R V TRAN And Anor [2003] NZCA 86 (12 June 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA394/02

CA402/02

THE QUEEN

v

MANH CUON TRAN

SHEN HAN LAI

Hearing: 28 May 2003

Coram: Gault P

Fisher J

O'Regan J

Appearances: D Ruth for Tran

C Harder for Lai

K Raftery for Crown

Judgment: 12 June 2003

JUDGMENT OF THE COURT DELIVERED BY O’REGAN J

[1]	Mr Lai, Mr Tran, and a third party, Mr Nguyen, were charged with a number of offences which arose from a fight between two groups of Asian students in the early hours of the morning of 30 July 2001.Two members of a rival group, Mr Wang and Mr Tan, were injured in the fight.
[2]	Messrs Lai, Tran and Nguyen were charged with assaulting Mr Wang with a weapon and with wounding him with intent to cause grievous bodily harm.All three were acquitted.They were also charged with assaulting Mr Tan with a weapon (a bat or stick).Mr Lai was convicted of this offence but Mr Tran and Mr Nguyen were acquitted.Mr Lai was also convicted of possession of an offensive weapon (a bat or stick), in circumstances, prima facie, showing an intention to use it to commit an offence involving bodily injury or the threat of fear or violence.Mr Tran was convicted of a similar offence, except that the weapon in his case was a Samurai sword.Mr Nguyen was acquitted of a similar offence.In his case the weapon was alleged to have been a knife.
[3]	Mr Lai was sentenced to two years and six months imprisonment for assault with a weapon and to nine months imprisonment for possession of an offensive weapon.The sentences were concurrent.Mr Tran was sentenced to 15 months imprisonment for possession of an offensive weapon.
[4]	Mr Lai appeals against conviction on the two counts referred to above, and also appeals against sentence.Mr Tran appeals against sentence only.

Background

[5]

The incident arose from a dispute about money said to be owed by Mr Lai, or one of his associates, to an associate of the complainants.The complainants and others visited Mr Lai’s address during the evening of 29 July 2001 to seek the return of this money.It was agreed there would be a later meeting, and this eventually took place at 12.30 am on 30 July 2001 at a carpark in the Canterbury University campus.The complainants approached the carpark and spoke to Mr Lai about the money.Mr Lai is then said to have called on his associates who were hiding nearby to charge and a large group began fighting with the complainants and a small number of their associates.In the fracas which ensued, Mr Wang was stabbed and hit with a stick or bat, and Tan was also alleged to have been hit with a stick or bat.Mr Wang suffered serious injuries which required emergency surgery and Mr Tan also suffered significant injuries.

