Chen v R

[2009] NZCA 445

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA770/2008
CA780/2008
CA795/2008
CA11/2009
CA35/2009
CA36/2009
CA37/2009
CA38/2009
CA310/2009
[2009] NZCA 445

THE QUEEN

v

CHEN MING CHIN
DENG GUO WEI
PAN WEI FENG
FAN LI
FUNG KAI LOK

Hearing:23-24 July 2009

Court:William Young P, Robertson and Baragwanath JJ

Counsel:H D M Lawry for Chen Ming Chin

D G Young for Deng Guo Wei on 23 July 2009
M J Dyhrberg for Deng Guo Wei on 24 July 2009
M J Dyhrberg for Pan Wei Feng
Fan Li in person in CA11/2009 appeal against conviction
G J Newell for Fan Li in CA11/2009 and CA38/2009 appeals against    sentence
D Reece for  Fung Kai Lok
D G Johnstone and B Finn for Crown

Judgment:30 September 2009 at 11am

JUDGMENT OF THE COURT

ALeave to appeal out of time is granted to Fung Kai Lok and to the Solicitor-General.

BThe appeals against conviction and sentence by Chen Ming Chin, Pan Wei Feng, Deng Guo Wei and Fan Li are dismissed.

CThe appeal against sentence by Fung Kai Lok is allowed.  The sentence of 15 years imprisonment is set aside and replaced by a sentence of ten years imprisonment.

DThe appeals against sentence by the Solicitor-General are allowed to the following extent:

(i)His appeal against the sentence of Chen Ming Chin and Pan Wei Feng to 12 years imprisonment on counts 3-6 and 9-10 is allowed.  Sentences of life imprisonment on each count in relation to both prisoners are substituted in relation to both prisoners.

(ii)His appeal against the sentence of Deng Guo Wei of 17 years imprisonment with a non-parole period of eight years six months years on count 14 is allowed.  A sentence of 25 years imprisonment with a non-parole period of ten years is substituted.

(iii)His appeal against the sentence of Fan Li of 19 years six months with a non-parole period of nine years six months on count 14 is allowed.  A sentence of 25 years imprisonment with a non-parole period of ten years is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Baragwanath J)

Table of Contents

Para No

I INTRODUCTION  [1]
OVERVIEW  [3]
           THE CROWN THEORY  [5]
           THE VERDICTS  [7]
           THE SENTENCES  [14]

II THE APPEALS AGAINST CONVICTION
FACTUAL CONTEXT  [15]
THE TRIAL  [23]
MR CHEN: APPEAL AGAINST CONVICTION  
           MR CHEN’S SUBMISSIONS  [24]
           I INSUFFICIENCY OF EVIDENCE  [25]
           II INCONSISTENCY OF VERDICTS  [26]
           III ERRORS IN SUMMING UP  [27]
           IV PERMITTING TRIAL TO CONTINUE AFTER “TAINTING”; THE TENTH JUROR
                  PROBLEM; THE DECISION TO CONTINUE WITH TEN JURORS   [28]

Discussion  
           I Insufficient evidence
           Mr Chen’s continuing involvement in the Isaac and Prosperity            
                shipments  [29]

Conclusion as to presence of drugs in all shipments from Polymer 2    [34]

Conclusion as to sales of drugs  [35]

Further evidence against Mr Chen  [37]

II Inconsistency in verdicts

The law  [40]

Its application  [41]

III The summing up  [44]
           (a) Failure to direct the jury as to what evidence was admissible and
                inadmissible  [45]
           (b) The absence of directions as to Mr Fung’s conversation with
                “Raymond” and the co-conspirators rule  [47]

(c) Party liability under s 66(2) of the Crimes Act [51]

(d) Error in suggesting onus on defence to establish innocence            [59]
           IV Permitting the trial to continue after “tainting”; the tenth
                juror problem; the decision to continue with ten jurors                 [62]
The ”tainting”  [63]
           The tenth juror  [73]
           Were there exceptional circumstances?  [77]
Conclusion  [81]

MR PAN: APPEAL AGAINST CONVICTION  [82]

Mr Pan’s submissions  [83]

I Insufficiency of evidence  

The Crown’s submissions  [84]

Polymer and Jin Da  [85]

Isaac and Prosperity: continuing liability under s 66(2)  [90]

Mr Pan’s submissions  [93]

Discussion  [98]

II Admission of inadmissible and prejudicial evidence  [100]

III Unfair revocation of bail during cross-examination and

comment by Judge  [108]

IV Wrongly permitting trial to continue with ten jurors  [110]

V Misdirection

The summing up – the effect of Mr Pan’s evidence  [111]

Discussion  [116]

The summing up – motive to lie  [118]

Decision  [131]

Mr Deng: appeal against conviction  

Mr Deng’s submissions  [132]

(1)   The verdict was not supported by the evidence  [133]

(2)   Miscarriage of justice  

(a) Failure to exclude the powder evidence  [144]

(b)   The criticism of Mr Deng’s decision to exercise his right                

to silence  [150]
(c) Failure sufficiently to explain elements of joint possession             [155]

MR FAN: APPEAL AGAINST CONVICTION

Mr Fan’s submissions  [163]

DECISION  [168]

III THE APPEALS AGAINST SENTENCE

Mr Chen  [169]
           Basis of appeal by Mr Chen[171]

Discussion  

Mr Chen’s role  [172]

The application by the Solicitor-General  [180]

Decision  [184]

Mr Pan  [185]

Decision  [189]

Mr Deng  [191]

Decision  [203]

Mr Fan  [204]

Decision  [209]

Mr Fung  [210]

Decision  [215]

I  INTRODUCTION

[1]       Chen Ming Chin, Pan Wei Feng, Deng Guo Wei and Fan Li appeal against their convictions on counts which related primarily to the Class A drug methamphetamine.  They also appeal against their sentences, which included life imprisonment for Messrs Chen and Pan.  The Solicitor-General applies for leave to appeal out of time against aspects of their sentences and submits that life terms should be imposed on Messrs Deng and Fan.  Fung Kai Lok, who pleaded guilty to related counts, applies for leave to appeal out of time against sentence.

[2]       This judgment is in three sections: Introduction; Conviction Appeals; and Sentence Appeals.

Overview

[3]       The case concerns charges against the appellants arising from the importation from the Peoples Republic of China to New Zealand of seven consignments carried in shipping containers and alleged by the Crown to contain methamphetamine or pseudoephedrine.

