Chen v The Queen
[2012] NZCA 505
•2 November 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA318/2012 [2012] NZCA 505 |
| BETWEEN CHEN CHEN |
| AND THE QUEEN |
| Hearing: 29 October 2012 |
| Court: Harrison, Chisholm and Ronald Young JJ |
| Counsel: G J Newell and C T Patterson for Appellant |
| Judgment: 2 November 2012 at 10 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS OF THE COURT
(Given by Harrison J)
Introduction
Chen Chen was found guilty of two charges of blackmail following his trial before Winkelmann J and a jury in the High Court Auckland. He was convicted and sentenced to 200 hours community work and six months supervision and ordered to pay reparation of $700.[1]
[1] Police v Chen HC Auckland CRI-2011-004-3755, 22 May 2012.
Mr Chen appeals against his conviction on the sole ground that a miscarriage of justice resulted from counsel’s error in advising him not to give or call evidence at trial.
Facts
Mr Chen was associated with a man called Lei (also known as Max) Zheng. The Crown alleges that Mr Zheng formed a group for the purpose of blackmailing the Asian proprietors of some massage parlours in Auckland. In the space of a few days in late October and early November 2010 Mr Zheng and others visited five massage parlours. Mr Zheng’s modus operandi was to make demands for payment of protection money, calculated at the rate of $100 per working girl per week, and threaten the proprietors with harm if they refused to pay. In some cases the owners were intimidated and made payment.
Mr Chen was not a central member of Mr Zheng’s group. On the Crown case, he accompanied Mr Zheng on visits to two parlours. These two occasions formed the basis of two separate counts. Mr Chen’s role was to supplement numbers and to act as the group’s English interpreter should it be necessary to deal with a non-Chinese speaking person.
The Crown case against Mr Chen was factually confined. On one count, there was evidence that he undertook some interpreting duties for Mr Zheng when the latter made a threat to one massage parlour proprietor; on the other count, the evidence was that he sat beside Mr Zheng while the latter spoke to another proprietor.
The Crown accordingly charged Mr Chen as a party, not as the principal offender. There is no challenge on appeal to Winkelmann J’s directions to the jury that proof of minimal assistance by Mr Chen was sufficient to constitute participation in the offending as a secondary party; or that the jury had to be satisfied that Mr Chen took some action with the intention of assisting Mr Zheng to commit the crime.
Appeal
Mr Chen was charged jointly at trial with Mr Zheng. Another co-accused had apparently absconded. Mr Chen was represented by Ms Elaine Ward and Mr Michael Kan. Mr Kan is a Mandarin speaking New Zealand lawyer of Chinese descent. He represented Mr Chen from the time he was arrested and charged with blackmail on 4 November 2010 through to trial which commenced on 19 March 2012. Ms Ward was retained as leading counsel on the eve of the trial following the withdrawal of Mr Chen’s original counsel, Ms Iswari Jayanandan.
Mr Newell for Mr Chen has identified with some precision the discrete ground of Mr Chen’s appeal. It is that Ms Ward’s advice to Mr Chen at the conclusion of the Crown case not to give or call evidence was inappropriate; and that as a result Mr Chen did not provide a fully informed waiver, leading or contributing to a miscarriage of justice.
Mr Chen, his girlfriend – Ms Ekaterina Kukina – and Ms Ward and Mr Kan all swore affidavits relating to the appeal in this Court. Originally counsel anticipated that cross-examination would be necessary. However, it became plain that there was a material degree of consensus in their accounts of events; and ultimately there was no dispute that Ms Ward advised Mr Chen against giving evidence and he accepted that advice. So our inquiry is focussed according to Mr Newell’s identification of the issue solely on Ms Ward’s advice and its basis.
We should add that Mr Newell does not challenge any other aspect of counsels’ conduct of Mr Chen’s defence. Nor could he. Ms Ward and Mr Kan conferred frequently and conscientiously with Mr Chen throughout the trial. They constantly sought and obtained instructions and progressively prepared a draft brief in anticipation that Mr Chen would give evidence. The transcript reveals a commendably careful approach to the defence.
Decision
Mr Newell submits that Ms Ward made a fundamental error of judgement. His central theme is that Ms Ward failed to appreciate that Mr Chen had no option but to give evidence in his defence. That was because as counsel she could not place any faith in or reliance on the jury’s acceptance of that part of Mr Zheng’s evidence which largely exculpated Mr Chen from involvement. On Mr Newell’s thesis, Mr Zheng was so plainly guilty of committing blackmail on three separate occasions preceding Mr Chen’s participation that the jury would completely reject his evidence. So, without Mr Chen’s own exculpatory account, the jury would be left with overwhelming and unanswered evidence of his guilt.
We reject Mr Newell’s submission on three related grounds. First, his argument is an attempt to second guess Ms Ward’s advice made with the comfort of hindsight. It ignores the inestimable benefit available to trial counsel of participation in the process and her incremental appreciation of all relevant aspects of the case.
As a result of briefing Mr Chen’s evidence, Ms Ward entertained doubts about its reliability. In particular she identified a significant inconsistency in Mr Chen’s instructions that at one massage parlour he paid no attention to the conversation. Instead he said he was playing a game on his phone while waiting for somebody. Ms Ward double checked the relevant CCTV footage. Instead of verifying that Mr Chen was playing a game on his cell phone, it showed that he was leaning forward and apparently listening to a critical conversation between Mr Zheng and one of the complainants. Mr Newell accepts that Ms Ward’s reservation on this element was reasonable.
Additionally, Ms Ward was concerned about potentially incriminating text messages received and sent by Mr Chen, by phone numbers recorded on his cell phone, and by evidence from cell site locations which showed Mr Chen’s physical presence at one if not both massage parlours at relevant times. She understood and carefully advised Mr Chen of the risks to which this evidence would expose him on cross-examination. Plainly this was a counsel of prudence.
At the end of the Crown case Ms Ward properly explained to Mr Chen her reservations about the likely accuracy of his evidence if given and the risk of damaging cross-examination. Allied to that factor was her satisfaction after having heard and seen Mr Zheng himself give evidence that Mr Zheng gave a reasonably credible account of Mr Chen’s defence. Weighing up these factors, Ms Ward had more than a reasonable foundation for her advice. Ultimately Mr Newell was not in a position to assert to the contrary.
Second, given these limitations, we are satisfied that Ms Ward followed a well thought out defence strategy. It was based upon raising a reasonable doubt about the existence of a factual foundation for the inferences which the Crown asked the jury to draw. Throughout she questioned the adequacy of the prosecution evidence, both in cross-examination and in a thoughtful address to the jury. Without doubt, that strategy was well open to Ms Ward.
Third, this was not a case where, in our judgement, Mr Chen had no alternative but to give evidence in his defence; there was reasonable scope for Ms Ward to mount a credible defence without calling him. It was classically a case where each of the available alternatives – to give evidence or not to give evidence – carried risks. Each was capable of rational justification. Ms Ward cannot be criticised for making what was essentially a judgement call in favour of one alternative.
We add for completeness our satisfaction that no miscarriage of justice independently arose as a result of Mr Chen’s decision taken in reliance on Ms Ward’s advice not to give evidence.
Result
The appeal is dismissed.
Solicitors:
S Anderson, Auckland for Appellant
Crown Law Office, Wellington for Respondent
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