R v Ze Wang Sun
[2004] VSCA 190
•20 October 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 115 of 2004
| THE QUEEN |
| v. |
| ZE WANG SUN |
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JUDGES: | WINNEKE, P., BUCHANAN and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 18 and 20 October 2004 | |
DATE OF JUDGMENT: | 20 October 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 190 | |
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Criminal Law – Blackmail – Directions on issue of identification adequate where real issue for jury was one of credibility between evidence of victim and that of accused – Sentence of two years with minimum of one year charitable.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C., D.P.P. and Dr S. McNicol | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr M. Perry (on 18 October) | Halikopoulos Lawyers |
| In person (on 20 October) |
WINNEKE, P.:
The applicant Ze Wang Sun ("Sun"), who is 38 years of age, was arraigned in the County Court in May 2004 on one count of "blackmail" and alternate counts of intentionally or recklessly causing serious injury. The victim in each case was said to be one Peter Yu Min Wu ("Wu"). Sun was presented for trial with an alleged confederate, Guo Fei Chen ("Guo"). Guo applied for and was granted a separate trial.
After a trial lasting six days the applicant was convicted of "blackmail" (count 3), but acquitted of intentionally and recklessly causing serious injury (counts 4 and 5). On 21 May 2004, the trial judge sentenced the applicant to two years' imprisonment for the "blackmail" and fixed a period of 12 months as the period to be served by the applicant before being eligible for parole.
The applicant has appealed against both the conviction on count 3 and also the sentence imposed. The grounds asserted in the notice of application are:
1. Error in failure to discharge the jury after "dock identification".
2. Failure to adequately direct the jury on the issue of identification.
A problem arose at the outset of this application which deprived it of much of the content which no doubt it would have had if the applicant had been legally represented. The fact of the matter is that, although he was represented by experienced counsel when the matter was first called on two days ago, counsel indicated to the Court that problems had arisen between him and the client, which led the Court to adjourn this matter until this morning. When the Court convened this morning, counsel informed us that he was no longer instructed to appear and the applicant indicated that he wished to present his own arguments to the Court. This had inevitable difficulties about it because he speaks little English and the matters that he put to the Court had to be interpreted to us. The applicant, of course, was disadvantaged because he is not legally trained and his arguments were not solely directed to those grounds of appeal set out in the notice of application. As a consequence, latitude had to be given to him.
Summary of Relevant Facts
It is necessary to recite, in order that these reasons become intelligible to those who might hereafter read them, a summary of the relevant facts. The events that led to the prosecution of the applicant Sun began in 2001 but escalated in April and May 2002. They appear to have involved a number of men from both Sydney and Melbourne, some of whom ultimately confessed their guilt and have been dealt with prior to and subsequent to the applicant. Wu, who was the victim of Sun's criminal activities, was himself initially immersed in those activities and, accordingly, was regarded in the course of Sun's trial as an accomplice whose evidence necessarily fell to be carefully scrutinised.
Wu was, at material times, the owner and operator of a business called "Shiny Embroidery Pty Ltd" which conducted its operations from a factory in Collingwood. Wu employed a number of people in the business, including one Bin Chen, who was - in turn - an associate of Guo, who lived in Sydney and was said by the Crown to be an associate of the applicant. Indeed, there appear to have been so many people engaged in this particular fraud (which, at no time, as I understand it, was worth more than $74,000) as to make it appear that it was bordering on the absurd. It also tends to make it appear that the full story did not emerge even at trial.
In any event, in mid-2001, Bin Chen introduced Guo Fei to Mr Wu at his premises in Collingwood. Guo Fei was in possession of some false credit cards claimed to be cards issued by certain Japanese banks. The idea was discussed that Wu's business could be used to raise false invoices in respect of non-existent sales against which moneys would be raised by presenting the false credit cards to Wu's bank (the St George Bank). For his part in the scam, Wu was to receive 10% and the balance would be distributed to Guo Fei to be held by him on behalf of his confederates (who, so the Crown alleged, included the applicant). False invoices to an amount of $74,000-plus were raised, but when moneys were sought to be raised against them via the credit cards, St George Bank refused to honour them; but instead appointed an investigator who queried Wu, who, at that time, denied any wrongdoing.
