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Court of Appeal of New Zealand |
Last Updated: 29 March 2017
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
JUDGMENT OF THE COURT
The appeal is
dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
[1] This appeal is advanced as one against sentence only.
[2] Mr Hoo claims he wished, from the outset, to plead guilty to the charges he faced, but was not advised by his counsel of his ability to do so, let alone of the benefits of early guilty pleas. Had he been so advised, Mr Hoo claims he would have pleaded guilty at an early stage. On that basis, Mr Hoo seeks a 25 per cent discount off the sentence of 10½ years’ imprisonment imposed on him by the District Court at Auckland for serious drug offending.[1]
[3] The Crown accepts that a 25 per cent discount would have been appropriate had Mr Hoo pleaded guilty at the earliest opportunity. Thus, the only questions for us are whether Mr Hoo has established that:
- (a) he wanted to plead guilty from the outset; but
- (b) did not appreciate he could and, in particular, was not advised of his ability to plead guilty and of the benefits of doing so in terms of a sentencing discount; and
- (c) had he been properly advised, he would have entered early guilty pleas.
Background
DVD interview and arrest
[4] On 4 December 2013 the police terminated an investigation (Operation Ghost) into a suspected drug dealing ring. Several homes were searched and a number of people arrested and charged. Mr Hoo’s home was searched. Following the search Mr Hoo accompanied Detective Espinosa to the Mt Wellington Police Station. There he was interviewed by Detective Espinosa, the interview lasting some five hours. The videotapes of this interview were not put in evidence in Mr Hoo’s trial. However, by memorandum dated 27 July 2015, Mr Hoo admitted, pursuant to s 9(2) of the Evidence Act 2006:
- (a) He had, on 4 December 2013, been interviewed by Detective Sergeant Damian Espinosa and had denied all allegations.
- (b) He did not have any prior criminal convictions.
[5] We have viewed the videotapes, aided by the transcript of the interview. At the start of the interview Detective Espinosa did two things. First, he made it clear to Mr Hoo that he was not under arrest, but nevertheless explained to Mr Hoo his rights under the New Zealand Bill of Rights Act 1990. Secondly, he asked Mr Hoo whether he would like an interpreter, to which Mr Hoo responded “No its alright”. The detective then told Mr Hoo to let him know if he said anything during the interview which Mr Hoo could not understand.
[6] Detective Espinosa explained to Mr Hoo that he was being interviewed because the police suspected he had been involved in supplying, and having possession for supply of, methamphetamine and pseudoephedrine. Mr Hoo confirmed he was aware the police had executed a search warrant at his home earlier that day, in relation to methamphetamine and pseudoephedrine. He agreed the police had shown the warrant to Mr Hoo and his family.
[7] The s 9 statement of facts admitted for the trial is accurate — throughout the interview Mr Hoo denied any involvement in the drug offending he was being questioned about. There is nothing in the interview conveying, or even suggesting, an intention or willingness on Mr Hoo’s part to admit his part in the drug offending. To demonstrate why we say this, we have annexed as Appendix A to this judgment extracts from the interview. Given the length of the interview (the transcript runs to 316 pages), these extracts are necessarily a selection.
Appearance in Court, grant of bail pending trial
[8] Mr Hoo appeared in the Manukau District Court on 5 December 2013, facing a number of charges of possession of pseudoephedrine for supply, supplying pseudoephedrine and supplying methamphetamine. Prior to that appearance, Mr Hoo had retained Mr John Moroney to represent him. With Mr Moroney’s assistance, Mr Hoo applied successfully for bail. He was remanded, on bail, to 16 January 2014. On 12 December 2013 the police laid further charges against Mr Hoo. The District Court’s record of the hearing on 16 January 2014 records “Moroney PNG to all charges CRH 10 am 7/5/14 b4 me ‘GAA Wiltens DCJ’”.
[9] We do not have the record of Mr Hoo’s further Court appearances before his trial.
Meeting with police
[10] In early July 2015, shortly before his trial, Mr Hoo had a meeting with Detective Beal, one of the officers in charge of Operation Ghost, apparently to see whether he could do a deal with the police by offering to assist. Nothing came of this meeting, to which we revert in [21] and [27] below.
Trial
[11] Mr Hoo’s trial began before Judge McAuslan in the District Court at Auckland on 14 July 2015. Mr Hoo was one of five defendants, all separately represented. It is common ground that all defendants were arraigned at the start of the trial, all confirming their pleas of not guilty to the charges they faced.
