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Tan v The King

Tan v The King

Case [2023] NZCA 446 14 September 2023

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA14/2020
[2023] NZCA 446

BETWEEN	ZHI ZHAO TAN Appellant
AND	THE KING Respondent

CA15/2020
BETWEEN	CHI WA LEUNG Appellant
AND	THE KING Respondent

CA105/2020
BETWEEN	HAO LI Appellant
AND	THE KING Respondent

CA396/2020
BETWEEN	WAI FAT WONG Appellant
AND	THE KING Respondent

CA424/2020
BETWEEN	YIU WAI CHIANG Appellant
AND	THE KING Respondent

CA605/2020
BETWEEN	TAI FI CHIU Appellant
AND	THE KING Respondent

Hearing:	26–27 October 2022 (further submissions received 13 March 2023)
Court:	Cooper P, Venning and Palmer JJ
Counsel:	L O Smith for Appellant in CA14/2020 M Kan for Appellant in CA15/2020 M W Ryan and J E Tullock for Appellant in CA105/2020 D B Stevens for Appellant in CA396/2020 M J Taylor-Cyphers for Appellant in CA424/2020 A M Simperingham and K C Leung for Appellant in 605/2020 B J Thompson and P R McNabb for Respondent
Judgment:	14 September 2023 at 11.00 am

JUDGMENT OF THE COURT

AThe applications by Hao Li, Yiu Wai Chiang and Tai Fi Chiu to extend the time for appealing are granted.
BThe application by Hao Li to adduce further evidence is declined.
CThe conviction appeals by Hao Li and Tai Fi Chiu are dismissed.
DThe sentence appeal of Wai Fat Wong is allowed in part and the order that he serve a minimum period of imprisonment is set aside.

E All other sentence appeals are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper P)

Table of Contents

Para No
Introduction	[1]
The offending	[10]
The conviction appeals	[33]
Hao Li	[33]
Tai Fi Chiu	[51]
The sentence appeals	[66]
Sentencing for methamphetamine offending	[68]
Sentencing Judge’s approach	[78]
Ricky Leung	[80]
Wai Fat Wong	[83]
Tai Fi Chiu	[113]
Hao Li	[125]
Yiu Wai Chiang	[140]
Zhi Zhao Tan	[154]
Chi Leung	[171]
Result	[183]

Introduction

The six appellants were each convicted of charges connected to their respective roles in offending relating to the importation of significant amounts of methamphetamine.
On 30 January 2019, Tai Fi Chiu pleaded guilty to one charge of importing methamphetamine,[1] and two charges of possession of methamphetamine for supply.[2] On 8 February 2019, Yiu Wai Chiang pleaded guilty to one charge of possession of methamphetamine for supply.[3] Wai Fat Wong pleaded guilty to three charges of importing methamphetamine,[4] and two of possession of methamphetamine for supply on the morning of the trial, 11 February 2019.[5]
[1]Misuse of Drugs Act 1975, s 6(1)(a) and (2)(a).
[2]Section 6(1)(f) and (2)(a).
[3]Section 6(1)(f) and (2)(a).
[4]Section 6(1)(a) and (2)(a).
[5]Section 6(1)(f) and (2)(a).
The other defendants were found guilty by the jury. Hao Li, Zhi Zhao Tan and Chi Wa Leung were each convicted of one charge of possession of methamphetamine for supply.[6] Chi Leung shares a surname with a co‑offender, Mr Ricky Tat Choi Leung, and will be referred to by his first name for clarity.
[6]Section 6(1)(f) and (2)(a).
The trial Judge, Moore J sentenced the appellants to terms of…

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 Tan v The King

Details

AGLC: Tan v The King [2023] NZCA 446
Case: [2023] NZCA 446
Decision Date: 14 September 2023 at 11.00 am

CaseChat Overview and Summary

In Tan v The King, six appellants were convicted of drug importation and possession charges relating to the importation of significant quantities of methamphetamine. The appellants were sentenced to terms of imprisonment ranging from 16 years and 2 months to 25 years and 6 months. Hao Li, Yiu Wai Chiang, and Tai Fi Chiu appealed both their conviction and sentence, while the other appellants appealed their sentences only. Their applications to extend the time for appealing were granted due to difficulties in arranging legal representation while in custody and language barriers.

The Court addressed the conviction appeals of Hao Li and Tai Fi Chiu, which were dismissed. Hao Li's conviction appeal was based on a conflict of interest arising from her trial counsel also representing her husband, Mr Wong. The Court found that there was no miscarriage of justice resulting from the joint representation. Tai Fi Chiu's appeal against his conviction was also dismissed, as the Court found that there was sufficient evidence to support the conviction.

The Court then addressed the sentence appeals of each appellant. The Court allowed the sentence appeal of Wai Fat Wong in part, setting aside the order that he serve a minimum period of imprisonment, as it was unnecessary and not contemplated by statute. The Court dismissed all other sentence appeals, finding that the sentences imposed were appropriate and within the range available to the sentencing judge.

In conclusion, the Court granted the applications by Hao Li, Yiu Wai Chiang, and Tai Fi Chiu to extend the time for appealing. The application by Hao Li to adduce further evidence was declined. The conviction appeals by Hao Li and Tai Fi Chiu were dismissed, and the sentence appeal of Wai Fat Wong was allowed in part. All other sentence appeals were dismissed.

Orders