Chen v The King
[2025] NZHC 601
•21 March 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000277
[2025] NZHC 601
BETWEEN XIAOLING CHEN
Appellant
AND
THE KING
Respondent
Hearing: 3 February 2025 Counsel:
D P H Jones KC and J L Grobbelaar for Appellant B J Thompson and I L M Archibald for Respondent
Judgment:
21 March 2025
JUDGMENT OF BREWER J
This judgment was delivered by me on 21 March 2025 at 2 pm
Registrar/Deputy Registrar
Solicitors:
Xiangling (Sarah) Hou (Auckland) for Appellant Crown Law (Wellington) for Respondent
CHEN v R [2025] NZHC 601 [21 March 2025]
Introduction
[1] On 27 January 2021, Judge Rollo1 found Ms Xiaoling Chen guilty of two charges of obtaining a valuable consideration by deception.2 On 18 June 2021, the Judge sentenced Ms Chen to nine months’ home detention and 150 hours’ community work.3
[2] Ms Chen now wishes to appeal her convictions. However, first she must obtain an extension of the time allowed for filing her notice of appeal. Ms Chen’s notice of appeal was lodged on 10 June 2024, nearly three years after the expiry of the statutory period of 20 working days.4
[3] My first task is to decide whether to extend the time allowed for the filing of Ms Chen’s notice of appeal. If I do permit the extension, then I must decide whether to allow the appeal.
Background
[4]I adopt Judge Rollo’s summary of the factual background:5
[1] Xiaoling Chen (also known as Annie or Ani Chen or Annie or Ani Shiu, the latter being her maiden name), whom I will refer to as Ms Chen, is a property developer living in Auckland. She is Chinese by birth, although a New Zealand citizen at this time, she has told me. She is a Mandarin speaker, which is relevant because the discussions and agreements that are the subject of the issues in this case were conducted orally or in writing predominantly in Mandarin.
[2] In 2016 and 2017, Ms Chen entered into three joint venture agreements with ZL, the first complainant (and with Ms Chen’s uncle, ZG, in the first and second instances, although his involvement is not of any real significance in this case).
[3] In June 2017, Ms Chen entered into another joint venture agreement with the second complainant, AY.
[4] Each joint venture agreement concerned the purchase, development and intended subsequent sale of what was rural land located at Pokeno, in the Waikato district (the rural land).
1 R v Chen [2020] NZDC 25807.
2 Crimes Act 1961, s 240(1)(a).
3 R v Chen [2021] NZDC 12234.
4 Criminal Procedure Act 2011, s 231(2).
5 R v Chen, above n 1.
[5] The four pieces of rural land, which are in close proximity or contiguous to each other, adjoin an area of new residential subdivision in Pokeno. The joint venture in each case anticipated a re-zoning of the rural land by the local authority so that it could be developed as residential land by the joint venture shareholders and subsequently sold for substantial profit.
[6] Each joint venture agreement between Ms Chen and the first and second complainants, was premised on the following basis:
(a)Ms Chen would, or had, purchased the relevant piece of land which was the subject of the relevant joint venture agreement;
(b)Either in the initial sale and purchase agreement entered into by her, or as a result of further negotiation resulting in a variation to the sale and purchase agreement, Ms Chen was contractually able to nominate the ultimate purchaser (such as the joint venture parties or an entity representing them) to complete the purchase of the relevant land;
(c)Under each joint venture agreement, the particular complainant would pay the deposit stipulated in the (original or subsequently varied) sale and purchase agreement, the costs and the fees relating to the re-zoning of the land, to obtaining the necessary resource consents and to the completion of the respective subdivisions, all such payments to be by the first or second complainants alone (to the effect that there would be no cash contribution by Ms Chen at first instance);
(d)All such payments were to be a loan by the particular complainant to the particular joint venture parties. The loan, in each case, was to be repaid to the particular complainant by the joint venture parties at a prescribed time (when profits became available) from joint venture funds, with interest specified at 6% (which would then see Ms Chen indirectly contribute financially to the joint venture, proportionate to her shareholding, but only when land sale proceeds enabled the loan to be repaid);
(e)In addition to those purchase and development payments, each complainant, in respect of each piece of land being purchased and developed pursuant to the respective joint venture agreements (three in the case of ZL and one in the case of AY) was also to pay a cash payment of $200,000 (which I will call “the cash payment”).
