Deng v The Queen
[2012] NZCA 597
•18 December 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA341/2012 [2012] NZCA 597 |
| BETWEEN GUO WEI DENG |
| AND THE QUEEN |
| Court: Ellen France, Stevens and White JJ |
| Counsel: S J Shamy for Applicant |
| Judgment: 18 December 2012 at 2.30 pm (On the papers) |
JUDGMENT OF THE COURT
The application for an order recalling this Court’s judgment delivered in R v Guo Wei Deng [2009] NZCA 445, [2010] 2 NZLR 158 is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellen France J)
Introduction
Following a jury trial before Courtney J, the applicant, Guo Wei Deng, was convicted of possession of methamphetamine for sale. The charge related to the importation into New Zealand of a shipment of over 90 kgs of methamphetamine. He was sentenced by Courtney J to 17 years imprisonment with a minimum period of imprisonment (MPI) of eight years, six months.[1]
[1] R v Chin HC Auckland CRI-2006-004-10505, 10 December 2008.
Mr Deng and his co-defendants appealed to this Court. Mr Deng appealed against both conviction and sentence. In addition, the Solicitor-General sought leave to appeal against Mr Deng’s sentence. On 30 September 2009, this Court dismissed Mr Deng’s appeal against conviction.[2] The Solicitor-General’s appeal against sentence was allowed, resulting in an increase in Mr Deng’s sentence to a term of 25 years imprisonment with an MPI of 10 years.
[2]R v Chin [2009] NZCA 445, [2010] 2 NZLR 158. This Court also dismissed the appeals against conviction and sentence brought by Chen Ming Chin, Pan Wei Feng, and Fan Li and allowed the Solicitor-General’s appeal against their sentences. The sentence appeal by another of the co‑defendants, Fung Kai Lok, was allowed. This Court reduced his sentence from 15 years to 10 years imprisonment.
Mr Deng later sought and was granted an extension of time to apply for leave to appeal to the Supreme Court. However, he did not ultimately file an application for leave to appeal to that Court.[3]
[3]Two of Mr Deng’s co-appellants unsuccessfully applied for leave to appeal this Court’s decision to the Supreme Court: Pan v R [2010] NZSC 4, and Fan v R [2011] NZSC 34.
Mr Deng now applies to this Court for a recall or reopening of his earlier appeal. He does so primarily on the basis that problems of interpretation at trial and the failure of his counsel to adduce certain evidence at trial were such as to warrant that course.[4]
Background
[4]There was no objection to our dealing with the question of whether there was a basis to recall the judgment on the papers.
The charges against Mr Deng and his co-defendants arose after Customs intercepted two containers sent from China in May 2006. The consignee of the first shipment was Isaac International Ltd (the Isaac shipment). Customs found 96 kg of methamphetamine hidden in blocks of resin that were secreted at the bottom of cans of paint. The other intercepted shipment contained over 150 kg of pseudoephedrine granules hidden in bags of cement plaster.
The authorities then organised a controlled delivery of the Isaac shipment. This led to a house in Kohimarama Road in Auckland. Mr Deng had returned to New Zealand after several months absence the day before the controlled delivery. He and his co-defendant Fan Li were found in the house, along with the bags containing a quantity of the methamphetamine. The bags were lying open in the kitchen. Mr Deng was in the lounge. The police also found at the house loaded weapons, $50,000 in cash, scales, money-counting machines and numerous cellphones. The charge against Mr Deng related to this shipment.
The Crown case was that Mr Deng arrived in New Zealand specifically to be part of the collection of the drugs from the Isaac shipment. The Crown also relied on evidence relating to three cellphones that the police said were found in Mr Deng’s possession when police arrived at the house. Analysis of the phones showed, among other things, contact with a man called “Raymond”. In this Court’s earlier judgment, Raymond was described as the “major player” of the importation exercise who was based in China and was never in New Zealand.[5]
[5] At [5].
On the Crown case, the Customs and police investigations identified previous shipments so similar that there could be no reasonable doubt that they too contained methamphetamine and pseudoephedrine. The jury must have accepted that because Mr Deng’s co-defendants, Chen Ming Chin and Pan Wei Feng, were convicted on charges relating to four earlier shipments as well as the two containers intercepted by Customs.
