Hwang v Police
[2019] NZCA 553
•13 November 2019 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA687/2017 [2019] NZCA 553 |
| BETWEEN | JIMIN HWANG |
| AND | NEW ZEALAND POLICE |
| Hearing: | 5 September 2019 |
Court: | Kós P, Duffy and Woolford JJ |
Counsel: | I M Brookie and C G Farquhar for Appellant |
Judgment: | 13 November 2019 at 2.30 pm |
JUDGMENT OF THE COURT
AThe application to admit further evidence on appeal is declined.
B The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Woolford J)
Following a Judge-alone trial heard on two separate days, 20 January 2017 and 8 May 2017, Judge Maude found Jimin Hwang guilty of stealing a Compaq laptop computer valued at $290.[1] He was subsequently sentenced to 70 hours’ community work and ordered to pay $290 in reparation.[2] Mr Hwang appealed against conviction to the High Court at Auckland.
[1]Police v Hwang [2017] NZDC 12372 [District Court judgment].
[2]Police v Hwang [2017] NZDC 15059.
He was not present in the courtroom on 31 October 2017 when his appeal was called for hearing in the High Court and so it was dealt with on the papers. In a written judgment delivered the same day, Brewer J stated he was satisfied from his reading of the evidence and the written submissions available to him that there was no merit in Mr Hwang’s appeal, and so the appeal was dismissed.[3]
[3]Hwang v Police [2017] NZHC 1171.
Mr Hwang then applied to this Court for leave to bring a second appeal against conviction. For reasons given in its judgment dated 27 September 2018,[4] this Court granted leave for Mr Hwang to bring a second appeal against conviction, which we heard on 5 September 2019.
Summary of facts
[4]Hwang v Police [2018] NZCA 391.
Mr Hwang met the complainant, Mr Leang Kang, through a Facebook group that Mr Hwang had established as a forum for new migrants to connect. When Mr Hwang needed a place to stay, Mr Kang invited him to stay with his family in their apartment. Mr Hwang moved in around 19 April 2016 and was given a key. Around the same time, Mr Kang purchased a Compaq laptop computer on Trade Me for $290.
On 22 April 2016, Mr Kang’s partner was at home in bed. At 10.30 pm she observed Mr Hwang walking along an exterior corridor and unlocking the door to the apartment. She observed him take the laptop computer from the lounge and place it in his bag. She did not speak to or confront Mr Hwang as she assumed he had reached an agreement with her husband about it. But, as Mr Kang explained, he had not given permission for him to take the laptop computer away. Mr Hwang did not return to the apartment after taking the laptop, which was never recovered.
When Mr Kang posted about the theft on Facebook, Mr Hwang’s first response (by Facebook message to Mr Kang) was “I thought you already know”. Mr Kang replied “I never let you take my laptop”. After a few days Mr Hwang replied “I don’t have it”.
Grounds of appeal
Mr Hwang advances three grounds of appeal:
(a)Material fresh evidence has come to light since the District Court trial that casts considerable doubt on the complainant’s account.
(b)The trial Judge erred in his treatment of Mr Hwang’s evidence which resulted in a reversal of the onus of proof.
(c)The trial Judge erred in his assessment of the evidence given by the complainant’s wife who identified Mr Hwang as the offender who unlocked the door to the apartment. The Judge should have entertained a reasonable doubt about the totality of her evidence.
Fresh evidence
Mr Hwang filed two affidavits in support of his appeal which form the basis for the fresh evidence ground of appeal. The first was filed on 23 July 2018 when he was self-represented and the second on 3 May 2019 following instruction of counsel. The respondent filed an affidavit in response from the complainant dated 11 August 2018. Both parties filed notices of cross-examination for the hearing. We heard oral evidence from both Mr Hwang and the complainant.
Mr Hwang’s first affidavit dated 23 July 2018 attached a USB stick containing a range of documents, photos and videos, including messages allegedly sent and received on 20 June 2017 via an application called Kakao Talk. Both of Mr Hwang’s affidavits attached screenshots of the Kakao Talk messages taken on his phone. The complainant’s affidavit attached text messages of a conversation, he says, which occurred with Mr Hwang between 10 and 27 April 2016. The complainant denies that he sent or received messages from Mr Hwang on an application called Kakao Talk. He has never heard of, or used, Kakao Talk.
The range of documents, photos and videos contained in the USB stick included photos of social gatherings, photos of a child and house, text messages between Mr Hwang and the complainant, a video dated 18 April 2016, photos taken on a trip to Tauranga, a video dated 4 May 2016, a letter from the complainant dated 27 June 2016, 111 calls dated 21 July 2016, screenshots of the complainant’s Facebook page, as well as the disputed Kakao Talk messages.
With the exception of the Kakao Talk messages, all the remaining material was available at the time of Mr Hwang’s trial ending in May 2017. Mr Hwang’s counsel chose, however, not to produce it. It is, in that sense, not fresh.
