WONG v R [2023] NZCA 341

WONG v R [2023] NZCA 341 [3 August 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA208/2022[2023] NZCA 341BETWEEN JOSHUA SANG-LEE WONGAppellantAND THE KINGRespondentHearing: 11 May 2023Court: Collins, Hinton and Gendall JJCounsel: C J Tennet for AppellantM J Lillico and H S Cunningham for RespondentJudgment: 3 August 2023 at 9.30 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Hinton J)[1] On 25 March 2022, after a jury trial before Judge Krebs, Joshua Sang-LeeWong was convicted of 12 charges and sentenced to 10 years eight months'imprisonment.1[2] At trial, Mr Wong pleaded guilty to one charge each of assault on a person ina family relationship,2 intentional damage,3 and burglary.4 Mr Wong was found guiltyof unauthorised access of a computer system,5 burglary, kidnapping,6 threatening tokill,7 one further charge of assault on a person in a family relationship, four charges ofsexual violation (three of unlawful sexual connection and one of rape),8 and attemptingto pervert the course of justice.9 He was acquitted of one further charge of assault ona person in a family relationship and injuring with reckless disregard.Appeal[3] Mr Wong appeals his conviction and sentence. He submits that the Judge'sruling against an adjournment on the morning of the trial, exclusion of a juror forCOVID-19 reasons, unfair admission of Mr Wong's text messages and a number ofother matters relating to trial conduct caused a miscarriage of justice. As to sentence,Mr Wong submits that it was manifestly excessive in that the starting point wasinappropriate and insufficient discounts were applied.[4] Under s 232 of the Criminal Procedure Act 2011 (CPA), this Court must allowthe appeal against conviction if satisfied that a miscarriage of justice has occurred thatcreated a real risk the trial outcome was affected.10 The sentence appeal is brought1 R v Wong [2022] NZDC 5242.2 Crimes Act 1961, s 194A. Maximum penalty of 2 years' imprisonment.3 Section 269(2)(a). Maximum penalty of 7 years' imprisonment.4 Section 231(1)(a). Maximum penalty of 10 years' imprisonment.5 Section 252(1). Maximum penalty of 2 years' imprisonment.6 Section 209(b). Maximum penalty of 14 years' imprisonment.7 Section 306(1)(a). Maximum penalty of 7 years' imprisonment.8 Section 128 and 128B. Maximum penalty of 20 years' imprisonment.9 Section 117. Maximum penalty of 7 years' imprisonment.10 Criminal Procedure Act 2011, s 232.under s 244 of the CPA and must only be allowed if this Court is satisfied there wasan error in the sentence and a different sentence should be imposed.11Background[5] Mr Wong and the complainant were in a relationship for two years. Prior to16 January 2021, they had ended their relationship. That day, Mr Wong attempted toretrieve what he claimed was his cellphone, from the complainant. During thatinteraction, he kicked her thigh. He was arrested and charged with assault. In breachof his bail conditions, Mr Wong contacted the complainant and encouraged her tochange her statement and to pressure a neighbour, who witnessed the altercation, notto cooperate with police.[6] On 22 January 2021, Mr Wong accessed the complainant's mother's Facebookaccount to locate the complainant and went looking for her, apparently driven by hisbelief that the complainant was having a sexual relationship with another man.Mr Wong went onto the complainant's mother's property, but no-one was there. Themother's car was parked outside the house, Mr Wong slashed all four tyres and pouredwater into the petrol tank. When Mr Wong could not find the complainant, he went toa property connected to the man with whom he believed the complainant was havinga relationship. She was not there, but he threw rocks through the windows.[7] The next morning, on 23 January 2021, he tricked the complainant into gettinginto his car and drove away with her. Once she was in the car, he threatened to killher, including by shooting her. The complainant believed Mr Wong had an air rifle inthe back of the vehicle. She was detained for three to four hours. When they arrivedat a house, she was pushed against the wall, taken inside, and forced to strip naked.[8] Mr Wong then sexually violated the complainant by putting his fingers insideher anus and vagina, penetrated her anally with his penis, and raped her. He thenordered her to shave her head, which she did, out of fear of an assault. Mr Wong thenwent on the complainant's mother's Facebook Messenger account without her11 Section 250(2).authority and sent sexually offensive messages in the mother's name to the man withwhom he believed the complainant was having a relationship.Application for adjournment of trial[9] As the main ground on the conviction appeal is that Judge Krebs erred in failingto adjourn the trial, we briefly record the background to that decision below.[10] On the morning of trial, that is Monday 31 January 2022, Mr Wong's trialcounsel, Ms Jaquiery, sought an adjournment on the basis of concerns over the Court'sability to follow the then active Ministry of Justice COVID-19 protocols and on thebasis that she needed more time to prepare for trial. In the alternative, Ms Jaquieryrequested at least half a day to finish briefing Mr Wong and confirm his instructions.