Wong v Police - [2023] NZHC 1677

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-78

[2023] NZHC 1677

BETWEEN
TECK CHUONG WONG

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 29 June 2023

Appearances:

C G Nolan for Appellant S J Mallett for Crown

Judgment:

30 June 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 30 June 2023 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Introduction

[1] Teck Wong pleaded guilty to charges of intentionally making an intimate visual recording,1 and indecent assault.2

1 Crimes Act 1961, s 216H – maximum sentence of three years’ imprisonment.
2 Section 135 – maximum sentence of seven years’ imprisonment.

WONG v NEW ZEALAND POLICE [2023] NZHC 1677 [30 June 2023]

[2] He was sentenced in the District Court to 10 months home detention.3 He appeals his sentence on the grounds:

(a)the starting point adopted was too high;

(b)there was insufficient credit for personal mitigating factors; and

(c)the least restrictive sentence was not imposed in the circumstances.

Facts

[3] Mr Wong is an Uber driver. At around 3:20am on Sunday 14 August 2022, the victim used the Uber app to order a ride to a Rangiora address.

[4] Mr Wong was working at the time and accepted the ride. He picked the victim up at around 3:25am outside a bar in Christchurch. He drove the victim to the Rangiora address. Once they arrived, she asked him if she could wait in his car until her friends arrived however, she proceeded to fall asleep in the passenger seat.

[5] The victim was wearing a skirt which shifted upwards while she was sleeping, exposing her underwear. Mr Wong reached across and pulled the underwear to the side, exposing her vagina and touching her genitals. He then used his cell phone to take three images of the victim’s vagina.

District Court decision

[6]Mr Wong was sentenced by Judge Couch on 11 May 2023.

[7] The Judge firstly noted the serious nature of the offending. It involved contact (albeit brief) with the victims’ genitals in a situation where there could not possibly have been a belief that the victim was consenting as she was asleep. The second factor noted was the breach of trust. Passengers in taxis and similar vehicles are entitled to feel safe from interference or attack. The Judge said that Mr Wong took advantage of the victim’s vulnerability and also noted that she was only 18 years old.

3 Police v Wong [2023] NZDC 9180.

[8] The Judge discussed the serious impact that this has had on the victim and the fact she remains seriously affected.

[9] Finally, the taking of photos was held to be a further seriously aggravating factor.

[10] The Judge considered the written submissions and the cases which were cited in them. However, he said none of the cases drew any real similarity to this situation and so he considered the facts in light of the penalties…

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 Wong v Police

Details

AGLC: Wong v Police [2023] NZHC 1677
Case: [2023] NZHC 1677
Decision Date: 30 June 2023

CaseChat Overview and Summary

In the case of Wong v Police, Teck Chuong Wong appealed his sentence for intentionally making an intimate visual recording and indecent assault. Wong was sentenced in the District Court to 10 months of home detention. He appealed his sentence on the grounds that the starting point was too high, there was insufficient credit for personal mitigating factors, and the least restrictive sentence was not imposed. The High Court assessed the appeal based on the correctness of the sentence rather than the process by which it was reached. The court found that the aggravating factors, such as the harm caused, breach of trust, vulnerability of the victim, and the taking of photographs, were appropriately considered by the District Court. The court also found that the mitigating factors, such as the defendant's good character and payment of $1000 to the victim, were correctly considered by the District Court. However, the court found that there should have been a discrete discount for remorse, in addition to the five per cent discount for good character. Despite this, the court found that the end sentence was appropriate and dismissed the appeal.

The final orders of the court were that the appeal was dismissed, and the sentence imposed by the District Court was upheld. The defendant was to remain subject to the 10-month home detention sentence, with the requirement that all images of the victim on his phone were to be deleted by police before the phone was returned to him.

Orders