The Auckland woman given New Zealand's longest sentence for money laundering has failed in her bid to be freed from prison while she pursues an appeal.
Ye "Cathay" Hua's legal team went to the High Court at Auckland a little over a week ago to seek a writ of habeas corpus to declare her imprisonment unlawful.
At the time of the hearing on Friday, 19 January, Hua had spent two nights in prison after the second humanitarian deferral of her sentence expired.
In his recently released judgment, Justice Ian Gault dismissed Hua's habeas corpus application.
Habeas corpus is a legal procedure dating back nearly 900 years to the reign of Henry II in the 1100s, and predating the Magna Carta, allowing people to challenge the legality of their detention.
Hua's lawyers argued she had the right to stay out of prison until her appeal was 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 jailed in the Auckland District Court in November for 7½ years 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 business, mostly at the behest of Xavier Valent, who masterminded one of New Zealand's largest drug syndicates while living a life of luxury overseas.
At Hua's sentencing, Judge 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 that she had vulnerable and dependent family members.
Hua then appealed against 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.
Hua was not present when her habeas corpus application was heard as she had surrendered herself to Corrections custody two days earlier.
Her lawyers argued that she was on bail when her sentence started and therefore was entitled to remain on bail pending the determination of her appeal.
Sam McMullan, who successfully prosecuted Hua for the Crown at her trial, appeared for Corrections.
He argued 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 be deferred on humanitarian grounds only for up to two months.
He disputed any suggestion that 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.
He raised the possibility that 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 filing an appeal in short order," the judge said.
Chisnall said the question of whether Hua's detention was unlawful hinged on Section 344(3) of the Criminal Procedure Act, which states that, if a convicted person is released on bail before a committal order for their detention is enforced, the order is suspended until the appeal has been determined or abandoned.
In his judgment, Justice Gault said the Criminal Procedure Act was enacted after the Sentencing and Bail Acts.
It should not be taken to override sections of the latter two acts stating a sentence can only be deferred on humanitarian grounds for two months, and that the convicted person should surrender at the end of that period.
"Ms Hua can apply for bail pending appeal," Justice Gault wrote.
This article was first published by The New Zealand Herald.