Regina v Lim Yok Peng

[2002] NSWCCA 208

Reported Decision: (2002) 130 A Crim R 293

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Lim Yok Peng [2002] NSWCCA 208
FILE NUMBER(S):	CCA 60566/01
HEARING DATE(S):	31 May 2002
JUDGMENT DATE:	31 May 2002
PARTIES :	Lim Yok Peng v Regina
JUDGMENT OF:	Buddin J at 37; Smart AJ at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	02/11/0180
LOWER COURT JUDICIAL OFFICER :	Knight DCJ

COUNSEL :	(A) B W Cross (C) P J Power
SOLICITORS:	(A) Tully & Co (C) S E O'Connor
CATCHWORDS:	Sentencing - sentence not erroneous but parity and proportionality require lesser sentence
LEGISLATION CITED:	Nil
CASES CITED:	Lowe v The Queen (1984) 154 CLR 606 Postiglione v The Queen (1997) 189 CLR 295
DECISION:	See para 36

IN THE COURT OF
CRIMINAL APPEAL

60566/01

BUDDINJ

SMART AJ

Friday, 31 May 2002

REGINA v LIM YOK PENG

JUDGMENT

1. SMART AJ: Lim Yok Peng pleaded guilty and was convicted of the offence that between 7 September 1998 and 18 September 1999 at Sydney he did with Chen Moon Toh, Yeoh Ah Thin, Koh Yee Fong and others conspire together amongst themselves to cheat and defraud American Express, Mastercard, Visa International and other financial institutions of divers large sums of money. The maximum penalty for this common law misdemeanour is at large. The applicant was sentenced to imprisonment for 5 years 8 months to commence on 16 September 1999 with a non-parole period of 4 years 3 months.

2. The applicant was arrested in Brisbane on 16 September 1999 on related fraud and dishonesty charges. He remained in custody in Queensland for 339 days being sentenced in the District Court of Queensland on 21 August 2000 to imprisonment for 2 years 6 months suspended after having served a term of imprisonment of 339 days. This enabled the applicant to be extradited to New South Wales to stand trial on the conspiracy offence.

3. During 1998 and 1999 a predominantly Malaysian organised crime syndicate was operating throughout Australia with its headquarters and principal field of operation being in Sydney. Counterfeit credit cards appearing to be those of the institutions mentioned were manufactured overseas and imported into Australia and encoded with legitimate account details. These cards were then used by "shoppers", being people selected by the syndicate, at merchants throughout the country to obtain goods. The encoded account details were obtained in one of the following manners:

(a) Skimming – A legitimate card holder uses his or her card for a legitimate purchase and the card is run through a "skimmer" which stores the magnetic stripe data from the genuine card. This data is then encoded onto the rear of the counterfeit card enabling it to be used at a merchant terminal.

(b) Credit Master – A programme available off the Internet is used to generate genuine account numbers using the Bank Identification Number (BIN) range. Each bank has a BIN range unique to that bank. An expiry date is also created for the account number using a similar algorithm. These details are then encoded on the counterfeit credit card enabling it to be used at a merchant terminal.

4. The counterfeit cards, which purport to be legitimate, were used at merchants throughout the country to purchase expensive tangible items. The shoppers were numerous and the majority constantly changed; they were mostly brought in for short periods from overseas for the sole purpose of purchasing goods with counterfeit credit cards. The supervisors organised the shoppers, often driving them to selected stores or shopping centres. The supervisors also had cards and made purchases. The shoppers were paid 20 per cent of the retail value of any property purchased.

5. The counterfeit credit cards were used at the premises of collusive merchants. They knowingly conducted a large number of counterfeit transactions through their terminal without actually selling any property. The money for the transactions was paid into the merchant's account and then divided up with the syndicate.

