He v The Queen
[2020] NZCA 591
•26 November 2020 at 9 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA11/2020 [2020] NZCA 591 |
| BETWEEN | FEI HE |
| AND | THE QUEEN |
| Hearing: | 10 November 2020 |
Court: | Kós P, Thomas and Gendall JJ |
Counsel: | A J Bailey for Appellant |
Judgment: | 26 November 2020 at 9 am |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Kós P)
Ms He faced an overwhelming prosecution case on drug supply and money laundering charges. The trial was however running over time; the prospect of a mistrial loomed. At that point she was offered a plea deal by the Crown, removing the money laundering charges, which she rejected. The next day the Crown offered also to reduce the drugs charges from seven to two. This offer she accepted, and later that day pleaded guilty to two supply charges. Now she appeals her conviction, asserting her plea of guilty was entered under pressure from her trial lawyers.
Background
Ms He owned and ran a dairy in Sockburn, Christchurch. Dairies are small corner stores that specialise in the sale of milk, ice cream, and assorted wet and dry goods. They also sell cigarettes. Applying a 21st century business model, Ms He also sold synthetic cannabis from her dairy.
Such sales were lawful until May 2014.[1] But the Crown case was that, after the sale of such substances became illegal, Ms He continued to sell them, covertly, between October 2014 and May 2016. It said she was the ring leader of a significant operation. Her assistant, a Mr Zhou, would sell the drugs. Another employee of the dairy, Mr Miao, would prepare and package them. Mr Miao sourced the drug ingredients from a Mr Fu. Approximately $20,000 to $30,000 per week was generated from these sales.
[1]By virtue of amendments to the Psychoactive Substances Act 2013 effected by the Psychoactive Substances Amendment Act 2014.
Ms He was charged with six charges of possession of non-approved psychoactive substances for sale or supply, one representative charge of sale of non‑approved psychoactive substances over an 18-month period and two charges of money laundering.
On 27 May 2019, a week before trial, Ms He signed a note of instructions to counsel which recorded that she had been advised that the evidence from the toxicologist was overwhelming that what was tested was psychoactive substances, and that there was overwhelming evidence that the WeChat messages (including messages she had sent and received) pointed to money laundering and the sale of synthetics. The same note recorded that she had been advised that it would be in her best interests to enter guilty pleas but that she wished to continue and was determined to give evidence. The note records that it was translated and the translator recorded that Ms He appeared to understand the contents.
The advice that the Crown case was very strong was plainly correct. It reflected a number of considerations. We will list the more notable features. Messages from Mr Zhou to Ms He and Mr Miao on a messaging app suggested he was meeting with customers to purchase synthetic cannabis. A message from Ms He to Mr Miao suggested “[o]bvious money laundering, isn’t it?” Surveillance showed Mr Zhou meeting drivers in carparks, and one such purchaser was shown to have bought synthetic cannabis from him. A search of Ms He’s dairy on 16 June 2015 and again on 30 December 2015 found four quantities of synthetic cannabis packaged in snap-lock plastic bags and concealed. In May 2016 Mr Zhou’s car was searched and 980 grams of synthetic cannabis was found in it. After his arrest, Ms He messaged Mr Miao saying that a police search warrant would take a day to proceed, so “you need to use this one day to tidy up all the stuff”. Mr Miao was then seen to move boxes from his house to a storage unit, and when searched that produced synthetic cannabis worth around $3 to 4 million. Mr Miao had $42,000 in cash and various raw products to make synthetic cannabis at his home. Mr Zhou’s sales were generating approximately $20,000 to $30,000 per week in cash, and Ms He was charged with laundering this money including via a $300,000 “loan” and making cash deposits into various bank or credit card accounts. Finally, when Ms He was arrested in August 2016, she had synthetic cannabis concealed in each leg of her trackpants.
She told the police she sold traditional Chinese herbal products from her shop. Scientific evidence from the Crown confirmed that substances the police had found were indeed psychoactive, and not traditional Chinese herbs. A potential deficiency in the Crown chain of custody was repaired in evidence at trial.
Because Ms He is advancing a trial counsel error appeal, she has signed a waiver of privilege. As a result one of her trial counsel, Ms Rout, has sworn an affidavit. It is comprehensive. It includes a singular commentary as to the nature of the evidence Ms He wished to advance in her defence. In particular, to support her case that large money sums had come instead from a side business which involved Ms He receiving sizeable cash payments to purchase Rolex watches. A private investigator was engaged to find evidence for that claim, but was quite unable to do so. As the trial date neared, Ms He came forth with new witnesses to explain the source of her monies, including receipts from her brother purporting to be the receipt of sale of valuable antiques in China. As Ms Rout noted:
Unfortunately the documents she produced to confirm this appeared to be forgeries. She wanted us to call her brother – we were concerned that he might face charges if he gave evidence.
