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Court of Criminal Appeal 20 April 2000

R v Lu Hong & Ors

[2000] NSWCCA 213

Drugs

Citation: R v Lu Hong & Ors [2000] NSWCCA 213
Court: NSW Court of Criminal Appeal
Date: 20 April 2000
Judge(s): Priestley JA; Foster AJA; Sperling J

Background

Four offenders pleaded guilty in the District Court to a range of serious drug and money laundering offences arising from a large-scale heroin importation and distribution enterprise that operated between July 1994 and November 1995. When police executed search warrants in November 1995, they found nearly 17 kilograms of heroin across two premises, almost $700,000 in cash and foreign currency, and substantial documentation supporting money laundering charges. One premises contained a purpose-built room fully adapted for receiving and processing heroin for sale.

Two of the offenders, Lu Hong and Vi Lam, were the subject of these proceedings. Lu Hong faced charges including conspiracy to supply a large commercial quantity of heroin, possession of prohibited imports, importation of heroin, and conspiracy to launder proceeds of crime, all carrying maximum penalties of life imprisonment or twenty years. Vi Lam faced related conspiracy, possession, and money laundering charges.

The Crown appealed the sentences imposed on both men as manifestly inadequate. Vi Lam separately sought leave to appeal against his own sentence as manifestly excessive. A fourth co-offender's application for leave was abandoned before hearing.

  • Whether the sentences imposed by Judge Luland on Lu Hong and Vi Lam were manifestly inadequate, such that the Crown appeals should succeed.
  • Whether the sentence imposed on Vi Lam was manifestly excessive.
  • Whether the sentencing judge erred in treating the criminality of Vi Lam and Lu Hong as being at the same level, given the differences in their respective charges and roles.

Decision

The Court of Criminal Appeal dismissed both Crown appeals. While Foster AJA noted that he personally would have imposed higher sentences, the court unanimously held that the test is not what a different judge would have done. The sentencing judge had produced a careful judgment, taken all relevant considerations into account, and the sentences, though low, did not reach the threshold of manifest inadequacy required to justify appellate intervention.

On the question of parity raised by Vi Lam, the court found the sentencing judge's conclusion that both men were at much the same level of criminality was soundly based. Although Lu Hong had a clearer direct connection to the importation of heroin, Vi Lam's premises housed the operational centre of the entire enterprise, complete with a locked, purpose-built processing room, large quantities of heroin, currency, jewellery, and extensive documentation. The court accepted the sentencing judge's overall approach of assessing each offender's criminality by reference to the whole operation rather than individual charges in isolation.

The court also noted that the sentencing judge had rejected Lu Hong's attempt at trial to shift responsibility onto Vi Lam, accepting only those parts of his evidence that were confirmed by independent Crown evidence. The sentencing judge was entitled to view both men as equal co-conspirators in what was described as a vast commercial enterprise causing serious harm to the community.

Orders Made

  • Crown appeal against the sentence of Lu Hong: dismissed.
  • Crown appeal against the sentence of Vi Lam: dismissed.
  • Vi Lam's application for leave to appeal against sentence: leave granted, appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the test for Crown appeals based on manifest inadequacy is not whether the appellate judges would have imposed a higher sentence themselves, but whether the sentence falls outside the acceptable range to the degree required for intervention.
  • In assessing the comparative culpability of co-offenders, a sentencing judge is entitled to look at the totality of each offender's involvement in an overall criminal enterprise, rather than confining the assessment to the specific charges faced by each person.
  • Where a co-offender's premises serve as the operational hub of a large-scale drug enterprise, that connection to the enterprise can equate, in terms of criminality, to a co-offender who is more directly linked to the physical importation of the drug.
  • Parity arguments require a finding that the sentencing judge erred in treating two offenders as being at the same level of criminality; no such error was established here despite differences in the charges each offender faced.
  • Sentences described as "low" by an appellate court do not automatically warrant intervention; manifest inadequacy requires something more than a different judicial view of the appropriate range.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act (NSW)
- Customs Act (Cth) (referenced in the judgment in relation to prohibited imports and importation charges)
- Proceeds of Crimes Act 1987 (Cth), s 86
- Crimes Act 1987 (Cth), s 81

Cases:
No specific cases were cited by name in the portions of the judgment provided, though parity principles were invoked in argument on Vi Lam's application.