R v Zhang
[2025] NZHC 1840
•7 July 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-004-001080
[2025] NZHC 1840
THE KING v
WENFU ZHANG TAYZEL TUPOU-TOKA TINI
ROBERT TALATI LIAM QUADE PRASAD
Hearing: 16 June 2025 – 30 June 2025 Appearances:
K S Li and K H M Nihill for Crown G J Newell and L Qian for Mr Zhang
S Tait and A Maxwell-Scott for Mr Tini
P H Tomlinson and K Hamblin for Mr Talati O Hintze and G Burns for Mr Prasad
Judgment:
7 July 2025
JUDGMENT OF MOUNT J
Charge One—Cessation of Importation
This judgment was delivered by me on 7 July 2025 at 3 pm,
………………………………… Registrar/Deputy Registrar
Solicitors/counsel:
Meredith Connell, Office of the Crown Solicitor, Auckland G J Newell, Auckland
S Tait, Auckland
P H Tomlinson, Auckland O Hintze, Auckland
R v ZHANG & ORS [2025] NZHC 1840 [7 July 2025]
[1] The defendant Mr Zhang faces one charge of importing methamphetamine into New Zealand between 12 January and 9 February 2023. He also faces one charge of attempting to possess methamphetamine for the purpose of supply.
[2] Shortly before trial, counsel for Mr Zhang gave notice that the defence would contest the date on which importation ceased. Mr Zhang filed written submissions on 21 June 2025. The Crown filed written submissions on 24 June 2025, and I heard oral submissions on 25 June 2025. I issued a minute that day, which stated:1
[3] On charge one, I consider it will be open to the jury to conclude that the process of importation continued until the morning of 9 February 2023 if they accept the Police evidence that there was an intended controlled delivery that was abandoned at that time. I intend to direct the jury as to the law in terms of Note 3 of the draft question trail distributed yesterday 24 June 2025.
[3]The relevant note in the question trail reads:
2.Importation is a process which is completed either when:
a.the authorities (Police or Customs) decide to retain all of the controlled drug; or
b.the goods brought into New Zealand reach their immediate destination and are available to the consignee or addressee.
(whichever is the earlier).
[4]I said I would provide reasons for my ruling in due course, which I now do.
Background facts
[5] Charge One relates to 10 pallets of maple syrup that entered New Zealand as part of a larger consignment of 18 pallets on 14 January 2023. The Crown case is that Mr Zhang’s role was to receive and store the first group of 10 pallets at 381 Dominion Road in Auckland, where he had rented space above a supermarket.
[6] On 17 January 2023, Senior Customs Officer Brittany Herbert observed anomalies in x-rays of the consignment taken at the Sea Cargo Investigations Facility. She physically examined the consignment and saw that many of the plastic bottles
1 R v Zhang HC Auckland CRI-2023-004-1080, 25 June 2025.
were dirty, and at least one had been opened at the bottom and crudely re-sealed. The container had been filled with small stones and a bag of white crystal substance. She reported this to Senior Customs Officer, Joseph Gaffney.
[7] Mr Gaffney continued with the examination of the consignment. In all, there was approximately 118 kg of methamphetamine concealed in plastic maple syrup containers in two of the relevant pallets.
[8] Customs officials opened the bottles that had been tampered with, removed the bags of white crystal substance, and photographed them. They then put the small stones back into the tampered bottles and resealed them. Customs repackaged the containers into their original boxes and stacked the boxes as they had been on the pallets. Mr Gaffney explained that the purpose of this process was to permit a controlled delivery of the pallets to their intended destination to gather evidence against the intended recipients.
[9] Customs officials took the rest of the methamphetamine that had been concealed in the maple syrup bottles to secure storage.
[10] On 23 January 2023, Mr Gaffney removed a 10-gram presumptive amount of methamphetamine from secure storage and put it in a maple syrup container from one of the pallets relevant to Mr Zhang, ready for a controlled delivery to Dominion Road. Detective Inspector Beal said a controlled delivery is:2
… a investigation technique authorised under the Misuse of Drugs Act which allows the delivery of a consignment or part of a consignment containing a controlled drug, basically a ruse to try and identify and gain evidence against the intended recipients of the drug consignment.
[11] Mr Gaffney also placed another 10-gram amount into one of the eight pallets destined for delivery to a rural property in Kiwitahi Road, Helensville. Those eight pallets and the delivery to the Kiwitahi Road address are not relevant to Mr Zhang.
2 Notes of Evidence at 157.
[12] The following day, 9 February 2023, Mr Gaffney unloaded the first group of pallets (1–10) for the controlled delivery to 381 Dominion Road. The 10-gram amount of methamphetamine was contained in pallet 8.
[13] Detective Inspector Beal said he decided not to proceed with the Dominion Road controlled delivery around mid-morning on 9 February 2023. He said that was at least in part based on the heavy resourcing required from Police and other agencies when executing a controlled delivery. At 1.35 pm on 9 February 2023, Mr Gaffney was instructed to remove the presumptive amount from pallet 8 following the cancellation of the controlled delivery.
[14]The key points arising from this chronology are that, on the Crown case:
(a)Customs seized and permanently retained most of the methamphetamine on 17 January 2023.
