Regina v Chun Hing Law - [2002] NSWSC 952

NEW SOUTH WALES SUPREME COURT

CITATION: Regina v Chun Hing Law [2002] NSWSC 952

CURRENT JURISDICTION: Supreme Court of New South Wales

FILE NUMBER(S): 70022/97

HEARING DATE{S): 13 September 2002

JUDGMENT DATE: 16/10/2002

PARTIES:
Regina
Chun Hing Law

JUDGMENT OF: Sully J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
R. Sutherland SC - Crown
P. Bodor QC - Prisoner

SOLICITORS:
G. Drennan - Crown
N. Hamilton - Prisoner

CATCHWORDS:

ACTS CITED:
Customs Act (C'th)
Financial Transaction Reports Act 1988 (C'th)
Commonwealth Crimes Act 1914

DECISION:
Imprisonment for life
Non-parole period of 30 years

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION
SULLY J
Wednesday 16 October 2002
70022/97 – REGINA v Chun Hing LAW
ON SENTENCE

SULLY J: The prisoner, Mr. Chun Hing Law, was arrested in Hong Kong on 2 October 1996 and has been in custody since that date. He was extradited to Australia, arriving on 9 February 1997. He was committed for trial, and in due course was arraigned, upon a charge that between about 1 December 1993 and about 13 January 1995 at Sydney and elsewhere conspired with one Joseph Law Ling, with one Alan Tam, with one Mao Huang Tung, with one Brian Alexander Kuan, and with others unnamed, to import into Australia not less than the commercial quantity of heroin in contravention of section 233B(1)(cb) of the Customs Act (C’th).
The prisoner pleaded not guilty, and thereupon was tried by Ireland J and a jury. That trial extended from 18 March 1998 to 24 April 1998. The jury found the prisoner guilty as charged; and on 31 March 1999 Ireland J convicted him and sentenced him to imprisonment for life, without a non-parole period.
The prisoner appealed against his conviction and applied for leave to appeal against sentence. On 27 July 2001 the Court of Criminal Appeal quashed the conviction and sentence and ordered a new trial.
That re-trial commenced in this Court on 11 March 2002, and continued with some interruptions until 11 April 2002. Once again, the jury found the prisoner guilty as charged. The prisoner was thereupon convicted and was remanded in custody until 20 June 2002; but that date was subsequently vacated and the remand was extended to 13 September 2002. On that day the Court received written submissions from the Crown and oral submissions from learned Senior Counsel for the Crown and from learned Queen’s Counsel for the prisoner. The Court reserved its decision on sentence.
The Relevant Facts: Introduction
The Crown case at trial was that between December 1993 and January 1995 there was on foot a particular conspiracy, the objective of which was the regular importation into Australia of large consignments of heroin for distribution and sale within Australia.
An incident of the carrying into effect of the conspiracy was the regular remitting to overseas destinations of substantial sums of money. The amount of each remittance fell below the threshold that is…

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 Chun Hing Law

Details

AGLC: Regina v Chun Hing Law [2002] NSWSC 952
Case: [2002] NSWSC 952
Decision Date: 16 October 2002

CaseChat Overview and Summary

In the case of Regina v Chun Hing Law, the defendant was found guilty of being part of a criminal conspiracy to import heroin into Australia. The dispute involved the sentencing of the defendant, who had been involved in multiple heroin importations. The court had to decide on the appropriate sentence, taking into account various legal and mitigating factors.

The court examined the defendant's involvement in the conspiracy and the seriousness of the crime, which involved importing a significant quantity of heroin. The court also considered the mitigating factors presented, including the defendant's cooperation with authorities and the impact of his incarceration on his family. The legal issue was whether the mitigating factors warranted a sentence less than the maximum penalty, which is life imprisonment for such a serious crime.

The court concluded that despite the mitigating factors, the gravity of the crime and the need to deter others from engaging in similar activities warranted a severe sentence. The court held that the importation of heroin posed a significant threat to the community and that the sentence should reflect the seriousness of this threat. The court sentenced the defendant to life imprisonment, with a non-parole period that the court found to be appropriate given the circumstances.

The final orders of the court were that Chun Hing Law be sentenced to life imprisonment, with a non-parole period set by the court. This sentence was intended to both punish the defendant and deter others from engaging in similar criminal activities.

