Chow v R

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeArnold J
Judgment Date12 August 2013
Neutral Citation[2013] NZCA 360
Date12 August 2013
Docket NumberCA695/2011

[2013] NZCA 360

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Arnold, Harrison and White JJ

CA695/2011

BETWEEN
Wan Yee Chow
Appellant
and
The Queen
Respondent
Counsel:

M M Wilkinson-Smith and M Kan for Appellant

C L Mander and M E Ball for Respondent

Appeal against conviction for murder and sentence of life imprisonment with mandatory minimum period of imprisonment of 17 years — Crown alleged appellant arranged killing of victim in exchange for $10,000 — sole issue at trial in 2006 was identity (whether it was appellant who murdered victim) — appellant's first language was Cantonese and he had intellectual difficulties as well as a limited understanding of English — defence argued that placing appellant on trial without assessing his fitness to plead was a fundamental procedural error, giving rise to a nullity — C had inadequate interpretation and translation assistance given his intellectual and communication issues — appellant had been imprisoned and tortured during Chinese Cultural Revolution — whether appellant had been unfit to plead — whether interpretation assistance provided to appellant was insufficient to enable him to understand and follow the evidence given the language and other difficulties that he faced — whether sentence was excessive.

The issues were: whether C was unfit to plead; whether the interpretation assistance provided to C was insufficient to enable him to understand and follow the evidence given the language and other difficulties that he faced; whether a mistrial should have been declared given the unavailability of a key witness; and whether the MPI was manifestly unjust.

Held: Although no fitness to plead assessment was undertaken prior to C's trial in 2006, the evidence from health professionals relating to assessments made in 2011 and 2012 about C's fitness to plead did not raise a reasonable possibility that C was unfit to plead in 2006 (or, indeed, was presently unfit to plead). The real issue concerned the level of assistance C received at trial given he had intellectual, communication and other difficulties.

Section 80 Evidence Act 2006 (communication assistance) provided a defendant in a criminal proceeding was entitled to “communication assistance” to enable him (or her) to understand the proceeding. Written translations of briefs of evidence and documentary evidence might have to be provided to an accused unable to speak or understand English ( Alwen Industries Ltd v Collector of Customs). But an accused's rights in this context would not be breached unless “there was a real risk of an impediment to the conduct of the defence” ( Abdula v R). C's counsel had discussed the documents with C in the presence of an interpreter, and there was then had a two day adjournment to consider them. An accused's rights in this context would not have been breached unless there was a real risk of an impediment to the conduct of the defence. Given the issue in this case was identification, it was difficult to see how the documentary material would have provided much assistance.

C was represented by two very experienced criminal defence counsel, who had the assistance of an interpreter. Although both found C somewhat uncommunicative, they did discuss the contents of the documents with him and there was no doubt that if they had had real concerns about C's ability to advance his defence because there were no written translations of the documents, they would have raised it with the Judge. The cross-examination of the Crown witnesses indicted a good grasp of the detail, as one would expect of experience counsel, so they were able to take instructions.

Clearly C had limited ability to communicate in English and on the evidence it was plain that C could not have followed a trial conducted wholly in English and that he required the assistance of an interpreter. The Supreme Court in Abdula considered that the standard of compliant interpretation (conferred by s24(g) NZBORA), while high, was not one of perfection and that the onus was on an appellant to show that the interpretation provided fell below the required standard (set out above).

C had failed to demonstrate that there was a real risk to the presentation of his defence by virtue of the interpretation and other deficiencies that he alleged because:

  • (a) as C had stood trial in NZ previously, the environment was not a new one for him and his interactions with the police in this case illustrated a degree of familiarity with the system;

  • (b) the issues in this trial were not complex;

  • (c) C must have been given a proper explanation before he gave written instructions that he would not give or call evidence and that none of potential alibi witnesses be called by defence;

  • (d) given that three witnesses gave evidence in Cantonese and four in Mandarin the interpretation processes necessary to deal with their evidence would have slowed proceedings significantly, thus giving C more time to assimilate the interpreter's translations; and

  • (e) there was no indication that C raised the concerns he now expressed with anybody at the time and there was no indication that if C had been given more time, his defence would have been conducted any differently or anything new would have emerged.

No miscarriage of justice resulted from the failure of TR's former partner, Scott (“S”), to appear. C's counsel had vigorously cross examined TR on the matters raised in S's statement. Ultimately, her witness statement went in by agreement, as part of the Crown case. C's case was not likely to have been advanced significantly had S been available for cross-examination As S did not accompany the men on the trip to Auckland, her evidence was limited in scope. There was no indication that S could have added to what was said in her witness statement in a way that would have assisted C on any point.