The basis of the application
In Mr Deng’s application to this Court, the following grounds for a recall were identified:
(a)There was a fundamental error in procedure at the first hearing of the Appeal;
(b)There was no alternative effective remedy available; and
(c)A substantial miscarriage of justice would result if the error is not corrected.
(d)There are significant reasons for the delay in making this application.
(e)As set out in the affidavit of the Applicant filed herewith.
Under the heading of error in procedure, Mr Deng says, first, that there were translation problems at his trial. Secondly, he states that he wanted to call some evidence to explain the dates of his travel and the nature of his relationship with Fan Li. He also challenges the Crown evidence as to the location of the various cellphones located by the police.
In support of his application, Mr Deng has sworn and filed two affidavits. In the first of these, he refers to what he describes as interpretation problems at his trial. Mr Deng explains that he had been a New Zealand resident for about 17 years prior to his arrest. He states that his English is very limited and he spent most of his time with his Cantonese-speaking Chinese friends and associates. He says he had been using one of his associates, Fan Li, as an English translator for day-to-day purposes while living in Auckland.
In terms of the trial, Mr Deng says that the first Cantonese interpreter appointed by the Court for him was a 68-year-old man. He states in his affidavit that this court interpreter advised him that when the case was transferred to a different court, the new court was too big and he could not hear what was happening at the hearing. Mr Deng continues:
The interpreter also appeared to close his eyes during the course of the trial and I shook him sometimes to get his attention because I was not having what was said in English translated to me into Cantonese by the interpreter.
Mr Deng deposes that after a few days there was a change in interpreter. Of this interpreter, he says:
This interpreter told me that he normally worked in the hospital and did not understand the legal terms and issues which were being spoken about in English. I was also unable to have the evidence of the prosecution witnesses translated properly. I was uncertain of what they were saying and whether this related to me.
Mr Deng’s evidence is that he explained the situation to one of his three trial lawyers, Mr Josiah Wong, on about day five of the trial. He says Mr Wong’s response was that “there was nothing that he (Mr Wong) could do about it”.
Mr Deng then explains why the issue of his translation problems and his wish to call evidence were not raised on the first appeal. We come back shortly to the detail of that explanation.
Finally, Mr Deng sets out why there has been a delay in bringing the present application. Essentially he says that it took him a long time to find a lawyer to represent him after this Court’s judgment was delivered. At one point, in June 2010, he explains that a Hong Kong barrister became involved but it then became clear that this barrister was unable to deal with the appeal. Similarly, a further Hong Kong barrister was ultimately unable to act because he had not been admitted to practise in New Zealand. Finally, once Mr Deng’s current counsel became involved there was a a further delay in settling the terms of Mr Shamy’s retainer.
Power to recall/reopen
The relevant principles as to this Court’s power to recall or reopen an earlier decision are set out in R v Smith as follows:[6]
[36] … The Court has inherent power to revisit its decisions in exceptional circumstances when required by the interests of justice. Such power is part of the implied powers necessary for the Court to “maintain its character as a court of justice”. Recourse to the power to reopen must not undermine the general principle of finality. It is available only where a substantial miscarriage of justice would result if fundamental error in procedure is not corrected and where there is no alternative effective remedy reasonably available. Without such response, public confidence in the administration of justice would be undermined.
[6] R v Smith [2003] 3 NZLR 617 (CA).
The application of these principles was discussed recently by this Court in Blick v R.[7] The Court said that three factors emerging from the authorities assumed relevance in Mr Blick’s case. Those factors were then discussed in this extract from the judgment:
[27] … One is that the Court’s power to reopen derives from an implicit power to suppress abuses of its process and control its own practice where a party through no fault of its own has been subjected to an unfair procedure. The second factor is that the circumstances necessary to justify a recall must be exceptional. The third factor is that the power is strictly circumscribed and does not allow a party a general right to reopen an appeal.
[7]Blick v R [2012] NZCA 373; the Supreme Court said it had no jurisdiction to grant leave to appeal from that decision absent consent to that course by the Crown: [2012] NZSC 108.
