Li v R [2023] NZCA 239 (15 June 2023)

Last Updated: 19 June 2023

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA10/2021 [2023] NZCA 239

	BETWEEN	MANCHAO LI Appellant
	AND	THE KING Respondent

Hearing:	23 March 2023
Court:	Clifford, Dunningham and Cull JJ
Counsel:	M Kan for Appellant E J Hoskin and M R L Davie for Respondent
Judgment:	15 June 2023 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

[1] Following a jury trial before Jagose J in the High Court the appellant, Manchao Li, was found guilty and convicted of the murder of his ex-wife Zhimin Yang, and of breaching a protection order made against him in her favour. Mr Li was subsequently sentenced to life imprisonment with a minimum non‑parole period of 19 years.^[1]

[2] Mr Li now appeals his conviction. Mr Li originally also appealed his sentence. At the hearing of this appeal, counsel on appeal for Mr Li, Mr Kan, advised the Court that Mr Li wished to withdraw his sentence appeal. We, through the interpreter, asked Mr Li to confirm that was indeed the case. We are satisfied both from our assessment of Mr Li’s response and from its translation by the interpreter that was indeed his intention. We therefore record that Mr Li withdrew his appeal against his sentence and proceeded with his conviction appeal only.

Background

[3] Based on the sentencing notes of Jagose J in the High Court, we summarise the circumstances in which Mr Li killed Ms Yang.

[4] At about 8.30 am on Monday 29 July 2019, Mr Li followed Ms Yang from her home to a bus stop on Westgate Drive in Massey, Auckland. At the time, Mr Li was prohibited by Court order from watching or loitering near Ms Yang’s home, from following her, from physically or psychologically abusing her, and from possessing any weapon. What then happened was witnessed by many people.

[5] Mr Li was carrying a hunting knife he had recently purchased in a black plastic bag. He approached Ms Yang as she waited for the bus. She screamed. He tackled her to the ground from behind. He then dragged her to an adjacent grassy lot. He stood over her as she struggled to sit up, holding her down by her hair or by her collar at the back of her head, and stabbed her multiple times. He then dropped her limp body to the ground, walked back to his car and drove away. He was pursued and stopped by a member of the public. He was later arrested by the police. Ms Yang died at the scene despite attempts by members of the public to save her.

[6] The Judge explained:

[15] Your attack on Ms Yang was seen by people near the bus stop:

(a) a worker on a nearby construction site, his and his workmates’ attention drawn by Ms Yang’s screams, saw you attacking her using your whole body with “a lot of power, a lot of force”. He thought you hit her twelve times in under a minute as she continued to scream “stop” and “help”, holding her arms out defensively in front of her. He said, once you stopped hitting her, “everything went silent, the body went limp and even the construction site [fell] silent”, and you “strutted” away, giving him the impression you had “done something ... like [you were] proud of yourself”;

(b) a man driving past the bus stop on his way to work initially thought he was seeing a bullying incident between older and younger school children. Stopping to intervene and hearing Ms Yang scream “no, don’t” or “stop”, he realised it was you, holding the smaller Ms Yang at the back of her head with one hand, as you hit her with the other and she was trying to scramble up and away. He described your “multiple strikes” meeting no resistance: “she had no guard up[;] she was just getting wasted”. You were dismissive of his challenge to you; and

(c) a young boy on his way to school walked past Ms Yang at the bus stop, and then past you on your way down the hill to her. Almost at the top of the hill, he heard screaming and looked back to see Ms Yang lying on the grass, and you “punching her in the stomach from the top”. He said he was “so scared” he just continued to walk away.

The witnesses described Ms Yang’s screams as being of “terror”, “fearful, scared, shrill, loud, scary”. They all thought you were punching Ms Yang, because you held the knife concealed within the black plastic bag. Its blade mostly initially penetrated her dark clothing, with the result little damage or injury immediately was apparent. The driver who stopped heard Ms Yang groan when you released your hold of her. He was an experienced lifeguard. On his initial glimpse, he thought Ms Yang only was concussed with a bloodied nose.

