Wong v R [2014] NZCA 155 (17 April 2014)

Last Updated: 17 April 2014

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.
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REASONS

[1] 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.
[2] 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.
[3] 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]
[4] Bail is opposed by the Crown.
[5] I personally have considered the application pursuant to s 393(2)(d) of the Crimes Act 1961.^[5]

Relevant principles

[6] 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.
[7] 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

[8] 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

[9] Mr Wong’s appeal is lodged on two grounds, namely that the trial Judge erred in failing to give proper directions as to the law pertaining to inferences and that the verdicts reached by the jury were inconsistent.
[10] There is no dispute that the evidence at trial established that when Mr Wong was arrested and searched he was found in possession of two zip lock “point” bags, one containing two grams of methamphetamine and the other containing 0.6 grams. Electronic scales, a small pocket knife and approximately $6,530 in cash were also found. The appellant’s defence at the trial was that the methamphetamine was for his personal use and that he had inherited the money from his mother’s estate.
[11] While Ms Gray was critical of the Judge’s direction on inferences, it does not appear to be a strong argument on appeal that the trial Judge was required to give a further direction on inferences or that there was no evidence on which the jury could have inferred that Mr Wong possessed the methamphetamine for supply when it rejected his defence of personal use.
[12] Similarly, the submission for Mr Wong that the jury’s verdicts were inconsistent does not indicate a strong ground of appeal in the face of the items located when he was arrested and the jury’s rejection of his defence. It would be speculative to comment further on the basis for the jury’s verdicts and to go behind them for the purpose of assessing the apparent strength of Mr Wong’s appeal.

Length of sentence imposed and likely length of time before appeal will be heard

[13] Although at the time of the telephone conference no hearing date had been allocated for Mr Wong’s appeal, dates were available in this Court in the week of 28 April and throughout May 2014. Ms Gray accepted that if the appeal was able to be heard in that period Mr Wong’s concerns regarding delay were likely to be met. For the Crown, Ms Ball indicated that there would be cooperation in completing the case on appeal and in ensuring Crown availability for an early hearing date. Since the telephone conference 28 May 2014 has been allocated for the hearing of the appeal.

Personal circumstances

[14] Ms Gray submits that the relevant personal circumstances are Mr Wong’s inability to look for employment while he remains on home detention, which will be until approximately 20 August 2014. This concern will, however, be met if an early hearing date is able to be arranged.
[15] When all of these considerations are taken into account, I am not satisfied that it is in the interest of justice to grant Mr Wong bail pending the appeal. No exceptional circumstances have been made out.^[8]

Solicitors:
Public Defence Service, Wellington for Appellant
Crown Law Office, Wellington for Respondent

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^[1] R v Wong DC Auckland CRI-2012-090-1401, 21 January 2014.

^[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].

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

^[6] Bail Act 2000, s 13(3)(a)–(d).

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

^[8] Compare Iti v R [2012] NZCA 307 at [7].