SOLICITOR-GENERAL V HUANG HC AK CIV 2005-404-1538

SOLICITOR-GENERAL V HUANG HC AK CIV 2005-404-1538 9 August 2007IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2005-404-1538BETWEEN THE SOLICITOR-GENERAL OF NEW ZEALAND Applicant AND GANG HUANG (AKA ALEX KWONG WONG) Respondent AND YAN YAN SUI First Third Party AND DE SHAN HUANG Second Third Party Hearing: 1 August 2007 Appearances: M R Harborow for Applicant E Orlov for First Third Party F Deliu for Second Third Party Judgment: 9 August 2007RESERVED JUDGMENT OF RANDERSON J ON THE ADMISSIBILITY OF THE STATEMENT BY MOXUAN LIANGThis judgment was delivered by me on 9 August 2007 at 2.00 pm, pursuant to r 540(4) of the High Court Rules Registrar/Deputy Registrar Solicitors: Meredith Connell, PO Box 2213, Auckland Dennis J Gates, PO Box 222, Orewa Equity Law, PO Box 8333, Symonds Street, Auckland Copy To: G Huang, C/- Paremoremo Prison, AucklandIntroduction[1] The respondent was convicted after jury trial on several charges relating to the importation, possession and supply of methamphetamine in 2004. He was also convicted on a money laundering charge over the period April to July 2004. [2] The Solicitor-General is seeking a pecuniary penalty order against the respondent under the Proceeds of Crime Act 1991. He also seeks orders against two third parties under s 29 of that Act declaring that two motor vehicles registered in their names are available for enforcement purposes. The first third party is the girlfriend of the respondent and the second third party is his father. [3] When this matter came before me on 26 July 2007, the third parties objected to the admissibility of a statement taken by Detective Brennan from a witness who is now understood to be overseas. Counsel for the Solicitor-General was not informed of this objection until the morning of the hearing. I directed the Solicitor-General to file and serve a formal application for admission of that evidence under s 3 Evidence Amendment Act (No 2) 1980. [4] In accordance with my directions, the Solicitor-General has now filed a formal application with supporting affidavits seeking an order that the statement be admitted. [5] The previous law of evidence applies notwithstanding the commencement of the Evidence Act 2006 on 1 August 2007. That is so by virtue of s 5(3) of the new Act, because the hearing of the Solicitor-General's application under the Proceeds of Crime Act had commenced at the hearing before me on 26 July 2007, before the new Evidence Act commenced.The Disputed Statement[6] The statement relates to the purchase from the witness, a Mr Liang, of a Porsche motor vehicle registered in the name of the first third party on or about 10 June 2004. In his statement taken on 21 September 2004, Mr Liang states, inessence, that he won the vehicle at Sky City Casino and sold it three or four days later through an Auckland car yard. He says a Chinese gentleman paid him $90,000 cash for the vehicle, all in $100 notes. Detective Brennan has sworn that Mr Liang was shown a photo board and identified the respondent as the person who paid for the car. [7] The statement was taken at the Auckland District Court because an interpreter was needed and she was available there. It is signed by Mr Liang in Chinese characters and witnessed by Detective Brennan. For convenience, the entire statement is set out:Auckland District court 21/09/04 1.00 pm Moxuan Liang states: My full name is Moxuan Liang. I live at 57 Rangeview Rd, Mt Albert. Hm ph 09 846-6331, mob 021-410221. I am in New Zealand as a student on a visa until the end of the year. I attend a language school in Auckland City. I don't know the name, it is opposite a bungy site. I am 23 yrs old dob 21/12/1981. I am from Beijing, China. I have been in New Zealand 2 years. I am speaking to Detective Brennan about a Porsche Boxster I won from Skycity Casino. I won the Porsche at Skycity Casino either in May or June this year. I went straight to a yard to talk about the car and the price. They were prepared to pay me $80,000.00 for the car. That car was worth about $110,000.00. I did not accept there [sic] offer, I wanted more. I left the car at the car yard the whole time. I never took it. I sold it about 3-4 days after I won it. I don't know the person I sold it to, he was introduced to me through a friend of a friend, it came through word of mouth. I wanted between $90,000.00 to $100,000.00 for the car that person paid $90,000.00. I only met him once at the car yard.Q: When did he pay you. A: When he met me. Q: Was this before he saw the car. A: He came after the price had been negotiated, he looked at the car and okay'd [sic] it. Q: How did you negotiate the price. A: My friend acted as a go between. Q: How did he pay you. A: Cash. Q: What did the cash consist of. A: All $100.00 (one hundred) dollar notes. Q: What did you do with the money. A: I lost most of it at the casino, I lost it over 2-3 weeks. Q: Did you just keep the cash at home. A: Yes. Q: Can you remember whose name the car went under, when you sold it. A: It transferred to that person's name, I signed he signed and the car yard person dealt with