The ultimate consequences for Wu were unfortunate. When he endeavoured to tell his confederates that the scheme had "fallen through", they did not believe him and they demanded their share of the proceeds. On the other hand, he could not - or was not willing to - confide in the police for his protection, because this would mean he would have to confess his own participation in the scheme. Proverbially, he was caught between "a rock and a hard place" and his continued protestations of "innocence" to Guo Fei and his confederates secured him only further threats, and ultimate pain.
It would seem that, after a period of waiting, the initiators of the scam became impatient because they believed that Wu was continuing to cheat them. In April 2002, when he returned from a business trip, Wu learned from his sisters that inquiries were being made of his whereabouts. In early May 2002, he received a phone call from a Chinese man (whom Wu, as he said, ultimately identified as the applicant) who wanted to discuss the "credit card issue" with him. A meeting was arranged at the East Asia restaurant in Richmond. Wu said that at that meeting (at which five were present) he came face to face with the applicant for the first time. The applicant called himself "Tony". Tony and his confederates were hostile to Wu, believing that Wu had received the full amount of the invoices. They were anxious for payment. Wu protested that the moneys had not been forthcoming, but he was disbelieved. Threats were made that if he did not pay the full amount within a stated time frame, his factory would be burned and his life and those of his children would be put in jeopardy.
Thereafter, so Wu said, he received further telephone calls from the applicant - using the pseudonym "Tony". On 20 May, he was asked to produce his bank statements, which he agreed to do at a meeting arranged at McDonald's restaurant in Smith Street, Collingwood. That meeting, so Wu said, occurred on 25 May, upon which the bank statements were handed over to the applicant and one of his allies. McDonald's cameras indeed captured the three men on film. Later, so Wu said, the applicant rang to arrange the return of the papers at the restaurant at 6 p.m. on the following day, 26 May. Wu said that he arrived at about five to six. He was seated at the table when the applicant phoned him to ask him whereabouts in the restaurant he was seated. Soon after, according to Wu, he was savagely assaulted by two men who were unknown to him. This was the assault which provoked the charges laid in the alternative as counts 4 and 5. Wu was taken by ambulance to St Vincent's Hospital, where - so he said - he received a further call from the applicant telling him that he had received "but a tiny lesson" and that, if he did not pay $50,000, he would "get a heavy attack". Once again it was said by the Crown that this phone call was evidence to show that the applicant was the person who had procured the assault on Wu.
Wu's evidence was that on 27 May he was again called by the applicant - once more demanding payment. According to Wu, the applicant wanted $50,000, which, so it was said, would partly defray the cost of his travel from Sydney. When, on the very next day (28 May), Wu received a further threatening demand from the applicant, he decided it was time to report the matter to the police. He went to see the local police to tell them of the threats being made, but at that time was not frank about his own initial role. On 29 May he went to the Asian Squad of Victoria Police and made a further statement. Whilst he was there he received another call from the applicant inquiring when payment would be made. Wu said he would have the money in one or two days. On the next day (30 May) Wu was again at the offices of the Asian Squat at about 3 p.m. when he received yet another call from the applicant. That call was recorded by means of a device. "Tony" was told that the money would be paid the next day and that they would meet at McDonald's restaurant in Collingwood. Wu asked "Tony" whether - if payment was made - the threats and intimidation of Wu and his family would cease. According to Wu, the applicant said it would. The figure to be paid was then confirmed at $43,680.
On 31 May, Wu was again at the Asian Squad offices in the morning. From there he telephoned "Tony" between 9.30 and 10 a.m. and asked him whether he was coming to the meeting. "Tony" said he would be there. This call was recorded. Police then fitted Wu with a recording device and took him to East Melbourne. At 11.30 a.m., "Tony" rang Wu to ask him if he had the money. Wu said he was "on his way". By noon, the applicant had not arrived but the restaurant was observed by police. Soon after, the applicant entered the restaurant. Guo and Bin Chen were also there. Wu again asked the applicant whether hostilities against him would cease once the moneys were paid. The applicant replied "not if police are informed". Wu told Guo Fei that he had been assaulted, to which Guo replied that it "had been a misunderstanding". Guo then handed over the bank statements which had earlier been given to the applicant. The police then moved in and made arrests.
