Chung v The Queen S162/2001 [2002] HCATrans 69 (5 March 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S161 of 2001

B e t w e e n -

FAN PO CHONG & LI KAI KONG

Applicants

and

THE QUEEN

Respondent

Office of the Registry

Sydney No S162 of 2001

B e t w e e n -

TAT SANG CHUNG

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GLEESON CJ

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 MARCH 2002, AT 10.42 AM

Copyright in the High Court of Australia

__________________

MR P.S. HASTINGS, QC: May it please your Honours, I appear with my learned friend, MR S.S. HANLEY, in both applications for the applicants. (instructed by Hardinlaw Lawyers)

MR D.J. FAGAN, SC: May it please the Court, I appear with my learned friend, MR G.J. BELLEW, for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

GLEESON CJ: Yes, Mr Hastings.

MR HASTINGS: As your Honours would be aware, the Court has had occasion in recent times to consider in other matters issues arising from the Court's construction of sections 233B and 235 of the Customs Act in the light of the decisions in Kingswell and Meaton. In Cheng the Court was concerned with the means by which the question of the knowledge of the accused of the quantity of the drug involved would be determined, the argument being - - -

GLEESON CJ: What is the standard form of direction that is given, Mr Hastings, in cases in which you have appeared for the prosecution as to what has to be established relating to the knowledge of the nature of the substance that is being imported?

MR HASTINGS: Your Honour, notwithstanding it may be a standard direction, it may not necessarily be correct.

GLEESON CJ: But just remind me what it is. I have seen it many times but I cannot now remember precisely what it is.

MR HASTINGS: There are said to be three ingredients.

GLEESON CJ: Is it that the accused has to know that it is a prohibited drug, not whether it is cocaine - you cannot defend yourself against a charge of being knowingly concerned in the importation of heroin by saying you thought it was cocaine, I hope.

MR HASTINGS: Your Honour, that is the direction at the moment and that is the issue in essence because in this case the accused wanted to raise the question of their knowledge of the nature of the drug. In Cheng the Court, your Honour will remember, looked at the question of the issue of knowledge of the quantity of the drug, and your Honour was part of a majority that came to the view that that was a subjective circumstance to be determined by the sentencing judge.

GLEESON CJ: If you could satisfy somebody that you thought it was cocaine and it was in fact heroin, you could not be charged with being knowingly concerned in an importation of cocaine because there was no such importation and, on your theory, you could not be charged with being knowingly concerned in the importation of heroin because you thought it was cocaine.

MR HASTINGS: Yes, your Honour, and the problem seems to be that because of the way in which the charges are now framed in the light of Kingswell, which is based on the premise that there is one offence for each of the paragraphs in section 233B(1), the difficulty facing someone in this position of being charged with knowingly concerned in the importation of heroin we say is that the Crown should prove that the accused had knowledge of the nature of the importation as to its - - -

GLEESON CJ: Yes, but what do you mean by "nature"?

MR HASTINGS: The characteristics which give the importation its essential quality, which in this case includes the particular drug involved. The problem which faces the applicants in this case is that they do not put in issue their physical involvement in the importation but do put in issue their knowledge of the drug being imported. They say - and I am not familiar with the facts - there is some basis for their claim from the telephone intercept material that they had reason to believe that what they were assisting was a quantity of cannabis being imported. It puts them in the impossible position when it comes to considering a plea which they would otherwise be inclined to do because they feel disinclined to plead guilty to being knowingly concerned in an importation of heroin when they say they had no knowledge that the importation involved heroin. Really that in the end is - - -

GLEESON CJ: They thought it was a prohibited drug of a different kind?

MR HASTINGS: Yes, and that could make a very significant difference. In this case the amount was 400 kilograms but in a theoretical sense, if the amount, for example, were 40 kilograms, to think that the quantity was 40 kilograms of heroin would accept an importation being in the commercial quantity - because the commercial quantity of heroin is something like two kilograms - whereas if one thought it was cannabis that one was being concerned with, to know that it was 40 kilograms of cannabis would not be a commercial quantity. So that one's state of mind would be significant in terms of the nature of the offence which one was knowingly joining.

HAYNE J: But assume that any of these arguments had legs which got them to the barrier. Why should we take it now? Why should we take it at an interlocutory stage?

MR HASTINGS: Well, your Honour, because if the law permitted, the applicants would be inclined and certainly be advised to plead guilty. A trial would be avoided and they would get the benefits which flow from a plea of guilty which they will otherwise be denied.