The Court then went on to discuss the case of R v Wong, which also involved allegations of difficulties with translation in the course of a trial,[8] and observed:
[28] In R v Wong this Court noted Smith’s emphasis on the importance of the principle of finality and the public interest in the resolution of proceedings. It also noted the difficult hurdle faced by an applicant who has already been afforded and exercised a genuine right of appeal in effectively seeking a further right to present an additional ground relating to the conduct of the appeal. To grant the remedy of a recall in these circumstances runs counter to the principle of finality and is inconsistent with the structure of the Crimes Act. In Wong the Court left open the possibility of reopening an appeal because of a fundamental failure of trial as opposed to the appellate process.
The application of the principles to this case
[8] R v Wong [2011] NZCA 563.
We have given this matter careful consideration, conscious of the very serious consequences for the applicant. However, we are satisfied no fundamental error of procedure has occurred in this case such as to meet the threshold for reopening the earlier appeal.
Is there a basis to recall?
We deal first with what occurred at trial. In addition to Mr Wong, Mr Deng was represented at trial by Ms Jan Wong (Mr Wong’s daughter) and the late Mr John Haigh QC. The only evidence before us comes from Mr Deng. We do not have any evidence from Mr Wong, Ms Wong or from the interpreter.
On Mr Deng’s account, he raised the translation issues with Mr Wong. There is nothing to suggest the matter was mentioned to Mr Haigh and we assume therefore that it was not. We acknowledge the need for some caution in terms of findings on the factual issues because we do not have the full information that might be before us if the matter were to proceed to a rehearing.[9] However, we can say that if Mr Deng or Mr Wong had concerns about the standard of translation, we would expect the matter to have been raised with Mr Haigh as senior counsel. There is no reason to explain why neither of the two took that course. There is certainly no suggestion that there was any issue about Mr Haigh’s competence. Further, in a trial of some 11 weeks duration, it is surprising that if these problems continued for that period that the applicant did not mention them again.
[9] R v Wong, above n 8, at [22].
As we have noted, we have not had any material from Mr Wong, who is now overseas. However, Ms Wong was involved in the initial stages of Mr Deng’s approaches to the Supreme Court. We would expect that an applicant in Mr Deng’s position would have obtained evidence from either the interpreter or Mr Wong or Ms Wong to flesh out the complaint.
We turn then to what occurred in the course of the appeal to this Court. Our assessment is that there were ample opportunities for Mr Deng to have raised the concerns he now advances in that process. That conclusion also supports the view that there has been no fundamental error of procedure that would meet the threshold for a recall.
Mr Deng states in his affidavit that in December 2008, Mr Wong handed over two pieces of paper to him for the purpose of the appeal against conviction and sentence. He says that Mr Wong told him he would prepare the grounds of appeal for him. Mr Deng said that he told Mr Wong that he wanted to raise with this Court what he saw as two major problems with his trial. The first was that the translation of the proceeding was very poor and the second that possible witnesses for his defence had not been present. He expresses the view that he was “totally reliant” upon Mr Wong for advice both as to trial and as to the appeal.
Mr Deng also deposes that, in February 2009, Mr Wong engaged Mr Mabey QC in respect of the appeal. He states that Messrs Mabey and Wong came to see him in prison. In about May 2009, he says he was told that Mr Mabey could not find any arguable appeal grounds for him.
Mr Deng says he paid Mr Mabey’s fee and understood he had to find another lawyer. By that stage, the date of the hearing of the appeal was less than 20 days away. He says he then found out that Mr Young had been engaged for the purpose of the appeal. He deposes that he had not had any direct contact with Mr Young at any stage prior to the appeal. Mr Young visited him twice with Mr Wong, but Mr Deng says that “all of the conversations were with Mr Wong”.
Mr Deng further states that although he was present in person by video link at this Court’s hearing he did not have a translation available to him of what was happening during the course of the appeal. He says that once he had the first judgment of this Court translated for him he became aware that issues such as his problems with the translation and his concern over the fact that certain evidence had not been called on his behalf had not been placed before the Court.
