A man convicted for his part in a scam blackmailing massage parlours has appealed his convictions claiming his lawyer's advice not to take the stand led to a miscarriage of justice.
In May, Chen Chen was sentenced to 200 hours community work, six months supervision and ordered to pay $700 reparation on two charges of blackmail.
His co-accused, Lei Max Zheng, was jailed for three years on five counts of blackmail.
Zheng led a crew of five men, including Chen, who threatened to burn down Chinese massage parlours unless their owners paid them protection money.
The group demanded a $100 protection fee per working girl per week.
Among the parlours targeted were Thai Foot Massage, Chinese Top Massage, Eternity Massage and Beauty 28.
Two women paid a total $500 for the men to go away.
On October 29, 2010, the courts were told Zheng told the manager of Chinese Top Massage: "If you don't pay the money we are going to bring the petrol over and burn your house down.''
According to a recent Court of Appeal decision, Chen wasn't a central figure in the plot, his role was to ''supplement numbers'' and act as the group's English interpreter.
Chen appealed his convictions on the basis his trial lawyer, Elaine Ward, told him not to give or call evidence ''leading to or contributing to a miscarriage of justice''.Graeme Newell, representing Chen, argued Ward had failed to ''appreciate Chen had no option but to give evidence in his defence''.
''Mr Zheng was so plainly guilty of committing blackmail on three separate occasions proceeding Mr Chen's participation that the jury would completely reject his evidence. So, without Mr Chen's own exculpatory account, the jury would be left with overwhelming and unanswered evidence of his guilt,'' the decision reads.
The appeals judges rejected that argument which they said was made ''with the comfort of hindsight'' and didn't account for Ward's first hand knowledge and direct involvement in the case.
Ward, the decision reads, had doubts about the ''reliability'' of her clients' evidence.
He had claimed that at one massage parlour standover he had paid no attention because he was playing games on his phone.
Ward double-checked by viewing CCTV footage which showed Chen leaning forward and ''apparently listening to a critical conversation between Mr Zheng and one of the complainants''.
The decision said Ward was also concerned about incriminating text massages sent and received by Chen that showed his presence at the parlours: ''Plainly this was a counsel of prudence.''
The appeals judges rejected the appeal and said Ward properly explained her concerns to Chen and her advice had ''more than a reasonable foundation''.
''It was classically a case where each of the available alternatives - to give evidence or not to give evidence - carried risks''.
- © Fairfax NZ News
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