The Queen v Wong
[2007] NZCA 280
•6 July 2007
IN THE COURT OF APPEAL OF NEW ZEALAND
CA329/06
[2007] NZCA 280THE QUEEN
v
ALEX KWONG WONG
Hearing:12 June 2007
Court:Ellen France, Ronald Young and Keane JJ
Counsel:J Haigh QC and B H McCarthy for Appellant
M F Laracy for Crown
Judgment:6 July 2007 at 10 am
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS OF THE COURT
(Given by Ellen France J)
Introduction
[1] The appellant was convicted after trial of the following charges:
(a)Importing a class A controlled drug, methamphetamine, on two occasions (8 May and 8 July 2004);
(b)Supplying a class A controlled drug, methamphetamine (8 May 2004);
(c)Possession of a class A controlled drug, methamphetamine, for supply (8 July 2004); and
(d)Money laundering.
[2] The appellant was acquitted of two further charges of importing and supplying methamphetamine in April 2004. His co-accused were acquitted on all charges. In terms of the money laundering charge, the appellant was charged together with his father, De Shan Huang (Mr Huang Snr), but because of difficulties with representation, Mr Huang Snr was tried separately. He was subsequently acquitted at trial.
[3] The appellant was sentenced to a term of 17 years imprisonment with a minimum period of imprisonment of eight years.
[4] The appellant appeals against his convictions.
Factual background
[5] In July 2004, a shipment of five cartons of lava lamps from China arrived at Auckland International Airport. The cartons were addressed to a property on the North Shore. The name of the contact person on the way-bill was shown as Chi Wai Fung, one of the appellant’s co-accused. The cartons were intercepted by Customs. One carton was delivered and was accepted for delivery by another of the appellant’s co-accused, Sheng Song, at his home. After that carton had been sent on its way, Customs officers examined the remaining four cartons in more detail. They found a substance suspended in the liquid in the lava lamps. It was subsequently confirmed that methamphetamine was dissolved in the liquid in the lava lamps. (The estimated yield from the liquid was approximately 8.9 kilograms of methamphetamine hydrochloride.)
[6] A controlled delivery of the remaining four cartons was then effected. Delivery of the four boxes was again accepted by Sheng Song.
[7] After further investigation it was discovered that two earlier shipments of lava lamps had been made in April and May 2004. Those shipments had been delivered to an address in Northcote, Auckland. Mr Song agreed he had accepted and signed for the delivery of those packages.
[8] The Crown case at trial was that all three shipments were part of an ongoing importation operation in relation to which the appellant was the senior member and the other co-accused, Chi Wai Fung and Harry Yu (in respect of the 8 July importation) were the “middlemen”.
[9] The money laundering count alleged that between 23 April 2004 and 8 July 2004, together with Mr Huang Snr, the appellant laundered $150,000 in cash, which was the proceeds of a serious offence knowing that it was the proceeds of a serious offence.
Grounds of appeal
[10] The grounds of appeal as filed were extensive but at the hearing a number of grounds were formally abandoned. The remaining grounds can be grouped as follows:
(a)Rulings as to severance. The appellant challenges two rulings in which Winkelmann J, the trial Judge, refused to sever the money laundering charge.
(b)Admissibility rulings. The complaint under this head relates to the ruling of 23 May 2006 admitting the evidence of the alleged money laundering of Mr Huang Snr.
(c)Unreasonable and inconsistent verdicts. It is said, first, that having regard to admissible evidence only, a jury acting reasonably could not have convicted the appellant and at the same time acquitted the co-accused. Second, the same argument is made in relation to the appellant’s acquittals on two counts. Finally, the appellant says the verdicts cannot be supported having regard to the evidence or are unreasonable.
(d)Directions to the jury relating to the financial evidence. The appellant says there should have been a direction about the available inferences to be drawn from this evidence.
(e)Ruling that the trial was to proceed with ten jurors. It is said that given the potential for prejudice and the objection by defence counsel, the trial should have been aborted.
Severance and admissibility
(i) Rulings
[11] The grounds based on severance and admissibility are interlinked and so we deal with them together.