[16] In fact, forensic examination established over twenty cuts to the front and sleeves of Ms Yang’s jacket, and blood stains indicating her injuries had been sustained while she was lying on the ground. The pathologist identified 10 stab wounds centred on the front of Ms Yang’s body: directly through her neck into her spine; cutting through her ribs; crossing the body’s midline; into her lungs and stomach; right through her heart; damaging important veins and arteries, intermediate tissue, and other structures; and causing very substantial blood loss and prospective serious infection from lost gastric contents. A number of the wounds were potentially lethal on their own. Another two wounds to her left hand and armpit, of less seriousness, appeared to be defensive injuries. In combination, they gave the pathologist his cause of Ms Yang’s death: by stab wounds.

[7] There had, it transpired, been a long history of animosity and antagonism by Mr Li towards Ms Yang. Again, and as the Judge explained:

[7] Your disaffection with Ms Yang has some history. You and she married in China in the late 1990s. It was a second marriage for both of you. You both moved to New Zealand in the early 2000s and bought a home in Auckland. The two of you separated in 2005, then [sold] the home. You kept most of the money from its sale to buy a property in Christchurch, acquired in the name of your first wife.

[8] In August 2007, Ms Yang brought a claim against you under the Property (Relationships) Act 1976. You twice were convicted for breaching the court order to protect Ms Yang from you on successive days the very next month (and once again in 2014, when you were discovered in possession of firearms). The Family Court divided your remaining property between you, and invited Ms Yang to apply for the Christchurch property’s disposition to your first wife to be set aside.^[2] She made that application. The Judge was satisfied the property’s acquisition in your first wife’s name was to defeat Ms Yang’s claim to her share of the relationship property with you, and directed the property’s sale by the Registrar for distribution of its proceeds between you.^[3]

[9] In September 2016, after a five-day hearing, this court dismissed the appeals against the Family Court’s judgments.^[4] The judge concluded you were “dishonest in much of the evidence” you gave and, in your conduct at and after your separation from Ms Yang, you were “willing to be dishonestly manipulative so as to avoid having to account to [her] for her relationship property entitlement”. He noted your apology and your observation you had then been “stupid”.^[5] It is unclear if, in the judge saying “[you] must be careful not to make the same mistakes again”, the judge was recording your own caution, or instead was cautioning you. Either way, you have not been cautious.

[10] Instead, you continued to be dissatisfied Ms Yang had obtained her half-share of the relationship property. You became fixated with and obsessed by the wrong you perceived you had suffered at Ms Yang’s hands. Despite living in Christchurch, you continued to harass her in the vicinity of her home and work in Auckland. She obtained a second protection order, after you obtained the first’s discharge, mysteriously around the same time as you were found guilty of its breach. Despite the protection orders, Ms Yang had to change her home and work addresses, both to avoid you and to avoid you finding her again. Her work became backroom; her accommodation became secluded. You stalked her and her son, including by engaging a private investigator to find his home and work addresses, and by vandalising property and threatening tenants at his rental property she managed. With horrible foresight Ms Yang told police, if you knew where she lived, she believed you would kill her.

[11] You built up a collection of large hunting knives, a meat cleaver, and air rifles. In about 2017, you told your flatmates you could use them to attack Ms Yang, to whom you persistently referred as “that woman” or “the bitch”, and never by name. You talked about disfiguring or killing her in retribution. Your self-regard and grandiosity, particularly in relation to women, was noted by your flatmates. You developed a plan to cause Ms Yang difficulties at her work, and with immigration authorities. You put that plan into action, but your complaints against Ms Yang were dismissed.

[12] In early 2018, you told your mental health support worker, if you could not get redress in a legal way, you would chop off Ms Yang’s hands and feet “or just stab her”. She filed a report with the police, who assisted Ms Yang to restore the protection order and develop some safety plans. They warned you to stay away from Ms Yang, and went to some lengths to improve her security at home and work as they realised the increasing seriousness of your risk to her.