[4]       While there had been a search of the fifth shipment which did not reveal anything untoward, the real Police investigation began with the arrival in New Zealand in May 2006 of two containers shipped from China (shipments six and seven).  One, consigned to Isaac International Trade Company Ltd, contained 96kg of methamphetamine and the other, consigned to Prosperity International Ltd, contained 154kg of pseudoephedrine.  Caught red-handed with the Isaac shipment at an Auckland storage unit, Mr Fung agreed to co-operate with the Police and later pleaded guilty to a count of importing methamphetamine in the Isaac shipment.  Mr Fung was instructed by telephone from China to deliver 40 1kg bags of the Isaac shipment to a carpark for collection by others within the enterprise.  There followed Police surveillance of a car to which Mr Fung made delivery.  Messrs Deng and Fan were seen to drive the car to an address in Kohimarama Road occupied by Mr Fan.  Surveillance of another container at a storage unit containing the Prosperity container led to the arrest of Leung Kin Kwock who was acquitted at the subsequent trial.  Further investigation led to the examination of the five earlier shipments in which Messrs Chen and Pan were involved.  The respective consignees were Polymer 1, Polymer 2, Polymer 3, Jin Da, and Polymer 4.  The Isaac and Polymer shipments were from Shekou, the port of Shenzhen, just south of Dong Guan where Mr Chen’s business was based. The Prosperity and Jin Da shipments were both from the inland city of Zhongshan.

The Crown theory

[5]       The Crown claimed that the appellants and others were responsible for the seven consignments of which at least the last six were alleged to contain large quantities of methamphetamine or pseudoephedrine.  The major player was “Raymond”, who was based in China and was never in New Zealand.  Near the top of the hierarchy was Mr Chen whose business in Dong Guan sold epoxy or polyurethane flooring paint which was the concealment agent in the Isaac and Prosperity consignments and was the major cargo item listed in each Polymer bill of lading.  The Crown contended that:

(a)Mr Chen, though based in China, was directly involved in both the despatch of each Polymer shipment and the Jin Da shipment and also their reception in New Zealand.  He was also linked with the Prosperity transaction and returned to New Zealand shortly after the Isaac and Prosperity shipments.

(b)Mr Pan, who lived in Auckland, was directly involved in each Polymer shipment and the Jin Da shipment and provided assistance for the Prosperity and Isaac shipments.

(c)Mr Deng, another New Zealand resident, who had been out of New Zealand and returned the day before the delivery of the Isaac shipment, was a major participant in that transaction. 

(d)Mr Fan, who also lived in Auckland, was the occupant of Kohimarama Road and a distributor of the drugs.

(e)Mr Fung came to New Zealand to prepare for the Isaac transaction.  He was a middle man crucial to the success of that plan.

[6]       Co-accused also charged but acquitted were Mr Zhang, who had involvement not established as criminal in the Jin Da transaction, as well as Mr Leung who had similar involvement with the Prosperity consignment.

The verdicts

[7]       A High Court jury convicted Messsrs Chen, Pan, Deng and Fan of counts alleging involvement at different times and in different respects in a scheme to import into New Zealand very large quantities of controlled drugs.

[8]       The convictions related to six consignments from China, four of methamphetamine and two of its precursor substance pseudoephedrine, each concealed within a shipping container.  The dates and details of those consignments and an earlier shipment not proved to contain drugs were as follows:

Shipment (Name of Consignee)	Drugs	Date of arrival NZ
Polymer 1	None proved	4 April 2005
Polymer 2	Methamphetamine	26 May 2005
Polymer 3	Methamphetamine	5 August 2005
Jin Da	Pseudoephedrine	8 August 2005
Polymer 4	Methamphetamine	30 December 2005
Isaac International	Methamphetamine	13 May 2006
Prosperity International	Pseudoephedrine	18 May 2006

[9]       The first shipment, to Polymer Technology Ltd (“Polymer 1”), which was not proved to contain drugs, may have been a dummy run.  Drugs seized from the sixth and seventh shipments during May 2006 had a potential street value of some $138,000,000.  The Crown contended that the other shipments also involved drugs of high value. 

[10]     Mr Fung’s plea of guilty was to one count arising from the Isaac shipment of importing methamphetamine.  He was sentenced by Stevens J to 15 years imprisonment.  

[11]     Messrs Chen and Pan were acquitted at trial before Courtney J on counts:

(1)importing methamphetamine on or about 4 April 2005 (consignee Polymer 1); and

(2)selling methamphetamine between 4 April and 26 May 2005.

They were convicted on counts:

(3)importing methamphetamine on or about 26 May 2005 (consignee Polymer 2);

(4)selling methamphetamine between 26 May and 4 August 2005;

(5)importing methamphetamine on or about 5 August 2005 (consignee Polymer 3);

(6)selling methamphetamine between 5 August and 30 December 2005;

(7)importing pseudoephedrine on or about 8 August 2006 (consignee Jin Da);

(8)selling pseudoephedrine  between 8 August and 18 May 2006;

(9)importing methamphetamine on or about 30 December 2005 (consignee Polymer 4);

(10)selling methamphetamine between 30 December 2005 and 15 May 2006;

(11)importing methamphetamine on or about  15 May  2006 (consignee Isaac International);

(12)importing pseudoephedrine on or about 18 May 2006 (consignee Prosperity International).

[12]     Messrs Deng and Fan were found guilty on one joint count (14) of having methamphetamine in their possession for sale on 22 May 2006 (Isaac).

[13]     Mr Fan was found guilty on three further counts:

(15)possession of pistols without some lawful and sufficient purpose;

(16)possession of a machine gun without some lawful and sufficient purpose;

(17)selling methamphetamine between 1 January and 22 May 2006 (Polymer 4 shipment).

The sentences

[14]     Courtney J imposed the following concurrent sentences, of which those marked in bold are the subject of application by the Solicitor-General for leave to appeal:

Mr Chen: life imprisonment on the Isaac importing count (11);

12 years on each of the other counts of importing and selling methamphetamine (3-6 and 9-10);

eight years on the Prosperity count of importing pseudoephedrine (12);
four years on the other pseudoephedrine counts (7-8)

Mr Pan: the same sentences as Mr Chen, including the Solicitor-General applications.

Mr Deng: 17 years with a non-parole period of eight years six months in respect of the Isaac shipment (14)

Mr Fan: 19 years six months with a non-parole period of nine years six months in respect of the Isaac shipment (14)

Ten years imprisonment in respect of selling methamphetamine (Polymer 4 shipment 17);

Two years imprisonment in respect of each firearms charge (15-16).

