Regina v Chi Wah Ho [1999] NSWCCA 67

New South Wales Court of Criminal Appeal CITATION : Regina v Chi Wah Ho [1999] NSWCCA 67 FILE NUMBER(S) : CCA 60491/98 HEARING DATE(S) : 9 April 1999 JUDGMENT DATE : 9 April 1999

PARTIES : Regina (Respondent) Chi Wah Ho (Appellant) JUDGMENT OF : Stein JA at 29; Studdert J at 1; Smart AJ at 30

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0949 LOWER COURT JUDICIAL OFFICER : Gibson DCJ

COUNSEL : M. Ierace/Ms Higgins (Crown) G.J. Stanton (Appellant) SOLICITORS : Commonwealth Director of Public Prosecutions (Crown) Jack Rigg Solicitors CATCHWORDS : CRIMINAL LAW; sentencing; possession of commercial quantity of heroin; 17 kgs of pure heroin involved; sentence of 14 years with non parole period of 9 years within available range. ACTS CITED : Customs Act, ss 233B, 235(2) R v Winchester (1992) 58 A Crim R 345 CASES CITED: R v Bernier (unreported, NSWCCA, 19 May 1998) R v Ferrer-Esis (1991) 55 A Crim R 231 DECISION : Dismissed

IN THE COURT OF CRIMINAL APPEAL 60491/98

STEIN JA STUDDERT J SMART A-J

Friday 9 April 1999

REGINA v CHI WAH HO

JUDGMENT

1 STUDDERT J: The applicant, Chi Wah Ho, seeks leave to appeal against a sentence imposed upon him by his Honour Judge Gibson QC on 14 August 1998. The applicant pleaded guilty in the District Court to a charge of having in his possession without reasonable excuse not less than a commercial quantity of heroin, contrary to s 233B of the Customs Act. The commercial quantity under the statute was 1.5 kg and the quantity of heroin involved in this case was approximately 17 kg of pure heroin. 2 The applicant was sentenced to a term of imprisonment of fourteen years with a non parole period of nine years. By reason of the quantity of heroin involved, the maximum penalty applicable under s 235(2) of the Customs Act was imprisonment for life. 3 The facts were not in dispute. A statement of facts was tendered before the sentencing judge. It is unnecessary to record that statement in its entirety but for present purposes I summarise briefly from its contents: 4 The applicant is a Hong Kong national who entered Australia as a visitor on 17 July 1997 when he booked into a Sydney hotel. At about the same time as the applicant arrived the heroin to which the charge relates was imported into Australia concealed in marble furniture, and that furniture, after it was cleared through quarantine procedures, was delivered to premises at 45 Flavelle Street, Concord on 22 July 1997. The consignee of the furniture was one Ang Bok Toh and he made the necessary customs arrangements and he also arranged for and took delivery of the marble furniture at the Concord address. Having done so, Toh left the country. 5 The premises at Concord were kept under observation and so too was the applicant. He made three trips to those premises to which the furniture had been delivered. On the first visit, on 23 July 1997, which was at night, he was observed using a nearby public telephone. On the second visit on the same night he took a purple sports bag to the premises where he received calls by mobile phone. On the third visit, which was on the following day, 24 July, the applicant removed the furniture from the crates in which it had been delivered and broke it up. When police officers later entered the premises they found the purple sports bag the applicant had taken there in a cupboard with two other plastic bags and all bags were found to contain heroin. Those contents were removed by police and flour and a small quantity of heroin were substituted. Eventually the bags were collected by some person other than the applicant and that person was in due course arrested. 6 Thereafter the applicant was arrested in his hotel room and $10,000 in cash was found in his jacket. In addition there were found in his room a crowbar, a hammer, a screwdriver and pliers. 7 The applicant gave no evidence before the sentencing judge and indeed the only evidence presented was the statement of facts upon which I have drawn for the above outline and documentary evidence including a record of interview made following the applicant's arrest and other documents tendered by the applicant as going to show that he had a legitimate business in Hong Kong. The judge accepted this to be so. 8 It was submitted on the applicant's behalf before the sentencing judge that the applicant came to Sydney to do business unassociated with drug dealing and the sentencing judge found that unrelated activity formed part of the applicant's reasons for visiting this city. 9 The judge rejected a submission that the applicant should be treated as a mere courier and sentenced him on the basis that he was "somewhere between a courier and a warehouser". 10 Written submissions prepared by Mr Lloyd of Queen's Counsel were furnished to the Court. Mr Stanton appeared for the applicant on the hearing and relies upon those written submissions which he supplemented by oral submissions. I propose to address these submissions, leaving Ground 1 until last. Ground 2: The sentencing judge erred in sentencing the appellant on the basis he was "somewhere between a courier and a warehouser". 