IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-000131
CRI-2020-404-000132 [2020] NZHC 2696
BETWEEN CHARLES FAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 12 October 2020 Appearances:
Scott Walker for the Appellant
Sarah McKenzie for the Respondent (via AVL)
Judgment:
14 October 2020
JUDGMENT OF MOORE J
[Appeal against conviction]
This judgment was delivered by me on 14 October 2020 at 2:00 pm.
Registrar/ Deputy Registrar Date:
FAN v NEW ZEALAND POLICE [2020] NZHC 2696 [14 October 2020]
Introduction
[1] On 8 August 2018 Charles Fan was sentenced by Judge M J Callaghan in the District Court at Queenstown.1
[2] He had earlier pleaded guilty to two charges of theft2 and one charge of causing loss by deception.3 On each charge he was sentenced to 50 hours’ community work and ordered to pay reparation.
[3] Subsequent events now raise serious questions as to Mr Fan’s mental health at the time of the offending and when he entered his pleas of guilty. A psychiatric report has been obtained which concludes not only was Mr Fan probably unfit to plead, but he was probably also insane at the time of the index offending.
[4] Mr Fan brings this appeal on the basis that he should have been found unfit to plead and/or acquitted on the grounds of insanity and, as a consequence, a miscarriage of justice has occurred and the convictions should be set aside.
The facts and the charges
[5] On 25 May 2018 Mr Fan drove his car into the Z Energy Service Station in Queenstown. He placed $88.36 worth of petrol into his car and left without paying.
[6] Approximately a week-and-a-half later, on 3 June 2018, he did the same thing. This time he poured $89.01 worth of petrol into his car before leaving without paying.
[7] When asked to explain this offending he said he had no money. This offending is reflected in the two charges of theft.
[8] Then, on 2 August 2018 Mr Fan entered a therapeutic massage parlour and obtained a 90-minute massage, at the end of which he was asked to pay. He said he did not have any money. He remained at the premises for about 10 minutes chatting with an employee who again asked him to pay. He got up, left and sat outside. Again
1 R v Fan [2018] NZDC 27584.
2 Crimes Act 1961, ss 219 and 223(d); maximum penalty three months’ imprisonment.
3 Sections 240(1)(d) and 241(c); maximum penalty three months’ imprisonment.
he was asked to pay. He responded with foul language. The Police were called and when asked for an explanation, his response was, “Charge it to my daughter”. This offending is captured by the charge of causing loss by deception.4
Personal factors and psychiatric history
[9] Mr Fan is a 33-year-old man of Taiwanese descent. He has lived in New Zealand since he was 10. He normally lives with his family in East Auckland.
[10] Mr…
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- Fan v Police [2020] NZHC 2696
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- [2020] NZHC 2696
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