Li v Police - [2019] NZHC 908

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-004-009583

[2019] NZHC 908

BETWEEN
HAO LI, ZHIZHAO TAN and CHI LEUNG

Applicants

AND

NEW ZEALAND POLICE

Respondent

Hearing: 27 February 2019

Counsel:

Maria Pecotic for Hao Li Lorraine Smith for Zhizhao Tan Baden Meyer for Chi Leung

Bruce Northwood and Erin and Woolley for the Respondent

Judgment:

29 April 2019

[REASONS] JUDGMENT OF MOORE J

[Application to discharge under s 147 of the Criminal Procedure Act 2012]

This judgment was delivered by me on 29 April 2019 at 2:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

LI & ORS v NEW ZEALAND POLICE [2019] NZHC 908 [29 April 2019]

Introduction

[1] This judgment needs to be read in conjunction with my results decision delivered on 28 February 2019.1 There I said I would deliver reasons. This judgment contains those reasons.

The charges

[2] At the end of the Crown case Ms Li, Mr Tan and Chi Leung applied for orders under s 147 of the Criminal Procedure Act 2011 (“the Act”). The relevant charges in the Crown’s Charge List are 3 and 4. They are set out in fully below:

“Importation 2

Charge 3: That RICKY TAT CHOI LEUNG, WAI FAT WONG, TAI Fl CHIU, HAO LI, ZHIZHAO TAN, CHI LEUNG and YIU CHIANG on or
before 14 August 2017, at Auckland and/or elsewhere, imported the class A controlled drug methamphetamine into New Zealand.

Charge 4: That RICKY TAT CHOI LEUNG, WAI FAT WONG, TAI Fl CHIU, HAO LI, ZHIZHAO TAN, CHI LEUNG and YIU CHIANG between
14 August 2017 and 19 September 2017, at Auckland, had the class A controlled drug methamphetamine in their possession for the purpose of supply to another person or persons.”

Crown case

[3] In summary, the Crown case is that all seven defendants, in various combinations, were involved in a large scale and highly sophisticated methamphetamine importation and distribution operation.

[4] The Crown says that each played a part, albeit different, in pursuing the successful outcome of this criminal enterprise. It involved three importations of methamphetamine over a period of approximately one year with a total combined weight in excess of 250 kilograms. If sold on the New Zealand market it would have attracted, even at wholesale, many millions of dollars. It was thus a highly lucrative venture which needed to be planned and executed carefully.

1 R v Leung & Ors [2019] NZHC 287.

[5] The method of importation was highly sophisticated. Each import was sourced from China. The method by which the methamphetamine was secreted was similar, although not identical, across the three importations. The methamphetamine was dissolved in gypsum, a concrete-like substance which was poured into metal cases in the form of outdoor umbrella stands. Each of the umbrella stands was separately packaged and shipped to New Zealand as part of a larger consignment of outdoor furniture and other miscellaneous items including tents…

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 Li v Police

Details

AGLC: Li v Police [2019] NZHC 908
Case: [2019] NZHC 908
Decision Date: 29 April 2019

CaseChat Overview and Summary

This case involved an application by Hao Li, Zhizhao Tan, and Chi Leung for discharge from charges under the Criminal Procedure Act 2011 relating to the importation and possession of methamphetamine. The applicants argued that there was no, or insufficient evidence that they had the requisite knowledge that methamphetamine was being brought into the country and that they were not aware of the presence of the drug or exercised any intention to possess control over it for the purposes of possession. The court examined the evidence presented by the Crown, which included extensive CCTV footage and surveillance evidence showing the delivery of the shipment, the applicants' involvement in renting storage units and properties, and their purchase of equipment necessary for the extraction process. The court found that there was insufficient evidence to prove the applicants' involvement in the importation process or their knowledge of the importation of methamphetamine. However, in respect of Charge 4, possession for supply, the court found that the evidence was sufficient to support the required mens rea element of the charge for all three applicants.

The legal issues the court had to decide were whether there was sufficient evidence to prove the applicants' involvement in the importation and possession of methamphetamine. The court had to examine the evidence in terms of adequacy of proof, if accepted, and determine whether a properly directed jury could not reasonably convict. The court found that the evidence was insufficient to prove the applicants' involvement in the importation process or their knowledge of the importation of methamphetamine. However, in respect of Charge 4, possession for supply, the court found that the evidence was sufficient to support the required mens rea element of the charge for all three applicants.

The court's reasoning was based on the evidence presented by the Crown, which included extensive CCTV footage and surveillance evidence showing the delivery of the shipment, the applicants' involvement in renting storage units and properties, and their purchase of equipment necessary for the extraction process. The court found that there was insufficient evidence to prove the applicants' involvement in the importation process or their knowledge of the importation of methamphetamine. However, in respect of Charge 4, possession for supply, the court found that the evidence was sufficient to support the required mens rea element of the charge for all three applicants.

The final orders were that Hao Li, Zhizhao Tan, and Chi Leung were discharged on Charge 3, importation. In respect of Charge 4, possession for supply, the applications were dismissed.

Orders