11 In my opinion that submission is to be rejected. I have referred earlier to the record of interview. In the course of that interview the applicant gave an account of his involvement with the drugs discovered which I regard as fanciful. 12 The applicant told the police that he came to Australia to buy toys for his business and to visit his girlfriend, intending to stay only for one week. A man that he knew by the name of Wong (he did not know the full name) had asked him before coming to Australia to ring him because he might need the applicant's help. The applicant said that he rang Wong and was asked to postpone his departure from Australia so as to unpack some furniture. He said that Wong arranged for a friend to visit him and to lend him the $10,000 which the police later found. Not only did the friend lend him the $10,000 but he also presented him with the sports bag containing the crowbar, the hammer, the screwdriver and the pliers suitable for the job of dismantling the furniture. This friend also gave the applicant the keys to the premises and told him where the premises at Concord were and where the furniture was to be found. He was told, he said, that there would be two mobile phones at the premises, both of which he should switch on. The applicant accounted for his use of the public telephone by saying that he was using it to ring to see if he had the right address. He said that when he returned to the house one of the mobile phones rang and Wong told him not to open the boxes that night as the noise might disturb the neighbours. He said that when he did open the boxes and remove the furniture Wong told him on the mobile phone to break the furniture because he had had a dispute with his partner. The applicant said he did what he was told and when he did so he discovered bags of heroin inside. He wrapped those bags in Gladwrap, weighed them on scales which he found in the premises and placed them in two plastic bags and the sports bag, leaving the drugs so contained at the premises but departing for his hotel with the tools. He weighed the drugs because Wong might say that the quantity had been less than it should be. The applicant said that if he had run away after he smashed the first piece of furniture and discovered the heroin, he knew that Mr Wong would not let him go easily, that Wong was a man of influence and could use the earlier supply of the cash to threaten the applicant. 13 As I have already observed, I regard that account as being fanciful and in my opinion the objective evidence to be gleaned from the statement of facts that the sentencing judge had warranted the approach that he took. The judge reasoned from the part that the applicant played in breaking the furniture and the packing that this evidenced an involvement larger than that of mere courier, and the way in which the judge classified the applicant was, in my opinion, a finding that was open to him. Ground 3: That the sentencing judge erred in attaching significance to the fact that the appellant's female companion was his accomplice on drug charges for which he had been sentenced previously in Hong Kong. 14 When the applicant's room was searched by the police on 24 July 1997, not only was the applicant found there but so too was his friend Chau Mui Lee. Both the applicant and Chau Lee were found on inquiry of the authorities in Hong Kong to have been convicted there on counts of possessing a dangerous drug for unlawful trafficking. Chau Lee was not arrested in Australia in 1997 and was allowed to leave the country. 15 What prompted this challenge to the sentence was the following observation in the remarks on sentence: "It is not without significance that the woman who accompanied him to Australia was also the woman who was involved in the charges and as an accomplice in the two charges in which he was convicted in Hong Kong." 16 The evidence before the judge did not suffice to establish criminal involvement by Chau Lee in the offence for which the applicant was to be sentenced. However it is not apparent from the remarks on sentence that the judge regarded the association of the applicant with Chau Lee as being an aggravating circumstance, and indeed it is difficult to see how it could have been so regarded. I am not persuaded that the observation concerning Chau Lee in the remarks on sentence is indicative of error in the sentence subsequently expressed. Ground 4: The sentencing judge erred in placing insufficient weight on the appellant's plea of guilty and in saying 'The Crown case seems to be an overwhelming one'. 17 The judge expressly said that he took into consideration the circumstance that the applicant pleaded guilty at the first occasion before the District Court. It was plainly correct that he should do so: see R v Winchester (1992) 58 A Crim R 345. 