



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Wong, 2012
    ONCA 330

DATE: 20120517

DOCKET: C52735

Laskin, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anthony Wong

Appellant

Anthony Wong, acting in person

Paul Bernstein, as duty counsel

J. Sandy Tse, for the respondent

Heard and released orally: May 14, 2012

On appeal from the conviction entered on March 9, 2010
    and the sentence imposed on August 26, 2010 by Justice Douglas K. Gray of the Superior
    Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant, with the assistance of duty counsel, argues three grounds
    of appeal.

[2]

First, the appellant submits that the trial judge erred in instructing
    the jury that Wongs evidence about what Morgan said to him could not be relied
    on by Wong to show an innocent association.  Even if we were to agree with this
    submission  and we do not need to finally resolve this point  the error was
    of no consequence.  Wong himself testified and denied that he knew anything
    about the gun or the robbery until after he had been arrested.  His sister too,
    testified that Morgan had called her and told her that the gun was his and not
    Wongs.  The jury obviously rejected both Wongs evidence and his sisters
    evidence, and found that neither raised a reasonable doubt.  In the light of
    the jurys rejection of this evidence, what Wong claimed Morgan told him could
    not have assisted Wongs defence.

[3]

Second, the appellant submits that on the s. 95 charge, the trial judge
    erred by failing to instruct the jury that to convict they had to be satisfied
    beyond a reasonable doubt Wong knew the gun was loaded.  The Crown concedes
    that the trial judges instructions on s. 95 omitted the knowledge element of
    the offence.  However, the Crown contends that the omission, on the facts of
    this case, caused no substantial wrong.  We agree.

[4]

This was intended to be a violent, armed robbery.  The parties agreed
    that the gun was a loaded, prohibited firearm.  In the circumstances, once the
    jury convicted the appellant of possession of the firearm, inevitably they must
    have been satisfied Wong knew that the firearm was loaded.

[5]

Third, the appellant submits that the trial judge erred by failing to
    stay the s. 94 conviction on the
Kienapple
principle.  In support of
    this submission, he relies on the decision of this court in
R. v. Chang
,
    [2009] O.J. No. 2938.  In view of the qualification in para. 5 of
Chang
,
    we do not think it applies here.

[6]

Moreover, in this case, the trial judge carefully analyzed whether
Kienapple
applied and concluded that it did not.  We have not been persuaded of any basis
    to set aside the trial judges conclusion.

[7]

Accordingly, the appeal is dismissed.

John Laskin J.A.

E.A. Cronk J.A.

S.E. Pepall J.A.