[11] Judge Krebs issued a written decision declining the adjournment.12He considered protocols were in place to adequately protect against the risk ofCOVID-19. As to preparation, he noted that it was over a year since Mr Wong hadbeen charged, evidential pre-trial matters had been attended to in the second half of2021 and the trial had been set down for some months. It was a backup fixture whichhad become firm, but counsel had been advised throughout to be ready to proceed.The Judge said there had been no change to the evidential landscape that meantpreparation could not have been undertaken earlier.[12] The Judge agreed to Ms Jaquiery's alternative request and adjourned thehearing to 2.15 pm. He noted that she was content with that approach.Appeal against conviction[13] As Mr Wong raises a number of points on the conviction appeal, we addresseach in turn.[14] In support of this appeal, Mr Wong filed an affidavit that inferred issuesregarding the conduct of Ms Jaquiery as trial counsel. She filed an affidavit in12 R v Wong [2022] NZDC 1446.response dated 13 March 2023 and Mr Wong subsequently clarified that he did notallege any counsel error and accepted Ms Jaquiery's evidence.Declining of adjournment[15] Mr Tennet, for Mr Wong, submits that the Judge's decision to refuse anadjournment meant there was inadequate time for Mr Wong to prepare for trial,particularly to prepare Mr Wong for giving evidence and to discuss guilty pleas.Mr Tennet submits that with more time to discuss the matter with Ms Jaquiery,Mr Wong would have pleaded earlier, instead of entering guilty pleas to some chargesduring the trial, which operated significantly to Mr Wong's disadvantage with the jury.Mr Tennet points to Ms Jaquiery's evidence that Mr Wong's brief was not finalisedand she would have liked more time to discuss guilty pleas.[16] In deciding whether the Judge's decision not to adjourn the trial caused amiscarriage, the focus must be on "realistic rather than theoretical possibilities."13[17] We agree with the Crown that viewing the evidence overall, it does not followthat a longer adjournment would have substantially affected the defence's ability toprepare. The overall tenor of Ms Jaquiery's memorandum in support of theadjournment application and her recent affidavit suggests that while it was not herpreference, she was able to proceed on 31 January 2022. Judge Krebs' decision on theadjournment application reflected that also.[18] Ms Jaquiery says that she had spent significant periods of time with Mr Wongat the prison in the months prior to his release on EM bail, reviewing the evidence andin general preparation. She records that they had engaged in substantialcorrespondence discussing the case, including drafting his version of events anddiscussing evidence and strategies. Mr Wong had given her a clear description of whathe described as consensual sex. Ms Jaquiery updated his formal witness statement on30 January 2022 and discussed what to expect at trial if the adjournment applicationwas declined. Her affidavit records that she was able to continue preparing Mr Wong13 Misa v R [2019] NZSC 134, [2020] 1 NZLR 85 at [46], citing Wiley v R [2016] NZCA 28, [2016]3 NZLR 1 at [28].for his evidence during trial, on the first day of trial and over the weekend and publicholiday during trial, all of which were during the Crown case. On the public holidayshe spent two hours on an AVL call with Mr Wong preparing him to give evidence.Ms Jaquiery describes this as effectively "having a practice run". While she describesMr Wong's brief prior to his giving evidence as not finalised and signed, she alsodescribes it as very detailed.[19] Our impression is that overall a large amount of time was able to be spent onbriefing Mr Wong and that Ms Jaquiery had been very thorough in doing so.[20] Mr Wong did give evidence and his version of events was put squarely beforethe jury. Mr Wong does not say what it was about his evidence that would have beendifferent if he had more time to prepare. Similarly, the cross-examination was on fairlyobvious fronts in terms of focusing on Mr Wong's anger, threats and abuse. There wasnothing to suggest that more time would have avoided the impact of the cross-examination.[21] With regard to guilty pleas, Ms Jaquiery's affidavit and the enclosedcorrespondence (which Mr Wong does not contest) show that he received advice somemonths before trial regarding pleading guilty pre-trial. It seems he rejected this advice,or at least preferred to rely on his relative's advice not to enter any plea. He wasworried that guilty pleas would weaken his defence in respect of other charges. Itappears that after hearing the complainant's evidence and cross-examination,Mr Wong made the decision to plead to some of the charges. Further, he does notsuggest how more time would have or could have led to an acquittal, rather relying asthe Crown says, on the broad proposition that more time to prepare is alwaysadvantageous. That, of course, is not sufficient to show a miscarriage of justice andwe find there was none in this regard.The Judge's exclusion of one juror[22] At the time of Mr Wong's trial, New Zealand had moved to the COVID-19Protection Framework. On the first day of trial, the Judge repeated an order thatpotential jurors had to prove they were vaccinated or provide a negative COVID test.One juror who did not comply was stood aside under s 22 of the Juries Act 1981.The Judge said he did so because of concern the juror would cause anxiety amongstthe others.14[23] Mr Tennet submitted that the Judge was wrong to exclude the juror. Mr Wonghimself was unvaccinated and Mr Tennet said he was entitled to "a jury of his peers".In his affidavit, Mr Wong said that he believes he "lost some independent thinkers" asa result. Mr Tennet contends that the unvaccinated juror was excluded based on theirbeliefs, in contravention of s 25 of the Juries Act 1981. He submitted thatR v Cornelius15 applies in that there was an arbitrary exclusion of a juror which a fair-minded observer would consider wrong.