Wang v Police - [2021] NZHC 2741

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-000122

[2021] NZHC 2741

SHIKUN WANG

v

NEW ZEALAND POLICE

Hearing: 27 September 2021

Appearances:

O Martell for the Appellant

A Masters for the Respondent

Judgment:

13 October 2021

JUDGMENT OF WALKER J

This judgment was delivered by me on 13 October 2021 at 3 pm Registrar/Deputy Registrar

WANG v NEW ZEALAND POLICE [2021] NZHC 2741 [13 October 2021]

Introduction

[1] Shikun Wang appeals against conviction and sentence for assault on a person in a family relationship1 and strangulation2 following a judge-alone trial in the Auckland District Court on 10 July 2020.3 He was sentenced to six months’ home detention, 120 hours of community work and $900 reparation for emotional harm.4 Mr Wang argues that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice occurred. He contends that if the appeal against conviction is allowed in respect of the strangulation charge only, then he should be discharged without conviction pursuant to s 106 of the Sentencing Act 2002. He seeks leave to file evidence and submissions in support of that contention once the outcome of the appeal is known.

[2] In this judgment, I do not refer to the complainant by name. I intend no disrespect. Nor is it intended to depersonalise her experience. The practical reason is to preserve her privacy, consistent with the provisions of the Family Violence Act 2018.

[3] The complainant is Mr Wang’s former partner. They had been in a relationship for between one and two years. They did not live together but the complainant says that she regularly spent a couple of nights with him each week. Mr Wang was boarding at the home of the complainant’s grandmother.

District Court decision

[4] The Judge began by recording that the defence advanced at trial for the assault charge was one of self-defence. In respect of the strangulation charge, Mr Wang denied that he intentionally impeded her breathing by applying pressure to her throat and neck.

[5] The Judge noted that it was not in dispute that the parties were in a close personal relationship for the purposes of s 12 of the Family Violence Act 2018. He

1      Crimes Act 1961, s 194A: carrying a maximum penalty of two years’ imprisonment.
2      Section 189A(b): carrying a maximum penalty of seven years’ imprisonment.
3      See New Zealand Police v Wang [2020] NZDC 13357 [Conviction decision].
4      See New Zealand Police v Wang [2021] NZDC 4756 [Sentencing notes].

also recorded that it had not been disputed that the complainant was beaten or hit by Mr Wang. The background to the incident involved a verbal argument over cleaning which escalated to a physical altercation. The Judge observed that the complainant herself accepted that she had used physical force but had said that she was defending herself from Mr Wang.

[6] The complainant said on cross-examination that she lost consciousness due to…

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 Wang v Police

Details

AGLC: Wang v Police [2021] NZHC 2741
Case: [2021] NZHC 2741
Decision Date: 13 October 2021

CaseChat Overview and Summary

Shikun Wang appeals against his conviction and sentence for assault on a person in a family relationship and strangulation. Wang argues that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice occurred. The appeal was heard in the Auckland Registry of the High Court. The appeal against conviction was dismissed, and the sentence appeal falls away since it was conditional on a successful appeal against the conviction. The court found that the Judge had not erred in his assessment of the evidence, and the conviction and sentence were upheld. The court held that the Judge was entitled to prefer the complainant's evidence over Wang's evidence, and the extent of injury evidenced excessive force in restraint. The court found no error in the conclusion that the force used by Wang was excessive.

Orders