[12] The issue of severance was first raised in a judgment of Williams J of 1 May 2006 in the context of various pre-trial applications: HC AK CRI.2005‑004‑15296 CRI.2005-004-6016. Those applications included one by Mr Huang Snr for a discharge under s 347 of the Crimes Act 1961. In that context, Williams J observed at [15] that “the review of submissions” shows “little if any objection” could be made to the money laundering count in the separate indictment against Mr Huang Snr and his son jointly being joined with the money laundering count against the appellant and his father in the indictment against the other accused. The Judge continued:
[16] The real question is whether the resultant joint money laundering count against father and son should be severed from the indictment against the four accused for the two earlier importations and possession for supply charges.
[17] Upon reflection, it appears that there can be little reason to sever the money laundering count against Messrs Huang and Wong from the balance of the indictment.
[13] The Judge noted that at that stage there was no application to sever (at [18]).
[14] The next relevant step is the oral judgment of Winkelmann J of 23 May 2006 in which the Judge ruled that evidence as to financial analysis undertaken by the police in relation to the appellant and his father was admissible: HC AK CRI 2005‑4-15296. At [32] the Judge recorded the submission for the appellant that this evidence would be highly prejudicial against him because “there will be evidence that his father has entered into significant transactions and received significant amounts of money for which there is no apparent explanation, according to the Crown’s analysis of his father’s records”.
[15] The Judge’s conclusion was as follows:
[33] I am however satisfied that there is sufficient evidence to establish a significant intermingling of the financial affairs of father and son and the Chopstix Trust [a Huang family trust], such that the evidence in relation to Mr Huang has real probative value as to the sources of income over the relevant period for Mr Wong. I accept there is some prejudice to Mr Wong in that the case against him will include evidence of his father’s financial dealings, and on his case he has no involvement in those dealings. That undoubtedly will be the defence position which can be pursued through cross-examination of Mr Edgar if necessary.
[16] It is important to record the next passage from the judgment as the appellant places great weight on it. At [34] the Judge said:
I am satisfied that judicial direction as to the care to be taken in relation to the drawing of inferences from the evidence of Mr Edgar and in relation to Mr Huang’s personal dealings will be sufficient to meet any other illegitimate prejudice flowing from such evidence.
[17] That ruling was followed the next day by an application on behalf of Mr Wong for severance. In her ruling (No 1) of 24 May 2006 the Judge rejected the appellant’s submissions which were to the effect that this evidence had little probative value and was highly prejudicial.
[18] The Judge’s conclusion was that the financial affairs of father and son were intermingled. She said the evidence:
[9] … [D]oes tend to show an intermingling of the financial affairs of Mr Wong, Mr Huang and the Trust, and therefore that to prove Mr Wong’s income it is necessary to prove the income and expenditure of Mr Wong, Mr Huang and the Chopstix Trust. I am also satisfied that evidence of an inflated lifestyle with no apparent means of support is probative and admissible in relation to the drug offending charges. I am therefore satisfied that the income and expenditure evidence is admissible in relation to all counts.
[19] The Judge did not consider the prejudicial effect of this evidence was any greater because Mr Huang was not to stand trial with Mr Wong. A direction would be sufficient to deal with the matter. Because the financial evidence was relevant to all charges against Mr Wong, the Judge accepted the Crown submission that it would cause unnecessary duplication of evidence were this count to be severed.
[20] The Judge was not satisfied there was a real risk of prejudice to the appellant if the count proceeded together in the same indictment with the other counts. That procedure would, however, avoid unnecessary duplication of evidence and so the application for severance was declined.
[21] In her later ruling ((No 6) of 2 June 2006) on the renewed application for severance, Winkelmann J was satisfied that there was no change to the grounds for the application and that the reasons for declining it still applied.
(ii) Submissions
[22] The essence of the appellant’s submissions on this point is that illegitimate prejudice flowed to the appellant from the failure to sever the money laundering count and from the admission of evidence about Mr Huang Snr’s financial affairs. The appellant says this prejudice could not be met by judicial direction, but, in any event, no direction was given, although the Judge had indicated she would direct on the point.
[23] The illegitimate prejudice is said to arise from the impact of the evidence about Mr Huang Snr’s finances. It was possible, the appellant argues, for the Crown to separate out the evidence about the appellant’s finances from that relating to his father. There would therefore have been no resulting inconvenience or duplication on severance because a separate trial was necessary for Mr Huang Snr in any event. If this count had been severed, the appellant submits, there would have been no evidence about Mr Huang Snr’s financial affairs.
