IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-004-0000843 [2013] NZHC 2092

THE QUEEN

v

CHENG QI WANG

Charge:

Plea:	Manslaughter

Not Guilty	

Appearances:	
K Glubb and G Kayes for Crown
T Sutcliffe for Prisoner	

Sentenced:	
16 August 2013	

SENTENCING NOTES OF VENNING J

Solicitors:	Crown Solicitor, Auckland
Copy to:	T Sutcliffe, Hamilton

R v WANG [2013] NZHC 2092 [16 August 2013]

[1]       Cheng Qi Wang, you are for sentence this morning, having been found guilty by a jury of the manslaughter of Yishan Zhong.   The maximum penalty for manslaughter is life imprisonment. The first step for the Court is to settle the factual basis upon which the Court is to sentence you.  The Crown and your counsel, Mr Sutcliffe, take widely different views of the circumstances leading to Mr Zhong’s death.

[2]       On the Crown case Mr Zhong was unarmed and apparently retreating at the time you inflicted the fatal wound to his back.  On your explanation to the police the fatal  wound  was  inflicted when  Mr  Zhong  was  being used  as  a  shield  by  his associate Mr Wu.  I consider the truth lies somewhere between those two versions.

[3]       On 14 January 2011 at about 11.00 am Mr Wu and the victim, Mr Zhong, came to 23 Stilwell Road, Mt Albert, the address you were living at.  Mr Wu and Mr Zhong had been involved in business dealings with you.  They had fallen out with you to the extent they had made a complaint about your activity to the Serious Fraud Office.  The property at Stilwell Road was owned by a trust controlled by your wife from whom you had separated. She had returned to China.

[4]       Your wife appointed Mr Wu and a private investigator, Mr Jones, as her attorneys in New Zealand. There had been an earlier confrontation between you and Mr Wu and Mr Zhong when, together with Mr Jones they had come to Stilwell Road to serve a trespass notice on you in December.

[5]       Over the Christmas period, Mr Wu came under increasing pressure from your wife to remove you from the property.  Mr Wu discussed returning to the property to do so with Mr Zhong and also the private investigator.   Mr Jones cautioned him against doing so.  He considered matters should be left to the legal process.  He also told Mr Wu that if he went there and there was a confrontation he should leave the property and seek the assistance of the police.  Significantly there was a discussion between Mr Jones and Mr Wu about Mr Wu arming himself and Mr Jones told Mr Wu that he should not take any weapon to the property.

[6]       Mr Wu and the victim Mr Zhong met the night before and planned to come to your home.  It is not entirely clear what they hoped to achieve that day but it is clear they intended to confront you.  Although they had legal documents and papers with them, they left them in the car.   They arrived at your home unannounced, in the upstairs lounge area. A female associate of yours, Ms Ahn, was in the lounge.  They told her they wanted to see you.  She went to the bedroom where you were, still in your pyjamas, and told you there were two men to see you.  Mr Wu and Mr Zhong in the meantime continued to advance towards the bedroom.  Mr Wu beckoned towards you with his finger.  When you saw them you told Ms Ahn to go outside onto the balcony.   Before coming upstairs Mr Wu had armed himself with a kitchen knife from the downstairs kitchen. When you realised Mr Wu was armed with a knife you picked up your own knife, a hunting knife, which was in a bedside cabinet.  There then followed a mêlée involving the three of you.   Ms Ahn looked through the window and described seeing all three of you on the floor moving about.  I note that during the fight you called out to her to call the police.  In the course of the fight Mr Wu was fatally injured.  At one stage Mr Zhong was attempting to throttle you.  You bit his arm.  Mr Zhong then suffered the fatal wound to his back.  He left the fight, went downstairs and ultimately died in the garden.  Immediately after the fight was over you called 111 and sought ambulance assistance for Mr Wu who at that time was fatally injured and dying.

[7]       I do not accept the Crown theory or suggestion that the fatal wound was inflicted on Mr Zhong when he had his back to you and was trying to leave.   I consider the most likely explanation for his fatal wound is that it was inflicted during the course of the violent struggle involving all three of you in the relatively confined space near the door to your bedroom when you were lashing out at both Mr Wu and Mr Zhong with your knife, in response to the threat that you perceived they showed you.

