Fong v Attorney-General - [2008] NZCA 425

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PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT
1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA184/07 [2008] NZCA 425

BETWEEN POK VICTOR FONG Appellant

ANDTHE ATTORNEY-GENERAL OF NEW ZEALAND
First Respondent

ANDTHE DISTRICT COURT AT AUCKLAND
Second Respondent

Hearing: 29 July 2008
Court: William Young P, Robertson and Arnold JJ Counsel: J R Billington QC for Appellant
M D Downs for Crown

Judgment: 16 October 2008 at 3 pm

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe judgment of the High Court is quashed and the s 347 discharge is reinstated.

REASONS OF THE COURT

(Given by William Young P)

POK VICTOR FONG V THE ATTORNEY-GENERAL OF NEW ZEALAND AND ANOR CA CA184/07 16
October 2008

Table of Contents

Para No

Introduction  [1] The evidence  [3] The plausibility of the evidence of the primary protagonists  [26] The closing addresses of counsel  [29] The summing up of Judge Hubble  [33] The jury’s verdict  [39] The decision of Judge Hubble to discharge the appellant under s 347  [40] The High Court judgment  [42] Section 347 – the authorities  [49] Our evaluation  [56]
Overview  [56] A notional appeal against conviction  [60] If dealing with an appeal against conviction, would we  [64] direct a new trial?
Resolution of the present appeal  [69]
Disposition  [72]

Introduction

[1] The appellant, Pok Victor Fong, was found guilty by a jury on a charge of rape. Unusually, the trial Judge (Judge Hubble) subsequently discharged him under s 347(3) of the Crimes Act 1961. The Attorney-General challenged this decision in judicial review proceedings before the High Court. The result was that Courtney and Lang JJ set aside the order discharging Mr Fong and remanded him on bail for sentence: Attorney-General v District Court at Auckland [2007] 2 NZLR 692.

[2] Mr Fong now appeals. In the meantime he has not been sentenced.

The evidence

[3] This section of the judgment is largely based on the evidence given during the trial in District Court. We say largely, however, because:

(a) We have been given one important security camera photograph that was not produced to the jury; and

(b)The security camera photographs which we were given are all timed specifically whereas the images which the jury had were not so specifically timed. We will explain the significance of this when we get into the detail of the case.

The complete (and timed) photographs were available to the Judge when he addressed the s 347 application.

[4] The key protagonists in the case are Mr Fong and the complainant. The complainant is a flight attendant. At the time of the alleged offending, the complainant was 29. The appellant was a little younger. Although born in Hong Kong, he is a New Zealand citizen. He has degrees from the University of Auckland and had a reasonably well paid and responsible job with a bank. Both the complainant and Mr Fong…

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 Fong v Attorney-General

Details

AGLC: Fong v Attorney-General [2008] NZCA 425
Case: [2008] NZCA 425
Decision Date: 16 October 2008

CaseChat Overview and Summary

Pok Victor Fong appeals against the decision of the High Court to set aside the discharge of him by the trial Judge under s 347 of the Crimes Act 1961. The High Court held that the trial Judge had erred in making the order and remitted Mr Fong on bail for sentence. Mr Fong had been found guilty of rape by a jury. The trial Judge had discharged him under s 347 after the jury had returned a guilty verdict. The trial Judge concluded that there was insufficient evidence to support the verdict. The High Court disagreed, holding that the trial Judge had not properly exercised his discretion. This Court allows the appeal, setting aside the High Court decision and reinstating the order discharging Mr Fong. The Court finds that the process has failed due to the trial Judge’s error in making the s 347 order post-verdict and the subsequent delay in resolving the appeal. The combination of these factors, with the weakness of the Crown case, leads the Court to bring the process against Mr Fong to a close.

Orders