(iii) Discussion
[24] The relevant evidence came, first, from Ian Reid who worked as an investigator at the Sky City Casino. Mr Reid gave evidence of betting at the casino using Mr Huang Snr and the appellant’s “action cards”. An action card is part of a loyalty scheme operated by the casino. It records the holder’s gaming activity and entitles the holder to various benefits which are linked to use of the card.
[25] Mr Reid said that over the period 31 August 2000 to 13 October 2003, the records of the appellant’s card showed over $1,400,000 had been spent at the casino with the customer ultimately being down some $110,000. There were similar figures related to the father’s card for the period 17 September 2000 to 16 September 2004.
[26] Other relevant evidence came from Adam Edgar who was a financial analyst with the New Zealand police. He gave evidence analysing sources of income and expenditure for the appellant’s parents over the period 23 April 2004 to 17 September 2004. His conclusion was that over the period April to July 2004 which was the period covered by the importations, there was at least an unexplained expenditure of $150,000.
[27] Further financial evidence came from Clement Chak. He was the accountant for all three Huang family members. He began working for them in 2000 and prepared tax returns for each individual and for the family business in which all three worked, the Chopstix restaurant/takeaway bar.
[28] Finally, Mr Huang Snr gave evidence for the appellant’s defence. He disputed the accuracy of his Sky City Casino record and claimed he had made substantial amounts of money. He also said that he had saved income from other unspecified business and had kept his money at home. He was unclear if this had been notified to his accountant.
[29] We see no error in the approach taken by the Judge to either severance or admissibility. We accept the Crown submission that it is difficult to identify the prejudice that is alleged to flow to the appellant from the admission of what is plainly relevant evidence.
[30] The first point is that the charge is one of jointly laundering the money with Mr Huang Snr. Given that their financial affairs were intermingled, evidence about Mr Huang Snr’s financial situation was accordingly always going to be relevant.
[31] The second point is that, as the Judge found, evidence of an unexplained inflated lifestyle was relevant to the importation and supply of drugs, especially given that the allegation was of a course of the same offending. In this context, the appellant is particularly critical of the fact that the evidence of Mr Reid covered casino spending prior to the period covered by the indictment. However, as the Crown submits, that was relevant to show that Mr Huang’s explanation for the spending, that is, wins at the casino, was not plausible.
[32] Third, as the Crown submits, the reality was that there was only one set of financial affairs. The evidence was that the appellant did not have a bank account solely in his name. All of his bank accounts were joint accounts with his parents. It followed that all three account holders had access to the accounts although the evidence of Mr Huang Snr, to some extent supported by Mr Edgar, was that Mr Huang Snr controlled the bank account.
[33] Finally, while the Judge indicated that a direction would be given, this is not a case where in our view there was any special use to which the evidence could or could not be put. The need therefore for a particular direction was not apparent. Mr Haigh focused in this respect on the need for a direction about the risks of drawing inferences from this evidence. He said that the jury had to be told that it needed to be sure it was a joint account, that the appellant was involved in the operation of the account, and that the source of relevant funds was drug money.
[34] It is plain from the summing up as a whole that the jury were appropriately directed in these respects. There was an orthodox direction as to the drawing of inferences and indeed the appellant has no criticism of that direction. Similarly, orthodox directions as to the approach to expert evidence were given. In that context, when Winkelmann J referred to the evidence of Mr Edgar about banking records, various invoices, tax returns and casino records as to gambling losses, the Judge pointed out that the jury was free to consider those records but went on to say:
[101] … When you do so, remember the evidence including cross‑examination you have heard in relation to those records. You will recall that counsel for Mr Wong strongly attacked the value of the exercise undertaken by Mr Edgar and the reliability of casino records when he cross-examined Mr Reid. You also heard Mr De Shan Huang’s evidence about how he says he could manipulate his points on that action card which is recorded in the casino records.
[35] In addition, in the context of summarising the Crown case on the money laundering charge, the Judge referred at [160] to the casino records and reminded the jury that the reliability of the records was the subject of challenge. She referred the jury to the cross-examination of Mr Reid on the point and to Mr Huang Snr’s evidence.