II THE APPEALS AGAINST CONVICTION

Factual context

[15]     On the Crown case each of the shipments involved a similar modus operandi.  A foreign national (initially Mr Chen) would arrive in New Zealand and set up a company.  He would also undertake other associated tasks such as opening bank accounts, post office boxes and arranging office space.  He would then return to China, organise a shipment and arrange for a customs broker to clear it through the New Zealand Customs Service (Customs).  The operative would arrive back in New Zealand shortly before the shipment and organise the storage and unpacking of the shipment.  Concealed in the containers were controlled drugs under the guise of and hidden among plastics, paint, rubber or plaster products.

[16]     The Crown alleged that, after Customs conducted an unsuccessful search of the Polymer 4 shipment in December 2005, those responsible for the importations tried to avoid detection of further importations by changing the personnel and the names of the companies directly involved, and the brokers and other innocent third parties used in the importations.  But the modus operandi remained substantially the same for the two final shipments.

[17]     The evidence covered the period from April 2005 to May 2006.  Much of the investigation was performed retrospectively after Customs intercepted and undertook controlled deliveries of the last two shipments in May 2006.  The first of these, consigned to Isaac International Trade Company Ltd (the Isaac shipment), arrived in New Zealand on 13 May 2006.  When opened by Customs at Auckland the approximately 96kg of methamphetamine it was found to contain had a purity level of 79 per cent and was packed in 1kg bags concealed individually within resin blocks in the base of tins of paint.  The final shipment (the Prosperity shipment) consigned to Prosperity International Ltd, arrived in New Zealand on 18 May 2006.  When opened by Customs the 154kg of pseudoephedrine it contained was in the form of ContacNT granules within and amongst a container of around 600 bags of plaster.

[18]     In the course of the controlled deliveries by Customs and Police of both shipments on 19 May 2006, the Isaac shipment was delivered to a storage unit.  There, at about 5.00pm that day, Police intervened and arrested the man receiving it, Mr Fung.

[19]     Mr Fung agreed to co-operate with the Police.  He remained in telephone contact with the man “Raymond” in China, who instructed Mr Fung to deliver 40 of the 1kg bags of the drugs to a car park at the St Lukes shopping centre for collection by others within the enterprise.

[20]     Customs and Police prepared substitute packages containing approximately 20kg of a placebo, together with approximately 50g of the imported methamphetamine, for delivery to the St Luke’s car park in a car that had been hired by Mr Fung.  At about 3pm on 22 May 2006, once the car was in position, Mr Fung notified “Raymond” in China.

[21]     At about 3.45pm that day Messrs Deng and Fan went from a house at 291A Kohimarama Road to St Lukes in a vehicle driven by Mr Fan.  Mr Fan approached the rental vehicle, collected the keys from where they had been left within a wheel arch and collected Mr Deng who had remained near the vehicle in which he had arrived.  They departed with a rubbish bag full of methamphetamine.  Police and Customs then followed Mr Deng and Mr Fan to the Kohimarama Road house, where they were later found in possession of the delivered methamphetamine and arrested.   

[22]     Also on 19 May 2006 the Prosperity shipment had been delivered to a different storage unit, where Police observed a man identified as Leung Kin Kwok supervising the unloading of the shipment.  On 22 May 2006, after Mr Deng and Mr Fan had been arrested, Mr Leung was arrested attempting to leave New Zealand on a flight to Singapore. He was later charged with importing the Prosperity shipment, but was acquitted when tried jointly with Messrs Chen, Pan, Deng, Fan and Zhang.

The trial

[23]     Each accused gave evidence. Messrs Pan and Zhang ran cut-throat defences.  Hostile cross-examination of Mr Pan by counsel for Mr Zhang led to withdrawal of Mr Pan’s bail, which gave rise to a ground of appeal.  A letter from a juror expressing a social interest in one of counsel led to the juror’s dismissal and an argument that the trial had miscarried.  The Judge’s decision to continue the trial with ten jurors led to a further challenge to the procedures.

Mr Chen: appeal against conviction

Mr Chen’s submissions

[24]     Mr Chen’s grounds of appeal are:

I Insufficiency of evidence

[25]     He submits that there is insufficient evidence to support his convictions on counts 3-12.  In particular there was no evidence:

(a)that any drugs were imported in Polymer shipments 2, 3 and 4; or in the Jin Da shipment;

(b)that any drugs from Polymer shipments 2, 3 and 4, or from the Jin Da shipment were sold;

(c)of Mr Chen’s involvement in the Jin Da shipment;

(d)of Mr Chen’s connection with the Isaac and Prosperity shipments;

and hence no basis for his conviction in respect of any of those importations.

II Inconsistency of verdicts

[26]     The inferences available from the evidence on which the Crown relied to prove counts 3 to 10 (importation and sale of drugs in Polymer shipments 2, 3 and 4 and the Jin Da shipment) were identical to those relied upon to prove counts 1 and 2 (importation and sale of drugs in Polymer shipment 1).  The jury acquitted Mr Chen of counts 1 and 2.  The guilty verdicts for counts 3 – 10 are thus inconsistent with the acquittals for counts 1 and 2, and should be set aside.

III Errors in summing up

[27]     The learned Judge erred in her summing up to the jury by:

(a)failing to identify which evidence was and was not admissible against each accused, in respect of each particular charge;

(b)failing to direct the jury in accordance with the “co-conspirators rule” discussed by the Supreme Court in R v Qiu [2008] 1 NZLR 1; and

(c)misdirecting the jury in her analysis of section 66(2) of the Crimes Act 1961 (as to liability of parties with common purpose);

(d)compounding in her summing up the Crown error of alleging that there was an onus on the defence to prove the innocence of Mr Chen.

IV Permitting trial to continue after “tainting”; the tenth juror problem; the decision to continue with ten jurors

[28]     The Judge failed to make adequate inquiry of the jury before discharging the eleventh juror.  In addition, there were insufficient grounds to justify the trial proceeding with only ten jurors.

Discussion

I Insufficient evidence

Mr Chen’s continuing involvement in the Isaac and Prosperity shipments

[29]     The critical issue on Mr Chen’s appeal concerns the linkage of him to the Isaac and Prosperity shipments.  That is for two reasons: to consider whether he was party to those transactions; and, in the event that he was party, to reason backwards that the earlier shipments, with which he was clearly involved, must also have contained drugs.

[30]     So the first question is whether it was open to the jury to infer that the shipments Polymer 2, 3 and 4 and Jin Da contained drugs.  There was no direct evidence that they did.  But we are satisfied that the circumstantial evidence amounted to a powerful case of which it cannot be said, in terms of the test stated by this Court in R v Munro [2008] 2 NZLR 87 at [87], that a jury acting reasonably ought to have entertained a reasonable doubt.

