The Queen v Kim

[2009] NZCA 452

IN THE COURT OF APPEAL OF NEW ZEALAND

CA722/2008
[2009] NZCA 452

THE QUEEN

v

JUNG SOO KIM

Hearing:17 August 2009

Court:Arnold, Panckhurst and Miller JJ

Counsel:H D M Lawry for Appellant

M D Downs for Crown

Judgment:2 October 2009 at 11.30 am 

JUDGMENT OF THE COURT

THE APPEAL AGAINST CONVICTION IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Panckhurst J)

Introduction

[1]       Following trial the appellant Jung Soo Kim was found guilty of three charges of money laundering.  Subsequently she was sentenced to two years and three months imprisonment.  This sentence has been served.

[2]       The present appeal against conviction is brought on the sole basis that the emergence of fresh evidence has exposed the risk of the occurrence of a miscarriage of justice.  The gist of the Crown case at trial was that the appellant’s brother, whom we shall refer to as Jefferson Kim, defrauded a Korean family of the sum of $1m.  The money was transmitted from Korea to New Zealand to facilitate a residency application.  No such application was ever made.  At trial, the fact of the fraud was not contested.  The appellant’s defence was that, while the $1m came into her possession and was used by her for the purchase of a house in early 2005, she was ignorant of the underlying fraud, believing rather that her brother derived the money from a trust fund belonging to their family.

[3]       The proposed new evidence is said to cast doubt on whether Jefferson Kim did in fact obtain the money by fraudulent means.  It is said that the new evidence indicates that he received the money by way of loan repayment from the Korean family.

[4]       Whether the proposed evidence is sufficiently credible to justify its admission on appeal is the essential issue. 

The principles applicable to new evidence

[5]       The relevant principles were restated in R v Bain [2004] 1 NZLR 638 (CA):

[22]   An appellant who wishes the Court to consider evidence not called at the trial must demonstrate that the new evidence is: (a) sufficiently fresh; and (b) sufficiently credible.  Ordinarily if the evidence could, with reasonable diligence, have been called at the trial, it will not qualify as sufficiently fresh.  This is not an immutable rule because the overriding criterion is always what course will best serve the interests of justice.  The public interest in preserving the finality of jury verdicts means that those accused of crimes must put up their best case at trial and must do so after diligent preparation.  If that were not so, new trials could routinely be obtained on the basis that further evidence was now available.  On the other hand the Court cannot overlook the fact that sometimes, for whatever reason, significant evidence is not called when it might have been.  The stronger the further evidence is from the appellant’s point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.

[23]   Whether new evidence is sufficiently credible to be admitted cannot be much elaborated in the abstract.  Both inherent and contextual credibility will usually need consideration.  Obviously evidence which is wholly incredible cannot avail the appellant, but beyond that it is neither necessary nor desirable to go in this general summary.  The criteria of freshness and credibility govern whether the new evidence should be admitted or, putting the matter more formally, whether leave should be granted to admit the evidence.  Fresh evidence is not admitted as of right.  Its admission is a matter of discretion under s 389 of the Crimes Act.  The freshness and credibility criteria are the standard measures which guide the exercise of the discretion.  In the end, however, the discretion must be exercised in whatever manner the Court considers will further the overall interests of justice, both to the appellant and to the Crown which represents the community.

[6]       The Crown did not dispute that substantially the new evidence was not available to the appellant at the time of the trial, February 2008.  However, Mr Downs submitted that the proposed evidence is not sufficiently credible to warrant its admission on appeal under s 389 of the Crimes Act 1961.  In order to assess the issue of credibility it is necessary to evaluate the proposed evidence in the context of the case as a whole.

The proposed evidence

[7]       For present purposes the new evidence falls into three categories.  First is a document headed “Statement of Truth”, which purports to be Kyung Soon Kim’s account of events in the period 1999 to 2003 and her response to a series of questions.  Although so named the document is not in affidavit form or otherwise sworn.  Kyung Soon Kim is a Korean national who came to New Zealand in 2002 to study.  She met the appellant in Auckland and, thereby, the appellant’s brother, Jefferson Kim, as well.  He became Kyung Soon Kim’s tutor, for which he was periodically paid by Kyung Soon Kim or by her parents from Korea.  In due course Kyung Soon Kim’s family entered into an arrangement with Jefferson Kim whereby he was to process a New Zealand residency application on their behalf.

[8]       The provenance of the “Statement of Truth” is somewhat unclear.  In his written submissions Mr Downs said that “the appellant appears to accept [the document] was available to her in or about March 2006, almost two years before her trial”.  Mr Lawry did not seek to refute this observation.  Hence, the document does not seem to be fresh.  But, in the event Mr Lawry placed little reliance upon its contents in the course of his submissions.  The original was written in Korean.  The accuracy of the translation with which we were provided was accepted.

[9]       In the main the statement of truth referred to events said to have occurred in Australia.  The persons mentioned in the document have Asian names, but there is no apparent connection between these people and the events in New Zealand of central relevance to this case.  There are references to drug use and to a relationship which Jung Soo Kim apparently had with an Asian man in Australia.  He is described as the manager of a night club, and also as a “gangster”.

