Chen v The Queen
[2019] NZHC 2519
•4 October 2019
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 a complaint to the Commission, but Mr Hu said he did not know what Mr Chen was talking about. A discussion then ensued in which Mr Chen accused Mr Hu of stealing eggs whilst he was an employee. Mr Hu responded by saying words to the effect that he could just as easily have accused Mr Chen’s mother of stealing property from his vehicle. This made Mr Chen angry and he assaulted Mr Hu by punching him at least twice in the head. Mr Chen’s employees then intervened and separated Mr Chen and Mr Hu. Mr Hu said he would call the police and Mr Chen invited him to do so and said he would wait at the address for the police to arrive.
[8] There was then a significant delay and it became necessary for Mr Hu to make a second call to ask the police to come to his address. During this period Mr Hu remained at the door of his address whilst Mr Chen and his associates stayed in the driveway. At some stage while the two men were waiting for the police to arrive Mr Chen approached Mr Hu and engaged him in conversation. The case for the prosecution was that during this discussion Mr Chen told Mr Hu to withdraw the complaint he had made to the Commerce Commission and threatened him with revenge if he did not. Mr Hu recorded part of the conversation with Mr Chen on his cellphone and later gave this to the police.
[9] This series of events led to Mr Chen being charged with wilfully attempting to pervert the course of justice by threatening Mr Hu for the purpose of having him withdraw the statement he had made to the Commission.
The hearing in the District Court
[10] At the hearing in the District Court Mr Hu gave evidence largely along the lines set out above. Mr Hossain also gave evidence for the prosecution. He said Mr Chen had gone to Mr Hu’s address because Mr Chen wanted to ask Mr Hu whether he had made the complaint to the Commission and if so why. Mr Hossain said he heard Mr Chen ask Mr Hu whether he had lodged the complaint with the Commission.
He also heard the discussion in which Mr Chen told Mr Hu he had stolen eggs from the poultry farm. He then heard Mr Hu talk about Mr Chen’s mother stealing money from him. Mr Hossain said Mr Chen became angry at this and punched Mr Hu once or twice in the face or chest. He later heard Mr Chen asking Mr Hu to withdraw the complaint he had lodged with the Commission.
[11] Mr Chen also gave evidence. He said he had gone around to Mr Hu’s address to prove to Mr Hossain that Mr Hu had been the person who had laid the complaint with the Commission. He said Mr Hossain had been concerned by the events that had occurred earlier in the day because he was worried it would threaten his job security. Mr Chen denied going to Mr Hu’s address with the intention of persuading him to withdraw his complaint to the Commission. He also denied he had told Mr Hu to withdraw the complaint or that he had made any threats towards him. He said he had told Mr Hu to tell the truth to the Commission and not to tell lies.
[12] The Judge preferred the evidence of Mr Hu to that given by Mr Chen on all material matters. There is no challenge to those findings on the appeal. Having made these factual findings, the Judge’s conclusion as to why Mr Chen went to Mr Hu’s address is encapsulated in the following passages of her decision:4
[35] I conclude that Mr Chen went to Mr Hu’s house, accompanied by two of his employees, to create an intimidating atmosphere and to make a deliberate attempt to persuade Mr Hu to withdraw the complaint Mr Hu had made to the Commerce Commission. Mr Chen was violet towards Mr Hu and he threatened Mr Hu, evidenced by the comments he made and recorded by Mr Hu. Mr Chen wanted Mr Hu to know he could be violent.
…
[37] I do not consider Mr Chen used lawful means and reasoned arguments, as discussed in the decision of Librizzi.5 Even though Mr Chen told Mr Hu it was not a threat, it was, “Advice and a friendly warning,” against the background that Mr Chen had just punched Mr Hu twice and the way in which Mr Chen’s language was couched, I have no doubt Mr Chen was threatening and attempting to apply pressure to Mr Hu. He took deliberate action and took aim at the course of justice.
[38] I am satisfied beyond reasonable doubt that Mr Chen asked Mr Hu to withdraw the complaint he had made to the Commerce Commission and that Mr Chen’s purpose in asking Mr Hu to withdraw the complaint was to
4 R v Chen, above n 2.
5 Librizzi v Western Australia [2006] WASCA 237; (2006) 167A Crim R 26.
adversely influence the course of justice in relation to the Commerce Commission investigation of Mr Chen’s business.
[13]The Judge found the charge proved for the following reasons:6
[41] In my view, Mr Chen’s conduct did have a tendency to adversely affect a proceeding. “An act which has a tendency to deflect the police from prosecuting,” (or in this case the Commerce Commission) an offence or reducing evidence of the true facts is an act which tends to pervert the course of justice.”7 As further stated in McMahon v R:
It suffices that there is an act which has a tendency to prevent or obstruct a prosecution which an accused contemplated might follow with an intention on the part of the accused to pervert the course of justice.
[42] Liability will attach, irrespective of whether the conduct was successful or not. Mr Chen attempted to persuade Mr Hu through threats and violence to withdraw a complaint to the Commerce Commission. The fact that charges were not laid for a further 10 months, and the Commerce Commission are now not reliant on Mr Hu’s complaint, does not alter the position that Mr Chen’s conduct had a tendency to adversely affect proceedings. The fact that he was not successful is irrelevant to this charge.
[43] I am satisfied the course of justice was in play, notwithstanding a charge had not been laid at that point. There was a tendency to deflect the Commerce Commission from prosecuting an offence. I am satisfied Mr Chen’s conduct was designed to bring about an outcome which was to avoid or thwart legal proceedings against him and his company. As mentioned earlier, I do not find it plausible that Mr Chen would have not appreciated the Commerce Commission search could result in possible legal action, proceedings or charges being laid. Given the findings I have made, I infer that Mr Chen knew his conduct would make the Commerce Commission investigation into his activities more difficult.
Appellate approach
[14] Section 232(2)(b) of the Criminal Procedure Act 2011 requires a first appeal court to allow an appeal against conviction following a Judge-alone trial where the trial Judge has erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred.
[15] In Sena v Police the Supreme Court held that an appeal against conviction in this context must be determined according to conventional appellate principles.8 If
6 R v Chen, above n 2.
7 McMahon v R [2009] NZCA 472 at [87](c).
8 Sena v Police [2019] NZSC 55 at [32].
the appellate court comes to the view to the trial court on the evidence, the appeal must be allowed.9 The appellant bears the onus, however, of showing that an error has been made in the court below.10 In undertaking its own assessment of the correctness of the decision the appellate court should take into account any advantage the trial Judge may have had.11
Could Mr Chen’s actions amount in law to an attempt to pervert the course of justice?
[16] This issue arises because it is common ground that no charges had been laid as at 12 December 2017. As the Judge noted, the Commission did not lay charges against Mr Chen until nine or ten months later.
[17] The fact that no charges have been laid will not necessarily be fatal to a charge alleging an attempt to pervert the course of justice. It is now well established that an attempt to frustrate or deflect a police investigation into possible criminal offending may amount to an attempt to pervert the course of justice. In R v Meyrick, the Court of Appeal observed:12
[41] It is clear that despite the use of the word “attempts” in s 117(e), the section creates a substantive offence which requires proof of both an action which has the tendency to pervert the course of justice (the actus reus) and an intention to pervert the course of justice (the mens rea), see R v Rogerson (1992) 174 CLR 268 AT 279 (per Brennan and Toohey JJ.
[42] The “course of justice” undoubtedly includes the administration of justice by publicly established tribunals, see, for instance, Rogerson. It is sometimes said that the “course of justice” extends to cover police investigations. There is no doubt that criminality attaches to actions which have the tendency (and are intended) to adversely affect court proceedings (or indeed prevent such proceedings being commenced) even though those actions are in the context of police investigations, and occur prior to proceedings being commenced, see, for instance, R v Kane [1967] NZLR 60 and R v Sharpe [1938] 1 All ER 48 at 51. But the fact remains that the tendency and intention which are critical must be addressed to actual or contemplated proceedings before publicly constituted tribunals, a point which emerges clearly from Rogerson.
9 At [38].
10 At [38].
11 At [38].
12 R v Meyrick CA513/04, 14 June 2005.
[18] The principles that apply in the present context are conveniently summarised in the following passage from the judgment of the Court of Appeal in McMahon v R:13
[87]The following propositions emerge from the case law:
(a) The object of the offence of attempting to obstruct or pervert the course of justice is to protect the process and procedures of the courts (and other tribunals).
