Fish shop caught in sting

Gisborne Courthouse

BEFRIENDED by an undercover fisheries officer, Elgin Fish Shop owner Dan Chen bought two hauls of illegal paua during an MPI crackdown on black market paua racketeering, Gisborne District Court has heard.

Chen claimed it was entrapment; that the fisheries officer deliberately caused him to commit an offence in order to get a prosecution.

But Judge John McDonald ruled it was legitimate undercover work of the type necessary to stop such offending. The undercover fisheries officer provided the opportunities for Chen to offend but that was all.

In a reserved decision released yesterday after a pre-trial hearing in the court last month, Judge McDonald said he was satisfied there was no unfair pressure, coercion or encouragement placed on Chen to offend. He was not seduced or lured into the illegal activity.

From the start, Chen was a willing participant with an interest in buying paua and deer. He must have made such purchases previously — he referred during the transactions to what he “usually” paid, the judge said.

Chen will be sentenced on July 29 for two charges of obtaining a benefit by knowingly buying ordinary paua in breach of the Fisheries Act 1996.

Ministry of Primary Industries (MPI) Gisborne fisheries officers honed in on Chen after a tip-off from four people they apprehended with 309 shucked paua at Kaiaua, north of Tolaga Bay. It was said to be intended for an Asian man at the Elgin Fish and Chip Shop.

Evidence against Chen during the hearing came from Tatai Kutia, a fisheries officer of 11 years, who went undercover as a man called “Mark” during “Operation Shoestring” — launched by Gisborne MPI in June 2014 with an aim to catch Gisborne’s black market paua racketeers.

Mr Kutia started frequenting the takeaway shop and befriended Chen over a five-month period.

Chen asks not to tell the councilAt one stage, Mr Kutia asked Chen if he knew the best way to cook fish. Chen said he would cook it for him there but not to tell the council.

Mr Kutia initially tested Chen’s interest in paua by taking a small chilly bin of about 50 undersized ones (previously seized by MPI) to the takeaway shop.

When Chen inquired what was in the bin, Mr Kutia showed and offered him some. Chen said he was interested but wanted “lots, “hundreds, big ones”.

“You bring me, I pay you,” he said.

On September 19 that year Chen paid Mr Kutia $220 for 105 paua, saying it was more than he usually paid because they were friends. He wanted more “any time” and Mr Kutia should “be careful”.

On November 11 Mr Kutia took 300 paua, shucked at Chen’s request, to the shop but was told by Chen “too many Pakeha” went there.

Chen arranged for his mother to bring $450 and travel with Mr Kutia back to the Roebuck Road Dairy, where the Chens lived in an attached house.

Defence counsel Tony Robinson submitted the actions of the undercover officer went beyond what was lawfully acceptable and went well beyond simply providing an opportunity for the offending to occur.

Mr Kutia’s actions were unfair and amounted to abuse of process, in which the evidence had been improperly obtained, Mr Robinson said.

Mr Kutia had established a close friendship with Chen, then abused the trust involved.

But Judge MacDonald ruled in favour of MPI. He acknowledged Mr Kutia held himself out as someone willing to engage in illegal activities but said it was not illegitimate or unfair. It was the nature of undercover work and such operations could not otherwise succeed.

Chen was well aware that what he was doing was illegal. He had been cautious throughout the process — avoiding security cameras in his shop, being careful not to talk about the paua in front of others including his staff, and making mention of police and the council.

That awareness undermined any suggestion he was under pressure to purchase the paua.

There was no evidence of pressure being applied to Chen, the judge said. Chen gave Mr Kutia his name and contact details and willingly communicated with him in texts.

The two sales that occurred were on his terms as to the quantity, size, requirement to be shucked, price and where they were to be delivered.

The friendship was more an acquaintance and limited to contact the pair had at the shop and in texts. Sometimes there was no contact for long periods.

While Mr Kutia had conceded some of his recall of events and conversations along with his notes might be inaccurate in some respects, the essence of what was said could be relied upon, the judge said.