Chai v The Queen

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.

____________________________________________________________________

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 all proportion to the gravity of that offending.
On 4 December 2019 we issued a results judgment with reasons to follow. These are those reasons.[2]

Factual background

[2]Chai v R [2019] NZCA 615.

The appellant, a Malaysian national, arrived at the Auckland International Airport on 29 October 2003 presenting a Malaysian passport in the name of Kok Tong Chai. Given that he was from a visa-free country the appellant was not required to obtain a visa prior to travel. He applied for and was granted a three-month visitor’s permit.
Later, the appellant obtained a further visitor’s permit which expired on 29 April 2004. On expiry of that permit he remained in New Zealand until his departure on 19 June 2005.
On 14 October 2005 the appellant changed his name by deed poll to Hooi Keat Chai and was issued a new passport in that name.
Soon after that, on 21 November 2005, the appellant arrived at Auckland International Airport and presented his new passport. He applied for and was granted a visitor’s permit for three months.
On 13 February 2009, 26 February 2009, 10 September 2010 and also 21 September 2010 the appellant submitted Work Permit Essential Skills applications to Immigration New Zealand. A reference letter from a Malaysian company, Seng Aik Construction and Renovation stating periods when he was employed by that company was submitted with each application.
Between 21 November 2005 and 11 July 2014, the appellant submitted a number of visa/permit applications including an application for permanent residence. Permanent residency was granted to the appellant on 28 August 2015.
Over this time span the appellant had travelled to Malaysia on a number of occasions and presented his passport and visas to Immigration New Zealand on his return.

Charges

The Crown charged the appellant with:
(a)10 charges of providing false or misleading information to an Immigration Officer, either in a visa application or in a document accompanying a visa application (the false and misleading charges); and
(b)13 charges of producing an immigration document (for example a work visa at the border upon entry) knowing it to have been obtained fraudulently (the producing charges).
At his trial, as we have noted, the appellant was found guilty by the jury on six of these charges, being charges 8, 9, 10, 11, 13 and 14. Details of these charges are:

(a) Charge 8 — provision of false or misleading information

(a)On 26 February 2009, while in New Zealand on a work visa, the appellant submitted a Work Permit Essential Skills application to Immigration New Zealand at Auckland.
(b)In section F3 of that application the appellant stated that he had worked as a contract tiler in Malaysia for Seng Aik Construction and Renovation from 1 February 2001 to 31 May 2004. It further specified that he then worked for the same company as a site supervisor from 1 June 2004 to 30 June 2005.
(c)This information was false. From 29 October 2003 to 19 June 2005 the appellant had been living in New Zealand under the name Kok Tong Chai, he having changed his name by deed poll to Hooi Keat Chai on 14 October 2005. The appellant had entered New Zealand on 29 October 2003 on a visitor’s permit which expired on 29 April 2004 and he had lived unlawfully in New Zealand until his departure on 19 June 2005.
(d)In this 26 February 2009 application, the appellant had signed the “Declaration” section of the application confirming he had “provided true and correct answers to the questions in this form”. Immigration New Zealand approved the application.

(b) Charges 9, 10, 11, 13 and 14 — producing a fraudulently obtained visa

(a)Between July 2009 and February 2012, the appellant had departed New Zealand for Malaysia on five separate occasions. Then, between August 2009 and December 2011, the appellant had also on five occasions arrived back at Auckland International Airport and, on each occasion, he presented to an immigration officer his Malaysian passport in the name Hooi Keat Chai.
(b)His passport contained a work visa previously issued as a result of the appellant providing false or misleading information to Immigration New Zealand in his application. Charges 9, 10, 11, 13 and 14, all involved allegations that he had produced a work visa knowing it to have been obtained fraudulently.

The Crown maintains there was an element of linkage between the charges in that the producing charges all followed a false and misleading charge. If the jury found the appellant guilty on a false and misleading charge, they would have found that he had obtained the visa fraudulently and it would follow that his production of that visa at the border would be done with knowledge of that fact.
The jury returned a verdict of guilty on only one false and misleading charge (charge 8). This related to the appellant including false work history dates on a work visa application form. Verdicts of guilty were also reached on three producing charges relating to the three times he entered the country using that visa which were charges 9, 10 and 11.
The jury also returned guilty verdicts on the two further charges of producing a work visa (charges 13 and 14) but before us the Crown noted that these charges related to a different visa. A false and misleading charge had been laid by the Crown with respect to the application form for that visa (charge 12) with the false or misleading particular identified being the appellant’s failure to disclose his change of name. He was found not guilty on charge 12.
The appellant, however, was found not guilty by the jury of all the charges he faced relating to not disclosing that his name had been changed by deed poll. Verdicts of not guilty were also returned on all the remaining producing charges which related to producing residence visas or permanent residence visas.

