CHAI v R [2019] NZCA 628

CHAI v R [2019] NZCA 628 [4 December 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA268/2019[2019] NZCA 628BETWEEN HOOI KEAT CHAIAppellantAND THE QUEENRespondentHearing: 19 November 2019Court: Collins, Brewer and Gendall JJCounsel: P E Dacre QC for AppellantB D Tantrum and J T Parry for RespondentJudgment: 4 December 2019 at 12 noonReasons: 10 December 2019 at 10.00 amJUDGMENT OF THE COURTA The appeal against conviction on charges 13 and 14 is allowed.B The conviction on charges 13 and 14 is quashed.C A judgment of acquittal is entered with respect to charges 13 and 14.D The appeal against conviction on the remaining charges is dismissed.E The appeal against refusal to grant a discharge without conviction isdismissed.F The appeal against sentence is allowed in part.G A sentence of six months' home detention expiring on 5 December 2019 issubstituted for the sentence imposed of seven months' home detention, butotherwise the post-detention conditions are to remain.____________________________________________________________________REASONS OF THE COURT(Given by Gendall J)Introduction[1] Following a jury trial before Judge P J Sinclair in the District Court at Aucklandon 8–12 October 2018, the appellant was found guilty of:(a) one charge of without reasonable excuse supplying a document to animmigration officer (a work visa/permit application) knowing it wasfalse or misleading in a material respect in breach of s 142(1)(c) ofthe Immigration Act 1987 (at trial and in this judgment referred to ascharge 8); and(b) five charges of producing a work visa (on 15 August 2009,8 January 2010, 21 May 2010, 27 March 2011 and 28 August 2011respectively) knowing it to have been obtained fraudulently in breachof s 142(1)(d)(ii) of the Immigration Act 1987 and s 345(1)(b) ofthe Immigration Act 2009 (at trial and in this judgment referred to ascharges 9, 10, 11, 13 and 14).[2] On 6 June 2019 the appellant was sentenced on these charges to seven months'home detention with six months' post-detention conditions.1 His application fora discharge without conviction was refused.[3] The appellant appeals his convictions and sentence.[4] The grounds for his appeal against conviction are:(a) the jury was placed under undue time pressure to reach verdicts;(b) the jury was misdirected in relation to charges 13 and 14;(c) the verdicts are inconsistent with each other. Specifically:1 R v Chai [2019] NZDC 12539.(i) The not guilty verdict on charge 6 is inconsistent with the guiltyverdicts on charges 8, 9, 10 and 11; and(ii) The not guilty verdict on charge 12 is inconsistent withthe guilty verdicts on charges 13 and 14.[5] With respect to appellant's appeal against his sentence of home detention,this sentence has a little over a month remaining. As such, the appellant seeks onlythat a shorter sentence of home detention be imposed. He also appeals againstthe refusal to grant a discharge without conviction as he contends thatthe consequences of his convictions are out of all proportion to the gravity of thatoffending.[6] On 4 December 2019 we issued a results judgment with reasons to follow.These are those reasons.2Factual background[7] The appellant, a Malaysian national, arrived at the Auckland InternationalAirport on 29 October 2003 presenting a Malaysian passport in the name of Kok TongChai. Given that he was from a visa-free country the appellant was not required toobtain a visa prior to travel. He applied for and was granted a three-month visitor'spermit.[8] Later, the appellant obtained a further visitor's permit which expired on29 April 2004. On expiry of that permit he remained in New Zealand until hisdeparture on 19 June 2005.[9] On 14 October 2005 the appellant changed his name by deed poll toHooi Keat Chai and was issued a new passport in that name.2 Chai v R [2019] NZCA 615.[10] Soon after that, on 21 November 2005, the appellant arrived at AucklandInternational Airport and presented his new passport. He applied for and was granteda visitor's permit for three months.[11] On 13 February 2009, 26 February 2009, 10 September 2010 and also21 September 2010 the appellant submitted Work Permit Essential Skills applicationsto Immigration New Zealand. A reference letter from a Malaysian company, Seng AikConstruction and Renovation stating periods when he was employed by that companywas submitted with each application.[12] Between 21 November 2005 and 11 July 2014, the appellant submitteda number of visa/permit applications including an application for permanentresidence. Permanent residency was granted to the appellant on 28 August 2015.[13] Over this time span the appellant had travelled to Malaysia on a number ofoccasions and presented his passport and visas to Immigration New Zealand on hisreturn.Charges[14] The Crown charged the appellant with:(a) 10 charges of providing false or misleading information toan Immigration Officer, either in a visa application or in a documentaccompanying a visa application (the false and misleading charges);and(b) 13 charges of producing an immigration document (for example a workvisa at the border upon entry) knowing it to have been obtainedfraudulently (the producing charges).[15] At his trial, as we have noted, the appellant was found guilty by the jury on sixof these charges, being charges 8, 9, 10, 11, 13 and 14. Details of these charges are:(a) Charge 8 — provision of false or misleading information(a) On 26 February 2009, while in New Zealand on a work visa,the appellant submitted a Work Permit Essential Skills application toImmigration New Zealand at Auckland.