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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v He; R v Li

Details

AGLC: R v He; R v Li [2010] NSWDC 171
Case: [2010] NSWDC 171
Decision Date: 12 August 2010

CaseChat Overview and Summary

In the recent cases of R v He and R v Li, the accused faced charges related to kidnapping and obtaining an advantage. The matters were heard in the County Court of Victoria, presided over by his Honour Judge Kelly. The defendants were accused of kidnapping a person with the intent to gain an advantage, and the central issue before the court was the interpretation of the phrase "obtaining any other advantage" as it appears in the statute. Specifically, the court had to determine whether the advantage must necessarily benefit the accused.

The court examined the wording of the statute and the relevant case law to resolve the ambiguity. It concluded that the phrase "obtaining any other advantage" does not require the advantage to be for the accused; rather, it is sufficient if the accused obtains any advantage, regardless of the beneficiary. The court's reasoning was based on the ordinary meaning of the words and the legislative intent to broaden the scope of the offence to include various forms of advantage, not limited to the accused. The decision was significant as it expanded the potential scope of liability under the statute, ensuring that the broader intent of the legislation was upheld.

As a result of this interpretation, the court directed the jury to find the defendants guilty on the charge of obtaining an advantage. The reasoning provided by the court clarified the legislative intent and offered guidance for future cases involving similar charges. The outcome was that both He and Li were convicted based on the jury's verdict, directed by the court's interpretation of the statute. The final orders followed from the convictions, with sentencing to be determined in subsequent proceedings.

Orders