Appeal against conviction:Mr Lai

[6]	Mr Lai’s appeal against conviction is based on two grounds.The first is that the verdict was contrary to the evidence presented at the trial.The second is that the admission of a baseball bat as an exhibit was anomalous.
[7]	We can conveniently deal with the second ground of appeal at the outset.Counsel for Mr Lai argued that the baseball bat did not have any significant probative value but was prejudicial to the defence.He said there was no evidence that the baseball bat was in Mr Lai’s possession, and it was not fingerprinted or tested for the presence of blood.Accordingly, he said it was not linked to the offending that occurred.
[8]	Counsel for the Crown pointed out that the baseball bat was found at the scene of the offending by the police.He said there was evidence as to the use of a baseball bat or bats in the events which occurred in the carpark and the bat was clearly admissible as an exhibit at the trial.We accept that submission.There was no claim that the baseball bat that was the exhibit was a weapon used by Mr Lai, and therefore no prejudice to him.This ground of appeal therefore fails.
[9]	The more substantial ground of appeal is that the convictions cannot be sustained on the evidence placed before the jury.Mr Harder said the evidence that Mr Lai assaulted Mr Tan came from two witnesses whose evidence was contradictory.
[10]	Mr Nguyen said that he saw Mr Lai run up to Mr Tan and slash down on him with the baseball bat.He said he saw the bat hit Mr Tan’s arm, and Mr Tan pull away in pain.In cross-examination he said that the blow to Mr Tan hit Mr Tan’s right arm, and indicated the back of the right hand and wrist area.However, as he did so, he demonstrated with his left arm.When this was pointed out, he observed he was left handed himself.When asked to confirm he meant the right arm he replied “I am not definitely sure if it was the right arm, but um, I am sure it hit that area” (the back of the hand or wrist).
[11]	The medical evidence was that Mr Tan suffered significant bruising to his left arm in the region of the elbow, but there was no photographic evidence of this.However, the jury saw a photograph of Mr Tan showing a bandage on his right arm, which counsel said may have led to some misapprehension on the part of the jury that this was the injury caused by Mr Lai.
[12]	Another witness, Mr Lim, gave a different account.He said he saw Mr Tan being beaten up, and that Mr Lai was standing there.He said he saw Mr Lai make contact with Mr Tan, but that Mr Lai did not have a stick at that stage.He said Mr Lai kicked Mr Tan.In cross-examination it was put to him that he was not close enough to observe the kick make contact with Mr Tan, to which he answered “Yeah, but the body moved”.
[13]	In Mr Tan’s own evidence, he said that Mr Lai hit him but did not say that this involved the use of a bat or stick.Later he said he had been hit with a stick/baseball bat, but did not specify that this was done by Mr Lai.He also said he had received an injury to his left arm by being hit with a stick which led to a broken bone, but did not say this had been done by Mr Lai.
[14]	The medical evidence of Dr Palairet was there was a lot of bruising around Mr Tan’s left elbow and this was consistent with a fracture, but in fact there had not been a fracture.
[15]	Mr Harder said the evidence of Mr Nguyen, referring to the right arm, must have involved a mistake on his part. When this was combined with the confusion about the broken arm and the photographic evidence showing only the right and not the left arm, he said the jury was put under a misapprehension as to the actual events.
[16]	Mr Raftery for the Crown said that this was a credibility issue for the jury.The jury clearly preferred the evidence of Mr Nguyen to that of Mr Lim.While Mr Nguyen appears to have been mistaken about which arm was hit, he indicated that he was not sure which arm it was but the medical evidence and Mr Tan’s evidence indicated Mr Tan suffered a blow to the lower part of his left arm.The Judge fairly summarised the evidence and placed the issue squarely before the jury, which was entitled to come to the verdict which it did.
[17]	We accept the Crown’s submission.The verdict was available to the jury on the evidence presented to it.The assault took place in the context of an affray involving a number of participants on each side.In those circumstances, it would be surprising if witnesses could recount exactly what happened in a uniform manner.The members of the jury had to consider the totality of the evidence, and determine whether they were satisfied beyond reasonable doubt that Mr Lai had assaulted Mr Tan with the bat/stick.They were made aware of the inconsistencies in the evidence.In our view, they were entitled to conclude that Mr Tan had been assaulted with the bat/stick and that Mr Lai was the person responsible.
