The Queen v Chai[1998] QCA 187

THOMAS J:  These are applications by a man, Keng Keong Chai, and his wife, Siew Hong Lim, for leave to appeal against sentences for drug importation.

Mr Chai was convicted of two counts; one, of importing prohibited goods, namely, heroin not less than the trafficable quantity and, two, knowingly being concerned in the importation of prohibited imports, namely, heroin not less than the trafficable quantity.

Ms Lim was convicted of one count of importation of a trafficable quantity of the drug.  Mr Chai was sentenced to 15 years' imprisonment with a recommendation for consideration of parole after seven years.  Ms Lim was sentenced to 12 years' imprisonment with recommendation for consideration of parole after six years.

The applicants normally reside in Malaysia.  In April 1997 they went to Bangkok, stayed there for a week and flew to Brisbane arriving on 9 May.  When searched each was found to be carrying heroin.  The drug was contained in pellets concealed in the clothing of each and also internally.  Mr Chai was carrying various small pellets packaged in a particular way which on analysis come to 337.909 grams of pure heroin whilst Ms Lim was in possession of 131.038 grams of the substance.  The heroin internally carried was only able to be discovered by X-rays. 

In Ms Lim's case 46 of the pellets were either in her bra or in a condom in her panties whilst a further 10 pellets were in a condom within her vagina.  In Mr Chai's case there were 61 pellets either in his shoes or on his person and other pellets were within the stomach which were later passed and obtained whilst he was in hospital totalling, I think, 54 pellets. 

The importing charges related to the drugs personally brought in by each applicant.  The second charge against Mr Chai of being knowingly concerned in the importation of heroin related to the drug brought in by his wife.  The total value of the heroin brought in by these applicants was between $1.4 million and $2.1 million. 

During his interview with the police Mr Chai gave the name of a contact in Thailand but this was a very common name and was not able to effectively followed up by the authorities.  Miss Lim pleaded not guilty to the charge brought against her  but was convicted by a jury.  She unsuccessfully raised the defence of marital coercion.  It follows that she is not entitled to the benefit of a plea of guilty but her husband is entitled to some consideration for his plea of guilty.  The applicants are married with four children. 

Factors which have been mentioned in the present case are the apparent professionalism of the preparation of the drug into pellets; the relative sophistication of the venture; and the circumstance that a good deal of the drug could not have been discovered but by the use of X-rays.

The male applicant claims that he was to be paid $10,000 for his efforts.  Both applicants accepted that they had intended to take a bus to Sydney and to hand over the drug to a person in that city.  They said that they then intended to return home to Malaysia.  The male applicant had a good work history.  Neither applicant has any previous criminal history.  The male applicant said that he encountered financial difficulties and that this led to his venture in the present matter.  He had, at some stage in his life been a user of heroin by smoking it but this circumstance seems, to me, to have little relevance. 

The main submission advanced on behalf of Mr Chai is that the learned sentencing Judge failed to give proper weight to the applicant's plea of guilty.  We were referred to a number of decisions involving importation of similar quantities of the drug.  Those which, to my mind, have a good deal of similarity and comparability to the present matter are Abouchedid, CA 298 of 1993, 15 October 1993, and Gretton, initially, a sentence of Justice Moynihan which was affirmed in this Court in CA 353 of 1997, 20 November 1997.

It would seem that the learned sentencing Judge gave some benefit to the applicant, at least by a slight reduction of the recommendation for parole period below the halfway mark.  In the two cases to which reference was just made, similar problems were noted and it would seem that in cases of this kind where there is an overwhelming case against the applicant it by no means follows that a plea of guilty will be expected to produce the same level of discount as it may do in some other cases.

The head sentence of 15 years seems, to me, to be quite appropriate in the present case and the fact that a shorter non-parole period was not made does not, in my view in the present circumstances, make the sentence manifestly excessive.  I accordingly, would refuse the male applicant's application.

I turn to the application of Ms Lim.  Her counsel submitted that the 12 year sentence was too high and secondly, that there was not sufficient distinction made between the sentence imposed on her husband and that imposed upon her.  In her case relevant factors include that she was convicted on one charge not two.   She imported a smaller quantity.  Moreover she played a lesser role and the support she gave her husband was passive.  This was accepted by the learned sentencing Judge.

The quantity for which she fell to be sentenced was not particularly large in the context of these matters coming to a total of 131 grams.  At the same time, it is noted, that that quantity is said to be worth in the vicinity of $.5 million.  Even so the quantity of the import is an important factor in the fixation of the sentencing level.

Other factors adverted to by her counsel are the fact that she, along with her husband, does not speak English and will serve her time in prison with difficulty.  Mention was also made of the circumstance that the deportation order against her will make it difficult to extend release facilities to her in the course of her imprisonment.  On the other hand counsel for the Crown points out that when she is released she will not be subject to the strictures of parole when she has been returned to her own country.  I do not place particular store by the latter submissions although increased distress in the serving of a sentence is a factor that must be born in mind by the Courts when fixing sentences. 

The learned sentencing Judge observed that there was no suggestion from the Crown that Mr Chai was not the dominant partner in this exercise.  He noted that Ms Lim had married against the wish of her family who had disowned her.  He further observed that the project was Mr Chai's idea, and that his wife went along with it as a matter of loyalty. 

Having regard then to the relative roles that each of these persons is shown to have played I think there is some merit in the applicant's counsel's submission that there should have been a greater distinction in the respective sentences imposed upon them.

In my view, appropriate proportionality would result in a sentence of 10 years in the case of Ms Lim.  There is no occasion for making any recommendation for parole earlier than the halfway mark.  I would accordingly grant her application, set aside the sentences that have been imposed and substitute a sentence of 10 years' imprisonment and fix a non-parole period of five years.  The declaration as to pre-sentence custody should be reinstated, amending the period from 271 to 299 days.  It is agreed that the original declaration was erroneous in this respect.  A similar correction should be made in relation to the declaration concerning Mr Chai's pre-sentence custody.

DAVIES JA:  I agree.

LEE J:  I agree

DAVIES JA:  The orders are therefore as indicated by Mr Justice Thomas.