Yang v The Queen - [2004] NZCA 188

IN THE COURT OF APPEAL OF NEW ZEALAND
CA51/04
THE QUEEN
v
TIAN YAO YANG
Hearing:23 June 2004

Coram:Glazebrook J
Chisholm J
Potter J
Appearances: C L Harder for Appellant

A R Burns for Crown

Judgment:18 August 2004

JUDGMENT OF THE COURT DELIVERED BY POTTER J

[1]        Tian Yao Yang appeals against conviction under s 86(1)(a) Crimes Act 1961 of being a member of an unlawful assembly. He also appeals against the sentence of $1,000 fine, or 14 days imprisonment if he failed to pay the fine within 14 days, imposed following conviction.
[2]        The conviction under s 86(1)(a) followed trial by jury. The jury found the appellant not guilty of a charge of having an offensive weapon in a public place without lawful authority or reasonable excuse.
Grounds of appeal
[3]        The appeal against conviction focuses on the definition of “unlawful assembly” under s 86(1)(a), and a submission that the Judge misdirected the jury as to that definition in relation to the facts of this case.
[4]        The appeal against sentence is on the grounds that the sentence is manifestly excessive, that the rider of imprisonment represents sentencing disparity, that this was an appropriate case for a discharge without conviction given the appellant’s co-operation with the Police and the consequence that a conviction will result in his student visa being revoked.
Background
[5]        On Sunday 18 November 2001 there was an altercation at the Kiss Bar on Karangahape Road. Two members from a gang of young Asian males (Group A) were allegedly assaulted by members of another gang of young Asians (Group B).
[6]        During the early hours of Monday 19 November 2001 members of Group A were at a party at the Kiss Bar. At around 2 a.m. some 20 or more members of Group B, including the appellant, held a meeting some distance away at Victoria Park. They armed themselves with pieces of wood and metal bars and made a plan to go to the Kiss Bar and confront members of Group A regarding the previous night’s incident. The appellant was provided with a piece of wood.
[7]        The appellant travelled to the bottom of East Street by car along with other members of Group B. They then walked up East Street to Karangahape Road carrying their weapons (although the sentencing Judge accepted that the appellant left his piece of wood behind).
[8]        Group B assembled at the corner of East Street and Karangahape Road and called on members of Group A to come outside. A member of Group A came out of the bar and walked across the road to confront Group B. He was armed with a knife and attempted to strike a member of Group B.
[9]        Members of Group B, including the appellant, then ran back to their cars and left the scene, during the course of which three members of Group A were struck by these vehicles. Two were injured and one was killed. No one from Group B called for or…

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 Yang v The Queen

Details

AGLC: Yang v The Queen [2004] NZCA 188
Case: [2004] NZCA 188
Decision Date: 18 August 2004

CaseChat Overview and Summary

In the appeal of Yang v The Queen, the appellant, Tian Yao Yang, challenges both his conviction and sentence under the Crimes Act 1961 for being a member of an unlawful assembly. Yang's conviction arose from an incident at the Kiss Bar where he and others from Group B confronted Group A with weapons, leading to a fatal altercation. Yang argues that his involvement was merely incidental and he did not share the common intent to cause violence. The Crown contends that Yang's participation, though limited, was sufficient to constitute membership in an unlawful assembly.

The court considered whether Yang's actions met the statutory criteria for unlawful assembly, focusing on his intent and participation in the group's common purpose. The court found that Yang's deliberate presence at the assembly, armed with a weapon, and his coordination with the group's plan to confront Group A, established his involvement. The trial judge correctly directed the jury on the requirements for unlawful assembly, and the court rejected Yang's claim that his conviction should be quashed due to misdirection.

Regarding the sentence, Yang argues that the $1,000 fine, with an alternative 14-day imprisonment if unpaid, is excessive and disproportionate, particularly considering the potential revocation of his student visa. The Crown maintains that the sentence was appropriate given the seriousness of the offence and the need for deterrence. The court concluded that the District Court Judge correctly exercised his discretion under the Sentencing Act, taking into account mitigating factors such as Yang's limited role and cooperation with police, while also considering the gravity of the offence and the need for parity in sentencing. The appeal against both conviction and sentence was dismissed.

The appeal is dismissed, and Yang's conviction and sentence stand as imposed by the District Court.

Orders