Conviction appeal grounds

Ground 1 — Undue time pressure on the jury

Under this ground the appellant maintains the jury was placed under undue pressure to reach verdicts. It is said this pressure arose in the context of the Judge not:
(a)discharging the jury or the foreperson on the Friday after being advised that the foreperson would not be available to deliberate the following Monday and did not address this issue with the jury; and, alternatively,
(b)including in a majority direction that the jury were under no time pressure to reach verdicts.[3]
[3]Hastie v R [2012] NZSC 58, [2013] 1 NZLR 297.
The appellant’s trial had been set down for five days commencing on the Monday of that week. On the Friday the jury retired at 2.10 pm after the Judge had concluded her summing up. During the trial, Ministry of Justice staff at the District Court who were members of the Public Service Association (PSA) union were participating in industrial action which included a “work to rule” approach to work hours. This involved working only to contractually prescribed hours, finishing the work day at 4.45 pm and not working any overtime. The Registrar involved in this particular trial was a PSA member so was not available after 4.45 pm. The trial Judge was conscious of this. She discussed with counsel the possibility of continuing the trial the following week if the jury had not returned verdicts by 4.45 pm on the Friday. It seems this was feasible and suitable to both Crown and defence counsel. When discussing this issue with counsel the Judge commented that it was better that the jury were not informed of this difficulty earlier to avoid them hurrying with their deliberations.
At 4.43 pm the Judge asked the jury to return and she explained the situation. Her comments made it clear to the jury that the ordinary approach would be to give them a choice between continuing to deliberate that evening or resuming on the following Monday. She made it clear at that point that the industrial action was the only reason they were not given that choice.
The foreperson of the jury then raised in Court the fact that he was not available on the following Monday due to work commitments. An exchange occurred between the Judge and the jury. All members of the jury, other than the foreperson, were available to continue deliberating on the following Monday morning. The Judge made clear to the jury that that they could continue deliberating on the Monday morning without the foreperson.
In the meantime, the Court had managed to locate a non-PSA Registrar who was available to allow the jury to continue deliberating on that Friday evening. The Judge informed the jury of this at 5.19 pm. The jury decided to continue their deliberations. They were also given the option of dinner, which they declined.
The jury then continued deliberating for a further hour before asking a question which indicated they had reached agreement on some charges but not others.
By this time the jury had been deliberating for close to four and a half hours. The Judge considered, with the agreement of both counsel, that a majority direction ought to be given. She did this at 6.44 pm.
In her majority verdict direction, the Judge informed the jury that even if they were agreed 11-1 that was not the end of the matter. They needed to be confident that they could not reach unanimity and had to assure the Court of this confidence.
Shortly after the majority direction was given, the jury returned with a question regarding false evidence which is the subject of the second ground of appeal. Discussions regarding this question occurred in chambers between the Judge and counsel and the question was answered at 7.52 pm.
The Jury then continued deliberating for almost another hour and the verdicts, which were unanimous on all charges, were ultimately delivered at 8.47 pm.
Majority verdicts in criminal cases are provided for in s 29C of the Juries Act 1981. If a jury has been deliberating for more than four hours, or such longer period as the Judge may consider reasonable given the nature and complexity of the case, and the jury has not reached a unanimous verdict with the foreperson stating in open court there is no probability of this occurring, then subject to an appropriate direction being given by the Judge, the Court may accept a majority verdict.
It is clear that a jury is not to be placed in a position where it feels under undue pressure to reach a verdict because, for example, a retrial is possible.[4] Enquiries of a jury as to progress may be made. But the jury needs to be informed that these enquiries are not intended to hurry them up and they should not feel themselves under any pressure to return a verdict. Similarly, where a jury has deliberated until late in the day, the Judge must ensure that the jury are aware they may cease deliberations overnight and resume the following day.[5]
[4]R v Accused (CA87/88) [1988] 2 NZLR 46 (CA).
[5]Burgess v R [2017] NZCA 42 at [39].
The appellant contends here that the jury was placed under undue pressure to reach verdicts after the Judge did not discharge the jury or the foreperson when she was advised that the foreperson would not be available to deliberate the following Monday. In addition, it is claimed the Judge did not properly address this issue with the jury. As an alternative, the appellant maintains that majority verdicts should have been taken or the Judge should have included in her direction a specific direction that the jury were under no time pressure to reach verdicts.
We are not persuaded by these submissions. There is nothing before us to suggest this was a jury under pressure. We are satisfied too that the Judge properly followed s 29C(2)(c) of the Juries Act in her majority verdict direction in ensuring the jury were aware that they had not only to reach majority verdicts but also to be agreed that they were not going to reach unanimous verdicts. The jury finally delivered their verdicts, which were all unanimous, over six and a half hours after they had commenced their deliberations. This six and a half hour period was an unremarkable length of deliberation for a week-long trial involving many charges and very document-heavy issues. We are satisfied that at no time did the Judge suggest to the jury that there was any particular time pressure on their delivering a verdict. She had explained to them the possibility of continuing their deliberations on the following Monday. Once the non-PSA Registrar became available, the jury had decided to continue with their deliberations on the Friday, conscious that they had other options available.
As we see it, the jury undertook a detailed deliberation as evidenced in part by the second question it asked at 7.07 pm to which we refer below.
We reject the appellant’s contention that the jury was placed under undue pressure to reach its verdicts within specific time limits and, further, that the trial Judge should have discharged them and the foreperson.
Although the Judge in her majority direction did not include a specific direction that the jury were under no time pressure to reach verdicts, given all the circumstances, this could not be said to have placed undue pressure on the jury to deliver verdicts.
For all these reasons this first ground of appeal is dismissed.