[24] In reply submissions Mr Tennet in fact conceded this point.[25] We consider that concession was correct. For the record, we note that the Judgeacted in accordance with the Covid-19 Protection Framework issued by Chief DistrictCourt Judge Taumaunu which had come into effect at the time the trial began. Thisrequired jurors to show either a negative COVID-19 test or vaccine passport to attendCourt. Counsel's submission that Judge Krebs' decision to excuse the juror was"arbitrary" as discussed in R v Cornelius is therefore without merit. The decision wasgrounded in policy and fell within the Judge's broad discretion under s 22(a) of theJuries Act 1981 to dismiss any juror the court considers incapable of performing theirduty. This includes a situation such as this where a Court considers a person's presenceon a jury would create a serious risk the trial would be unable to conclude. Previousdecisions on s 22 have upheld Judges' rulings to dismiss jurors for waiting for COVID-19 test results (prior to the vaccination regime)16 and anxiety about missing personalappointments that would distract them.17 These cases demonstrate that the bar fordismissal of a juror under s 22 has been interpreted broadly.[26] Further, for the Court to quash Mr Wong's convictions on this basis, he wouldneed to show both an error and a specific prejudice that could have made this trialunfair. In this case, there is no information available to suggest that the absence of the14 R v Wong, above n 12, at [8].15 R v Cornelius [1994] 2 NZLR 74 (CA).16 Iuliano v R [2021] NZCA 432.17 Stewart v R [2016] NZCA 217.single person selected for empanelling who refused to show a vaccine passport or anegative COVID-19 test undermined Mr Wong's fair trial rights. Mr Wong has putforward no basis for the Court to find that the juror would have affected the verdicts.Unfair admission of Mr Wong's text messages[27] Mr Tennet also took issue with the admission of text messages sent byMr Wong to the complainant. The messages were said to be prejudicial in that theywere "selective, one-sided and unfair". Mr Tennet submits that, without the ability forthe defence to put the messages in context, the messages provided illegitimate supportfor the complainant's version of events, giving rise to an unfair trial. He particularlycriticised the Crown's decision not to censor racial slurs which appeared in themessages.[28] We do not consider that the text messages were wrongly admitted. As theCrown submits, the lead charges of sexual violation were denied by Mr Wong on thebasis that the complainant consented to sexual activity. The inclusion of messagesbetween Mr Wong and the complainant in which he used derogatory language wascentral to the Crown's argument that he was angry with her and intended to hurt her.The Crown said Mr Wong's claim that the complainant consented was not credibleunder those circumstances.[29] Censoring the messages to remove racial slurs would not have materiallychanged the effect of their content. The offensive words themselves were not the mainthrust of the evidence, though they did emphasise Mr Wong's apparent anger towardsthe complainant. Rather, what was more important was the overall tone of thecommunications as being degrading and threatening. This would not have changedby censoring certain words. Further, while the messages were presented in a partialmanner, and without censorship, the prosecutor reminded the jury in his closingstatement that the texts "don't tell the full story", and that Mr Wong was free to adducehis own evidence of messages contradicting the complainant's account. In fact,Mr Wong did put into evidence Facebook messages which provided context for thecommunications. It was also acknowledged by both the Crown and defence that therewere additional messages not able to be evidenced (including those sent over theapplication Snapchat, which deletes messages after a short period).[30] We also note, particularly, that Judge Krebs directly addressed the issue of thetext messages to the jury, saying that "Joshua Wong is not on trial for his morals orfor the language he used." Both the Crown and defence repeated some version of thisdirection during trial. The jury was cautioned about giving weight to the messagesand making their decision based on either prejudice or sympathy. We are satisfied thatthe inclusion of, or failure to censor, Mr Wong's text messages to the complainant didnot give rise to a miscarriage of justice.Prosecutor's misconduct[31] Mr Tennet submits that the Crown improperly relied on the text messages,particularly given they were selective and racially offensive. Mr Tennet submits thatthe description of the text messages as "vitriolic" was also improper. This point is inparallel with the previous argument relating to admissibility and we reject it for thesame reason.