(f)Initially the sum of $100,000, being half the cash payment sum, was to be paid at the time of the payment of the deposit on each sale and purchase transaction, with the balance
$100,000 payable by the particular complainant at a later date, either on the settlement of the sale and purchase or when land sale proceeds became available;
(g)These cash payments were also identified as ‘loans’ from each complainant to their respective joint ventures with Ms Chen)
and again were to be re-paid to the respective complainants from subsequent section or other sales together with interest at six per cent, and any associated costs;
(h)Each joint venture agreement contemplated that after these loan repayments (together with costs and interest) were made, the profits arising from the joint venture would then be shared in accordance with the shareholding in the joint venture;
(i)Two of the three joint venture agreements between Ms Chen and ZL saw Ms Chen hold a 50 per cent shareholding in the joint venture, and ZL the remaining 50 per cent;
(j)The third joint venture between Ms Chen and ZL, also involved Ms Chen’s uncle, ZG, who resided in Auckland. Following further negotiation, his shareholding in that joint venture was reduced, leaving the then shareholding as 40 per cent to Ms Chen, 15 per cent to her uncle, and the remaining 45 per cent to ZL. It is to be noted that the uncle also made no cash contribution at first instance under his joint venture agreement;
(k)The joint venture agreement between Ms Chen and AY saw each of them hold a 50 per cent shareholding (although AY’s relative in Hong Kong was an apparent indirect participant with AY in her shareholding[)]. Again, nothing of real significance attaches to this circumstance in this case.
(l)In all instances, the parties to the respective joint venture agreements were liable for any losses in the same proportions as their shareholding.
[7] The practical effect of these contractual arrangements was that Ms Chen’s contribution to the joint venture in each case was the negotiation and entry into an agreement for the purchase of the particular piece of land on behalf of the joint venture shareholders, and her control, with a degree of consultation with her fellow shareholder or shareholders, of the carriage and management of the sub-divisional development to fruition thereafter.
[8] The contribution of each complainant was essentially the provision of all money required for the respective purchases and developments, by way of a repayable loan from the sale proceeds of the individual projects in due course.
[5] The Judge then set out the issues in the case and how they relate to the charges. I adopt his description as part of the background:
The issue in this case
[9] The issue in this case concerns the true recipient of the initial cash payments made by ZL to Ms Chen, totalling $500,000, and the initial payment of $100,000 as an intended cash payment made by AY to Ms Chen.
[10] I have referred to them as initial cash payments because each joint venture agreement required the same sum (or sums, in ZL’s case), to be subsequently paid (to make up the $200,000 cash payment for each piece of land).
[11] In short form, ZL says that Ms Chen told him on several occasions that the cash payments “were for Eric”, being Eric Chase. Mr Chase was the real estate agent acting for the vendors of the various Pokeno properties, which were the subject of the respective joint venture agreements by ZL with Ms Chen.
[12] For her part, AY similarly says that Ms Chen told her that the cash payment was “as commission for Eric”.
[13] It should be noted that there is no suggestion on any of the evidence before me that Eric Chase is other than innocent of any inappropriate involvement in any of the transactions referred to above.
[14] He knew nothing of the cash payments made by the first and second complainants to Ms Chen, nor that they each believed he was to be the true recipient of those payments.
