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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA372/2011 [2012] NZCA 114
BETWEEN CHAO FAN Appellant
ANDTHE QUEEN Respondent
CA373/2011
AND BETWEEN YUNKE SUN Appellant
ANDTHE QUEEN Respondent
Hearing: 1 November 2011
Court: Harrison, Miller and Asher JJ Counsel: R Mansfield for Appellants
M D Downs for Respondent
Judgment: 28 March 2012 at 2.30 pm
JUDGMENT OF THE COURT
A The appeal is dismissed.
BOrder prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or
FAN V R COA CA372/2011 [28 March 2012]
other publicly available database until final disposition of trial.
Publication in law report or law digest permitted.
REASONS OF THE COURT
(Given by Asher J)
Introduction
[1] The appellants Yunke Sun and Chao Fan appeal against a pre-trial ruling in the District Court at Auckland under s 344A of the Crimes Act 1961.1 In that ruling Judge Hubble declined to order that the appellants’ highly incriminating statements to the Police were inadmissible.
Background
[2] At 6.40 pm on Tuesday, 22 December 2009, Messrs Sun and Fan and another were seated in a Mercedes-Benz motor vehicle parked in Vogel Lane, Auckland. They were approached by Police conducting a routine patrol. As the Police approached, the third person hastily exited the vehicle. During the conversation that followed, one of the Police officers noticed a Gucci bag between Mr Sun’s legs. He could see that this had within it a zip-lock bag containing pink and yellow granules. The officer recognised these as ContacNT granules, which contain the class C controlled drug pseudoephedrine.
[3] Messrs Sun and Fan were immediately arrested and searched. The Gucci bag was found to contain two large snap-lock plastic bags containing approximately four kilograms of ContacNT granules. The likely yield, if used to manufacture methamphetamine, was approximately one kilogram. Mr Sun stated that he knew he had done wrong. Mr Fan admitted owning the vehicle but stated that the bag
belonged to Mr Sun. He denied knowledge of its contents.
1 R v Sun and Fan DC Auckland CRI-2009-004-28216, 8 June 2011.
[4] Messrs Sun and Fan were taken to the Police Station and sought the advice of a lawyer. There then followed exchanges between Sergeant O’Neill and Mr Kan, a Mandarin-speaking lawyer, and Mr Kan and Messrs Sun and Fan. These led to Messrs Sun and Fan making statements to the Police in which they gave an account not only of how they came to have the ContacNT granules in the car, but also how they had been involved in at least two or three earlier supplies of ContacNT intended for the manufacture of methamphetamine. In addition to being charged with possession…
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- [2012] NZCA 114
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