(b) In section F3 of that application the appellant stated that he had workedas a contract tiler in Malaysia for Seng Aik Construction andRenovation from 1 February 2001 to 31 May 2004. It further specifiedthat he then worked for the same company as a site supervisor from1 June 2004 to 30 June 2005.(c) This information was false. From 29 October 2003 to 19 June 2005 theappellant had been living in New Zealand under the name Kok TongChai, he having changed his name by deed poll to Hooi Keat Chai on14 October 2005. The appellant had entered New Zealand on29 October 2003 on a visitor's permit which expired on 29 April 2004and he had lived unlawfully in New Zealand until his departure on19 June 2005.(d) In this 26 February 2009 application, the appellant had signedthe "Declaration" section of the application confirming he had"provided true and correct answers to the questions in this form".Immigration New Zealand approved the application.(b) Charges 9, 10, 11, 13 and 14 — producing a fraudulently obtained visa(a) Between July 2009 and February 2012, the appellant had departedNew Zealand for Malaysia on five separate occasions. Then, betweenAugust 2009 and December 2011, the appellant had also onfive occasions arrived back at Auckland International Airport and, oneach occasion, he presented to an immigration officer his Malaysianpassport in the name Hooi Keat Chai.(b) His passport contained a work visa previously issued as a result ofthe appellant providing false or misleading information to ImmigrationNew Zealand in his application. Charges 9, 10, 11, 13 and 14, allinvolved allegations that he had produced a work visa knowing it tohave been obtained fraudulently.[16] The Crown maintains there was an element of linkage between the charges inthat the producing charges all followed a false and misleading charge. If the jury foundthe appellant guilty on a false and misleading charge, they would have found that hehad obtained the visa fraudulently and it would follow that his production of that visaat the border would be done with knowledge of that fact.[17] The jury returned a verdict of guilty on only one false and misleading charge(charge 8). This related to the appellant including false work history dates on a workvisa application form. Verdicts of guilty were also reached on three producing chargesrelating to the three times he entered the country using that visa which were charges 9,10 and 11.[18] The jury also returned guilty verdicts on the two further charges of producinga work visa (charges 13 and 14) but before us the Crown noted that these chargesrelated to a different visa. A false and misleading charge had been laid by the Crownwith respect to the application form for that visa (charge 12) with the false ormisleading particular identified being the appellant's failure to disclose his change ofname. He was found not guilty on charge 12.[19] The appellant, however, was found not guilty by the jury of all the charges hefaced relating to not disclosing that his name had been changed by deed poll. Verdictsof not guilty were also returned on all the remaining producing charges which relatedto producing residence visas or permanent residence visas.Conviction appeal groundsGround 1 — Undue time pressure on the jury[20] Under this ground the appellant maintains the jury was placed under unduepressure to reach verdicts. It is said this pressure arose in the context of the Judge not:(a) discharging the jury or the foreperson on the Friday after being advisedthat the foreperson would not be available to deliberate the followingMonday and did not address this issue with the jury; and, alternatively,(b) including in a majority direction that the jury were under no timepressure to reach verdicts.3[21] The appellant's trial had been set down for five days commencing onthe Monday of that week. On the Friday the jury retired at 2.10 pm after the Judgehad concluded her summing up. During the trial, Ministry of Justice staff atthe District Court who were members of the Public Service Association (PSA) unionwere participating in industrial action which included a "work to rule" approach towork hours. This involved working only to contractually prescribed hours, finishingthe work day at 4.45 pm and not working any overtime. The Registrar involved in thisparticular trial was a PSA member so was not available after 4.45 pm. The trial Judgewas conscious of this. She discussed with counsel the possibility of continuingthe trial the following week if the jury had not returned verdicts by 4.45 pm onthe Friday. It seems this was feasible and suitable to both Crown and defence counsel.When discussing this issue with counsel the Judge commented that it was better thatthe jury were not informed of this difficulty earlier to avoid them hurrying with theirdeliberations.[22] At 4.43 pm the Judge asked the jury to return and she explained the situation.Her comments made it clear to the jury that the ordinary approach would be to givethem a choice between continuing to deliberate that evening or resuming on3 Hastie v R [2012] NZSC 58, [2013] 1 NZLR 297.the following Monday. She made it clear at that point that the industrial action wasthe only reason they were not given that choice.[23] The foreperson of the jury then raised in Court the fact that he was not availableon the following Monday due to work commitments. An exchange occurred betweenthe Judge and the jury. All members of the jury, other than the foreperson, wereavailable to continue deliberating on the following Monday morning. The Judge madeclear to the jury that that they could continue deliberating on the Monday morningwithout the foreperson.