The Queen v Kim Man Freeman Tsang (Unreported, County Court of Victoria, 18 December 2009, Judge Jenkins)
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CRIMINAL LAW – Appeal against conviction and sentence – Importing commercial quantities of border controlled drugs – s 307.1 of the Criminal Code 1995 (Cth) – Conspiracy – Admissibility of evidence – Hearsay – Statements made by a third person co-accused in the absence of the accused – Whether trial judge erred in ruling that intercepted telephone calls were admissible – Ahern v The Queen (1988) 165 CLR 87 and Tripodi v The Queen (1961) 104 CLR 1 considered
CRIMINAL LAW – Appeal – Jury directions – Whether substantial miscarriage of justice occurred – Whether judge erred in failing to provide directions on the applicant’s use of an interpreter – Whether judge erred in not advising the jury to ignore the prosecutor’s remark that the applicant was ‘hiding behind an interpreter’ – Appeal dismissed
CRIMINAL LAW – Sentence – Assessment of applicant’s role in offending – Parity – Whether sentence manifestly disparate to sentence of co-accused – Totality – Whether sentencing judge erred in failing to take into account period of imprisonment served in Canada – Whether sentencing judge erred in finding that there were no relevant mitigating factors – Appeal allowed – Applicant re-sentenced
Appearances:
Counsel
Solicitors
For the Applicant
Mr L C Carter Mr M D Stanton
Lethbridges
For the Respondent
Mr L Crowley
Director of Public Prosecutions (Commonwealth)
NETTLE JA: NEAVE JA: SIFRIS AJA:
The applicant, Kim Man Freeman Tsang, was found guilty by a County Court jury of one count of importing a commercial quantity of 3,4‑methylenedioxymethamphetamine (‘MDMA’), contrary to sub-section 307.1(1) of the Criminal Code 1995 (Cth) (count 1); and one count of attempting to traffic a commercial quantity of MDMA contrary to sub-sections 11.1(1) and 302.2(1) of the Criminal Code 1995 (Cth) (count 2). The applicant was tried at the same time as Vincent Sze Fai Chan (‘Chan’) who was charged under count 3 with aiding and abetting, counselling or procuring the applicant to commit the offence covered by count 2. Chan was acquitted of that offence.
After hearing a plea in mitigation of penalty, the learned trial judge sentenced the applicant to imprisonment for life on both counts and ordered that the sentences be served concurrently. A non-parole period of 27 years was fixed. The applicant now appeals against both conviction and sentence imposed on him.
Background to the appeal
Count 1 (the importation count) occurred between 1 May 2006 and 8 June 2006, when around 1.29 million tablets containing MDMA were allegedly imported into Australia by the applicant. The total pure weight of the MDMA in the imported tablets was 74.1…
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.
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Details
AGLC
Tsang v DPP (Cth) [2011] VSCA 336
Case
[2011] VSCA 336
Decision Date
CaseChat Overview and Summary
In Tsang v DPP (Cth), the applicant, Tsang, appealed against his conviction and sentence for importing commercial quantities of border-controlled drugs under section 307.1 of the Criminal Code 1995 (Cth). Tsang argued that the trial judge erred in admitting intercepted telephone calls and in giving jury directions, and that his sentence was manifestly disparate to that of his co-accused. The appeal was heard by the High Court of Australia.
The legal issues before the court included whether the trial judge correctly admitted intercepted telephone calls, which contained hearsay statements from a co-accused not present during the calls. The court also needed to determine whether the judge erred in not advising the jury about the applicant's use of an interpreter and whether the prosecutor's remark about the applicant "hiding behind an interpreter" warranted specific jury direction. Additionally, the court had to assess whether the sentence was proportionate to the role of the applicant in the offending, considering the time served in Canada and mitigating factors.
The High Court held that the trial judge did not err in admitting the intercepted telephone calls, following the precedents set by Ahern v The Queen and Tripodi v The Queen. The court found that the judge did not err in their directions to the jury, and that no substantial miscarriage of justice occurred. However, the court found that the sentencing judge erred by not considering the period of imprisonment served by the applicant in Canada and by not recognising relevant mitigating factors. As a result, the appeal regarding the sentence was allowed, and the applicant was re-sentenced.
The court dismissed the appeal against the conviction and upheld the sentence, with a re-sentencing order due to the errors in the original sentencing process.