the rest. He was there with a girl and my friend said the car was for the girl to practice [sic] with. I have never seen him before or had anything to do with him. I think I would recognise him again if I saw him. I am not sure. I could try. I did not get any receipts or documents for the car or from him. I did not give him any receipt for the money because he had the car. The dealership gave me card that's it. Description Male Chinese. Thin build, 1.76 – 1.78 metres. Short hair, dark about 30 years old. Female Chinese Thin buildSame age Long dark sleek hair, a little bit wavy. My friends name is Shumin. I don't know his surname. I know his phone number is 021-688766. (Signature of Moxuan Liang in Chinese characters) (Chinese characters) Sight translated by Kung Tina Cheung (Signature of Kung Tina Cheung) 21/09/04 Statement taken and signature witnessed by (Signature of Detective Sean Terrence Brennan) 1.35 pm.[8] Although there is no evidential basis to suggest that Mr Liang's statement has not been accurately interpreted, the interpreter, a Ms Cheung, has now sworn an affidavit in which she deposes to the accuracy of her translation of Mr Liang's statement and explains how it was "sight translated" by her.The Relevant Statutory Provisions[9] The Solicitor-General relied on s 3(1) Evidence Amendment Act (No 2) 1980 which relevantly provides:3 Admissibility of documentary hearsay evidence(1) Subject to subsection (2) of this section, and to sections 4 and 5 of this Act, in any proceeding where direct oral evidence of a fact or an opinion would be admissible, any statement made by a person in a document and tending to establish that fact or opinion shall be admissible as evidence of that fact or opinion if — (a) The maker of the statement had personal knowledge of the matters dealt with in the statement, and is unavailable to give evidence; or (b) The document is a business record, and the person who supplied the information for the composition of the record— (i) Cannot with reasonable diligence be identified; or (ii) Is unavailable to give evidence; or (iii) Cannot reasonably be expected (having regard to the time that has elapsed since he supplied the information and to all theother circumstances of the case) to recollect the matters dealt with in the information he supplied; or (c) In civil proceedings only,— (i) The maker of the statement had personal knowledge of the matters dealt with in the statement; and (ii) Undue delay or expense would be caused by obtaining his evidence.Submissions[10] Advancing the argument for the Solicitor-General, Mr Harborow relied on each of the three alternatives set out in s 3(1). He submitted that Mr Liang would have been entitled to give direct oral evidence of the facts contained in the statement. I accept that is so with the exception of the bolded part of the following statement:He was there with a girl and my friend said the car was for the girl to practice [sic] with. (emphasis added)[11] The reported statement of Mr Liang's friend is hearsay and Mr Liang would not have been able to give direct oral evidence of it. [12] Dealing with s 3(1)(a), I am satisfied that Mr Liang had personal knowledge of the matters in the statement and that he adopted the statement by signing it. He was therefore the "maker" of the statement: R v Hovell [1986] 1 NZLR 500 (CA). This was not in dispute. The thrust of the argument on admissibility was whether Mr Liang was "unavailable to give evidence". [13] Section 2(2) of the Act provides an exhaustive definition of when a person is "unavailable to give evidence" for the purposes of the Act:2 Interpretation (2) For the purposes of sections 3 to 8 of this Act, a person is unavailable to give evidence in any proceeding if, but only if, he— (a) Is dead; or (b) Is outside New Zealand and it is not reasonably practicable to obtain his evidence; or(c) Is unfit by reason of old age or his bodily or mental condition to attend; or (d) Cannot with reasonable diligence be found.[14] Mr Harborow relied on s 2(2)(b). There is no dispute that Mr Liang is outside New Zealand. A Constable Peat has sworn that, on 28 July 2007, he contacted the New Zealand Customs Service and the Department of Labour's Immigration Service. His enquiries revealed that Mr Liang arrived in New Zealand on 14 July 2003 and departed from this country on 13 May 2005. He has not returned. Constable Peat deposes that neither Customs nor Immigration hold any contact details for Mr Liang and neither do the New Zealand Police. [15] On the basis of that evidence, Mr Harborow submitted that Mr Liang was "unavailable to give evidence" because he was outside New Zealand and it is not reasonably practicable to obtain his evidence. Mr Harborow accepted that enquiries had not been made overseas but submitted that any such enquiries would be fruitless given that there is no information available to the police or other New Zealand authorities as to Mr Liang's whereabouts. No contact details for him are available and it is not even known in which country Mr Liang may presently be residing. For the same reason, invoking the Mutual Assistance in