The first point to note about this part of the process is that Mr Deng had discussions with both Mr Wong and Mr Mabey and, it also appears, with Mr Wong in the presence of Mr Young prior to the appeal. No reason is given as to why he could not have advanced with either Mr Mabey or Mr Young the two points he says he wanted to raise on his appeal.[10] Generally, we find unconvincing the explanation for not raising these new grounds at his appeal.
[10]This Court’s judgment records that Mr Young appeared for Mr Deng on the first day of the appeal and Ms Dyhrberg appeared for him on the second day of the hearing. Mr Young is recorded in the judgment as having made the arguments for Mr Deng.
We note also that Mr Wong is recorded as counsel for Mr Deng on the notice of appeal, which has apparently been signed by Mr Deng. Two grounds of appeal are noted. In terms of the conviction appeal, the notice of appeal records:
The trial judge erred in law and the conviction was not justified by the evidence presented to the jury.
In terms of sentence, the notice of appeal refers to the sentence being manifestly excessive in the circumstances.
It is relevant also that Mr Deng has not pursued an application for leave to appeal to the Supreme Court. Mr Deng has provided in his second affidavit material from the Supreme Court showing the chronology of events. For present purposes we need only note that on 23 October 2009, Ms Wong wrote to the Supreme Court requesting an extension of time to file an application for leave to appeal. An extension was granted to 30 November 2009. After a further request for an extension was received, a final extension was granted to 19 February 2010. On 18 February 2010, following a further request for an extension of time, Mr Deng was advised that no further extension of time to apply for leave to appeal would be granted. However, Mr Deng was informed that he retained the right to apply for leave to appeal out of time.
Counsel for Mr Deng submits that other cases indicate that the Supreme Court is unlikely to deal with such an appeal.[11] That is a matter for the Supreme Court. The other option is to pursue an application under s 406 of the Crimes Act 1961.
[11] Citing Whitley v R [2010] 25 and R v Wong [2011] NZSC 18.
The other factor relevant to determining our power to reopen the appeal is the importance of finality. We accept that the delays in this case are not as extensive as some.[12] However, Mr Deng was sentenced on 10 December 2008 and this Court’s decision was delivered on 30 September 2009. There is some explanation for some delay in Mr Deng’s problems in obtaining representation. However, the delay and the resultant impact on the need for finality is still a factor of some relevance.
A miscarriage of justice?
[12]In Blick v R, above n 7, for example, the application for recall was made some 11 years after the earlier judgment.
Mr Deng also says the power to recall is engaged because otherwise a miscarriage of justice will result. We consider none of the matters raised by Mr Deng is such as to give rise to a miscarriage.
In terms of the translation problems, as this Court said in Wong, the purpose of the right to an interpreter is to ensure that the defendant knows in detail the case against him so as to prepare and present a defence and instruct counsel.[13] Mr Deng does not point to any aspect of the conduct of the defence that was affected by any issues of translation. Obviously, he did understand the Crown case against him because he says he wanted to call evidence to rebut two of the planks of the Crown case, namely, the coincidence of the timing of his return to New Zealand and the nature of his involvement with Fan Li.
[13] R v Wong, above n 8, at [24].
Mr Deng says that when he spoke to Mr Wong about the case, Mr Wong told him that one part of the case against him was the fact that he returned to New Zealand the day before Fan Li collected a large amount of drugs. Mr Deng says in his affidavit in this Court that he explained to Mr Wong that the return date on his ticket was selected by a travel agent whose name is Nina Liu. He says the reason this date was chosen was because the type of ticket which he had would soon expire and would not be usable. He said he asked Mr Wong to have Nina Liu give evidence on his behalf as to the reason for his returning to New Zealand on the May 21 date. However, Mr Wong did not call this evidence as he had requested.
Mr Deng says he was also informed that Fan Li was to say that he did not really know him. Mr Deng states that given their ongoing contact through his restaurant and dealings with a rental car company, he thought it important to produce evidence that Fan Li had been with him dealing with the rental car company and made payments on his behalf. He asked Mr Wong to have evidence from the rental vehicle company available for the court (from a Mr Ronnie Koh) to show that he did have an ongoing association with Fan Li.