GLEESON CJ: But what is their legal complaint? The indictment is not demurrable, is it?

MR HASTINGS: No. There was an application for a stay and there was a bit of a problem in the Court of Criminal Appeal because the court seemed to misconstrue the basis of the application made to the trial judge, but there was an application for a stay on the basis that it was unfair to proceed in the light of the indictment in fact.

GLEESON CJ: But if this argument that you want to push is right, then they have a defence to the indictment. They have a defence to the only charge that is being laid against them.

MR HASTINGS: Except that in the course of his judgment the trial judge indicated that he would not direct the jury that knowledge of the nature of the drug was an element of the offence.

HAYNE J: If your argument is right, then that is corrected on appeal.

MR HASTINGS: Except, your Honour, if it is wrong, we submit it would be more practical to correct it now, then there would not have to be a trial at the community's expense and the accused would have the advantage of being able to plead guilty and get a significant discount which would be appropriate to that course.

GLEESON CJ: If that argument is correct, it would have a lot of significant consequences in practice for other cases. Every time somebody could come to this Court and say, "We've got an argument which if correct means that the standard form of direction that trial judges give is wrong. We want to run that argument before this Court before we go to trial."

MR HASTINGS: On the assumption that it involved a matter of sufficient importance and would be appropriate to be dealt with at this level, which would not always be the case. Your Honours might recall that in Cheng a similar issue arose in that an attempt had been made at the trial to have the jury determine the question of knowledge of the quantity of the drug. As a result of the failure of the demurrer, the accused then pleaded guilty. The matter then came before this Court and your Honours were part of a majority which took the view that because there had been a plea of guilty which had admitted the facts pleaded in the indictment, it was not appropriate for this Court to go further into the substantive issue which arises from a reconsideration of Kingswell in particular.

GLEESON CJ: I thought we also pointed out in that judgment that people who participate in the importation of drugs are commonly told as little as possible about exactly what the quantity is or what the nature of the drug might be. They are told no more than they need to know. It does not mean they are not knowingly involved.

MR HASTINGS: In some cases that may be correct, your Honour, but in other cases the accused may have good reason to think that it is not the drug which has been particularised in the indictment. But my point is that whilst that may have been a difficulty in that case which deterred the majority at least from entering into the area of determining the issue, there is no such concession in this case by a plea which admits the facts pleaded in the indictment. So that it would be a matter which would enable the Court to enter into the area which is otherwise controversial because, as your Honours will recall, Justices Gaudron and Kirby took the view that Kingswell is not correct, whereas Justices Callinan and McHugh, not in that order, took a contrary view. But your Honours abstained, leaving the issue lingering. We say this would be an appropriate case in which to deal with it.

GLEESON CJ: Just remind us, Mr Hastings, what stage this reached. Was an indictment presented?

MR HASTINGS: Yes, your Honour, and the trial - - -

GLEESON CJ: No jury was empanelled?

MR HASTINGS: No.

GLEESON CJ: It was one of those pretrial procedures that - - -

MR HASTINGS: Yes, it was, your Honour, and it went under section 5F of the Criminal Appeal Act to the Court of Criminal Appeal. The trial has yet to take place in this - - -

GLEESON CJ: And leave was refused under section 5F?

MR HASTINGS: Yes, but on a misconstruction, we say, of the nature of the application made in the court below, because the view was taken that it had been dealt with by way of demurrer, which I conceded was not an arguable point, but in fact the application had also included an application for a stay on the basis of unfairness.

HAYNE J: Stay being grounded in unfairness constituted by what?

MR HASTINGS: The failure of the Crown to present an indictment with alternate counts, one referring to being knowingly concerned in heroin and the other knowingly concerned in cannabis.

HAYNE J: It is an unusual argument for unfairness by an accused saying, "You should have charged me with more than you have." That is the essence of the argument, is it not?

MR HASTINGS: In an alternative sense, your Honour. I think the whole thing was designed to bring it to a head so that the accused would have an opportunity to plead. One of the fundamental difficulties is that these are persons of foreign nationality and little ability to speak or understand English and they simply have a fundamental problem in understanding why they should be pleading guilty to, or indeed convicted of, being knowingly concerned in an offence involving heroin when they take the view that their knowledge went to cannabis.

GLEESON CJ: Where do they come from?

