Deng v The Queen - [2012] NZCA 597

IN THE COURT OF APPEAL OF NEW ZEALAND

CA341/2012
[2012] NZCA 597

BETWEEN GUO WEI DENG
Applicant

AND THE QUEEN
Respondent

Court: Ellen France, Stevens and White JJ

Counsel: S J Shamy for Applicant
B C L Charmley for Respondent

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.

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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…

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 Deng v The Queen

Details

AGLC: Deng v The Queen [2012] NZCA 597
Case: [2012] NZCA 597
Decision Date: 18 December 2012

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application by Guo Wei Deng, who sought to recall the Court's earlier judgment dismissing his appeal against his conviction and sentence for possession of methamphetamine for sale. The applicant argued that the trial had suffered from translation issues, and that his counsel had failed to present certain evidence. The Court considered whether there was a fundamental error of procedure that would warrant reopening the appeal.

The Court noted that the applicant had ample opportunity to raise his concerns about the translation issues and the failure to present certain evidence during the course of the appeal. The Court was also mindful of the importance of finality in legal proceedings. While the applicant had not pursued an appeal to the Supreme Court, the Court found that the applicant's arguments did not warrant a reopening of the earlier appeal. The Court concluded that there was no fundamental error of procedure, and no substantial miscarriage of justice would result from upholding the earlier judgment.

Accordingly, the application for recall of the earlier judgment was dismissed. The Court's earlier conviction and sentence of 25 years imprisonment with a minimum period of imprisonment of 10 years remained in place.

Orders