[8]       In finding you not guilty of murder and manslaughter in relation to Mr Wu the jury accepted you were acting in self-defence.  As Mr Wu had a knife, and was an aggressor, the jury accepted you were entitled to use a knife against him.  I agree. In relation to Mr Zhong, the jury must have accepted you were acting to defend yourself but that you went too far in using the knife against Mr Zhong, who was

unarmed throughout the fight.  Like the jury, however, I accept you had no intention of inflicting a fatal wound.  Against the background of the confused and desperate struggle that all three of you were involved in I consider that to be the most logical explanation of the verdicts on the basis of the evidence that I saw and heard.

[9]       I propose to sentence you on that basis.

[10]     In  sentencing  you  I  am  required  to  take  account  of  the  purposes  and principles of the Sentencing Act, in this case:

          to hold you accountable for killing Mr Zhong;

          to promote in you responsibility for and acknowledgement of that harm;

          to provide for the interests of the victims, Mr Zhong’s wife and daughter.
You have heard this morning of the terrible impact his death has had on them and will continue to have on them;

          to denounce violence involving the use of knives; and

to deter you and others from committing similar offending.

[11]    The gravity of the offending and the seriousness of the type of offence is recognised by the maximum penalty.  I am also required to consider your culpability and the background circumstances I have described are particularly relevant to that factor.

[12]     The extent of harm, namely Mr Zhong’s death, is self evident.  There is no tariff for manslaughter.1    Each case depends on its own facts.   Sentences for manslaughter vary widely.  That is reflected by the wide variance in the proposed starting points argued for by the Crown and Mr Sutcliffe in this case.  The Crown
argue for a starting point for sentence of eight to nine years’ imprisonment.   Mr

1	R v Edwardson HC Rotorua CRI-2006-069-1101, 27 April 2007.

Sutcliffe argues a starting point of no more than two years’ imprisonment would be

appropriate.

[13]     To support the starting point of eight to nine years Mr Glubb has referred to a number of features such as extreme violence and significantly, deliberately stabbing Mr Zhong to the back.  It follows from my discussion of the facts that I do not accept that you targeted a vulnerable part of Mr Zhong.   While you deliberately stabbed him, you did so in the course of the struggle.  I also accept your use of the knife was in response to the threat that Mr Wu in particular presented.

[14]     Mr Glubb also suggested that by the time Mr Zhong was stabbed there was no longer any threat from Mr Wu.  I do not accept that necessarily.  While Mr Wu still had the knife and was capable of using it he posed a threat.  After the incident Mr Wu was still able to get up and go down the stairs before collapsing at the bottom of them.   The stabbing of Mr Zhong happened in the confused and very fluid situation I have referred to.  Mr Wu may have been the leader but on the evidence I find Mr Zhong was actively involved in the assault and attack on you.  As noted, at one stage he was trying to throttle you.

[15]     Mr Glubb also sought to support the starting point by reference to a number of cases:  R v Ames, R v Edwardson, R v Herewini, R v Baryluck, R v Edmonds and R v Olley.2   The starting point in the cases he referred to ranged between seven to 11 years.   For his part, Mr Sutcliffe referred to R v Paton, R v Tamati, R v Mahari, Solicitor-General v Kane, R v Harris, and R v Emery.3    The starting point in those cases ranged from four to six years.  None of the cases that counsel have referred to bear much comparison to the present case where you were presented with the threat of two people deliberately confronting you in your home, one of whom was armed
with a knife.