[15] His agent’s commissions on the sales of the respective parcels of land were paid to him in each instance by the relevant vendor or vendors, pursuant to the usual contractual terms of the applicable, standard-form agreements for sale and purchase of real estate.6
[16] Later in 2017, AY challenged Ms Chen about the $100,000 payment she had made to Ms Chen. Because [AY] was overseas at the time that the initial deposit was due on the purchase of land, AY had paid the amount of
$100,000 (being the intended cash payment) by internet banking transfer to Ms Chen’s nominated account. It was paid at $10,000 per day over a period of almost sequential days from France where AY was then located.
[17]Ms Chen did not respond adequately to AY’s challenge over the
$100,000 cash fee. As a result, AY then went and spoke to Eric Chase, the real estate agent. He told her, as he told the court in his evidence, that he knew nothing of any such cash payments.
[18] ZL, the first complainant, was then contacted and spoken to by AY and Mr Chase. I infer from the evidence I have heard, and in particular from [ZL] himself, that he was then made aware that Eric Chase was not the true recipient of the $500,000 cash payment that he had paid to Ms Chen, rather that she had obtained those monies, as with AY’s $100,000, for herself.
Charges
[19] As a result of these events, Ms Chen faces two charges of obtaining a valuable consideration by deception.7
6 Approved by the Real Estate Institute of New Zealand Incorporated and by Auckland District Law Society Incorporated — [cl 18.0: Agency].
7 Crimes Act 1961, s 240(1)(a).
[20]The valuable consideration in each case is the cash payments of
$500,000 paid to Ms Chen by ZL and the $100,000 paid to Ms Chen by AY.
[21] The deception each complainant independently alleges is the false representation made by Ms Chen to each of them that the respective cash payments had to be paid to the real estate agent, Eric Chase, so that he would ensure that the land which was the subject of each joint venture agreement would be sold to them and not to some other person.
[6] I will come to Ms Chen’s submissions on what went wrong at the trial and why, as a result, she should be permitted to bring her appeal. At this point, however, it is logical to the narrative to set out Ms Chen’s approach to her sentencing.
[7]Ms Chen’s counsel confirmed her instructions prior to sentencing:
Your instructions are:
a.You accept the verdict (Judge’s decision) and acknowledge that you are guilty of the charges;
b.You are remorseful and sorry for what happened.
c.You want to apologise to [ZL] and [AY];
d.You have repaid [ZL] $500,000 as reparation.
[8] A mental health report was sought by counsel for the purposes of sentencing. Counsel’s letter of referral to Dr Patrick Daniels contained advice of Ms Chen’s admission of guilt. The letter was approved by Ms Chen in advance of it being sent. Ms Chen subsequently approved Dr Daniels’ draft report, which included his record of Ms Chen’s admission of guilt.
[9] Counsel also arranged for Mr Patrick Au to prepare a cultural report on Ms Chen for use in the sentencing. Ms Chen reviewed it in draft and had direct contact with Mr Au to request changes. In the final report, dated 1 May 2021, Mr Au said:
Ms Chen was regretful and she expressed her guilty feeling strongly throughout the meetings.
[10] Ms Chen expressed remorse and guilt similarly to the writer of her pre-sentence report.
[11] On the advice of her counsel, Ms Chen wrote a letter to Judge Rollo prior to sentencing, expressing her remorse and accepting her offending. In the letter, Ms Chen advised the Judge (truthfully) that she had repaid ZL’s money ($500,000) plus interest.8 Ms Chen explained her overall life situation and the stressors which led to her offending. Relevant paragraphs are:
I accept your verdict. I sincerely apologise to you, the victims, my daughters, my family, my friends and society. I deeply regret what has happened. I apologize to all of you. I will never do it again.
…
In late 2016 when [ZL]’s father and I discussed property investment, I was looking to establish myself and create a good life for me and my children. I had had success in property investment in the past. I also wanted to prove myself to my husband, make him think highly of me again.
Therefore I made a big mistake. I shouldn’t have done this. I am deeply remorseful and I will never do it again. I have repaid the money plus interest to try and make amends.
…
I have done wrong. I must be punished. I have lost my face, reputation and dignity already. I deserve this. Please though I beg, let me stay with my daughter.
