Liu v R

[2017] NZCA 573

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA440/2016
[2017] NZCA 573

BETWEEN	LIANG LIU Appellant
AND	THE QUEEN Respondent

CA443/2016
BETWEEN	LEI DAI Appellant
AND	THE QUEEN Respondent

Hearing:	3 October 2017
Court:	Harrison, Brown and Collins JJ
Counsel:	L D Burns for Appellant (CA440/2016) GJSR Foley and M G Beresford for Appellant (CA443/2016) S K Barr for Respondent
Judgment:	7 December 2017 at 12 pm

JUDGMENT OF THE COURT

AThe appeal against conviction (CA440/2016) is dismissed.

BThe appeal against conviction (CA443/2016) is dismissed.

____________________________________________________________________

REASONS

Harrison and Brown JJ   [1]
Collins J  [50]

Introduction

1. The appellants, Lei Dai and Liang Liu, were found guilty on charges of drug dealing following a trial in the District Court at Auckland before Judge Thorburn and a jury.  Mr Dai was found guilty of supplying ephedrine, a class B controlled drug.    Mr Liu was found guilty of attempting to possess the same drug for the purpose of supply.  Both men were convicted and sentenced to terms of imprisonment.[1]  They appeal against conviction only. 

   [1]Mr Dai was sentenced to three years and six months’ imprisonment, and Mr Liu was sentenced to three years’ imprisonment: R v Dai [2016] NZDC 16661.

2. Mr Dai appeals on the ground of his trial counsel’s failure to advise him adequately of the process for exercising peremptory jury challenges.  Mr Liu appeals on the ground of the Judge’s omission to direct the jury on one element of the charge.  Both say a miscarriage of justice resulted.

Facts

1. The material facts can be stated shortly. 

2. In August 2014 a consignment of 12 kilograms of ephedrine with a street value of about $1.2 million was couriered from China to Auckland.  The ephedrine was concealed within ornamental buckets.  Mr Dai is a courier driver who was instructed via the online social platform WeChat by an associate in China to collect the package from DHL’s premises in Auckland.  However, Mr Dai was unable to satisfy the company that he was the intended recipient.  DHL refused to release the package to him and instead alerted the New Zealand Customs Services which seized the package and removed the ephedrine.

3. The same Chinese third party instructed Mr Liu, who is also a courier driver in Auckland, to collect the same package from DHL, unaware that Customs had removed the ephedrine.  Mr Liu was successful.  On this basis he was found guilty of attempting to possess the ephedrine for supply.

4. The Chinese third party then instructed Mr Dai to collect three additional ornamental buckets from an Auckland address and deliver them elsewhere.  The buckets contained a total of 4.9 kilograms of ephedrine with a street value of about $500,000.  Mr Dai made three separate collections and deliveries.  He was found guilty of three separate supplies of ephedrine.

5. There is an irony in Mr Dai’s conviction.  He was only charged because of information he volunteered in an interview with a Customs officer after his unsuccessful attempt to…