Regina v Ng [2001] NSWCCA 305

New South Wales Court of Criminal Appeal

CITATION : Regina v Ng [2001] NSWCCA 305 FILE NUMBER(S) : CCA 60826/99 HEARING DATE(S) : 12 July 2001 JUDGMENT DATE : 12 July 2001

PARTIES : Regina v Kwok Hung Ng JUDGMENT OF : Hodgson JA at 1,17; Mathews AJA at 2; Studdert J at 18

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0691 LOWER COURT JUDICIAL Kinchington DCJ OFFICER :

COUNSEL : David Staehli (Crown) In Person (Appellant) SOLICITORS : Commonwealth DPP (Crown) In Person (Appellant)

LEGISLATION CITED : Customs Act 1901 (Cth), s233B DECISION : Appeal dismissed

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IN THE COURT OF

CRIMINAL APPEAL 60826/99

HODGSON JA MATHEWS AJA STUDDERT J

THURSDAY 12 JULY 2001 REGINA v KWOK HUNG NG JUDGMENT 1 HODGSON JA: I will ask Mathews AJA to give the first judgment. 2 MATHEWS AJA: This is an application for leave to appeal against the severity of a sentence imposed in the District Court following the applicant's plea of guilty to a charge under s 233B(1)(c) of the Customs Act 1901 (Cth), that he was knowingly concerned in the importation into Australia of prohibited imports, to wit narcotic goods consisting of a quantity of heroin being not less than the commercial quantity applicable to heroin. 3 The commercial quantity applicable to heroin is 1.5 kilograms. The weight of the total substance involved in the importation in this case was 93.567 kilograms, with a net weight of slightly over 69 kilograms of pure heroin. The street value was estimated at between $80 million and $95 million. At the time of sentence it was the fourth largest known importation of heroin into Australia. 4 The maximum sentence for this offence is life imprisonment. On 17 December 1999 the applicant was sentenced to life imprisonment with a non-parole period of eighteen-and-a-half years to date from 17 July 1998, when he first went into custody. 5 The heroin in question was concealed within three commercial baking ovens which arrived with a number of other ovens into Australia on 7 July 1998 by ship from China. The drugs were detected by Customs officers as a result of two associates of the applicant going to the Federal Police and expressing their concern as to the legitimacy of the applicant's operations. These associates, Mr Chung and Ms Nguyen, had been recruited, according to the Crown, earlier that year, 1998, to assist the applicant in receiving and distributing the ovens upon the basis that this was to be a legitimate business enterprise. The applicant said in court today that he did not recruit Ms Nguyen, but rather she asked to work with him on this enterprise. In my view, that does not affect the situation in any significant way. 6 On 17 July 1998 the crates containing at least some of the heroin were delivered to an address in Wentworthville, being a house which Ms Nguyen had earlier rented at the applicant's request with money provided by him. The evidence shows that the applicant was extremely nervous of the possibility of police surveillance and adopted various devices to detect whether he was being followed. That evening he realised that he was in fact under surveillance and he tried to flee. However, he was apprehended by the police. Subsequent searches showed drivers' licences and other forms of identification in two other names, all bearing the applicant's photograph. 7 The evidence showed that the applicant arrived in Australia in November 1997. In February 1998 Mr Chung and Ms Nguyen started to work with him. It can thus be inferred that he had been involved in planning the importation for a considerable period. 8 The applicant was born in June 1967 and was thirty-two years old at the time of his sentence. He had two prior convictions, one in Hong Kong for theft and one in Holland for importing heroin. In relation to the latter, he was sentenced to eighteen months imprisonment, so one must infer it was a much lesser offence than this one. 9 He was born and raised in Hong Kong, where his parents still live, but has spent much of his adult life in Thailand, where his wife and three children still live.