[12] Ms Chen was happy to accept Judge Rollo’s sentence because she had avoided imprisonment. She was aware of her right to appeal the conviction and had been advised that the time to file the appeal ran from the sentencing date for a period of 20 working days.9
[13] Ms Chen was sued by the complainants in her criminal trial in relation to the joint ventures. The complainants were successful in the High Court10 but, on 7 March 2024, the decision was overturned by the Court of Appeal.11
8 Ms Chen had repaid AY the $100,000 in 2017.
9 Ms Chen, after her convictions, instructed Rachael Reed KC to advise her on the prospects of an appeal. On 22 February 2021, Ms Chen provided a copy of Ms Reed’s opinion to Ms Lanham who, in her affidavit, records the advice I have summarised.
10 [ZL] v Shiu [2021] NZHC 3564.
11 Shiu v [ZL] [2024] NZCA 48.
[14] The issues in the civil trial considered by the Court of Appeal did not include the issues in Ms Chen’s criminal trial. Ms Chen’s convictions were operative and the Court of Appeal recorded:12
[65] Ms Shiu13 admits she falsely represented that commissions were payable but having fully refunded the commission monies denies that [AY] and [ZL] suffered any further losses as a result of that representation. She denies making any representation about involvement in the whole development and contends the claims by [AY] and [ZL] to the contrary were not made out on the evidence.
[15] In essence, the Court of Appeal found that the evidence, including the accepted fact of Ms Chen’s deceit in relation to the commission payments, was insufficient to prove the claims brought by the complainants.
Extension of time to file notice of appeal
[16] Finality of litigation is an important principle. In the criminal context, verdicts affect not only the defendant but also the victims and, indeed, the witnesses. A defendant is entitled to rely on an acquittal and the Crown on a conviction unless an appeal is filed. For obvious reasons, criminal appeals require celerity, hence the stipulation by Parliament of a 20 working days period for filing them. But, a Judge can extend the time if that is what justice requires.
[17] In assessing whether the interests of justice require the extension of time to file an appeal, a Judge will examine why the notice of appeal was not filed within the permitted period and the merits of the proposed appeal. As the Crown submits:
56.A long delay is a major factor weighing against leave being granted and, if unexplained, will usually be decisive. In such cases, where there has been a delay of several years, leave to appeal will only be granted in exceptional circumstances.14 Relevant considerations include whether the delay is adequately explained and whether there are compelling reasons to extend time.15 The Court may also consider the seriousness of the charges, the strength of the proposed appeal, the effect on others and prejudice to the Crown.16
12 Shiu v [ZL], above n 11 (footnote added). Ms Chen did not give evidence at the civil trial.
13 Ms Chen was referred to as “Ms Shiu” in the civil proceedings.
14 R v Lee [2006] 3 NZLR 42 (CA) at [115], cited recently with support in Yad-Elohim v R [2024] NZCA 206 at [10]–[11].
15 Ellis v R [2019] NZSC 83 at [15]; and Oketopa v R [2020] NZSC 75 at [18].
16 Ellis v R, above n 15, at [15]; and Oketopa v R, above n 15, at [18].
[18] Mr Jones KC summarises Ms Chen’s reasons for her delay in seeking to appeal:17
36.Ms Chen was sentenced on 18 June 2021 to 9 months home detention and 150 hours of community work. Her sentence has been completed.
37.In her first affidavit dated 4 June 2024, Ms Chen states after she was found guilty she immediately wanted to appeal. She approached Rachael Reed KC to take advice on the issue. After receiving Ms Reed’s initial advice as to her potential grounds for appeal, Ms Chen instructed Ms Reed to act for her. Trial counsel continued to act in relation to sentencing.
38.During her preparation for sentencing Ms Chen states she was “petrified” about going to prison. With the understanding she had at the time, Ms Chen believed that if she appealed she could receive a harsher sentence and risked being sentenced to a term of imprisonment. Despite still wanting to appeal her convictions, Ms Chen felt she could not take the risk, and instructed Ms Reed to withdraw her appeal.