[32] Mr Tennet submits also that the inclusion of Mr Wong's police video interview,recorded after his arrest on 16 January 2021, was prejudicial and given it was recordedprior to the incidents that gave rise to the lead charges, it should not have beenpresented to the jury. The Crown played the video and then cross-examined Mr Wongabout statements he had made, including that he was not in a relationship with thecomplainant. Mr Tennet says the video showed discrepancies between his evidenceand his prior statements, which went unfairly to his credibility.[33] While we note that the video related to charges to which Mr Wong pleadedguilty, and was therefore not central to the trial, we do not consider that it wasimproperly admitted or that the prosecutor erred in his cross-examination. Theevidence was relevant to Mr Wong's credibility, and the question of whether thecomplainant had consented to some or all the sexual activity as Mr Wong claimed.Additionally, in his summing up Judge Krebs directed the jury against placing undueemphasis on the video:[105] [Mr Wong] explained his version of events in that police interviewfirst, but that related to the events giving rise to charge 1. He has now pleadedguilty to that charge, so there is limited relevance to what he said in thatinterview, but it is nonetheless evidence. You have heard it and you may takewhatever assistance from it that you find helpful, but remember, it pre-datesthe activities and dates concerning all of the other charges. Moreover, thatinterview can only be relevant in a very general way to the relationshipbetween the complainant and the defendant.[34] Mr Tennet also submits that the Crown erred in referring to the complainant as"the victim" and by using her first name rather than addressing her more formally.[35] While it is usual to refer to the person alleging an offence as "the complainant",this error is not substantial enough to be considered a miscarriage of justice. That is ahigh threshold, one which requires "more than an inconsequential or immaterialmistake or irregularity".18 Further, while formal language is preferable, as the Crownsubmits it is not unprecedented for first names to be used in cases involving allegedsexual violation in order to make the complainant more comfortable while givingevidence. We note also that Mr Wong was referred to as "Joshua" on several occasionsduring the trial. In any case, we consider that the minimal risk of attracting sympathyto the complainant by the use of her name was once again alleviated by Judge Krebs'direction to the jury on sympathy and prejudice.Inappropriate directions to the jury[36] Mr Tennet says the Judge failed to communicate the burden of proof to thejury, in particular by using the word "notion" when saying "[w]hat then is the notionof a reasonable doubt?" He also objects to the Judge's use of the word "sure" in thequestion trail and throughout the summing up.[37] Mr Tennet says also the tripartite direction given by the Judge should have beenextended to two defence witnesses, being relatives of Mr Wong.[38] Judge Krebs commenced his summing up with the Wanhalla19 direction whichwas almost verbatim in the form set out in the Court of Appeal's decision in that case.Mr Tennet conceded that the Judge's recitation of Wanhalla was correct. There is no18 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].19 R v Wanhalla [2007] 2 NZLR 573 (CA).basis to suggest this direction left the jury with an incorrect or uncertain understandingof the burden and onus of proof. The standard Wanhalla direction uses the word "sure"in defining what beyond reasonable doubt means, and that is now standard languagein a summing up.[39] The Judge gave an orthodox tripartite direction, reminding the jury thatMr Wong did not have to prove anything, did not have to answer questions from policebefore the trial, and did not have to give evidence. It was not necessary to extend thatdirection to the two additional defence witnesses. Their evidence was about thecomplainant and Mr Wong's relationship and focused on how upset Mr Wong seemedfollowing the offending. They were not giving evidence that was central to theallegations and a tripartite direction would have served no purpose.[40] Mr Tennet says further that the Judge did not fairly summarise the defencecase. In particular, he did not structure his summing up around the twelve key pointson which the defence summarised their case.