Hwang v Police - [2019] NZCA 553

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA687/2017
[2019] NZCA 553

BETWEEN	JIMIN HWANG Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	5 September 2019
Court:	Kós P, Duffy and Woolford JJ
Counsel:	I M Brookie and C G Farquhar for Appellant A J Ewing for Respondent
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.

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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)…

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.

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Details

Case: [2019] NZCA 553
Decision Date: 13 November 2019 at 2.30 pm

CaseChat Overview and Summary

The case of Hwang v Police involved the respondent appealing against his conviction for burglary and theft. The Court of Appeal was tasked with reviewing the sufficiency of the evidence that led to the respondent's conviction. The respondent disputed the identification evidence provided against him, prompting the court to consider the cautionary note under Section 126(3) of the Evidence Act, which underscores the necessity for caution in convicting based on identification evidence when disputed. Despite the statutory requirement not to explicitly reference Section 126 in the judgment, the trial judge exercised caution by acknowledging the challenges associated with identifying the respondent in the dimly lit environment of the incident.

The court examined the evidence presented, including the lack of evidence of a break-in, the respondent's possession of the only key to the apartment aside from the complainant, and the respondent's timeline which allowed him the opportunity to commit the crime. The complainant's identification of the respondent was corroborated by the actions of the offender, such as using a key to enter the apartment and subsequently packing a laptop into a bag matching a description given by the respondent. Further evidence included the respondent's inconsistent statements and his admission-like comment on Facebook, which the court found sufficient to establish the respondent's identity as the offender beyond a reasonable doubt.

In light of the comprehensive review of the evidence, the Court of Appeal concluded that the trial judge did not err in his evaluation of the identification evidence or in finding the respondent guilty. The appeal to introduce additional evidence was rejected, and the appeal against the conviction was dismissed, affirming the trial judge's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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. The application to admit further evidence on appeal is declined. The appeal against conviction is dismissed.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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