We do not have affidavits from either Ms Liu or Mr Koh so we do not know what they would say. But, on the material we have, we see nothing in this point. As counsel for the Crown submits, Mr Deng’s alternative explanation for his whereabouts on 22 May 2006 was clearly rejected by the jury. His contentions that he was innocently at the address and that he was not in fact in possession of the three relevant cellphones were both put to the jury. The explanation as to travel arrangements and the relationship with Fan Li would not alter the position. Courtney J in her sentencing remarks stated:[14]
[67] … There was no prospect of you persuading the jury that you happened to be in a house with opened bags of methamphetamine for innocent purposes. The suggestion put in cross‑examination and in closing ... that you might have gone to the house in Kohimarama for the innocent purpose of repaying money was implausible.
On appeal, this Court stated, “We share the Judge’s opinion that the evidence of Mr Deng’s involvement with the methamphetamine from the Isaac shipment was overwhelming”.[15]
[14] R v Chin, above n 1.
[15] R v Chin, above n 2, at [143].
Related to the miscarriage point, it is helpful to summarise what this Court said in considering Mr Deng’s appeal ground that the verdict was not supported by the evidence. The Court noted there was evidence that Mr Deng, on 22 May 2006, went with Fan Li to an address in Kohimarama Road, and they then went to the St Lukes carpark to pick up the car containing the drugs from the Isaac shipment. As the Court noted, surveillance photographs showed Mr Deng waiting there for Fan Li as Fan Li collected the key from inside the wheel arch of the car before driving back to Kohimarama Road with the rubbish bag of methamphetamine. Photographs taken during the police search show the bag opened, revealing packages of drugs. In addition, as we have noted, there were other items such as weapons and cash in the house.
The Court continued:
[136] The Crown relied as well on the evidence relating to three cell phones which Detective Sergeant Beale said he found in Mr Deng’s possession when he was the first officer to deal with Mr Deng after the Police entered Kohimarama Road. Defence counsel put to the detective sergeant that he was lying about finding the phones on Mr Deng and that they were in fact found in an armchair of the lounge. Detective Sergeant Timms and Detective Sergeant Osbourne reported arriving in the room to find Detective Sergeant Beale searching Mr Deng with the phones already on the armchair. The Crown submitted that Detective Sergeant Beale had searched Mr Deng and placed the phones on the armchair before the other officers arrived.
As this Court observed, it was open to the jury to accept that submission.
The significance of the evidence of Detective Sergeant Beale is that the SIM card on one of the phones started to be used only at around 4.45 pm on 21 May 2006, the day Mr Deng arrived in New Zealand. The SIM card contacted the Chinese number used by “Raymond”, first on the afternoon of 21 May 2006 and constantly throughout the afternoon the following day when the drugs were dropped off, collected by Mr Deng and Fan Li and taken back to Kohimarama Road. At around 4.30 pm, shortly after the two men returned to Kohimarama Road and shortly before the door was knocked down by the police, the SIM card recorded three consecutive attempts to call “Raymond’s” number perhaps because it appeared that only 20 kg rather than 40 kg of methamphetamine had been found in the rubbish sacks.
This Court also noted:
[139] It is also shown by the call data that throughout the afternoon on both 21 and 22 May, “Raymond” was making calls, not only to and from Mr Deng’s phone but also to and from Mr Fung relating to the collection of drugs from the car at St Lukes. Importantly, the second cell phone found on Mr Deng had “Raymond’s” number listed as the first contact. That number lacked the international prefix for China, suggesting that calls to that number were usually made in China. The phone was inactive between 15 January and 21 May 2006. At 4.07 it called a phone found in the master bedroom of Kohimarama Road and attributed by the Police to [Fan Li] whose number appeared on its contact list.
The Court observed that it was Mr Deng’s case that his visits to Kohimarama Road both before and after the trip to St Lukes were for the innocent purpose of recovering a debt.
Accordingly, we conclude the matters relied on do not give rise to a miscarriage of justice.
Result
For these reasons, the application for recall of this Court’s earlier judgment is dismissed.
Solicitors:
Addington Law, Christchurch for Applicant
Crown Law Office, Wellington for Respondent
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