John (Heanu) Kahn, Partner and Principal Lawyer of the Criminal practice, has been recently invited to MBC’s Live Morning Today to share a notable Australian criminal case involving minors in light of the recent controversies surrounding Korea’s juvenile law. In an atrocious murder case committed by six males back in 2016, two of the attackers were found to be under the age of 14, ages that would have made them minors and avoid criminal responsibility under the Korean juvenile law. The two attackers who were 14 and 11 years old have been sentenced to 4 years and 6 months and 4 years imprisonment respectively. Both of their appeals have been rejected. This case illustrated just how minors in Australia could face harsh criminal prosecution depending on the severity/gravity of the crimes they committed.
07 Jan 2020
Thursday, 13 June 2019 – Rise of the boutique law firm Doing business with international partners – whether it be an entity operating on Australian soil or a local brand venturing offshore – can be fraught with difficulty. Between establishing a fresh customer base, navigating new laws, regulations and corporate governance, creating effective relationships and becoming nuanced with cultural mores (perhaps the trickiest of all), the business of doing business has the potential to bring an enterprise undone. For instance, exchanging a business card using one hand rather than two can be seen as a sign of disrespect in some cultures. Who would necessarily know? With Australians increasingly undertaking business across the world and with Asian powerhouses such as Japan, Korea and China, navigating the behind-the-scenes landscape, as well as providing direct services and advice, has become all important. Business owners and operators need to focus on what they do best, so employing people who specialise in troubleshooting make-or-break sensitive legal, technical and cultural matters is a vital and strategic move. Sydney’s H & H Lawyers offers this official and unofficial role in its capacity as a firm on the path to being Australia’s biggest ‘‘Asian’’ law firm. H & H Lawyers’ services include commercial and corporate advisory, acquisitions, dispute resolution, employment law, corporate migration and intellectual property. “Our bilingual lawyers have been inundated with work representing multinational corporations and government agencies from Japan, Korea and China that want to expand their businesses into Australia,” says Principal Ken Hong. “We have also been very busy acting for local clients with Japanese, Korean or Chinese backgrounds, or that have transactions with their counterparts in those three countries. “Demand for our services has escalated, so we are rapidly expanding to meet the demand.’’ Fellow Principal Yukio Hayashi says a vital aspect of the firm’s work includes “bridging fundamental cultural differences”. “This cross-cultural dexterity is not necessarily part of our brief, but it’s what we offer as well, as it is so essential,’’ he says. “Our team not only speaks the languages, but also intimately understands the cultural nuances of Asia. This saves our clients so much time in getting straight to the actual issues and resolutions. Without the right knowledge of culture, a lot of key messages can be lost in translation, particularly legal concepts, leading to a frustrating experience for all. “We had one situation recently in which there was an investment in an Australian business by a Japanese company. There were excellent managers and staff in situ, but the incoming management from Japan had their way of doing things that did not rest well with the Australian team, and vice versa.” “This friction was no one’s fault, but we made it our job to navigate the cultural minefield. We were able to get each side to see things from the other’s perspective and that made all the difference.” Hong and Hayashi say that by going this extra mile, the law firm can resolve difficulties and help international-facing businesses to thrive. “The importance of Australia’s trade relationships with Korea, China and Japan need no further explanation,’’ says Hong. “They are our top three trading partners. We look forward to continuing with our work and contributing to Australia’s successful trade relationships with those three countries.” Says Hayashi: “Our firm is well placed and equipped to help clients have a more fruitful, efficient and enjoyable experience in doing business.’’
13 Jun 2019
Due to the recent law reform, regulations in relation to drink driving offences were strengthened. Mandatory interlock for mid-range offenders Since 1 December 2018, all drivers convicted of mid-range (between 0.08 and 0.149) drink driving offences in NSW are required to have an interlock installed. In other words, it mandatorily requires an interlock installation unless a court order is given to nullify the application of the interlock program. The interlock program has been expanded so that it also applies to drivers who commit a lower or mid-range drink driving offence for the first time. An interlock is an electronic device connected to the ignition of a vehicle for breath testing. In accordance with the law reform, drivers convicted of mid-range offences are ordered to complete a licence disqualification period for 3 to 6 months and a period of participation in the interlock program for at least 12 months. It may appear that the regulations have been loosened compared to previous penalties which required 6 to 12 months licence disqualification. Notwithstanding, the interlock program would be a more effective deterrence for those who commit repeat or serious drink-driving offences. Drivers who are given the interlock program order may appeal to the court that an alternative order be imposed, and such appeal is accepted only to the cases of an applicant having special medical reasons - an applicant not having a car or financially incapable of installing the interlock. In fact, the interlock program has been applied to drivers convicted of high-range (over 0.150) offences or more than second-time offences. For all drivers that are ordered a mandatory interlock, an interlock device should be installed for a period that the court ordered at the offender’s cost (approximately $2,200 per year). Those who fail to install the interlock device might be ordered to complete five years of a licence disqualification. Increased fines for drink driving offenders From 20 May 2019, a maximum court-imposed fine for those who are convicted of drug driving, lower-range or special range drink driving offences will increase from $1,100 to $2,200. For mid-range drink driving offences, the maximum court-imposed fine and prison term will be strengthened from $2,200 and nine months to $3,300 and nine months. In addition, drivers who commit a lower-range drink driving offence will have their licence immediately suspended for three months coupled with a $561 fine from 20 May 2019, which previously required a formal court proceeding. However, drivers whose licence are suspended may appeal to the court if unsatisfied with their penalties. Immediate suspension of licence Drivers charged with lower-range drink driving offences before 20 May 2019 may maintain their licences until they are found to be guilty before the court. If the court decides that drivers are found guilty but have no conviction recorded, their licences may not be suspended. Contrarily, those who are charged with mid-range drink driving offences will have their licences suspended by the police, and they are prohibited from driving until the court decision. The recent law reform in Parliament empowers the police to have licences for lower range, novice range or special range drink drivers suspended immediately from 20 May 2019. That reform prohibits those charged with drink driving offences from driving any car until a final decision is made, even though the court finds them not guilty of those offences. For instance, if driver A who has held his licence for 40 years without any criminal conviction commits a drink driving offence (testing result between 0.05 and 0.079) for the first time, he or she is restricted from driving until the court gives a final decision. An initial hearing, in practice, is assigned four to six weeks after the date the charge was imposed. It may take a further two weeks in case of appeal. An additional period may be required if a traffic offenders program is ordered. It might have a significant impact on those who are in need of using their car for work or family members.