[8] Given the circumstances, attention inevitably turned to Mr Li’s psychiatric well-being. The Judge’s sentencing notes record:

[20] Mr Li, I turn to your personal circumstances, so far as they are discernible from the material before me.

[21] As I have said, you moved here from China, where your parents are deceased but you have two sisters. You have been a New Zealand resident since 2000. You have not integrated well here. Your English language skills are rudimentary. You spent some time employed as a bus driver and Chinese‑language tour guide. You are estranged from your own son, now an adult, also living in New Zealand with his own family.

[22] You remain in denial about Ms Yang’s death, saying you have no recollection of events after seeing Ms Yang at her home and to approach her at the bus stop. As was the case at trial, you denied the pre-sentence report writer access to your medical records, but claimed to be adversely affected by stopping your anxiety and depression medications and not sleeping. You talked “around” your offending, and failed to acknowledge Ms Yang’s death was solely a product of your actions.

[23] The pre-sentence report assesses you as being of low risk of re‑offending largely by reason of the likely lengthy term of imprisonment, but with a very high risk of harm to others, particularly in the context of intimate relationships, by reason of “the severe escalation in risk and harm” from your previous offending, and “the strategy and planning involved, the frenzied nature of the attack and the public setting”.

[24] A psychiatric report instructed by your counsel concludes your narcissistic personality and chronic depressed mood left you poorly equipped to deal with Ms Yang’s legal successes against you. Your response was to engage in “querulous paranoia” and “resentful stalking”, the latter the psychiatrist considered on its face to be “callous and purposefully intended to cause [Ms Yang] psychological distress”. But he says neither that behaviour nor your stopping taking your prescribed medications explains your killing of Ms Yang. Instead, in his opinion, your killing of her was “impulsive and the culmination of [your] frustration and [your] exhaustion of what [you] saw as legal channels of redress”.

Grounds of appeal

[9] Mr Li challenges his conviction on the basis of a wide-ranging attack on the competence of his counsel at trial, Messrs Mansfield KC, Wimsett and Graham. Mr Li articulated those complaints in an affidavit prepared in 2022 which was ultimately affirmed by Mr Li at his appeal. The following passages from that affidavit contain the essence of his complaint:

22. At trial, the Crown called a number of witnesses, who knew me from the past but did not see the offending first hand, to help them establish murderous intent. These witnesses told the jury about how I had previously talked at length about how much I hated the victim and wanted to kill her, as well as how I had previously harassed the victim and people connected to her.

23. My trial counsel accepted the said allegations in court, offering nearly no effective defence.

24. However, it had been my express instruction to my trial-counsel prior to this point that I disputed ever saying those things about how I hated the victim or wanted to kill her. I disputed I had ever harassed the victim or people connected to her. The instruction I gave to my trial counsel was that I had never expressed any wish to kill the victim, and that I was not the psychopath as those people described. I told them that my offending was an out-of-character accident which was the culmination of many factors combined, including the long-standing psychiatric sickness, the sudden onset of the severe side effect of the antidepressant as a result of the abrupt cease of the medication for 2 or 3 consecutive days before the offending, and the 48-hour deprivation of sleep.

25. I gave written instructions in this aspect to my trial counsel before the trial. While the witnesses were given evidence at trial, I also wrote notes, got them translated and handed to the trial counsel, pointing out directly which parts of their evidence were lies.

[10] In his affidavit Mr Li also denied that adequate disclosure had been made to him, or that adequate translation facilities had been provided to enable him to understand the evidence and to communicate with his counsel.

Defence counsels’ response

[11] Messrs Mansfield and Wimsett provided detailed affidavits in reply.

[12] Mr Mansfield summarised the position that defence counsel faced:

1.8 The Appellant always admitted that it was him that had fatally stabbed the deceased. He also admitted the direct circumstances of the killing. However, he wanted to advance a defence of insanity. He claimed he was not culpable for his actions because of his medication. Dr James Cavney, Forensic Psychiatrist was instructed and assisted counsel. Dr Cavney’s reports were shared with the Appellant. Dr Cavney was unable to support a defence of insanity for the Appellant, despite further communication addressing further points made by the Appellant himself. The Appellant did not accept that the defence of insanity could not be advanced.

