R v Kong - [2011] NZCA 537

IN THE COURT OF APPEAL OF NEW ZEALAND

CA571/2010
[2011] NZCA 537

BETWEEN THE QUEEN
Appellant

AND HONG SHENG KONG
Respondent

Hearing: 24 August 2011

Court: O'Regan P, Arnold and Ellen France JJ

Counsel: J C Pike for Appellant
P J Davison QC and R C Woods for Respondent

Judgment: 25 October 2011 at 2.30 pm

JUDGMENT OF THE COURT

A The appeal is allowed and the acquittal is quashed.

B A new trial is directed under s 382(2)(b) of the Crimes Act 1961.

REASONS OF THE COURT
(Given by Ellen France J)

Table of Contents

Para No.

Introduction  [1]
Factual background  [3]
The decision in the District Court  [8]
The relevant statutory provisions  [12]
Section 117(e) of the Crimes Act  [13]
          The 1994 Act  [14]
Issues on the appeal  [23]

Is the Commissioner’s preliminary inquiry stage outside the scope
of s 117(e)? [25]

The submissions  [26]
         Discussion  [32]
The effect of s 63 and the offences in s 73  [48]
The relevant provisions  [49]
         The submissions  [53]
         Discussion  [55]
Disposition  [59]

Introduction

The respondent is a general practitioner. He operated a medical practice in Auckland. The family of one his patients made a complaint under the Health and Disability Commissioner Act 1994 (the 1994 Act) to the Health and Disability Commissioner about his care of their father. The Crown alleges that, in his response to the Commissioner’s request for information, the respondent altered clinical records. This allegation forms the basis of a charge under s 117(e) of the Crimes Act 1961 that the respondent attempted to pervert the course of justice.
The matter went to trial. At the end of the Crown case the respondent applied for a discharge under s 347 of the Crimes Act. Judge Aitken discharged the respondent on the basis that the inquiries undertaken by the Commissioner in relation to the complaint were outside of the scope of the course of justice.[1] On the Crown’s application, the Judge stated a case to this Court pursuant to s 381A of the Crimes Act. The question of law posed is as follows:
Was I wrong to hold that the [respondent’s] actions in providing false information to the Health and Disability Commissioner could not constitute an attempt to obstruct, prevent, pervert or defeat the course of justice in New Zealand?

Factual background

[1] R v Kong DC Auckland CRI-2007-004-27405, 13 August 2010.

Chanxing Du was one of the respondent’s patients. Mr Du saw the respondent in relation to a lesion on his foot. The critical visit took place in July 2005. Subsequent to that visit there was some anxiety on the part of Mr Du’s family about whether more should be being done about the lesion. Ongoing contact between the respondent and the family continued although there was no suggestion over this period that a complaint about Mr Du’s care and treatment might be made.
It transpired that the lesion was cancerous. Mr Du died in January 2007 from the melanoma. It is not suggested the respondent was…

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 R v Kong

Details

AGLC: R v Kong [2011] NZCA 537
Case: [2011] NZCA 537
Decision Date: 25 October 2011

CaseChat Overview and Summary

The case of R v Kong concerns the appeal of a decision by Judge Aitken to discharge the respondent, a general practitioner, from a charge of attempting to pervert the course of justice. The respondent was accused of altering clinical records in response to a complaint made by a patient’s family under the Health and Disability Commissioner Act 1994. The main issues before the Court of Appeal were whether the Commissioner’s preliminary inquiry stage is outside the scope of s 117(e) of the Crimes Act 1961, and the effect of s 63 of the 1994 Act, which deals with the protection and privileges of witnesses, and the offences in s 73 of that Act. The Crown argued that the Commissioner’s inquiry set in train a process, and deflection of that process could involve the “course of justice”. The respondent argued that the preliminary assessment stage was too remote from the investigatory or disciplinary parts of the process to invoke the criminal sanction under s 117(e). The Court found that the Commissioner’s inquiry itself did not have to be part of the course of justice, but an act which has a tendency to deflect the police from a prosecution or instituting disciplinary proceedings before a judicial tribunal is an act which tends to pervert the course of justice. The Court also found that the purpose of s 63(3) of the 1994 Act is to protect witnesses from collateral criminal proceedings, and s 73 encompasses all conduct that involves the provision of information to the Commissioner. However, this did not alter the conclusion that the deflection of the Commissioner’s inquiry, if proven to have occurred with the requisite intent, could comprise an offence under s 117(e). The appeal was allowed and the acquittal was quashed. A new trial was directed under s 382(2)(b) of the Crimes Act.

Orders