(b)From the pallets relevant to Mr Zhang, Customs set aside a 10-gram “presumptive” amount of methamphetamine for the purpose of a controlled delivery to the Dominion Road address.
(c)The 10-gram amount remained in pallet 8 between 23 January 2023 and the morning of 9 February 2023, for the purpose of the controlled delivery to Dominion Road.
(d)It was not until the morning of 9 February 2023 that the authorities abandoned the Dominion Road controlled delivery.
The legal test
[15] There is a line of cases starting with R v Hancox addressing the point at which importation ceases for the purposes of the Misuse of Drugs Act 1975.3 There are broadly two ways in which importation can end, namely the sooner of the time at which:
3 R v Hancox [1989] 3 NZLR 60 (CA).
(a)the authorities decide to retain all of the controlled drug permanently; or
(b)the goods reach their immediate destination and are available to the consignee or addressee.
[16] Many of the cases have focused on the second limb of the test—when the goods become available to the consignee.4 There is no dispute that in the present case, that never occurred. The relevant issue is the first limb of the test—when the authorities decide to retain all of the controlled drug permanently.
[17] In my view, the overriding principle is that the process of importation continues as long as it can properly be said that the goods remain in transit to their immediate destination. The Court of Appeal expressed the principle in those terms in R v Hancox in 1989:5
Importing into New Zealand for the purposes of s 6(1)(a) is a process. … But the process does not end so long as the goods remain in transit, that is until any shipping and customs formalities are completed, and the consignment is available to the consignee at its immediate destination.
[18] In 2006, the Court of Appeal tied the end of the importation process to the decision by the authorities to retain the controlled drug in their custody:6
What Hancox and Wickremasinghe establish is that the importation of the Contac granules came to an end once the decision was made to retain them in Custom’s custody. For someone to be a party to that importation, he or she would have had to be involved prior to that time.
[19] In 2008, the Court of Appeal made it clear that the intervention of the authorities to dilute the quantity of a drug for the purposes of a controlled delivery did not bring the importation process to an end. The Court said:7
[14] To support his argument that the intervention of customs and the dilution of the GBL brought the importation in this case to an end, Mr Watson relied on R v Mason CA340/05 16 March 2006 and R v Wickremasinghe
4 See for example R v Hancox, above n 3; R v George CA550/95, 16 May 1996; and R v Atias (No 2)
HC Auckland T025837, 26 September 2003.
5 R v Hancox, above n 3, at 62 (emphasis added).
6 R v Mason CA340/05, 16 March 2006 at [9] (emphasis added).
7 R v Adams [2008] NZCA 171.
CA137/03 21 August 2023. However, in both those cases the drugs were retained by customs: see Mason at [18] and Wickremasinghe at [5]. That was not the case here. We accept Mr Downs’ submission that in principle the involvement of customs in this case was no different to items being handled and processed by postal or customs officials when they first arrive in the country. We also reject the submission that the dilution of the GBL brought the importation to an end. Notwithstanding its dilution the product in the drum remained a controlled drug. It follows that the importation did not cease until the consignment was uplifted from the [importation company’s] premises.
[20] The effect of those authorities is that the intervention of Customs officials to retain a “presumptive amount” of methamphetamine and take the necessary steps to prepare for a controlled delivery does not bring the transit of the goods to an end. Such a process inevitably involves the seizure of the presumptive amount, but to all intents and purposes the consignment including the presumptive amount remains en route to the consignee. To conclude otherwise would make it impossible for Customs and the police to carry out controlled deliveries. All controlled deliveries involve the seizure of an amount of the drug for the purpose of setting up the controlled delivery. In some cases, the time taken to set up the delivery may be relatively brief—hours or days. In other cases, it may be longer. But so long as a controlled delivery is genuinely planned to go ahead, the pallets including the controlled drug remain in transit to their destination.
[21] I am satisfied that the correct statement of the law is that the importation process is not completed under the first limb of the test unless and until the authorities decide to retain all of the controlled drug permanently (that is, without any controlled delivery process). The seizure of a small amount for the purposes of a controlled delivery does not bring the process to an end.
The position in this case
[22] In this case the evidence of Mr Gaffney and Detective Inspector Beal was that preparations were in train for a controlled delivery up until the morning of 9 February 2023, when the decision was made not to proceed with the planned delivery. The defence did not challenge that evidence, and the jury could be satisfied that the authorities had not decided to retain all of the controlled drug permanently until the morning of 9 February 2023.
[23] On that basis, any relevant acts by Mr Zhang until then would be capable of contributing to the actus reus of importation. Detective Inspector Beal was not able to be precise about what time in the morning of 9 February 2023 he made the decision. As a result, during oral submissions, the Crown said it would not rely on any acts by the defendant after 8 February 2023 as constituting part of the actus reus for the charge of importation. For completeness, on the authority of R v Wickremasinghe,8 the Crown can also rely on acts after the completion of importation to support an inference that the defendant must have agreed to facilitate the importation before it was completed.
Conclusion
[24]For these reasons, I directed the jury on the basis set out in the question trail.
Mount J
8 R v Wickremasinghe CA137/03, 21 August 2023 at [13].
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