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Wei Hong Qui v The Queen

Wei Hong Qui v The Queen

Case [2019] VSCA 147 26 June 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0111

WEI HONG QUI	Applicant
v
THE QUEEN	Respondent

S APCR 2018 0187

BOON TECK NG	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KAYE and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 June 2019
DATE OF JUDGMENT:	26 June 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 147
JUDGMENT APPEALED FROM:	DPP v Qui [2018] VCC 692; DPP v Ng [2018] VCC 1270 (Judge Hampel)

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CRIMINAL LAW – Sentencing – Applicant Qui charged with importing a border controlled drug in a commercial quantity – Guilty plea – Sentenced to 11 years’ imprisonment with a non-parole period of seven years – Whether sentence imposed demonstrates disparity with co-offender – Whether sentencing judge erred in sentencing on basis that applicant Qui knew that he was part of a larger operation and that his co-offender was also a courier – Application for leave to appeal granted – Appeal allowed – Appellant Qui resentenced to nine years’ imprisonment with a non-parole period of six years.

CRIMINAL LAW – Sentencing – Applicant Ng convicted of importing a border controlled drug in a commercial quantity – Sentenced to 13 years’ imprisonment with a non-parole period of nine years – Whether sentencing judge erred in rejecting evidence as to applicant Ng’s impaired mental functioning – Whether sentencing judge erred in failing to give weight to applicant Ng’s intellectual impairment – Whether sentencing judge erred in application of parity principle – Whether sentence manifestly excessive – Application for leave to appeal granted – Appeal allowed – Appellant Ng resentenced to ten years’ and six months’ imprisonment with a non-parole period of seven years – R v Verdins (2007) 16 VR 269 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Qui:	Mr M Dempsey	David Barrese & Associates
For the Applicant Ng:	Mr P J Smallwood	Lethbridges Pty Ltd
For the Respondent:	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

KAYE JA
T FORREST JA:

On 12 February 2017, the applicants, Wei Hong Qui (‘Qui’) and Boon Teck Ng (‘Ng’) each brought into Australia from Malaysia a suitcase which contained a commercial quantity of a border controlled drug, namely heroin, contrary to s 307.1 of the Criminal Code (Cth) (‘the Code’). After their arrival at Melbourne Airport, Qui and Ng passed through the Customs arrival area without collecting their suitcases. Their co-offender, Nicholas Kavvadas, who was already in Melbourne, collected the two suitcases from the luggage collection carousel. When he attended at the Customs section, the contents of the suitcases were detected.

Qui, Ng and Kavvadas were each charged on indictment with importing a border controlled drug, namely heroin, in a commercial quantity, contrary to s 307.1(1) of the Code. Pursuant to s 307.1(2), they were charged on the basis that they were reckless as to whether the contents of the relevant suitcase contained a border controlled drug.

After his arrest, Kavvadas readily made admissions as to his guilt, and he pleaded guilty…

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 Wei Hong Qui v The Queen

Details

AGLC: Wei Hong Qui v The Queen [2019] VSCA 147
Case: [2019] VSCA 147
Decision Date: 26 June 2019

CaseChat Overview and Summary

In the case of Wei Hong Qui v The Queen, the appellants, Qui and Ng, were convicted of importing a border controlled drug in a commercial quantity. Following their convictions, they were sentenced to lengthy prison terms, which they sought to appeal. The High Court of Australia was tasked with reviewing the sentences imposed on both appellants.

The primary legal issues before the Court were whether the sentences imposed demonstrated a disparity with their co-offender, and if the sentencing judges had erred in various respects. For Qui, the Court needed to determine if the sentencing judge had erred by considering that Qui knew he was part of a larger operation and that his co-offender was also a courier. In the case of Ng, the Court considered whether the sentencing judge erred in rejecting evidence regarding Ng's impaired mental functioning, failing to give weight to Ng's intellectual impairment, and misapplying the parity principle. Additionally, the Court examined whether Ng's sentence was manifestly excessive.

The Court found that the original sentences imposed on both appellants contained errors that warranted reconsideration. The Court concluded that the sentencing judge had indeed erred in the case of Qui by considering factors that were not relevant to his individual culpability. Regarding Ng, the Court found that the sentencing judge had erred in rejecting evidence of Ng's impaired mental functioning and in failing to adequately consider Ng's intellectual impairment. The Court also determined that the original sentence for Ng was manifestly excessive. As a result, the Court allowed the appeals of both appellants, setting aside their original sentences. Qui was resentenced to nine years' imprisonment with a non-parole period of six years, while Ng was resentenced to ten years' and six months' imprisonment with a non-parole period of seven years.

The Court's decision highlights the importance of considering individual circumstances and relevant mitigating factors when imposing sentences in criminal cases. The Court emphasised the need for sentencing judges to carefully weigh the evidence and ensure that sentences are proportionate and just.

Orders