(b) It is not necessary to prove that the course of justice was in fact perverted or obstructed. It is merely necessary to prove that the act had a tendency to do so and that the accused intended to pervert the course of justice (ie court or tribunal proceedings).
(c) It is not necessary for court (or tribunal) proceedings to have been actually instituted. It suffices that there is an act which has a tendency to prevent or obstruct a prosecution which an accused contemplated might follow with an intention on the part of the accused to pervert the course of justice.
(d) The course of justice has begun at the time at which an arrest warrant is issued. Thus, an attempt to interfere with the execution of an arrest warrant, with the knowledge that such a document has been invoked by the jurisdiction of a court, will fall within the scope of the offence.
(e) Police investigations in themselves do not form part of the course of justice. However, an act which has a tendency to deflect the police from prosecuting a criminal offence or adducing evidence of the true facts is an act which tends to pervert the course of justice if undertaken with this purpose in mind.
(f) The fact that an accused may not have been convicted on an underlying charge is not relevant to a charge under s 117(e). Neither is the fact that a person assisting an accused (or interfering with evidence) believes an accused to be innocent. The courts have the responsibility for judging the case and not the accused or any person assisting the accused.
[19] Mr Pilditch argues on Mr Chen’s behalf that there could be no certainty as at 12 December 2017 that the Commission’s investigation would ever result in charges being laid before a Court or other Tribunal. He points out that the Commission has a wide range of powers under the Commerce Act 1993. It could easily have decided to deal with the matter by way of civil proceedings or a requirement that Mr Chen and
/or his company provide enforceable undertakings under ss 74A and 74B of that Act. He contends the fact that alternative outcomes were available meant that any act
13 McMahon v R, above n 7.
Mr Chen may have committed on 12 December 2017 could not have amounted in law to an attempt to pervert the course of justice.
[20] As subsequent events demonstrate, however, one of the potential outcomes of the Commission’s investigation was the laying of charges. Such proceedings were therefore in contemplation even though the Commission may not have made a decision to prosecute as at 12 December 2017. The fact that other outcomes might have been available does not detract from that fact. Furthermore, one can envisage a situation in which a suspect commits an act designed to ensure an investigation leads to an outcome other than the laying of criminal charges. Such an act would, in my view, clearly amount to an attempt to pervert the course of justice provided the remaining elements of the charge were met.
[21]This ground of appeal fails as a result.
Did Mr Chen intend to pervert the course of justice?
[22] By the time Mr Chen visited Mr Hu on the evening of 12 December 2017 the Commission had executed the search warrant at his poultry farm. This had taken approximately five hours. In addition to the six investigators from the Commission two police officers were also initially present.
[23] One of the investigators present when the search warrant was executed was Mr Richard Morgan. Mr Morgan gave evidence and confirmed he spoke to Mr Chen when the warrant was executed. He informed Mr Chen of the purpose of the search warrant and left him with his business card once the search had been completed. He also told Mr Chen the investigation was ongoing.
[24] Mr Chen was clearly sufficiently concerned by the events that occurred on 12 December 2017 to go immediately to Mr Hu’s address because he believed Mr Hu had been responsible for laying the complaint with the Commission. When he arrived at Mr Hu’s address the first issue discussed was whether Mr Hu was that person. This led to the discussions that ultimately resulted in Mr Chen striking Mr Hu after he made the comment about Mr Chen’s mother stealing from him.
[25] Mr Hu’s evidence regarding the discussion that occurred after he had called the police is important. It was as follows:
Q. So I wanted to talk about what happened from that phone call to the police then arriving 30 minutes later. So what happened when you put down the phone?
A.I put down the phone. I stayed in front of the front door outside of the house and they – there’s three guys on the driveway, talk to each other, and then after that, I remember Mr Chen tried to talk to me. He said that, he tried to offer me, give me offer, and he asked me to withdraw the case from what I report to the Commercial Commission about the business.
Q. When he was trying to get you to withdraw the case, can you remember what words he used?
A.Um, I think he said exactly the same, that, um, um, like, “If you’re smart guy you try to, you know, you have to withdraw the case otherwise I revenge on you. Otherwise” –
[26] The transcript of the recording that Mr Hu took of part of this conversation reads as follows:
Mr Chen:… more complicated. If you think today I punished you was so hard you are totally wrong. Maybe in your life you never punished with any other guys but in my life, lots …… (breathing)
And I can report you stealing even though I have no evidence but I have witness. That can bring you a lot of trouble. I am not talking about myself treating you guys very well, but however, I didn’t want to bring any problems to each single of you until today, however you leave this to me. You started
…
Mr Hu: So you come here to give me the threat?