The Judge was entitled to sentence on the basis that C had carried out a contract killing for money and accordingly s104 Sentencing Act 2002 (imposition of minimum period of imprisonment of 17 years or more) applied. There was little in the nature of mitigating factors in relation to the offence. C's personal circumstance were undoubtedly unfortunate, but on three previous occasions when C was before the Court for serious offending the Court had not permitted him a discount on sentence to reflect these personal factors although on each occasion it was aware of them. The 17 year MPI was properly imposed.

Appeal against conviction and sentence dismissed.

JUDGMENT OF THE COURT
  • A The application for an extension of time to appeal is granted.

  • B The appeal against conviction and sentence is dismissed.

REASONS OF THE COURT

(Given by Arnold J)

Table of Contents

Para No

Introduction

[1]

Background

[3]

Mr Chow's background

[14]

Mr Taylor's evidence

[17]

Application for an extension of time

[19]

Basis of conviction appeal

[24]

Fitness to plead

[25]

Assistance received by Mr Chow

[33]

(i) Disclosure material not translated

[35]

(ii) Interpretation and accommodations at trial inadequate

[45]

(a) The standard to be applied

[50]

(b) Assessment

[52]

Failure of Crown witness to appear

[59]

Errors by trial counsel

[70]

Sentence appeal

[76]

Decision

[81]

Introduction
1

Following a jury trial before Courtney J in November 2006, Mr Chow was convicted of murdering Mr Ah Yam Tam. He was sentenced to life imprisonment with a mandatory minimum period of imprisonment of 17 years. 1 He now seeks an extension of time to appeal against both conviction and sentence.

2

To give context to the factual outline which follows, we note at this point that Mrs Wilkinson-Smith advanced the conviction appeal on the following basis:

  • (a) Mr Chow may have been unfit to plead.

  • (b) The interpretation assistance provided to Mr Chow was insufficient to enable him to understand and follow the evidence given the language and other difficulties that he faced.

  • (c) A mistrial should have been declared given the unavailability of a key witness.

  • (d) There were material failures by trial counsel.

Background
3

The Crown alleged that on 6 July 2005 Mr Chow drove from Wellington to Auckland with an associate, Mr Taylor, in Mraylor's car. Mr Chow told Mr Taylor that he wanted to go to Auckland to collect some money that was owed to him for some paua. The day before they left, they went to a Chinese restaurant in Wellington where Mr Taylor had a meal while Mr Chow talked to someone at the restaurant. The Crown suggested that the killing of Mr Tam was arranged with this person in

exchange for $10,000. (Mr Taylor's evidence was that Mr Chow had told him that he was to go to the restaurant after they returned from Auckland to receive $10,000.)
4

During the trip to Auckland, Mr Chow made a number of calls on Mr Taylor's cell phone. After arriving, they visited a restaurant in Avondale where Mr Chow said he was given some money for petrol. Following that, the two men went to the central city and parked on a street at the back of a karaoke bar on Symonds Street, which was partly owned by Mr Tam. Mr Tam lived above the premises with his fiancée. Mr Chow had known Mr Tam for over 10 years. Mr Tam had employed Mr Chow briefly at a restaurant on Anzac Avenue, which Mr Tam partly owned, and Mr Chow had stayed in one of the apartments behind the karaoke bar for several weeks.

5

After driving by the karaoke bar, Mr Chow and Mr Taylor went to a street opposite the restaurant. Mr Chow parked there and watched the entrance to Mr Tam's restaurant on Anzac Avenue. He saw Mr Tam arrive at the restaurant. Mr Chow and Mr Taylor then drove back to the karaoke bar before returning to their previous position opposite the restaurant.

6

Mr Tam and his fiancée were working at the restaurant. Later, between 3. 30 and 4 am on 7...

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    ...v M [2008] NZCA 148. 5E (CA689/2010) v R [2010] NZCA 13, (2011) 25 CRNZ 411. 6R v Williams [2005] 2 NZLR 506 (CA) at [52]–[54] as cited in Chow v R [2013] NZCA 360 at 7Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369. Also, referred to by Miller J were R v Uluakiola CA123/06, 6 December 20......
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    ...Bill Dawkins, Bill Dawkins Law, Invercargill 9 R v Chow HC Auckland CRI-2006-032-356, 15 February 2007 at [17], confirmed by Chow v R [2013] NZCA 360. ...
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    ...concluded, on the basis of clinical assessments, that there was no reasonable possibility that the applicant was unfit to 1 Chow v R [2013] NZCA 360. WAN YEE CHOW v R [2014] NZSC 29 [28 March plead at the time of his trial in 2006.2 The Court decided that neither the disclosure of documents......
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