Liang v The Queen - [2005] NZCA 139

IN THE COURT OF APPEAL OF NEW ZEALAND
CA448/04
THE QUEEN
v
QICHAO LIANG
Court:Glazebrook, Hammond and Robertson JJ
Counsel:P J Boylan for Appellant

M D Downs for Crown

Judgment:2 June 2005

(On the papers)

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________
REASONS
(Given by Glazebrook J)
Introduction
[1]       Mr Qichao Liang was convicted, after a guilty plea, in the Auckland District Court of kidnapping. He was sentenced on 24 October 2004 to four years imprisonment. He appeals against that sentence on the basis that it is manifestly excessive.
[2]       The appeal is being heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001. The relevant materials, including written submissions, which have been received in accordance with r 29 of the Court of Appeal (Criminal) Rules 2001 have been considered by members of the Court who have conferred and agreed upon this judgment.
Facts
[3]       An associate of the victim, Mr Wang, damaged Mr Wang’s car, to the tune of some $24,000. On 7 April 2003 the associate arranged to meet Mr Wang in an internet café in New Lynn, purportedly to pay him the money. When Mr Wang arrived, the debtor suggested they go out the back to count the money and then go to a restaurant. Mr Wang agreed and went to the back of the café where a large group of people were waiting. He recognised one of that group as Mr Liang and another as Mr Zhu, who was also charged with kidnapping. Mr Wang was then punched and kicked by a number of people.
[4]       Mr Wang was bundled into the back seat of a car, which was driven by Mr Liang, and told to keep his head down. He was driven to an unknown location where again a large group of people punched and kicked him. Mr Wang’s nose began to bleed, his wallet was taken, and he was driven around several banks in an attempt to withdraw money from his bank account. Mr Wang was put back into the car, a jersey was placed over his head and he was driven to Mr Liang’s house where Mr Zhu told him to have a shower and clean the blood off. Mr Wang was then given some clothes to change into and allowed to go to sleep.
[5]       The next morning, Mr Zhu and others drove Mr Wang to another bank. They were followed by another vehicle with further associates and Mr Zhu’s girlfriend. On Mr Zhu’s instructions, Mr Wang, accompanied by Mr Zhu’s girlfriend, withdrew $44,000 from the bank and gave this to Mr Zhu. Mr Liang and another associate took Mr Wang to a doctor for his nose to be examined. The doctor said a full body examination was needed, but Mr Liang told the doctor that they had to do some other things and returned to his house with Mr Wang. While some of the associates were sleeping, Mr Wang was able to take his car and escape.

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 Liang v The Queen

Details

AGLC: Liang v The Queen [2005] NZCA 139
Case: [2005] NZCA 139
Decision Date: 2 June 2005

CaseChat Overview and Summary

In the case of Liang v The Queen, the appellant, Mr Qichao Liang, challenged the four-year imprisonment sentence he received for his involvement in a kidnapping, arguing it was manifestly excessive. The Auckland District Court convicted Mr Liang of kidnapping following a guilty plea and sentenced him to four years imprisonment. The Court of Appeal heard the appeal on the papers and considered the written submissions of both parties. The primary issue was whether the sentence imposed was manifestly excessive. The Crown argued that the sentence was appropriate given the serious nature of the offence, while the appellant argued the sentence was excessive, citing his limited involvement and personal circumstances.

The Court of Appeal found that the sentence was within the range available to the sentencing judge for such a serious offence. The court noted that the sentence was even lenient, considering the severity of the crime, which involved violence, a significant period of detention, theft of large sums of money, and premeditation. The court rejected the argument that the starting point for sentencing should have been based solely on the features attributable to Mr Liang, not the group's overall offending. The court also found that the sentencing judge adequately considered Mr Liang's personal circumstances and that these were appropriately weighted against the severity of the offence. The appeal was dismissed, affirming the sentence imposed by the Auckland District Court.

The Court of Appeal thus upheld the original sentence, finding it to be appropriate and not manifestly excessive.

Orders