2	R v Ames HC Rotorua CRI-2008-263-19, 30 October 2009;  R v Edwardson HC Rotorua CRI-
2006-069-1101, 27 April 2007;  R v Herewini HC Rotorua CRI-2007-063-3151, 5 October 2007;
R v Baryluck HC Nelson, T10/02, 25 August 2003;  R v Edmonds HC Christchurch CRI-2009-
009-13108, 15 December 2010; and R v Olley [2012] NZHC 40.
3	R v Paton [2013] NZHC 21;  R v Tamati HC Tauranga CRI-2009-087-1868, 27 October 2009; R v Mahari HC Rotorua CRI-2006-070-8179, 14 November 2007;   Solicitor-General v Kane CA154/98, 23 September 1998;  R v Harris HC Greymouth CRI-2009-018-901, 8 April 2011; and R v Emery HC Auckland CRI-2008-092-1285, 13 February 2009.

[16]     However, both features identified by the Court of Appeal in R v Taueki as supporting a lower starting point, even in the case of serious injury, or in this case death, are present.4   There was serious provocation by Mr Zhong in coming to your home, with Mr Wu, to confront and, if necessary to physically evict you.  That provocation, including Mr Wu arming himself with a knife, was an operative cause of the violence that followed and remained an operative cause until Mr Zhong was stabbed by you.   Next, I accept that you were acting in self-defence, but that you went too far in using the knife against Mr Zhong in the way you did.

[17]     Against that background, and to reflect your culpability in this case, I take as a starting point for your sentence four years, six months’ imprisonment.  The Crown submit the starting point should be uplifted for personal aggravating factors.  I note you were on bail for money laundering and fraud charges at the time. However, such offending has nothing to do with the offending that I have to sentence you on this morning.  It is not as though you went out and committed this offending whilst on bail.  It occurred in your home when you were confronted by Mr Wu and the victim. I consider the fact you were on bail at the time to be irrelevant.  I record the Crown does not suggest it supports an uplift.

[18]     The only relevant previous conviction is one of assault with intent to injure in

1999.  I take Mr Sutcliffe’s point on your behalf that that is effectively over 11 years before this offence.  It was dealt with by a sentence of periodic detention.  I do not consider it to be an aggravating factor that requires an uplift in this case, but obviously nor can you have any credit for a good record.

[19]     Mr Sutcliffe has argued for a credit for remorse on your behalf.  He criticised the probation officer’s assessment of your lack of remorse based on your statement that if you were in the same position you would do the same again.   While I understand your response Mr Wang, I have to say that having sat through the trial and observed you and considered the background circumstances to your position, I do not perceive you to be remorseful for your actions and their consequences, at least
to the extent that any reduction in the sentence is required for remorse.

4	R v Taueki [2005] 3 NZLR 372 (CA).

[20]     Next, Mr Sutcliffe argued for a reduction for restrictive bail conditions.  You were subject to a 10 pm to 7 am curfew for approximately 20 months.  Given the charges faced, I do not consider the bail to have been so restrictive as to support any reduction in the starting point.

[21]     However, there is the further factor of the offer made through your counsel and your family of $30,000 reparation to the family of the deceased.  Mr Glubb has confirmed this morning that the victim’s family reject that offer.  They do not accept it.  They do not want the money.  Despite that the Court is required to take the offer into  account.    I  accept  that  it  is  a  genuine offer  and  is  capable of  fulfilment. However, it has not been accepted by the victim’s family as expiating or mitigating the wrong and that is also a particularly relevant factor.  In the circumstances I limit the credit for that offer to a reduction of two months.  That leads the Court to a sentence of four years, four months.

[22]     I am then required to consider totality. At present you are serving a sentence of two years, nine months for fraud and money laundering.   The convictions are under appeal.  But I consider that it is necessary for the Court to address the issue of totality and consider what the appropriate sentence would have been if you had been before the Court for sentence on all matters at the same time. In doing so, however, I accept Mr Glubb’s point that they are completely different types of offending. While I consider there should be some reduction in the overall sentence to reflect totality, in this case I consider the appropriate reduction to be no more than four months.  That leads to an end sentence of four years’ imprisonment.

[23]     Given the circumstances of the offending I do not consider a minimum term is required to address the requirements of the Act.

[24]     Please stand.  Mr Cheng Qi Wang for the manslaughter of Mr Zhong you are sentenced to four years’ imprisonment.  The sentence is cumulative on the existing sentence you are serving.

[25]     Stand down.

Venning J