[36] Importantly, when it came to the money laundering charge, the Judge made the point that if the jury were satisfied based on the expenditure of Mr Huang Snr that there was an unexplained source of income then the jury would need to be satisfied that the appellant had somehow assisted his father to deal with that money. Winkelmann J continued:
[82]…[I]f you were satisfied based on the expenditure of De Shan Huang that there was an unexplained source of income, then you would need to be satisfied that Mr Wong had somehow assisted his father to deal with that money. The Crown’s case is that it was Mr Wong who was involved in the offending, so the money would need to flow from Mr Wong to De Shan Huang. The Crown must prove therefore not only that De Shan Huang had unexplained income, but also that Mr Wong was the source of that income, and further, of course that he in turn obtained the money from a serious offence and knew that that was the source of it.
[37] Finally, in summarising the case for the defence, the Judge had this to say:
[180] [Counsel for Mr Wong] submits however that the most fundamental failing is that there is no evidence connecting Mr Wong to the money his father had. There is no evidence of money flowing from Mr Wong to Mr Huang and Mr Huang gave evidence that the funds were all his. He also gave an explanation as to where the funds were from. He said they were funds that he had saved up from his business and kept in his hot water cupboard because he was holding back money from rent payments.
[38] The key point is that it was made clear to the jury that the focus was on the appellant and what he did. That point was sufficiently brought home to the jury. Accordingly, we conclude the jury was adequately and appropriately directed about the use of this evidence.
Unreasonable and inconsistent verdicts
(i) Verdicts unreasonable?
[39] The appellant relies on s 385(1)(a) of the Crimes Act 1961, namely, that the verdicts were unreasonable, or cannot be supported having regard to the evidence. In developing this submission, Mr Haigh said the verdicts are explicable only on the basis of evidence the admissibility of which is challenged by the appellant. This ground is accordingly linked to the earlier grounds relating to the money laundering/financial evidence.
[40] The appellant essentially says that the Crown case against him required the jury to draw a number of inferences when there was insufficient evidence from which to draw those inferences. For example, Mr Haigh points out there was no evidence the appellant made the telephone calls such as those to Hong Kong relied on by the Crown; no physical linking of the appellant to any shipment; and the appellant’s girlfriend also had access to the phones and SIM cards found in the appellant’s apartment.
[41] We accept the Crown submission that there was sufficient evidence for a properly directed jury to have convicted the appellant. The case was a circumstantial one but the necessary inferences were available ones.
[42] The key features of the case against the appellant were helpfully summarised by Ms Laracy in her submissions.
[43] The first of the planks of the Crown case was based on the appellant’s contact with Hong Kong. The Crown put the matter on the basis the “Hong Kong end” was in turn in contact with the consignor in China. At the time of the July importation there was a great deal of phone traffic between a cellphone linked to the appellant and Hong Kong and this increased after the boxes delivered to Mr Song’s address were intercepted.
[44] Second, the Crown pointed to the $10,000 cash found in the bag in the appellant’s apartment. The appellant said he had won this money at the casino but the evidence showed that over a number of months he had won only $1,500 at the casino.
[45] Third, the Crown relied on the contact between the appellant and Mr Fung and Mr Yu.
[46] Fourth, there was the telephone contact between a phone number linked with the appellant and a phone number referred to as “Albany pre-pay 1”. While the Crown did not know the identity of the person at the end of “Albany pre-pay 1”, the Crown relied on evidence from Mr Song about the importance of that phone number in the context of the importation.
[47] Fifth, as Winkelmann J said in the context of her judgment on applications made under s 347 of the Crimes Act for a discharge (reasons given 20 June 2006), there was evidence which if accepted by the jury would link the cellphone number used as the contact number for the contact person for the first two shipments to the appellant. The contact phone number given for the July shipment was a phone number referred to as “Lava lamp 2” for which the SIM card was at the time in the handset found by police in the appellant’s apartment. That SIM card was purchased at a shop down the road from Mr Huang Snr’s home. There was another SIM card used to call “Albany pre-pay 1”, Mr Fung and Mr Yu, which on 8 March 2004 was installed into the same handset. That SIM card was the number given by the appellant to police as his phone number.
