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Cheng v R

Cheng v R

Case [2021] NZCA 68 16 March 2021

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA92/2020
[2021] NZCA 68

BETWEEN	THOMAS CHENG Appellant
AND	THE QUEEN Respondent

Hearing:	24 February 2021
Court:	Cooper, Mallon and Wylie JJ
Counsel:	P K Hamlin and S J Vincent for Appellant E J Hoskin for Respondent
Judgment:	16 March 2021 at 10 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The application for leave to adduce further evidence is granted.

C The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

Introduction

The appellant, Thomas Cheng, is a Singaporean national. He was charged with, and he entered guilty pleas to, importing methamphetamine into New Zealand,[1] and supplying that drug in this country.[2] He was sentenced by Judge Cathcart in the District Court at Gisborne on 22 February 2018 to 10 years and nine months’ imprisonment with a minimum period of imprisonment of four years and three months.[3]
[1]Misuse of Drugs Act 1975, s 6(1)(a) and 2(a); and Crimes Act 1961, s 66(1).
[2]Misuse of Drugs Act, s 6(1)(c) and 2(a); and Crimes Act, s 66(1).
[3]R v Cheng [2018] NZDC 3344 [District Court judgment].
Mr Cheng belatedly appeals his sentence, arguing that it is manifestly excessive.
The Crown opposes the appeal. It argues that the sentence was appropriate and that it was consistent with the then guideline judgment R v Fatu.[4]

The application for an extension of time

[4]R v Fatu [2006] 2 NZLR 72 (CA). Mr Cheng’s appeal was filed after delivery of this Court’s judgment in Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648. Accordingly, the judgment does not apply — see Zhang v R at [188] and [191.

Mr Cheng’s appeal is filed well out of time and he requires an extension of time to bring the appeal. He has filed an affidavit in support of the application for an extension. He says that he has been represented by three different lawyers over the course of the matter and that, at the time he was sentenced, his relationship with his then lawyer had broken down. He doubted that he could have confidence in any lawyer who he might instruct to advance his sentence appeal and he decided he would not file an appeal until such time as he himself understood the grounds on which any appeal could be advanced. He says that he engaged in correspondence with staff at the Hutt Valley Community Law Centre and that he contacted a number of lawyers to discuss aspects of criminal law relevant to his sentencing. In March 2019, he heard about the then pending decision in Zhang v R,[5] and he decided to defer appealing his sentence until after release of that judgment. After the Zhang judgment was released, he instructed a lawyer to advance his appeal but a proposed meeting had to be cancelled because the lawyer had other commitments. He…

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 Cheng v R

Details

AGLC: Cheng v R [2021] NZCA 68
Case: [2021] NZCA 68
Decision Date: 16 March 2021 at 10 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Thomas Cheng, a Singaporean national, appeals his sentence for importing and supplying methamphetamine in New Zealand. Cheng argues that his 10-year and 9-month sentence, with a minimum of 4 years and 3 months, is manifestly excessive. The Crown contends that the sentence was appropriate and consistent with the guideline judgment R v Fatu. Cheng's appeal was filed out of time, and he requires an extension of time to proceed with it. The Court grants the application for an extension of time despite not finding Cheng's reasons compelling, as the Crown is not prejudiced by the delay. Additionally, Cheng wishes to adduce further evidence in support of his appeal, and the Court grants leave for this evidence to be adduced.

The Court of Appeal considers two issues raised by Cheng's counsel. The first issue is whether the sentencing judge erred in not granting Cheng a discount for being a foreign national, making his sentence more difficult for him. The Court notes that discounts for foreign nationals can be allowed, but whether a discount is appropriate depends on the offender's personal circumstances. In Cheng's case, the Court does not consider his circumstances warrant a discount and rejects this ground of appeal. The second issue is whether the sentencing judge erred in uplifting Cheng's sentence because of his previous convictions in Singapore. The Court finds that the previous convictions for drug trafficking in Singapore indicate Cheng's poor character and culpability, justifying the one-year uplift in his sentence. The Court rejects this ground of appeal as well.

The Court grants the application for an extension of time to appeal, grants leave to adduce further evidence, and dismisses the appeal.

Orders