Christchurch restaurant owner who served up unsafe food has sentence reduced

By Al Williams, Open Justice reporter

A Christchurch restaurant owner who sold toxic food to customers and directed the recalled product to be eaten by her staff has received a reduced penalty after she was sentenced on the wrong summary of facts.

Xinchen Liu was originally sentenced to six months’ home detention and fined $30,000 for her role in failing to ensure food in her restaurant was safe and suitable to eat.

The courts found she was also reckless as to whether that failure created risk to lives when she directed staff to retain recalled meals and contravened the Immigration Act by employing staff who were either meant to be working elsewhere or not lawfully entitled to work in New Zealand.

Now, that sentence has been amended after she reappeared today for resentencing in the Christchurch District Court where Judge Raoul Neave said he didn’t have the right summary of facts in front of him at the earlier sentencing last week.

When unsafe levels of Staphylococcus aureus were detected in samples of frozen food at Samurai Bowl on Colombo St, Christchurch, posing a risk of food poisoning to customers, authorities ordered owner Liu to recall and destroy all ramen meals.

Instead, she directed staff to repurpose the ingredients – some of which were served to customers and others were given to staff as meals while on duty.

Liu also employed three staff, two of whom held work visas with conditions only allowing them to work at unrelated companies.

The third was not lawfully able to work in New Zealand.

Judge Raoul Neave originally sentenced Liu on April 8.

He also gave permission for a copy of the summary of facts to be released to the media, which was used as the basis of a story run by NZME. It was only when that story was published that the discrepancy between the summary of facts was noticed by Liu’s lawyer.

Today, Judge Neave said he was operating off the only summary of facts he had available that day, but it wasn’t the correct one.

While the first summary of facts looked “worse” than the agreed one, the judge said he was not sure whether it would have made a difference to his starting point for sentencing.

“I’m not proposing to make a significant change, I’m not blaming anybody, but somehow it happened, I only had the one summary.”

The agreed facts

The agreed summary of facts said unsafe levels of the bacterium were detected in samples of the frozen ramen meals in May 2019.

The levels detected in two samples were 1100 cfu/g and 12,000 cfu/g. Levels above 1000 cfu/g are considered unsatisfactory. Levels above 10,000 are considered unsafe.

A month later, a recall of all Samurai Bowl ramen meals began. All frozen meals manufactured after Liu took control of the business three months prior were included as her poor record-keeping did not allow specific batches to be traced.

Liu conducted a recall as required and sent food safety officers pictures of discarded meal wrappers.

The recall order was closed in August on the expectation she had done what was required to remove the risk to the public.

However, she had done the exact opposite

and had not disposed of the recalled meals.

Recalled meals were instead stored in freezers and a quantity of them were defrosted, separated into their component parts of miso soup, noodles and meat, which was then put into containers and re-frozen.

Liu directed that the recalled meals be available for staff to eat while the miso soup and meat from the meals was served to customers.

Defence lawyer Grant Tyrell said in court it was appropriate to emphasise the impact (of having the wrong summary used) on his client, given the matter was always going to attract media attention.

Hugely stressful

After today’s resentencing Tyrell told NZME that Liu reiterated her apology provided to the court for the mistakes she has made and accepted through her guilty pleas.

“She acknowledges, as did the court, that she got became out of her depth in 2019 and this led to mistakes being made, including around the failure to fully comply with a food recall.

“Publication of unproven and denied allegations that went well beyond the mistakes she had accepted, and was (to be sentenced) on, has been hugely stressful for Ms Liu and her staff.

“It has fuelled hurtful and unfair criticism.”

Tyrell said Liu was grateful to the court for acknowledging the error and confirming her sentence in accordance with the mistakes she did make.

“Ms Liu has worked hard over the last five years to ensure compliance with all relevant laws and regulations, including food regulations and inspections and will continue to work hard to regain the trust of her customers.”

A modest adjustment

Judge Neave said he was not convinced whether there would have been any difference to the outcome had he been provided with the correct summary of facts.

The judge said there were significant discussions between parties on the summary, which removed some significant aspects in relation to the food-related charges.

A modest adjustment would be made because of the appearance of justice, Judge Neave said.

The home detention sentence was reduced by two weeks to five and a half months.

Judge Neave had originally fined Liu $20,000 plus $149 court costs for the Ministry of Primary Industries related charges and $10,000 plus $149 court costs for the Ministry of Business, Innovation and Employment related charges.

The Ministry of Primary Industries related charges were reduced to $15,000 plus $149 court costs while the Ministry of Business, Innovation and Employment related charges remained at $10,000 plus $149 court costs.