07 Jan 2019
A South Korean national (W) was released from policy custody last January, just 212 days after she had been arrested for allegedly attempting to smuggle illicit substances. Whilst the prosecution has decided to drop all charges on her, she will be deported later this week back to South Korea for her involvement in the alleged offences nonetheless. Ms W arrived in Australia back in September 2017 on a working holiday visa. While settling in Australia, she was introduced to the boyfriend of an acquaintance she met in Australia. He asked if Ms W could provide him 3 addresses to which he could send a “sample from a pharmaceutical company” and whether she could receive the sample on his behalf for $100 compensation. Without much hesitation, she provided her own home address. Much to her detriment, the parcel contained a stash of pseudoephedrine, a common substance used for manufacturing illegal narcotics such as methamphetamine. It was highly likely that she was going to be found guilty on the charges regardless of her intention despite her claim that she was not aware of what she was receiving. As such, it was an extremely fortunate occasion that she avoided a conviction. Her defence lawyer, John Heanu Kang of H&H Lawyers who had played a pivotal role for W throughout the process provided some insights as to why the prosecution had decided to drop her drug related charges. “Firstly, pseudoephedrine, the substance that Ms W received is not an illegal substance in Korea and can easily be purchased OTC from pharmacies in Korea. It would not have been illegal either for the sender or the receiver had the entire dealing occurred in Korea. We focused on this point. We tried to persuade how easy it was for them to obtain this substance in Korea by requesting expert opinions from Korea’s Food & Drug Administration and industry professional. I think the prosecution accepted this view.” “Secondly, if the trial continued, the prosecution would have had to arrange the appearance of both Indonesian and South Korean officials and this would have led to a much higher legal cost”. Mr Kahn said “the fact that Ms W did not take further steps to enquire the nature and origin of the ‘sample’ even though her acquaintance revealed it would be coming from a pharmaceutical company precisely shows how many Koreans are still unable to fully appreciate the gravity of drug related offences. For that reason, these people are easily targeted”. He emphasised the “irreversible consequences that people could face when they did not try to find out what they were getting themselves into just because it was difficult for them to refuse their acquaintance’s request or because they thought it was an easy money to earn”. On the other hand, Ms W’s brother who initially appealed for help and public attention through the National Petition of South Korea revealed that “the whole process was extremely difficult for everyone but I am very happy my sister has been finally released. I recall a movie that was based on a true story similar to my sister’s case, and it’s a shame that the movie had to be repeated again. I really hope that this does not happen to anyone ever again. I think the Government really needs to take further steps to educate those who depart to overseas on this issue more strictly and properly”. He emphasised. South Korean embassy in its press conference on the 17th said “we continued to communicate with the relevant Australian authorities for just and fair treatment of our national and have been providing consular support to both W and her family in Korea”. Original Article http://www.hanhodaily.com/news/articleView.html?idxno=57711
27 Aug 2018
The most common crime committed by Korean people in Australia will most likely be drink driving. If you go to Burwood Local Court, on average there are two to three Korean people that appear for drink driving charges. Even amongst the police, the first thing that comes to mind when the word ‘Korean’ is mentioned is ‘drink driving’ and hence why the police hide in areas such as Strathfield and charge Koreans who drive under the influence of alcohol. Drink driving cannot be thought of as a mere violation of traffic laws. It is a criminal offence that can remain on the charge list. It does not end with a mere fine but rather it is a serious offence which can be taken to court where you will stand trial in front of a judge. In most cases, licences will be revoked. Overall, it is not a pleasant experience if you are caught under the influence, as you will be arrested on the spot and taken to a police station where you will spend some time in the cells. As previous columns discussed in detail punishments and suspensions related to drink driving, this column will focus on cases of drink driving and the initial response associated with them. During consultations with clients, the most asked question is “Can I get a Section 10?” The reason for this is that in order to avoid licence suspension, you must obtain a Section 10. However, the question cannot be answered so easily. A judge can only give advice on such a question after reviewing various avenues. The second most frequently asked question is “Do I need a lawyer?” This also depends on the situation. Conditions such as the following need to be taken into consideration before deciding whether a lawyer is required: How important is it to reduce the licence suspension period; What are the chances of obtaining a Section 10; and How much will be fined. Looking at the two examples below, let us see what will happen if you’re caught under the influence. Example 1: 65 year old woman named “Y” “Y was invited to dinner one evening and was served with a course meal. With every course