MR HASTINGS: Hong Kong. The distinction we say in this case which separates it from others, and indeed Teh's Case - and I do not want to get too far into that, but Teh of course is the authority for the proposition that in relation to section 233B offences, knowledge or mens rea is an essential ingredient of the offences. In our respectful submission, when one looks at Teh's Case, the judgment only went to offences of possession and importation. One might understand the view being taken in relation to those offences, but an offence of knowingly concerned we say has additional ingredients to it which have the result that the state of knowledge must go beyond a mere generic offence of importing narcotic goods but go to the specific importation as to the character that it in fact had due to the nature of the drug involved, because we say that to be knowingly concerned in an offence involving heroin is a far different offence to being knowingly concerned in an offence of importation of cannabis.

GLEESON CJ: What is the position if all you know is that it is a prohibited drug and you do not know what kind? Does that mean you are not guilty of anything?

MR HASTINGS: No, that means you would not be guilty of being knowingly concerned in the importation of heroin if you did not know it was heroin.

GLEESON CJ: Well, what are you guilty of? You do not know what it is. You know it is a prohibited drug but you do not know what kind.

MR HASTINGS: It would be a matter for the sentencing judge, which is a trite reply, but - - -

GLEESON CJ: But what would be the charge to which you would plead guilty or of which you would be convicted?

MR HASTINGS: It could be unparticularised, your Honour. There is a provision in section 235(8) in relation to sentence, that a person is to be sentenced in relation to the scheme which is set out by reference to the drug specified in the information or indictment, but that would not preclude there to be a sentence which could be directed to an unspecified drug. In a sense, your Honour, I suppose that is not too far different from a conspiracy where there is no drug in the end result. Certainly the agreement would be particularised by reference to a particular drug but in the end result, if no drug came into the country, then of course the person has not been directly concerned in the importation of anything.

Your Honours, that is in essence the issue. In our submission, the Court of Criminal Appeal failed to deal with the question, although it was argued at some length, by dismissing the matter on the basis of the point that it was not a demurrable issue, which clearly it was not, but overlooking the fact that there had been raised at the same time an application for a stay on the basis of unfairness and did not deal with that issue in any substance whatsoever. On those bases, your Honours, we would say this is a matter of significant principle, particularly in the light of the stance taken by the Court in Cheng which would enable the Court to resolve the Kingswell dilemma and clarify the area which now, as Cheng - Chung in this case demonstrate, leads to uncertainty and some difficulty in applying the law as it now stands.

HAYNE J: Just on that question of the way in which the Court of Criminal Appeal dealt with it, perhaps their Honours' course of dealing with it is explained by what is said at page 4 of the application book, lines 47 and following, where the primary judge said that:

Counsel . . . has made application by a notice of motion in the nature of a demurrer to the indictment - - -

MR HASTINGS: Yes, but at page 2, your Honour - I am sorry, page 4, line 50? Yes. Is your Honour referring to the last paragraph?

HAYNE J: Yes.

MR HASTINGS:

notice of motion in the nature of a demurrer . . . for orders requiring that the indictment be stayed - - -

HAYNE J: But nothing in the end perhaps turns on this, Mr Hastings. It is simply that one can perhaps see the germ of the way in which the Court of Criminal Appeal dealt with it.

MR HASTINGS: Yes, I do not pretend that the originating document was entirely clear. In fact, it was entitled "notice of motion/demurrer", but that is because I do not think there is any prescribed form.

HAYNE J: The shilling stroke has a lot to answer for, has it not, Mr Hastings?

MR HASTINGS: Your Honour, it would be an appropriate vehicle if the Court were so minded to reassess the Kingswell issue. May it please your Honours.

GLEESON CJ: We do not need to hear you, Mr Fagan.

The decision of the Court of Criminal Appeal to refuse leave to appeal against an interlocutory order of a judge of the District Court in this matter is not attended by doubt.

The substantive questions that the applicants would seek to agitate would therefore not fall for consideration if leave were to be granted. By saying that, we do not intend to suggest that we have formed a view that there is any merit in the arguments the applicants would seek to advance.

It should be added that this Court has repeatedly stated that special leave will only be granted to challenge the correctness of interlocutory decisions in criminal proceedings in exceptional circumstances: see Re Rozenes, Ex parte Burd [1994] HCA 11; (1994) 68 ALJR 372, 120 ALR 193; and Carter v Northmore, Hale Davey & Leake (1995) 183 CLR 121. The present is not an exceptional case. Special leave is refused.

Call the next matter, please.

AT 10.58 AM THE MATTERS WERE CONCLUDED