[48] Finally, there was a draft text message on one of the phones in the appellant’s apartment which gave Mr Song’s address, and also, evidence that a text message had been sent from that phone to an overseas phone number on 4 April giving Mr Song’s address where the lava lamps had ultimately been delivered.
[49] The matters Mr Haigh raises such as the ability of the appellant’s girlfriend to access the phone were matters to which the appellant could point but do not make the inferences the Crown sought to have the jury draw speculative or unreasonable.
[50] As to count seven, the money laundering count, the primary submission is that there should have been severance. We have dealt with that.
(ii) Verdicts consistent with co-accused acquittals?
[51] This ground of appeal is brought on the basis that without the challenged evidence and rulings the evidence is largely identical against all accused. The appellant says the case was brought on the basis all four accused were inextricably linked to a carefully planned scheme. While each had a different role, each had attributable cell phones and SIM cards.
[52] The approach to be taken in relation to an appeal on the basis of inconsistent verdicts is set out in R v H [2000] 2 NZLR 581 (CA). At [27], this Court summarised the position as follows:
[A] guilty verdict which is apparently inconsistent with an acquittal might be held to be not “unreasonable” if:
· the verdict is not so inconsistent as to call for interference by an appellate Court (Archbold); or
· if the record contains evidence for a proper conviction and there is no need to defer to the acquittal (Supreme Court of Canada in Koury v R); or
· the innate sense of fairness and justice of the jury might properly have been applied in reaching the verdict of acquittal, for instance to avoid an unnecessary double conviction (King CJ in R v Kirkman, approved by the High Court of Australia in MacKenzie v R; see the related suggestion by Sir Francis Adams mentioned in Irvine).
[53] At [28] the Court said that the third approach was relevant because it was consistent with the wording of s 385(1)(a): “the appellant has not established that the verdict is unreasonable because a valid reason is available to explain the apparent inconsistency”. We consider that is the position in this case.
[54] We accept the Crown submission that the verdicts for the appellant’s co-accused are explicable on the basis that the Crown was not able to prove they had the requisite mens rea. This is apparent from a consideration of the evidence in relation to the co-accused.
[55] Mr Haigh places particular emphasis on the strength of the evidence in relation to Mr Fung. His name appeared on all three way-bills as the consignee. In terms of the May shipment, a copy of his passport was used at the China end of the chain. He also gave a police interview denying that he knew Mr Song when, at trial, there was no question he and Mr Song knew each other. There was communication between the two at key times.
[56] As against this, however, the copy of the passport assumed significance at trial and Mr Fung was able to point to evidence that he had not been in China at the relevant time and had not been there for the last ten years. Further, he kept a copy of his passport in the console of his car. Importantly also, Mr Fung gave a video interview in which he gave an explanation as to why he was not involved.
[57] Mr Yu was discharged under s 347 of the Crimes Act 1961 in relation to counts one to four. He was in a different position from the other accused with less telephone contact evidence relevant to him. The outstanding charges against him arose out of his purchase of a SIM card used in the phone called “Lava lamp 2” which was the phone used as the contact number for the July shipment.
[58] Against that, he went voluntarily to the police and gave his explanation for what had occurred. He had used his own phone and made no attempt to hide that.
[59] Finally, in terms of Mr Song, while the boxes were delivered to his address, they were unopened when police arrived. He had very little money and was plainly at the bottom of the chain on the Crown case. He gave evidence and gave an explanation for his actions.
[60] In our view, it cannot be said the difference in outcome is unreasonable. While the Crown alleges a joint enterprise, that does not necessarily mean all must stand or fall as a package. Indeed, as this Court observed in R v H at [28] there is a further consideration about the function of the jury which is directed to consider each count separately. Here, where different roles were alleged and the evidence varied, it was open to the jury to conclude that while the Crown had proved its case against the appellant it did not meet the requisite standard in relation to the co-accused.
(iii)Verdicts consistent with appellant’s acquittals?
[61] We accept the Crown submissions that the difference in the verdicts as between the counts faced by the appellant is explicable by the fact he was overseas at the time of the first, April, importation.
[62] This was a point focused on by counsel for the appellant at trial (not counsel on the appeal). The Judge in summing up summarised counsel’s address on this point at [164] as follows:
…He particularly emphasises that he was out of the country in Australia when the first importation came into New Zealand and you have exhibit AW which is a copy of Mr Wong’s travel movements over the relevant period. Mr Hart submitted to you that given what the Crown says is the significance of these shipments, it is most improbable that someone involved in drug importation would have been out of the country at the time.
