Fang v Police - [2020] NZHC 2761

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2020-425-000018

[2020] NZHC 2761

BETWEEN
LIANG FANG

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 19 October 2020

Appearances:

G P Tyrrell for Appellant

R W Donnelly for Respondent

Judgment:

21 October 2020

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 21 October 2020 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date…21 October 2020

Introduction

[1] On 21 January 2020 at about 1.40 pm, Mr Fang was driving a tour bus on the Glenorchy-Queenstown Road. The bus had 22 passengers on board and was towing a large trailer containing the passengers’ luggage. Traffic was light, the road was dry, visibility was good and there was negligible wind. Mr Fang entered a corner at 17 km/h over the recommended speed limit. The trailer started to fishtail, eventually causing Mr Fang to lose control of the bus. It rolled onto its side and slid down a hill, seriously injuring four of the passengers.

FANG v NEW ZEALAND POLICE [2020] NZHC 2761 [21 October 2020]

[2] Mr Fang was charged with four counts of careless operation causing injury.1 In a decision of 2 June 2020, Judge Strettell refused to grant him a discharge without conviction.2 The Judge instead convicted Mr Fang and sentenced him to 200 hours’ community work, nine months’ disqualification and reparation of $9,000.

[3]Mr Fang now appeals the refusal to grant a discharge without conviction.

Relevant background

[4] Mr Fang is a Chinese national who has resided in New Zealand since June 2016 under a work visa. He was employed as a tour bus driver by Awing Travel NZ Ltd and had been working for that company for one year at the time of the accident. The Glenorchy-Queenstown Road is an undulating twisting road that follows the northern shore of Lake Wakatipu. It has a number of tight corners. The accident occurred when Mr Fang was descending into Wilsons Bay from Closeburn and approached two corners of the downhill run. The first corner is a gentle curve and has a speed advisory sign of 55 km/h. However, the second corner is a tight corner with a bend of approximately 90 degrees. It has a recommended speed limit of 45 km/h and is signposted accordingly.

[5] As already noted, Mr Fang approached the second corner too fast and got into difficulty, causing the bus to roll onto its side and slide 40 m down the hill. During the rollover and slide, the occupants of the bus were thrown around the bus and some occupants received serious and life threatening injuries. In particular:

(a)a 10 year old girl had one of her hands amputated and the other arm removed above the elbow; and

(b)a 39 year old female had her right arm amputated below the shoulder.

Two other passengers suffered injuries from which they recovered. All other passengers of the bus were extremely upset and some…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fang v Police

Details

AGLC: Fang v Police [2020] NZHC 2761
Case: [2020] NZHC 2761
Decision Date: 21 October 2020

CaseChat Overview and Summary

Liang Fang appeals against the decision of Judge Strettell to refuse to grant him a discharge without conviction. The appeal was heard in the High Court of New Zealand, Invercargill Registry. Mr Fang was convicted of four counts of careless operation causing injury after he lost control of a tour bus while travelling at 17 km/h over the recommended speed limit. The bus rolled onto its side, seriously injuring four of the 22 passengers on board. Mr Fang argues that the offending was a momentary inattention and not a continuing episode of carelessness, and that the consequences of conviction, including deportation, are out of proportion to the gravity of the offending. The court considered Mr Fang’s submissions and the fresh evidence provided, which included an email from Immigration New Zealand confirming that Mr Fang will be required to leave the country upon completion of his sentence if his conviction is upheld. The court found that Mr Fang’s carelessness was relatively serious given his responsibility as a professional driver, and that while the consequences of conviction were serious, they were not out of proportion to the gravity of the offending. The appeal was dismissed.

Orders