Mr Chen:No, not, this you can see this as a threat, for me this is advice and my proposal. Even later when the cop come to me you can tell them what I told you today and I will tell the cop “yes, I said this to Johnny”, however, I don’t think that this is a threat. This is just a friendly warning or advice. Who knows next minute happens. And these guys they cannot stop me before I start revenge on you. Cop always behind action .....
I come here and try to [solve] the problem, not upgrade that’s why I give you my advice and my proposal.
[27] Mr Chen maintained that he did not use the word “punish” and instead used the word “fight”. Even making allowance for this, however, it is clear from Mr Hu’s
evidence and the transcript of the recording that the discussion strongly supported the prosecution’s argument that Mr Chen asked Mr Hu to withdraw the complaint and said he would exact revenge if he did not.
[28] When the prosecutor cross-examined Mr Chen the following exchange occurred:
Q. Just to confirm, so there were police officers at your farm with Mr Morgan?
A. Yes.
Q.And you used the word earlier in evidence as well that you described it as a raid?
Q. Yeah.
Q. So you agree that’s how you’d characterise it? And I think you understood that they were investigating?
A. I didn’t understood they were investigation until they turned up.
Q. Yes. When they turned up it was explained to you that they were investigating?
A. Yeah.
Q. And you understood that they were searching for evidence?
A. Yes.
Q. And I think how long I thought I heard you say they might’ve been there for five hours. Is that what I’ve –
A. A few hours before 12, yeah.
Q. So, you must’ve also understood that whatever they’re there for there must’ve been some kind of legal process or outcome that could result from this?
A.Yeah, I understand what they did was legal process and we did our best to co-operate with them during the search time, yeah.
Q. And if it’s an investigation, there could be some kind of outcome of that investigation?
A. Ah, yeah, yeah.
Q. And that might involve a legal process like a Court case?
A. Maybe, but no-one told me that. Yeah.
[29] Nobody may have told Mr Chen that a court case might follow but I consider it significant that Mr Hu said on two separate occasions when giving his evidence that Mr Chen told him he should “withdraw the case”. This suggests Mr Chen believed that Mr Hu’s complaint was likely to lead to a court case being filed against him. It is inherently unlikely that Mr Chen would have known the Commission had the ability to file civil proceedings. The presence of no fewer than six investigators and two police officers would also have indicated to Mr Chen that he was likely to be facing criminal charges.
[30] Taking these factors into account I consider the Judge was correct to conclude Mr Chen intended to pervert the course of justice by telling Mr Hu to withdraw his complaint. However, this is not sufficient to prove the charge. The prosecution was also required to prove Mr Chen’s act had the tendency to pervert the course of justice.
Did Mr Chen’s act have the tendency to pervert the course of justice?
[31] An attempt to persuade a potential witness to withdraw a complaint or recant an earlier statement would ordinarily amount to an act having a tendency to pervert the course of justice. As Mr McCoubrey pointed out for the respondent, withdrawal of a complaint or disavowal of an earlier statement would inevitably affect the credibility of the witness if he or she was later required to give evidence.
[32] The difficulty in the present case is that by 12 December 2017 approximately six months had elapsed since Mr Hu had lodged his complaint with the Commission. There was no evidence about the state of the Commission’s investigation at that time or whether Mr Hu’s initial complaint might still have evidential value in any prosecution that might follow. If it did not, any attempt by him to withdraw the complaint could not have a tendency to pervert the course of justice.
[33] The only evidence dealing with the Commission’s investigation is contained in the following passage from the cross-examination of Mr Morgan at the trial:
Q.At the 12th of December you’ve confirmed, “We didn’t have charges laid.” Is that correct?
A. That’s correct.
Q. And therefore wouldn’t know if there was going to be a hearing or who the witnesses would be?
A. That’s correct.
Q. I can tell you having had a look at the charging documents that the charges were laid in September 2018. That was nine months after the search warrant was executed, wasn’t it?
