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Khanbigy v R [2016] NZCA 583 (6 December 2016)

Last Updated: 21 December 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
31 August 2016 (further submissions 18 October 2016)
Court:
Wild, Courtney and Woodhouse JJ
Counsel:
Appellant in person S L McColgan for Respondent
Judgment:


JUDGMENT OF THE COURT

The appeals against both conviction and sentence are dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

[1] Following a jury trial in the Auckland District Court in July and August 2015 before Judge McAuslan, Saman Khanbigy was convicted on six drug-related charges and sentenced to a total of four and a half years’ imprisonment.[1] He appeals four of the convictions, two of possessing methamphetamine for supply and two of supplying methamphetamine.[2]
[2] Mr Khanbigy’s counsel, Mr Kaye, was given leave to withdraw shortly before the appeal hearing and Mr Khanbigy argued the appeal in person. He advanced grounds that differed from the notice of appeal but the Crown did not object.
[3] Mr Khanbigy asserted a miscarriage of justice as a result of:
[4] Mr Khanbigy had also appealed his sentence but acknowledged that four and a half years would have been a fair sentence had he been guilty of all the charges. Therefore if the conviction appeal fails, no issues will arise regarding the sentence.

Not giving evidence

[5] Mr Khanbigy did not provide an affidavit to support this ground of appeal. However, without objection from the Crown, he described the factual basis for it.
[6] Mr Khanbigy did not make a statement to police when arrested. He talked to Mr Kaye about giving evidence but Mr Kaye advised him against it. Mr Khanbigy told us that he took that advice because he did not know anything about criminal trials. Mr Khanbigy did not identify any particular concern over the advice that Mr Kaye gave him.
[7] In essence, Mr Khanbigy said that, given the opportunity, he could have conveyed to the jury that the “transactions” relied on by the Crown were nothing more than him obtaining samples of methamphetamine. He acknowledged that, had the samples been better, he would have proceeded to purchase more but since they were poor he did not. As we discuss later, we are satisfied that this position was inconsistent with the intercepted communications. We are satisfied there was no real risk that the decision not to give evidence affected the outcome. This ground of appeal fails.

Proof of supply

[8] The methamphetamine charges related to two transactions, the first on or about 16 August 2013 and the second on or about 17 October 2013. Mr Khanbigy maintained that the Crown had not proved supply on either occasion. This ground of appeal had not previously been signalled and neither Mr McColgan, for the Crown, nor Mr Khanbigy himself was in a position to deal with it because it depended on an analysis of the transcript of intercepted communications. We allowed both parties to file further submissions, which they did.