Failure by trial counsel to follow instructions is not alleged and without a waiver of privilege and sworn evidence from Mr Hwang and trial counsel, we cannot say that counsel was wrong not to produce the evidence at trial. It also does not appear to us to be of specific relevance to the issue of identification, the sole issue at trial.
In the end, appellant counsel only pursued the application for fresh evidence to be admitted in respect of the Kakao Talk messages. Although they may be fresh in that they are dated 20 June 2017, some six weeks after the Judge’s decision, we have real doubts about their credibility and cogency. Firstly, it is not clear why Mr Hwang and the complainant would be communicating about rent for the few days Mr Hwang stayed, 14 months after the theft of the laptop computer and six weeks after the Judge’s decision. Secondly, the writing style and tone of the messages is quite different to the text messages which the complainant accepted he sent and received between 10 and 27 April 2016, around the time of the theft.
Thirdly, having listened carefully to the complainant’s evidence, we were unable to conclude that he was lying when he told us that he had never heard of or used Kakao Talk. As a result, we are left with real doubt as to the authenticity and reliability of the Kakao text messages.
In the end, we are not satisfied that the test for admission of fresh evidence is met. It is not fresh (with the possible exception of the Kakao Talk messages) nor is it credible and cogent. The application to admit fresh evidence is therefore declined.
Reversal of onus of proof
In the District Court decision, the Judge made reference to Mr Hwang’s lack of clarity about when he made arrangements to move into the complainant’s apartment. Mr Hwang initially said he believed that he moved into the apartment in March 2016, but later could not recall what date or month he had done so. As the date of the alleged offending was 22 April 2016, and his evidence was that he had stayed there for less than a week, the Judge observed that his uncertainty on the earlier date was “surprising”.[5] Counsel submits that the Judge then went on to hold that Mr Hwang’s vagueness supported the police case and the identification of him by the complainant’s wife as entering the apartment that night. The Judge stated:[6]
The real doubt as to why Mr Hwang was vague as to when he moved into the complainant’s house but at the same time sure about his travel on 22 April to Tauranga, he not, when questioned about it, suggesting that it was not the day after he said that he ceased living in the complainant’s house. Indeed he had not returned to their home at night he said, because there was no bed.
[5]District Court judgment, above n 1, at [18].
[6]At [19(e)].
Counsel submits that it was unfair for the trial Judge to treat this issue as one affecting Mr Hwang’s credibility. Further, Mr Hwang’s equivocation as to when he moved into the apartment was not logically germane to the key issue of identity. Finally, counsel submits the trial Judge was wrong to use the adverse finding as to his credibility as a factor that assisted the police in proving its case. This amounted to a reversal of the onus of proof.
With respect, the Judge’s comments are somewhat difficult to understand. There are at least two available interpretations. On one view, the Judge was not suggesting that Mr Hwang’s vagueness about dates added to the Crown case, rather he was explaining why he regarded Mr Hwang’s evidence as to his alibi lacked credibility. This was necessary to find the element of identity proved beyond reasonable doubt. Alternatively, the Judge was pointing to the implausible coincidence that Mr Hwang had decided to move out of the complainant’s apartment the very night the laptop computer was stolen. On this view the timing of his stay at the address did legitimately add to the Crown case.
On appeal, under s 232(2)(b) of the Criminal Procedure Act 2011, the appeal court must allow the appeal if it reaches a different finding on the available evidence. As usual, it is for the appellant to establish error and this Court must take account of the trial Judge’s advantage in assessing witness credibility.
The Judge had an obvious advantage when assessing Mr Hwang’s credibility, being able to form a view as to what sort of person he was.[7] Even assuming the Judge’s reliance on his vague answers was wrong, it could lead to miscarriage only if this Court considered his rejection of Mr Hwang’s evidence was unjustified. The assessment this Court must undertake relates to the Judge’s reasons overall, keeping in mind this was an oral judgment about a low-level theft. As the Supreme Court said in Sena v Police:[8]
… imperfection of expression is practically unavoidable, particularly in oral judgments. Accordingly, appellate courts should assess reasons contextually, in light of the evidence given and allowing for the burden for judges of balancing the need for prompt determination of criminal cases with other workload requirements. The adequacy (or not) of reasons must be assessed in light of the type of case (including seriousness) and the issues involved.
[7]Sena v Police [2019] NZSC 55 at [38]–[40].
[8]At [37].
We accept the Crown’s submission that, read as a whole, Mr Hwang’s vague answers were not the Judge’s sole reason for rejecting his evidence. The real difficulty with Mr Hwang’s account was the weight of the Crown evidence contradicting it. The Judge did not, in those circumstances, reverse the onus of proof on the police.
Complainant’s wife’s evidence
Counsel for Mr Hwang notes that the Judge stated there was doubt about the evidence of the complainant’s wife, who was the sole witness identifying Mr Hwang as the person who took the laptop computer. The Judge described her claimed ability to identify him in the lounge as questionable because of the poor lighting in the room at the time.[9] The only light was from a computer modem screen. The Judge also noted that the complainant disagreed with his wife as to the curtaining in the living room, saying that they were a thicker cloth and would not allow light through them.[10]
[9]District Court judgment, above n 1, at [19].
