Malaysian building boss sees two fraud convictions quashed by Court of Appeal but still faces deportation

Hooi Keat Chai took his case to the Court of Appeal and walked away with mixed results. Photo / Michael Craig

A wealthy Malaysian businessman who was granted permanent residency under a different name while lying to immigration officials has been partially exonerated.

But despite the mixed result after a Court of Appeal challenge, Hooi Keat Chai still faces the prospect of being deported.

The 35-year-old was charged in March last year following Immigration New Zealand's (INZ) Operation Spectrum, a campaign to disrupt the flow of illegal workers from Malaysia.

A jury later found the Auckland construction industry boss guilty of providing false and misleading information to INZ.

He was also convicted of presenting a fraudulent work visa at the border on five occasions and acquitted on 17 other charges.

But after Chai, the sole director and shareholder of Team NZ Constructions Ltd (TNZ), was sentenced in June to seven months' home detention he took his case to New Zealand's second highest court in a bid to overturn his six convictions.

Today, the Court of Appeal released its full judgment and quashed two of the businessman's convictions.

The two overturned crimes were for producing a fraudulently obtained work visa, after the Court of Appeal ruled Chai's trial judge misdirected the jury over a question about false evidence shortly before they returned verdicts.

However, a conviction for providing false or misleading information to INZ and three other convictions for producing a fraudulently obtained visa will remain.

Chai's time in New Zealand began during 2003 when he entered the country under the name Kok Tong Chai.

But after his work visa expired in 2004 he was unlawfully in New Zealand.

Unbeknownst to Kiwi authorities, however, he flew back to Malaysia and changed his name to Hooi Keat Chai before returning to New Zealand several times.

INZ failed to recognise that Kok Tong Chai and Hooi Keat Chai were one and the same person before in 2014 he successfully applied for permanent New Zealand residency.

According to his financial records, Chai profited from Auckland's construction boom in the following years and lived an affluent lifestyle in east Auckland.

Through his lawyer Paul Dacre QC, Chai argued during the Court of Appeal hearing last month that his convictions came were the result of a pressured jury.

He also claimed the jury was misdirected and the blend of guilty and not guilty results were inconsistent with each other.

His October 2018 trial came in the midst of Ministry of Justice staff strikes, which saw the registrar involved in his case "work to rule" and be unavailable after 4.45pm.

Chai's jury began deliberating on a Friday afternoon after the week-long trial in the Auckland District Court.

At 4.43pm the judge explained to the jury that due to the industrial action they would have to continue deliberating the following Monday. But the foreperson said he was not available then due to work commitments, so the judge said they could continue without him.

In the meantime, however, a non-union registrar was found and allowed the jury to continue deliberating into the evening.

Construction boss Hooi Keat Chai, also known as Ben Chai, was sentenced to home detention. Photo / Jason Oxenham

After deliberating for some four and a half hours the jury was given the majority direction - allowing them to reach verdicts with only one dissenting juror.

At 8.47pm the jury finally reached their verdicts, which were unanimous on all 23 charges.

The Court of Appeal Justices David Collins, Timothy Brewer and David Gendall, however, dismissed the notion of a stressed jury.

"There is nothing before us to suggest this was a jury under pressure," their decision reads.

"We are satisfied that at no time did the judge suggest to the jury that there was any particular time pressure on their delivering a verdict. She had explained to them the possibility of continuing their deliberations on the following Monday. Once the non-[union] registrar became available, the jury had decided to continue with their deliberations on the Friday, conscious that they had other options available."

Chai also contested his jury was misdirected by the judge over a question about relying on false evidence, which came shortly before they returned verdicts.

The Crown conceded there was uncertainty in the direction given by the judge, and due to the lack of clarity, the Court of Appeal found convictions on two charges for producing a fraudulently obtained visa were unsafe.

But, the justices were satisfied the remaining four convictions should remain, including one for Chai personally signing a false visa application.

As part of his appeal, Chai also sought to overturn his failed bid for a discharge without conviction - fearful that a criminal record would see himself and his family, including two children, deported.

But the Court of Appeal ruled the businessman's fraud was deserving of a criminal record.

"The consequences of the appellant's convictions here are not out of all proportion to the gravity of his offending ... these offences involve deliberate deception of immigration authorities and are inherently serious as reflected by the maximum penalty on each charge of seven years' imprisonment," the judgment reads.

"Whatever form the fraudulent activity may take, be it in relation to passports or qualifications, or the concealment of true identities, it is to be viewed seriously by the courts.

"Any effect on the appellant's immigration status is a matter best left to Immigration New Zealand."

The Court of Appeal, however, did knock-off one month from Chai's home detention sentence, which expired last Thursday.

Chai had also unsuccessfully attempted to gag the Herald from publishing details of his case with a permanent suppression order.

As part of his bid for secrecy, Chai said TNZ would lose big-money offers with several construction projects - including with Downer and Fletcher - if his fraud was publicly known.

The liquidation process for TNZ began this year.

INZ's Operation Spectrum caught 105 people living in New Zealand illegally and uncovered a weakness in the country's border security.

Fifteen of those people had fled or been deported from New Zealand only to return using new identities.

The 105 people had, on average, lived in New Zealand unlawfully for five years, while one lived here illegally for two decades.