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.
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
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.
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Details
AGLC
Chen v R [2009] NZCA 445
Case
[2009] NZCA 445
Decision Date
CaseChat Overview and Summary
Chen Ming Chin, Pan Wei Feng, Deng Guo Wei and Fan Li appealed against their convictions and sentences on charges related to the importation of methamphetamine and pseudoephedrine from China to New Zealand. The Solicitor-General applied for leave to appeal against the sentences and submitted that life terms should be imposed on Deng and Fan. Fung Kai Lok, who pleaded guilty, applied for leave to appeal against his sentence. The appeals against conviction and sentence by Chen, Pan, Deng and Fan were dismissed. The appeal against sentence by Fung was allowed, and his sentence of 15 years imprisonment was reduced to 10 years. The appeals against sentence by the Solicitor-General were allowed in part, with the sentences of Chen, Pan, Deng and Fan being altered as specified in the judgment.
The case concerned charges against the appellants arising from the importation of seven consignments from China, alleged by the Crown to contain methamphetamine or pseudoephedrine. The jury convicted the appellants of involvement in a scheme to import large quantities of controlled drugs, except for Polymer 1, which was not proved to contain drugs. Fung pleaded guilty to importing methamphetamine in the Isaac shipment and was sentenced to 15 years imprisonment. The High Court judge imposed concurrent sentences on Chen, Pan, Deng and Fan, which were the subject of appeals.
The Court considered the appeals against conviction and found that there was ample evidence to justify the jury's verdicts against Chen, Pan, Deng and Fan. The Court also found that there was a reasonable explanation for the inconsistency between the jury's verdicts on certain counts, and there was no error in the summing up by the Judge.
The Court then considered the appeals against sentence. The Solicitor-General's appeal against the sentences of Chen and Pan was allowed in part, with their sentences of 12 years imprisonment on certain counts being increased to life imprisonment. The appeal against Deng's sentence was allowed, with his sentence of 17 years imprisonment being increased to 25 years with a non-parole period of 10 years. The appeal against Fan's sentence was allowed, with his sentence of 19 years six months imprisonment being increased to 25 years with a non-parole period of 10 years. Fung's appeal against sentence was allowed, and his sentence of 15 years imprisonment was reduced to 10 years.
In conclusion, the appeals against conviction and sentence by Chen, Pan, Deng and Fan were dismissed. The appeal against sentence by Fung was allowed, and his sentence was reduced. The appeals against sentence by the Solicitor-General were allowed in part, with the sentences of Chen, Pan, Deng and Fan being altered as specified in the judgment.