He v The Queen - [2020] NZCA 591

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA11/2020
[2020] NZCA 591

BETWEEN	FEI HE Appellant
AND	THE QUEEN Respondent

Hearing:	10 November 2020
Court:	Kós P, Thomas and Gendall JJ
Counsel:	A J Bailey for Appellant A J Ewing for Respondent
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…

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 He v The Queen

Details

AGLC: He v The Queen [2020] NZCA 591
Case: [2020] NZCA 591
Decision Date: 26 November 2020 at 9 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand dismissed an appeal against conviction brought by Fei He, who had been found guilty of drug supply charges. He argued that her plea of guilty was entered under pressure from her trial lawyers. The Crown had offered a plea deal, removing the money laundering charges, which He rejected initially but accepted the next day, pleading guilty to two supply charges instead.

The court examined the legal issues surrounding whether He's plea of guilty was the result of undue pressure from her trial lawyers or a rational decision based on the overwhelming evidence against her and the improved terms of the plea deal offered by the Crown. The court needed to determine if He's trial counsel error led to a miscarriage of justice, which would necessitate setting aside her guilty plea under section 232(4)(b) of the Criminal Procedure Act.

The court found that He's evidence of undue pressure from her trial lawyers was not credible. The court accepted the evidence of He's trial counsel, who stated that they had not applied undue pressure and that He's change of heart was largely due to the substantial improvement in the plea deal offered by the Crown. The court was satisfied that no improper pressure was applied by trial counsel and that He's change of plea was a rational decision based on the circumstances. The appeal against conviction was dismissed.

Orders