Qiu v Worksafe New Zealand
[2025] NZHC 1547
•13 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000737 [2025] NZHC 1547
BETWEEN TINGSONG QIU
Applicant
AND WORKSAFE NEW ZEALAND
Respondent
Hearing: 5 May 2025
Counsel: D J Dufty for Applicant
L K Eastlake for Respondent
Judgment: 13 June 2025
JUDGMENT OF BREWER J
This judgment was delivered by me on 13 June 2025 at 10 am
Registrar/Deputy Registrar
Solicitors:
Kootelle Lawyers (Auckland) for Applicant
Luke Cunningham Clere (Wellington) for Respondent
QIU v WORKSAFE NEW ZEALAND [2025] NZHC 1547 [13 June 2025]
Introduction
[1] Mr Qiu seeks leave to appeal the decision of Judge L Tremewan declining to allow him to vacate two pleas of guilty to charges of failing to ensure that companies he controlled discharged their health and safety duties.1 An employee suffered a strained leg when a construction trench collapsed, leading to five weeks off work.
[2] Mr Qiu told Judge Tremewan in an affidavit that he did not understand that by entering pleas of guilty he was accepting criminal responsibility. Mr Qiu deposed that his lawyer, a Korean, spoke to him in English and had her Mandarin-speaking legal executive interpret. Mr Qiu deposed that he thought pleading guilty merely expressed contrition. There is an affidavit from a doctor of linguistics explaining how Mr Qiu might have failed to recognise the distinction between social guilt and legal guilt.
[3] Judge Tremewan made findings of fact from inferences drawn from other things that Mr Qiu said in his affidavit. Principally, that he had told his lawyer he was prepared to plead guilty if the fine was less than $10,000 but not otherwise.
Discussion
[4] Mr Qiu may appeal Judge Tremewan’s decision if he identifies a relevant question of law and if this Court gives him leave to appeal.2
[5] Mr Dufty submits that the operative error of law in this case is that the Judge made a factual finding unsupported by any evidence and omitted to draw an inference of fact which is the only one reasonably possible on the evidence.3
[6] Essentially, Mr Dufty points out that the respondent did not file any evidence. Therefore, the only evidence Judge Tremewan could consider was the evidence filed by and on behalf of Mr Qiu. That evidence set out Mr Qiu’s misunderstanding of the nature and effect of his pleas of guilty. As a matter of law, it is submitted, the Judge
1 WorkSafe New Zealand v Qui [2024] NZDC 27807.
2 Criminal Procedure Act 2011, s 296(2).
3 This is the third category of error to which s 296(2) applies, as identified by the Court of Appeal in Brown v R [2015] NZCA 325 at [16(c)], citing Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [26]; and Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [52].
had no choice other than to accept the evidence and permit Mr Qiu to withdraw his pleas of guilty.
[7] I do not accept that Judge Tremewan was required to find in Mr Qiu’s favour because his was the only evidence before the Judge. Evidence is evidence, regardless of its source. The Judge was entitled to evaluate it and to draw inferences adverse to Mr Qiu if the inferences were reasonably available.
[8] The Judge’s jurisdiction to consider Mr Qiu’s application to withdraw his pleas of guilty is conferred by s 115 of the Criminal Procedure Act 2011. The Judge had to decide whether it was in the interests of justice to allow him to do so.4 If the Judge was satisfied that Mr Qiu entered pleas of guilty as a result of a material mistake about the nature and effect of doing so then that might well have justified withdrawing the guilty pleas.
[9] The Judge discussed Mr Qiu’s evidence and that of the linguistics expert (Dr Huang) at some length. It was noted that Dr Huang’s evidence was based largely on Mr Qiu’s reports.
[10]The Judge properly informed herself of the applicable law.
[11]The Judge held:
[29] It is apparent that Mr Qiu understood the meaning of the word “guilt” in its legal sense. He was aware of the proceedings and that by pleading guilty he would incur some form of outcome or consequence, that goes directly against his asserted understanding of guilt as an emotional response to the harm caused to Mr Zhang. Further, it is clear that Mr Qiu had envisioned a
$10,000 fine threshold in deciding whether or not to plead guilty. These two points are strong indicators that he fully understands “guilt” in its legal context.
[30] If, after consulting with his first lawyer, he had thought of the circumstances as giving rise to civil (or infringement) proceedings and not criminal proceedings, and if he were to understand “guilt” as “nei-jiu” or “to have a guilty conscience”, then he would not be asking about the consequences of pleading guilty, but rather, the means through which he could make reparations to Mr Zhang. Perhaps it was his intent to pay Mr Zhang up to $10,000 in reparations to assuage his guilt, but accepting this approach
4 R v C CA59/02, 28 May 2002 at [14].
would be at odds with Mr Qiu understanding that this payment would be a “fine” as explained to him by counsel.
