Wong v R

Case [2011] NZCA 563 8 November 2011

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA227/2011
[2011] NZCA 563

BETWEEN ALEX KWONG WONG
Appellant

AND THE QUEEN
Respondent

Hearing: 24 August 2011

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

Counsel: F C Deliu for Appellant
J C Pike for Respondent

Judgment: 8 November 2011 at 2.30 pm

JUDGMENT OF THE COURT

The application for leave to file a further appeal is dismissed. The application for bail is also formally dismissed.

REASONS OF THE COURT
(Given by Arnold J)

Background

Following a jury trial before Winkelmann J in June 2006, the applicant, Mr Wong, was convicted on four charges relating to the importation, supply and possession of methamphetamine and one further charge of money laundering. On appeal to this Court his convictions were upheld,[1] but on further appeal to the Supreme Court they were quashed and a retrial was ordered.[2] The convictions were quashed because the jury had been reduced to ten members and the Court considered that there were no exceptional circumstances to warrant a trial with fewer than 11 members.
[1] R v Wong [2007] NZCA 280.
[2] Wong v R [2008] NZSC 29, [2008] 3 NZLR 1.
The retrial took place in February 2009 before Potter J and a jury. Initially, Mr Wong acted for himself on various pre-trial matters, albeit with the assistance of a Court-appointed interpreter. At a call-over on 1 October 2008, Lang J urged Mr Wong to seek legal assistance and subsequently Mr Wong retained his present counsel, Mr Deliu. Although Mr Deliu acted for Mr Wong in relation to various pre-trial applications, Mr Wong terminated Mr Deliu’s instructions prior to trial and chose to act for himself. The Court then appointed an amicus, Mr Dacre, whose function was to assist the Court, to provide advice to Mr Wong (if requested) and to assist him with matters of procedure, evidence or other aspects of criminal law related to the charges.[3] In addition, Mr Wong applied for, and was granted, leave to have a McKenzie friend, his girlfriend Ms Anna Siu, present with him throughout the trial. The Court-appointed interpreter at Mr Wong’s retrial was Ms Sai Law.[4]
[3] R v Wong HC Auckland CRI-2005-004-15296, 20 February 2009 at [13].
[4]It is clear from the material before us that Mr Wong was assisted by an interpreter from at least October 2008 in relation to his retrial and probably earlier. While it is clear that Ms Law was the Court-appointed interpreter from at least 20 February 2009, the record does not reveal whether or not she had been appointed to interpret for Mr Wong prior to that.
The jury found Mr Wong guilty of one count of importing methamphetamine and another of having it in his possession for supply, but acquitted him on the three remaining charges. Mr Wong then appealed to this Court, being represented at that stage by Mr Deliu. Although there were numerous grounds of appeal, all were unsuccessful.[5] Mr Wong then sought leave to appeal…

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 R

Details

AGLC: Wong v R [2011] NZCA 563
Case: [2011] NZCA 563
Decision Date: 8 November 2011

CaseChat Overview and Summary

In Wong v R, the appellant, Alex Kwong Wong, sought leave to file a further appeal against his convictions for drug importation, supply and possession, as well as money laundering. Wong's initial appeal against his convictions was dismissed by the New Zealand Court of Appeal in 2009, and his subsequent application for leave to appeal to the Supreme Court was also dismissed. Wong's current application for leave to file a further appeal is based on the contention that he was not provided with proper interpretation assistance at his retrial. The Court of Appeal considered the legal issues of whether the Court had the inherent power to reopen a decision in exceptional circumstances and whether Wong's right to the assistance of an interpreter was breached.

The Court of Appeal found that the inherent power to reopen a decision was only available in exceptional circumstances when required by the interests of justice, and that there was no proper basis to invoke it in this case. The Court also determined that it was not seriously arguable that Wong's right to an interpreter was breached, as he had been provided with an interpreter throughout the trial, and his conduct during the trial demonstrated that he understood the proceedings and was able to effectively represent himself.

Consequently, the Court of Appeal refused Wong's application for leave to file a further appeal and formally dismissed his application for bail. Wong is, however, free to pursue a section 406 application if he wishes.

Orders