August 2013 transaction

[9] It is accepted that there was no direct evidence of supply to or by Mr Khanbigy in August 2013. The Crown advanced a circumstantial case based mainly on intercepted communications between Mr Tarm, Mr Hoo, Mr Feng (an associate of Mr Khanbigy) and Mr Khanbigy. The Crown also relied on the conviction of another man, Mr Tarm, for supplying methamphetamine to Mr Hoo, who is alleged to have supplied Mr Khanbigy. But Mr Tarm’s conviction was for a supply on 15 August 2013 and Mr Khanbigy pointed out that the intercept evidence did not show him as being involved until 16 August 2013. In his further submissions Mr McColgan made no reference to the conviction as circumstantial evidence that would support an inference as to Mr Khanbigy’s involvement but instead focused on the transcript of intercepted communications and surveillance evidence as showing that Mr Khanbigy obtained an ounce of methamphetamine from Mr Hoo on 16 August 2013 and onsold it.
[10] Mr Khanbigy accepted that he was interested in purchasing methamphetamine from Mr Hoo but maintained that he only obtained a sample on 16 August 2013 and that, had the sample been good, he would have proceeded with a substantial transaction but it was not good, so he did not. He submitted that the intercepted communications did not warrant the inference invited by the Crown or, alternatively, if he had given evidence, he would have been able to raise a reasonable doubt in the minds of the jury as to the extent of his involvement.
[11] The Crown contended that the surveillance evidence and the intercepted communications provided an evidential basis on which to infer that Mr Khanbigy had obtained a sample of methamphetamine from Mr Hoo on 12 August 2013; that on 16 August 2013 Mr Feng, acting on behalf of Mr Khanbigy, requested “a big one” of finished product (that is, according to expert evidence, an ounce of methamphetamine); that a transaction was subsequently completed between Mr Tarm and Mr Hoo; that Mr Hoo supplied Mr Khanbigy an amount of methamphetamine for between $9,500 and $10,000; and that Mr Khanbigy, in turn, supplied the methamphetamine to his own clients.
[12] The starting point for consideration of this charge is the surveillance evidence of a meeting between Mr Hoo, Mr Feng and Mr Khanbigy in a Greenlane café on 12 August 2013 that lasted about 50 minutes. There was no evidence of anything being supplied at that meeting but the Crown says that later references by Mr Hoo to Mr Feng on 15 August 2013 to “the stuff we handed over to him/her”[3] was reference to a sample provided by Mr Hoo to Mr Feng and Mr Khanbigy at that meeting.
[13] Mr Khanbigy, however, says that the reference to the “stuff we handed over to him/her” was not a reference to him because Mr Hoo went on to suggest a meeting “where we met the first time the Taiwanese Cuisine place”. Mr Khanbigy says that he met Mr Hoo for the first time at the café in Greenlane, so this conversation was not about him. He says that the first reference to him in the intercepted communications is a text at 17:20:11 on 15 August 2013 from Mr Feng to Mr Hoo, in which Mr Feng says “I got a new client”: Mr Khanbigy says this was a reference to him.
[14] There is no evidence one way or the other that the meeting at the Greenlane café was the first time Mr Hoo and Mr Khanbigy had met. So Mr Khanbigy could be right that the reference to “where we met the first time” was not a reference to him. But it could have been a reference to the first time Mr Hoo and Mr Feng met. More importantly, when read with the later communications, to which we come next, it was open to the jury to conclude that the conversation about the “stuff we handed over” was a reference to Mr Khanbigy.
[15] Over the two hours following Mr Feng’s text at 17:20:11 on 15 August there were communications between Mr Hoo, Mr Feng and Mr Khanbigy in which they agreed to meet at Greenlane. Then, at 21:31:53 Mr Feng called Mr Hoo to convey a request for “a finished product, only one, a big one” and called a few minutes later at 21:34:59 to confirm that the customer was Mr Khanbigy and that he “wants it tonight”. Mr Hoo was unable to accommodate the request because it was too late.
[16] The following day, 16 August 2013, Mr Feng called Mr Hoo at 12:04:43 and reiterated that Mr Khanbigy “wanted it urgently, wanted a big one”. But Mr Hoo told Mr Feng that “we haven’t tried if the stuff works or not”. This exchange followed:

Feng: He wanted it last night, I don’t know if he wants it today or not.

Hoo: Well you ask him, you ring him and ask him for the sample, I want to take the sample, the other person/people want to take it.

[17] The meaning of this statement by Mr Hoo is not very clear; read literally it suggests that Mr Hoo wants the sample, which does not fit with the rest of the conversation. Mr Khanbigy submitted that the inference to be drawn was that Mr Hoo was suggesting that it was better to exchange samples to avoid problems. But it was not Mr Khanbigy or Mr Feng who raised the issue of a sample. If Mr Khanbigy was seeking to buy from Mr Hoo there would be no reason for Mr Hoo to ask Mr Khanbigy for a sample. It was for the jury to look at the communications as a whole to determine what was being discussed and we are satisfied that the conversations and texts that followed all tended to support the Crown contention that Mr Khanbigy was looking to buy an ounce of methamphetamine.
[18] Later in the same afternoon Mr Feng texted Mr Hoo, confirming that “he needs the stuff I mentioned to you last night”. That text was followed by a conversation between Mr Feng and Mr Hoo about cost, with Mr Hoo complaining that at $9,500 there was no money to be made. Mr Feng impressed on Mr Hoo how anxious his buyer was to complete the transaction. Mr Feng proposed $10,000. At 17:00:55 Mr Khanbigy called Mr Hoo and they arranged to meet in half an hour in Greenlane.
[19] Mr Hoo then phoned Mr Tarm, the call timed at 17:07:04 to ask whether Mr Tarm could get “that stuff of yours ... immediately”. They discussed how much Mr Tarm would sell it for, referring to “nine” and “a half more”, and in terms of “how much” Mr Hoo said “Do you know what is the one with 28” (that is, one ounce). Mr Tarm asked “How much does he/she want?” and Mr Hoo said “one”. They agreed to meet at 6 o’clock.
[20] After that call Mr Khanbigy called Mr Hoo again at 17:11:06. Mr Hoo asked “Can you bring your sample again?” to which Mr Khanbigy said “I don’t have it with me”. Then:

Khanbigy: I need to know, can the guy get it or no? Because it’s, I don’t wanna waste my guy time you know.

Hoo: You, you have to. Because the guy will come to see at 6 o’clock ... and then he confirm everything we need and then he maybe take half an hour you see. If you confirm everything ...

[21] Over the next half-hour or so there were texts between Mr Hoo and Mr Khanbigy as to their respective whereabouts and a phone call from Mr Hoo to Mr Tarm, who was stuck in traffic. At 17:45:32 Mr Hoo texted Mr Khanbigy to say that he was “here” and at 17:46:07 Mr Khanbigy texted Mr Hoo to say that he was “parking”. At 18:00:18 Mr Hoo called Mr Tarm to find out where Mr Tarm was; he was stuck in traffic and asked Mr Hoo to “wait for a moment”. While Mr Hoo was waiting for Mr Tarm, Mr Feng texted him to find out what was happening. Notably there was no communication with Mr Khanbigy; his phone was not intercepted so only communications with Mr Hoo were recorded. If Mr Khanbigy were with Mr Hoo there would be no text or phone contact between them.
[22] Finally, Mr Tarm had arrived at McDonald’s by 18:43:21. At 19:37:15 Mr Feng enquired of Mr Hoo about progress and at 20:21:53 Mr Hoo texted Mr Feng to say “all done”. The Crown case was that this last exchange confirmed that the deal between Mr Hoo and Mr Khanbigy had been completed. Mr Khanbigy submitted that it simply meant that the meeting was completed because if the reference was to a deal Mr Feng would have asked about his profit share. This submission seemed to acknowledge that Mr Khanbigy had been at the meeting being referred to. In comparison, in closing for Mr Khanbigy at trial his counsel suggested that there was no evidence even of whether Mr Khanbigy was at the meeting. But looked at against the next series of communications we are satisfied that the jury was entitled to conclude that Mr Khanbigy was at the meeting. We are also satisfied that the jury was entitled to infer that he purchased an ounce of methamphetamine from Mr Hoo at that time.
[23] The following afternoon Mr Hoo called Mr Khanbigy to ask how the product was and Mr Khanbigy complained that it was “not good because wet”. Mr Hoo said that “that means ... we gotta find another guy” to which Mr Khanbigy responded “yeah, yeah but no problem maybe ah because they still gotta come back to me in two hours maybe get more”. They agreed that he would ring Mr Hoo in two hours.
[24] In the meantime Mr Tarm called Mr Hoo to talk about the quality of the product and then Mr Hoo and Mr Khanbigy arranged to meet at approximately 5.30 pm. At 18:18:02 Mr Tarm rang Mr Hoo again and Mr Hoo said that he/she (presumably Mr Khanbigy) had “his/her own here” and invited Mr Tarm to try it. Mr Tarm could not. There was the following exchange:

Hoo: No, he/she said yours is not, it is too wet. Yours is P yours isn’t ice.

Tarm: That’s right, that’s right, that’s right.

Hoo: The people wanted to take eight [units] and have had the money brought over here now then they tried his/hers and it was different, fuck, he/she was embarrassed.

...

Hoo: and so after trying it and it was different ... he/she said How come it is like that? ...

