R v Chun Hing LAW [2001] NSWCCA 291

Reported Decision : 122 A Crim R 542

New South Wales Court of Criminal Appeal

CITATION : R v Chun Hing LAW [2001] NSWCCA 291 FILE NUMBER(S) : CCA 60152/99 HEARING DATE(S) : 27 July 2001 JUDGMENT DATE : 27 July 2001

PARTIES : Chun Hing LAW (Appellant) Regina (Respondent) JUDGMENT OF : Meagher JA at 1, 29; Kirby J at 30; Newman AJ at 2

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70022/97 LOWER COURT JUDICIAL Ireland J OFFICER :

COUNSEL : M. Paish (Appellant) R. Sutherland (Crown) SOLICITORS : Naomi Hamilton Lawyers (Appellant) DPP (C'wealth) CATCHWORDS : Criminal law - Evidence - Accused not giving evidence - Right to silence - Distinction between comment and direction by trial judge - Circumstances where comment permissible - Contravention of Evidence Act 1995 (NSW), s 20(2). LEGISLATION CITED : Customs Act 1901 Evidence Act 1995 Weissensteiner v The Queen (1993) 178 CLR 217 CASES CITED: RPS v The Queen (2000) HCA 3 Azzopardi v The Queen (2001) HCA 25 DECISION : 1. Appeal upheld; 2. Conviction and sentence quashed; 3. Appellant to have new trial at a date and place to be fixed

IN THE COURT OF CRIMINAL APPEAL

60152/99

MEAGHER JA KIRBY J NEWMAN AJ

Friday, 27 July 2001

R v Chun Hing LAW

JUDGMENT 1 MEAGHER JA: I will ask Newman AJ to give the first judgment. 2 NEWMAN AJ: This is an appeal against a conviction for conspiring to import not less than a commercial quantity of heroin into Australia contrary to s 233B of the Customs Act 1901. Accompanying the appeal is an application for leave to appeal against the life sentence passed on the appellant following his conviction. 3 A number of grounds of appeal were taken by the appellant. However, in view of the conclusion I have reached in respect of one of these grounds, it is unnecessary for me to deal with those other grounds. The ground I refer to his Ground 4, which is stated as follow: "The trial miscarried by reason of the trial judge's comments on the failure of the accused to give evidence in the circumstances of the trial." 4 Because of the conclusion I have reached as to the fate of this ground, it is also not essential for me to recount in detail the case brought by the Crown against the appellant, albeit, let me observe, a very strong case. It will suffice for the purpose of these reasons to summarise the Crown case in a pithy form. 5 The Crown case alleged that the appellant was a co-conspirator in five importations of heroin into Australia. Those importations were alleged to have taken place first in January 1994, second in July 1994, third in August 1994, fourth in November 1994 and the fifth one in January of 1995. The other co-conspirators in the operation involving the importations were alleged to be, amongst others, one Alan Tam Yu Wah (whom I shall hereafter refer to as Tam); Mao Huang Tung (whom I shall refer to as Mao); Brian Kuan (whom I shall refer to as Brian); Kevin Ho (whom I shall refer to as Ho); Yu Tit Hoi (whom I shall refer to as Hoi); and a Joseph Law Ling (whom I shall refer to as Ling). 6 Prior to the trial of the appellant all of the co-conspirators, with the exception of Joseph Ling Law whose whereabouts were at the time of the appellant's trial and, as I understand from the Crown today, still are unknown, were indicted for trial on a variety of charges relating to the alleged importation. After a series of forensic manoeuvres Mao, Tam and Yu ultimately pleaded guilty and were duly sentenced. Ho, who seemed to wish to defend the matter, also ultimately pleaded guilty and was also sentenced. He had not, as I understand the matter, been finally dealt with at the time of the appellant's trial. Kuan was found guilty by a jury following a plea of not guilty and he too was, accordingly, sentenced. 7 It was the Crown case that the first four importations evaded the attention of the authorities and were thus successful. It was the interception of the fifth importation which led to the trial of the appellant and his alleged co-conspirators. 8 The means by which the importations were arranged were, on the Crown case, strikingly similar. In each importation crates containing oriental objects d'art were airfreighted into this country. Not only did the crates contain the objects d'art but also heroin secreted within the legitimate cargo. The crates on each occasion were consigned to a number of addresses in inner suburban Sydney, then transferred to another address for repacking (called a "safe house" in evidence) and then the heroin was distributed into the community. 9 To carry out the conspiracy a number of real estate leases were entered into by the conspirators and various mobile phones and pagers were hired. Funds were transferred between this country and Hong Kong and other places. 10 As against the appellant it was alleged that he leased the premises used for the first delivery of the contraband for the second, third and fourth importations. He was not in Australia when the fifth consignment entered this country because of legal problems he had encountered in Hong Kong where he was occasionally resident. I say "occasionally" because his residential address was in Toronto, Canada. 11 The Crown case also alleged that the appellant took part in the transfer of funds between Australia and Hong Kong as one of the facets of the conspiracy. 12 As I have already observed, the Crown case mounted against the appellant can be correctly described as being a strong one. Not only was the appellant implicated by documentation and the evidence of observation which implicated him in the conspiracy but also one of his alleged co-conspirators, Tam, gave evidence in the trial which strongly implicated him. Furthermore, evidence was led which was probative of the appellant lying to police on his apprehension, which could give rise to an inference of consciousness of guilt. 13 In the face of this very strong Crown case the appellant did not give evidence. It was a reference to the appellant's failure to give evidence in the learned trial judge's summing-up which founds Ground 4 of the appeal. 14 The impugned passages in the summing-up are as follows (appeal book p 74):