By Paul Gregoire and Ugur Nedim
Following an investigation by the Australian Federal Police (AFP), the Royal Canadian Mounted Police intercepted a commercial dough mixer on 27 September 2021, which had been bought by local business Nella Cutlery, from another in the Canadian city of Toronto to be shipped to the Australian city of Brisbane, and ultimately, on to the Ngon Bakehouse, which is located in Sydney’s Burwood.
Canadian authorities located 101 bags inside the mixer, with each containing 1 kilogram of prohibited drugs. The substances were replaced with dummy bags before being sent to Australia, where logistics company Menzies Aviation transported the package to a New South Wales warehouse, before the package was delivered to an address in Sydney’s Wentworthville on 19 October 2021.
Tsz Cheung Herman Ko worked for consignment company EMO Trans Australia at the time and had experience in freight forwarding. A friend of Mr Ko’s, taxi driver Yuan Long Yang, provided him with a phone and laptop in October 2021, requesting assistance with consignments such as filling out of forms. Mr Ko agreed, which was not out of the ordinary given his employment.
Mr Ko acted on the direct instructions of Mr Yang. Mr Ko said he had no reason to make further inquiries of Mr Yang. There were messages between the pair regarding two sums of $20,000, and Mr Ko maintained these were about bets, as the pair were gambling mates. As per Mr Yang’s instructions, Mr Ko arranged payment for the delivery to go to the Sydney western suburb residence in Wentworthville.
Mr Yang was arrested by the AFP during a controlled operation in Wentworthville in October 2021. Mr Ko, who lived in Sydney’s Beecroft, was not arrested until March 2022. This involved a raid on his house, which turned up the phone and laptop that had been supplied to him by Mr Yang. Police also found evidence relating to the delivery of the dough mixer.
A charge of drug importation
Mr Ko was charged with the offence of drug importation and his case proceeded to a jury trial in the District Court of New South Wales.
He was found guilty on 16 July 2024 of one count of importing a commercial quantity of two border controlled substances, under section 307.1(1) of the Criminal Code Act 1995 (Cth).
The substances that were initially in the package before they were replaced by law enforcement were crystal methamphetamine, also known as ‘ice’, and phenylethylamine, which is a drug analogue with similar effects to ice.
The prosecution relied on the ‘attempt’ provisions contained in section 11.1 of the Criminal Code Act. The section makes clear that a person who attempts to commit an offence contained in the Act but is unsuccessful may be subject to the same maximum penalty as the attempted offence itself, provided the person’s conduct is more than merely preparatory to the commission of the offence.
The prosecution also relied on section 311.1(1)(f) of the Code, which contains a procedural mechanism that allows for more than one border controlled substance to be prosecuted as a single count.
Before the District Court
During the trial, the Crown’s argument was that while Mr Yang was the boss of the criminal enterprise, Mr Ko took care of the logistics and his job was therefore more than merely preparatory.
The Crown put it to the court that Mr Ko was captured under the broad definition of importation under the Criminal Code, which can include acts such as coordinating paperwork to see border controlled drugs imported illegally as actual importation.
The acts that saw Mr Ko considered an importer, according to the prosecution, involved utilising his logistics experience, filling out paperwork, locating a secure warehouse, using encrypted messaging and locating agents to deliver the mixer to the Wentworthville address.
The requisite mental element to this crime, according to the Crown, could be shown via a series of proven acts including that Ko used of the phone Mr Yang supplied, as well as his using a logistics company that was not the one he worked for, his pretending to be a client and his provision of false details, which were all further considered as an aspect of the crime that tended to reflect guilt.
The defence argued that Yang had betrayed Mr Ko’s trust, as he considered that he was arranging a legitimate consignment, as well as that there was no evidence “beyond a reasonable doubt” that Mr Ko had been aware of what was supposed to be inside the dough mixer consignment for delivery.
Following the finding of guilt, NSW District Court Judge Justin Smith sentenced Mr Ko to 6 years and 6 months in prison, with his non-parole set at 3 years and 11 months.
Mr Ko appealed the verdict and sentence to the New South Wales Court of Criminal Appeal NSWCCA).
The appeal
Sydney Criminal Lawyers represented Mr Ko on appeal before the NSWCCA on 1 August 2025.
The appeal was based on two grounds. The first was that the trial judge being was in error by conflating a direction regarding the mental element of intention with a direction relating to inferential reasoning. The second ground was that the jury verdict was unreasonable.
To establish the offence of drug importation in Australia, the prosecution must prove three essential elements – or ingredients – beyond a reasonable doubt. These are that:
- The defendant intentionally imported a substance,
- The substance was a border controlled drug or plant, and
- The defendant knew or was reckless as to whether the substance was a border controlled drug or plant.
A person was ‘reckless’ if aware it was likely there was a risk the imported item was a border controlled drug or plant and, having regard to the circumstances known to the person at the time it was unjustifiable to take that risk, but the person proceeded with the act regardless.
In this case, Mr Ko’s state of mind relating to the imported consignment was relevant, and whether the mental element was made out involved inferential reasoning, rather than direct evidence.
During the appeal hearing, Justice Julie Ward raised the 2017 High Court case of Smith versus The Queen; The Queen versus Afford. The case established that an accused person cannot be convicted of importing drugs unless the mental element of intent is found (as contained in element 1), as well as whether they knew or were reckless to the drugs’ presence (as contained in element3), making clear that each of these must be addressed separately.
The submission by the defence lawyers was that the judge did not direct the jury on each mental separately, and the jury had therefore been misdirected in accordance with the law.
During the trial, the judge directed that the central question on trial was Mr Ko’s mind at the time of commission of the offence, and two things had to be established, that he knew something other than the mixer was being delivered, and that he was reckless to the fact that the other thing might have been border controlled drugs.
His Honour had also used the fact of Mr Ko’s use of the phone supplied to him by Mr Yang as evidence capable of being used broadly in the assessment of the mental elements of the offence.
The judge then invited the jury to infer guilt drawn from two points.
Appeal upheld
The issue highlighted on appeal was that in his final act of summing up, Judge Smith, when referring to the two mental elements that must be established and how they must be made out, he simply referred to how to satisfy the initial mental element of intention and then went on to conflate this process with proving the second element, which was supposed to involve inferential reasoning.
So an error had occurred because instead of establishing that Ko was aware that something beside the mixer was being imported and that he’d further been reckless to the potential of it being drugs, this second step had never been shown, which was supposed to comprise of evidence that Ko had continued with the arrangements, despite being aware that drugs might be involved.
This error consisted of a miscarriage of justice, it meant the first ground of appeal was made out, and therefore, the appeal was upheld. His Honour then went on to discuss the second ground but those court deliberations were redacted on publication of the 25 August 2025 final findings.
Justice Ward ordered on 25 August 2025 that, as ground one was made out and the appeal upheld, Mr Ko’s conviction should be quashed, and the case should be remitted to the District Court for retrial.
NSWCCA Justices Dina Yehia and Richard Weinstien agreed with their colleague’s orders.