that was served, complimentary wine were also provided and at the recommendation of the chef, she drank little sips of the wine. After two hours, once the meal had concluded, she decided she was too drunk to drive. She spent approximately two hours to sober up and then began to drive. On the way home, she was caught by the police for using her mobile phone whilst driving. The police turned on the siren and chased her, but she did not see them and continued to drive for approximately two to three km. The police stated that the car had been moving side to side and at times nearly hit the cars beside her. Eventually, the police stopped her and took a breath test and she was charged with Mid-Range PCA due to a blood alcohol reading of 0.089.” Mid-Range PCA (0.08-0.149) carries a fine of $2,200 or less for first time offenders or a prison sentence of up to nine months including licence suspension of at least 6-12 months. Firstly, obtaining a Section 10 for Mid-Range offences is very difficult. Section 10s are only given to ‘very special cases’ by the judge. Most people who request a Section 10 consider their case as special. However, for a judge who deals with 40-50 drink driving cases a day, a case must be considered really special to obtain a Section 10. Y appointed me as her lawyer and immediately pleaded guilty. On behalf of the client, I provided a detailed description of the situation and the client’s background to the judge. However, the judge did not want to hear anymore and was furious as to the fact that the client had been driving dangerously whilst under the influence and did not see the police chase her for two to three km. On the other hand, I continued to explain the client’s situation to the judge. I explained that this situation is an exceptional case, as Y who does not usually consume alcohol has contributed a lot to society as a community member and does not have any past criminal records. I persuaded the judge by stating that Y has learnt a lot from her mistakes through this case and has shown a lot of remorse for her actions. Not only this, but that Y would never commit such crime again and that losing her licence would not only have a great impact on her but also will have a great impact on her ability to volunteer to help the elderly who live alone. Y was able to obtain a Section 10 and avoid licence suspension. Example 2: 26-year-old male named “K” who came to Australia on a working holiday “K was drinking alcohol at Strathfield and at approximately 1 am he drove home. His place of residence is an apartment located in Strathfield which is approximately 2 km away from where he consumed alcohol. When making a right turn on the way to his house, he crashed his car into a wall. The police arrived at the scene and he was charged with High-Range PCA with a blood alcohol level of 0.165.” High-Range PCA (0.15 and over) offences are subject to a fine of $3,300 or less for first time offenders or a prison sentence of up to 18 months, a licence suspension of at least 6 - 9 months and an Interlocking period of at least 24 months. The licence suspension is shorter than a Mid-Range offence; however, the period for which the Interlock is to be installed is longer. An Interlock is a control device which conducts a breath test and only when the blood alcohol concentration level is 0 will the car start. The cost of an Interlock machine is approximately $2,200 per year. K appeared in court without a lawyer and pleaded guilty. The judge tried to impose a prison sentence and asked for him to obtain a Pre-Sentence Report in order to determine his background information, thereby postponing the sentence by six weeks. K’s Pre-Sentence Report was very negative. The report was obtained through an interview with K whereby the interviewer stated, ‘K does not take his crime seriously and thinks it is sufficient to only pay a fine’. The judge read the report and indicted K with 400 hours of community service, a nine-month licence suspension and 36 months of Interlock installation. Due to the accident, his car was destroyed. However, he failed to advise the judge of this and as a result was charged with the above. K came to me after this occurred and complained about the procedural unfairness he received, which led to an appeal of the decision. The case was appealed in the District Court and after taking into consideration several factors, the client additionally received an $800 fine and a minimum licence suspension period of 12 months due to being exempt from installing the Interlock machine. If K had consulted with a lawyer prior to the initial charge, he could have avoided the severe punishment he received and would not have had to pay such an extensive amount of money. Even though it was a High-Range PCA charge, 400 hours of community service for first-time offenders is a very severe punishment. If the judge had been persuaded that there was no car available to install an Interlock then the client could have avoided the Interlock installation period. As can be seen in the examples outlined above, depending on the situation that arises, different outcomes can occur. Although you can obtain information from these columns and articles on traffic offences and laws, due to your lack of expertise it will be hard to determine what type of punishment will be applied in your situation. Even if you do not appoint a lawyer, I recommend you seek professional advice from a criminal law specialist.
04 Aug 2018
We are pleased to announce that as of 1 July 2018, John Kahn was promoted to Principal at our firm. As an accredited criminal law specialist, John has been playing an integral role within our criminal law practice since joining our firm in 2015.
05 Jul 2018