[31]     Mr Chen had been one of the main actors in the operation Polymer and Jin Da operations.  If the Polymer shipments did contain drugs, he had facilitated their importation under the guise of legitimate shipments of paint and rubber products exported from China by his Chinese company Da Yi.  He set up Polymer as a company in New Zealand, remitted large sums of cash to accounts in China, travelled specifically to New Zealand to oversee the arrival and unpacking of the Polymer and Jin Da shipments (and the Jin Da export), was in regular contact with Mr Pan, and had the phone number of “Raymond”, saved in his phone as “China”.

[32]     We summarise the evidence which was open to the jury to accept in respect of the methamphetamine:

(a)The relevant shipments (on the basis of the jury’s verdicts) are Polymer 2, Polymer 3, Polymer 4 and Isaac (although on the Crown case, Polymer 1 also involved methamphetamine).

(b)Importation was directly proved in relation to the final Isaac and Prosperity consignments in April 2006 when the 96kg of methamphetamine and 154kg of pseudoephedrine were found.

(c)Mr Fung, caught red-handed, gave unchallenged evidence for the Crown that he was paid by “Raymond” to form companies in China (Jacob Epoxy) and New Zealand (Isaac International), to act as consignor and consignee, and to sublet office space (in Auckland).  He also hired a storage unit. He returned to China, travelling to Shenzhen to see the shipping container being packed and to collect the shipping documents.  Mr Fung’s role and relevant movements in relation to Isaac were very similar to those of Mr Chen in relation to the earlier shipments.

(d)A telephone conversation between Mr Fung and “Raymond” on 22 May 2006 made it clear that Isaac was not the first transaction.

(e)The nature of the Isaac and Polymer shipments was similar (as they all involved cans of polyurethane, a product sold by Mr Chen’s company in China, and were shipped from the same port, Shekou).

(f)Most of the Polymer 1 and 3 product (1815 out of 1829 cartons) was exported in October 2005, ostensibly to Jin Da.  This was accompanied by a series of self-cancelling financial transactions which Mr Chen was unable to explain when he gave evidence.  It was open to the Crown to maintain and the jury to conclude that this transaction was a sham designed to have the appearance of a legitimate sale by Polymer Technology of the Polymer 1 and 3 material which had the backfiring consequence of linking Mr Chen to Jin Da.

(g)On 2 June 2005 (a week after Polymer 2 arrived), Mr Pan remitted more than $200,000 to China (suggesting that Polymer 2 contained drugs).

(h)There were other cash remittances involving Mr Chen which were proximate in time to the Polymer shipments.

(i)With the exception of some unaccounted for cartons (which on the Crown theory had contained drugs) the contents of the Polymer 2 shipment all remained in storage and with the exception of the Polymer 1 and 3 “sale”, there was no evidence of any attempt to market any of the Polymer or Isaac shipments.  Yet the overall cost of importing this quantity of product from China into New Zealand plus the travel costs of Mr Chen (for each Polymer shipment) make the lack of sales and of any evidence of marketing inexplicable if the shipments had been legitimate.

(j)The tins in which methamphetamine were concealed in the Isaac consignment were in cartons which carried distinguishing marks.  Likewise, 24 cartons from Polymer 4 were found to have been specially marked.  Each of the tins inside contained an empty black plastic bag which was stuck to the bottom.  At one of the storage facilities, the Police found a serrated knife and a screwdriver and at the other a large set of scales, plastic bags, face masks and a dessert spoon.

(k)14 more cartons from Polymer 1 and 3 were imported into New Zealand than were exported.  When the Polymer 2 shipment was inspected by the Police, 44 cartons of 1038 from Polymer 2 were missing.  That is consistent with the Crown case that the other cartons had contained drugs and were disposed of.

[33]     As to the importation of pseudoephedrine:

(a)The relevant shipments are Jin Da and Prosperity.

(b)There was direct evidence of the importation of pseudoephedrine in relation to Prosperity.

(c)The Jin Da and Prosperity consignments were shipped from the same city (Zhongshan) and both ostensibly consisted of 600 bags of AER block plaster.

(d)There was no evidence of any attempt to market the material imported in the Jin Da or Prosperity shipments.

(e)At least one of the remittances of money was proximate in time to the Jin Da shipment.

Conclusion as to presence of drugs in all shipments from Polymer 2

[34]     The case for concluding, as the jury did, that the transactions from Polymer 2 onward entailed the same kind of exercise as the later Isaac and (in the case of the Jin Da pseudoephedrine shipment) Prosperity transactions, was overwhelming.  It was amply sufficient for a reasonable jury to conclude that the earlier shipments each contained drugs.

Conclusion as to sales of drugs

[35]     From that conclusion, the inference that those drugs were sold is also overwhelming.  As Courtney J observed, the only logical thing to do with such substantial quantities of drugs would be to sell them. That inference accords with the remittances of cash following Polymer shipments 2 and 3, and the Jin Da shipment.  Their size and timing point to their being the proceeds of sale of bulk quantities of methamphetamine and pseudoephedrine from those shipments.  Each of the remittances involved either Mr Chen or Mr Pan (with whom Mr Chen was in close and regular contact during his visits to New Zealand during this period) as either sender or recipient.

[36]     It is plain from the evidence concerning the Polymer 4 shipment that the drugs in that shipment had been unpacked, weighed and removed.  In the same month, January 2006, there had been cell phone contact between a gold Nokia phone attributable to Mr Pan and a phone found in the master bedroom at Kohimarama Road and attributable to Mr Fan, who was convicted of selling drugs out of Polymer shipment 4.  The Police found $50,000 in cash at Kohimarama Road when Operation Major terminated.  On the basis, as we later find, that Mr Fan was properly convicted, it may be inferred that the sale proceeds from the Polymer 4 shipment included those moneys.

Further evidence against Mr Chen

[37]     In considering the competing submissions as to the involvement of Mr Chen certain considerations are of particular importance:

(a)The direct evidence of Mr Chen’s close involvement with the transactions finishes with the winding up of the Polymer company.  But the pattern of his being in China prior to the despatch of the consignment and being here for its arrival continued at the time of the final Isaac and Prosperity shipments. In R v Fenton [2003] 3 NZLR 439 this Court stated at [32]:

A state of affairs, quality or tendency at a given time may be able to be proved by showing that such a state of affairs, quality or tendency existed not long before or not long after that time: see Wigmore on Evidence (3rd ed), s 437(1). The probative value of the earlier or later happening will depend upon all the circumstances, including the nature of the proof and the probability of changes during the time interval. This is sometimes spoken of as a presumption of continuance but, as Halsbury (4th ed) vol 17(1), para 505 and Cross on Evidence (NZ ed), para 2.3 observe, the better opinion is that it is merely a probability, or presumption of fact, the effect of which will vary with particular circumstances. It is a process of deduction, reasoning and inference from probabilities and depends upon the accompanying facts: Axon v Axon (1937) 59 CLR 395 at p 405 per Dixon J.