6. The operation was conducted on a large scale, ledgers were kept of property purchased, payments received, payments to syndicate members and the resale of "purchased" property. There were shopping lists. Vehicles were leased for relatively short periods and then other vehicles were leased. There were safe houses in which some members of the syndicate and some of those engaged to assist were accommodated and in which the illicitly obtained goods were stored pending their disposal. Safe houses were changed periodically. Some goods were sold locally while other goods were shipped overseas. Steps were taken to ensure that those involved had current visas.

7. The applicant was primarily involved in the disposal of property after it had been purchased. He ensured that it was stored out of sight in the safe houses and that it was disposed of.

8. During a six week period numerous phone calls were intercepted in which the applicant was talking to various people including syndicate members in relation to counterfeit card usage orders, disposal of property and other matters relating to the enterprise. Felo Lim Enterprises Pty Ltd, a company controlled by Lim and Xue were involved in the shipments of property to Singapore.

9. During the course of the investigation the following specific involvement of the applicant emerged:

He attended safe houses at 12 Scahill Street, Campsie and 51 Angelo Road, Campsie, and collected property which had been purchased with counterfeit cards. He conveyed this property to CT Freight Pty Ltd, 154 O'Riordan Street Mascot. On 4/11/98, 23/11/98, 25/11/98, 5/12/98, 21/3/99, 7/4/99 and 23/5/99 he sent consignments from Australia to Hi-Star Multi Media, Singapore. These consignments contained predominantly Sony Playstations and mobile phones.

Numerous search warrants were issued and searches were undertaken at safe houses and other premises associated with the syndicate, during which large amounts of property and documentation relating to the use of counterfeit credit cards were seized. This property/documentation was later fingerprinted and the applicant's fingerprints were located on a variety of these exhibits.

On 14 September 1999 he sent a number of packages to Sydney from Brisbane through a freight company. They contained property that had been purchased on counterfeit cards in Brisbane.

He was regularly surveilled conveying staff to various locations where counterfeit credit cards were utilised. On 16 September 1999, the applicant was arrested in a motor vehicle in Queensland after having been surveilled attending various stores and using counterfeit credit cards. In the vehicle there were three other males and amounts of property that had been purchased on counterfeit credit and some counterfeit credit cards.

10. On 17 September 1999 a large amount of property sent from Queensland to the applicant was recovered from premises in Sydney.

11. The Crown alleged that during the time that the syndicate operated in Australia during 1998 and 1999 the members obtained $16-million in cash and property using counterfeit credit cards. As that figure has not been substantiated this Court does not rely on it. The evidence does reveal a very large operation and the expensive nature of the goods obtained. It is obvious that many millions of dollars were involved. Further specificity is not required.

12. The judge found that the applicant had three distinct roles in the enterprise, namely:

(a) He was the person who organised the shipping of the illegally obtained goods from Australia to Singapore and other places over a two year period
(b) He took shoppers to the various stores and supervised them in their actual purchases, maintaining contact with them by mobile phone
(c) He also personally used counterfeit credit cards to obtain goods himself.

The judge noted that the charge in the indictment only related to a period of one year. That is the period which this Court must consider.

13. The judge concluded that the applicant was an organiser, a supervisor and a shopper and that the applicant's criminality in relation to the conspiracy was "very great indeed". These findings were well open on the evidence and required by it.

14. The judge expressed the view that the head of the organisation was Chen Moon Toh (aka Richard Chen) and that below him were Yee Fong Koh (aka Raymond), the applicant and Ah Thin Yeoh (aka Uncle Yeoh). The judge noted the names of three other members of the syndicate.

15. On the evidence before the judge It seemed that Koh organised the encoding and distribution of the cards and the recording of the property purchased. He was involved in paying the syndicate members for their services and the use of the cards with legitimate merchants and with collusive merchants. Yeoh was the overall supervisor of the shoppers, that is, he ensured the shoppers received their cards and generally did their job.

16. The judge noted the sentences which had as at the date of sentencing, been imposed on other conspirators, namely:

Offender Period of Imprisonment Non-Parole Period
Keng 4 years 3 years
Kuek 4 years 3 years
Yang 5 years 3 years 6 months

Koh 6 years 4 years 6 months

The judge correctly regarded these sentences, on the evidence before him, as inadequate but correctly felt constrained by considerations of parity.

