The Queen v Kim Yee

[2001] NZCA 447

IN THE COURT OF APPEAL OF NEW ZEALAND  CA169/01

THE QUEEN

V

KIM YEE

Hearing:  29 November 2001

Coram:  Gault J

Robertson J Goddard J

Appearances:  P E Dacre for Appellant H D M Lawry for Crown

Judgment:  29 November 2001

JUDGMENT OF THE COURT DELIVERED BY GAULT J

[1]                 A jury in the High Court at Auckland found the appellant guilty on one count of possession of a class A drug, namely cocaine, for supply. He was sentenced to imprisonment for eight years. He now appeals against conviction and sentence.

[2]                 In early 2000 New Zealand Customs intercepted a parcel from Peru containing approximately 416 grams of (80% pure) cocaine with an estimated street value of $950,000. The cocaine was secreted inside the head of a wooden statue of an owl. In the course of the resulting investigation most of the cocaine was removed and a replacement substance included in the owl which was then delivered to the

specified address. On or about midnight on 8 May 2000 a Mr Wu picked up the parcel from that address and took it by car to the appellant’s home. There Mr Wu took the parcel into a separate room where the appellant provided him with a knife, other tools and plastic bags in which small quantities of the substituted substance were placed before the owl was re-assembled. Both Mr Wu and the appellant were  in that room when the police and customs party arrived.

[3]                 Mr Wu pleaded guilty to the charge set out above. The appellant, who was charged as a party to the offending, pleaded not guilty. The case for the defence was that he had no knowledge of the parcel’s contents and claimed that Mr Wu acted on his own without his knowledge that drugs were involved. In returning the guilty verdict the jury rejected that claim.

[4]                 The appeal against conviction was advanced on the ground of a miscarriage of justice caused as a result of the appellant not giving evidence in his own defence.

[5]                 At the conclusion of the Crown case, trial counsel, with the assistance of an interpreter, obtained written instructions from the appellant not to call him to give evidence and not to call Mr Wu. These instructions were in the following terms:

I am currently standing trial in the Auckland High Court on one charge of possessing cocaine for the purpose of supply.

My lawyer, Lester Cordwell, has now spoken with me and advised me against calling evidence or giving evidence on my own behalf.

I accept my lawyer’s advice and understand fully the reasons for his advice.

He has told me that the Crown witness, ‘Bighead Ming’ supported my explanation that I gave to the Police on the video interview and that, now, it would be an unnecessary risk for me to testify to give the same explanation I gave in my video interview. The risk would be that the experienced Crown prosecutor would damage my explanation by his cross-examination.

I am aware that Simon Wu has pleaded guilty to the same charge and is prepared to give evidence for me telling the jury that I was not involved with the drugs.  I accept that there are risks involved with

Simon Wu giving evidence if I do not give evidence and I accept that it is not in my interests for Simon to give evidence in this case.

I agree that I would not be able to add anything significant to the explanation I gave to Detective Porter in the interview.

I make this statement knowing full well that if I am convicted I will be sentenced to a long term of imprisonment.

[6]                 In an affidavit tendered in support of the appeal the appellant asserts that when he signed the written instructions he did so in the belief that as a result of developments in the trial he was going to be found not guilty and it was no longer necessary for him and Mr Wu to give evidence.

[7]                 He said that a translation of his instructions recently obtained differs from that given to him in the cells at the time. He said:

In particular I do not recall any mention being made of the fact that I would be liable to a lengthy term of imprisonment. I am not saying necessarily that the translation was in error or that matters were not explained to me, but if they were I certainly never appreciated the fact that I could still be convicted.

If I had known that there was a possibility that I would be found guilty, I would have given evidence and asked that Simon Wu be called to give evidence.

[8]                 In support of the appeal Mr Dacre did not criticise trial counsel but submitted that the appellant gave his instructions without appreciating his position. He would not have agreed to his counsel’s recommendations if he had believed that there was still a question about his knowledge of what Mr Wu was doing.

[9]                 In response the Crown presented an affidavit from the interpreter who facilitated communications between the appellant and his trial counsel. The interpreter had the impression that at the start of the critical discussion the appellant expected to be giving evidence. That is entirely understandable. A full brief of evidence had earlier been prepared for that purpose.