[25] Mr Khanbigy contends that the evidence shows no more than that he obtained a sample of methamphetamine from Mr Hoo and handed it on to a potential customer but that as a result of the poor quality nothing further was done. But despite the references to a sample there was nothing equivocal or conditional about Mr Khanbigy’s request for a “big one”. The Crown says that the communications showed a transaction between Mr Hoo and Mr Khanbigy for an ounce of methamphetamine for between $9,500 and $10,000 and the supply of the product by Mr Khanbigy to an unidentified third party who, whilst not happy at the wetness of the product, might nevertheless come back for more.
[26] In our view the jury was entitled to find that Mr Khanbigy had asked for and obtained an ounce of methamphetamine from Mr Hoo and onsold it. The request clearly did not relate to a small sample amount and was not said to depend on a sample being supplied. The “no evidence of supply” ground of appeal fails in relation to this first transaction.

Transaction October 2013

[27] This second transaction centres on a meeting on 17 October 2013 between Mr Khanbigy, Mr Hoo and Mr Shao. The evidence relating to this transaction started with a phone call from Mr Khanbigy to Mr Hoo at 11:44:12 on 17 October 2013. Mr Hoo asked if there was any news and Mr Khanbigy said “Yeah, ah two. Remember last time, one? ... now two ... maybe the day after tomorrow”. At 13:38:52 Mr Khanbigy telephoned Mr Hoo again to say “Do you have finish ... just one” and Mr Hoo told him it was “not worth it”, to which Mr Khanbigy replied “Because my friend he has 10, 10,000 ... so anything below we can go uh go half ...”. Mr Hoo said that “$500 not worth it” but agreed to check. At 14:08:17 Mr Khanbigy texted Mr Hoo to ask “Can we?” and Mr Hoo texted back “Still waiting”.
[28] After that Mr Hoo called Dau Wen Shao and Mr Shao agreed to come to Mr Hoo’s house to discuss something. In response to Mr Khanbigy’s subsequent enquiry Mr Hoo texted Mr Khanbigy at 17:05:55 to say “He told me he will call me 8 pm”. Nevertheless, Mr Khanbigy continued to contact Mr Hoo. He called him at 18:20:57 and was told again to wait until 8 o’clock. He texted Mr Hoo at 18:30:57 to say “Money ready”.
[29] Then there were phone calls between Mr Hoo and Mr Shao. Mr Hoo said “The stuff in the photograph that you showed me, can you take one out? ... Maybe this dick wants to buy one back he said ... You take three, three small then take one out, and straight away okay?”.
[30] At 19:38:12 Mr Hoo texted Mr Khanbigy to ask where Mr Khanbigy was and shortly afterwards Mr Hoo telephoned Mr Khanbigy. They agreed to meet at the McDonald’s in Greenlane:

Hoo: Ah Greenlane. Not so soon ... because they wait for me ah you gotta paper already or not? You got, you got a paper ready alright?

Khanbigy: No no, no paper. I have to tell the guy to come here. Should I tell him to come now?

[31] They agreed to meet and within a few minutes Mr Khanbigy phoned Mr Hoo and told him that “My mate going there now” and Mr Hoo told him that his car had broken down. Mr Khanbigy offered to come and pick him up and Mr Hoo gave him directions. Mr Khanbigy picked him just after 8 pm. At 21:04:05 Mr Hoo called Mr Shao and asked him to come and pick him up from the McDonald’s in Greenlane. Mr Shao told him he had to wait for ten minutes or more and Mr Hoo said:

Ten minutes or more, no problem. You come as soon as possible I, I have all the paper here, I have to leave, I have no money, I have no car to leave.