[12] Mr Moroney made an opening statement for Mr Hoo. He stressed the presumption of innocence and the need for the Crown to prove the charges against Mr Hoo beyond reasonable doubt. He concluded “All Mr Hoo asks is that you give him a fair trial and remember those concepts that I’ve just talked about”. Mr Hoo did not give evidence, but did call one witness, Mr Bing Chao Lim.
[13] The trial lasted approximately three weeks, ending when the jury delivered its verdicts on 11 August 2015. Mr Hoo was found guilty on 33 of the charges he faced.
Sentencing
[14] The Judge was provided with a pre-sentence report on Mr Hoo dated 3 September 2015. That report records:
Mr Hoo said, "I wanted to plead guilty because I was involved in the offending, I was supplying the pseudoephedrine but I was just the middle man, the supply and distribution was done by the others. I only got involved because 'Felix' asked me to help him so he could get money to go home to Malaysia. Tran (co-offender) would only deal with me because 'Felix' owed him money and there was no trust."
[15] Judge McAuslan sentenced Mr Hoo on 17 November 2015.[2] Mr Hoo was represented by Ms Annabel Maxwell-Scott (junior counsel for the appellant before us). The sentencing notes make clear Judge McAuslan’s rejection of Mr Hoo’s claim to the reporting probation officer that he had wanted to plead guilty. The Judge expressly accepted the Crown’s submission that the probation report indicated that Mr Hoo was “trying to minimise [his] role”.[3]
[16] Judge McAuslan, who accepted the Crown’s summary of the offending, had earlier observed:
[10] As for your roles, it is the Crown's submission that you Mr Hoo were operating a busy drug dealing network as a wholesaler of both pseudoephedrine and methamphetamine, that you sourced significant quantities of pseudoephedrine from importers and on-sold to other wholesalers and retailers including your two co-offenders who are with you now. Your role is described as integral. You were the necessary link. Your primary source was Mr Van Tran but there were alternative sources when necessary which clearly came through the evidence at trial and demonstrated, in the Crown's submission, the breadth of your contacts and they do seem to have been considerable. You were willing also to source methamphetamine on request. ...
[11] So in terms of sophistication it is the Crown’s view that you were all participants, albeit to different degrees, in the sophisticated criminal drug distribution network. ...
This appeal
Notice of appeal
[17] Mr Hoo filed his notice of this appeal on 15 December 2015. The appeal was against sentence only and the ground of appeal was stated thus:
The sentence imposed by the learned District Court Judge was manifestly excessive.
[18] In response to the question in the notice of appeal “Do you wish to apply for leave to call any witnesses on your appeal?”, Mr Hoo wrote “N/A”.
Submissions for Mr Hoo on appeal
[19] This appeal was scheduled for hearing on 31 August 2016. It was only when Mr Mansfield filed submissions on 18 August 2016, followed by the filing of Mr Hoo’s affidavit on 24 August 2016, that the gravamen of this appeal became clear to the Court. In his submissions Mr Mansfield stated:
1.3 ... The criticism is that the sentence is manifestly excessive due to the Appellant’s then Counsel conduct and omissions. The Appellant was inadequately advised by his then Counsel and effectively prevented from entering an early guilty plea, as he desired and would have done, if provided with the opportunity to do so.
[20] Mr Mansfield then summarised in detail trial counsel’s alleged failings and continued:
4.1 The Appellant contends that he would have plead guilty if he had of known that he could and had of been provided with the opportunity to do so. He states that he did not insist on this and or change Counsel to achieve this, as he did not know that this opportunity existed or that he was not otherwise well served, as he was lead to believe he was.
4.2 The Appellant’s lack of knowledge was derived from the advice he had received, limited as it was, and his lack of experience with the judicial system in New Zealand. He was told to trust Trial Counsel and was led to do so. He simply followed the instruction of his Trial Counsel namely that the matter needed to proceed to Trial.
[21] In his first affidavit Mr Hoo stated:
1.5 I do not deny the offences and I accept that the convictions are properly entered. I accept responsibility for my actions and for the criminal convictions that followed.
1.6 The issue that I wish to advance on appeal is how I was denied the opportunity to plead guilty to the offending. This is my only complaint. But for me it is a significant one.
1.7 I would have accepted the charges at a far earlier opportunity if I had of been advised that I could and or Mr Moroney had acted on my instructions that I accepted the offending as alleged. I did not want the Crown to prove them as they had the onus and I was not hoping for a miracle.
