Wong v The Queen - [2014] NZCA 155

IN THE COURT OF APPEAL OF NEW ZEALAND

CA70/2014
[2014] NZCA 155

BETWEEN	THYSSEN CARTER WONG Appellant
AND	THE QUEEN Respondent

Telephone

Conference:

15 April 2014

Counsel:

S Gray for Appellant
M E Ball for Respondent

Judgment:

17 April 2014 at 12.00 pm

JUDGMENT OF WHITE J

The application for bail and suspension of home detention is declined.

____________________________________________________________________

REASONS

The appellant, Thyssen Carter Wong, was convicted after a jury trial in the District Court at Auckland on one charge of possessing 2.6 grams of methamphetamine for supply and one charge of possessing an offensive weapon. He was also acquitted on a charge of supplying methamphetamine. The appellant was then sentenced by Judge Sinclair to seven months’ home detention, together with six months of post-release conditions.[1] He appeals to this Court against his conviction.
[1]R v Wong DC Auckland CRI-2012-090-1401, 21 January 2014.
Mr Wong applies for bail pending appeal under s 403A(c) of the Criminal Procedure Act 2011 and s 55 of the Bail Act 2000 and the suspension of his home detention sentence.
A sentence of home detention is no longer automatically suspended when an appeal is brought in a case to which the Criminal Procedure Act applies,[2] or where, as here, the matter falls in the transitional period.[3] It is not disputed that this Court ought not to suspend a sentence without also granting bail.[4]
[2]Criminal Procedure Act 2011, ss 343 and 345.
[3]Section 403A(a) (compare the former provisions: Crimes Act 1961, s 399 and Summary Proceedings Act 1957, s 124(3)).
[4]Din v R [2013] NZCA 610, [2014] 2 NZLR 445 at [12]–[13].
Bail is opposed by the Crown.
I personally have considered the application pursuant to s 393(2)(d) of the Crimes Act 1961.[5]

Relevant principles

[5]See also s 333(2)(d) of the Criminal Procedure Act.

The test to be applied in relation to the application is that set out in s 14 of the Bail Act. Under s 14(1), bail is not to be granted unless the Court is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so. Section 14(2) provides that the onus is on the applicant to show just cause why bail should be granted.
Section 14(3) sets out a number of considerations which may be taken into account when determining what is in the interests of justice. In this case the appellant relies on the apparent strength of his grounds of appeal, the length of sentence imposed, the likely length of time until the appeal is heard and his personal circumstances.[6]

Discussion

[6]Bail Act 2000, s 13(3)(a)–(d).

It is not necessary or appropriate to undertake an extensive analysis of the merits of an appeal in determining an application for bail.[7]

The apparent strength of the grounds of appeal

[7]R v de Bruin [2007] NZCA 76 at [9], citing Ellis v R [1998] 3 NZLR 555 (CA).

Mr Wong’s appeal is lodged on two grounds, namely that the…

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 The Queen

Details

AGLC: Wong v The Queen [2014] NZCA 155
Case: [2014] NZCA 155
Decision Date: 17 April 2014 at 12.00 pm

CaseChat Overview and Summary

In the appeal case of Wong v The Queen, the appellant, Thyssen Carter Wong, challenges his conviction and sentence for possessing methamphetamine for supply and possessing an offensive weapon. Wong was found with 2.6 grams of methamphetamine, electronic scales, a small pocket knife, and approximately $6,530 in cash. He was acquitted of supplying methamphetamine and sentenced to seven months' home detention with six months of post-release conditions. Wong appeals against his conviction, and the Crown opposes his application for bail pending appeal and for suspension of his home detention sentence.

The legal issues for the Court of Appeal to determine include whether Wong's appeal grounds are strong enough to warrant bail, whether the delay in hearing the appeal would be unjust, and if Wong's personal circumstances justify suspension of his home detention. The Court considered Wong's arguments that the trial judge erred in failing to give proper directions on inferences and that the jury's verdicts were inconsistent. However, the Court found these arguments to be weak given the evidence presented and the jury's rejection of Wong's defence of personal use. The Court also noted that an early hearing date for the appeal could address Wong's concerns about delay, and his inability to look for employment while on home detention would be mitigated by an early hearing.

The Court of Appeal, after considering the principles and factors outlined in the Bail Act 2000 and the Criminal Procedure Act 2011, concluded that granting Wong bail pending appeal was not in the interests of justice. The Court found no exceptional circumstances that warranted bail or suspension of the home detention sentence. The appeal was scheduled for 28 May 2014, and the Court of Appeal declined Wong's application for bail and suspension of home detention.

Orders