The Queen v Wilson Chee

IN THE COURT OF APPEAL OF NEW ZEALAND

CA356/99

THE QUEEN

WILSON CHEE

Hearing:	24 February 2000
Coram:	Gault J Williams J Goddard J
Appearances:	S D Cassidy for Appellant
A R Burns for Crown
Judgment:	1 March 2000

JUDGMENT OF THE COURT DELIVERED BY GAULT J

On Saturday 4 April 1998 at about 7.15pm a group of some 10 or 12 young Asians, armed with bars or batons entered Lee’s Restaurant at Reeves Road, Pakuranga. A large number of patrons, in excess of 100, were dining there. One of the group shouted in Cantonese “Everybody out, the 14K are here to work”. They then commenced to overturn tables, smash crockery and glasses and generally wreck the restaurant. Several patrons received relatively minor cuts and the estimate of the damage done was $4,000.
The appellant, although he did not enter the restaurant and was elsewhere at the time, was convicted as a party to the two offences of riotous destruction of property and injuring with reckless disregard for the safety of others. He appeals against the convictions which were entered after a jury trial in the District Court at Auckland. Two grounds are advanced. The first is that the verdicts are unreasonable and cannot be supported having regard to the evidence. The second is that there has been a miscarriage of justice as a result of the failure of the Crown to call a key witness so that he would be available for cross-examination.
It is necessary to summarise the evidence that was available to the jury. All of it was presented by the Crown. There was no evidence by the appellant or any other witness for the defence.
Evidence was given by a detective sergeant of police who was the officer in charge of the police Asian Unit in Auckland. He established expertise by study and experience and gave evidence concerning the group in New Zealand identifying itself as 14K. His evidence was not contradicted and he was cross-examined only briefly. He told the Court of the Chinese gang having a national leader in Wellington and two active factions in the Auckland area. One of those in the Howick area is lead by the appellant who stands third in the national hierarchy. He was described as having “pretty much absolute control” over the Howick faction especially when “acting in an organised way”.
The officer also gave evidence of telephone records recording calls on the day in question to the phone numbers of each of the two national leaders above the appellant from a phone of a follower of the appellant (Eric Lai) in the Howick faction who would communicate with those leaders only with the appellant’s authority.
The witness also described a method of recruitment known to be employed by the Chinese gang. The notes of evidence record:
In relation to recruiting, going back to recruiting, a gang uses this loss of face to recruit youth into a gang and to explain how that happens, the gang will fabricate or engineer a loss of face. For example they will say you have said something that insults the gang, a member of the gang, an associate of the gang, you have caused our group or that person to lose face, to address that you will pay, they will demand money, or they will threaten violence or assault that person thus giving face back to the person who has lost face. To go on from there, once the person has often been assaulted because it is alleged that he has caused the loss of face to the gang the prospective recruit becomes extremely fearful of the circumstances. At that time another member of the gang will offer protection of the group. They will offer them the sanctity of the gang, for example they will say if you join our gang then we can protect you from being beaten up, we can protect you from the assaults.
The 17 year old student daughter of Mr Lee, the restaurant owner, gave evidence of a series of abusive phone calls from three people associated with the gang. They were initiated by one Jason Yam. She said they made completely unfounded allegations against her. At one point she rang her friend Eric Lai through whom she had come to know the callers. While speaking to Eric Lai Jason Yam came onto the phone. The obvious inference for the jury to draw was that these people were acting together and to the knowledge of Eric Lai. Eventually in one of the calls Ms Lee was asked to meet the callers the following day (3 April) at a shopping centre outside a named café.
Ms Lee informed her father and he decided to accompany his daughter to the meeting. He arranged for an employee of his restaurant Ah Wing to join them. Ah Wing, whose evidence given at the preliminary hearing was admitted by consent and of whom more is to be said, made contact with the appellant, informed him of the problem facing Ms Lee and asked him to attend the meeting set for the following day. Plainly Ah Wing recognised the targeting of Ms Lee as having gang significance and contacted the appellant as the known leader, seeking his intervention.
The meeting took place in the early afternoon of 3 April. Mr Lee, his daughter and Ah Wing found more than 20 young Chinese gathered outside the cafe. The appellant was there. Mr Lee asked which of them was Jason. The appellant pointed out Jason and introduced himself as “Jason’s big brother”, using the Cantonese term Dai Lo signifying his senior or superior.