(c)The change following the Customs search of Polymer 4 entailed substituting lower echelon personnel like Mr Fung to perform the task of setting up New Zealand operations previously performed by Mr Chen.  But that gives no reason to assume that Mr Chen had distanced himself from the continued operation of the system which he had established.  He was directly involved in all the Polymer shipments at both the Chinese and New Zealand ends as his Chinese company was the exporter and Polymer Technology, his New Zealand company, was the importer.

(d)Although not directly involved in the same way with the Jin Da shipment, he arrived in New Zealand in August 2005 shortly before the arrival of the shipment, was in New Zealand when the shipment was placed in storage and unloaded, and then departed. 

(e)He was also in New Zealand in October 2005 when the Jin Da product was exported, on his own admission present (as was Mr Pan) when it was loaded and on the Crown evidence closely involved in the relevant physical processes, and departed a day after this occurred.

(f)While in New Zealand in August and October 2005 he was in close contact with Mr Pan who, on the Crown case, was heavily involved in the Jin Da shipment.

(g)He had a business interest in the plaster which was the ostensibly legitimate product imported in the Jin Da and Prosperity shipments.

(h)Mr Chen was involved in substantial cash transactions which were proximate in point of time to the Polymer 2 and 3 and Jin Da shipments.  Five days after the arrival in New Zealand of Polymer 2, Mr Chen remitted $15,000 in cash to himself in China.  On 9 August, four days after the arrival of Polymer 3 Mr Chen remitted $350,000 to third parties in China.  In September 2005, around a month after the Polymer 3 and Jin Da shipments arrived in New Zealand, $117,000 was paid into Mr Chen’s HSBC bank account in Hong Kong.

(i)Mr Chen was aware that the Polymer 4 shipment had been searched by customs.  When he learned this he lied to the customs broker as to his whereabouts and shortly afterwards left New Zealand (on 30 December 2005).  A decision was then made ostensibly to change some of the personnel and companies used to undertake the shipments while retaining the same modus operandi (the role previously performed by Mr Chen was assumed by Mr Fung).

(j)But on 7 February 2007 Mr Chen returned to New Zealand where he was closely associated with Mr Pan and arranged the shutting down of Polymer Technology Ltd. He left on 13 February.

(k)Mr Chen arrived back in New Zealand on 24 May 2006, a week or so after the Isaac and Prosperity shipments.  He gave no explanation for this visit when he gave evidence.

(j)We have noted that Mr Chen had “Raymond”’s telephone number saved in his phone.

[38]     The combined effect of this evidence satisfies us that there was an adequate basis for the jury to conclude (as it plainly did) that:

(a)The Polymer 2, 3 and 4 shipments contained methamphetamine.

(b)The Jin Da shipment contained pseudoephedrine.

(c)The drugs imported in those shipments were onsold.

(d)Mr Chen was a principal in relation to the Polymer 2, 3 and 4 shipments and at least a party in relation to both the Jin Da shipment and to the subsequent sales.

(e)He was still sufficiently involved with the underlying common purpose to be a party under s 66(2) of the Crimes Act to the importing associated with the Issac and Prosperity shipments.

[39]     We conclude that there was ample evidence to justify all the jury’s verdicts against Mr Chen.

II Inconsistency in verdicts

The law

[40]     A verdict of guilty on one count will be unsafe if it is inconsistent with a verdict of acquittal on another count.  However, if there is a reasonable explanation to be found in the evidence that the jury could have differentiated rationally between the charges, there is no inconsistency: R v Irvine [1976] 1 NZLR 96 (CA); R v K CA49/96 13 August 1996.

Its application

[41]     At [13] of her sentencing notes the Judge dealt convincingly with the point:

The Crown case was that the four earlier shipments known as the Polymer 1, 2, 3 and 4 shipments contained methamphetamine and the earlier shipment known as the Jin Da shipment contained pseudoephedrine.  The jury accepted these propositions except for the Polymer 1 shipment, most likely because of the possibility that, as the first of the shipments, it may have been treated as a dummy run.

[42]     As the Judge observed, the importations all involved extraordinary planning and sophistication.  Although it was not the Crown’s case at trial, the jury could rationally have concluded that those responsible for the importations were sufficiently careful and meticulous to undertake a dry run to test the modus operandi that they subsequently used for all later importations.

[43]     There was in any event an important difference in the evidence between Polymer shipment 1 and all of the subsequent shipments.  There was no evidence of cash remissions to China of any significance until 2 June 2005 – about a week after Polymer shipment 2 arrived, when Mr Pan remitted over $200,000 to accounts in China.  The remissions were powerful evidence, both of the importation of commercial quantities of drugs, and of their subsequent sale.  Taken together with the possibility of Polymer shipment 1 being a “dummy run”, the absence of cash remissions shortly after the Polymer shipment rationally explains how the jury determined that the Crown had proved counts 3 – 10 beyond reasonable doubt, but not counts 1 – 2.   

III The summing up

[44]     We have noted at [27] the appellant’s submission that the Judge erred in summing up.  The complaints concerned:

(a)Failure to direct the jury as to the evidence admissible and inadmissible against each accused in respect of each particular charge;

(b)Failure to direct as to the co-conspirators rule;

(c)Party liability under s 66(2) of the Crimes Act;

(d)Alleged reversal of onus.

(a) Failure to direct the jury as to what evidence was admissible and inadmissible

[45]     At a joint trial the Judge must not only direct the jury that the pre-trial statements of one accused are not evidence against another, but also that the question whether the Crown has proved its case beyond reasonable doubt against a particular accused must be determined by reference only to the evidence admissible in respect of that accused: R v Morland CA148/99; CA218/99 6 September 1999.

[46]     We have examined the directions given.  We are satisfied that, save as to the next point, both the written directions provided by the Judge and her oral directions were exemplary.

(b) The absence of direction as to Mr Fung’s conversation with “Raymond” and the co-conspirators rule

[47]     The jury was given no direction concerning the evidence of the telephone conversation between Mr Fung and “Raymond” on 22 May 2006.  In this Court, although not in the High Court, Mr Chen’s counsel challenged the evidence as inadmissible; alternatively, if it fell within the co-conspirators rule of the common law it required the special directions discussed by the Supreme Court in Qiu.  The Crown submitted that it was evidence of conduct which did not fall within any exclusionary rule. 