[63] This ground of appeal also fails.
Directions to the jury
[64] The only ground pursued under the head is the submission that the Judge did not address the jury on the proper inferences to be drawn from the evidence of Mr Edgar as to the attribution of income and expenditure to the appellant. We have already addressed that matter.
Ruling trial to proceed with ten jurors
[65] Finally, the appellant challenges the Judge’s decision late in the trial (14 June 2006) to proceed with ten jurors.
[66] The first of the jurors was discharged by Winkelmann J on 13 June 2006. The trial, having been scheduled to run for two weeks, by that stage was into the fourth week with the Crown about to commence its closing address. This juror had two exams to sit in that week. Winkelmann J was satisfied in these circumstances, the juror was likely to be incapable of performing her duty and she was discharged. No issue, quite properly, is taken with that decision.
[67] The second juror was discharged on 14 June 2006 following an incident on her way to Court. The juror was spat at and verbally abused by a male who was an accused in another drugs trial being heard at the Court that week. For reasons we need not go into as they are unrelated to the trial and the appeal, this incident was particularly upsetting to the juror such that she felt intimidated. She too was discharged.
[68] In her ruling on 14 June 2006, the Judge said she was not satisfied there was any risk of prejudice to the accused or any reasonable apprehension of prejudice given the abuse directed at the juror was unrelated to the trial. The remaining jurors could (and were) directed that the matter was unrelated and to put it from their minds.
[69] The Judge placed some weight on the fact that the jury had been listening to the evidence and judicial direction for three and a half weeks. There had been no concern of any kind with the jury who had attended on time and conducted themselves properly.
[70] In terms of the discretion to proceed with ten jurors, Winkelmann J at [23] said she was satisfied that there were exceptional circumstances. The factors she identified were as follows:
Three weeks of evidence has been heard. The Crown has closed for one day. All that remains is for defence counsel to make their closing addresses, for me to sum up and the jury to retire to consider their verdicts.
[71] Section 374(4A) and (8) of the Crimes Act 1961 relevantly provides:
374Discharge of jury
…
(4A)The Court must not proceed with fewer than 11 jurors except in the following cases:
(a)If the prosecutor and the accused consent:
(b)If the Court considers that, because of exceptional circumstances relating to the trial (including, without limitation, the length or expected length of the trial), and having regard to the interests of justice, the Court should proceed with fewer than 11 jurors; and in that case –
(i)The Court may proceed with 10 jurors whether or not the prosecutor and the accused consent:
(ii)The Court may proceed with fewer than 10 jurors only if the prosecutor and the accused consent.
…
(8)No Court may review the exercise of any discretion under this section.
[72] This Court considered the inter-relationship between s 374(4A) and (8) recently in R v Rajamani CA140/06 20 December 2006. The Court accepted the Crown submissions that the appellant sought in that case to subvert s 374(8) and have the Court review the Judge’s discretion to proceed with ten jurors. The Court said at [17] that s 374(8) did not allow a reconsideration by an appellate Court of the grounds upon which the Judge reached his or her decision. But, subsection (8) did not “trump” the appellate court’s power to allow an appeal based on a substantial miscarriage of justice, R v Coombs [1985] 1 NZLR 318 (CA).
[73] The Court continued at [18]:
A substantial miscarriage of justice could occur if a trial proceeded with less than 11 jurors when there were clearly no exceptional circumstances. This would be a high threshold essentially requiring an appellant to establish no Judge could have rationally concluded exceptional circumstances existed. In such a case, there would be no jurisdiction to make the order to proceed with only 10 jurors since a fact essential to jurisdiction would be absent.
[74] The Supreme Court has granted leave to appeal from Rajamani on a number of issues including the effect of s 374(8) and so any further consideration of the effect of the relevant subsections should await that case: [2007] NZSC 23. In any event, we see no basis for any intervention by the Court in the present case. While not formally abandoning this ground, Mr Haigh accepted it was not the strongest point.
Result
[75] The appeal is dismissed.
Solicitors:
Swarbrick Beck, Auckland for Appellant
Crown Law Office, Wellington