Hoo v The Queen - [2017] NZCA 60

IN THE COURT OF APPEAL OF NEW ZEALAND

CA721/2015
[2017] NZCA 60

BETWEEN	SEE MENG HOO Appellant
AND	THE QUEEN Respondent

Hearing:	13 February 2017 (further submissions received 27 and 28 February and 2 March 2017)
Court:	Wild, Simon France and Duffy JJ
Counsel:	R M Mansfield and A J Maxwell-Scott for Appellant S L McColgan for Respondent
Judgment:	16 March 2017 at 4 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Introduction

This appeal is advanced as one against sentence only.
Mr Hoo claims he wished, from the outset, to plead guilty to the charges he faced, but was not advised by his counsel of his ability to do so, let alone of the benefits of early guilty pleas. Had he been so advised, Mr Hoo claims he would have pleaded guilty at an early stage. On that basis, Mr Hoo seeks a 25 per cent discount off the sentence of 10½ years’ imprisonment imposed on him by the District Court at Auckland for serious drug offending.[1]
[1]R v Khan Bigy [2015] NZDC 22837.
The Crown accepts that a 25 per cent discount would have been appropriate had Mr Hoo pleaded guilty at the earliest opportunity. Thus, the only questions for us are whether Mr Hoo has established that:
(a)he wanted to plead guilty from the outset; but
(b)did not appreciate he could and, in particular, was not advised of his ability to plead guilty and of the benefits of doing so in terms of a sentencing discount; and
(c)had he been properly advised, he would have entered early guilty pleas.

Background

DVD interview and arrest

On 4 December 2013 the police terminated an investigation (Operation Ghost) into a suspected drug dealing ring. Several homes were searched and a number of people arrested and charged. Mr Hoo’s home was searched. Following the search Mr Hoo accompanied Detective Espinosa to the Mt Wellington Police Station. There he was interviewed by Detective Espinosa, the interview lasting some five hours. The videotapes of this interview were not put in evidence in Mr Hoo’s trial. However, by memorandum dated 27 July 2015, Mr Hoo admitted, pursuant to s 9(2) of the Evidence Act 2006:
(a)He had, on 4 December 2013, been interviewed by Detective Sergeant Damian Espinosa and had denied all allegations.
(b)He did not have any prior criminal convictions.
We have viewed the videotapes, aided by the transcript of the interview. At the start of the interview Detective Espinosa did two things. First, he made it clear to Mr Hoo that he was not under arrest, but nevertheless explained to Mr Hoo his rights under the New Zealand Bill of Rights Act 1990. Secondly, he asked Mr Hoo whether he would like an interpreter, to which Mr Hoo responded “No its alright”. The detective then told Mr Hoo to let him know if he said anything during the interview which Mr Hoo could not understand.
Detective Espinosa explained to Mr Hoo…

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 Hoo v The Queen

Details

AGLC: Hoo v The Queen [2017] NZCA 60
Case: [2017] NZCA 60
Decision Date: 16 March 2017 at 4 pm

CaseChat Overview and Summary

The appeal in Hoo v The Queen was brought by the appellant, See Meng Hoo, who sought a reduction in his sentence for serious drug offenses. The Court of Appeal of New Zealand was tasked with determining whether the appellant's claim that he wished to plead guilty from the outset but was not advised of his ability to do so by his counsel was valid. The central issues were whether the appellant genuinely wanted to plead guilty, whether he was properly advised by his counsel of the option to plead guilty and the potential sentencing benefits, and if he had been correctly advised, whether he would have pleaded guilty early on. The court found that the appellant was not credible and had fabricated his claims, and dismissed the appeal. The court held that the appellant's desire to plead guilty only emerged shortly before the trial, after another defendant had pleaded guilty, and that the appellant had not provided a satisfactory explanation for his change in position. The court concluded that the appeal was based on an implausible account and dismissed it.

Orders