The applicant gave evidence upon his trial. His evidence was designed to "distance" himself from the other accomplices and the transaction. Essentially, he said that he had been sent from Sydney by a man named "Har Bin" as a peacemaker to tell Wu that all had been forgiven. He said that Wu's evidence was a fabrication. He had never previously met Wu; nor had he spoken to Wu over the phone. He had no knowledge of the assault on Wu on 26 May. Indeed, he said he had no knowledge of any of the events which had been the subject of evidence against him. It is to be noted that he conceded in cross-examination that he may have been seated next to Guo on the plane down from Sydney - but that was coincidence, because he did not know him; nor did he know Bin Chen. He said he had been taken to the restaurant by Har Bin and told by him to approach a person wearing a "peaked cap" and to tell him that what had happened before was a misunderstanding. He then approached the man whom he then knew to be Wu, who had asked him: "Are you Tony?" They had just begun to talk when the police came in and arrested him. He said he never made threats to Wu nor asked him for money. He said the police had browbeaten him when he was first taken to the police station. When they were asking him why he was there, he said he had told them that he had come from Sydney to restore the peace. In response to that, he said, the police had said, "Bullshit". He said he had scoured Sydney looking for Har Bin but had been unable to find him, and when police formally interviewed him, he declined to answer any questions.
In this Court the arguments of the applicant ranged far and wide and well beyond the grounds contained in the appeal notice. The Court, as I have said, gave plenty of latitude to the applicant, who was seeking to canvass the quality of the evidence at the trial and which was before the jury. He disputed the words attributed to him in recorded transcripts and said that there were many mistakes that he was able to perceive in those transcripts. He agreed that he did not participate in a recorded interview with the police, but he said that that was so because the police were not listening to him. All in all, I must say that this Court has found it somewhat difficult to confine Mr Sun to the issues which had been raised. Although we have sought to indicate to Mr Sun the difference between the function of this Court and the function of the trial court, it has not been easy for him, with his limited knowledge, to grasp. Mr Sun spoke to us of faults in the transcript and faults in the evidence which were not pointed out at the trial. He told us that he had lost his energy to make proper arguments to us because he had risen early this morning, and he felt he could not properly do himself justice before the Court. Nevertheless, he said he was deprived at trial of the opportunity of presenting his true defence, his counsel was incompetent, and in his view the judge did not give him a fair opportunity to reveal all that he wished to say. Indeed, all in all, he said, the justice system has failed him. He said that objections which should have been taken to evidence had not been taken. As he put it to us: "I haven't had a fair trial". The Director of Public Prosecutions, who has appeared personally in this application, has played no substantive part in the appeal process save to clarify matters which were unclear. However, in accordance with his usual attitude of fairness, he indicated to us that he had looked at the transcript but was unable to offer any matter to the Court which in his view would support the appeal. As he said - and I would agree - the trial appeared to have been fairly conducted and certainly the trial judge's charge appears to have been exemplary.
The Appeal
The only ground of the application which raises a matter proper for this Court to consider relates to the matters that were set out in the notice of appeal. Those matters asserted that the judge was in error in failing to give adequate directions to the jury on the issue of identification, although Mr Sun raised the issue that the verdicts were inconsistent. In respect of the ground that the verdicts were inconsistent, it can only be said, as it had been said in the written submissions of counsel to whom we have previously referred, that this was a case where careful instructions on identification were called for because, although Mr Wu claimed to have had regular meetings and conversations with the applicant, the applicant said that he had had no contact with Mr Wu until 31 May 2002 immediately before his arrest. In those circumstances, the directions that should have been given, so it had been put by previously retained counsel, were directions of the nature of those which the High Court discussed in Domican v. R.[1] In a case of identification of this sort, it was said there was not sufficient emphasis given by his Honour on the need for caution, nor were his Honour's directions invested sufficiently with the court's authority.
[1](1992) 173 C.L.R. 555.