1.8 Mr Moroney knew from an early point that I accepted the offending. From that point I simply followed his advice. However, that did not include that I could or should plead guilty and or the benefits of doing so. If I had of been provided with that opportunity, I would have taken it accordingly.
1.9 However, Mr Moroney told me from the outset that the matter needed to go to trial. He did not explain why or the process, he did not go over the evidence with me, he did not ask me for my account although I did try to tell him detail of what had happened and despite me wanting to resolve the proceedings, he did not offer this as an option. ...
1.10 Before the Trial, and on my request, Mr Moroney arranged for me to speak to the officer in charge. I was prepared to offer assistance to the Police and sought an opportunity. This was on the basis that I admitted my involvement in the offending and believe that this was understood by Mr Moroney and the Officer in Charge. That meeting took place. However, and despite that, I was not advised that I could or should plead guilty and was simply told the matter was proceeding to Trial.
1.11 After the jury found me guilty, I was remanded in custody. While in custody I was advised within the Prison by other inmates that I could have pleaded guilty and that if I had, I would have received a reduced sentence. This was the first time I had been advised this. As a result, I sought further advice and dismissed Mr Moroney. I also told probation that I was guilty (this is recorded in my pre-sentence report) and I instructed new lawyers to see if there was anything that could be done.
[22] After the Crown confirmed it required time to respond to these allegations, the Court vacated the 31 August 2016 fixture and set a fresh timetable. Pursuant to this timetable, Mr Moroney filed, on 12 December 2016, an affidavit responding to Mr Hoo’s allegations.
[23] On 10 February 2017 Mr Hoo filed a second affidavit replying to Mr Moroney’s affidavit.
[24] Mr Hoo was cross-examined before us. The salient parts of this crossexamination are set out in Appendix B to this judgment. In summary, it was put to Mr Hoo that he had, throughout his five hour DVD interview with the police, denied the drug dealing he was being asked about. Despite formally admitting that denial in his trial, Mr Hoo did not accept it.
[25] It was then put to him that he had not, at the outset, told Mr Moroney he was guilty and wanted to admit the charges. Again, Mr Hoo did not accept that. Nor did he accept that it was only when one of the other drug dealers pleaded guilty shortly before the trial that he had asked Mr Moroney to arrange for him to speak to the police. In the course of the questioning about this, Mr Hoo said that he had, “at the very beginning”, asked Mr Moroney about the options of pleading guilty or not guilty, and “what is the outcome”, but that Mr Moroney had not answered his question.
[26] Asked whether he accepted that he had instructed Mr Moroney to defend the charges on the basis that all the intercepted communications were about buying and selling things other than drugs, Mr Hoo claimed not to remember. But he did accept he had asked Mr Moroney to call Mr Bing Lim to give evidence that his (Mr Hoo’s) dealings with Mr Bing Lim’s father, Mr Felix Lim, were in respect of wine not drugs.
Credibility finding against Mr Hoo
[27] Having read Mr Hoo’s two affidavits, and then listened to and observed Mr Hoo under cross-examination, we find him to be an untruthful witness. We simply do not believe he wanted or intended, from the outset, to accept his guilt and plead guilty to the charges he faced. On the contrary, we are satisfied Mr Hoo, from the start, was determined to defend the charges. The possibility of pleading guilty did not arise until shortly before the trial began, when Mr Hoo asked Mr Moroney to arrange for him to speak to the police to try and do a deal. This was after one of the other drug dealers, Mr Tran, was convicted. Mr Hoo referred to this in paragraph 1.10 of his first affidavit (set out in [21] above). Under cross-examination, Mr Hoo accepted that Mr Tran’s conviction had prompted his approach to the police (Appendix B).
[28] In the very next paragraph of his first affidavit, 1.11, Mr Hoo claims he was not aware of the option of pleading guilty until after he had been convicted at trial and remanded in custody. He asserts he first learnt of this from other inmates in prison. We cannot reconcile this with Mr Hoo’s acceptance, under crossexamination, that he had asked Mr Moroney “at the very beginning” about the options of pleading guilty or not guilty and the different outcomes. Nor can we reconcile this with Mr Hoo’s acceptance that, shortly before his trial, he had arranged to see Detective Beal with a view to admitting his involvement in the offending and offering the police assistance.
