R v Guo

Case [2009] NZCA 612 21 December 2009

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA417/2009
[2009] NZCA 612
THE QUEEN
v
JIANYONG GUO
Hearing:2 November 2009

Court:William Young P, Chisholm and Priestley JJ
Counsel:C B Cato for Appellant

G H Allan for Crown

Judgment:21 December 2009 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
___________________________________________________________________
REASONS OF THE COURT
(Given by William Young P)
An appeal against conviction
[1]        Following a two week trial in the District Court at Auckland before Judge Perkins and a jury, the appellant was found guilty of importing pseudoephedrine and possessing it for supply. He now appeals against conviction.
[2]        The case primarily involves the importation into New Zealand in August 2006 of a container which was declared as containing, inter alia, granite. The consignee was NAK Group Ltd (NAK), a company operated by the appellant and his wife, Meihua Hong. Inside the container were a number of granite boxes which had been cleverly constructed to resemble sheets of granite lying side by side. Inside these boxes were large quantities of cigarettes and ContacNT capsules containing pseudoephedrine. A controlled delivery of the container (and its contents) was made and the appellant was subsequently found beside one of the granite boxes. He had broken into the box and he had removed from it a number of blister packets of ContacNT which he had placed in a bag.
[3]        The appellant’s defence at trial was that he had simply been the innocent dupe of a casual acquaintance whom he knew as Ah Ming.
[4]        Although the appellant was charged only in relation to the container which arrived in New Zealand in August 2006, there was a good deal of evidence before the jury as to an earlier container which had been imported in May 2006 and which, on the Crown case, contained contraband.
[5]        We propose to address the appeal under the following headings:
(a)The factual background.
(b)The way the Judge dealt with the evidence of the May 2006 importation.
(c)The absence of a lies direction.
(d)The way in which the Judge summed up on the facts.

The factual background
The appellant
[6] The appellant and Ms Hong came to New Zealand in 2002. They previously lived in Fuzhou in China. He is a stone mason and a dealer in stone. He and Ms Hong traded through their company, NAK. Ms Hong (whose English is rather better than the appellant’s) seems to have been primarily involved with the administration and financial affairs of the company. They have three children. The oldest of these was around 16 in September 2006 and to some extent she assisted in the business (primarily, it appears, because of her fluency in English). The other two children were much younger and had been born after the appellant and Ms Hong came to New Zealand. The family lived in Henderson, Auckland. Also living with them in the house was a tenant.
[7] The appellant maintained links with China and had been there between March and May 2006.

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 R v Guo

Details

AGLC: R v Guo [2009] NZCA 612
Case: [2009] NZCA 612
Decision Date: 21 December 2009

CaseChat Overview and Summary

The appellant, Jianyong Guo, was found guilty of importing pseudoephedrine and possessing it for supply. He appealed against the conviction, arguing various grounds, including the way the Judge dealt with evidence regarding a previous importation, the absence of a lies direction, and the inadequacy of the summing up. The Court of Appeal considered each of these arguments in turn. The Court held that the Judge's approach to the evidence of the previous importation was not prejudicial to the appellant, as the evidence was very cogent and the Judge's directions were to the advantage of the appellant. The Court also found that there was no need for a lies direction, as the evidence suggested the appellant's story about Ah Ming was a "big lie," but the Motorola phone evidence was of limited significance. Finally, the Court concluded that the inadequacies in the summing up did not result in a miscarriage of justice, as an orderly analysis of the facts would have been significantly more adverse to the appellant. The appeal was dismissed.

Orders