39.Ms Chen also states that she believed that as a convicted person she was obliged to accept her guilt. As such she wrote a letter of remorse filed at sentencing stating that she was sorry for her mistakes and she was deeply remorseful. She explains she wrote the letter because she believed she had no choice, in part due to her convictions and also due to her fear of being sent to prison.
40.After sentencing Ms Chen realised she still technically had time to appeal. She approached Ms Reed a second time for her legal opinion. After receiving Ms Reed’s advice, Ms Chen understood that she had made an appeal more difficult because of what she had “accepted” in the sentencing process. Ms Chen decided at that point to accept the verdict and abandon her plan to appeal permanently.
41.Subsequent to the appeal judgment for Ms Chen’s civil matter (discussed above) being delivered in March 2024, she met with counsel in relation to a separate civil proceeding. During her discussions she learned it was still possible for her to appeal her criminal convictions. She was told that if the investors had lied in the High Court in the civil case it may be possible to show they had lied in the criminal trial too. With that in mind, Ms Chen decided to revisit the option of appealing her convictions.
42.It took time for Ms Chen to find counsel who was available to act. In May 2024, Ms Chen instructed current counsel and her application for leave to appeal was filed on 10 June 2024.
(footnotes omitted)
[19] Ms Chen gave evidence in the hearing before me, as did her trial counsel.
17 Ms Chen’s affidavit of 4 June 2024 contains her detailed explanation.
[20] I find that Ms Chen received clear and accurate advice from her three lawyers as to her rights of appeal following her convictions. Her English was good. There was no misunderstanding by her of her legal position.
[21] I find that Ms Chen, having been told that her prospects of appealing the convictions were not strong, decided to admit guilt and try to obtain a sentence less than imprisonment. Her efforts included paying $500,000 plus interest to one of the two complainants.
[22] Ms Chen accepted her sentence and did not appeal her convictions (as she knew she could).
[23] The Court of Appeal’s decision in her favour in March 2024 contained findings which, by necessary implication, were critical of the two complainants’ credibility. Ms Chen decided that this could increase her chances of successfully appealing her convictions.
[24] I do not find Ms Chen’s explanation for her delay in seeking to appeal sufficiently adequate to displace the principle of finality of litigation. Ms Chen made deliberate and informed decisions from which she now wants to resile because she thinks the Court of Appeal’s decision, which does not bear at all on the issues in her criminal trial, increases her chances of a successful appeal.
[25] Having said that, I must still assess the strength of Ms Chen’s proposed appeal. If the merits of Ms Chen’s case are strong, or even strongly arguable, then the interests of justice will call for her appeal to proceed, notwithstanding her earlier decisions, admissions and the lengthy delay.
[26] The main ground for Ms Chen’s appeal would be that justice miscarried because of the way a document was used.
[27] Ms Chen’s trial strategy included her giving evidence to the effect that, contrary to the evidence of the complainants, she did not deceive them as to who would
get the payments in question. It was always explicit that Ms Chen would receive the payments.
[28] To support her evidence, Ms Chen intended to introduce a 2013 agreement (the Takapuna agreement) which Ms Chen, as investor, entered into with Mr Mian Xu. The agreement included an obligation by Ms Chen to pay Mr Xu a “service fee” of
$150,000 for Mr Xu’s introduction to the investment opportunity and for him running the development project. Mr Jones explains:
16.The Takapuna agreement was to be used by the defence to show:
a.charging a finder’s fee was a business practice employed by others, which Ms Chen had adopted;
b.that the agent/finder’s fees charged by Ms Chen were legitimate; and
c.the fee she charged was not unreasonable.