[10]The interpreter goes on to state:

…there was a discussion about the decision whether or not to present evidence. I confirm that the appellant’s Counsel explained to the appellant that it was his (the appellant’s) choice as to whether or not he gave or call evidence and that there were risks in that decision. He advised the appellant that in his judgment it would be detrimental to his case to give evidence or call SIMON WU to give evidence. I do not recall any discussion to the effect that he was going to be found not guilty. If any such comment had been made I would have remembered that. The discussion concerned the assessment of the relative risks in deciding whether or not to present any evidence. I faithfully translated what was said by the appellant and his Counsel to and from Cantonese.

Regarding paragraph 32, after the appellant decided that he would not give or call evidence, his Counsel prepared the hand-written document which is annexed to the affidavit. I faithfully translated that document into Cantonese for the appellant. He signed the document after I translated it to him and I witnessed that signature. I did not give him any advice. Again I cannot comment on his state of mind but nothing was said to the effect that if he did not give evidence he would not be convicted. The conversation up to that point had been about assessing the risks inherent in the decision whether or not to give or call evidence.

[11]              It is apparent, as Mr Dacre acknowledged, that if there was a misunderstanding as the appellant asserts, it was not as the result of the advice of counsel. The written instructions must reflect the advice of counsel who prepared them. They clearly record the risks of conviction.

[12]              We have been given no basis for considering that the advice of counsel was not proper advice in the circumstances. The appellant’s denial of involvement was already before the jury in the form of a videotape of his police interview. Counsel obtained written instructions in accordance with his advice. The appellant knew  what instructions he was giving. That those instructions were given because of a misplaced assumption that the advice constituted a guarantee of acquittal (as the appellant asserts) cannot detract from the fact that the instruction was given in accordance with counsel’s advice on his assessment of the preferred trial strategy.

[13]              The law on these issues is well settled. The test is whether the conduct of the defence can be said to have led to a miscarriage of justice or at least a real risk that the conviction constituted a miscarriage of justice: see R v Quinn [1991] 3 NZLR

146. In order to reach that threshold an appellant must demonstrate fundamental mistakes and not merely point to decisions later regretted in light of the outcome of the trial: see R v Pointon [1985] 1 NZLR 109. The appellant’s affidavit does not demonstrate that this was one of those rare cases in which the interests of justice demand a retrial. The appeal against conviction is dismissed.

Sentence

[14]              The Judge sentenced both the appellant and Mr Wu at the same time. He explained the difficulty in assessing the respective involvement of each. He said:

I suspect the Crown is probably correct when it says that the sheer size of the importation suggests persons other than you were involved in this importation. You of course are not charged with importation. Whatever your role, you had important parts to play in a venture which was importing a large amount of cocaine with a high degree of purity, and I accept, a quite high street value. The Crown has submitted that you Mr Wu were as close as anyone can get to the importing. You picked up the parcel and took it to Mr Yee.

…

On my assessment of your respective roles I find Mr Wu more culpable than Mr Yee but I still need to start for both of you at a term somewhere within the tariff range suggested by the Crown. To the extent that I can take into account personal circumstances, I fix the starting point for Mr Yee at eight years. In respect of Mr Wu, I fix the starting point at nine years.

[15]              The Judge reduced Mr Wu’s sentence to acknowledge a guilty plea (albeit very late and in the face of a strong Crown case) and sentenced both men to imprisonment for eight years.

[16]              We too find it difficult to assess the culpability of the appellant. Both in relation to that of Mr Wu and more generally. Given the quantity and purity of the drug and the proximity of the possession to the importation, the two co-offenders were either high in the distribution chain or simply conduits acting in the nature of couriers for others. In the absence of disclosure the Judge was not obliged to minimise the possible roles played by the offenders.

[17]              The appellant was found guilty as a party to a serious offence involving a large amount of a class A controlled drug. We are not persuaded that the sentence imposed was not within the range available to the Judge. The appeal  against sentence also is dismissed.

Solicitors

Crown Solicitor, Auckland