Chen v The Queen - [2019] NZHC 2519

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-256

[2019] NZHC 2519

BETWEEN
XUE CHEN

Appellant

AND

THE QUEEN

Respondent

Hearing: 30 September 2019

Appearances:

F Pilditch for Appellant

R McCoubrey for Respondent

Judgment:

4 October 2019

JUDGMENT OF LANG J

[on appeal against conviction and sentence]

This judgment was delivered by me on 4 October 2019 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

CHEN v R [2019] NZHC 2519 [4 October 2019]

[1] Mr Chen faced a charge in the District Court of wilfully attempting to pervert the course of justice.1 Following a defended hearing on 2 April 2019 Judge P J Sinclair delivered an oral judgment in which she found Mr Chen guilty on that charge.2 On 23 May 2019, the Judge sentenced Mr Chen to two years two months imprisonment.3

[2] Mr Chen appeals against both conviction and sentence. He has been on bail pending disposition of this appeal.

Background

[3] Much of the evidence given at the hearing in the District Court was not in dispute. During 2017 Mr Chen was operating a poultry farm. In or about July 2017 the Commission began investigating an allegation that Mr Chen was selling cage eggs on the basis that they were free range eggs. The investigation followed a complaint made to the Commission by Mr Feihing Hu. Mr Hu had previously worked for Mr Chen on the poultry farm. He made a complaint to the Commission shortly after he left Mr Chen’s employment in early July 2017.

[4] On 12 December 2017 six investigators from the Commission executed a search warrant at Mr Chen’s poultry farm. The charge that forms the subject of the present appeal was laid following an incident that occurred on the evening of the same day.

[5] After the Commission’s investigators had completed the search of the poultry farm on 12 December Mr Chen held a meeting with his employees to discuss who may have provided information to the Commission. This led him to believe Mr Hu was the person responsible.

[6] At about 9 pm that evening Mr Chen and two of his employees, persons named Muhammed Hossain and Sonny, drove to Mr Hu’s address. When they arrived at Mr Hu’s address Mr Chen initially remained in his vehicle while Sonny and Mr Hossain knocked on the door. Sonny had been on friendly terms with Mr Hu when

1      Crimes Act 1961, s 117(e).
2      R v Chen [2019] NZDC 6045.
3      R v Chen [2019] NZDC 9719.

he was employed by Mr Chen. Mr Hu was aware Sonny would be visiting that night because Sonny had sent Mr Hu a text message earlier in the evening to that effect.

[7] After Mr Hu came to the door of his address Mr Chen got out of the car and began speaking to him. Mr Chen accused Mr Hu of being the person who had made…

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.

Continue reading Chen v The Queen

Details

AGLC: Chen v The Queen [2019] NZHC 2519
Case: [2019] NZHC 2519
Decision Date: 4 October 2019

CaseChat Overview and Summary

Xue Chen appealed against his conviction and sentence for wilfully attempting to pervert the course of justice. The appeal was heard on 30 September 2019 and judgment was delivered on 4 October 2019. Chen had been found guilty by Judge P J Sinclair in the District Court on 2 April 2019 and was sentenced on 23 May 2019. Chen's appeal was against both conviction and sentence. The Court had to decide whether Chen's actions amounted in law to an attempt to pervert the course of justice and whether Chen intended to pervert the course of justice. The Court found that Chen's actions did not have the tendency to pervert the course of justice and therefore the appeal against conviction was allowed, the conviction was quashed, and the sentence was set aside. Chen was discharged on the charge and released from his existing bail conditions.

Orders