[29] The Takapuna agreement was provided to the Crown for inclusion in the trial bundle. The day before the trial was scheduled to start, the Crown told Ms Chen’s counsel that Mr Xu had provided a written statement to the effect that his signature had been forged and the agreement otherwise had been altered.18
[30] Trial counsel met with Ms Chen to discuss this development. Mr Billington KC advised her that Mr Xu’s allegations were collateral matters and that Ms Chen could give evidence about the Takapuna agreement but she should not produce it in evidence. Mr Billington’s advice was that the Crown would then be unable to cross-examine Ms Chen on Mr Xu’s allegations and unable to call Mr Xu as a witness. It was not suggested to Ms Chen that she should seek an adjournment of the trial so as to prepare a rebuttal of Mr Xu’s allegations.
[31] Ms Chen accepted Mr Billington’s advice. In her evidence-in-chief she referred to the Takapuna agreement briefly in the context of her paying a fee to the person who introduced her to the project. She said she discussed this project with one of the complainants when looking for an investment opportunity for him, including the paying of the fee.
18 It was established, after the trial, that Mr Xu’s allegations were untrue.
[32] In cross-examination, Crown counsel asked Ms Chen about the Takapuna agreement and put the actual agreement to her. The cross-examination began with Crown counsel taking Ms Chen through the provisions in the Takapuna agreement which set out Mr Xu’s remuneration and what it was for (presumably so it could be contrasted with the joint venture agreements Ms Chen entered into with the complainants). Later, there was this exchange:19
Q. Whereabouts did you sign this document?
A. I think it’s in Greenlane McDonald.
Q.In Greenlane McDonald’s and was Mr Crown Xu there when you signed it?
A. Yes.
Q. And did he sign it as well?
A. Yes.
Q. Is that his signature there?
A. Yes.
Q. That’s not a forged signature?
A. No.
Q.No? Greenlane McDonald’s on that date there, the 31st of December 2013?
A. Yes.
Q.Are there passages added into that document from the original document which you saw?
A. I don’t think so.
[33] Crown counsel then had Ms Chen confirm the Takapuna agreement’s provisions for payments to Mr Xu.
[34]Mr Jones submits:
82.It is summitted that the existence of Mr Xu’s statement affected the course of the trial in the following ways:
19 Notes of evidence at 129.
a.The statement illegitimately discredited an important defence exhibit. That exhibit did not form part of the defence as a result, compromising the defence.
b.The document was instead used by the Crown to discredit the appellant in cross-examination.
c.Evidence relating to the Takapuna agreement was not given by Ms Chen. The trial Judge was left to (erroneously) analyse the document on the limited information there was.
83.The Takapuna agreement was in the Crown exhibit bundle and adduced by Mr Burns in cross-examination of Ms Chen. The impression for the trial Judge was that it was a Crown exhibit being adduced specifically to catch her out and demonstrate Ms Chen had acted dishonestly. This must have had a negative effect on her credibility and created an entirely wrong perception of Ms Chen.
84.If the true position had been known:
a.The credibility contest between Ms Chen and the two investors would not have been influenced by the forging assertion and the absence of evidence from Ms Chen about the Takapuna agreement.
b.The defence evidence would have included the Takapuna agreement and its purpose. This would have provided a solid basis for Ms Chen’s defence of claim of right.
c.The evidence would have been complete about the Takapuna agreement. The Judge would not have been left in the position of having to discern what he considered the Takapuna agreement could be used for without the necessary evidence to explain it properly.
d.The document was in the Crown bundle. It appeared to be there for cross-examination purposes. That false image would have been dispelled.
[35] I do not accept these submissions. Ms Chen wanted the Takapuna agreement to be in evidence. Acting on advice, she referred to it in her evidence-in-chief but did not produce it. The Crown put it into evidence instead. The Crown’s cross-examination, apart from the exchange I have quoted, did not suggest the Takapuna agreement was not authentic. The cross-examination focused on the remuneration provisions for Mr Xu, which were different to the provisions in the index joint venture agreements.
[36] As a matter of trite law, the questions by Crown counsel which I have quoted are not evidence. Ms Chen’s denials of the propositions are the evidence. The Crown did not seek to challenge the denials.