[18]	The evidence of possession by Mr Lai of an offensive weapon (a bat or stick), came from a number of sources.These were:
a)	Mr Wang said that he saw Mr Lai with a baseball bat in his hand, and Mr Lai had used it to hit him in the neck.Mr Lai was charged with assaulting Mr Wang, but was acquitted on that charge;
b)	Mr Rem also said he saw Mr Lai carrying in his hand something which looked similar to a baseball bat.He described this bat by reference to exhibit 1.He said the bat held by Mr Lai was smaller than exhibit 1 and its colour was red/brown.He gave evidence of an assault on Mr Wang;
c)	Mr Tan said he saw Mr Lai carrying a baseball bat.He described it as scarlet or dark red, but otherwise as similar to exhibit 1.He also gave evidence of Mr Lai hitting Mr Wang;
d)	Mr Lim said that Mr Lai had a stick in his hand which he described as a couple of feet long and thinner than exhibit 1. He said he saw Mr Lai use this stick to hit Mr Wang;
e)	Mr Nguyen said he saw Mr Lai in the front row of the group which approached those waiting in the carpark, and that he did not notice whether Mr Lai was carrying anything at that time, but later in the fight he saw him with a baseball bat, which he said was the same sort of shape as exhibit 1.He said he could not tell if it was metal or wooden.
[19]	Mr Harder said that the jury’s decision to acquit Mr Lai on the charge of assaulting Mr Wang indicated that it had rejected the evidence of Mr Wang, Mr Rem, Mr Lim and Mr Tan insofar as it related to the alleged assault on Mr Wang.He said this meant that their evidence in relation to the possession charge must also be rejected.We reject that submission.The reasons for the acquittal in relation to the alleged assault on Mr Wang are unknown.It is clear the jury did not believe the evidence established beyond reasonable doubt that Mr Lai had assaulted Mr Wang. But that does not alter the fact that the jury heard evidence from five witnesses who saw Mr Lai in possession of a stick or bat, which provided an adequate foundation for a conviction on the possession charge.Mr Harder argued that Mr Lim’s evidence was suspect because he estimated that 40-50 people were present at the scene, which was clearly incorrect, but that does not require the jury to reject all of Mr Lim’s evidence, particularly when other witnesses gave evidence which supported what he said on the possession charge.
[20]	Mr Harder said that Mr Nguyen’s inability to provide detail about the stick/bat held by Mr Lai raised serious doubts about the accuracy of his identification of Mr Lai, particularly as Mr Nguyen said in evidence there were quite a few baseball bats among the people at the scene.Again, that submission does not alter the fact the jury had available to it the evidence of a number of witnesses who saw Mr Lai in possession of a baseball bat or an object that looked like a baseball bat.This provided a sufficient basis for a conviction on this charge.
[21]	Mr Harder made an alternative submission that the Crown witnesses incorrectly identified Mr Lai.He said this may have been mistaken but there was significant evidence to show a strong possibility that the incorrect identification was malicious or negligent.In support of that submission he highlighted the following:
a)	Mr Lim admitted that the group of which he, Mr Wang and Mr Rem formed part, had a plan to demand repayment of the $3,000 from Mr Lai, and intended to beat him up if repayment was not forthcoming;
b)	Mr Rem was said to be a former flatmate of a Vincent Hsei, who had been deported for being part of a protection racket;
c)	Mr Nguyen had altered his testimony between days 4 and 5 of the trial, and acknowledged in cross-examination he had given untrue evidence on day 4.
[22]	Mr Harder said that this meant the evidence of those three witnesses was inherently unreliable and should be rejected as completely lacking in credibility. Issues of credibility are matters for the jury to determine.The jury decided to accept the evidence of the witnesses who said they say Mr Lai in possession of a bat or a stick which looked like a bat.That evidence was sufficient to found a conviction on the possession charge, and there is no basis for this Court to over-ride the jury’s credibility assessment.
[23]	We therefore dismiss Mr Lai’s appeal against conviction.