1.9 Accordingly at trial, when the Appellant elected to proceed to trial contrary to the legal advice he had received, the only defence that could be advanced was that he lacked murderous intent. For obvious reasons, as he had been advised, this defence was unlikely to succeed.

[13] In his affidavit, Mr Mansfield outlined generally the approach taken by counsel before and at trial. He appended to his affidavit four annexures which reflect in considerable detail the process that was followed. Those annexures comprised:

(a) At Tab B, a 142 paragraph document entitled “Client instructions” (original brief);

(b) At Tab C, a 166 paragraph document also entitled “Client instructions” (revised brief);

(c) At Tab A, a 12 paragraph document entitled “Instructions for Trial” (initial trial instructions);

(d) At Tab D a 13 paragraph document also entitled “Instructions for Trial” (updated trial instructions).

[14] Mr Li’s trial began on 27 October 2020. In his affidavit Mr Mansfield explains:

(a) The original brief was reviewed, marked up and signed by Mr Li on 11 October 2020. The annexed copy of the original brief shows Mr Li’s handwritten comments. The brief was interpreted for him to review.

(b) On 27 October 2020 the initial trial instructions were finalised and signed off by Mr Li. The annexed copy of the initial trial instructions is dated 27 October 2020 and bears Mr Li’s signature. These were interpreted to him before being signed.

(c) Mr Li updated and finalised his brief on 28 October 2020. The annexed copy of the revised brief, with hand-marked corrections and comments, bears Mr Li’s signature and is dated, by hand, “28th/10/20”.

[15] After the Crown case had closed, but before a formal election was made to give evidence, Mr Li signed the updated instructions dated 5 November 2020.

[16] Those documents provide a comprehensive written record of careful legal advice and representation over time. Most significantly, in terms of Mr Li’s core complaints that his instructions had not been followed and that he had not been properly advised during the trial, at the point of his election the updated instructions state:

1. These instructions confirm my instructions and the advice that I have received to date from my Counsel during the course of Trial. However, I can confirm that I know that I can ask any further questions or seek to alter my instructions at any time.
2. I confirm that my Counsel advised me prior to the commencement of the Trial, and during the Trial, that I must tell him everything I consider relevant and or identity [sic] any witnesses and or other evidence that I consider will be part of my evidence, if I was to give evidence, or that might support what I say. I know that if any proposed evidence or witnesses are not referred to in these instructions then my Counsel is not aware of it or them and I must raise it with him immediately. I also know why I need to outline what I say and or consider to be important. That is because my Counsel has a duty to put to any relevant prosecution witness what I claim, so that they have an opportunity to respond. Further, if this does not happen then my evidence may be criticised or considered to be of lesser value or to hold less weight.
3. I have done so prior to Trial and during trial, as I have changed my instructions at various times. I have been given a further opportunity to raise any matter now and there have been some matters we have further discussed. We have had an entire non-sitting day to do so and I have had access to both Counsel and an interpreter.
4. I confirm that my Counsel has cross-examined all witnesses in accordance with the instructions, or amended instructions, I have provided to date and I have expressed that I am very pleased with the way the Trial has progressed to date.
5. My Counsel have done everything that I have instructed them to do and I am very pleased with how they have conducted my Trial. Where they have not done so, they have explained why, and I have accepted their advice. I know that ultimately they follow my instruction.

...

