Chow v R

• Jurisdiction: New Zealand
• Judge: Arnold J
• Judgment Date: 12 August 2013
• Neutral Citation: [2013] NZCA 360
• Docket Number: CA695/2011
• Court: Court of Appeal
• Date: 12 August 2013

BETWEEN

Wan Yee Chow

Appellant

and

The Queen

Respondent

[2013] NZCA 360

Court:

Arnold, Harrison and White JJ

CA695/2011

IN THE COURT OF APPEAL OF NEW ZEALAND

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.

Counsel:

M M Wilkinson-Smith and M Kan for Appellant

C L Mander and M E Ball for Respondent

• A The application for an extension of time to appeal is granted.

• B The appeal against conviction and sentence is dismissed.

JUDGMENT OF THE COURT

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 July 2005, Mr Chow directed Mr Taylor to drive back to the karaoke bar and park in a street behind the block where the karaoke bar was located. Mr Chow told Mr Taylor to wait in the car and went to the boot. Mr Taylor became concerned, left the vehicle and saw Mr Chow putting on dark clothing and removing a handgun and bullets from a bag in the boot. Mr Taylor got back in the car and waited while Mr Chow hid behind the bar.

7 At about 4.30 am Mr Tam, who was returning home from the restaurant with his fiancée, drove into the car park behind the karaoke bar. As he got out of his car, Mr Tam saw the figure of Mr Chow approaching and asked who he was. Mr Chow then fired a single shot into Mr Tam's chest, ran back to his car and returned to Wellington with Mr Taylor.

8 The murder was witnessed by Mr Tam's fiancée. She was still in the car when Mr Tam got out. She heard the central locking system activate. She looked out of a car window to see a man with a covered face come close to Mr Tam. She saw Mr Tam being shot. She knew Mr Chow. Based on the height and build of the person, she said in evidence that he “looks like the shape and everything, really like Golo [Mr Chow]”. She then smashed a window to get out of the car.

9 Mr Taylor heard a bang before Mr Chow returned to the car and said they were returning to Wellington. They immediately drove back to Wellington. The two men disposed of a handgun and ammunition. They wrapped the ammunition up in a plastic shopping bag and buried it, along with the handgun, in a bucket. The police later recovered these items with assistance from Mr Taylor. The pair's fingerprints were found on the plastic shopping bag and the recovered ammunition was linked to the bullet taken from Mr Tam's body.

10 The sole issue at trial was identity – was it Mr Chow who murdered Mr Tam? As Mrs Wilkinson-Smith acknowledged, the Crown advanced a strong prima facie case against Mr Chow. That case rested on a number of factors, including:

• (a) the evidence of Mr Taylor;

• (b) the evidence of Mr Tam's fiancée;

• (c) Mr Chow's experience as an employee of Mr Tam and his knowledge of Mr Tam's premises and movements;

• (d) evidence that Mr Chow had been seen in suspicious circumstances on or near Mr Tam's premises both before and on the night in question; and

• (e) Mr Chow's apparent involvement in the disposal of the handgun and ammunition (as indicated by the presence of his fingerprints on the plastic bag in which the bullets were wrapped).

11 The Crown also relied on a notebook found in Mr Chow's residence, which contained a sketch of a handgun above which was written “10,000”. The notebook contained Chinese writing. Mr Taylor said that Mr Chow owned such a notebook, but that he did not know whether Mr Chow made the sketch. Mr Chow's brother, Mr Leung Yin Chow (known as Mr Stanley Joe), has filed an affidavit in the appeal in which he says that Mr Chow had nothing to do with the sketch and that another individual (whom he named) drew it. On the Crown's case, the material in the notebook supported Mr Taylor's evidence that Mr Chow was to be paid $10,000 by a person from the restaurant when the pair returned from Auckland. In closing, prosecuting counsel suggested that the $10,000 might have been blood money for Mr Tam's death, although he acknowledged that there was no certainty about this.

12 Mr Taylor was granted immunity from prosecution and gave evidence against Mr Chow. Mr Chow was represented by Mr Peter Kaye, with assistance from Mr Hugh Leabourn. Mr Chow denied (and continues to deny) that he committed the murder. Mr Kaye cross-examined Mr Taylor on the basis that it was he who had shot Mr Tam. The motive suggested was that Mr Taylor was afraid of Mr Tam because he had heard that Mr Tam had been paid $10,000 by one of Mr Taylor's debtors to cause Mr Taylor “trouble”. The defence also suggested that another Crown witness had a motive to kill Mr Tam. This witness was a former partner of Mr Tam's fiancée, who had previously threatened to kill both Mr Tam and his fiancée.

13 Mr Chow did not give or call evidence, although Mr Leabourn had prepared a preliminary brief of evidence for him. In it Mr Chow acknowledged that he did drive to Auckland with Mr Taylor as alleged. He said, however, that he did not go to the karaoke bar with Mr Taylor but rather met a friend at a “prostitutes' place”, which he named, and was there until Mr Taylor picked him up at 5.30 am on the morning of the murder. He denied having anything to do with the handgun or its burial. Mr Joe offered to assist Mr Kaye by providing details of a person who could give evidence for Mr Chow. Mr Kaye made enquiries and located two potential alibi witnesses. Mr Kaye annexed a file note of his interview with one of them to his affidavit. The witness confirmed that he and Mr Chow had gone to a “massage parlour” on the night in question. Although an alibi notice was given, Mr Chow subsequently gave written instructions that none of the two potential alibi witnesses or his brother Mr Joe was to be called by the defence.

Mr Chow's background

14 Given the issues raised by the appeal, we should briefly outline Mr Chow's personal background. Mr Chow, now 61, was born...