Ground 2 — misdirection on jury question

At 7.07 pm on the Friday evening of the trial the Court convened to address a question received from the jury which relevantly asked:
Can our verdict on a charge for producing a fraudulently obtained visa be based on information we believe to be false evidence, even if it has not been previously charged as a particular in the application for that visa?
The Judge’s direction in response to this question was:
As you are aware the production charges are linked to the supply charges but I do remind you that each charge needs to be considered in its own right. You must rely on an element of fraud or one of the particulars that has been alleged in the supply charges and that you have heard in Court. You are entitled to consider all the evidence given during the trial but you need to isolate that evidence as it applies to each charge and application referred to.
Under this ground the appellant argues that the trial Judge misdirected the jury as to the “false evidence” which they could rely on.
Before us, counsel for the Crown conceded there is some uncertainty in the direction given by the Judge. In particular:
(a)it does not make it clear whether the verdicts are based on an unknown particular or particulars; and
(b)it is not clear whether the jury were required to be unanimous on which particular piece of information was the false information relied on.
Given this lack of clarity, and considering it along with the fact that the jury found the appellant not guilty on charge 12 (which formed the basis of the Crown’s allegation of false information at trial being linked to charges 13 and 14), the Crown conceded that the jury’s guilty verdicts on charges 13 and 14 are unsafe and should be set aside. The inconsistency in verdicts on charge 12, on the one hand, and charges 13 and 14, on the other, are likely to be the result of the misdirection.
As a consequence, the Crown does not resist the appeal against conviction on charges 13 and 14. An order quashing these charges and entering a judgment of acquittal will follow.
We are satisfied, however, that it is not appropriate for this same reasoning to be applied, as the appellant endeavours to do, with respect to the verdicts on charges 9, 10 and 11. The jury had found the appellant guilty on charge 8 which related to his personally signing a visa application providing false and misleading statements. The application form was signed personally by the applicant knowing it was false. The verdict on charge 8 means that the jury were unanimous on the elements required for charges 9, 10 and 11 involving false information. It is also possible that the jury might have found more instances of false or misleading information but that does not render the verdicts on these charges 9, 10 and 11 unsafe.
Further, we are satisfied the verdicts on charges 9, 10 and 11 are consistent with the verdicts on the other charges and cannot be said to have resulted from the misdirection which the Judge gave in respect of the jury question noted above.
This second ground of appeal advanced by the appellant succeeds insofar as the guilty verdicts on charges 13 and 14 are concerned which are to be quashed but it fails insofar as charges 8, 9, 10 and 11 are concerned.

Ground 3 — incompatible verdicts

The appellant contends there are two instances of inconsistent or incompatible verdicts:
(a)the guilty verdicts returned on charges 8, 9, 10 and 11 (for submitting an application form containing false work dates and subsequently presenting the visa from that application at the border) are incompatible with the not guilty verdict on charge 6 (for submitting a work reference letter together with the application for a work visa which contained false information); and
(b)the guilty verdicts returned on charges 13 and 14 (for producing a fraudulently obtained work visa) are incompatible with the not guilty verdict returned on charge 12 (for failing to disclose the appellant’s change of name in this corresponding visa application form).