I must say that, for my own part, and despite the matters that were raised in the appeal notice, I do not think this ground about the inadequacy of directions can succeed. This Court has looked very carefully at the transcript of his Honour's directions - and, indeed, at the transcript of the evidence at trial. The so-called identification that was in issue was effectively what had been described by Wu as repeated meetings between Wu and the applicant, interspersed, so Mr Wu said, with regular telephone calls. It can scarcely be denied that if the jury accepted Wu's evidence, the applicant was a person who, by 31 May, was well known to Wu, both by face and voice. On the other hand, if they accepted the applicant's evidence, there had been no basis for Wu's identification because, according to the applicant, he had never seen him before 31 May, nor had he spoken to him over the phone. The issue from the jury's point of view, therefore, became a credibility issue rather than an identification issue. In all cases it is necessary to say that the task of the judge is to direct the jury in a manner which is tailored to the circumstances of the case. In this case the judge had told the jury that all identification evidence should be treated with caution and scrutinised with particular care. His Honour pointed out the weaknesses in some of the identification evidence, but said that, in the long run, the jury might regard the issue more as one of credibility than a matter of identification. In the particular circumstances of this case, that was all that was needed because, as his Honour said, the issue was really credibility between the two witnesses involved. The direction was sufficient to cover both the so-called "dock identification", which was more in the nature of a recognition of a person with whom Wu said he had become familiar over a period, and also his identification of the applicant's voice over the phone. It is, of course, for the judge to identify what the issues are in the trial and, as I have said, to tailor his directions to meet what he believes the circumstances require.[2] In a case where credibility is the real issue between the parties, a warning to the jury as to the caution with which the evidence of identification should be approached - in the general nature of the one which his Honour in this case gave - will in my view be sufficient - as, again, I think it was here.[3] It is significant to note that the only exception which counsel took to what seem to me to be careful directions related to the judge's failure to give specific directions as to "dock identification". Specifically no exception was taken by trial counsel to the directions in respect of voice identification.
[2]Cf. R. v. Mackay [1985] V.R. 623 at 637.
[3]Cf. Shand v. R. [1996] 1 W.L.R. 67 at 72; R. v. Courtnell [1990] Crim.L.R. 115.
There is, I think, a further basis why this ground of appeal cannot succeed. The evidence of visual and voice identification was of particular relevance to counts 4 and 5, of which the applicant was acquitted, but of minor relevance to the "blackmail" of which he was convicted. The evidence of specific visual and voice identification before and after the events constituting the assault on 26 May was of crucial significance in linking the applicant to the crimes alleged in counts 2 and 3 as a procurer of them. However, his conviction on the "blackmail" was virtually a foregone conclusion; once he was "wrapped up" by the police with his other confederates at the restaurant on 31 May. In those circumstances, the only question for the jury was whether they were prepared to entertain a doubt after considering what seems to me to have been a very ”lame" explanation for his presence, unsupported as it was by any previous exposure of it by him either to the police or the jury - and by the introduction of the mysterious benefactor - Har Bin. I am, speaking for myself, totally unpersuaded that the applicant's fate in respect of the count of "blackmail" was in any measure compromised by the suggested lack of sufficient directions on identification issues. I am quite satisfied that there has not been any actual miscarriage of justice on the count of which the applicant was convicted.
I would, accordingly, dismiss the conviction application.
Sentence
The application also contains a notice that the applicant was appealing against the sentence. Although no submissions were directed in respect of that, it is a matter which this Court has considered. His Honour, in my view, paid careful attention in his sentencing remarks to the sentences which had been imposed on the other offenders, and it is impossible to say that he fell into error by imposing a sentence different in degree from those imposed on the other offenders. The sentence of two years for blackmail is, in my view, a very modest one, particularly having regard to the time over which the threats had been made and the impact which they had - and were intended to have - upon their victim. Blackmail is a cowardly offence, and invariably is aimed at those who are exposed and powerless to resist. In my opinion his Honour was entitled to regard this offence as a serious example of its kind, notwithstanding some rudimentary aspects of it. The sentence of two years with a non-parole period of one year is, I think, very charitable. I would refuse the application for leave to appeal against it.
BUCHANAN, J.A.:
I agree.
VINCENT, J.A.:
I agree.
WINNEKE, P.:
The formal order of the Court is that the applications for leave to appeal against conviction and sentence are dismissed.
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