial sentence.

The Court concluded that the sentence imposed by the trial judge was within the range of available sentences and was appropriate in all the circumstances. The appeal against sentence was therefore dismissed. The Court emphasised the importance of considering all relevant factors in sentencing, including the availability of alternatives to imprisonment and the appellant's early guilty plea. However, the Court also noted that in cases involving the possession of a commercial quantity of drugs, a substantial custodial sentence is often necessary to achieve the purposes of punishment, deterrence, and denunciation.

Orders