An insult to NZ or a win for justice

Updated: 2011-09-02 11:07

By Yvonne Brill (

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Hiren Mohini will be remembered by his family as a good husband and loving father, but for most others, Mohini will be remembered as the tragic victim of murder for which the investigation spanned the geographic and cultural divide between New Zealand and China, and concluded in a trial that has been described as "a completely new process" by some, and denounced as "an insult to the jurisdiction of New Zealand" by others.

Mohini, a taxi driver, was found dead of multiple stab wounds in a central Auckland suburb after having picked up a fare from the central city in January 2010. Police investigating the case quickly identified Chinese national Zhen Xiao, who had been studying and working in New Zealand, as a person of interest, but before Zhen could be questioned, he fled the country and returned to China.

In the past, this might have been the end of any hope for justice. New Zealand and China do not have an extradition treaty, and, in any case, China's extradition law clearly states that extradition requested by a foreign state will be rejected if "the person sought is a national of the People's Republic of China."

However, in 2006, officials from China and New Zealand signed the Mutual Legal Assistance in Criminal Matters treaty, agreeing to provide "assistance... in matters such as the taking of evidence for court, the execution of search warrants, and the recovery and forfeiture of proceeds of crime." It was under the auspices of this treaty that New Zealand police began an investigation with the cooperation of Chinese police, which resulted in Zhen being located and arrested in Shanghai, some six months after the murder occurred.

While the extradition of Zhen to New Zealand was unlikely to ever occur, what did happen was a legal first for the New Zealand justice system. Chinese law prohibited the extradition of Zhen, but Chinese courts have jurisdiction over crimes committed by its citizens abroad. That is, they are able to prosecute citizens who commit crimes outside of the physical borders of the country. After some negotiation, it was agreed that Zhen would be tried for his alleged crimes in China, with the cooperation of the New Zealand police in providing details and evidence from the investigation.

This proved to be a first in New Zealand criminal history, as a person had never before been tried in a foreign country for a crime committed in New Zealand. Zhen was found guilty and is to serve a 15-year sentence for his part in Mohini's death. The New Zealand judicial system does not impose the death penalty, and assurances were given that this sentence would not be handed down by the Chinese courts in this case.

New Zealand is a sovereign nation, and one of the basic tenets of that sovereignty is the ability to provide justice, through a legal framework, for citizens who are victims of crime committed in the country. The New Zealand Herald reported that the trying of Zhen in China was denounced by Associate Professor Bill Hodge of the University of Auckland as "an insult to the jurisdiction of New Zealand."

Professor Hodge described the duty of a sovereign nation as delivering justice to the family of the victim, stating that while the New Zealand police had done their best, they could not "deliver justice... and that is the regret."

While it is indeed true that the duty of a sovereign nation is to its citizens, it should be remembered that in the case of the Zhen trial, justice was delivered. When considering that the primary goal of this exercise was to ensure justice was served and to determine the guilt, or innocence, of an individual, whether the case was tried in New Zealand or China seems inconsequential.

The most important outcome of this case is that justice has been served for the victim and his family. It is an outcome that is universally acknowledged as being important to society - that those who commit crimes are required to face the consequences of their actions.

Hong Kong-based journalist and commentator Frank Ching, writing for the Japan Times, described China's actions as "eminently reasonable," saying "there is no denigration of New Zealand or its national or judicial sovereignty." Ching's argument, that China's stance is similar to that of other countries that decline to have their nationals extradited to overseas jurisdictions for trial, and therefore trying Zheng for the crime is the next best option, seems logical to me.

Despite the vast cultural differences between New Zealand and China, the international cooperation of these countries has ensured justice was served for the Mohini family. Professor Hodge's opinion that this is a blemish on New Zealand's jurisdiction focuses on the least important aspect of this case, and while it is certainly preferable that criminal trials take place in the country the crime was committed for a variety of reasons - including differing judicial systems, cultural norms or expectations, and sentencing - ultimately the most important factor of a trial is that the guilt or innocence of the accused be determined, and the consequences of this decision are applied accordingly.

Surely the diplomatic cooperation of police forces in the interest of obtaining justice for the victim is more important than legal or political posturing. As a New Zealander, I choose to view the case as a win for justice, rather than a loss for New Zealand's legal jurisdiction.

Yvonne Brill hails from Auckland, New Zealand. She is currently completing her Masters in Communication Studies from AUT University and will graduate in mid-2012.