According to Mr Lee he asked Jason whether he wanted his daughter to follow any particular person (gang parlance for giving allegiance) . He then told him that he was the person his daughter would follow and to leave her alone. Mr Lee then left and entered a noodle shop where he had lunch with his daughter. Ah Wing remained talking to the group for a short time and then joined them. His evidence was that the appellant told Jason not to cause Mr Lee’s daughter any trouble and reprimanded him for abusing her. The record of his evidence included the following questions and answers:
Q.While Mr Lee was talking what was [the appellant doing?
A.I wasn’t aware of what happened, what he was doing.
Q.Well how did he react to what Mr Lee said?
A.It seems that he was very angry.
There was evidence that the following morning the appellant accompanied by Eric Lai and Jason Yam met at a video parlour in Auckland City with a group of young Chinese who were later to be involved in the attack on the restaurant. They were there with John Chan said to be the leader of the 14K Auckland faction. That the meeting took place was clearly established. What was discussed was not. But a witness Martin Ho who was one who was present at the time of the attack on the restaurant though he did not enter it, said that as a result of that meeting later in the day the group went to a “meeting” at Howick in the car park of the Sommerville Shopping Centre. A large group gathered there including the appellant, Jason Yam, Eric Lai and John Chan. According to Martin Ho the appellant seemed to be the “boss” … “there was a certain atmosphere about him”.
Eventually some of the group went off in cars to Lee’s restaurant where the offences were committed. About 15 minutes before they set off the appellant left the group to keep a medical appointment.
For the appellant, Mr Cassidy submitted that the evidence was not sufficient to warrant conviction of his client. He argued that the evidence was equally capable of constructing the inference that the appellant acted as a peacemaker and not as the instigator or controller of the offending. He relied particularly on the evidence that the appellant was asked to intervene by Ah Wing. He relied also on the evidence of Mr Lee that the meeting at which he confronted the appellant and his group was conducted in an “orderly fashion”. He referred to the evidence that the appellant had lunch in the same noodle shop as the Lees after the meeting. He contended that it could not be inferred from his presence among those gathered in the shopping centre car park before the attack that the appellant in any way aided or abetted those who carried it out.
We are satisfied, however, that when taken overall there was ample evidence on which the jury could convict the appellant. It was open to them to infer that those who participated by coming from Auckland City to Howick did so as a result of the meeting at the video parlour which, in light of the evidence of his position in the gang structure, would have been led by the appellant. Again later he was perceived as the “boss” at the car park from where the raid was launched. The jury would have been quite entitled to conclude that this was in retaliation for Mr Lee confronting the gang and exposing their recruitment method. Most of the young people in the various gatherings were teenagers whereas the appellant was 26 years old at the time. His leadership of the group was established. That the raid was a gang operation was proclaimed as they entered the restaurant. That is to be taken in conjunction with the timing of telephone calls to the phones of the two superiors in the national hierarchy.
In his written submissions Mr Cassidy advanced a further argument not pursued in his oral presentation. The submission was that the evidence did not establish how the injury to the restaurant patron giving rise to the second count was caused so that no offence was proved. There being no principal offence, the appellant could not have been convicted as a party. We see nothing in this point. It is simply untenable to suggest that the pane of glass in the door which shattered showering the victim with broken glass was not broken as a result of the riotous actions of those who burst into the restaurant and effected the damage described.
We reject the first ground of appeal.
The second ground is of miscarriage of justice arising from unfairness to the appellant in the manner in which the evidence of Ah Wing came to be before the jury. He was a Crown witness who gave evidence orally at the preliminary hearing. He was cross-examined by Mr Cassidy representing the appellant. He was summonsed to appear at the trial. When called he did not appear. A bench warrant was issued. The witness was not located but the police spoke to him on his mobile telephone. As a result Crown counsel determined not to call him and informed defence counsel. Mr Cassidy wanted his evidence and asked the Judge to intervene but he declined to do so. In the outcome, by consent, the evidence given at the preliminary hearing, including the cross-examination, was read to the jury. Mr Cassidy now says his client was prejudiced by his inability to cross-examine Ah Wing on that answer he gave that the appellant seemed very angry when spoken to by Mr Lee.
The difficulty faced by Mr Cassidy is that he wanted the evidence before the jury and obtained the Crown’s consent to that course. Obviously he believed there would be more benefit than detriment for his client in that course. Having elected to proceed in that way he cannot now complain of prejudice because the jury found against his client. We do not accept that there was any miscarriage of justice on this ground.
Accordingly, for the reasons given, the appeal is dismissed.

Solicitors

Crown Solicitor, Auckland

[2000] NZCA 33

1 March 2000