[48]     We accept Mr Chen’s first submission, that the evidence is prima facie inadmissible.  That is because it was hearsay: using a statement by a non-witness as evidence of its truth.  Moreover, the Crown’s reliance on the statement related in part to the Crown’s account of what appear to have been past events, rather than as made in furtherance of the appellants’ common design.  It would therefore not fall within the co-conspirators exception. 

[49]     But had the hearsay point been taken at trial it would inevitably have been met by recourse to ss 18(1)(a) and (b) and 22(5) of the Evidence Act 2006: that the circumstances relating to the statement provide reasonable assurance that it is reliable; that “Raymond” was unavailable as a witness; and that no party was substantially prejudiced by failure to give notice of reliance on the statement.

[50]     The conclusion that this evidence is admissible under the co-conspirators rule is equally obvious.  Moreover, the cogency of what “Raymond” said as to the link between Isaac and the earlier shipments was so obvious as to remove the usual sort of concerns which arise when hearsay evidence is admitted (whether under the co-conspirators rule or otherwise).  His remarks were very operational in nature (so much so that their hearsay quality does not appear to have occurred to anyone).  In this context the error was too inconsequential to engage s 385(1)(c) of the Crimes Act.

(c) Party liability under s 66(2) of the Crimes Act

[51]     Section 66(2) of the Crimes Act  states:

Where 2 or more persons form a common intention to prosecute an unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.

[52]     The words “to every offence committed by any one of them” do not exclude the very offence or offences that were the subject of the common intention: R v Currie [1969] NZLR 193 at 203 (CA).

[53]     The common intention will usually be inferred from the words or actions of the participants, including their concerted conduct in carrying out that common intention: R v Fa’apusa CA300/06 13 December 2006 at [18] - [19].

[54]     Mr Lawry submitted that the Judge did not refer to “the need for the Crown to prove that [Mr Chen] had agreed to assist his alleged co-offenders”.  But in her memorandum to the jury concerning party liability, the requirement that the Crown prove that “two or more people have reached a common plan to commit a criminal offence and to assist one another to do so” was clearly set out.

[55]     Mr Lawry further submitted that the Judge should have directed the jury that the Crown needed to prove that Mr Chen “remained a party to the alleged agreement some five months after there is any evidence of his involvement in any shipments to New Zealand”.  He argued that there was no evidence that a further shipment or shipments of drugs were a probable consequence of the common plan to import drugs.

[56]     It is clear from the summing up at [26], and with specific reference to Mr Chen at [106], that the jury was directed that the Crown needed to prove that Mr Chen was still a party to the common plan “at the relevant time”.  Direct evidence of Mr Chen’s involvement in the Isaac and Prosperity shipments was not necessary.  Instead, the Crown simply needed to adduce evidence of Mr Chen’s continued involvement in the common plan at the time of those shipments. 

[57]     In summing up the Judge at [26] directed the jury in relation to the Crown’s case that Mr Chen, Mr Pan and others formed a common intention to import and sell drugs.  She directed that under s 66(2) the Crown must prove:

·     That the accused formed a common intention with one or more of those named in the indictment in relation to a particular charge;

·     That the common intention was to import or sell drugs;

·     That the accused was a party to the common intention at the relevant time, which is when the importation occurs, or during the period that the goods were alleged to have been sold;

·     And the fourth thing, that one of the parties to the common intention committed an offence pursuant to it.  In this case one of the parties imported or sold controlled drugs;

·     And the final thing, the offence that was committed was one that the accused knew was a probable consequence of the common intention.

[27]  Now probable consequence just means that the accused knew it could well happen.  A common intention does not have to be reached in any formal way.  It does not have to be written down, sometimes it might not even be expressed in words although in this case you might think that it is not the kind of thing that conduct alone would convey.  You can look at the behaviour of the parties throughout the whole period; before the importation, during the importation process, after the importation is completed.  You can look at all of the evidence to decide, was this accused party to a common intention?  And you have got to decide not only was he a party to a common intention, but when.  When you are thinking about a particular shipment the question will be – was he still a party to the common intention at that point?

[58]     We discern no error in that.

(d) Error in suggesting onus on defence to establish innocence

[59]     It was submitted that by stating in closing that “there is no evidence of any meaningful sales of the contents of the cartons” the Crown suggested there was an onus of proof on Mr Chen and that, by referring to that submission at [96] of the summing up the Judge compounded the error.

[60]     The submission is unfounded.  The topic of what had happened to the missing cartons was a legitimate matter of submission, consistent with the Crown case that there was no legitimate commercial activity.  It was a proper discharge of Crown counsel’s task to make submissions on what evidence was before the Court and what followed from it.  The Judge gave a standard direction that Mr Chen did not have to prove anything, even if he elected (as he did) to give evidence.

[61]     No error in the summing up has been identified.

IV Permitting the trial to continue after “tainting”; the tenth juror problem; the decision to continue with ten jurors

[62]     It was submitted for Mr Pan that the Judge erred by not declaring a mistrial either after the jury became “tainted” or after a tenth juror temporarily went missing and, in any event, that the case could not continue with only ten jurors.

The “tainting”

[63]     On 11 September 2008 counsel for Mr Pan provided to the Court an email from a juror which sought to arrange a social meeting with another counsel after trial.  The email suggested a possible romantic interest and was sent on a confidential basis.  The next day copies of the email were provided to all counsel.  The Judge expressed her concern as to the possible bias of the juror either towards the counsel or against counsel for other parties.  She sought submissions.

[64]     Counsel agreed that the juror should be questioned and, whatever her response, that she should be discharged.  Counsel were divided as to whether the Judge should then speak to the foreman.  During the discussions the juror was kept separate from other jurors.

[65]     At 10.30am on 12 September 2008 the Judge questioned the juror in the presence of counsel for the accused.  The juror admitted sending the email.  She stated that in her discussions with other jurors she had not expressed a view that might lead other jurors to believe she was favouring one accused over another.  The Judge discharged her.

[66]     The Judge then suggested to counsel that despite the juror’s assertion, that given the significance to the accused, it was necessary for her to speak to the foreman to inquire whether there had been discussion among jury members that might suggest any were favouring one accused or counsel over another.  She further indicated that she intended to tell the jury that the juror had been discharged but not why.  Counsel offered no objection.

[67]     The Judge then questioned the foreman. In response to the Judge’s question as to possible favouritism the foreman stated:

I don’t think so.  We – we haven’t – we have discussed certain issues that have come up, you know, at the time – that have come up, but there has been no great prejudice one way or the other I don’t think.