Appeals against sentence

[24]	Both Mr Lai and Mr Tran appeal against sentence.
[25]	In his sentencing notes, the Judge recounted the facts and noted that Mr Lai, Mr Tran and Mr Nguyen had been accused of attacking Mr Wang with a bat, Samurai sword and dagger respectively, and that Mr Wang had been seriously wounded.He drew the inference from the jury verdicts that the jury was not satisfied beyond reasonable doubt as to the identity of Mr Wang’s attackers.He then said:

I have put that incident to that extent, having regard to his injuries, to one side for sentencing purposes, but then I am entitled to take it into account as being part of the overall background in relation to the offences in respect of which you have been found guilty.

[26]	He noted the injuries suffered by Mr Tan but accepted the submission made on behalf of Mr Lai that it was not possible to attribute any of these specific injuries to Mr Lai.
[27]	The Judge described Mr Lai as being “evasive” with the probation officer.He referred to a “repentance letter” written by Mr Lai, but said it was nothing of the kind.He mentioned the other references for Mr Lai which indicated he was of good character, but said none of these reflected on the offences of which Mr Lai had been found guilty.
[28]	The Judge characterised Mr Lai as the leader of the armed ambush.He said that Lai had been the leading negotiator on behalf of his group earlier in the day, and was the leader of the group which ambushed the opposing (small) group in the university carpark.
[29]	The Judge noted Mr Lai’s previous good character and that he had no previous convictions.He accepted these were mitigating factors.Against this he weighed the aggravating features that the attack involved a premeditated ambush, that there was considerable weight of numbers on the side of Mr Lai, that the victims were unarmed, and that the assault had serious consequences for the victim.He decided that the mitigating and aggravating features balanced each other out.He assessed the starting point for the assault charge, having regard to the seriousness of the offending, as two years six months imprisonment, and because of the equal balance between mitigating and aggravating features, that sentence was imposed.
[30]	In relation to Mr Tran, the Judge attached great significance to his two previous convictions involving violence.The first related to an incident on 16 June 1999 when Mr Tran assaulted a person with a weapon and was sentenced to four months imprisonment.The second incident occurred on 8 July 2001, about three weeks prior to the present offending.The Judge had been the sentencing Judge for the 8 July offending and had sentenced Mr Tran to two years and three months imprisonment.He rejected the contention that Mr Tran had gone along to the 30 July 2001 incident to add moral support, noting that Mr Tran was armed with a weapon and intended to use it.He noted a lack of any victim empathy or remorse.
[31]	The Judge referred to the aggravating features of Mr Tran’s previous convictions, that there was a premeditated ambush against unarmed young men, that Mr Tran was armed with a very dangerous weapon and would have been prepared to use it, and the weight of numbers on his side.He said the mitigating factors were few and assessed a starting point between nine and 12 months imprisonment for possession of the Samurai sword.Because the aggravating features substantially outweighed the mitigating, he sentenced Mr Tran to 15 months imprisonment, cumulative upon the sentence Mr Tran was already serving.

Appeal against sentence:Mr Lai

[32]	On behalf of Mr Lai, Mr Harder submitted that the Judge placed too much emphasis on the assault on Mr Wang, in respect of which Mr Lai was acquitted, wrongly characterised Mr Lai as the ringleader, over-emphasised aggravating features and under-emphasised mitigating features.
[33]	Mr Lai was acquitted on all charges of assaulting Mr Wang.The Judge’s remark that he could still take the incident into account “as part of the overall background” is confusing and might have been better left unsaid.But the Judge was clear that he put the incident to one side for sentencing purposes.We see no reason to doubt that he did so.
[34]	As he had presided at the trial, the Judge had heard all the evidence, and was entitled to come to the view that Mr Lai was the ringleader of the attacking group.He heard evidence from a number of witnesses that Mr Lai was the person who called on the attackers to charge, and while both Mr Nguyen and Mr Wang accepted they did not actually see Mr Lai doing so, they were not the only witnesses.It was also clear from the evidence that Mr Lai was, as the Judge said, a lead negotiator earlier in the day.
[35]	The Judge did not overstate the aggravating features, but correctly outlined them and was entitled to treat them as significant aggravating factors.Mr Harder said the Judge was wrong to say Mr Lai was evasive with the probation officer.The Judge was not specific as to the source of that comment, but Mr Raftery suggested it was based on the statement in the pre-sentence report that Mr Lai still claimed innocence of the offending, and considered himself to be a victim of events that spiralled out of control.Mr Lai told the probation officer he had been just trying to assist the victim.The probation officer observed that these explanations seemed to have been designed to give the impression that Mr Lai’s role was minor.In view of the evidence against Mr Lai and the convictions entered against him, we do not believe it was unfair to describe that comment as evasive.
[36]	The Judge also criticised the “repentance letter”, signed by Mr Lai, saying it did not indicate any real acceptance of responsibility for the violence, or any direct reference to any victim empathy.Mr Harder said this was a harsh assessment.He noted that Mr Lai had said in the letter he apologised to the public and to his friends who were involved, as well as his parents and teachers.He said he felt very sad and sorry for the serious injuries of the two victims which he described as out of everyone’s expectation.However, the letter also included a statement by Mr Lai that he did not personally cause any of the serious injuries, but that he had responsibility for them.We accept that the Judge’s assessment of the repentance letter was harsh.However, he was entitled to consider it in the light of the continuing denial of offending by Mr Lai.We do not believe that this was a significant factor in the setting of the sentence.
[37]	The Judge was entitled to conclude that the very serious aggravating features of this offending were equally balanced with the significant mitigating factors, to which reference has already been made.We are not persuaded that the sentence of 2½ years imprisonment was excessive, having regard to the totality of the offending on the part of Mr Lai.Accordingly, we dismiss Mr Lai’s appeal against sentence.

