R v He; R v Li

[2010] NSWDC 171

CITATION:	R v He; R v Li [2010] NSWDC 171
HEARING DATE(S):	9 - 12 August 2010
JUDGMENT DATE:	12 August 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Murrell SC DCJ
CATCHWORDS:	CRIMINAL LAW - Offences against the person -Kidnapping - "Advantage" - "Obtaining any other advantage"- Whether it must be an advantage to the accused - Judge alone trial - Verdict by direction
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	Davis v R [2006] NSWCCA 392 Jago v District Court of NSW (1989) 168 CLR 23 R v Manwaring [1983] 2 NSWLR 82
PARTIES:	Regina Jian HE Cairong LI
FILE NUMBER(S):	2009/239849; 2009/239971
COUNSEL:	Mr L Lungo of Counsel (Crown) Mr W Roser SC (Accused He) Ms M Fanning of Counsel (Accused Li)
SOLICITORS:	NSW Director of Public Prosecutions (Crown) Lloyd Truman Sadiq Solicitors (Accused He) Bondi Law (Accused Li)

Application for Verdict by Direction

1 At the close of the Crown case, each of the accused sought a directed verdict of not guilty.

The Original Charges

2 At the outset of the proceedings, I was satisfied that each accused had received legal advice in relation to his election to be tried by a judge alone, and the trial proceeded before me sitting as a judge alone.

3 When he was arraigned, each accused pleaded not guilty to four charges under s 86 (3) of the Crimes Act 1900. In the case of each accused, the first charge alleged that, on 16 August 2009 at Kingsgrove in the State of New South Wales, while in the company of other persons, he detained Mr C Tai without his consent and with intent to hold him to obtain an advantage, namely to influence Mr Tai not to pursue his claim for unpaid wages against PPG Investment Group Pty Ltd, and, at the time of detaining Mr Tai, actual bodily harm was occasioned to him. The second and third charges were in the same terms, except that the detainees were Mr Q Xue and Mr L Xue respectively. The fourth charge was in similar terms, except that it alleged that the accused detained Mr T Zhou with intent to influence the first three detainees not to pursue their claims for unpaid wages.

4 The Crown relied upon a joint criminal enterprise involving each accused and a co-accused, Mr Hong (Peter) Mi. The Crown did not assert that the accused were accessories to an offence committed by Mr Mi.

The Facts

5 Mr Mi was the principal in a painting company. The accused Mr He was the principal in an electrical /plumbing company. The accused Mr Li was the principal in a gyprock and cement company. The two accused and Mr Mi were the directors and shareholders of PPG Investment Group Pty Limited, a company that provided administrative services to the accused, Mr Mi and their companies. The accused and Mr Mi worked from premises in Kingsgrove. Each occupied a different office but shared a receptionist.

6 Messrs Tai, Q Xue and L Xue worked as painters under the direction of Mr Mi. He paid them in cash or by direct deposit to their bank accounts. They resided together in premises owned by Mr Mi. Mr Mi debited their rent from their pay. The three men believed that they were employed by PPG and that PPG owned the premises in which they resided. Mr Zhou was a friend of Mr Tai.

7 Mr Mi failed to pay the agreed wages to the three men. They expressed dissatisfaction. Mr Mi promised to pay the outstanding wages, but failed to do so. It was arranged that, on the evening of Sunday 16 August Mr Mi would meet the three men at the Kingsgrove office for the purpose of discussing their outstanding wages.

8 Mr Zhou drove Mr Tai to the office and accompanied him inside. Mr Q Xue and Mr L Xue travelled to the office in a taxi. Mr Mi and both accused were at the Kingsgrove premises. Approximately eight Asian men began to assault Messrs Tai, Q Xue, L Xue and Zhou. From time to time, the assailants communicated with Mr Mi. At one stage, the accused called Mr Q Xue and Mr L Xue to a room. As they waited within the room, they heard the sounds of an assault outside. Over a period of one or two hours, each of the four men was kept at the premises and, from time to time, subjected to punches and kicks. Finally, one of the accused told the men that they could leave.

9 There was no evidence of direct communication between the accused and the assailants or between the accused and Mr Mi. Both accused were present throughout the assaults. On two occasions they communicated with the detainees; once, to call Mr Q Xue and Mr L Xue into a room, and once to inform the men that they could leave.

The application

10 Following the Crown opening, both accused sought a permanent stay of the proceedings, arguing that it was an abuse of process to permit the Crown to proceed when the Crown lacked evidence capable of establishing advantage or joint criminal enterprise. The accused argued that, as the detainees were employed by Mr Mi or one of his companies and were not employed by PPG, the accused stood to gain no advantage if the detainees abandoned their wage claims. Further, the presence of the accused at their office premises and the limited verbal communication between the accused and the detainees was inadequate to establish joint criminal enterprise.