[10]     The second and third categories of documents came from a common source.  In an affidavit sworn by Sung Jun Hong (described as a friend of the appellant) the discovery of a memory stick attributed to Jefferson Kim is described.  The deponent states that he/she in July 2008 helped clean out the basement of the property purchased by the appellant in early 2005 using the money provided to her by her brother.  On the memory stick were 29 emails addressed to Jefferson Kim from either Kyung Soon Kim, her mother or her father.  A further document, described as an attachment to an email, is a letter from a person described as a business immigration specialist to Kyung Soon Kim’s father in Seoul, Korea.  This letter comprises a third category of new evidence.

[11]     As to the freshness of the emails (and the attached letter), the affidavit evidence provided by the appellant and her friend is sparse.  The friend simply deposes to finding the memory stick “among other items belonging to [Jefferson] Kim” in about July 2008.  The appellant’s affidavit states that she translated the statement of truth and the 29 emails from Korean to English.  She does not explain how or why a memory stick recording emails from Kyung Soon Kim and her parents remained at the house well after the time when Jefferson Kim apparently left New Zealand. 

[12]     At the appellant’s trial in February 2008 she explained that her brother remained at the house when she left for the airport and was arrested on 11 February 2006, but that he was gone when she was released and returned to the address two days later.  She added that they had not been in contact since then.  The emails are dated between June 2004 and May 2005.  Comprehension of their contents is not straight-forward.  The translations from Korean to English are stilted in result, and difficult to understand.  By and large the emails contain inconsequential details of unremarkable everyday activities.  Gaining an understanding of the contents is significantly hindered by the absence of the emails sent by Jefferson Kim to the three members of the family. 

[13]     Mr Lawry based his argument upon a few extracts from the emails. He submitted that, upon evaluation, the emails were “self explanatory” and showed that the $1m which the appellant received from her brother in January 2005, was in fact “the repayment of a debt owed by Kyung [Soon Kim] to [Jefferson Kim].”

[14]     In an email dated 28 July 2004 the mother said this:

I said to my husband “Just let teacher do what teacher is doing now, and it will be more helpful to teacher Kim.  If he is the person who is counting everything with guarantee, he might not start this kind of thing even.  In the future, by the time goes on, we and Kyung Soon will repay the debt we owed.”

On 1 September 2004 another email from the mother said:

I hope that permanent resident comes quicker so we can transfer money to you that you and Jung Soo can buy house and car, and not pay rental fees so I can have carefree mind.

These two excerpts represent the highpoint in relation to statements which suggest the repayment of a debt due to Jefferson Kim.

[15]     On the other hand the emails are replete with references to a residency application.  For example, on 12 November 2004 the mother wrote:

If permanent residence can be done by the way that we thought such as with one million dollars and with no regulation that we can stay anywhere, it would be finished at once.  But it is not, so it also makes us difficult.  You told us that there is no guarantee for permanent residence even though we do lawsuit.

The next day she sent a further email which included this:

First of all, I will transfer one million dollars as soon as the proof of origin of fund can be prepared.  …  For another two million dollars, we are thinking any loan that can be taken there and that can be paid here for interest payment.  (Way to make remittance without tax inspection).

These excerpts confirm the Crown case, rather than the reverse. 

[16]     Moreover, after payment of the $1m and the appellant’s use of a large part of the money to purchase a house in Auckland, Kyung Soon Kim emailed Jefferson Kim on 5 July 2009 stating:

I am worried about you not giving me a call as you said you will call me.

Then followed reference to the transmission of the $1m from Korea to an account in New Zealand, and the withdrawal of this sum.  Kyung Soon Kim reported that her mother had “scolded” her for not discussing these matters in advance. 

[17]     The further document by way of new evidence does not assist the appellant either.  It purports to be a letter dated 1 September 2004 to Kyung Soon Kim’s father in Korea confirming that a residency application for the three family members “has been approved in principle”.  The letter also recorded “you have nominated NZ $3m as investment funds” and required that evidence be provided to confirm the transfer of this sum to New Zealand.

[18]     Since a residency application was never submitted by Jefferson Kim to the New Zealand authorities on behalf of the family the letter is plainly fraudulent. 

Is the new evidence credible?

[19]     As this Court stated in R v Bain, whether new evidence is sufficiently credible to be admitted on appeal cannot be much elaborated in the abstract. The inherent and contextual credibility of the evidence will ordinarily require consideration. Here, the sole question is whether the extracts we have highlighted from the emails (at [14] and [15]) are capable of undermining the central proposition accepted at trial, namely that Jefferson Kim obtained the $1m from Kyung Soon Kim’s family by fraud. Put another way, is a credible interpretation of the emails that they suggest a debt was owed to Jefferson Kim by the family as at 2004, so that there may be an innocent explanation for the $1m payment.

