REGINA v HUANG [2000] NSWCCA 238

Reported Decision : [2000] 113 A Crim R 386

New South Wales Court of Criminal Appeal

CITATION : REGINA v HUANG [2000] NSWCCA 238 FILE NUMBER(S) : CCA 60116/99 HEARING DATE(S) : 03/12/1999 09/06/2000 JUDGMENT DATE : 9 June 2000

Regina

PARTIES : v

Chin Ming Huang JUDGMENT OF : Spigelman CJ at 1; Newman J at 23; Adams J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0053 LOWER COURT JUDICIAL English DCJ OFFICER :

COUNSEL : G Farmer (Crown) T Bailey (Appellant) SOLICITORS : M Poberezny (Commonwealth DPP) Hovan & Co (Appellant)

LEGISLATION CITED : Customs Act 1901 Queen v Shore (1993) 66 A Crim R 37 CASES CITED: Regina v Wong & Leung [1999] NSWCCA 420 Ferrer-Esis (1991) 55 A Crim R 231 DECISION : Grant leave to appeal; Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60116/99

SPIGELMAN CJ NEWMAN J ADAMS J

FRIDAY 9 JUNE 2000

REGINA v CHIN MING HUANG

JUDGMENT

1 SPIGELMAN CJ: I invite Justice Adams to deliver the first judgment. 2 ADAMS J: On 11 March 1999 the appellant, Chin Ming Huang, pleaded guilty to the following offence - "For that he between 21 September 1998 and 22 September 1998 at Sydney and elsewhere in the State of New South Wales did without reasonable excuse attempt to obtain possession of a prohibited import to which s 233B of the Customs Act 1901 applied, namely narcotic goods consisting of a quantity of heroin being not less than a trafficable quantity applicable to heroin which was imported into Australia in contravention of the Act." 3 The appellant was sentenced to imprisonment for eight years, commencing 22 September 1998, subject to an order that he be released after serving five years, namely on 21 September 2003, to be of good behaviour during the balance of his sentence and to appear to receive sentence if called upon to do so at any time in respect of any breach during that period. The appellant seeks leave to appeal in respect of this sentence. 4 The circumstances of the case were these. The applicant, who is a citizen of the Republic of China (Taiwan), resident in Hong Kong, had made a number of short visits to Australia, during one of which he had rented premises in Hurstville, a suburb of Sydney for a few months. On 21 September 1998, one Chung King Lim, a Singaporean national, arrived at Brisbane on a flight from Bali. He was travelling on a false passport. He was detained by Customs officers and, on being searched, something over a kilo of a heroin admixture was found divided between pouches inserted in each of his shoes. The admixture had an average purity of almost 78 per cent. The quantity of pure heroin was 809.5 grams. By virtue of Schedule 6 to the Customs Act 1901, this was a trafficable quantity the attempted possession of which attracts a maximum penalty of a fine not exceeding $100,000, or imprisonment for a period not exceeding 25 years or both: s 235(2)(d)(i) Customs Act 1901. 5 Acting by arrangement with the Australian Federal Police, Lim telephoned a person named David in Bangkok, Thailand, to confirm his arrival in Australia, and was instructed to travel to Sydney as previously arranged. Later that day, Lim, accompanied by Federal Police officers flew to Sydney, together with controlled delivery sample consisting of 20.8 grams of bulk heroin or 16.3 grams pure heroin. That evening Lim, together with the police, occupied a room of a hotel in Pitt Street, Sydney. Lim telephoned David and told him where he was staying, giving the room number. About half an hour later, he received a call from David, who told him that a person would be arriving at the hotel to collect the package. A little over an hour later, Lim received a telephone call from the applicant who said to him he would be at the hotel in about half an hour. Shortly before this time was up, the applicant entered the hotel and went to Lim's room. Lim showed the applicant the carry bag containing the control delivery sample and the applicant asked how much it was. Lim told him, "One kilo, 1 point something", and then added, "Now you give me the money". The applicant said that he did not have the money and, in effect, that he had received David's call "too late". When Lim stated that he would not release the package until paid, the applicant said he would return with the money on the following day. The applicant gave Lim a contact name "Sam", and a mobile telephone number. The identity of the subscriber to the mobile service is still unknown. The applicant was followed as he left the hotel. He was seen making several telephone calls and driving to various places in the city. A little over two hours after leaving the hotel, the applicant again contacted Lim and told him that he intended to return to pick up the package. A short time later, the applicant again came to Lim's room. He handed him $3,000 in Australian currency and $5,000 Singapore. Lim handed him the carry bag containing the controlled sample and the applicant left the hotel. He was followed. He re-entered his vehicle and then drove to a number of locations in Sydney, not leaving his vehicle however. About twenty-five minutes after he left the hotel, he threw the bag into which he had placed the heroin out of the driver's window as he negotiated a turn. As he did this, the bag caught against the indicator lever and tore, spilling a quantity of powder over the front seats and himself. The car mounted the curb and collided with a street pole. White powder was spread across the driveway. The applicant was arrested shortly after by Federal agents, who were maintaining surveillance at the time of the collision. The minimum estimated retail or street value of the imported heroin is about $1.4 million based upon an assumed purity level of about 15 per cent. 6 The applicant gave evidence at the sentencing proceedings to the effect that he sustained substantial gambling losses and that a man named Chen Wen, whom he had met at the casino, lent him $10,000 which he lost and, when he approached him again, agreed to give him more money but in return required the applicant to collect the heroin from Lim. He identified this man as one of the persons who the police had seen him meet during their surveillance on him after his initial contact with Lim. He denied having any contact with any person called David, despite what he had said to Lim on the telephone. The money which he gave to Lim had been given to him by Mr Chen. He admitted that he expected to collect the amount of powder specified as "one kilo one point something". He said that he threw the package of heroin out of the car because he realised that someone was following him and he was terrified. The applicant also gave evidence that, at the time of the offence, he was in serious financial straits, unable even to pay his rent. 7 The Crown Prosecutor cross-examined the applicant to suggest that his involvement in this offence did not occur as he had described and that his earlier visits to Australia were not, as he maintained, in an attempt to start a legitimate business, but were in fact connected with this importation. Her Honour rightly, in my view, characterised the applicant's evidence about his activities whilst in Australia as "totally unsatisfactory" but said that she could not be satisfied beyond reasonable doubt that his trips were other than as suggested by him. 8 Her Honour did not make a specific finding concerning the applicant's account of how he was recruited although she found he expected to receive $10,000 for his part. I do not see a sufficient evidentiary basis for concluding that this was the sum he had been promised or expected. He claimed to Mr Taylor, a clinical psychologist who had assessed him and whose report was tendered in the proceedings, that he was offered "a few thousand dollars". The Crown Prosecutor did not cross-examine the applicant to suggest this was not the fact. Her Honour, therefore, overstated somewhat the extent of the advantage he was to receive from the crime. However, in my view, this error does not materially affect the appropriate sentence. 9 Her Honour considered that it was appropriate to deal with the applicant as a courier. In the Queen v Shore (1993) 66 A Crim R 37 at 43, Badgery-Parker J (with whom Mahoney JA and Hunt CJ at CL agreed) said - "The task is not discharged by the attachment of labels: A was a principal, B was a mere courier, C was something else. It is necessary in every case to look at what precisely the evidence shows to have been the criminal conduct constituting the offence for which the particular person is to be sentenced. Subject to the principles established in De Simoni (1981) 147 CLR 303; 5 A Crim R 329, it is appropriate for the sentencing judge to attempt to place the criminal conduct in its context because it is only in its context that its true gravity can be assessed. There is a significant difference between the criminality of the person who does no more than physically transport the drug from one country to another and the criminality of the person who organises that transportation. The person who recruits the courier and equips him or her for the task is operating at a greater level of criminality than the courier himself or herself. So too is the person whose function in the overall scheme is to meet the courier at his or her destination, take delivery of the drug and pass it on to the local buyer or distributor. When the criminality of the person who organises the transaction in the country of origin is vested in the same person who takes delivery in this country and negotiates with distributors here, the gap between that person's criminality and that of the 'mere courier' is obvious and substantial."