11 I refused the application for a permanent stay. Proceedings will be stayed where a trial would necessarily involves an abuse of process in the sense that the trial would be incapable of serving its purpose, ie would be incapable of finally determining whether an accused had engaged in the alleged criminal conduct: Jago v District Court of NSW (1989) 168 CLR 23 per Brennan J. at 47. The absence of evidence would rarely, if ever, render a trial unfair. In these proceedings, deficiencies in the evidence were not such as to render the trial unfair.

12 Following the refusal of the stay application, I granted the Crown leave to amend the indictment to delete the references to PPG. As a result of the amendments, in the case of each count, the alleged advantage became the advantage of influencing a detainee or detainees "not to pursue his (or their) claim for unpaid wages". The accused sought particulars of the unpaid wages. The Crown provided particulars in the following terms (Voire Dire Exhibit 2):

"Hong (Peter) Mi was under an obligation to pay the wages of (the detainee). As at August 2009 (the detainee) was owed the amount of … in unpaid wages by Mr Mi…”

13 The hearing proceeded. The Crown case comprised the tender of witness statements, company records, bank records and other documents (Exhibit 1, being Voire Dire Exhibit 1 minus the transcripts of telephone intercepts).

14 At the close of the Crown case, each accused sought a directed verdict on the basis that the only possible intended "advantage" disclosed by the evidence was an advantage to Mr Mi. Each accused contended that, in order to establish an offence against s 86, the Crown must prove that each accused intended to obtain an advantage for him/herself. The Crown Prosecutor conceded that he was unable to argue against that proposition.

The Legislation

15 Section 86 relevantly provides:

“86 (1) Basic offence

A person who takes or detains a person without the person’s consent:
(a) with the intention of holding the person to ransom, or
(b) with the intention of obtaining any other advantage,

is liable to imprisonment for 14 years."

16 Section 86 (2) creates an aggravated form of the offence and s 86 (3) creates a specially aggravated form of the offence.

17 Section 90A was the substantive predecessor to s 86 (s 85A replaced s 90A, but was renumbered s 86 by Act 117 of 2001). Section 90A provided:

"Whosoever leads takes or entices away or detains a person with intent to hold him or her for ransom or for any other advantage to any person shall be liable to imprisonment for 20 years or, if it is proved to the satisfaction of the judge that the person so led taken enticed away or detained was thereafter liberated without having sustained any substantial injury, to imprisonment for 14 years.
…" (emphasis added)

18 An interesting discussion of kidnapping law from biblical times to the present is to be found in the leading decision of Howie J in Davis v R [2006] NSWCCA 392. When discussing the introduction of s 90A, at [43] His Honour stated:

"[43] The manifest purpose of the modern kidnapping provisions was to provide for more serious and definite penalties than might otherwise be appropriate for an offence which at common law was a mere misdemeanour. The real evil against which the provisions were directed was not the physical removal of the victim from the jurisdiction, but the intent to hold the victim for some advantage to the offender. Accordingly, proof of mere detention without asportation would be enough to make out the offence so long as the requisite intent could also be proved.” (emphasis added)

19 In the present context, His Honour's summary of R v Manwaring [1983] 2 NSWLR 82 is also of interest because it draws attention to a distinction between intent to advantage the offender and intent to advantage another. In Davis at para [45] and following, his Honour said of Manwaring:

"[45] … That was a case concerned with s 89 of the Crimes Act, now repealed, which contained the offence of forcible abduction of a woman. It was in the following terms:

Whosoever by force takes away, or detains against her will, any female of any age, with intent to marry or carnally know her, or to cause her to be married to or be carnally known by any person, shall be liable to penal servitude for fourteen years.
The question arose as to whether the provision contained two offences or only one. …
[46] The majority of the Court, Miles J with whom Street CJ agreed, held that there were two offences created by reason of the two distinct mental elements of the offence. …
[47] It was held that a charge under s 89 of the Act alleging that “the accused did by force take a woman against her will with intent to cause her to be carnally known by him and other persons or any of them” was bad for duplicity and uncertainty. …”

20 As the Crown Prosecutor noted, s 178BA, a recently repealed fraud provision provided:

"178BA Obtaining money etc by deception
(1) Whosoever by any deception dishonestly obtains for himself or herself or another person any money or valuable thing or any financial advantage of any kind whatsoever shall be liable to imprisonment for five years …" (emphasis added)

21 Provisions such as the repealed s 178BA and 89 create two distinct offences, one involving an offender who intended to advantage him/herself, and one involving an offender who intended to advantage another person. Section 90A employed the expression " with intent to hold for … any other advantage to any person", which encompassed both advantage to the offender and advantage to another person.

22 It follows that, when the legislature chose to replace the s 90A expression with the more limited expression "obtaining any other advantage", it must have intended to limit s 86 to situations where an offender intends to advantage him/herself. The fact that s 86 employs the word "obtaining" tends to confirm that s 86 is concerned with an offender who intends to "obtain" something for him/herself in the sense that he or she intends to personally acquire or achieve a thing or an outcome.

23 It is the Crown case that each accused intended to achieve an outcome for another person, Mr Mi. Consequently, there is no prima facie case. I direct myself accordingly. In relation to each count in the indictment, I find each accused to be not guilty.