A. Yes.
Q. And the Commerce Commission investigation, it started with Mr Hu’s complaint but it’s not reliant on that, is it?
A. No, absolutely not.
Q. They do, the Commerce Commission do all of their own investigations, video surveillance, speak to customers, suppliers, there’s a wealth of documents and investigations that have gone on, haven’t there?
A. Depending on the investigation but –
Q. This one.
A. Oh yes. Yes.
Q. And there’s been significant investigations both since Mr Hu’s original complaint? Would you agree with that?
A. Yes.
Q. And then significantly more work again after the search warrant?
A. Yes.
[34] Mr Pilditch contends that by 12 December 2017 Mr Hu is likely to have been in the same position as an informer who provides the police with initial information on a confidential basis. The information enables an investigation to be commenced and may also be used to support an application for warrants issued under the Search and Surveillance Act 2012 or other legislation. Thereafter, however, the value of the informant’s information is spent because it is overtaken by the information obtained in the ensuing investigation. There may also be a risk to the informer’s physical safety if her or she is required to give evidence. Any attempt to persuade the informer to retract an earlier statement will therefore lack the necessary tendency to pervert the course of justice.
[35] Mr Pilditch also suggests the present case is analogous to that in Meyrick.14 In that case the appellant had been convicted of wilfully attempting to pervert the course of justice after he uplifted and subsequently disposed of a computer tower that he knew the police wished to seize for evidential purposes. The Court of Appeal allowed the appeal against conviction for the following reasons:
[46] As we have already indicated, the appellant committed an offence only if his actions had the tendency to defeat the course of justice and were intended to do so. We think that orthodox criminal law principles mean that he is only guilty if he was conscious of the tendency of his actions to defeat the course of justice. Leaving aside the search warrant, as we think we have to, his actions only had a tendency to defeat the course of justice if the computer tower had some likely evidential significance…
…
[48] In all of this it is important to recognise that the Crown never attempted to demonstrate that the computer tower did have (or could have had) any evidential significance. To the very limited extent that there was Crown evidence addressed to this point, it was hearsay and could be taken as showing no more than that the police wished to secure the computer tower for reasons which seemed legitimate to them.
[36] Mr McCoubrey responds to these arguments by pointing out that Mr Hu worked at the poultry farm for some months and can be taken to be familiar with what was going on there. He clearly knew enough to make the complaint that led to the investigation by the Commission. Mr McCoubrey therefore contends the Court can safely infer Mr Hu’s initial complaint remained of evidential value as at 12 December 2017.
[37] I acknowledge that in some situations it will be safe to infer that the person who makes an initial complaint will inevitably be a material witness in any prosecution. Cases involving allegations of sexual misconduct are likely to fall within that category. In other cases, such as those involving informers, the Court can equally safely infer the prosecution knows from the outset it will not be calling the person as a witness at any subsequent prosecution.
[38] Where Mr Hu fits within these two extremes remains a matter of conjecture because the prosecution did not lead evidence as to the status of his initial complaint
14 R v Meyrick, above n 12.
as at 12 December 2017. Mr Morgan acknowledged in cross-examination that, as at the date of the hearing in the District Court, the prosecution of Mr Chen under (presumably) the Commerce Act was “absolutely not” reliant on Mr Hu. This evidence does not assist, however, in determining what the position was nineteen months earlier.
[39] The Crown bore the onus of proving each element of the charge beyond reasonable doubt. This required it to prove that Mr Chen’s attempt to persuade Mr Hu to withdraw his complaint had a tendency to pervert the course of justice. It could only do so by establishing that the complaint still had evidential value as at 12 December 2017. It is not possible to be sure of that fact because there is no evidence about it. It is not for the Court to fill in gaps in the prosecution case by speculation or guesswork. I therefore accept Mr Pilditch’s submission that the situation in the present case is analogous to that in Meyrick. The appeal must therefore succeed.
Result
[40] The appeal against conviction is allowed. The conviction is quashed and the sentence of 2 years two months imprisonment is set aside. Mr Chen is discharged on the charge of wilfully attempting to pervert the course of justice and is released from his existing bail conditions.
Lang J
Solicitors:
Crown Solicitor, Auckland Fletcher Pilditch, Auckland Counsel:
F McGeorge, Barrister, Auckland
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