[31] Even if Mr Qiu did not initially receive an adequate legal explanation about the level of a likely fine, once a closer examination of the circumstances of the case had taken place, his counsel subsequently contacted him to inform him that the charges were serious ones that could incur a substantial fine. Perhaps Ms Hwang initially thought the charges would not be serious (the victim suffered no permanent injuries or death, so Mr Qiu could have minimised the situation in his description to her) but after examining the facts had concluded that it was a serious case.
[32] The Court does not accept that Mr Qiu had acted upon a material mistake in relation to the charges he faced when entering his plea. Arguably he could have not “wanted” to plead guilty, but the high probability of receiving a fine had been explained to him, and he understood that a plea of guilty would be beneficial to him by way of a discount.5 This suggests that he had not acted on a “material mistake” when entering his guilty pleas.
[12] Mr Dufty criticises the Judge’s reasoning, submitting:
30.In counsel’s submission, the court was wrong to find that when Mr Qiu entered his guilty plea, he was not acting on a material mistake.
31.The court found that Mr Qiu understood the meaning of the word “guilt” in its legal sense. It said he was aware of the proceedings and that by pleading guilty he would incur some form of outcome or consequence and had envisioned a $10,000 fine threshold in deciding whether or not to plead guilty. It said these two points are strong indicators that he fully understood “guilt” in its legal context.6
32.With respect, neither of those facts indicate that Mr Qiu understood what it means to be legally guilty. The reference to an “outcome” and a fine of $10,000 are extracts from Mr Qiu’s own affidavit and need to be read in context.7 These facts indicate that he understood there would be a legal process involving the payment of money, but not that he understood what being guilty meant.
33.Mr Qiu goes on to say in his affidavit that he did not understand that “guilty” had two meanings in English. He understood that if he felt sorry for the man who got hurt, he was legally guilty of the offence. He clearly misunderstood what pleading guilty meant in a legal sense; namely, accepting the various legal elements that make up the offence.
34.Mr Qiu’s claim is supported by Dr Huang. She says it is possible that he misunderstood what it means to be legally guilty.
35.No evidence to the contrary was provided by WorkSafe. Mr Qiu and Dr Huang were not cross-examined. It is a case where the only
5 Affidavit of Tingsong Qiu dated 17 November 2024 at [13] and [27].
6 WorkSafe New Zealand v Qui, above n 1, at [29].
7 Tingsong Qiu affidavit at [13] and [14].
inference based on the evidence provided by the applicant was that he was mistaken when entering his plea.
36.The court went on to say that if, after consulting with his first lawyer, he had thought of the circumstances as giving rise to civil (or infringement) proceedings and not criminal proceedings, and if he were to understand “guilt” as “nei-jiu” or “to have a guilty conscience”, then he would not be asking about the consequences of pleading guilty, but rather, the means through which he could make reparations to Mr Zhang. Perhaps it was his intent to pay Mr Zhang up to $10,000 in reparations to assuage his guilt, but accepting this approach would be at odds with Mr Qiu understanding that this payment would be a “fine” as explained to him by counsel.8
37.These observations assume that Mr Qiu understood the difference between a civil and criminal proceeding and what a fine means. Mr Qui in his affidavit explained how he was confused about what guilt meant.9 There is no evidence he knew or that he was told what other concepts of criminal procedure meant, such as fines and reparation, and whether one related to criminal proceedings as opposed to civil proceedings.
38.The court said further that even if Mr Qiu did not initially receive an adequate legal explanation about the level of a likely fine, once a closer examination of the circumstances of the case had taken place, his counsel subsequently contacted him to inform him that the charges were serious ones that could incur a substantial fine.10
39.The court’s observations are again based on Mr Qiu’s comments in his affidavit. This again assumes various discussions with his lawyer. However, in his affidavit Mr Qiu does not mention there was a discussion of a substantial fine with his lawyer. Mr Qiu says that in some emails from his Ms Hwang, she mentioned the case was serious, and that he could face a fine (not a substantial one).11 He also does not remember reading the emails.12
[13] In my view, the Judge was entitled to draw the inferences she did. The Judge was not required to accept Mr Qiu’s assertions. The history of the prosecution and all the matters set out in the affidavits were there to be assessed. Mr Dufty’s criticisms put the other side of the case. But, the Judge did not have to take that side. It is a high hurdle to establish that, as a matter of law, a Judge had no choice but to make the factual findings advocated.
8 WorkSafe New Zealand v Qui, above n 1, at [30].
9 Tingsong Qiu affidavit at [24].
10 WorkSafe New Zealand v Qui, above n 1, at [31].
11 Tingsong Qiu affidavit at [17].
12 Tingsong Qiu affidavit at [17].
Decision
[14] Leave to appeal is declined.
Brewer J
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