Kim v Police - [2015] NZHC 2543

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000134 [2015] NZHC 2543

BETWEEN
WILSON KIM

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 6 October 2015

Appearances:

Appellant in Person
Tom Refoy-Butler for the Respondent

Judgment:

16 October 2015

JUDGMENT OF MOORE J [Appeal against conviction and sentence]

This judgment was delivered by me on 16 October 2015 at 11:00am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

KIM v NEW ZEALAND POLICE [2015] NZHC 2543 [16 October 2015]

Introduction

[1] On 9 January 2014 Wilson Kim became embroiled in an argument with an elderly fellow Korean, Mrs Hyum Ok Kim (“Mrs Kim”). The argument escalated with the protagonists exchanging insults. Mrs Kim then began to hit Mr Kim with a peaked hat.

[2] She claims that Mr Kim, using both his hands, pushed her very forcibly backwards causing her to topple and land on her back causing moderately severe injuries.

[3] Mr Kim was charged with a single charge of male assaults female. He disputed the claims of Mrs Kim. He said he never touched her. Instead, he said that Mrs Kim launched herself at him and in doing so fell forward.

[4] At the Judge-alone trial Mr Kim represented himself. In addition to Mrs Kim the Police called two neighbours whose evidence largely supported the account given by Mrs Kim. Mr Kim gave evidence and called three witnesses, two of whom gave evidence which tended to support Mr Kim’s account.

[5] Judge Hinton found the charge proved and remanded Mr Kim for sentence.

[6] Some months later his Honour sentenced Mr Kim to supervision for a period of 12 months with a special condition he attend an anger management programme. He ordered that Mr Kim make an emotional harm reparation payment of $1,500 to Mrs Kim.

[7] Mr Kim now appeals his conviction and sentence.

Factual and procedural background

[8] Mr Kim, who it seems is not related to the complainant, immigrated to

New Zealand when he was 14. He is now aged 47.

[9] On 9 January 2014 he received a telephone call from an elderly and infirm Korean woman, Mrs Song. Mrs Song asked him if he would assist her with translating a letter she had received from Greenlane Hospital. Mr Kim agreed to help.

[10] Later that afternoon Mr Kim drove the short distance from his home to Mrs Song’s home in Northcote. In the car with him was his 4-year old daughter and Mr Kim’s puppy.

[11] Mrs Song lived in a modest one-storey unit which is part of a complex of similar units. On arriving outside Mrs Song’s unit, Mr Kim’s daughter and the puppy ran ahead and, it seems, into Mrs Song’s unit. Mr Kim, who was following, then heard female screams coming from Mrs Song’s unit. He rushed inside. Once inside he realised the screaming was coming from Mrs Kim. He knew Mrs Kim from their local Korean church. He saw her hitting the dog with…

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: [2015] NZHC 2543
Decision Date: 16 October 2015

CaseChat Overview and Summary

Wilson Kim appealed against his conviction and sentence for assaulting Mrs Hyum Ok Kim. Mrs Kim alleged that Mr Kim pushed her backwards, causing her to fall and sustain injuries. Mr Kim denied the assault and claimed that Mrs Kim fell forward on her own accord. At trial, Judge Hinton found Mr Kim guilty and sentenced him to 12 months' supervision and a reparation payment of $1,500 to Mrs Kim. Mr Kim appealed on the grounds that the Judge erred in his assessment of the evidence, did not provide him with adequate opportunity to cross-examine, misunderstood the cultural background, and other miscellaneous matters.

The High Court found that the Judge was correct in assessing the evidence and excluding Mr Kim's account as a reasonable possibility. The Court noted that Mrs Kim's account was consistent and forthright, while the two prosecution witnesses, Mr Tangaroa and Ms Webb, were credible and their accounts were consistent with each other. The Court also found that Mr Kim was given a reasonable opportunity to cross-examine the prosecution witnesses and that the Judge did not err in understanding the cultural background.

The Court further found that none of the other miscellaneous matters raised by Mr Kim amounted to a miscarriage of justice. The fresh evidence sought to be adduced on appeal was not admitted as it was not fresh, credible, or would alter the outcome of the trial.

The appeals against conviction and sentence were dismissed, with the Court finding that Mr Kim received a fair trial and that the sentence imposed was lenient and merciful, reflecting the cultural aspects of the case and Mr Kim's previously unblemished record.

Orders