Ms He also asserted that in fact it was the police who were the major sellers of synthetic cannabis in Christchurch. The private investigator interviewed witnesses Ms He had provided who said they would corroborate her assertions of innocence. As Ms Rout puts it in her evidence:
However Ms He’s witnesses did not say what she said they would.
On 4 June 2019 Ms He faced trial with Messrs Zhou, Miao, Fu and a Mr Liu. The latter, who assisted Mr Zhou with sales, pleaded guilty immediately before trial. There were delays in progress, and there was a risk of a mistrial being declared on that account alone. Ultimately, however, all defendants pleaded guilty.
On 12 June 2019 counsel for Mr Zhou approached the Crown seeking a plea resolution. At that point the Crown’s proposal was what Ms Rout called an “all or nothing” deal: either all the defendants took the deal, or the trial would continue. After court concluded on 12 June, the Crown prosecutor confirmed that the Crown would drop the money laundering charges if the defendants would plead guilty to the other charges.
Mr Zhou’s counsel negotiated alone, and by the following morning on 13 June accepted a deal with the Crown. By this point the Crown were no longer insisting on an all or nothing plea deal. It was prepared to deal with the defendants individually. The Court was in recess that day, having adjourned to enable negotiations to proceed. The Judge was unequivocal that the trial would proceed again the next day.
On the morning of 13 June Ms He signed a note to counsel as follows:
1.I, Fei He have been advised that I can plead guilty to the possession for supply and supply charges and the Crown will drop the money laundering charges.
2.You have advised me that it is in my interests to resolve the case as above because
(a) The most serious charges will be withdrawn.
(b) I can seek credit for pleading guilty when the serious charges were withdrawn.
(c) The evidence against me on all charges is very strong and if I continue with the trial I am likely to be found guilty and receive a much greater sentence.
4.I wish to continue with the trial against your advice and defend all charges. I am aware that this is against my interests and against advice.
5. I confirm that I wish to give evidence in the trial and I have been warned of the consequences including being subject to cross-examination. You have advised that my evidence is unlikely to be believed and in fact will strengthen the case against me.
6.I also wish you to call my brother He Peng. I am aware that if he gives incorrect evidence he could be charged with perjury or attempting to pervert the course of justice, which are serious offences.
This was countersigned by the interpreter as having been “effectively interpreted” for Ms He.
Over lunch on 13 June 2019 the Crown prosecutor proposed a new deal in which it would not only drop the money laundering charges, but amalgamate the possession for sale and supply charges into one representative charge, which along with the remaining representative sale charge would limit the potential cumulative penalty faced by Ms He to four years’ imprisonment. The remaining charges would be dismissed under s 147 of the Criminal Procedure Act 2011 and could not be re-laid. This offer was received by about 2 pm on 13 June 2020.
After considering the offer, talking to counsel and ascertaining Mr Miao too had been offered a favourable deal, Ms He gave instructions to counsel in this form:
I, Fei He confirm that I will plead guilty to charges of possession of psychoactive substance for supply and supplying a psychoactive substance as alleged by the Crown and the money laundering charges will be withdrawn.
Ms Rout’s evidence was that the document was translated and signed by Ms He in the presence of the translator. At 4.30 pm the Judge returned and Ms He entered the guilty pleas she asks us to now set aside.
Evidence
Ms He’s evidence before us focused on the events of 13 June 2019. She alleges her lawyers placed “a lot of pressure on me” to get her to plead guilty. She said she felt her lawyers “were on a different team to me and had turned on me”. She said the lawyers, and in particular Ms Rout, “appeared desperate” for her to plead guilty and became “intense” in her manner. She was, Ms He said, “pleading to me to plead guilty”. She said she felt she had no real choice but to plead guilty, that she was “very tired and felt worn down” when she agreed to do so. She felt she had no other option. It is clear that Ms He knew that she had until the following morning, because she refers in an affidavit to the Judge giving that indication. But she said that she felt her lawyers pressured her that afternoon into signing instructions to plead guilty “because they knew I did not actually want to plead guilty and they did not want to risk waiting until the next morning”. She said that pleading guilty was not something she wanted to do.
Cross-examined by Ms Ewing, Ms He acknowledged the note of instructions that she had executed a week before trial, on 27 May, in which she had been advised she was likely to be convicted. And that she faced a starting point for the charges of six years, and that it was in her best interests to plead guilty. She said however that her English was not great at the time and the interpreter who translated the document to her was from Malaysia and did not speak Mandarin in the same way that she did. Ms He said she was simply obedient and did what she was advised to do. If that is so, it may also be noted that the same document records her rejection of her lawyers’ advice and her determination to continue with the trial.
Ms He said she was not aware at the start of 13 June 2019, the critical day, that Mr Zhou had begun seeking plea negotiations with the Crown. We think that unlikely given the narrative noted before.
Taxed with the proposition that she had the whole of 13 June to consider the two offers given by the Crown, the second of which was considerably better than the first, Ms He said that she had not really focused on the deals, but rather was focusing on Ms Rout’s “sudden changes” in position and demeanour. Again, we do not accept that evidence as credible. Ms He’s lawyers did not change their position and Ms He knew this. The first note of instructions signed on 13 June 2019 recorded that the evidence was very strong, that she was likely to be found guilty and receive a much greater sentence and that she nonetheless wished to continue the trial against the legal advice she had received. Both that note and the second note of instruction signed later that day were interpreted and the first was signed by the interpreter as well.
Late in her cross-examination, Ms He raised for the first time a justification for her change of stance. She said she had spoken to one of the defence lawyers for a co‑accused. That counsel came from a similar culture to her own. She said he had asked her to make a sacrifice for the other defendants. This important evidence did not feature in her affidavit. It is, we find, embroidery rather than reliable evidence.
Ms He said that she had spoken to her former employee and co-defendant Mr Miao, and that he had been told by Ms Rout that he was likely to face 15 years’ imprisonment. That evidence too did not feature in Ms He’s affidavit evidence, although we accept that Ms He was particularly concerned about Mr Miao’s fate. It may be noted that Ms Rout firmly rejected the proposition that she had given that advice when it was put to her in examination in chief. It may also be noted that the jeopardy faced by Mr Miao was nothing like that suggested.
Sensibly, Mr Bailey did not attempt to re-examine Ms He.
It is perhaps unnecessary for us to traverse the evidence given by Ms Rout. She struck us as fair, responsible and careful. It is worth noting that she observed that the Crown’s offer at lunchtime on 13 June 2019 came as a surprise: that is, it was considerably more generous than had been expected. Ms Rout attributed Ms He’s change of stance (from her robust rejection of the advice to plead guilty earlier in the day) to the improvement in the Crown’s offer and a discussion that had taken place with Mr Miao (in Mandarin, which Ms Rout did not speak).
Ms Rout was asked in cross-examination by Mr Bailey whether she thought she had put too much pressure on Ms He. Her answer to that was a firm no. She had known Ms He as a client since 2011. She felt she knew her own mind and the decision she had made was a very much considered one. She had refused to make it earlier, but once her mind was made up, it would not change. Ms Rout accepted that she may have appeared exasperated earlier because Ms He was not appreciating realities, but she did not believe that she had put Ms He under any undue pressure.
We accept that evidence as truthful, in contradistinction to that given by Ms He.
Evaluation
As will be apparent, we do not find credible Ms He’s evidence that she was placed under undue pressure by her trial counsel. To the contrary, we find credible her trial counsel’s evidence that no such pressure was applied.
The circumstances were that Ms He faced an overwhelming case. Her own efforts to locate, and it appears manufacture, evidence had been unavailing. She was facing seven drug supply charges along with two money laundering charges, albeit the Crown was ultimately prepared to give the latter away as from 12 June 2019. Ms He remained resolute in her determination to defend after the Crown’s first offer was received after close of business on 12 June 2019. We find her change of heart was largely attributable to the substantial improvement in terms offered by the Crown. That offer reduced the charges from the proffered seven to two, and limited the potential maximum sentence to four years’ imprisonment. Ms He would also qualify for a significant guilty plea discount, which in due course she received upon being sentenced.
We are satisfied that no improper pressure was applied by trial counsel.
Law
Mr Bailey had submitted to us, assuming we accepted the evidential premise for the appeal (that is, the existence of undue pressure by trial counsel), the appeal should be dealt with under s 232(4)(b) of the Criminal Procedure Act as being a miscarriage of justice occasioned by an unfair trial. Accordingly, it was not incumbent on his client to establish that a defence could have been made out. It may be noted that not a skerrick of a potential defence, were the plea to be set aside, was evident. In a number of cases this Court has said that an appeal against conviction after a guilty plea has been entered would succeed only in exceptional cases, and that it was incumbent on the appellant to demonstrate the realistic existence of a tenable defence.[2] Whether the argument advanced by Mr Bailey is correct, or not, will have to await determination in another case. In this case, the appeal fails at the first hurdle, that of fact.
Result
[2]Halpin v R [2018] NZCA 477, [2019] NZAR 483 at [20]; Gleason-Beard v R [2018] NZCA 349, [2018] 3 NZLR 699 at [26]. On this issue, contrast Bennett v R [2016] NZCA 170 at [17] with Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [40].
The appeal against conviction is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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