Chen v Ministry of Fisheries HC Auckland CIV 2010-404-190

[2010] NZHC 913

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-000190

XIAOGIANG CHEN

Appellant

v

MINISTRY OF FISHERIES

Respondent

Hearing:         10 June 2010

Appearances: P T R Heaslip for the Appellant

S K Barr for the Respondent

Judgment:      10 June 2010

ORAL JUDGMENT OF DUFFY J

Solicitors:   P T R Heaslip P O Box 4108 Shortland Street Auckland 1140 for the Appellant Luke Cunningham and Clere P O Box 10357 The Terrace Wellington 6143 for the Respondent

CHEN V MINISTRY OF FISHERIES HC AK CRI-2010-404-000190 10 June 2010

[1]      Mr Chen is someone who has filed an application for leave to appeal his conviction under the Fisheries Act 1996 out of time.  He seeks to have bail granted to him, and the current sentence he is serving suspended until such time as his application for leave to appeal, and any appeal which may eventuate  from that application, is heard.

[2]      The  Ministry  of  Fisheries  does  not  oppose  the  applications  Mr  Chen  is making.  This is because Mr Chen’s case falls within a class of case that have been affected by this Court’s decision in Vu v Ministry of Fisheries HC Auckland CRI-

2009-404-000263, 18 May 2010.  The Ministry has been granted leave to appeal the decision in Vu to the Court of Appeal.

[3]      Until such time as there is a final determination on the law as decided in Vu, the outcome of Mr Chen’s case will not be known.  Both Mr Chen and the Ministry are, therefore, of the view that the best way of dealing with his matter is simply to adjourn it until such time as a final outcome in Vu is known.

[4]      Mr Chen’s matter is, therefore, adjourned to a date to be set by the Registry no earlier than 1 November 2010.  The Registry is to liaise with counsel to obtain a date that is convenient to both counsel some time after 1 November 2010.

[5]      Mr Chen is granted bail on the following conditions:

i)That he reside at 123 Flat Bush Road, Clover Park, Manukau, Auckland;

ii)       That he is not to hold or possess his current passport; and iii)  That he is not to apply for a new passport.

[6]      Although it is not a term of his bail, I note that at present, as a result of the community based sentence he has been serving, it is likely that Mr Chen’s passport is either with the Ministry of Fisheries or the District Court.  Since this Court is now seized  of  the  matter,  it  would  make  sense  for  enquiries  to  be  made  to  locate Mr Chen’s passport, and for it to be handed to the Criminal Registry of this Court.

[7]      An earlier direction had been made that this matter would be called in Court on 15 June 2010.   The hearing today removes any necessity for the matter to be called before 1 November 2010 unless new developments occur, and, for that reason, the hearing on 15 June is vacated.

Duffy J