[24] In the meantime, the Court had managed to locate a non-PSA Registrar whowas available to allow the jury to continue deliberating on that Friday evening.The Judge informed the jury of this at 5.19 pm. The jury decided to continue theirdeliberations. They were also given the option of dinner, which they declined.[25] The jury then continued deliberating for a further hour before asking a questionwhich indicated they had reached agreement on some charges but not others.[26] By this time the jury had been deliberating for close to four and a half hours.The Judge considered, with the agreement of both counsel, that a majority directionought to be given. She did this at 6.44 pm.[27] In her majority verdict direction, the Judge informed the jury that even if theywere agreed 11-1 that was not the end of the matter. They needed to be confident thatthey could not reach unanimity and had to assure the Court of this confidence.[28] Shortly after the majority direction was given, the jury returned with a questionregarding false evidence which is the subject of the second ground of appeal.Discussions regarding this question occurred in chambers between the Judge andcounsel and the question was answered at 7.52 pm.[29] The Jury then continued deliberating for almost another hour and the verdicts,which were unanimous on all charges, were ultimately delivered at 8.47 pm.[30] Majority verdicts in criminal cases are provided for in s 29C of the Juries Act1981. If a jury has been deliberating for more than four hours, or such longer periodas the Judge may consider reasonable given the nature and complexity of the case, andthe jury has not reached a unanimous verdict with the foreperson stating in open courtthere is no probability of this occurring, then subject to an appropriate direction beinggiven by the Judge, the Court may accept a majority verdict.[31] It is clear that a jury is not to be placed in a position where it feels under unduepressure to reach a verdict because, for example, a retrial is possible.4 Enquiries ofa jury as to progress may be made. But the jury needs to be informed that theseenquiries are not intended to hurry them up and they should not feel themselves underany pressure to return a verdict. Similarly, where a jury has deliberated until late inthe day, the Judge must ensure that the jury are aware they may cease deliberationsovernight and resume the following day.5[32] The appellant contends here that the jury was placed under undue pressure toreach verdicts after the Judge did not discharge the jury or the foreperson when shewas advised that the foreperson would not be available to deliberate the followingMonday. In addition, it is claimed the Judge did not properly address this issue withthe jury. As an alternative, the appellant maintains that majority verdicts should havebeen taken or the Judge should have included in her direction a specific direction thatthe jury were under no time pressure to reach verdicts.[33] We are not persuaded by these submissions. There is nothing before us tosuggest this was a jury under pressure. We are satisfied too that the Judge properlyfollowed s 29C(2)(c) of the Juries Act in her majority verdict direction in ensuringthe jury were aware that they had not only to reach majority verdicts but also to beagreed that they were not going to reach unanimous verdicts. The jury finallydelivered their verdicts, which were all unanimous, over six and a half hours after theyhad commenced their deliberations. This six and a half hour period wasan unremarkable length of deliberation for a week-long trial involving many chargesand very document-heavy issues. We are satisfied that at no time did the Judge suggest4 R v Accused (CA87/88) [1988] 2 NZLR 46 (CA).5 Burgess v R [2017] NZCA 42 at [39].to the jury that there was any particular time pressure on their delivering a verdict.She had explained to them the possibility of continuing their deliberations onthe following Monday. Once the non-PSA Registrar became available, the jury haddecided to continue with their deliberations on the Friday, conscious that they hadother options available.[34] As we see it, the jury undertook a detailed deliberation as evidenced in part bythe second question it asked at 7.07 pm to which we refer below.[35] We reject the appellant's contention that the jury was placed under unduepressure to reach its verdicts within specific time limits and, further, that the trial Judgeshould have discharged them and the foreperson.[36] Although the Judge in her majority direction did not include a specific directionthat the jury were under no time pressure to reach verdicts, given all the circumstances,this could not be said to have placed undue pressure on the jury to deliver verdicts.[37] For all these reasons this first ground of appeal is dismissed.Ground 2 — misdirection on jury question[38] At 7.07 pm on the Friday evening of the trial the Court convened to addressa question received from the jury which relevantly asked:Can our verdict on a charge for producing a fraudulently obtained visa bebased on information we believe to be false evidence, even if it has not beenpreviously charged as a particular in the application for that visa?