Sydney man receives term of imprisonment for breaching North Korean sanctions

Name: R v Chan Han Choi

Date of Judgment: 23 July 2021

Court: Supreme Court of NSW

Partner Agency: Australian Federal Police (AFP)

Summary of charges:

Mr Chan Han Choi pleaded guilty to breaching sanctions imposed on the Democratic People’s Republic of Korea (North Korea):

Count 1: engaging in conduct that contravened a United Nations sanction enforcement law, contrary to s27(1) of the Charter of the United Nations Act 1945 (Cth). This charge involved breaches of regulation 11(2) of the Charter of the United Nations (Sanctions – Democratic People’s Republic of Korea) Regulations 2008 (Cth), by providing a brokering service for the sale of arms and related matériel from North Korea, the sale of tactical inertial measurement units (IMUs) from North Korea, and the sale of refined petroleum products to North Korea.

Count 2: engaging in conduct that contravened a sanction law, contrary to s16(1) of the Autonomous Sanctions Act 2011 (Cth). This charge involved a breach of regulation 13(1) of the Autonomous Sanctions Regulations 2011 (Cth) by providing a brokering service for the sale of coal from North Korea to entities in Indonesia.

The maximum penalty for each offence is imprisonment for 10 years. In sentencing Mr Choi for the second offence, the Court also took into account one further offence of providing a brokering service for the sale of pig iron from North Korea to South Korea, for which Mr Choi admitted his guilt pursuant to s 16BA Crimes Act 1914 (Cth).

Synopsis:

Mr Choi was arrested on 16 December 2017 by the AFP.

The investigation, known as Operation Byahaut, involved police gathering a significant quantity of evidence including evidence from witnesses in Australia and the US with expertise in nuclear weaponry and North Korea’s missile programs, sanctions evasion activities, types and components of missiles, and coal and pig iron products. The investigation uncovered Mr Choi’s connections with various associates in North Korea, China, and Russia. None of the transactions that Mr Choi brokered were completed.

Mr Choi originally pleaded not guilty and was committed to the Supreme Court of NSW but during his trial in February 2021, offered to plead guilty to the above offences.

Key points:

This was the first prosecution for breaching North Korean sanctions, and the third prosecution of any breach of UN sanctions, in Australia. Although Mr Choi did not finalise any of the transactions, the imposition of a term of imprisonment sends a strong message of general deterrence for this type of offending.

Additionally, for the arms and related materiel the subject of count 1, the Court found that Mr Choi was brokering the sale of ‘Man-Portable Air Defence systems’ (MANPADS), surface to air missiles which can be fired from a person’s shoulder or from a launcher mounted on a vehicle and can shoot down aeroplanes at lower altitudes. In sentencing Mr Choi, the Court found that the purpose of MANPADS, as with other military equipment, is to kill people and destroy equipment and infrastructure.

The Court was also satisfied that although none of the transactions came to fruition, the cessation of the negotiations was not due to any voluntary act by Mr Choi. The Court was satisfied that the Offender acted deliberately, motivated by personal gain and by a desire to undermine sanctions imposed on North Korea by the United Nations Security Council and by nation states, to put pressure on its government to comply with international law. The Court found that there was no actual injury, loss or damage caused by Mr Choi’s conduct but the potential damage was significant and these types of offences have a corrosive effect on sanctions and undermine their purpose.

Sentencing:

Mr Choi’s sentence hearing proceeded on 13-15 July 2021.

In relation to the first count the Court imposed a sentence of two years and 10 months imprisonment. In relation to the second count, taking into account the offence on the s16BA schedule, the Court imposed a sentence of one year and 10 months.

The Court imposed a total effective sentence for the two counts of imprisonment for three years and six months commencing on 16 December 2017 and expiring on 15 June 2021. Mr Choi was given a five per cent discount for his guilty pleas and the Court also took into account his lengthy period on remand awaiting trial and his conditions of bail which amounted to house arrest.

As Mr Choi had been released on bail on 11 November 2020 and the term of the sentence expired on 15 June 2021, Mr Choi was not required to serve any additional time in custody.

Relevant links:

Sentence - R v Choi (No 10) [2021] NSWSC 891

AFP media release - Sydney man sentenced for breaching UN Sanctions