Guo Wei Deng v The Queen - [2013] NZSC 100

IN THE SUPREME COURT OF NEW ZEALAND

SC 64/2013
[2013] NZSC 100

BETWEEN	GUO WEI DENG Applicant
AND	THE QUEEN Respondent

Court:	Elias CJ, Glazebrook and Arnold JJ
Counsel:	Applicant in Person M R Davie for Respondent
Judgment:	15 October 2013

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant, Mr Deng, and four others faced a jury trial on charges related to the importation into New Zealand of large quantities of methamphetamine. All were convicted of some offending. Mr Deng and another co-accused were convicted on one count of possession of methamphetamine for sale, the quantity of methamphetamine being over 90 kilograms. Courtney J sentenced Mr Deng 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 appealed against his conviction and sentence, as did others of the co-accused. The Solicitor-General sought leave to appeal against Mr Deng’s sentence. On 30 September 2009, the Court of Appeal dismissed Mr Deng’s appeal against conviction and allowed the Solicitor-General’s appeal against sentence, substituting a sentence of 25 years’ imprisonment, with an MPI of 10 years.[2] Mr Deng then sought and was granted several extensions of time to file an application for leave to appeal to this Court, but did not do so.[3] Two of his co-accused did file applications for leave to appeal, but they were declined.[4]
[2]Chen v R [2009] NZCA 445, [2010] 2 NZLR 158 at [203].
[3]Deng v R [2012] NZCA 597 at [3] and [32].
[4]Pan v R [2010] NZSC 4; and Fan v R [2011] NZSC 34.
Sometime in 2012, Mr Deng filed an application for recall of the Court of Appeal’s judgment. In essence, he argued that there were interpretation problems at trial[5] and that his trial counsel failed to adduce certain evidence. The Court of Appeal rejected his application.[6] Mr Deng now seeks leave to appeal to this Court, against both conviction and sentence. In relation to the conviction appeal, the grounds are essentially the same as those raised on the recall application. In relation to sentence, the ground is that the sentence imposed by the Court of Appeal was manifestly excessive given that he was “not a crucial player” in the wider arrangement for the importation of methamphetamine.
[5]At the time of his arrest, Mr Deng had been living in New Zealand for about 17 years, but says he associated mainly with Cantonese-speaking friends and associates: Deng v R, above n 3, at [11].
[6]At [46].
Mr Deng’s application is well out of time but as Mr Deng is acting for himself, we will address the application on its merits.
In rejecting Mr Deng’s recall application, the Court of Appeal noted that Mr Deng had not raised the grounds advanced in support of it in his appeal and that his allegations about the quality of the translation provided were supported only…

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 Guo Wei Deng v The Queen

Details

AGLC: Guo Wei Deng v The Queen [2013] NZSC 100
Case: [2013] NZSC 100
Decision Date: 15 October 2013

CaseChat Overview and Summary

Guo Wei Deng sought leave to appeal to the Supreme Court of New Zealand against both his conviction and sentence for possession of a large quantity of methamphetamine for sale. The Court of Appeal had previously dismissed his appeal against conviction and increased his sentence from 17 years' imprisonment with an 8 year, 6 month minimum period of imprisonment to 25 years' imprisonment with a 10 year minimum period of imprisonment. The Court of Appeal had also rejected Mr Deng's application for recall of its earlier judgment. The legal issues before the Supreme Court were whether Mr Deng's application for leave to appeal was out of time, and if not, whether the appeal against conviction and sentence raised any point of general or public importance or risk of a substantial miscarriage of justice. The Court found that Mr Deng's application was out of time, but chose to address it on its merits. The Court was not satisfied that it was necessary in the interests of justice to hear the appeal against conviction, as there was no risk of a substantial miscarriage of justice. The Court also dismissed the appeal against sentence, as it did not see any point of general or public importance in the appeal or any risk of a substantial miscarriage of justice. The application for leave to appeal was dismissed.

The Supreme Court noted that Mr Deng had not raised the grounds for appeal in his initial appeal to the Court of Appeal and that the quality of translation during the trial had not been raised with his counsel. The Court of Appeal had also rejected Mr Deng's arguments about the adequacy of his trial counsel. The Court found that the Court of Appeal's assessment of Mr Deng's culpability and role in the offending was not an error of principle and that there was no risk of a substantial miscarriage of justice. The Court of Appeal had considered Mr Deng's "high-level participation" in the offending and the "very great" quantity of drugs involved. The Court of Appeal had imposed a sentence of 25 years' imprisonment with a 10 year minimum period of imprisonment because the appeal was brought by the Solicitor-General. The Supreme Court found no merit in Mr Deng's argument that the Court of Appeal had erred in treating him as being in a broadly similar position to his co-accused.

The Supreme Court found that the application for leave to appeal was out of time, but chose to address it on its merits. The Court was not satisfied that it was necessary in the interests of justice to hear the appeal against conviction, as there was no risk of a substantial miscarriage of justice. The Court also dismissed the appeal against sentence, as it did not see any point of general or public importance in the appeal or any risk of a substantial miscarriage of justice. The application for leave to appeal was dismissed. The Supreme Court noted that it received a further affidavit from Mr Deng commenting on the Crown's submissions, but found that none of the points raised by Mr Deng affected its assessment. The Court of Appeal's judgment was upheld.

Orders