Where no reasonable jury could, on the evidence properly available, have arrived at different verdicts on different charges, a resultant conviction may be regarded as unreasonable and liable to be set aside under s 232(2)(a) of the Criminal Procedure Act 2011.[6] The question may be described as whether an acquittal on one particular charge renders a guilty verdict on another unsafe in the sense that no reasonable jury could have arrived at different verdicts on the two different charges. Inconsistent verdicts may be unreasonable when the evidence relating to one charge is so wound up with the evidence on the other that it is not logically separable. The onus is on the appellant to establish that inconsistency in the respective verdicts.[7]
[6]B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [24].
[7]R v Wong [2009] NZCA 440 at [27].
Turning now to the first instance of incompatibility submitted by the appellant, we find that the appellant has not satisfied the onus on him to establish any inconsistency for the following reasons:
(a)At trial the appellant’s evidence had been that the work reference letter had been obtained by his immigration advisor, Frankie Wong, and he had not seen it. If the jury believed that the appellant had not seen the reference letter which accompanied his application form, then they could quite properly have returned a verdict of not guilty on charge 6.
(b)On charge 8, however, the false or misleading information was provided in the form itself. Importantly, the form had been signed by the appellant.
(c)The verdict of not guilty on charge 6, together with the verdict of guilty on charge 8, can be properly explained by the jury believing the appellant’s evidence that he had not seen the work reference letter (or being left with a reasonable doubt on this) but not believing his evidence that he had not seen the incorrect dates on the form he signed.
As to the second submitted incompatibility relating to the guilty verdicts on charges 13 and 14, we need say nothing further on this given the respondent’s concession and our conclusion above that these verdicts must be set aside on the basis of the Judge’s direction in response to the jury’s second question.

Appeal against sentence

Following his jury trial, the appellant was sentenced to a period of seven months’ home detention expiring on 5 January 2020, with six months’ post detention conditions.[8]
[8]R v Chai, above n 1, at [24].
The appellant advances two submissions on his sentence appeal:
(a)given that his home detention sentence is almost complete it is not practical to make any submission other than this sentence should be reduced to a shorter term of home detention; and
(b)he applies for a discharge without conviction on the basis that the consequences of a conviction are out of all proportion to the gravity of the offending and in the alternative a non-custodial sentence should be imposed.
In response, the Crown accepts that if, as we have found, the appellant’s convictions on charges 13 and 14 are to be quashed, a small reduction in the home detention sentence of one month should be allowed. The Crown says that the appellant’s appeal against a refusal of discharging him without conviction, however, should be dismissed.
As to the first aspect, we are satisfied that a sentence of home detention was appropriately imposed in the District Court and this remains the appropriate outcome with a reduction for the change in the convictions remaining against the appellant. The end sentence imposed in the District Court was within range and, given other authorities, might even be seen to be generous.[9]
[9]Ministry of Business, Innovation and Employment v Prasad [2006] NZDC 26534; Pitts v Department of Labour HC Christchurch CRI-2011-409-104, 16 November 2011.
In all the circumstances here, we are satisfied that the appropriate reduction in the appellant’s home detention sentence is one month which would have that sentence concluding on 5 December 2019. An order to this effect is to follow.

Appeal against refusal of a discharge without conviction

Turning now to the appellant’s appeal against refusal to discharge him without conviction, we are satisfied that this must fail. The consequences of the appellant’s convictions here are not out of all proportion to the gravity of his offending.[10]
[10]Sentencing Act 2002, s 107.
As to the gravity of the remaining offences for which the appellant is convicted, these offences involve deliberate deception of immigration authorities and are inherently serious as reflected by the maximum penalty on each charge of seven years’ imprisonment. In Lee v Department of Labour, Stevens J noted that:[11]
Whatever form the fraudulent activity may take, be it in relation to passports or qualifications, or the concealment of true identities, it is to be viewed seriously by the Courts.
[11]Lee v Department of Labour HC Auckland CRI-2007-404-126, 9 July 2007 at [31]
The appellant’s offending here is serious. This is reflected in the end sentence imposed by the District Court, being one of home detention, as the most restrictive sentence short of imprisonment.
We turn now to consider the consequences to the appellant of a conviction. On this, the Court needs to be satisfied that there is a “real and appreciable risk” that the identified consequences will occur.[12]
[12]DC (CA47/2013) v R [2013] NZCA 255.
In cases such as this where an offender has alleged adverse consequences to their immigration status in New Zealand, a clear line of authority has established that the courts are not to usurp the role of the immigration service to decide what effect a conviction should have.[13]
[13]Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [14] (and the authorities cited therein).
Any effect on the appellant’s immigration status is a matter best left to Immigration New Zealand.
The appellant also endeavours to argue that consequences of a conviction will flow for his business. In an affidavit before the District Court from Jason Chooi, dated 10 May 2019, the adverse consequences which the appellant’s company has already endured as a result of the publicity about the appellant’s charges are set out. Many of these suggested adverse consequences on which the appellant relies have already occurred, however. It is hard to see now how they could be regarded as an ongoing direct or indirect consequence of a conviction.
Lastly, in conducting the balancing exercise as to whether the direct and indirect consequences of the appellant’s convictions are out of all proportion to the gravity of his offending, we are satisfied these are some way from meeting the threshold test. The appellant’s offending is serious and the impact of convictions are likely to be no more than the ordinary consequences of criminal offending.
The appellant’s appeal against refusal of a discharge without conviction is dismissed.

Result

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.

Solicitors:
Crown Solicitor, Auckland for Respondent

[2019] NZCA 628

4 December 2019 at 12 noon