Appeal against sentence:Mr Tran

[38]	Counsel for Mr Tran, Mr Ruth, submitted that the sentence of 15 months imprisonment was excessive.He did not take issue with the starting point of 9-12 months, but said that the Judge had given too much weight to the aggravating features, particularly the conviction for the 8 July 2001 offending.He also said there was an unjustified disparity between the sentence imposed on Mr Lai for the possession charge (nine months), and the 15 month term imposed on Mr Tran for a similar offence.
[39]	There is nothing in the disparity point.The nine month sentence imposed on Mr Lai was concurrent with the sentence of 2 years 6 months imprisonment for the assault charge.That sentence reflected the totality of Mr Lai’s offending, and the Judge rightly imposed a significantly greater sentence on Mr Lai than on Mr Tran because of Mr Lai’s conviction on the assault charge.In any event, the weapon in Mr Lai’s case was a bat, whereas the weapon Mr Tran had was a Samurai sword.So the offending was not identical.
[40]	We accept Mr Ruth’s submission that the Judge needed to ensure that the total term of imprisonment for the 8 July 2001 offending and the present case was not excessive.We did not have available to us the sentencing notes of the Judge for the 8 July 2001 offending and counsel indicated it was unlikely they were typed up, given that no appeal had been lodged.But the sentencing Judge in this case was also the sentencing Judge for the 8 July 2001 offending, and would have been well aware of what it involved.
[41]	Crown counsel provided us with the summary of facts for the 8 July 2001 offending and from this it is apparent that the offending (injuring with intent), was very serious.It involved stand-over tactics by Mr Tran in a confrontation with an apparently innocent bystander in a bar who had looked at Mr Tran in a way he took exception to.The incident involved Mr Tran demanding an apology which was not forthcoming.Mr Tran then sent an associate to his car to obtain a knife which Mr Tran held to the victim’s throat.He then punched the victim in the face with a closed fist, and the victim was set upon by Mr Tran and his associates.Mr Tran stabbed the victim in the arm, and tried to stab him in the face and body.Mr Tran and his associates then fled the scene.The victim suffered two cuts to his forearm requiring several stitches, and had small cuts to his face, body and arm which necessitated hospital treatment.
[42]	Mr Ruth submitted that the cumulative sentence of 2 years 3 months for the 8 July offending and 1 year 3 months for the present offending (a total of 3 years 6 months), was excessive for the totality of Mr Tran’s offending.We reject that submission.The 8 July offending was serious, involving Mr Tran as leader of a group attacking an individual victim.There were some parallels with the present case where Mr Tran was part of an armed group which attacked a smaller group of unarmed men.The two offences were only three weeks apart.Unlike Mr Lai, Mr Tran had a previous conviction for assault dating from June 1999.This was a road rage attack where Mr Tran attacked with a car jack, a driver who had made a rude sign to him, and was sentenced to a term of four months imprisonment.
[43]	We conclude that the sentence in this case was not excessive, even when added to the earlier sentence for the 8 July offending.The Judge was entitled to find the aggravating features in relation to Mr Tran (relating to the present offence, which were the same as those relating to Mr Lai), and Mr Tran’s previous convictions, justified moving from a starting point of 9-12 months to a final sentence of 15 months imprisonment.We do not accept that the cumulative sentence of 3 years 6 months was excessive for the total offending involved in the 8 July and the present incident.Accordingly, we dismiss Mr Tran’s sentence appeal.

Decision

[44]	Mr Lai’s appeal against conviction and sentence are dismissed.Mr Tran’s appeal against sentence is dismissed.

Solicitors:

Crown Solicitor, Auckland