AIK Guan Law *& Anor v Waitakere City Council

[2003] NZCA 303

IN THE COURT OF APPEAL OF NEW ZEALAND

CA108/03
CA109/03
CA390/02
CA391/02

AIK GUAN LAW
KIM LAN LAI

v

WAITAKERE CITY COUNCIL

Coram:Gault P
Tipping  J
McGrath J

Appearances:  J K MacRae for Appellants

M E Casey for Respondent

Judgment:17 December 2003 

JUDGMENT OF THE COURT DELIVERED BY GAULT P

[1]       In a judgment delivered on 17 June of this year, this Court granted special leave to appeal “against the convictions, sentences and orders for costs made in the High Court”.  In that judgment there are set out the questions put forward on the application for special leave.  Those directed to conviction and sentence were;

(1)Is the test for considering fresh evidence on appeal whether or not it might reasonably have led the District Court Judge to acquit the applicants?

(2)Was the High Court correct in law in holding that the acknowledged incompetence of the applicants’ former counsel was of no matter to the outcome of the prosecution?

[2]       Counsel for the appellants and respondents have filed written submissions and have requested that the appeals be dealt with on the papers.  The appeals against conviction have not been pursued.  We are asked to deal only with the appeals against the fines imposed by way of sentence.

[3]       The appellants are husband and wife.  They were convicted, as owners of a residential property let to a tenant, of an offence against s80(1)(b) of the Building Act 1991 of permitting use for which the building was not sanitary.  The fines imposed in total amounted to $40,500 of which ten percent was directed to be paid to the tenant and her family.

[4]       While the respondent is sympathetic to (even supportive of) reduction in the fines, jurisdiction of this Court to review them upon a second appeal is limited.  Section 144 of the Summary Proceedings Act 1957 gives jurisdiction, with leave, to entertain a second appeal only against a determination of the High Court on a question of law arising in a general appeal.  It is necessary therefore to ascertain what question of law relating to the fines was determined in the High Court.

[5]       On appeal from the District Court, Harrison J considered submissions that the fines were excessive on the grounds that they were out of proportion to the nature of the offences and could not be sustained on new evidence given before him.  That new evidence was directed to the incompetence and inexperience of counsel who represented the appellants in the District Court, to the conduct of the tenant and to the indebtedness of the appellants.

[6]       The Judge reviewed the reasons of the District Court Judge and determined that the fines imposed were not manifestly excessive.  He then referred to the new evidence.  He said:

Mr MacRae submitted that the fines imposed by the Judge disclose ‘an extreme view of the [Laws’] culpability …’ and that the new evidence imposes “a completely different complexion …”  He summarised his argument in this way:

The damage to the credibility of the tenants in light of the new evidence as to cannabis cultivation, and the further evidence as to the condition of the house when it was let in March 1996, is, … fatal to the sentences imposed by the Judge.

I can deal with this submission shortly.  It depends, for success, upon my acceptance of the integrity and force of the new evidence.  I have already found that it would not have borne upon the Judge’s verdicts.  For the same reasons I am satisfied that it would not have affected the level of the fines which he imposed.

[7]       In written submissions to this Court it is contended that the incompetence of counsel in the District Court should have been expressly considered by Harrison J.  It is said that the contributions of the tenants to the state of the dwelling and the true financial position of the appellants, as disclosed in the fresh evidence, should have been placed before the District Court by competent counsel and that Harrison J should not have upheld the amounts of the fines which had been imposed in the absence of that evidence.

[8]       Harrison J did consider the evidence directed to the tenants’ activities and the incompetence of counsel.  His assessment was that it would not have affected the level of fines imposed.  He also considered the issue of the financial position of the appellants.  He was not persuaded that these matters established that the fines were manifestly excessive.

[9]       In his determination of the appeal against the sentences Harrison J did not make any determination of law.  His was a review of the quantum of fines which it was within the power of the sentencing Judge to impose, and a review of the fresh evidence which he found insufficient to justify interfering with the sentences.  No question of law arose.

[10]     Accordingly, the jurisdiction of this Court is not engaged by the challenge to the quantum of the fines.

[11]     The appeals are dismissed.

Solicitors:
Phillips Fox, Auckland, for Appellants
Kensington Swan, Auckland, for Respondent