Orders

Orders of the court

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Background

Background to the litigation

The detailed evidence by means of which the Crown essayed to establish at trial the foregoing propositions was, not surprisingly, voluminous. That body of evidence has been canvassed in the written Crown submissions on sentence: see Exhibit C1 on sentence. Included in that exhibit is a document entitled “Chronological Facts” and a document entitled “Outline of Facts. The former document contains 199 numbered items occupying some 20 closely typed pages. The latter document comprises 15 closely typed pages of narrative. It is neither practical nor useful simply to regurgitate in some slightly changed form what is readily accessible from a reading of the exhibit. It is impossible to reduce such a body of material into a few simple paragraphs. I think that a more useful approach to my present task is to leave the detail of that material to speak for itself, and to record the following particular findings of fact, as to all of which I am satisfied beyond reasonable doubt, and all of which seem to me to be consistent with the verdict of the jury:[1]It is, in my opinion, incontestable that there was in fact on foot throughout the period charged in the indictment just such an ongoing joint criminal enterprise as was alleged at trial by the Crown.[2]It is, in my opinion, incontestable that the prisoner was actually involved in the carrying into effect of the importations of July, August and November of 1994.[3]There is, in my opinion, an overwhelming rational inference that the prisoner intended to be associated actively at the Australian end of the January 1995 importation; that the only reason why he did not in fact return to this country for that purpose was that he was refused the necessary entry visa; and that the appearance on the relevant scene of Brian Kuan was the direct result of the need for the conspirators to find a last-minute substitute for the prisoner at the Australian end of the January 1995 importation.[4]The prisoner cannot be associated as a co-conspirator with the January 1994 importation. No circumstantial evidence so links the prisoner; and the direct evidence at trial of Alan Tam is to the contrary. [5]The reference in [4] above to Alan Tam makes it expedient to say, now, something about that witness.Tam was, of course, a very controversial trial witness. Beyond any shadow of a doubt he was a significant co-conspirator throughout the whole of the relevant period after March 1994. He was to be the active Australian connection in respect of what is described in the Crown Outline of Facts as an aborted importation of March 1994. Following that miscarriage, Tam recruited the prisoner to become the Australian connection for subsequent importations.There are many obvious and cogent criticisms that can be made about Tam’s credit and credibility. He exhibited characteristics which are not infrequently found in drug traffickers who become Crown witnesses, and which can best be summarised collectively as cynical and ruthless amorality.The difficulty which arises necessarily with any such witness is that of distinguishing, with a proper confidence and with a proper regard for the criminal standard of proof, what part or parts of his evidence, if any, can be relied upon. There is, obviously, no magic formula. The tribunal of fact must do its dutiful best to draw rational inferences from the demeanour of the witness, especially as seen under the test of a skilled and careful cross-examination; and from the essential rationality of what the witness has to say about a particular matter after that particular evidence has been tested against the other relevant and credible evidence at trial. Approached in that way, I am satisfied to the requisite standard that Tam can be accepted, and I do therefore in fact accept him, in what he says about the recruitment into an ongoing conspiracy of the prisoner.The Relevant Facts: the Particular Conspiratorial Culpability of the Prisoner

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The erroneous application of section 16G and the other mitigating considerations which I have mentioned entail, in my opinion, that the present prisoner’s proper sentence does not have to be adjusted in order to assuage that justified sense of grievance of which the relevant authorities speak.Sentence: Conclusions It is useful to cite as follows from the remarks on sentence of Barr J in the matters of Tam and Mao:“The importation of forty kilograms of pure heroin, a drug which leads only to crime, misery and death, is wicked in the extreme. (The offender’s) motive was self-enrichment. The maximum penalty for conspiring to do so is imprisonment for life. Notwithstanding the other matters to be taken into account under the section, the need to punish (the offender) and to deter others is the overwhelming consideration and persuades me that the imposition of the maximum sentence would be appropriate.” I agree entirely with that approach which I consider to be equally appropriate in the case of the present prisoner. I supplement Barr J’s observations by re-affirming three general propositions which I articulated on 22 March 1991 when sentencing one Cheung Wai Man and five others:“1. The importation of heroin into this country in any amount and at any time constitutes a deliberate threat to the well-being of the Australian community. The same is to be said of any form of trafficking of heroin within this country.2. The importation or the attempted importation of, and the trafficking or attempted trafficking in, a quantity of heroin of the amount here in question is in a very real sense a declaration of war upon this community. It is a distinct challenge both to concepts of human dignity and to moral values otherwise which are fundamental to our way of life. It is no less a challenge to the rule of law which is in the end the ultimate guarantor of the personal freedoms and of the social stability which all of us Australians take for granted.3. In the face of such challenges each of the institutional supports of our society has a role to play. That of the Courts is to punish and deter according to law. Obviously, the Courts alone cannot meet adequately, let alone defeat, the challenge of which I have been speaking. What the Courts can do is to punish drug-related crime in a way which signals plainly to drug traffickers, especially foreign drug traffickers, that the Courts are both able and willing to calibrate their sentences until a point is reached at which, to a significant extent even if never perfectly, fear of punishment risked will neutralise the greed which is the only possible motive of those who, like the present prisoners, engage in drug-related crime when they are themselves not drug dependent.” In my opinion a head sentence of life imprisonment should be passed in the case of the present prisoner. It then becomes necessary to consider whether a non-parole period should be set. I have found this a very difficult matter to resolve in the present case. There is, in my opinion, a good case to be made for the proposition that the time has come to make it plain to foreign nationals who run huge quantities of heroin into this country that, if they are brought to justice, they will be treated as having forfeited permanently their personal liberty.

Ratio Decidendi

Legal Principle Established

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