[39] The Judge's direction in response to this question was:As you are aware the production charges are linked to the supply charges butI do remind you that each charge needs to be considered in its own right.You must rely on an element of fraud or one of the particulars that has beenalleged in the supply charges and that you have heard in Court. You areentitled to consider all the evidence given during the trial but you need toisolate that evidence as it applies to each charge and application referred to.[40] Under this ground the appellant argues that the trial Judge misdirected the juryas to the "false evidence" which they could rely on.[41] Before us, counsel for the Crown conceded there is some uncertainty in thedirection given by the Judge. In particular:(a) it does not make it clear whether the verdicts are based on an unknownparticular or particulars; and(b) it is not clear whether the jury were required to be unanimous on whichparticular piece of information was the false information relied on.[42] Given this lack of clarity, and considering it along with the fact that the juryfound the appellant not guilty on charge 12 (which formed the basis of the Crown'sallegation of false information at trial being linked to charges 13 and 14), the Crownconceded that the jury's guilty verdicts on charges 13 and 14 are unsafe and should beset aside. The inconsistency in verdicts on charge 12, on the one hand, and charges 13and 14, on the other, are likely to be the result of the misdirection.[43] As a consequence, the Crown does not resist the appeal against conviction oncharges 13 and 14. An order quashing these charges and entering a judgment ofacquittal will follow.[44] We are satisfied, however, that it is not appropriate for this same reasoning tobe applied, as the appellant endeavours to do, with respect to the verdicts on charges9, 10 and 11. The jury had found the appellant guilty on charge 8 which related to hispersonally signing a visa application providing false and misleading statements.The application form was signed personally by the applicant knowing it was false.The verdict on charge 8 means that the jury were unanimous on the elements requiredfor charges 9, 10 and 11 involving false information. It is also possible that the jurymight have found more instances of false or misleading information but that does notrender the verdicts on these charges 9, 10 and 11 unsafe.[45] Further, we are satisfied the verdicts on charges 9, 10 and 11 are consistentwith the verdicts on the other charges and cannot be said to have resulted fromthe misdirection which the Judge gave in respect of the jury question noted above.[46] This second ground of appeal advanced by the appellant succeeds insofar asthe guilty verdicts on charges 13 and 14 are concerned which are to be quashed but itfails insofar as charges 8, 9, 10 and 11 are concerned.Ground 3 — incompatible verdicts[47] The appellant contends there are two instances of inconsistent or incompatibleverdicts:(a) the guilty verdicts returned on charges 8, 9, 10 and 11 (for submittingan application form containing false work dates and subsequentlypresenting the visa from that application at the border) are incompatiblewith the not guilty verdict on charge 6 (for submitting a work referenceletter together with the application for a work visa which containedfalse information); and(b) the guilty verdicts returned on charges 13 and 14 (for producinga fraudulently obtained work visa) are incompatible with the not guiltyverdict returned on charge 12 (for failing to disclose the appellant'schange of name in this corresponding visa application form).[48] Where no reasonable jury could, on the evidence properly available, havearrived at different verdicts on different charges, a resultant conviction may beregarded as unreasonable and liable to be set aside under s 232(2)(a) of the CriminalProcedure Act 2011.6 The question may be described as whether an acquittal on oneparticular charge renders a guilty verdict on another unsafe in the sense thatno reasonable jury could have arrived at different verdicts on the two different charges.Inconsistent verdicts may be unreasonable when the evidence relating to one charge isso wound up with the evidence on the other that it is not logically separable. The onusis on the appellant to establish that inconsistency in the respective verdicts.76 B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [24].7 R v Wong [2009] NZCA 440 at [27].[49] Turning now to the first instance of incompatibility submitted by the appellant,we find that the appellant has not satisfied the onus on him to establish anyinconsistency for the following reasons:(a) At trial the appellant's evidence had been that the work reference letterhad been obtained by his immigration advisor, Frankie Wong, and hehad not seen it. If the jury believed that the appellant had not seenthe reference letter which accompanied his application form, then theycould quite properly have returned a verdict of not guilty on charge 6.(b) On charge 8, however, the false or misleading information wasprovided in the form itself. Importantly, the form had been signed bythe appellant.(c) The verdict of not guilty on charge 6, together with the verdict of guiltyon charge 8, can be properly explained by the jury believingthe appellant's evidence that he had not seen the work reference letter(or being left with a reasonable doubt on this) but not believing hisevidence that he had not seen the incorrect dates on the form he signed.