Criminal Matters Act 1992 would also be likely to be fruitless or impracticable. [16] On this point, Mr Orlov for the first third party submitted that the police should have anticipated that Mr Liang would leave the country given that he stated he was on a student visa only until the end of the year in which he made his statement (2004). He submitted the police ought to have obtained some contact details from him in case he left the country or they should have obtained a sworn affidavit from Mr Liang. Mr Orlov submitted that enquiries could have been made in Beijing given Mr Liang's statement to the police that he came from that city. [17] Both counsel referred to the decision of the Court of Appeal in Union Steamship Co of NZ Ltd v Wenlock [1959] NZLR 173. That case was decided under the Evidence Amendment Act 1945. The Court of Appeal upheld a ruling by the trial judge in a civil action refusing to admit into evidence a letter written to the defendant by the fourth engineer of the ship on which the accident in question hadtaken place. The engineer had left the defendant's employment and gone to Australia before the proceeding came to trial. The trial judge considered the defendant had not made sufficient enquiries to establish the whereabouts of the witness. As such it could not be established that it was "not reasonably practicable to secure his attendance". It was suggested the defendant ought to have made enquiries in Sydney. [18] Cleary J stated at 201: before the Court can treat it as established that it is not "reasonably practicable to secure his attendance", it needs to be shown, either that reasonable efforts to ascertain his whereabouts have been made, or that, in the circumstances, inquiry is likely to be fruitless.[19] As noted in Cross on Evidence (8 ed 2005) at para 17.23, the views expressed in Wenlock remain authoritative. Reference is also made in Cross to R v M [1996] 2 NZLR 659, in which Richardson P stated at 662:Whether it is "not reasonably practicable to obtain [the] evidence" of the witness turns on the nature of the case, the nature and significance of the evidence the witness could give, what measures were taken and what could have been taken to obtain the evidence, and the time, effort and cost involved.Conclusions[20] Applying these principles, I am satisfied the Solicitor-General has established that Mr Liang is outside New Zealand and that it is not reasonably practicable to obtain his evidence. I accept Mr Harborow's submission that seeking to establish Mr Liang's whereabouts would, in all probability, be a fruitless exercise. There is no information at all as to where he might now be found, more than two years after he left New Zealand for parts unknown. Even if it were assumed he might be in Beijing, in the absence of any indication as to where he might be found in that major city, locating him would appear to be a long shot. There are no lines of enquiry available to the police such as an employer or family member who might be able to provide some information which could assist in narrowing down the search.[21] The Mutual Assistance in Criminal Matters Act 1992 is unlikely to be of assistance for at least two related reasons. First, it is not known which country Mr Liang may reside in. Secondly, the ability to invoke s 9 of that Act depends upon the Attorney-General being satisfied there are reasonable grounds to believe Mr Liang is in the foreign country whose assistance is sought. [22] Wenlock is readily distinguishable because it was reasonable to infer the witness was probably in Sydney and there were avenues of inquiry which could be pursued in shipping circles by reason of his employment. Similarly with R v Mwhere there was no evidence to explain why the police had not contacted a complainant in a sexual case who was residing overseas even though she had corresponded with a friend in New Zealand only three months before. [23] With the advantage of hindsight, the police might have been able to obtain some overseas contact details from Mr Liang at the time the statement was taken but that is pure speculation. The question is whether the applicant has shown it is not reasonably practicable to obtain his evidence on the basis of the material now before the Court. [24] Also relevant to the inquiry is the issue of delay and expense. Given the lack of information as to Mr Liang's current whereabouts, it is reasonable to assume that the cost and delay involved in instituting a search potentially ranging over a number of overseas countries, would be substantial.Other Considerations[25] In R v M, the Court of Appeal made it clear at 663 that fair trial considerations and the right of an accused person to examine prosecuting witnesses were highly relevant in assessing whether reasonably practicable steps have been taken to obtain the evidence. The significance of the evidence to the case is also relevant. In addressing these factors, the evidence is relevant to an issue in the Solicitor-General's application, namely the extent of benefits received by the respondent from the offending and whether he had effective control of the