[68]     The foreman then left.  Counsel for Mr Chen expressed concern about the phrase “no great prejudice”.  No other counsel raised concerns.  The Judge stated:

I mean I can’t – I’ve got no grounds to question the foreman beyond the issue at hand and my impression of his response is that there’s been no expressed favouritism by a jury member in favour of one counsel for one accused. 

[69]     The Judge delivered her ruling that the trial should continue.

[70]     In this Court counsel submitted that:

(a)Following the discharge of the eleventh juror “the question of jury contamination following her departure does not appear fully resolved by the learned Judge and the response by the foreman is unconvincing and equivocal at best. 

(b)Accordingly the jury was “tainted” and the eleventh juror’s conduct indicated a preference for a particular counsel (that for Mr Zhang).  Precisely how such a preference may have affected [the appellants] it is impossible to say but the fact that the possibility exists points to a miscarriage of justice and casts a shadow over the guilty verdicts.

[71]     The Judge had followed the five step process dealing with juror communication set out in R v N CA373/04 17 February 2005 which was endorsed and refined in R v C [2005] 3 NZLR 92 (CA). The foreman’s “no great prejudice” was a matter for the Judge to evaluate. Verbally it could have been understood as a statement that there was prejudice but that the prejudice was not great. It could also have been understood as a laconic vernacular statement that there was no basis for concern. There is no ground for challenging the Judge’s appraisal.

[72]     It was submitted on behalf of Mr Pan that the juror who was discharged had a bias which could subtly have affected not only her own judgment but that of others.  In view of the answers to the Judge there is no evidential basis for that proposition.  Counsel for Mr Pan also submitted that the Judge’s questioning of the juror and foreman was too brief.  Again the nature of the inquiry was presumptively a matter for the Judge.  It was open to her to consider that no further questions were required.

The tenth juror

[73]     Following the temporary absence and subsequent appearance of the tenth juror, there was no inquiry of the foreman or the juror, and no final ruling concerning whether the tenth juror was fully capable of discharging his duties.

[74]     The sleeping juror cases show that, to establish the wrong or miscarriage of justice which is required by s 385 of the Crimes Act if a verdict is to be set aside on the ground of juror incompetence or misconduct, objection must be made which will allow the judge to undertake an investigation: R v Morris [2001] 1 NZLR 1 (CA), R v Briaturi [2008] NZCA 412, R v Lin Sen CA467/05 19 October 2006, R v Charles (1979) 68 Cr App R 334, R v Tomar 96/547/Y2 14 April 1997 (EWCA).  That may entail the filing of affidavits in this Court, as occurred in Cesan v R (2008) 236 CLR 358.

[75]     Here there is no evidential base for doubt that a temporary absence of the tenth juror was simply due to a misapprehension as to when the hearing would resume.

[76]     The ground fails.

Were there “exceptional circumstances”?

[77]     Section 374, now repealed, states:

(4A) The Court must not proceed with fewer than 11 jurors except in the

following cases:

(a) If the prosecutor and the accused consent:

(b) If the Court considers that, because of exceptional circumstances relating to the trial (including, without limitation, the length or expected length of the trial), and having regard to the interests of justice, the Court should proceed with fewer than 11 jurors; and in that case—

(i) The Court may proceed with 10 jurors whether or not the prosecutor and the accused consent:

The remaining question is whether there were “exceptional circumstances” in this case.

[78]     In ruling that there were exceptional circumstances and that it would be in the interests of justice to proceed the Judge gave as reasons:

(a)The trial concerned six accused facing a total of 41 charges.

(b)The trial was scheduled for six weeks but ran over significantly (to 11 weeks).

(c)The issue that arose at the end of the ninth week after completion of the evidence.

(d)The investment of time and resources from Police, Customs and Crown and defence counsel was very substantial.  There were for instance 69 Crown witnesses of whom 49 gave oral evidence.

(e)Some of the evidence depended on the witnesses’ memories of events already some years in the past. 

(f)The earliest date for a retrial would be some time in 2010.

(g)The accused potentially faced a lengthy period in custody before any retrial.

[79]     Further considerations are:

(a)Drugs were found only in the last two shipments and therefore the case in respect of the previous five shipments was in large part a circumstantial one requiring careful consideration of over 1300 pages of documentary exhibits that were provided to the jury.

(b)The evidence included translated intercepted conversations (whose accuracy was challenged by counsel for Mr Pan); expert evidence concerning (inter alia) cell-phones, drugs, chemical marking powder, firearms and computers, and over a hundred photographs.  There were more than 700 Crown exhibits.

(c)Four accused gave evidence and were cross-examined over a period of a month, with Mr Chen first giving evidence on 8 August 2008, and Mr Fan’s cross-examination ending on 8 September 2008.  It covered nearly 1000 pages.  Three of the accused gave evidence through an interpreter.  Between them the accused produced a further 93 exhibits.

(d)The Crown and three of the accused wished the trial to continue.

[80]     Here, as was the case in R vHarris [2008] NZCA 298 at [36]:

We are in no doubt that the legislature had in mind this type of case when identifying without limitation ‘the length or expected length of the trial’ as a specific factor to be taken into account when determining exceptional circumstances

In our opinion the Judge’s decision to continue the trial with ten jurors was inevitable and squarely within the policy of s 374(4).

Conclusion

[81]     The appeal against conviction is dismissed.

Mr Pan: appeal against conviction

[82]     We preface the following discussion by noting that Mr Pan’s arguments as to insufficiency of evidence were similar to those of Mr Chen.  He was heavily involved in the Polymer and Jin Da shipments and to find him guilty the jury had to reason back from the Isaac and Prosperity shipments and, in relation to those shipments, conclude that he was a s 66(2) party.  What we have already said about reasoning back from the Isaac and Prosperity shipments in relation to Mr Chen applies to Mr Pan.

Mr Pan’s submissions

[83]     Mr Pan’s grounds of appeal against conviction are:

I Insufficiency of evidence

II Admission of inadmissible and prejudicial evidence

III Unfair revocation of bail during cross-examination and comment by Judge

IV Wrongly permitting trial to continue with ten jurors

V Misdirection

I Insufficiency of evidence

The Crown’s submissions

[84]     Mr Pan is a New Zealand resident.  The Crown submitted that by providing his phone number or email address and much general assistance, including finding suitable accountants, setting up bank accounts, arranging storage units and accommodation and helping with others’ travel, he was directly involved in all of the Polymer shipments and Jin Da.  Like Mr Chen he was convicted of the Isaac and Prosperity shipments as a s 66(2) party.