[37]The Judge referred to the Takapuna agreement in his decision:
[75] Mr Burns adduced evidence of the true nature of Ms Chen’s Takapuna property development, by putting the form of joint venture agreement to her. What was clear from that document was that no introductory fee or finder’s fee was paid by Ms Chen as any form of prerequisite for her participation in that project. The fee she paid to the developer was a management/development fee for his professional services in managing all aspects of the development. That manager did not receive an equal, or near equal, shareholding in Ms Chen’s development as recompense for his management work, only the agreed manage [sic] fee.
[76] The manager did put the option of a longer-term management arrangement, which would have seen him receive a salary for his professional development and managerial work otherwise, but Ms Chen apparently [did] not elect to participate in that salaried arrangement.
[77] I am satisfied that Ms Chen’s reference to this alleged precedent of payment upfront of an introductory fee or finder’s fee to allow participation in a development project has no real basis in fact. I accept she did say that is what she had to do with the Takapuna development, but I find that her assertions in that regard are untrue.
[38] It is clear the Judge accepted that the Takapuna agreement was genuine. His conclusion was that it could not be used to support Ms Chen’s evidence about the inclusion of the remuneration provisions in the joint venture agreements with the complainants.
[39] Mr Jones submits that if further evidence is admitted then Ms Chen’s reliance on the Takapuna agreement could be strengthened. He filed three affidavits.20 The first is by Mr Howard David Morrison, a lawyer specialising in property law. He deposes to the payment of commissions. The second is by Ms Jessica Grobbelaar, a barrister employed by Ms Chen’s current counsel, who produces records of the interactions between the Crown and trial counsel concerning the Takapuna agreement and Mr Xu’s statement. The third is by Ms Deanne Sillis, a legal secretary employed by Ms Chen’s current counsel. She provides material identifying companies and
20 The Crown opposes the introduction of these affidavits.
properties linked to the complainants which is said to demonstrate their experience with property transactions.
[40] I have had regard to Ms Grobbelaar’s affidavit because it contains materials relevant to what happened at the trial. I will not admit the other two affidavits. The material they contain is not fresh and, more importantly, it is not cogent.
[41] The issue for Judge Rollo was not whether fees or commissions could be charged. Nor whether they were commonly charged. The issue was whether Ms Chen had falsely represented to the complainants that the fees were to be paid to Mr Chase. The Judge recognised this explicitly:
[78] I also find that nothing of any consequence attaches to the circumstances of the commencement of the property investment venture of ZL and his family. I accept, from the oral and the documentary evidence before me, that it was viewed, perhaps as not uncommon Chinese business practice, for cash payments to a middleman or middlemen to be made to ensure smooth progress with a project. Such payments are not the issue here, it is whether the Crown has proved, beyond reasonable doubt, that Ms Chen deliberately and deceptively told ZL and subsequently AY that the cash payments were “for Eric” to ensure he gave the project, in each instance, to them.
[42] The Judge’s conclusion was:
[80] What I do find is that Ms Chen’s actions in promoting the purchase and development of land at Pokeno with ZL and his family did not involve her “introducing them to a project”. She telephoned Eric [Chase], a real estate agent active at Pokeno whom she had had previous dealings with, and simply asked him about the availability of investment land at Pokeno.
[81] The concept that one telephone call, a cold call, to the vendors’ agent would warrant an introductory fee or finder’s fee of $500,000 from ZL, or
$100,000 in AY’s case, is absurd. And I find, that is essentially the view that both ZL and also AY took, that they had been cheated by Ms Chen over the cash payments, that were not for the, perhaps, acceptable purpose of ensuring the success of the projects, purportedly through the influential real estate agent, but were an additional, significant, and undeserved payment to Ms Chen.
[43] The Judge’s conclusion was open to him on the evidence. The evidence proposed to be given if there were a re-trial would not bear materially on the essential issue.