vehicle,despite its registration in the name of the first third party. Those issues are relevant in terms of s 29 Proceeds of Crime Act. [26] There is nothing to suggest at this stage that the evidence is unreliable except in one possible respect which I will mention shortly. Indeed, in evidentiary terms, neither the respondent nor the third parties are in a position to present any evidence to contradict the content of Mr Liang's statement since the respondent did not file any affidavits within the time directed by the Court and the affidavits filed by the third parties do not challenge the content of Mr Liang's statement. There is nothing to suggest that Mr Liang is anything other than an independent witness. And the standard of proof is the civil standard: s 85 Proceeds of Crime Act. [27] Mr Orlov submitted there was an issue about the identity of the person Mr Liang says paid for the vehicle. However, there is Detective Brennan's evidence that Mr Liang identified the respondent as that person and the Detective's evidence may be challenged in cross-examination at the substantive hearing in due course. [28] Mr Orlov also drew attention to Mr Liang's evidence about "whose name the car went under", suggesting this was not clear. The registration certificate shows the vehicle was registered to the first third party, Ms Siu. Arguably, Mr Liang's evidence could be read as indicating the vehicle was transferred to the man who paid the cash to Mr Liang to buy the vehicle. However, I do not regard this discrepancy as materially affecting the reliability of the statement overall. [29] Mr Harborow frankly accepted that Mr Liang's statement was critical to the Crown's case and is relied upon particularly to establish effective control of the vehicle by the respondent. In the absence of the statement, the Solicitor-General's case would be weakened, possibly fatally. However, it is well established that vital or highly important evidence can be admitted under the Act even if it comprises what would have been the whole or most of the evidence in chief of the witness if given orally: Hawkins v Ellis [1992] 2 NZLR 133, 138 (CA). [30] I note for completeness that the discretion to exclude a statement under s 18 of the Act on the grounds that its probative value is outweighed by its prejudicialeffect applies only to jury trials and is not applicable here. The weight to be attached to any statement admitted under the Act is a matter for the trial judge: s 17. [31] Mr Harborow also relied on s 3(1)(b) of the Act, submitting that the statement was a "business record" and that the person who supplied the information for the composition of the record was unavailable to give evidence. I accept that the statement is a business record as described in s 2(1) of the Act and that, for the reasons already given, Mr Liang is "unavailable to give evidence" for the purposes of s 3(1)(b)(ii). On this ground too, the statement is admissible. [32] Counsel also relied on s 3(1)(c) which applies only in the case of civil proceedings. Under that provision, the statement may be admitted if the maker had personal knowledge of the matters dealt with in the statement and "undue delay or expense would be caused by obtaining his evidence". [33] As noted in Cross at para 17.26, the maker of the statement need not be "unavailable" for the purpose of this limb of the subsection and, indeed, may be in New Zealand. This provision is more commonly applied when the whereabouts of a witness is known and it is a matter of determining whether undue delay or expense would be caused by calling the witness rather than allowing a statement from the witness to be introduced under the Act. Here, the case for the Solicitor-General is premised on the basis that Mr Liang is outside New Zealand and it is not reasonably practicable to find him. Prima facie, this would preclude the application of s 3(1)(c) in this case since the cost and delay of obtaining his evidence is not known. He may never be located. But it is unnecessary for me to make any final determination in that respect given my conclusion that the statement is admissible under s 3(1)(a) and (b).Result[34] I am satisfied for the reasons given that Mr Liang's statement should be admitted under s 3 Evidence Amendment Act (No 2) 1980 and I rule accordingly, subject to two conditions:a) The whole of the statement is admissible other than the portion reading "and my friend said the car was for the girl to practice [sic] with". b) The Solicitor-General must satisfy the Court that inquiries have been made with the friend of the witness identified in the statement and the result of those inquiries. The outcome is to be supplied to the Court and the parties by affidavit within seven days of the date of this judgment. [35] The Registrar is directed to arrange a further telephone conference of counsel (including the amicus to be appointed to represent the respondent in accordance with the directions given by me on 1 August 2007). The purpose of the conference will be to arrange a date to complete the hearing. ______________________________ A P Randerson, J Chief High Court Judge