Chen v Sun

[2024] NZHC 1948

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-267 & 268

[2024] NZHC 1948

BETWEEN

LE CHEN

Appellant

AND

WENJUN SUN and LEI WANG

Respondents

Hearing:

13 June 2024

Appearances:

Appellant in Person

M Smit for Respondents

Judgment:

16 July 2024

JUDGMENT OF CULL J

[1]    Mr Chen, who calls himself the Private Prosecutor, appeals a District Court decision that the charging documents not be admitted under s 26(3) of the Criminal Procedure Act 2011 (CPA) and in the alternative, dismissing his charges under s 147 of the CPA.1

Background

[2]    Mr Chen has filed charging documents against the respondents for conspiring to defeat justice, fabricating evidence and giving false oaths.2 These charges arise as a result of a Tenancy Tribunal dispute about unpaid rent and outstanding electricity payments by the tenant, Mr Chen. The Tenancy Tribunal made a ruling in favour of the respondents awarding the respondents an amount of $78 for payment by Mr Chen for electricity payments. Mr Chen appealed the Tribunal’s decision to the District

1      Chen v Sun and Wang [2023] NZDC 27532.

2      Crimes Act 1961, ss 110, 113 and 116.

CHEN v SUN & WANG [2024] NZHC 1948 [16 July 2024]

Court and at the same time laid these charges against the respondents in the District Court.

[3]    Mr Chen was notified by registry staff by email on 26 April 2023 that his application to file private prosecutions was granted and that the Court would serve a summons on the respondents. The charging documents came before Judge Mabey on 9 August 2023.3 The Judge acknowledged the suggestion that the prosecution be halted until the Tenancy Tribunal appeal had been resolved.4 He adjourned the matter to 11 October 2023 to enable a date for the civil appeal to be fixed and for Mr Chen to complete disclosure.5 Mr Chen’s appeal of the Tenancy Tribunal’s decision was subsequently dismissed.

[4]    The matter came before Judge Couch on 11 October 2023, who directed the parties to file submissions on whether leave should be granted to continue the prosecutions given the dismissal of the civil appeal, and adjourned the prosecutions until 6 December 2023.6

Decision under appeal

[5]    The decision of Judge Hix, dated 6 December 2023,7 focused first on whether the charging documents should be accepted for filing under s 26(3) of the CPA, being the provision for private prosecutions. He understood that the documents had been referred to him by a registrar under sub (2).8

[6]    The Judge determined, by reference to the Tenancy Tribunal appeal, that the evidential foundation for the private prosecution was identical to that considered in the civil appeal, and held that Mr Chen was essentially relitigating the civil matter.9

3      Chen v Wang and Sun DC Christchurch CRI-2023-009-3028 and CRI-2023-009-3031, 9 August 2023.

4 At [3].

5      At [6] and [8].

6      Chen v Wang and Sun DC Christchurch CRI-2023-009-3028 and CRI-2023-009-3031, 11 October 2023 at [5]–[6] and [8].

7      Chen v Sun and Wang, above n 1.

8 At [13].

9      At [16] and [21]–[22].

The Judge accordingly directed that the charging documents not be accepted for filing pursuant to s 26(3).10

[7]    At the end of his judgment, the Judge observed “it could be argued that technically the documents have not been referred to me by the Registrar” so made an order dismissing the charges under s 147 of the CPA.11 That was on the basis, as noted, that he found the charging documents were an abuse of process with a weak evidential foundation.12

Submissions

Mr Chen

[8]    In appealing the dismissal of these charges, Mr Chen has alleged that the decision was not procedurally fair. He notes that the defendants and their lawyer did not attend the hearing on 6 December 2023, despite having been charged.13 He submits that Judge Hix’s decision was arbitrary and disregarded the correct legal procedure and that he has been discriminated against with a double standard, given that the charging documents were accepted for filing.

[9]    Further, Mr Chen submits that the evidence is sufficient to justify a trial. The key evidence in this matter is submitted by Mr Chen to be correspondence between the defendants and the investigator with Tenancy Services. The information he requested was withheld by the Ministry of Business, Innovation and Employment (MBIE). Mr Chen has made an official information complaint and sought adjournment of the hearing until he has received response from the Ombudsman regarding this complaint. This adjournment was denied, and the appeal was scheduled to be heard on 13 June 2024.

10 At [22].

11 At [23].

12 At [24].

13     See Criminal Procedure Act 2011, s 120.

Respondents’ submissions

[10]   Mr Smit, for the respondents, submits that despite the procedural imperfections, the charges brought by the appellant lacked evidential sufficiency and were essentially an attempt to re-litigate a civil matter.