[32] Mr McColgan relied on all but the last of these communications, saying that they showed that Mr Khanbigy, by asking for “finish” and “one of them” and discussing the price at $10,000, was making it clear that he was seeking to buy an ounce of methamphetamine, that Mr Hoo had communicated with Mr Shao and then confirmed that the transaction could be completed at about 8 pm that same day, that Mr Khanbigy had confirmed that his client would arrange for the money (paper) and that they would meet at McDonald’s in Greenlane. Finally, when Mr Khanbigy confirmed that his client was heading to the meeting place Mr Hoo confirmed that he had “a thing with me”, clearly the methamphetamine, and that Mr Khanbigy had picked Mr Hoo up and taken him to the meeting.
[33] Mr Khanbigy argued that the Crown’s interpretation of “paper” as being the payment for the methamphetamine could not be right because of the very last communication in which Mr Hoo told Mr Shao that he had no money. Mr Khanbigy submitted that this was conclusive as showing that the transaction had not, in fact, taken place because if there had been a transaction Mr Hoo would have had $10,000 and therefore would not have said he had no money. He suggested that the “paper” Mr Hoo was referring to were the photographs he had with him, which was code for a sample of the product.
[34] We do not accept that interpretation. The preceding communications are all strongly consistent with Mr Khanbigy instigating a purchase from Mr Hoo of an ounce of methamphetamine and arranging a meeting between Mr Khanbigy, Mr Hoo and Mr Khanbigy’s client to which Mr Khanbigy’s client would bring the money. At both the trial and on appeal Mr Khanbigy relied heavily on Mr Hoo’s statement that he had no money. But in the context of a drug deal the money paid over in exchange for drugs was unlikely to be money that Mr Hoo could have used for his own personal purposes. The product had clearly been supplied by Mr Shao; the money was not Mr Hoo’s. Finally, the previous texts make it clear that Mr Khanbigy or his client was bringing the “paper”, which is inconsistent with the “paper” being used to refer to a sample.
[35] In all the circumstances the jury was entitled to conclude that the meeting had proceeded and that Mr Khanbigy’s client had come with money to pay for the product that Mr Hoo had brought with him. The ground of appeal also fails in relation to this second transaction.

Trial too long / too many defendants

[36] Mr Khanbigy stood trial with four others, all of Chinese origin (others, including Mr Tarm, pleaded guilty before trial). There was a total of 76 charges, of which only six related to Mr Khanbigy, and an interpreter was required for the Chinese witnesses.
[37] Mr Khanbigy explained that the trial ran for just over three weeks and was substantially taken up with the jury listening to 18 months’ worth of intercept and surveillance evidence, almost all in Cantonese. Only two months’ worth of intercept and surveillance evidence related to Mr Khanbigy and only he and his co-accused, Mr Hoo, were speaking in English (even Mr Hoo was speaking Cantonese when communicating with the other defendants). Mr Khanbigy said that because his conversations were in English he stood out “like a sore thumb”.
[38] Mr Khanbigy complained that, in these circumstances, he did not have a fair trial. As the only non-Chinese defendant he stood out. He submitted that a fair trial would have required him to have a separate trial. He told us that he mentioned his concerns to Mr Kaye who said that there was nothing that could be done. No severance application was made prior to trial and the issue was not raised during the trial.
[39] Mr McColgan pointed out that because the Crown asserted a joint criminal enterprise and the circumstantial evidence against Mr Khanbigy included communications higher up the dealing chain, it was highly unlikely that any application for severance would have succeeded. Moreover, in closing Mr Kaye made much of the lack of evidence against Mr Khanbigy compared with the amount of evidence against the other defendants.
[40] We do not accept that Mr Khanbigy’s trial was unfair as a result of the presence of other defendants. A trial of this kind, in which the Crown alleges there was a joint criminal enterprise, and relies almost entirely on intercepted communications between the defendants, effectively rules severance out. The communications relied on to prove the charges against Mr Khanbigy were also relevant to charges against Mr Hoo. Nor do we consider that the fact that Mr Khanbigy was Iranian and standing trial alongside Chinese defendants who required an interpreter made the trial unfair. Trials routinely take place with this number and quite often a greater number of defendants and of all nationalities or linguistic competencies. This ground of appeal fails.

Only 11 jurors

[41] During the course of the trial one juror was discharged for sickness. Mr Khanbigy asserted that a fair trial would have required 12 jurors.
[42] The illness of a juror is a recognised ground that can render a juror incapable of performing his or her jury duty and, as a result, warrant the Judge discharging that juror.[4] Mr Khanbigy was not able to point to any specific reason that the jury of 11 led to an unfair trial. There is no merit in this ground and it fails.