[17] Mr Wimsett’s affidavit, and the annexures thereto, supplement Mr Mansfield’s narrative. In particular, they respond to Mr Li’s assertions that he always denied making various statements attributed to him by the Crown witnesses and that his counsel did not follow his instructions to that effect. In his affidavit Mr Wimsett summarised that aspect of matters as follows:

7. On the first day of trial, during the lunch adjournment and after the Crown opening address, I met with Mr Li in the cells with Mr Graham and an interpreter. Mr Li was extremely difficult to deal with. We wanted to obtain his specific instructions in relation to the evidence of his former flatmates and mental health nurse who were to give evidence about statements made by him relating to committing violence against his ex-wife. Mr Li was unhappy that the quotes from the flatmates and the nurse were in his brief of evidence. It was explained that they were in there so that we could get his response to them. Mr Li did not give straightforward answers to questions. He often responded by raising something entirely different such as complaints about the government, prison, or the police. We did our best to try and keep him focused on the instructions we needed from him.
8. Attached as Exhibit B is my "Trial Document". This document was updated by me during the trial. Regarding the meeting at lunch on the first day, it notes:

1.40pm — meet with client in cells. Specifically re flatmates evidence and evidence of Maggie. ML rambling about all sorts of things to do with prison including a South Island prison. I spoke plainly with him and asked him for responses to the flatmates’ evidence. He wasn’t cooperative although we got some answers. He accepts the things that Maggie says he said but he says he was only joking. Doesn't accept flatmates. But not at all easy to get instructions from him. Near impossible.

9. In relation to the meeting after Court, I attach as Exhibit C an email file note. It notes:

After Crown opening went back down to cells to talk to ML re BOE and instructions — particularly re flatmates.

ML initially refused to give instructions because quotes from flatmates in draft BOE were not accurate. They are actually direct quotes. He then went on rant about various things.

I directed him to answer specific questions re things flatmates have said. “Did this happen or not?”. “Did you say this or not?”.

He is extremely difficult.

10. Evidence began on the second day of trial. Due to the difficulties the day before, I asked to speak with Mr Li before the evidence of Garrick Protheroe had concluded so that I could obtain final instructions regarding the alleged comments made about the victim. My memory is that Jagose J was sympathetic to our situation in relation to dealing with Mr Li and I was allowed time to talk to him before concluding my questioning.
11. My trial document records the following - from that conversation and one at the lunch adjournment soon after:

12.45pm — conversation with ML at the end of the cross-exam. Does he accept that he said these things to witness re injuring his wife. “Yes. Some of them were his idea”. He also had some other ideas of what to do to her”. Like stabbing her with chop sticks in the ear or throat.”. during conversation – slight change in instructions from yesterday. Consistent with instructions re Maggie Tang – said these things but not meant to be taken seriously.

12.45. Theresa Bushill called.

1pm — meeting with ML in the cells. AG and interpreter George present. He admits saying the things to the flatmates but instructs that they weren't to be taken seriously. It was joking. Protheroe joked back with him. “The stuff I said to Maggie was more serious”. Not that he wanted to kill her but that he wanted someone to take action re his legal case. Re Dusan Dmitrovic – ML says that he has no recollection of meeting him or who he is. No instructions. I advise ML that he probably did say stuff to him because he is a professional and emailed the police about it. ML says he doesn’t remember. I will have to ask Judge for short adjournment when Dusan enters the witness box.

The appeal

[18] Mr Li gave formal evidence confirming his previously unsworn affirmation and was cross-examined by Ms Hoskin, counsel for the Crown. Responsibly, Ms Hoskin considered it her duty to put a range of material to Mr Li, given his challenges to the way he had been represented. In light of the written record prepared, which contradicted all of those complaints, that process was not straightforward. It was made even more difficult by Mr Li’s apparent inability or unwillingness to answer questions briefly, but rather to — in effect — endeavour to engage Crown counsel in argument.

[19] We are satisfied Mr Li did confirm clearly his overall position in the following exchange with the Court:

17. I just wonder, can I try– it may be a short cut, it may not, I don’t know. Mr Li, in your affidavit you explain why you are unhappy with your lawyers?

A. Yes.

17. Since you prepared that affidavit you have seen the affidavits and other material your lawyers at the trial, Mr Mansfield and Mr Wimsett, have provided to this Court. You have seen what they’ve said?