17. The judge records that the applicant strongly urged that the judge equate the applicant with Yeoh and impose a sentence of 5 years imprisonment with a non-parole period of 3 years 6 months. The Crown submitted that the judge should equate the applicant with Koh and impose a sentence of 6 years imprisonment with a non-parole period of 4 years 6 months. The judge held that the applicant had a more significant role to play than Yeoh and a less significant role than Koh. The judge thought that, unlike Koh, the applicant had no significant part in the aspect of the conspiracy which involved the use of forged cards with collusive merchants.

18. The judge took into account the subjective features of the applicant. He took into account the plea of guilty for its considerable utilitarian value and as providing some evidence of contrition and remorse. He allowed a discount of 25 per cent for these factors. He expressly did not take into account that it would be more onerous for the applicant, whose family came from Malaysia, to serve a prison sentence in Australia because he had come to Australia to commit the crime in question. In any event that factor is of little weight and would make no difference to the sentence. The judge noted that the applicant was trying to rehabilitate himself.

19. The judge after recording the events which had taken place in Queensland and the punishment which the applicant had received there, said that any sentence imposed should date from 16 September 1999 to avoid any question of the applicant receiving double punishment in relation to those aspects of the conspiracy which were perpetrated in Queensland.

20. On 15 August 2001 this Court was advised in Koh's application for leave to appeal that there was considerable doubt as to what material had been admitted at his sentencing hearing before another District Court judge on two matters of importance which were in contention. The Court ordered that the matter be remitted to the District Court for redetermination of Koh's sentence. The Crown did not oppose that course.

21. That redetermination came before Nash ADCJ on 12 February 2002 . A lengthy sentence hearing of up to 10 days was forecast. After some evidence was given the solicitors for the parties got together and documents including an agreed statement of facts were tendered and admitted. Nash ADCJ noted that the plea of guilty had saved a lengthy trial and Koh's consent to the tendering of the agreed statement of facts had saved a lengthy sentence hearing, Nash ADCJ took the view that the head of the organisation in Australia was Chen Moon Toh and that the next level below him comprised Lim and Xue. On the next level below them were Yeoh, Yang and Kuek.

22. Nash ADCJ said of Koh:

"The fact that you accounted to men at the top of the syndicate, namely Chen and Lim for property obtained from time to time indicates that you were close to them." (R/S p.8)

and

"... you have, since towards the end of 1998 up to 17 September 1999, had access to Chen and Lim, and necessarily so, to ensure that they carried out their duties properly, (R/S p.9)

... your recording duties put you in a position within the syndicate at a higher level than a mere shopper or even one who not only shopped but supervised other shoppers ... it would not be unfair to you to treat you as a shopper or on the same level as a shopper and occasional supervisor of shoppers ...".

23. Nash ADCJ paid attention to Koh's subjective features. Of particular consequence was a serious, but not threatening, medical condition which Koh had. Nash ADCJ was not asked to find special circumstances and he expressly found that there were none. Nash ADCJ also had regard to the question of parity and held that Koh's situation was very similar to that of Keng. Keng was only involved in the conspiracy for a little over seven months and Koh was involved for a little less than 18 months. Nash ADCJ stated that he did not disagree with the sentence imposed on Keng (4 years with 3 years non-parole period). Nash ADCJ sentenced Koh to imprisonment for 4 years 6 months with a non-parole period of 3 years 4 months.

24. Nash ADCJ sentenced Koh on a far more favourable factual basis than the previous District Court judge. The latter had found that Koh was more seriously involved than Yeoh, Ah Thin and Yang Li and classified Koh as an organiser. The same judge had sentenced Yeoh and Yang some three months and three weeks earlier. He did not accept Koh as a truthful witness. It is reasonably apparent that the evidence before Nash ADCJ evinced less criminality on the part of Koh than it had before the previous judge. The Crown representative expressed satisfaction to Nash ADCJ as to the sentences imposed on Koh,

25. The Crown evidence before the judge who sentenced the applicant, summarised earlier, certainly indicated that Koh played an appreciably more significant role than the applicant.

