R v Ho

[2004] NZCA 5

IN THE COURT OF APPEAL OF NEW ZEALAND

CA403/03

THE QUEEN

v

KWAN TAT HO

Hearing:17 February 2004

Coram:McGrath J
Hammond J
W Young J

Appearances:  C J Nicholls for Appellant

B J Horsley for Crown

Judgment:17 February 2004 

JUDGMENT OF THE COURT DELIVERED BY  McGRATH J

[1]       The appellant appeals against his conviction in the District Court, following a plea of guilty, on a charge that contrary to s233(1)(b) of the Fisheries Act 1996 he knowingly, for the purpose of obtaining a benefit under that Act, engaged in commercial activity involving the dealing with fish, otherwise than in accordance with the Act.

[2]       On 7 January 2002 the appellant, who was a chef at a Wellington restaurant, purchased 300 rock lobster on the blackmarket from an undercover fisheries officer .  He did not have any authority to take or deal with fish under the Act.  He pleaded guilty to the s233(1)(b) charge on 6 August 2002 and was sentenced by the District Court to 250 hours community work on 2 September 2002.  He has since completed that sentence.

[3]       On 15 September 2003 this Court held in R v Armstrong and Ors CA194/03, CA230/03, CA231/03, CA232/03 and CA233/03 that to fall within the terms of the offence provided for in s233(1)(b), the conduct engaged in by an accused person must be undertaken for the purpose of obtaining a benefit which was created by the Fisheries Act.  It followed that the unlawful taking of fish for a general commercial benefit did not of itself without more constitute an offence under s233(1)(b).  Although the present case involved the purchase, rather than the taking of fish, it is within the same principle.  The rock lobster were not purchased in order to obtain a benefit created by the legislation, which is a necessary ingredient.  Therefore, the appellant was charged with and pleaded guilty to an offence under the Act on which he could not lawfully be convicted, on the facts.  The Crown today represented by Mr Horsley accepts this is the position.

[4]       The appellant represented by Mr Nicholls now seeks to have his conviction quashed. While an appeal against conviction will not normally be entertained by an appellate court following a guilty plea, it is well established that the court will intervene where, on the facts, the appellant could not in law be convicted of the offence charged (R v Stretch [1982] 1 NZLR 225). In such cases there is a miscarriage of justice which requires the Court to allow the appeal under s385(1)(c) of the Crimes Act 1961.

[5]       For these reasons the appeal must be allowed and the conviction is quashed.

Solicitors:

Crown Law Office, Wellington