[41] We do not consider that there is any basis for this claim. Judges are grantedbroad discretion in this regard.20 While the Judge did not follow Ms Jaquiery'sstructure of "12 points", he was not required to do so, provided he adequatelyincorporated the defence case into the summing up. Judge Krebs did this, addressingeach charge with reference to the Crown and defence arguments on contentious points,and referring to the question trail for each offence. In his summing up on credibility,the Judge spent more time summarising the defence case than that of the Crown,contrary to Mr Wong's submission that the Crown was favoured. Judge Krebs directedthe jury against adopting anything they might take as his view of the case:[10] Next, if I have said anything at any stage during the trial or indeed, inthis summing up to you, which suggests that I have a particular view about thefacts, then you must disregard that. [42] Mr Tennet also criticised the Judge "downplaying" defence criticism of theprosecutor's unfair reliance on selected text messages. We have already addressedthat point at [30].20 R v Keremete CA247/03, 23 October 2003 at [18].[43] Ultimately, we can find no error in Judge Krebs' directions or summing up thatwould support a miscarriage of justice.Appeal as to sentence[44] The Judge adopted a starting point of 11 years' imprisonment and made a ninemonth uplift for the other offending. He allowed a discount for time spent on EM bailand a further discount of 10 per cent for personal factors, primarily related to addictionto methamphetamine. The final sentence as we record at the outset was 10 yearseight months' imprisonment.Starting point[45] Mr Tennet submits that the starting point adopted by the Judge was too high,and that it should have been within the range of nine to 10 years' imprisonment ratherthan 11. He refers us to R v AM,21 the tariff case for offending of this kind.[46] While Mr Tennet did not press this point of appeal in his oral submissions, weaddress it nevertheless. Mr Wong's offending was assessed at sentencing as being atthe upper end of band two, which attracts a starting point of between seven and13 years' imprisonment. This Court in R v AM described offending in band two asbeing of "moderate" seriousness, applicable to cases "involving a vulnerable victim,or an offender acting in concert with others or some additional violence".22 The Courtalso noted that the effect on the complainant will be relevant in assessing where theoffending falls within the bands.[47] Mr Wong's offending involved, as we have outlined, detaining the complainantfor an extended period, vaginal and anal violation, assaulting her, and humiliating herby forcing her to shave her head. He threatened to kill her numerous times anddegraded her in person and by text message. We consider that she was particularlyvulnerable, being entirely subject to Mr Wong's control and fearing for her life.Mr Wong acted with premeditation and over an extended period of time. His actionswere in breach of the complainant's trust and continue to have repercussions for her21 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.22 At [98].and her family. The complainant suffers from post-traumatic stress disorder and hasdifficulty leading a normal life. These factors may reasonably attract a starting pointof 11 years. In the context of totality, we note that the nine-month uplift applied toreflect the other offending was at the lower end of the range available to Judge Krebs.[48] We see no error in the adopted starting point.Discounts for guilty pleas, remorse and personal circumstances[49] Mr Tennet submitted that a discount should have been given for the guilty pleasentered during trial. Also, Mr Wong was entitled to a discount for remorse and inparticular he should have received a greater than 10 per cent discount for personalfactors on account of his addiction to methamphetamine.[50] The Sentencing Act 2002 provides that where an offender has pleaded guilty,this must be taken into account at sentencing.23 The purpose of this is to recognisethat the offender has lessened the administrative burden and cost of court proceedings,and to dispense with the need for complainants to give evidence.24 In this caseMr Wong pleaded guilty to some charges only once his trial had commenced and theCrown had called the complainant to give evidence. Mr Wong maintained a not guiltyplea to the most serious charges and there was no saving in the evidence that had to becalled. Judge Krebs acted appropriately and within his discretion by denying adiscount for guilty pleas under those circumstances.[51] As to remorse, while Mr Wong stated that he felt remorse regarding the lessercharges, he continued to deny the lead (and more serious) offending. Discounts forremorse are given to recognise genuine regret and to acknowledge the potential forrehabilitation. This was not evidenced by Mr Wong and we consider that it wasappropriate for no discount to be allowed.[52] At sentencing the Judge outlined in detail the effect of methamphetamineaddiction on Mr Wong and acknowledged its causative link to his offending. He saidthat prior to becoming addicted, Mr Wong generally had "a happy and positive23 Sentencing Act 2002, s 9(2)(b).24 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45].childhood and formative years". While discounts for personal factors can be broadlyapplied, we do not consider that a 10 per cent discount was insufficient or out of theappropriate range, or that Judge Krebs failed to properly consider Mr Wong'sbackground.[53] In summary, we conclude that Mr Wong's end sentence of 10 years eightmonths' imprisonment was within range and not manifestly excessive.Result[54] The appeal against conviction is dismissed.[55] The appeal against sentence is dismissed.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent