THE HAI PHAN - [2025] NZCA 166

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA544/2024
[2025] NZCA 166

BETWEEN	THE HAI PHAN Appellant
AND	THE KING Respondent

CA545/2024
BETWEEN	KHANH HOI PHAN Appellant
AND	THE KING Respondent

Hearing:	2 April 2025
Court:	Campbell, Dunningham and Harvey JJ
Counsel:	C S Fredric for Appellants H G Clark for Respondent
Judgment:	13 May 2025 at 11.00 am

JUDGMENT OF THE COURT

The appeals are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dunningham J)

Introduction

The appellants, Mr The Hai Phan and Mr Khanh Hoi Phan, are brothers. Following a jury trial, they were both convicted of cultivating and possessing cannabis for supply.
During the trial, the appellants sought to adduce evidence relating to Tat Thang (Andy) Nguyen, who owned the property in Sunnynook, Auckland, at which the Phan brothers were accused of operating a cannabis growing operation (the Property). The evidence addressed the fact that police found commercial cannabis growing operations in four other properties owned by Mr Nguyen around the same time as the operation at the Property was discovered, including in a neighbouring property.
Mr Fredric, for the appellants, asserts that key aspects of this evidence were ruled inadmissible by the Judge. That decision was in error and meant the appellants were unable to properly test the Crown’s theory of the case and to advance an available alternative narrative to that promoted by the Crown. As a result, a miscarriage of justice has occurred and the convictions should not stand.[1]

The alleged offending

[1]Criminal Procedure Act 2011, s 232.

The police executed a warrantless search at the Property on 9 September 2022. Inside they found a cannabis growing operation. It included 115 cannabis plants at various stages of growth, along with a hydroponic irrigation system, an extensive lighting system and the diversion of electricity around the meter to avoid suspicion caused by excess power usage. Police also located 4,815 grams of dried cannabis head stored in plastic bags in the ceiling space of the Property.
Both appellants’ fingerprints were located on the cannabis growing equipment and electronic scales located at the Property. A subsequent search of Mr Khanh Phan’s address located further equipment typically used for cannabis growing, including buckets modified to connect with irrigation pipes, air ducting and piping, cables, light bulbs and ballasts.
Mr The Phan was the sole occupant of the Property, having signed a tenancy agreement and paid a bond in August 2022. But there was evidence that he had had access to the Property earlier than that. A number of his personal effects were located at the Property and a neighbour also said he saw Mr The Phan’s vehicle at the address every night.
Mr Khanh Phan purchased a range of items at Bunnings which were consistent with the items found in the grow room. An orange Mitsubishi Triton vehicle registered to Mr Khanh Phan was filmed on CCTV being loaded at Bunnings. A neighbour said he saw a vehicle matching that description at…

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.

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Details

AGLC: THE HAI PHAN [2025] NZCA 166
Case: [2025] NZCA 166
Decision Date: 13 May 2025

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal against the convictions of The Hai Phan and Khanh Hoi Phan, brothers who were found guilty of cultivating and possessing cannabis for supply. The central issue in the appeal was the exclusion of certain evidence relating to Tat Thang (Andy) Nguyen, the landlord of the property where the cannabis growing operation was discovered. The appellants argued that the exclusion of this evidence was an error that impeded their ability to present a viable alternative narrative and led to a miscarriage of justice.

The key legal issues revolved around the admissibility of evidence under the Evidence Act 2006. The appellants' counsel contended that the evidence about other cannabis growing operations on properties owned by Mr Nguyen was crucial to their defence, as it suggested that the landlord and the property manager might have been involved in the operation at the Property. The Court had to determine whether the exclusion of this evidence unfairly prejudiced the appellants' ability to mount a defence and whether it resulted in a miscarriage of justice.

The Court of Appeal found that while the evidence about Mr Nguyen's other properties was relevant, its exclusion did not render the trial unfair or result in a miscarriage of justice. The Court noted that the jury was already aware of the similarity in set-ups across the properties and the proximity of the search dates. Furthermore, the jury was also exposed to evidence suggesting Mr Nguyen’s possible involvement in cannabis cultivation. The Court concluded that the appellants had sufficient means to argue that Mr Nguyen could have been involved in a wider cannabis growing operation, but this did not negate the substantial evidence against them, including fingerprint evidence and other incriminating circumstances. Consequently, the Court dismissed the appeals.

Orders