[29] These inconsistencies are but an example of why we do not accept Mr Hoo’s evidence. We are not in doubt that Mr Hoo, having been convicted and sentenced to a lengthy term of imprisonment, has fabricated his suggestion that he wanted to plead guilty from the outset but did not appreciate, and was not advised, that he could. As this Court noted in Manuel v R, “it is all too easy, after the event, for an appellant to make such a complaint [about not being advised to plead guilty] after a verdict of guilty is returned by a jury or an unexpectedly high sentence is imposed”.[4]
Ms Eyoo’s evidence in support
[30] On 10 February 2017 an affidavit was filed by Mr Hoo’s wife, Ms Eyoo, in support of Mr Hoo’s appeal. Ms Eyoo’s affidavit includes these statements:
2.6 ... Mark was not advised he could plead guilty and or the benefit of this. We were told to trust him [Mr Moroney] as he knew what he was doing.
...
2.11 ... Mark was not told about the evidence or its strength. He was not given any options. ...
...
2.14 We had no idea that Mark did not need to go to Trial. He did not want that for himself and or our family. Going to Trial only delayed and made everything more stressful. ...
...
2.18 Mark also found at that time [following the first day of trial] that he could have plead guilty before the Trial. ...
...
2.23 While he was on remand [having been convicted and remanded in custody] we learnt that he could have plead guilty at an earlier stage and that there was a benefit for this. He was angry that he had not been advised this and that Mr Moroney did not assist him to do so.
2.24 At this stage we had no confidence and were frankly shocked by the service we had received from Mr Moroney. We changed Lawyers immediately.
...
4.3 He [Mr Hoo] wanted to acknowledge the offending, but was not told he could or how that could happen. Instead we were advised by Mr Moroney that it needed to proceed to a trial. We were told not to worry and that everything would be ok.
[31] Ms Eyoo was also cross-examined before us. She maintained Mr Moroney had never told her husband that he could admit the charges — plead guilty. Ms Eyoo accepted she had helped get Mr Felix Lim’s son to give evidence in Mr Hoo’s defence, to the effect that what was supplied was red wine not illicit drugs. She claimed not to know that Mr Bing Lim’s evidence was called to help defend the charges.
[32] In the course of Ms Eyoo’s evidence she suggested that Mr Hoo did not know about all the charges he was facing until the start of the trial (presumably when he was arraigned). Until then, she said Mr Hoo thought he was only facing charges in respect of supplying Contac NT to the two undercover police officers. That assertion was not made by Mr Hoo in either of his two affidavits. Nor was it apparent from Ms Eyoo’s own affidavit.
Credibility finding against Ms Eyoo
[33] We do not accept Ms Eyoo’s evidence either. We find it neither credible nor reliable.
Properly brought as a sentence appeal?
[34] At the end of Ms Eyoo’s evidence, the Court raised a concern with Mr Mansfield. The gist of Ms Eyoo’s fresh complaint was that Mr Hoo had been put on trial when he had no idea of the nature and extent of the charges he was facing. That proposition raised two issues. First, what was being alleged was serious malpractice, and Mr Moroney had not an opportunity to respond prior to the hearing. Second, we raised with Mr Mansfield whether, if that complaint was seriously being advanced, he accepted that Mr Hoo’s remedy was to seek an extension of time to appeal against his convictions. Mr Mansfield’s immediate response was that it would be inappropriate for Mr Hoo to mount a conviction appeal when he asserted that he had wished, from the outset, to plead guilty to the charges of which he was subsequently convicted. We indicated to Mr Mansfield we did not accept that position. The Court could not deal with an assertion of such a fundamental breach of fair trial rights in the context of a sentence appeal. In our view, if Ms Eyoo’s allegations had been true (which they are not), the only course would be to quash the convictions. Mr Hoo could then plead guilty, if he chose, when rearraigned.
[35] By that stage of the hearing it was approximately 1.10 pm, and the Court adjourned. When we resumed at 2.15 pm, we informed Mr Mansfield that we did not believe Mr Hoo and Ms Eyoo, and were minded to dismiss the appeal, because it depended on the Court accepting Mr Hoo’s account, supported by Ms Eyoo.
Right to cross-examine Mr Moroney?
