The Auckland woman who received New Zealand’s longest sentence for money laundering has engaged an ancient legal mechanism in a bid for freedom while she pursues an appeal.
Ye “Cathay” Hua’s legal team
appeared in the High Court at Auckland this afternoon to apply for a writ of habeas corpus to declare her imprisonment unlawful.
At the time of the hearing Hua had spent two nights in prison after the second humanitarian deferral of her sentence expired.
Her lawyers argued the legislation gave her the right to stay out of prison until her appeal is determined.
Counsel for the Department of Corrections said that could lead to absurd outcomes and people gaming the system by seeking short humanitarian deferrals of sentence, then filing an appeal to gain a much longer delay in their sentence starting.
Hua was sentenced in November to seven and a half years in prison after a jury found her guilty of 15 money laundering charges.
Judge David Sharp concluded Hua washed at least $18 million of dirty cash through her Newmarket money exchange businesss, mostly at the behest of Xavier Valent, who masterminded one of New Zealand’s largest drug syndicates while living a lavish lifestyle abroad.
At Hua’s sentencing on November 17, Judge David Sharp deferred the start of her sentence by 10 days on humanitarian grounds at the request of her then lawyer, David Jones KC.
He argued she needed time to arrange her affairs given she had vulnerable and dependent family members.
Hua then appealed her conviction and sentence. A further deferral of sentence was granted by the District Court.
A few days before Christmas, her new legal team of Nick Chisnall KC and Yvonne Mortimer-Wang successfully argued for bail to continue into the New Year.
Their arguments, along with those of the Crown, cannot be reported because legal restrictions prohibit publication of all but the barest details of a bail hearing aside from its outcome.
Justice Ian Gault heard her habeas corpus application today. Hua was not present – she surrendered herself to the custody of Corrections on January 17 when her second deferral expired.
Sam McMullan, who successfully prosecuted Hua for the Crown at her trial, appeared for the Department of Corrections.
Chisnall said the question of whether Hua’s detention was unlawful hinged on a section of the Criminal Procedure Act that states if a convicted person is released on bail before a comital order for their detention is enforced, the order is suspended until the appeal has been determined or abandoned.
“It’s an unusual scenario that we’re dealing with here,” Chisnall said.
McMullan said a humanitarian deferral of sentence was different to other types of bail and cited Section 100 of the Sentencing Act, which says a sentence can only be deferred on humanitarian grounds for up to two months.
He disputed any suggestion Hua was subject to arbitrary detention.
“In circumstances where a jury returned guilty verdicts and where a judge has sentenced her to a term of imprisonment, I would suggest that’s as un-arbitrary as one can get,” McMullan said.
In earlier submissions, McMullan had raised the possibility people might game the system in an attempt to stay on bail after they had been convicted and sentenced.
That was rejected by Chisnall, who said there was a high threshold for humanitarian deferral. But the argument found some favour with Justice Gault.
“It does seem to me there’s something in the point that there’s scope for a short humanitarian deferral to be sought on ostensibly valid grounds, but unbeknownst to everyone else for the purpose of then failing an appeal in short order.”
Justice Gault reserved his decision and did not give an explicit timeframe for its release.
George Block is an Auckland-based reporter with a focus on police, the courts, prisons and defence. He joined the Herald in 2022 and has previously worked at Stuff in Auckland and the Otago Daily Times in Dunedin.