[10]At [14]–[15].
Despite these issues, the Judge relied on the complainant’s wife’s evidence regarding her initial view of Mr Hwang in the exterior corridor. She said she was able to identify Mr Hwang through the lace curtains which covered the bedroom window. His opinion was that that view assisted in overcoming any doubts about the identification.[11]
[11]At [19(a)].
Counsel submits, however, that a review of the wife’s evidence reveals a number of inconsistencies in respect of her view of the alleged offender from the bedroom to the exterior corridor:
(a)At the start of her evidence-in-chief she states that she saw Mr Hwang walk along and unlock the door.
(b)She then says that she was not really watching him at the time, but only realised it was him when he unlocked the door.
(c)When she heard a noise in the corridor, she initially thought it was her husband. She identified Mr Hwang a bit later.
(d)When the door was unlocked, she looked up and saw him from the side and referred to the upper half of his body.
(e)However, she later clarifies that she could not see the front door from the bed that she was sitting on at the time.
(f)Counsel for the prosecutor then went on to ask her a number of leading questions in re-examination, including the following exchange:
Q.You said you heard footsteps you thought it was your husband, is that correct?
A.Yeah, the steps along the corridor — she thought it was her husband.
Q.But you saw Mr Hwang through your bedroom at your front door?
A. Yeah I saw him.
Q.Was the person at your front door the same person that entered your apartment?
A. Yes.
When examined carefully, counsel for the appellant submits that the effect of this evidence is that the complainant’s wife would have only had a brief glance of the person as he (or she) passed the bedroom window before unlocking the door and entering the apartment. She describes herself how she thought it was her husband. The inference to be drawn is that she had no reason to look up and check who it was.
Counsel submits that the appropriate caution as required by s 126 of the Evidence Act 2006 is absent from the judgment. The complainant’s wife is the only witness that can identify the offender and therefore Mr Hwang’s guilt rests entirely on her evidence. Although this comes within the recognition evidence sub-set of identification evidence, counsel notes that the complainant’s wife had only met Mr Hwang two or three times since he had been living there.
Further, counsel submits that it is inappropriate for the Judge to rely on the evidence of the complainant’s wife in circumstances where he had already reached the view that her evidence regarding identification in the living room was in doubt. This was particularly so given that the thrust of her evidence was that she identified Mr Hwang once he was inside.
Further, the evidence about the identification of Mr Hwang in the exterior corridor is similarly inconsistent and unreliable. The overall effect of her evidence is that she would have been unable to identify a person in the exterior corridor because of the limited view that she had of the person from her bed.
Counsel, therefore, submits that the evidence of the complainant’s wife should not have been relied upon by the Judge, even in part. He did not exercise the appropriate caution in assessing evidence of this type and ought to have entertained a doubt about the entirety of her evidence. It follows that this Court should reach a different conclusion on whether the charge has been proved beyond reasonable doubt.
Section 126(3) of the Evidence Act refers to the need for caution if evidence of identification is disputed. It provides:
126 Judicial warnings about identification evidence
…
(3) If evidence of identity is given against the defendant in any criminal proceeding and the defendant disputes that evidence, the court must bear in mind the need for caution before convicting the defendant in reliance on the correctness of any such identification and, in particular, must bear in mind the possibility that the witness may be mistaken.
The Judge was not required to refer to s 126 in his judgment. In any event, he did exercise caution when he referred to the difficulty with identification of Mr Hwang when he was in the darkened lounge.
There was, however, sufficient direct and circumstantial evidence of identification for the Judge to find identity proved beyond reasonable doubt. This included:
(a)There was no evidence of break-in. The evidence was that Mr Hwang was the only person, apart from the complainant and his wife, who had a key to the apartment.
(b)Although Mr Hwang had travelled to Tauranga that day to look for work, he arrived back in Auckland Central by bus at around 9.20 pm. It was about half an hour walk from the bus terminal to the complainant’s apartment. Mr Hwang therefore had the opportunity to commit the theft as the offender entered the apartment at about 10.30 pm. Mr Hwang denied he was the offender and said he had spent all night at an internet café before going to the Tepid Baths when it opened the next morning.
(c)Her initial identification was confirmed when the offender opened the front door to the apartment with a key and walked to Mr Hwang’s bedroom before returning to the lounge, where he put the laptop computer into a black sports bag with a logo. Mr Hwang acknowledged owning a black Puma bag. There was some light in the lounge from a computer modem screen.
There were other factors as well which pointed to Mr Hwang as the offender. Mr Hwang said he had decided not to stay in the apartment that night because the complainant has not provided him with a bed and he had to sleep on the floor. When confronted on Facebook by the complainant, Mr Hwang replied “I thought you already know [I had taken it]”. Based on all the evidence, the Judge did not err in finding identity proved beyond reasonable doubt.
Result
The application to admit further evidence on appeal is declined.
The appeal against conviction is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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