18 The applicant nevertheless contends that there should have been a greater discount than is reflected in the sentence ultimately arrived at for the plea of guilty and to reflect the fact that the applicant by his plea gave up the chance of relying upon a defence of duress. 19 The remarks on sentence do not disclose express error in relation to any discount nor do they disclose the extent of the discount allowed, but the fact of the plea is a circumstance which his Honour was required to bring into account and which this Court must regard in addressing Ground 1, to a consideration of which I shall shortly turn. Ground 5: The sentencing judge was in error in holding that the applicant committed the offence for greed. 20 His Honour did make a finding to this effect, saying: "It was an offence committed for greed and there is no suggestion that he was feeding his own habit." 21 I do not consider that observation to have been erroneous. There was indeed no suggestion that the applicant was motivated by a need to meet his own addiction to heroin. There was no evidence that that was so. There was evidence that the applicant had been provided with a sum of money, namely $10,000, and it seems to me that the judge was justified, on the evidence placed before him, to reject the assertion that that sum was a loan and to find that the crime was committed for gain. Ground 6: The judge erred in holding that the applicant came to Australia 'to prey upon its citizens by being involved in the distribution and sale of heroin' and that his toy business was only 'part of his reasons' for being in Australia. 22 The remarks upon which this ground is based are to be found at p 3 of the remarks on sentence in the following passage: "The amount of drug that he had in his possession was ten times the limit for a large commercial quantity and the maximum sentence is life. People who come to this country to prey upon its citizens by being involved in the distribution and sale of heroin must expect that courts in this State will pass condign sentences on them not only to deter them but also any like-minded person." 23 The quantity of heroin which was discovered was a large quantity and the comments that the judge made in the above passage were justified and they were appropriate to spell out the principle of general deterrence. It is true that the judge accepted that the applicant's motives in coming to Australia were mixed and that part of his reasons for being here was to do business not associated with drug trafficking. It does not follow that the remark prompting this ground of challenge was an inappropriate one. I am not persuaded that its expression reflects any error of sentencing approach. Ground 1: That the sentence was manifestly excessive and wrong in principle. 24 In support of the submission that the sentence was wrong in principle, the applicant relies upon the matters addressed in Grounds 2-6 which I have already considered. This therefore leaves for consideration whether the sentence was manifestly excessive. 25 As I observed earlier, the applicant gave no evidence. He had prior convictions in Hong Kong, to which I have referred. He will be required to serve his sentence in a foreign country with the added hardship that that will entail. There was the need also to take into account, as his Honour said that he did, that the applicant pleaded guilty. Little else of relevance emerged other than the objective features of the case illustrating the gravity of the offence. 26 In the unreported decision of this court in Bernier (19 May 1998), the sentence imposed in a case involving a little over two kilograms of cocaine was one of nine years with a non parole period of five and a half years. Offences involving cocaine and heroin are to be regarded for sentencing purposes as being of equal seriousness (see R v Ferrer-Esis (1991) 55 A Crim R 231 at 236-237). Bernier was a case that had exceptional subjective features not present here. In that case consideration was given to the appropriate range of sentence in cases involving the lower end of the commercial range. The court said (at p 9) sentences of the order of eight and a half to eleven years should be seen as appropriate for the importation by couriers of drugs in quantities at the lower end of the commercial range and noted that the norm for non parole periods was in the range of about 60% to 66.66%. 27 Bernier was, of course, a case involving a quantity at the lower end of the commercial range and the present case is not. This case involves a commercial quantity which is some eleven times the bottom of the range. 28 In my opinion this sentence of fourteen years with a non parole period of nine years was within the available range and, indeed, it was a sentence which was altogether appropriate. Because it was a lengthy sentence, I would grant leave to appeal but in my opinion the appeal should be dismissed. 29 STEIN JA: I agree. 30 SMART A-J: I also agree. 31 STEIN JA: The order of the Court is: leave to appeal granted, appeal dismissed. **********