R v LEUNG [2000] NSWSC 824

New South Wales Supreme Court

CITATION : R v LEUNG [2000] NSWSC 824 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70085/99 HEARING DATE(S) : 09/08/00 JUDGMENT DATE : 9 August 2000

PARTIES : REGINA v Ka Lok LEUNG JUDGMENT OF : Barr J at 1

COUNSEL : Crown: P Power Offender: I Lloyd QC SOLICITORS : Crown: SE O'Connor Offender: Hovan & Co CATCHWORDS : Criminal Law - sentencing - accessory after the fact of murder. DECISION : See paragraphs 20 and 21.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

Wednesday, 9 August 2000

70085/99 - REGINA v Ka Lok LEUNG

SENTENCE 1 HIS HONOUR: The offender Ka Lok Leung has pleaded guilty to being an accessory after the fact of the murder by Pak Lun Chan on 21 February 1999 at Marsfield of Navid Khan. 2 The offender was at the time a young man of almost twenty years, a native of Hong Kong, where his family were resident, and on his own studying in Australia. His circle of acquaintances was necessarily limited and he had no support of family or family friends such as a young man of that age might ordinarily have. 3 During the early hours of Sunday 21 February 1999 he was in the company of a friend of his, Pak Lun Chan, at Marsfield. They were playing cards and apparently had a good deal to drink. At 4.30 am they went together to a nearby service station where there was a shop that sold food. 4 Whilst they were in the shop, some conversation took place between the man in charge of the business, Navid Khan, and the two of them. He asked in a reasonable and friendly way whether they lived in the district. The offender replied, in a manner whose brusqueness was quite uncalled for, that it was none of his fucking business. He repeated the expression and Mr Khan reasonably again, I think, asked why he was being spoken to in such language. The foul words continued and Mr Khan responded in kind. 5 The behaviour of the offender was reprehensible, but it must be observed that it was not calculated to bring about the events that then happened and no part of the charge to which he has pleaded guilty comprehends that behaviour. 6 The offender left the shop after the exchange I have summarised, but Chan remained. 7 Mr Khan tried to reason with Chan and Chan responded by pulling out a loaded pistol and shooting Mr Khan in the chest. Mr Khan lived long enough to activate an alarm which brought the police quickly to the premises, but by then he was dead. 8 As soon as he shot the deceased, Chan ran from the shop. The evidence does not enable me to say where the offender was during the last seconds of Mr Khan's life, but the inference is, I think, that he was not far away and I feel sure that he did not leave the premises other than in the knowledge that his colleague had fired the weapon. Perhaps he did not know that the deceased was dead or dying. 9 The two returned to the premises at Marsfield, but some hours later went together to the offender's premises at Kingsford. I am satisfied that by that stage the offender knew that Mr Khan was dead and that his friend had shot him. 10 The offender knew that Chan wanted to lie low for as long as necessary and get away. He knew that Chan was trying to make arrangements by telephone to book travel from Sydney to other places. There is no evidence and no suggestion that the offender was actively involved in those arrangements, however, and his criminality is in harbouring Chan for a period of forty-eight hours or so by providing accommodation for him in the knowledge of the killing he had carried out and with the intention of assisting him in that way to avoid detection and, if his arrangements should prove successful, get away. 11 In fact, the arrangements were to some extent successful and Chan got as far as Tullamarine Airport, Melbourne before he was arrested and charged. 12 Chan has been diagnosed by an eminent psychiatrist as suffering from Tourette Syndrome and/or obsessive-compulsive disorder. According to the evidence of Dr Wong, persons who suffer from those disorders, or at least in the combination in which Chan suffered from them, may be prone to outbursts of violence. Why Chan shot Mr Khan is not relevant for present purposes, though what Dr Wong has said may well go some way towards explaining something which on the face of it is inexplicable. The value of the evidence in the present case is that it supports the claim by the offender to have been afraid of Chan, and I accept the submission that he had such a fear. 13 The assessment of his criminality has to take into account the fairly isolated position in which the offender found himself, his immaturity and his attitude towards his friend who was obviously a man prepared to resort, without warning, to violent conduct. Of course, that criminality does not comprehend anything that took place in the shop and there is no suggestion that the offender had any knowledge that Chan was likely to shoot Mr Khan. 14 I think that the offender's action is explained in the manner I have summarised. I think he was surprised at what had happened and put in great fear when he eventually learned that Mr Khan had died. 15 Some long time later, on 30 March 1999, the offender had not been spoken to by the police. Whether he would have avoided the attention of the police is problematical, but on that day he voluntarily handed himself in at the police station. He had with him his family, who had travelled from Hong Kong, and his solicitor, who had given him some advice. He exercised his right of silence. He was arrested and spent twenty-four days in custody before being released to bail. 16 During his period of bail, which has now gone on for more than a year, he has applied himself diligently to studies in English and general academic subjects as well as in graphic design, a subject for which he appears to have some aptitude. Those teaching him are very impressed with his progress and his attitude. 17 I am satisfied that he is sorry for having acted in the way that he did and I think that his rehabilitation is well under way. I am satisfied that the risks of his reoffending are small. 18 Mr Lloyd has submitted that the imposition of a suspended sentence would be within the range of sentencing discretion of the Court and the Crown Prosecutor has agreed with that submission. 19 It seems to me, in all the circumstances, that I should impose a suspended sentence and that is what I propose to do. 20 Ka Lok Leung, I sentence you to imprisonment for two years commencing today 9 August 2000 and expiring on 8 August 2002. I suspend the sentence and direct your release on the condition that you enter into a bond for the same period of two years. 21 The conditions of the bond will be: