Hwang v Police

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA687/2017
[2021] NZCA 602

BETWEEN	JIMIN HWANG Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Kós P, Duffy and Woolford JJ
Counsel:	Applicant in person R E King for Respondent
Judgment: (On the papers)	15 November 2021 at 9 am

JUDGMENT OF THE COURT

The application for recall of judgment is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

Mr Hwang was convicted of the theft of a laptop after a Judge‑alone trial in the District Court in 2017.[1] His appeal to the High Court was dismissed.[2] He was granted leave by this Court to bring a second appeal, but ultimately that appeal too was dismissed.[3]
[1]Police v Hwang [2017] NZDC 12372.
[2]Hwang v Police [2017] NZHC 1171.
[3]Hwang v Police [2019] NZCA 553.
In our judgment we declined Mr Hwang’s application to adduce fresh evidence; rejected the submission made by counsel for Mr Hwang that the trial Judge had reversed the onus of proof; and likewise rejected a further submission for Mr Hwang that the trial Judge had erred in his assessment of evidence given by the complainant’s wife as to identity.[4]
[4]At [15], [21] and [33].
On 9 August 2021 Mr Hwang sought to bring a “third appeal … out of time”. His application was treated by this Court as an application for recall of judgment. The application is presented on the basis that the trial Judge did not see a Dispute Tribunal decision between the complainant and Mr Hwang, nor a statement from the complainant to the effect that he did not want Mr Hwang to face criminal charges. Mr Hwang also suggests there were differences in accounts given by the complainant before the police, the Dispute Tribunal referee and the trial Judge, but details are not provided.
The question in the present case, in accordance with the decision of the Supreme Court in Uhrle v R, is whether there is any very special reason of justice requiring the judgment to be recalled.[5] We consider that standard has not been met here. First, this is effectively an attempt to re-argue the second appeal on wholly new grounds. Secondly, the material before the Court does not suggest any real likelihood of a miscarriage of justice. Thirdly, recall is not an appropriate course where statutory appeal rights subsist, and Mr Hwang has not exhausted his right to seek leave to appeal to the Supreme Court under s 243 of the Criminal Procedure Act 2011.
[5]Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [29].
The application for recall of judgment is declined.

Solicitors:
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

The case of Hwang v Police involves an applicant, Jimim Hwang, who sought recall of a judgment made by the Court of Appeal of New Zealand. The respondent in the case was the New Zealand Police. Hwang was convicted of laptop theft after a trial in the District Court, a conviction that was upheld by the High Court and subsequently by the Court of Appeal. The case was heard by Kós P, Duffy, and Woolford JJ, with Hwang representing himself and R E King for the respondent. The judgment was delivered on 15 November 2021.

The legal issues at hand were whether there was sufficient cause to recall the judgment, particularly considering that Hwang's application was effectively a third appeal on new grounds. The court examined whether the trial judge's oversight of certain evidence could have led to a miscarriage of justice and if there was any special reason of justice to warrant recalling the judgment. Hwang argued that the trial judge had not seen a Dispute Tribunal decision and a statement from the complainant indicating that the complainant did not want criminal charges to be laid against Hwang. Additionally, Hwang suggested discrepancies in the complainant's accounts given to different authorities but did not provide specific details.

The Court of Appeal found that the application for recall did not meet the standard required, as outlined in the Supreme Court's decision in Uhrle v R. The court concluded that Hwang's application was an attempt to re-argue the second appeal on new grounds, there was no real likelihood of a miscarriage of justice, and recall was not appropriate while statutory appeal rights remained. Furthermore, Hwang had not exhausted his right to seek leave to appeal to the Supreme Court under section 243 of the Criminal Procedure Act 2011. Consequently, the application for recall of judgment was declined.

The final orders of the Court of Appeal confirmed the dismissal of Hwang's application for recall of judgment, leaving his earlier convictions intact.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established