Cash found at Mr Khanbigy’s home

[43] When police searched Mr Khanbigy’s family home, which he had moved back to shortly before being arrested, they found a substantial quantity of cash (said in evidence to be “$59,000 or $59,800”) along with cash of $1,040 in Mr Khanbigy’s wallet. The larger quantity of cash was not in Mr Khanbigy’s bedroom but, rather, in a bag in another room that was used for storage. Also in the bag were documents relating to the travel business, Dena Travel, operated by Mr Khanbigy’s family. However, Mr McColgan at the hearing before us described the cash (without objection from Mr Kaye) as being bricked consistently with cash found at other addresses in relation to the same operation. The seizure of the money followed communications that the Crown says showed Mr Khanbigy seeking more methamphetamine for the purposes of supply but that were not followed through because the police operation was terminated.
[44] Mr Khanbigy told us that the money was acquired through Dena Travel, and that following seizure of the money his family provided bank statements and receipts to show that the business was the source of the funds. Nevertheless, the money was referred to in evidence and included in schedules of items seized, along with drugs. Mr Khanbigy said that he talked to Mr Kaye about his parents giving evidence regarding the source of the funds but was told that such evidence would not be needed until the proceeds of crime proceeding was heard.
[45] Mr Khanbigy also said that Senior Constable Beale under crossexamination conceded that the funds might not be related to drugs. Our reading of the notes of evidence shows this not to be so. Mr Kaye cross-examined Senior Constable Beale about the fact that Dena Travel had been the subject of allegations of theft and misappropriation of money in connection with its travel business, suggesting that this was the likely source of the money. Senior Constable Beale acknowledged the allegations against Dena Travel but did not actually concede that the money was not drug-related.
[46] In closing Mr Kaye addressed this issue with some care, emphasising the possibility that the source of the money was Dena Travel. At Mr Kaye’s request, Judge McAuslan brought the jury back into court following the conclusion of her summing-up to make a further, specific direction on inferences and told the jury that:

... I omitted to mention where evidence permits of more than one inference, which has been suggested to you, for example the money located in Mr Khanbigy’s home, the Crown asks you to infer from the evidence that you have got that that is money from drug dealing whereas Mr Kaye has asked you to infer that it could be money from the travel business or even from gambling, so if you find that there are two inferences of equal weight then you should accept the one that is more favourable to the defendant.

[47] We consider that the Judge’s specific direction adequately drew the jury’s attention to the possibility of the money not being drug-related. There was no unfair prejudice to Mr Khanbigy as a result of the reference to the money as part of the overall Crown case and it was open to the jury to conclude that the money was drugrelated.

Publicity during trial

[48] Mr Khanbigy said that during the trial there was TV reporting of the allegations against Dena Travel and that the media reports portrayed him as being the manager of Dena Travel. He considered that he was seriously prejudiced by this.
[49] Although Mr McColgan had no recollection of such reporting during the trial he did recall a television report about Dena Travel. However, he pointed out that, in both her opening remarks and summingup, the Judge gave the usual direction about ignoring information that the jury might have read or heard outside the courtroom.
[50] On the available information we see no basis on which to conclude that there was any prejudice to Mr Khanbigy that might have affected the safety of the verdicts. To the contrary, the publicity, had it been considered, would have supported Mr Kaye’s submission to the jury that the funds were those of Dena Travel.

Result

[51] The appeals against both conviction and sentence are dismissed.





Solicitors:
Crown Solicitor, Auckland for Respondent

[1] R v Khanbigy [2015] NZDC 22837.

[2] Mr Khanbigy was also convicted on one charge of possessing pseudoephedrine for supply and one of supplying pseudoephedrine. He does not appeal those convictions.

[3] The ambiguity as to the gender identity of the subject of the messages is a result of the translation of neutral pronouns from Cantonese.

[4] Juries Act 1981, s 22. For example, see Obiaga v R [2016] NZCA 270.

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