R (Cth) v Jia Li He (No 1) [2021] NSWDC 450

District Court New South Wales

Medium Neutral Citation: R (Cth) v Jia Li He (No 1) [2021] NSWDC 450 Hearing dates: 5-9 July 2021 Decision date: 09 July 2021 Jurisdiction: Criminal Before: Neilson DCJ Decision: Find that the Offender was the principal in the criminal enterprise. Catchwords: Crime – Sentence – Cth Offence – Tobacco products in possession, knowing they were imported with intent to defraud the revenue – Contested Facts hearing – Whether offender the principal in a criminal enterprise or merely a worker for another person involved in the enterprise. Legislation Cited: Customs Act 1901 Cases Cited: R v Murray (1987) 11 NSWLR 12 Category: Principal judgment Parties: Crown (Cth) – Regina Offender – Jia Li He Representation: Counsel: Crown (Cth) – A. McGrath Offender – G. Smith SC Solicitors: Crown (Cth) – CDPP Offender – Ren Zhou Lawyers File Number(s): 2019/00111177 Publication restriction: Nil.

Judgment 1. HIS HONOUR: Jia Li He has pleaded guilty to a charge that on or about 9 April 2019 at Macquarie Park in this State he had goods in his possession, being tobacco products, knowing that the goods were imported with the intent to defraud the revenue. That is an offence contrary to s 233BABAD(2) of the Customs Act 1901 of the Commonwealth of Australia.

Overview 1. The parties have only been able to reach agreement on certain facts. The statement of agreed facts is exhibit F1 before me. It has become my responsibility to determine certain other, important facts or to fail to do so. The statement of agreed facts contains this overview: "On 9 April 2019, following a six month covert investigation, the Australian Border Force (ABF) executed search warrants on three Kennards Self-Storage storage units in Sydney and discovered a total of 1,877,420 imported cigarette sticks and a total of 691.33 kilograms of imported loose leaf tobacco (aka 'chop') (together 'the tobacco products'). Over the preceding months, the tobacco products had been imported into Australia from China, Japan and the Philippines, without the required permits, using the postal and cargo systems, and disguised as containing other products to avoid detection (e.g. children's books and toys). The tobacco products had been imported in this manner with the intention to defraud the Commonwealth revenue. The total amount of tobacco excise that was evaded in relation to the tobacco products was $2,272,192.36. Mr He jointly possessed the tobacco products that were seized from the four storage units with Ms Bishan Su (born [redacted] and an Australian citizen) ('Ms Su) and Mr Qiaofeng 'David' Wu ('Mr Wu') (born [redacted] and an unlawful alien in Australia at the time of the offence). Mr He knew that the tobacco products that were seized from the storage units had been imported with the intention to defraud the Commonwealth revenue. Mr He knew that Ms Su and Mr Wu had collected the tobacco products at the time they were imported into Australia and had taken them to storage units for storage. Mr He also knew that Ms Su and Mr Wu had leased [sic] approximately 65 individual Post Office Boxes across Sydney in order to receive tobacco products that were imported by post. Mr He also knew that Ms Su and Mr Wu had leased [sic] the Kennards Self-Storage units at Macquarie Park where some of the tobacco products were stored." 1. Like many Chinese in Australia Mr He had a English praenomen which was "Ricky". I shall refer hereafter to Mr He as the offender for two reasons. Firstly, I have been told that his name in his native Cantonese language is pronounced in the same way as one produces the last of the three names in the fictitious title Juda ben Hur. So much is the case that in proceedings before my colleague Noman DCJ the offender is referred to as Mr Herr, as if he were a German gentleman. The other reason for not using Mr He's surname is that it is spelt the same and sounded the same according to the pronunciation preferred by the offender as the third person singular masculine subjective pronoun. That can lead to confusion, hence my referring to him as the offender. 2. Put shortly the Crown's position is that the offender was the principal in the scheme that was the subject of the covert surveillance by the ABF over the period of six months referred to in the first paragraph of the overview which I have quoted. On the other hand the offender's position is that he was not the principal in this scheme but the principal was Ms Su. It has fallen upon me, accordingly, to find primary facts. 3. The Crown case is largely, and one could say almost entirely, based upon the evidence of Ms Su. There is however some documentary evidence and some agreed facts which do assist in the fact finding exercise. In the defence case the offender himself gave evidence.