[20]     With regard to the inherent credibility of the excerpts, we accept Mr Downs’ submission that at best they convey a general sense of obligation owed to Jefferson Kim.  In 2004 and early 2005, at least, he was viewed with favour by Kyung Soon Kim’s parents, who were also “hopelessly trusting” of him (as Mr Downs submitted).  Even the mother’s email of 1 September 2004 (see [14] above) is equivocal.  It suggests that the appellant and her brother may benefit after the family had received permanent residency in New Zealand.

[21]     In terms of contextual credibility, the relevant excerpts do not withstand scrutiny when viewed alongside the Crown case.  We consider there was compelling evidence which established beyond doubt that the $1m was transferred to New Zealand as an investment fund required to support the family’s residency application.

[22]     Soon after Jefferson Kim became Kyung Soon Kim’s tutor in March 2003, the issue of obtaining permanent residency in New Zealand was raised.  In approximately October 2003 Kyung Soon Kim’s mother visited her in New Zealand.  Following discussions, a “confirmation letter” was signed whereby Jefferson Kim was authorised to act on behalf of the family in relation to their obtaining residency in his capacity as a “partner manager” of an international accountancy firm.  The confirmation letter bore the name and other relevant details of that firm.  Jefferson Kim also gave Kyung Soon Kim’s mother a “manager security card” for the accountancy firm.  In fact, he had no connection to the firm.

[23]     In 2004 Kyung Soon Kim enrolled at Otago University.  Contact between Jefferson Kim and the family continued in supposed furtherance of the residency application.  Kyung Soon Kim’s father received the letter dated 1 September 2004 (see [17] above) which, to his surprise, contained advice that an investment fund of $3m was now required to support the residency application.  When the increase caused the family to hesitate, Jefferson Kim indicated that an appeal could be brought, which may result in a reduction of the investment requirement to $1m.

[24]     In December 2004 Kyung Soon Kim’s parents opened a bank account in Dunedin.  She was granted authority to operate the account.  This was in preparation for the remission of the $1m to New Zealand. 

[25]     On 18 January 2005 the appellant entered into an agreement to purchase a house in Auckland.  The purchase price was $696,000.  At this time Jefferson Kim was in Dunedin.  He told Kyung Soon Kim that he had borrowed $1m from the appellant, which had been lodged in support of the residency application.  He pressed for repayment of the advance and nominated a deadline of 20 January 2005.  The previous day the appellant had paid $5,000 on account of the deposit for the house purchase.  The sum of $64,000 remained outstanding. 

[26]     By 24 January 2005 the sum of $1m had been transferred from Korea into the Dunedin account.  Jefferson Kim remained in Dunedin.  He accompanied Kyung Soon Kim to the bank when she endeavoured to withdraw the money.  She encountered difficulties.  However, after some delay, and the receipt of a communication from her father authorising the withdrawal, a bank cheque was obtained in the late afternoon of 24 January.  This was handed to Jefferson Kim who was present, or at hand, throughout the dealings at the bank.

[27]     On 25 January 2005 at Auckland the appellant deposited the bank cheque into her bank account.  This gave rise to the first count of money laundering.  That same day the appellant obtained a bank cheque for $64,000, the sum required to meet the balance of the deposit.  This transaction gave rise to count 2.  On 8 March 2005 a further bank cheque for about $627,000 was used to settle the property transaction.  This became the basis of the third count. 

[28]     In June 2005 Jefferson Kim met with Kyung Soon Kim and her parents in Auckland.  At this point the family still believed that the residency application was under consideration.  However, this was to be the last time that they saw him face to face.  Jefferson Kim left New Zealand after this meeting.

[29]     On 3 February 2006 the Auckland house was placed on the market.  A real estate agent visited the property, met the appellant and was introduced to her brother named “Jeff”.  A few days later the appellant advised the agent that she was moving to Hong Kong because of a job offer.  On 10 February 2006 the appellant told the agent that she was departing for Hong Kong early the next day.

[30]     On 11 February 2006 she was stopped and arrested at Auckland International Airport.  The arresting officer only knew that she was wanted in relation to a “fraud matter”.  The appellant said to him:

Is this about money?  It doesn’t matter anyway, it was not your country’s money.

[31]     At trial the appellant gave evidence in her own defence.  She maintained that she was not party to her brother’s activities and had no knowledge when she received the $1m that it had been fraudulently obtained.  Guilty knowledge was the only issue.  The jury obviously disbelieved the appellant’s account.

[32]     Against this background, we think there can be no doubt that the $1m was paid into the Dunedin account in furtherance of the supposed residency application.  The trial evidence of Kyung Soon Kim and her parents, supplemented by fraudulent documentation and banking records, permits of no other interpretation.  The excerpts from the emails do not, in our view, afford a credible basis to doubt the fraud which underpinned the Crown case.  Viewed as a whole the emails, and particularly the letter to Kyung Soon Kim’s father of 1 September 2004, provide support for the Crown case, rather than the reverse.

Conclusion

[33]     The credibility requirement for the admission of fresh evidence on appeal is not met.  Accordingly, the appeal against conviction must fail and it is dismissed.

Solicitors:
Crown Law Office, Wellington