Chai v The Queen - [2019] NZCA 628

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA268/2019
[2019] NZCA 628

BETWEEN	HOOI KEAT CHAI Appellant
AND	THE QUEEN Respondent

Hearing:	19 November 2019
Court:	Collins, Brewer and Gendall JJ
Counsel:	P E Dacre QC for Appellant B D Tantrum and J T Parry for Respondent
Judgment:	4 December 2019 at 12 noon
Reasons:	10 December 2019 at 10.00 am

JUDGMENT OF THE COURT

A        The appeal against conviction on charges 13 and 14 is allowed.
B        The conviction on charges 13 and 14 is quashed.
C        A judgment of acquittal is entered with respect to charges 13 and 14.
D        The appeal against conviction on the remaining charges is dismissed.

EThe appeal against refusal to grant a discharge without conviction is dismissed.

F The appeal against sentence is allowed in part.

GA sentence of six months’ home detention expiring on 5 December 2019 is substituted for the sentence imposed of seven months’ home detention, but otherwise the post-detention conditions are to remain.

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REASONS OF THE COURT

(Given by Gendall J)

Introduction

Following a jury trial before Judge P J Sinclair in the District Court at Auckland on 8–12 October 2018, the appellant was found guilty of:
(a)one charge of without reasonable excuse supplying a document to an immigration officer (a work visa/permit application) knowing it was false or misleading in a material respect in breach of s 142(1)(c) of the Immigration Act 1987 (at trial and in this judgment referred to as charge 8); and
(b)five charges of producing a work visa (on 15 August 2009, 8 January 2010, 21 May 2010, 27 March 2011 and 28 August 2011 respectively) knowing it to have been obtained fraudulently in breach of s 142(1)(d)(ii) of the Immigration Act 1987 and s 345(1)(b) of the Immigration Act 2009 (at trial and in this judgment referred to as charges 9, 10, 11, 13 and 14).
On 6 June 2019 the appellant was sentenced on these charges to seven months’ home detention with six months’ post-detention conditions.[1] His application for a discharge without conviction was refused.
[1]R v Chai [2019] NZDC 12539.
The appellant appeals his convictions and sentence.
The grounds for his appeal against conviction are:
(a)the jury was placed under undue time pressure to reach verdicts;
(b)the jury was misdirected in relation to charges 13 and 14;
(c)the verdicts are inconsistent with each other. Specifically:
(i)The not guilty verdict on charge 6 is inconsistent with the guilty verdicts on charges 8, 9, 10 and 11; and
(ii)The not guilty verdict on charge 12 is inconsistent with the guilty verdicts on charges 13 and 14.
With respect to appellant’s appeal against his sentence of home detention, this sentence has a little over a month remaining. As such, the appellant seeks only that a shorter sentence of home detention be imposed. He also appeals against the refusal to grant a discharge without conviction as he contends that the consequences of his convictions are out of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chai v The Queen

Details

AGLC: Chai v The Queen [2019] NZCA 628
Case: [2019] NZCA 628
Decision Date: 4 December 2019 at 12 noon

CaseChat Overview and Summary

The appeal against conviction on charges 13 and 14 is allowed. The conviction on charges 13 and 14 is quashed. A judgment of acquittal is entered with respect to charges 13 and 14. The appeal against conviction on the remaining charges is dismissed. The appeal against refusal to grant a discharge without conviction is dismissed. The appeal against sentence is allowed in part. A sentence of six months’ home detention expiring on 5 December 2019 is substituted for the sentence imposed of seven months’ home detention, but otherwise the post-detention conditions are to remain.

The appellant, Hooi Keat Chai, was found guilty of charges relating to immigration fraud and producing false documents. He appealed against his convictions and sentence, arguing that the jury was under undue time pressure, there was a misdirection in relation to certain charges, and the verdicts were inconsistent. The Crown conceded that the jury's guilty verdicts on charges 13 and 14 were unsafe due to the misdirection and did not resist the appeal against conviction on those charges. The court found that the verdicts on charges 8, 9, 10, and 11 were consistent and not affected by the misdirection. The appeal against refusal to grant a discharge without conviction was dismissed, as the consequences of the convictions were not out of proportion to the gravity of the offending. The appeal against sentence was allowed in part, reducing the home detention sentence by one month.

Orders