PATRICK KITMAN CHIN AND NEW ZEALAND POLICE

[2024] NZHC 2630

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-186

[2024] NZHC 2630

BETWEEN

PATRICK KITMAN CHIN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

11 September 2024

Appearances:

J Grainger for Appellant

W J S Mohammed for Respondent

Judgment:

11 September 2024

RESULTS JUDGMENT OF EATON J

(appeal against conviction and sentence)

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

CHIN v POLICE [2024] NZHC 2630 [11 September 2024]

[1]    At a Judge-alone trial before Judge Couch on 13 November 2023, Patrick Chin was found guilty on one charge of failing to remain stopped for an enforcement officer. He was found not guilty on a charge of careless driving.1 On 18 July 2024 he was sentenced on the charge of failing to remain stopped; and on three charges to which he had pleaded guilty — two of failing to answer District Court bail; and one of breaching community work. He was sentenced on all four charges to eight and a half months’ imprisonment.

[2]    This afternoon I have heard Mr Chin’s appeal against his convictions on the charges of failing to remain stopped and of failing to answer bail on 24 August 2023 (a charge to which he had pleaded guilty). I have also heard his appeal against sentence.

[3]    Having  heard  from  Mr  Grainger,  on  behalf  of  Mr   Chin,  and   from   Mr Mohammed, on behalf of the police, I am satisfied the conviction appeals must be allowed and the sentence adjusted accordingly. Because I have reached the view the end sentence should be one of two months’ imprisonment, I think it necessary to give a results decision this afternoon. Mr Chin, having served about two months imprisonment will be entitled to be released from custody today.

Appeal against conviction

Failing to stop

[4]I am satisfied that this conviction cannot stand.

[5]    First, the Judge considered that the combined weight of the eyewitness account of Constable Bush and the evidence admitted by consent of Constable Ball (that the appellant had bleached hair as at the date of his arrest) established the reliability of Constable Bush’s identification of Mr Chin as the driver of the vehicle. The evidence of Constable Ball was described by the Judge as being significant.

1      Police v Chin [2023] NZDC 25309; Land Transport Act 1998, s 52A(1) and (5) — maximum penalty three months’ imprisonment, and two years disqualification from driving.

[6]    Trial counsel agreed to admit the Ball evidence by consent without instructions from the appellant. I am satisfied Mr Chin would not have agreed to that course if he had been consulted. Further, I am satisfied that trial counsel failed to conduct the defence in accordance with Mr Chin’s instructions. Between the case review hearing (when, by memorandum, counsel agreed to the Ball evidence being admitted by consent) and the Judge-alone trial, Mr Chin had instructed counsel that he did not have bleached hair as at the date of the offence or his arrest. In my view it was a significant error of trial counsel to admit Constable Ball’s evidence without consultation or instructions from the appellant and to then omit to remedy that failing before or at trial. The errors by trial counsel have given rise to a miscarriage of justice.

[7]    Secondly, and quite independently of trial counsel error, I am satisfied the Judge failed to self-direct as to the risk of mistaken identification and to proceed with the necessary caution, in a case where that risk was very much a live issue. That error of itself has given rise to a miscarriage of justice.

[8]    Mr Chin has served the two months’ imprisonment imposed for failing to remain stopped for the police. I do not consider it is appropriate to direct a retrial. I therefore quash the conviction and direct an acquittal.

Failing to answer bail

[9]    Mr Chin pleaded guilty to the charge that on 24 August 2024 he failed to answer bail. It is now acknowledged he was not on bail at that time, he having earlier been remanded at large. Mr Mohammed responsibly acknowledges this conviction must be quashed. I do so. I quash that conviction and again direct an acquittal.

Appeal against sentence

[10]   Mr Chin must therefore be resentenced in relation to the offending that stands, that is a breach of community work and the March 2024 failure to appear. I agree with both counsel that a starting point of no more than three months’ imprisonment was appropriate to reflect both offences, that is two months for the breach and one month for the failing to appear charge. From that, Mr Chin was entitled to a full 25 per cent

credit for his guilty pleas. That would lead to an end sentence of no more than two to two and a half months’ imprisonment. As I say, a sentence Mr Chin has already served.

[11]   I therefore quash each of the sentences of imprisonment imposed in the District Court and in substitution impose a sentence of two months’ imprisonment for the breach of community work and a concurrent term of one month’ imprisonment for failing to appear. Standard release conditions to apply.

...................................................

Eaton J

Solicitors:

Crown Solicitors, Christchurch

Public Defence Service, Christchurch