The Queen v Lelei Wang

[2003] NZCA 160

IN THE COURT OF APPEAL OF NEW ZEALAND

CA25/03

THE QUEEN

v

LELEI WANG

Hearing:24 July 2003

Coram:Blanchard J
Laurenson J
Doogue J

Appearances:  P F Gorringe for Appellant

T A Simmonds for Crown

Judgment:24 July 2003 

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1]       The appellant, Lelei Wang, along with Li Peng was found guilty of a charge of injuring Lu Yang with intent to injure: s189(2) of the Crimes Act 1961.  He appeals against his conviction.  He originally appealed also against his sentence of 10 months imprisonment but as the sentence has been served and he has returned to China, that matter is no longer pursued.

[2]       The complainant, Lu Yang, owed $5,500 to the appellant.  Li Peng (Mr Li) offered to help the appellant in obtaining payment of the debt.  On the evening of 15 March 2002 the appellant, with Mr Li and a Mr Yang (not to be confused with the complainant, Mr Lu) visited the flat which the complainant shared with two other persons.    At the trial the three accused were the appellant, Mr Li and Mr Yang.  A fourth person entered the flat with the three accused but that person was neither located by the police nor identified.  All seven people present during the incident were Chinese nationals, the six who were identified being in New Zealand for the purpose of study.

[3]       After the visitors had knocked on the door and been admitted, Mr Li immediately assaulted the complainant by punching and kicking him.  The unknown fourth person was also involved in violence of that kind.  The appellant was not. 

[4]       Shortly after the assault Mr Li produced a pistol which was possibly an air pistol, although perhaps a toy, and pointed it threateningly at the complainant.  The unknown visitor took a knife from the kitchen and threatened the complainant with it.  Mr Li then went into a bedroom with the complainant and, after a discussion, the complainant agreed to borrow some funds from one of his flatmates, Mr Wang.  The appellant, Mr Wang and the complainant then travelled to a bank in the city where $600 was obtained by Mr Wang from an ATM machine.  When they returned to the flat this money was handed to Mr Li and, whether directly or indirectly, it was received by the appellant.  Before the visitors left the flat, the complainant signed an acknowledgement of liability to the appellant for the car debt and agreed to pay it within a week.

[5]       The complainant subsequently went to the police who charged the three identified visitors with a variety of offences.  As the appellant was convicted only in relation to injuring with intent, we need say no more about the other charges.

[6]       The complainant’s evidence was that he heard a knock on the front door of the flat at around 10 o’clock in the evening and answered the door.  The appellant entered without saying anything, the three others following him.  Mr Li asked “when do you want to return the money” and, when the complainant replied that it was none of his business, Mr Li began to punch him, as did the unidentified fourth person.  They also kicked him and he fell down.  He said at that time the appellant and Mr Yang were “standing around”.  They would have seen what was happening to him but said nothing.  After the punching and kicking stopped, Mr Li produced a handgun and subsequently the unidentified visitor got a meat cleaver from the kitchen.  When the complainant was being threatened, successively, with the gun and the meat cleaver, the appellant and Mr Yang were again standing around and just watching.  The evidence of the female flatmate of the complainant was generally to similar effect concerning the events at the flat.

[7]       The complainant also gave evidence about the circumstances in which there came to be a visit to the ATM machine and what happened to the withdrawn money. 

[8]       The appellant gave evidence in his own defence.  He said that the day before they went to the flat he had spoken with Mr Li asking him to come with him as a witness.  On arrival at the flat the door was opened by the complainant and they went in.  Mr Li had asked the complainant when the money would be returned, the complainant had replied it was none of his business, but the appellant had not seen any assault occur.  Under cross-examination he said he had not told the others to expect to fight the complainant and had told Mr Li only that he was to be a witness that the complainant owed money to him.  Nothing had been said before they went to the flat suggesting use of violence.  With regard to the fourth (unidentified) man, the appellant said he had not known him before and had given him no orders or directions.  He had not travelled to the flat in the same car as either Mr Li or the unidentified man.  He denied having wanted the complainant punished.  He only wanted his money back.

[9]       It was submitted on behalf of the appellant by Mr Gorringe that the incidents which occurred in the flat following the assault were all dominated by Mr Li and to a lesser extent by the unknown man.  Mr Li had taken control from the beginning and it was a plain inference that either Mr Li “hijacked the visit” or the appellant deferred to him.  There was no evidence of any pre-arrangement between the visitors to do anything violent in the flat and indeed that was specifically denied by the appellant in his evidence.  To assume that there had been such an arrangement would be merely guesswork or speculation. 

[10]     Counsel acknowledged that it was not until the end of the Crown case that any of the accused had challenged that there had been an assault or challenged any of the detail given by prosecution witnesses.  For the purpose of the appeal, counsel accordingly did not put any reliance on the appellant’s denial of seeing an assault and was content for the Court to accept the Crown evidence concerning it.