26. On the materials before the judge the sentence he imposed was correct. Koh ultimately had his sentence redetermined on different materials. This case poses a dilemma.

27. On the findings of the actual involvement of the applicant made by the judge and those made by Nash ADCJ as to that of Koh, the criminality of the applicant was greater than that of Koh, yet this was contrary to the evidence before the judge and the findings made by him as to Koh's level of involvement and his level of criminality. If one took the judge's findings as to the level of involvement of the applicant and those of Nash ADCJ as to the level of involvement of Koh, the applicant should receive a greater sentence than Koh.

28. Questions of parity and proportionality have been discussed at length in Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 189 CLR 295 and this Court must apply the principles laid down in those cases. Their application in the present circumstances is not easy. It is never easy when the sentence or sentences of the co-offender or co-offenders respectively are based, not on a common factual situation, but on divergent factual situations. That problem arises not infrequently.

29. The applicant was sentenced on the basis of his criminality and with regard to the sentences imposed upon the co-offenders for criminality which was regarded in one instance as greater than and in other instances as less than his. The criminality of the person (Koh) whose criminality was regarded as greater has now been dealt with on a lesser basis although on the evidence in the applicant's case Koh's criminality remains the greater. It is anomalous for the Crown in Koh's case to have led evidence pointing to lesser criminality by him than it adduced in the present case.

30. There is no ideal solution in this tangled web but, in the light of the changed circumstances, the applicant would have a justifiable sense of grievance if his sentence was not adjusted. A large adjustment is not required. The sentence ultimately imposed must adequately reflect the applicant's criminality and not be an affront to the community's sense of values. When regard is had to the findings of the first judge who sentenced Koh and the evidence before and the findings of the judge sentencing the applicant, it is impossible not to think that good fortune has befallen Koh. Parity and proportionality require that similar good fortune should fall on the applicant.

31. Counsel for the applicant submitted that the involvement of Yeoh, Koh and the applicant should now be judged as broadly equal. The Crown accepted that the applicant had a justifiable sense of grievance by reason of the disparity of the sentences imposed on Koh and himself and that this requires this Court's intervention.

32. The applicant made a number of other complaints but neither alone nor together would they lead to a lesser sentence. The judge did not err in taking into account the size and sophistication of the syndicate's operation. Those matters appeared from the evidence. The applicant was deeply involved and was, with the others, at its heart. I have earlier dealt with the complaint that the judge erred in failing to take into account that serving his sentence in Australia would be more onerous by reason of his isolation from family and friends.

33. The submission that the sentence was unduly severe is untenable. Parity and proportionality are the only grounds on which the applicant can rely.

34. Having regard to all the circumstances, including the way in which Koh was dealt with, I am persuaded that the applicant should be dealt with on the same basis as Yeoh. That was the course urged by the applicant before the judge. The special circumstance is the need for parity.

35. Counsel for the applicant submitted that as his client was charged with being involved in the conspiracy for twelve months, Koh for eighteen months and Yeoh for two years, the applicant should receive a non-parole period of about 3 years 2 months, reflecting the lesser period of involvement. I do not agree. The criminality of the applicant was of a high order and a lesser non-parole period would not adequately reflect that criminality and would be an affront to community values. A head sentence of less than 5 years could not be contemplated.

36. I propose the following orders:

1. Leave to appeal granted.

2. Appeal allowed.; sentence quashed.

3. In lieu of the sentence imposed the applicant is sentenced to imprisonment for 5 years commencing on 16 September 1999 with a non-parole period of 3 years 6 months starting that day and ending on 15 March 2003, on which day the applicant will be eligible for release on parole.

37. BUDDIN J: I agree. The orders will be as proposed by Smart AJ.

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