[11]   Judge Hix determined that the various charging documents filed by the appellant would not be accepted for filing pursuant to ss 26(3) of the CPA as they lacked a sufficient evidential foundation. The charges were also dismissed pursuant to s 147 of the Act.

[12]   At the same time the appellant filed charges against the respondents, he was also appealing a Tenancy Tribunal decision to the District Court. The appeal was largely on the same grounds that the private prosecution was based on. Counsel noted that the appellant has also appealed the civil court’s decision to the High Court and that this re-litigation in different jurisdictions was part of the basis for Judge Hix’s decision to not accept the filing of the charges as he saw it as an abuse of process.

Issues

[13]There are three issues for determination:

(i)What is the status of the private prosecution under s 26?

(ii)Can Mr Chen appeal the s 147 decision?

(iii)Is the private prosecution an abuse of process?

What is the status of the private prosecution under s 26?

[14]Section 26 of the CPA states:

26 Private prosecutions

(1)   If a person who is proposing to commence a private prosecution seeks to file a charging document, the Registrar may—

(a)accept the charging document for filing; or

(b)refer the matter to a District Court Judge for a direction that the person proposing to commence the proceeding file formal statements, and the exhibits referred to in those statements, that form the evidence that the person proposes to call at trial or such part of that evidence that the person considers is sufficient to justify a trial.

(2)   The Registrar must refer formal statements and exhibits that are filed in accordance with subsection (1)(b) to a District Court Judge, who must determine whether the charging document should be accepted for filing.

(3)   A Judge may issue a direction that a charging document must not be accepted for filing if he or she considers that—

(a)the evidence provided by the proposed private prosecutor in accordance with subsection (1)(b) is insufficient to justify a trial; or

(b)the proposed prosecution is otherwise an abuse of process.

(4)   If the Judge determines under subsection (2) that the charging document should not be accepted for filing, the Registrar must—

(a)notify the proposed private prosecutor that the charging document will not be accepted for filing; and

(b)retain a copy of the proposed charging document.

…

[15]   The Court registry informed Mr Chen by email that his charging documents had been accepted for filing. Section 26(1)(a) was engaged. The matter had not been referred to a Judge Hix under s 26(1)(b), as he understood. It was not open to the Judge to wind the clock back and rule that the charging documents not been accepted for filing.

[16]   The Court, having accepted the charges for filing, has no jurisdiction to exercise the powers under s 26. The purported ruling that the charging documents not be accepted for filing is set aside.

Can Mr Chen appeal the s 147 decision?

[17]Section 147 of the CPA states:

147 Dismissal of charge generally

(1)   The court may dismiss a charge at any time before or during the trial, but before the defendant is found guilty or not guilty, or enters a plea of guilty.

(2)   The court may dismiss the charge on its own motion or on the application of the prosecutor or the defendant.

(3)   A decision to dismiss a charge may be made on the basis of any formal statements, any oral evidence taken in accordance with an order made under section 92, and any other evidence and information that is provided by the prosecutor or the defendant.

(4)   Without limiting subsection (1), the court may dismiss a charge if—

(a)the prosecutor has not offered evidence at trial; or

(b)in relation to a charge for which the trial procedure is the Judge- alone procedure, the court is satisfied that there is no case to answer; or

…

(5)   A decision to dismiss a charge must be given in open court.

(6)   If a charge is dismissed under this section the defendant is deemed to be acquitted on that charge.

(7)   There are three ways in which an order for dismissal of a charge may be challenged.

[18]   First, the order may be set aside as a nullity if information that was critical to the making of the order was misconstrued or not taken into account.14 In such rare cases the original charges may be reinstated. However, a dismissal formally made and recorded by a judge whose decision was not affected by any operative mistake cannot be set aside on this basis.

[19]   Secondly, while there is no general right of appeal against a decision under s 147, either party may appeal on a question of law against a trial court’s ruling. This extends the appeal rights that were previously available to the defence in the indictable jurisdiction.

[20]   Thirdly, the decision of the District Court to dismiss or refuse to dismiss a charge may be the subject of judicial review proceedings. This power must be used sparingly.15 Available appeal rights will reinforce judicial reluctance to undertake such judicial reviews. Relief by way of such review is discretionary.