A. Yes.

17. They said things that you do not agree with? They have provided documents with your signature on them and those documents could be fake? Or your signature might have been forged? Or you might have signed the document, but you did not understand it or you thought you just had to?
1. Yeah, we fall into the, um, a document, that’s the case. Just now I told you before I signed nobody explain to me.
17. So sometimes some of these documents are fake, some of them you signed but you didn’t understand and so you say those documents don’t truly record what happened?

A. Correct.

Q. So what happened is as you describe it in your affidavit?

A. Correct.

[20] In oral submissions when advancing the appeal for Mr Li, Mr Kan was able to do little more than confirm those were his instructions and that was the basis upon which Mr Li challenged his conviction.

Analysis

[21] We are satisfied that Mr Li’s appeal is without merit. The very careful record kept by his counsel evidences that Mr Li’s explanation of the basis for his view to the contrary, that in effect that record is a falsity, a fabrication, is simply not credible.

[22] Nor do we accept Mr Li’s evidence that the interpretation services provided to him before and during his trial as recorded in that record were not, in fact, provided.

[23] In an effort to persuade us otherwise Mr Li had a bundle of invoices, recording charges by the interpreter for work on Mr Li’s case, put before the Court. It was Mr Li’s contention that one of those invoices, in particular, showed that the interpretive services said to have been provided during the trial in the period before Mr Li made his decision to give evidence had not occurred. Unfortunately, for Mr Li, the invoice record showed quite the opposite. In his affidavit, Mr Wimsett stated:

17. On 4 November 2020, the Court did not sit and we met Mr Li to take instructions regarding his decision to give or call evidence. The meeting took place in the Courtroom. Mr Li gave written instructions following a lengthy discussion. The written instructions will be on Mr Mansfield’s file.
18. Mr Li gave evidence on 5 and 6 November 2020. My trial document records:

5 November 2020 — 10am — call client to give evidence. Evidence given as per previous instructions. Under cross-examination, Li changes position on evidence re Garrick Protheroe. Now denies those statements. Last week, yesterday and this morning he explicitly accepted the evidence.

[24] As relevant, the two entries — referring to attendances on 4 and 5 November, confirmed that account. They read:

04/11/2020 Wedneaday [sic]

Time: 9:00am - 3:30 pm

Venue: Auckland High Court

To provide the interpreting service for the Counsels Mr Ron Mansfield, Mr Sam Wimsett and Mr Angus Graham to take instructions in relation to Mr Manchao Li’s decision to give evidence and the legal advice the counsels give to Mr Li about it.

First Hour of Interpreting incluidng [sic] Call Out Cost (Minimum Charge: 1 Hour)

Subsequent Hours of Interpreting (Minimum Intervals: 30 MINUTES)

05/11/2020 Thursday

Time: 9:00 am

Venue: Auckland High Court:

To provide the interpreting service to the Counsels Mr Ron Mansfield and Mr Sa[m] Wimsett to take instructions from Mr Li's about his decision to elect to give evidence and the legal advice given to Mr Li about it.

First Hour of Interpreting incluidng [sic] Call Out Cost (Minimum Charge: 1 Hour)

[25] That is, they show six and a half hours of interpretation services on 4 November 2020 and a further hour the next day, before Mr Li took the stand.

[26] That is but one of many examples where the documentary record is a complete answer to Mr Li’s complaints.

[27] Messrs Mansfield and Wimsett were called to give evidence and confirmed their affidavit evidence in cross-examination.

[28] We are satisfied that none of Mr Li’s complaints about his trial counsel which were put to this Court give rise to a real risk of a miscarriage of a justice. On this basis, the appeal is dismissed.

Result

[29] The appeal is dismissed.





Solicitors:
Michael Kan Law, Auckland for Appellant
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent

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^[1] R v Li [2020] NZHC 3419.

^[2] ZY v ML [2013] NZFC 625.

^[3] ZY v ML [2014] NZFC 4221.

^[4] Lu v Huang [2016] NZHC 2311. The judgments were anonymised to avoid identifying Ms Yang as a vulnerable person, as subject of a protection order: Property (Relationships) Act 1976, s 35A and Family Courts Act 1980, ss 11B–11D.

^[5] At [119] and n 21.