Polymer and Jin Da

[85]     Again like Mr Chen, he was present in China before and in New Zealand after the Polymer and Jin Da shipments occurred.  His cellphone number appeared on the GST and tax registration documents for the company Polymer Technology (NZ) Co Ltd and on all of the Polymer bills of lading. 

[86]     For Polymers 2 and 3 his cellphone number was listed as well on the storage unit agreement.

[87]     In relation to the Jin Da shipment, Mr Pan’s number was given to Customs by the man who came to set up the importation as that of his friend.  A SIM card found at his house had the number on the Jin Da IRD application and in the application to set up an ASB account.  Keys to the Jin Da post box were found at his house.  An apartment in Eden Crescent used by Mr Chen was rented on Mr Pan’s instructions and the keys were found at his house.

[88]     Mr Pan met Mr Chen at the airport and helped him with travel and accommodation and on 7 June 2005, soon after the arrival of the Polymer 2 shipment, he remitted $204,000 to Chinese accounts of persons whose names appeared in his address book. 

[89]     As noted at [37](e), he and Mr Chen were in regular contact during the latter’s visits in August and October.  On the latter occasion he went with Mr Chen to the storage unit where the Jin Da export of containers that the jury found had contained drugs was being loaded.  The export records were found at his house and in his computer.  His fingerprints were found on Jin Da documents at Eden Crescent.

Isaac and Prosperity: continuing liability under s 66(2)

[90]     In late January and early February 2006 Mr Pan’s gold Nokia cellphone was in contact with that of Mr Fan who occupied the premises at 291A Kohimarama Road, which it was open to the jury to find was a clearing house where drugs were packaged and sold and where part of the Isaac shipment ended up.  It was open to the jury to prefer that construction to the defence version that the gold phone had been given to a co-accused, Mr Zhang, who was acquitted.  Mr Zhang asserted and Mr Pan denied that it was at Mr Pan’s direction that he rented and maintained the Eden Crescent apartment; and that when they were both present with Mr Chen at the Jin Da storage unit loading a container Mr Pan had asked Mr Zhang to participate.  The jury were entitled to accept that evidence.

[91]     Further, in May 2006 when the Prosperity and Isaac shipments arrived, Mr Pan was seen collecting from the airport a Mr Chan (KM) whom he drove to Mt Albert to see the accused Zhang, who was acquitted at trial.  Mr Zhang had rented the Eden Crescent apartment, opened a post box and had been telephoned by Mr Pan on 4 August 2005, the day after the third Polymer shipment arrived in New Zealand.  Despite Mr Zhang’s acquittal, the Eden Crescent and post box facilities which he established, even if without mens rea, were part of the arrangements to which Mr Chen was party.

[92]     Accordingly it was well open to the jury to find, as did the Judge for sentencing purposes, that although not the mastermind behind the operation, Mr Pan was a crucial player, providing continuity and practical assistance over its entire period. 

Mr Pan’s submissions

[93]     Ms Dyhrberg pointed to the Crown’s acceptance on a s 347 application that there was no direct evidence of Mr Pan’s involvement in the Isaac and Prosperity shipments and its reliance solely on s 66(2) in relation to those counts.  Yet in relation to the earlier counts there was no clear evidence of drug dealing.

[94]     She challenged the Judge’s acceptance of the Crown submission that Mr Pan was party to a plan in relation to the second and third Polymer importations and that his “ongoing involvement in May 2006, albeit minor and unrelated to any actual shipment showed that he was still part of the common plan and is therefore liable for the last two shipments”.

[95]     She submitted that the Judge’s acceptance of a concept of an “ongoing” or “overall” plan or purpose of importing controlled drugs does not sit easily with the wording of s 66.  It states:

Parties to offences

…

(2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.

[96]     She argued that no authority supported adoption of the “ongoing” or “overall” plan or purpose approach and submitted that it risked unfairness by extending an accused’s liability indefinitely and unsafely.  Specifically, she submitted that, for the Isaac and Prosperity importations to be a probable consequence of a proved common purpose to which Mr Pan was party, there had to be evidence of his involvement in those shipments.  But there was none.  Rather they were performed by a completely different group of people.  The broadly similar modus operandi, of use of containers to carry concealed drugs, is not enough.

[97]     Ms Dyhrberg submitted that there was likewise no evidence of selling by Mr Pan (counts 6, 8 and 10); his remittance of funds on 7 June 2005 preceded the arrival of the Polymer 3 and 4 and Jin Da shipments which arrived in August and December 2005.   

Discussion

[98]     We are satisfied that it was open to the jury to accept the Crown’s submission that Mr Pan was a major participant at the New Zealand end throughout what was a carefully planned importation and sales operation of unprecedented size.  His local role complemented that of Mr Chen.  His part was proved to begin with his phone number on the Polymer 1 bill of lading and continued until at least (according to Mr Zhang’s evidence) his January communication via the gold Nokia phone with Mr Fan who occupied Kohimarama Road.  Once the pattern of sales had begun, the absence of evidence as to where the proceeds had gone is no basis for inferring that the sales had concluded.  On the contrary, the continuation of the import process without any evidence of legitimate sales was accompanied by the proved subsequent drugs imports in the Isaac and Prosperity shipments and of course the Kohimarama Road sales outlet where Messrs Fan and Deng were caught red-handed at the end of the operation. 

[99]     The first ground fails.

II Admission of inadmissible and prejudicial evidence

[100]   Counsel for Mr Pan submitted that certain Vodafone cell-site evidence relating to his movements should not have been admitted because there was no evidence as to the methodology underlying the call data information.  It recorded the numbers of the cellphone SIM cards taking part in a call, the date, time and duration of the call together with details of the cell-sites utilised.  Crown counsel cross-examined Mr Pan to the effect that on 7 February 2006 a SIM card found at his house received via the Avondale cell-site a call made via the Auckland airport cell-site from a SIM card attributable to Mr Chen.  The former card had reached a position where it was in the area served by the Strand cell-site just before Mr Pan and Mr Chen were seen to enter the premises at the apartment in Eden Crescent.  The Crown put to Mr Pan that Mr Chen had called Mr Pan from the airport and Mr Pan travelled from his home in Avondale to meet Mr Chen at the apartment.

[101]   Mr Pan denied that he had been the user of the SIM card called by Mr Chen, claiming that he had received the cellphone with that card from Mr Chen only after meeting him at the apartment.

[102]   We can see no basis for rejecting the evidence as inadmissible.

Solicitors:
Crown  Solicitor, Auckland