14     R v Holt [2008] NZCA 388, [2009] 1 NZLR 325 at [53]–[54] and [58].

15     Crimes Act 1961, s 347; and Auckland District Court v Attorney-General [1993] 2 NZLR 129, (1992) 9 CRNZ 344 (CA) at 136, 351

[21]   Finally, a dismissal does not preclude a court from ordering a retrial on the basis that the order for dismissal was procured by the commission of an offence against the administration of justice of which the defendant has been convicted,16 or on the basis that there is new and compelling evidence of guilt.17

[22]   In this instance, no information critical to the making of the order is submitted to have been misconstrued or not considered, judicial review proceedings have not been brought and there is no new evidence of guilt nor offending against the administration of justice. Therefore, the only potential basis of an appeal by the prosecutor would be an appeal on a question of law against the trial court’s ruling.

[23]   Mr Chen’s notice of appeal seeks to challenge a factual finding in the decision to be appealed. However, the factual finding challenged, namely that the defendants provided a fabricated version of a handwritten invoice to the Tenancy Tribunal, was not discussed in the judgment. Further, Mr Chen recognises that the appeal challenges the exercise of judicial discretion, in that he claims Judge Hix disregarded the previous judgments and came to an arbitrary decision to discontinue the private prosecution charges. While the claimed procedural unfairness could form a basis of judicial review, this does not appear to have occurred.

[24]   There is no jurisdiction for Mr Chen to appeal the s 147 CPA decision to dismiss the charges. His appeal notice does not focus on the relevant statutory provisions but does raise issues of procedural fairness and reasonableness.

[25]   Notwithstanding that Judge Couch timetabled the filing of submissions to address whether leave should be granted for Mr Chen to continue the prosecution, the intended charges have been dismissed. This prosecution is at an end.

Abuse of process

[26]   Although the charges have been dismissed, in any event, the proceeding is an abuse of process. It arose a result of a Tenancy Tribunal dispute about unpaid rent and outstanding electricity payments by the tenant at the time, Mr Chen. The relevant

16     Criminal Procedure Act 2011, s 151.

17     Section 154.

Tenancy Tribunal Minutes which set out the context to this dispute were provided. Mr Chen had already applied for a re-hearing of the Tribunal’s decision on 8 March 2023. The re-hearing was heard on 17 April and was dismissed.

[27]   Mr Chen has maintained his position that Mr Wang and Ms Sun have misled the Tribunal through their invoices. As Mr Smit submits, the Tribunal Minutes clearly state that the Tribunal placed no weight on the invoices provided and that there was no way of accurately calculating the tenants’ power usage at the time and that an estimate of costs for monthly power usage on a reasonable standard approach was applied.

[28]   Mr Chen appealed the Tribunal decision to the District Court on 25 July 2023. In the appeal reasons, Mr Chen stated that Ms Sun and Mr Wang have been forging and providing misleading electricity invoices with the intention of misleading the Tribunal. As Mr Chen is already appealing the decision to the District Court on this matter, Mr Smit submits that a private prosecution for fabricating evidence is unnecessary and an abuse of the Court process.

[29]   The charge brought by  Mr Chen is  that of fabricating evidence, pursuant  to s 113 of the Act. Section 113 states:

Everyone is liable to imprisonment for a term not exceeding 7 years who, with intent to mislead any tribunal holding any judicial proceeding to which section 108 applies, fabricates evidence by any means other than perjury.

[30]   As Mr Smit contends, it is clear from the Tribunal Minutes that Mr Wang and Ms Sun had no intention of misleading the Tribunal when providing the electricity invoices. Mr Wang advised the Tribunal from the outset that the invoices were manually calculated and that there was likely to be errors in them as he would often forget to adjust the amounts for GST.

[31]   On face value, the charge has no grounds as Mr Wang and Ms Sun never relied on the invoices provided with the intention to mislead the Tribunal. Regardless, the Tribunal placed no weight on the invoices provided in arriving at the end decision.

[32]   Given the above information, Mr Smit submitted that there was insufficient evidence to justify a trial and that the proposed prosecution is an abuse of process. I uphold his submission. The prosecution constitutes a collateral attack on the Tenancy Tribunal’s decision and the District Court appeal judgment.

Conclusion

[33]   There are no grounds for Mr Chen to appeal this decision under s 147 of the CPA. Although a prosecutor may appeal a s 147 decision, the circumstances of this appeal in a private prosecution do not justify such an appeal. The charging document should not have been accepted as there was insufficient evidence to justify a trial. The private prosecution is an abuse of process, as it is a collateral attack on the Tenancy Tribunal’s decision.

Result

[34]The appeal is dismissed.

Cull J

Solicitors:

M Smit, Christchurch, for Respondents