[36] We raised with Mr Mansfield our one concern. In accordance with the well-established procedures outlined in R v Clode[5] and Hall v R,[6] Mr Hoo’s assertions had been put to Mr Moroney. Mr Moroney had responded in his affidavit filed on 12 December 2016. The Court had that affidavit, and notice had been given that Mr Moroney was required for cross-examination (and he was at Court ready to be cross-examined). Did that circumstance entitle Mr Mansfield to attempt to salvage Mr Hoo’s appeal by cross-examining Mr Moroney? Mr Mansfield was not in a position to deal with that point and accordingly the Court set a timetable for submissions on it.
[37] In his memorandum of 27 February 2017, Mr Mansfield submits the Court, because it has received and reviewed both parties’ affidavits, must permit cross-examination of Mr Moroney. Until that cross-examination has taken place, the Court will not have received “all the required evidence” and will not be in a position properly to determine this appeal. Mr Mansfield seeks that the appeal hearing be abandoned and a fresh fixture allocated before a new Bench of the Court.
[38] Responding in his memorandum of 28 February 2017, Mr McColgan submits the Court’s proper course is to dismiss the appeal. The Court has indicated it finds Mr Hoo’s allegation that he wished to plead guilty at the outset, but was not aware that he could, not credible. Mr Hoo has thus failed to establish the basis for his appeal, irrespective of the alleged errors by Mr Moroney. Allowing cross-examination of Mr Moroney in these circumstances is unnecessary. Mr McColgan cites from the Supreme Court’s decision in R v Sungsuwan:[7]
If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary.
[39] In making the allegation he did, Mr Hoo assumed an evidentiary onus. Mr Mansfield rightly accepted that. Mr Hoo has not discharged that evidentiary onus. Accordingly there is nothing for Mr Moroney to respond to. Although the Court has received Mr Moroney’s affidavit, which he was directed to file in advance of the hearing, it must be put to one side and no question of cross-examination arises. Or, to adopt the language of the Supreme Court in Sungsuwan, “further scrutiny of counsel’s conduct” is unnecessary. For those reasons, this appeal must be dismissed.
Post-hearing memorandums
[40] We have not overlooked the objection Mr McColgan raised in his 28 February 2017 memorandum. Mr McColgan submits that no prior notice had been given of a number of the topics Mr Mansfield listed, in his 27 February 2017 memorandum, as topics on which he wished to cross-examine Mr Moroney. Mr McColgan made it clear that the Crown, had it appreciated what was truly to be advanced on this appeal, would have sought to have it dismissed as an abuse of the Court’s process. In a further memorandum of 2 March 2017, Mr Mansfield rejected Mr McColgan’s complaints. We need not deal with any of this, because Mr Hoo has not made out his fundamental claim — the one we spelt out in [2] above. It suffices to emphasise that the whole point of the procedures spelt out by this Court in Clode and Hall is to apprise trial counsel of the errors or misconduct alleged that are said to have caused justice to miscarry, thus affording trial counsel the opportunity to respond in an affidavit.
Result
[41] The appeal is dismissed.
Solicitors:
Dominion Law, Auckland for Appellant
Crown Law Office, Wellington for
Respondent
APPENDIX A
Excerpts from Mr Hoo’s DVD interview with Detective Espinosa on 4 December 2013
Detective: You say you don’t think he’s clean. What do you mean by that? What do you think he’s involved in?
Mr Hoo: Oh I don’t know. That one I can’t tell you okay.
(209/316)
Detective: What are you talking about there?
Mr Hoo: [Laughs] That one I don’t give you answer okay.
Detective: Sorry.
Mr Hoo: Maybe I, that one have to, maybe I have to speak to my lawyer one. You-you have, you have to stop here now because I better.
Detective: You’d like to stop and speak to a lawyer?
Mr Hoo: Yeah, yeah.
APPENDIX B
Excerpts from the cross-examination of Mr Hoo before this Court
DVD interview with police
And a little later:
Mr Hoo telling Mr Moroney at the outset he was guilty
...
Mr Hoo trying to do a deal with the police
Instructions to Mr Moroney as to the defence
Calling defence evidence
Q And Felix Lim’s son gave evidence for you at the trial didn’t he?
A Yes.
[1] R v Khan Bigy [2015] NZDC 22837.
[2] R v Khan Bigy, above n 1. The defendant Mr Ng was not sentenced. We are not sure how or when the Court dealt with him.
[3] At [24].
[4] Manuel v R [2010] NZCA 285 at [22].
[5] R v Clode [2008] NZCA 421, [2009] 1 NZLR 312.
[6] Hall v R [2015] NZCA 403.
[7] R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [70], per Gault, Keith and Blanchard JJ.
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