[44] I do not, therefore, find that there was anything deficient in the advice given to Ms Chen by Mr Billington once Mr Xu’s statement was disclosed by the Crown. An adjournment, if granted, could not materially have assisted Ms Chen. The authenticity of the Takapuna agreement was accepted by Crown counsel and by the Judge.
[45]I find that the strength of Ms Chen’s proposed appeal on this ground is weak.
[46] There is another proposed ground of appeal. It is that the Judge erred in his reasoning and credibility assessment of the witnesses.
[47]Mr Jones submits:
90.It is submitted that the trial Judge’s decision is flawed such that the test for miscarriage is met. His Honour made credibility findings without the necessary rigour and cross-referencing to contemporaneous documentary material. He failed to consider the complainants’ allegations in an objective, analytical manner.
[48] Mr Jones makes a careful analysis of the evidence and he identifies inferences and conclusions which would be favourable to Ms Chen. Mr Jones references the Court of Appeal decision which found in favour of Ms Chen and praises the objective analysis which led the Court of Appeal to its conclusion. With respect, the two cases are very different. The Court of Appeal’s analysis concerned claims that Ms Chen had promised benefits outside the scope of the joint venture agreements and unrelated to them. Part of the Court’s analysis focused on the actions of the parties during the course of the joint ventures, and their communications with each other.
[49] In this case the Judge also looked at the actions of the parties and their communications with each other. They included the independent actions of each complainant when they realised that Ms Chen had received the payments. I will come shortly to WeChat messages between Ms Chen and AY.
[50] However, the point is that the Judge did not have to address every possibility or undertake the analysis identified by Mr Jones. The issue for me is whether the Judge’s conclusions were available to him on the evidence, taking into account the advantage the Judge had in seeing the witnesses give their evidence.
[51] In my view, the Judge was justified, on the evidence, in finding Ms Chen guilty of the charges. The Judge made reasoned findings on the credibility of Ms Chen and the two complainants:
[89] I find ZL to have been an honest and reliable witness. His answers were open, precise, thoughtful and consistent. He rejected Ms Chen’s allegations steadfastly despite close and determined cross-examination.
[90] I also find AY to have been an essentially honest and reliable witness. She was more guarded over some aspects of her testimony, more related to the financial involvement of her extended family. I do not find this to be material to my overall assessment that I can rely on her evidence. It is consistent with the documentary evidence before me, and remarkably consistent with the independent account of ZL as to what Ms Chen told him about who was to receive the cash payments.
[52] Further, there was an important piece of uncontested evidence which was very adverse to Ms Chen’s credibility. At one point, Ms Chen was pursuing AY for the
$100,000 payment. Ms Chen, in WeChat messages, repeatedly told AY that she had to pay the money “for Eric”. In cross-examination, Ms Chen said she made this up because she thought that using Mr Chase’s name would incentivise AY to pay the money. Ms Chen said that at the time she did owe Mr Chase money (Mr Chase in his evidence did not corroborate this). Ms Chen did not say what the debt was for. Before me, Ms Chen said it was for payment of an interpreter. There was no detail given and I found Ms Chen to be unconvincing on this point. The Judge, for his part, said:
[88] Ultimately, Ms Chen’s own evidence, in her WeChat messages to AY in France, clearly support the independently corroborating evidence of ZL and AY, that Ms Chen told each of them that the cash payments were “for Eric”. I entirely reject as untrue Ms Chen’s evidence that she made up the references to “Eric” as being the recipient of the money to be paid by AY, in order to put pressure on AY to pay money that Ms Chen alleges was always disclosed as being money she was to retain.
[53] In cases like this, I am always aware that concentrating solely on the points advanced and argued by counsel can obscure the real point. That point is whether, on an overall evaluation of what happened at the trial, there is a real risk that a miscarriage of justice has occurred.21 I am not satisfied in this case that there is any such risk.
21 Criminal Procedure Act, s 232.
Decision
[54] I decline to grant leave to extend the time for filing the Notice of Appeal.
Brewer J
0
5
0