Commonwealth Director of Public Prosecutions

Kim Man Freeman TSANG

Serious Drugs

Ecstasy Importation and Trafficking

The defendant was a Canadian national who travelled to Australia to oversee the importation of MDMA (ecstasy) and facilitate the storage and subsequent transport of the MDMA to syndicate members in Sydney who would then be responsible for distribution. On 5 June 2006 a shipping container originating in Canada and declared as containing computer ink arrived in Melbourne. On 7 June 2006 ACBPS officers conducted a search of the container revealing 180 boxes – each box contained a plastic 20l bottle containing ink. Sixty-seven of the 180 bottles contained vacuum sealed bags of MDMA tablets. The total weight of MDMA located was 74.1kg which was fully substituted by the AFP with an inert substance. The defendant left Australia on 9 June 2006 however was still in telephone contact with others regarding the transport arrangements and delivery of the MDMA to Sydney. The defendant was subsequently arrested and extradited to Australia from Canada.

The defendant pleaded not guilty to 1 count of importing a commercial quantity of a border controlled drug pursuant to section 307.1(1) of the Criminal Code and 1 count of attempting to traffic a commercial quantity of a controlled drug pursuant to sections 302.2(1) and 11.1(1) of the Criminal Code.

At trial, the evidence against the defendant included telephone intercepts and emails between the defendant and others which were all conducted in English. Evidence given by witnesses who had dealings with the defendant, from the freight and storage company, all described their conversations in English. However, during the trial the defendant gave evidence with the assistance of an interpreter but answering some questions in English. Despite prompting by the trial Judge, the defendant refused to conduct his evidence in English.

During closing addresses, the prosecutor submitted to the jury that they shouldn’t believe the defendant, as having observed his demeanour while he was giving evidence they could find that the defendant was hiding behind the interpreter when it was clear that he understood questions being asked of him in English and this gave him an advantage in answering the question.

Following a 5 week trial, on 19 November 2009 the jury found the defendant guilty on both counts.

On 18 December 2009 in the Victorian County Court the defendant was sentenced to a total effective penalty of life imprisonment with a non-parole period of 27 years.

In August 2011 the defendant appealed his conviction and sentence to the Supreme Court of Victoria Court of Appeal. The appeal against conviction was on the following grounds:

(1) the trial judge erred in ruling that 4 lawfully intercepted telephone conversations between a co-accused and another person in the syndicate were admissible in evidence against the defendant;

(2) the trial judge erred in directions to the jury as to how they could use the telephone conversations;

(3) there was a miscarriage of justice because the prosecutor argued that the accused had hidden behind the interpreter in giving his evidence;

(4) the trial judge erred by failing to direct the jury that an innocent person can do nothing more than give evidence and subject himself to cross examination.

In dismissing the appeal on 7 November 2011 the Court of Appeal noted that the defence did not challenge the comments made by the prosecutor as to the offender hiding behind the interpreter, nor was an exception sought by the defence in the way the trial judge directed the jury on this issue.

The Court of Appeal, however allowed the appeal against sentence on one ground, namely that the sentence imposed on the defendant was manifestly disparate with that of another syndicate member.

The Court of Appeal reduced the sentence on the importation charge to a period of 28 years imprisonment and on the attempt to traffic charge to a period of 24 years imprisonment. It was further ordered that 1 year of the sentence on the attempt to traffic should be cumulated with the sentence on the importation charge. The total effective penalty imposed was 29 years imprisonment with a non-parole period of 19 years.

On 5 December 2011 the defendant sought Special Leave to appeal to the High Court of Australia on the basis that the Court of Appeal erred in determining that it was legitimate for the prosecutor to contend to the jury in his final address that the accused had hidden behind the interpreter and in circumstances where the trial judge failed to give directions as to use and alleged abuse of interpreter. The Special Leave application was heard on 17 August 2012. The High Court refused the application for Special Leave on the basis that the issues had been comprehensively considered by the Court of Appeal and the court was not satisfied that any error was disclosed in that consideration. The High Court was also not satisfied that the interests of justice would otherwise call for special leave.