[11]     It was submitted that the conviction should be overturned because it could be sustained under s66(1) of the Crimes Act only on the basis that the appellant had encouraged the two men who attacked the complainant and the evidence did not support that view.  There had been no words or acts by the appellant manifesting encouragement.  The appellant had merely been present and this was not a case in which mere presence might be held to provide actual assistance or encouragement.  It was not, for example, a situation in which by adding to the weight of the numbers of those present the appellant was helping discourage the complainant’s resistance.  The four visitors to the flat were not a gang or a unified group.  The assault had occurred immediately after Mr Li had stepped into the lounge and it was to be inferred that it was Mr Li’s decision to assault the complainant.  He had become the person in control of the situation and the appellant was merely a follower.  He had no power over Mr Li.  There was no evidence that Mr Li or the unidentified fourth visitor drew sustenance from the appellant’s presence.  Mr Yang, who was a co-accused, had in fact been discharged by the trial Judge on that basis. 

[12]     In a further submission Mr Gorringe said that, even if the appellant had contemplated that Mr Li might assault the complainant, he could not be convicted as a secondary party to a charge of injuring with intent unless it were also shown that he had contemplated that there would be an assault with an aggravating feature i.e. injury or at least something to take it beyond common assault.

[13]     The fact that the appellant had called at the flat to collect a debt from the person who was assaulted could not, of itself, lead to an inference of criminal involvement.

[14]     Mr Gorringe also addressed the possibility that the appellant was a party on the basis of procuring, inciting or counselling the principal offenders.  But, counsel said, there was no evidence of any active step taken by the appellant of this kind, nor could it properly be inferred from the mere fact that the four visitors entered the flat together with the object either of obtaining payment of the debt from the complainant or obtaining an IOU.

[15]     For the Crown, Mr Simmonds acknowledged that mere presence at the scene of an offence is insufficient to constitute liability as a party but pointed out the distinction often drawn between mere and deliberate presence:

Non-interference to prevent a crime is not itself a crime.  But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted.  (R v Coney (1882) 8 QBD 534 at 557-8).

Mr Simmonds pointed out the direction given by the Judge to the jury in the present case was along these lines.

[16]     It was submitted that whether or not the assault was planned or unplanned was an issue for the jury to determine, as the Judge told them.  There was ample material from which the necessary inferences could be drawn.  The appellant had taken three other men with him when he went to collect money said to be owing to him and had taken them to assist in that purpose.  He had no need of their presence merely to bear witness to the fact that money was owed.  The appellant had already obtained an IOU from the complainant in the presence of witnesses four days previously, as the appellant admitted in evidence.  The assault had happened moments after the group, including the appellant, had entered the room.  The appellant did not say or do anything in response to the assault.  If its occurrence was really a surprise to him, it could have been expected that he would have shown some reaction.  Comments made by Mr Li to the complainant in the presence of the appellant suggested that Mr Li was known for his aggressiveness.  It could be inferred that he was brought from Auckland to assist the appellant on this basis.  (The complainant’s evidence had been that when Mr Li put the gun to his forehead Mr Li had said that he was “very aggressive in Auckland”.)  Mr Simmonds questioned why Mr Li would have taken a gun with him, which he used within minutes of entering the flat, unless there had been an intention to use violence.

[17]     In answer to the submission from the appellant that there was no evidence to suggest that Mr Li derived any sustenance from the appellant’s presence, Mr Simmonds said that all the Crown needed to show was that his presence was deliberate with the intention of providing encouragement, for that inference to be drawn.  As to the suggestion that the actual offence was different in degree or kind from a mere assault, Crown counsel pointed out that the charge of injuring related to the kicking and punching.  The jury could reasonably be satisfied that the appellant knew the complainant was going to be assaulted in this or some similar way.  It was further submitted that assault and injuring with intent to injure were the same type of offences.

[18]     Finally, Mr Simmonds submitted that the proven facts provided sufficient material for the drawing of an inference that the appellant had procured, incited or counselled the principal offenders to inflict violence on the complainant.

[19]     Notwithstanding Mr Gorringe’s best efforts, we are not persuaded that the appeal has any merit.  The only ground of appeal identified is that the verdict was unreasonable or unsupported having regard to the evidence.  But, upon the evidence, it was well open to the jury to conclude that the appellant was present at the complainant’s address to lend his assistance to Mr Li and the unidentified man or to encourage an attack on the complainant.  The appellant said that all he was doing was attending to collecting or recording of a debt owing to him by the complainant.  But why then did he make arrangements to go to the flat accompanied by three other men?  Why did he say nothing indicating objection or even surprise when violence immediately occurred?  And why did he take advantage of the situation produced by the violence and accompany an obviously cowed victim and his flatmate to the ATM machine and receive the money which was obtained?

[20]     Mr Gorringe suggested that the appellant’s passive attitude while violence was being inflicted may have had something to do with a cultural reaction to such a situation by someone from China, but he accepted that there was no evidence to support that view.  On the basis of the evidence before the jury it could well conclude that the appellant had anticipated that there might be violence in the form of punching and kicking, or an equivalent attack, and was present to see that done, if necessary, for the purpose of collecting the debt or having it acknowledged by a signed document.  In that way the appellant was properly viewed by the jury as a party to the violence and convicted.

[21]     The appeal against conviction and sentence is dismissed.

Solicitors:

Crown Solicitor