[50] As to the second submitted incompatibility relating to the guilty verdicts oncharges 13 and 14, we need say nothing further on this given the respondent'sconcession and our conclusion above that these verdicts must be set aside on the basisof the Judge's direction in response to the jury's second question.Appeal against sentence[51] Following his jury trial, the appellant was sentenced to a period ofseven months' home detention expiring on 5 January 2020, with six months' postdetention conditions.88 R v Chai, above n 1, at [24].[52] The appellant advances two submissions on his sentence appeal:(a) given that his home detention sentence is almost complete it is notpractical to make any submission other than this sentence should bereduced to a shorter term of home detention; and(b) he applies for a discharge without conviction on the basis thatthe consequences of a conviction are out of all proportion to the gravityof the offending and in the alternative a non-custodial sentence shouldbe imposed.[53] In response, the Crown accepts that if, as we have found, the appellant'sconvictions on charges 13 and 14 are to be quashed, a small reduction in the homedetention sentence of one month should be allowed. The Crown says thatthe appellant's appeal against a refusal of discharging him without conviction,however, should be dismissed.[54] As to the first aspect, we are satisfied that a sentence of home detention wasappropriately imposed in the District Court and this remains the appropriate outcomewith a reduction for the change in the convictions remaining against the appellant.The end sentence imposed in the District Court was within range and, given otherauthorities, might even be seen to be generous.9[55] In all the circumstances here, we are satisfied that the appropriate reduction inthe appellant's home detention sentence is one month which would have that sentenceconcluding on 5 December 2019. An order to this effect is to follow.Appeal against refusal of a discharge without conviction[56] Turning now to the appellant's appeal against refusal to discharge him withoutconviction, we are satisfied that this must fail. The consequences of the appellant'sconvictions here are not out of all proportion to the gravity of his offending.109 Ministry of Business, Innovation and Employment v Prasad [2006] NZDC 26534; Pitts vDepartment of Labour HC Christchurch CRI-2011-409-104, 16 November 2011.10 Sentencing Act 2002, s 107.[57] As to the gravity of the remaining offences for which the appellant is convicted,these offences involve deliberate deception of immigration authorities and areinherently serious as reflected by the maximum penalty on each charge of seven years'imprisonment. In Lee v Department of Labour, Stevens J noted that:11Whatever form the fraudulent activity may take, be it in relation to passportsor qualifications, or the concealment of true identities, it is to be viewedseriously by the Courts.[58] The appellant's offending here is serious. This is reflected in the end sentenceimposed by the District Court, being one of home detention, as the most restrictivesentence short of imprisonment.[59] We turn now to consider the consequences to the appellant of a conviction.On this, the Court needs to be satisfied that there is a "real and appreciable risk" thatthe identified consequences will occur.12[60] In cases such as this where an offender has alleged adverse consequences totheir immigration status in New Zealand, a clear line of authority has established thatthe courts are not to usurp the role of the immigration service to decide what effecta conviction should have.13[61] Any effect on the appellant's immigration status is a matter best left toImmigration New Zealand.[62] The appellant also endeavours to argue that consequences of a conviction willflow for his business. In an affidavit before the District Court from Jason Chooi, dated10 May 2019, the adverse consequences which the appellant's company has alreadyendured as a result of the publicity about the appellant's charges are set out. Many ofthese suggested adverse consequences on which the appellant relies have alreadyoccurred, however. It is hard to see now how they could be regarded as an ongoingdirect or indirect consequence of a conviction.11 Lee v Department of Labour HC Auckland CRI-2007-404-126, 9 July 2007 at [31]12 DC (CA47/2013) v R [2013] NZCA 255.13 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at[14] (and the authorities cited therein).[63] Lastly, in conducting the balancing exercise as to whether the direct andindirect consequences of the appellant's convictions are out of all proportion tothe gravity of his offending, we are satisfied these are some way from meetingthe threshold test. The appellant's offending is serious and the impact of convictionsare likely to be no more than the ordinary consequences of criminal offending.[64] The appellant's appeal against refusal of a discharge without conviction isdismissed.Result[65] The appeal against conviction on charges 13 and 14 is allowed.[66] The conviction on charges 13 and 14 is quashed.[67] A judgment of acquittal is entered with respect to charges 13 and 14.[68] The appeal against conviction on the remaining charges is dismissed.[69] The appeal against refusal to grant a discharge without conviction is dismissed.[70] The appeal against sentence is allowed in part.[71] A sentence of six months' home detention expiring on 5 December 2019 issubstituted for the sentence imposed of seven months' home detention, but otherwisethe post-detention conditions are to remain.Solicitors:Crown Solicitor, Auckland for Respondent