Haoyu Gao, left, with a supporter leaving the High Court at Auckland. Photo: Tim Murphy

Kiwifruit exporter Zespri now claims an Opotiki grower Haoyu Gao, who it accuses of smuggling highly valuable gold fruit plants to China, may have done the same into Australia.

Gao’s name suppression was lifted by Justice Sarah Katz in the High Court at Auckland yesterday where Zespri is seeking damages of up to $30 million for infringement of its intellectual property rights to the G3 and G9 kiwifruit it developed over years with New Zealand scientists.

Gao, his wife Xia Xue and their company Smiling Face Ltd are at the centre of the Zespri action alleging plant material taken from this country has been used for at least four orchards covering 167 hectares of land in China. China is one of the world’s biggest markets for kiwifruit and Zespri claims to have had big plans to export the gold kiwifruit there.

The court has heard of an extensive inquiry by Zespri in China involving private eyes and also NZ border protection agencies searching Gao as he left to and returned from China with grafting tools, a police investigation that did not lead to a criminal prosecution but delivered phone and social media records to Zespri, and samples of fruit and leaves being secured and DNA tested from the Chinese orchards.

The company started pursuing Gao after a WeChat group discussion about gold kiwifruit plants featured a photo of Gao’s New Zealand grower number, #914. It alleges he signed a fake authorisation contract with China-based grower Changqing Shu purporting to give Shu the rights to not only sell the special gold kiwifruit in “the entirety of China” but also to sell the plant material across the country.

Zespri’s global production manager Shane Max said in evidence yesterday documents Zespri obtained under the Official Information Act after the police investigation showed Gao also conspired to export Zespri’s G3 and G9 plant material to a grower in Victoria, Australia. The communications discussed the best ways of taking kiwifruit plant material into Australia without being detected, with Gao and another man agreeing multiple use of couriers was safest. 

Max said one message said: “Courier many times… less risky than carrying by human. If couriered with other goods there may be chances to get through.”

The Zespri official told the court: “I have never known anyone legitimately exporting kiwifruit plant material doing so like Mr Gao.”

Gao’s lawyer, Eugene St John, earlier said his client denied taking the plant material to China and only ever discussed growing techniques for the gold fruit on WeChat and other communications.

In cross examination of an earlier Zespri witness, St John suggested the China-based grower Shu had also come to New Zealand as had others he was associated with.

Max said the supply of the G3 gold plant material was consistent, however, with Gao’s travel to China. In one message he had agreed to take “fruit” among his list of things for a trip.

One Gao message, translated for Zespri, told a colleague in China where a new variety could be located: “For the reason we know each-other, I tell you a secret. There is a variety I brought. The variety is planted between the power station canal and close to the graveyard […] What you do is up to you.”

The case is expected to last all week.

Tim Murphy is co-editor of Newsroom. He writes about politics, Auckland, and media. Twitter: @tmurphynz

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