Feng v Police - [2019] NZHC 2418

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-000065

[2019] NZHC 2418

BETWEEN
SHAWN FENG

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 19 September 2019

Appearances:

J Lucas for Appellant

S Dayal for Respondent

Judgment:

24 September 2019

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 24 September 2019 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date: 24 September 2019

Introduction

[1] Shawn Feng pleaded guilty to common assault of his now ex-wife. Mr Feng sought a discharge without conviction. However, on 17 April 2019, Judge Kellar convicted Mr Feng and ordered him to come up for sentence if called upon.

[2] Mr Feng appeals his conviction on the grounds that the circumstances warranted a decision to discharge him without conviction.

FENG v NEW ZEALAND POLICE [2019] NZHC 2418 [24 September 2019]

Facts

[3] On 17 January 2018, Mr Feng and his now ex-wife got into a verbal dispute. He tried to grab her mobile phone from her. She resisted, pushing him away. He then punched her on the left side of the face. She pushed past him and ran to the front door. He grabbed her by the top of her shoulders and bottom of her neck to stop her from leaving. She sustained minor injuries.

[4] Mr Feng was originally charged with male assaults female and assault with intent to injure. He pleaded guilty when the assault with intent to injure was withdrawn and the male assaults female charge was downgraded to common assault.

District Court decision

[5] Mr Feng applied for a discharge without conviction. Judge Kellar set out the law on those applications. He noted that Mr Feng has no previous convictions and entered a guilty plea at a relatively early stage once the charges had been amended. He recorded that Mr Feng had attended a 16-session Stopping Violence course and had engaged well.

[6] In terms of consequences of the conviction, there was no evidence before the Judge that Mr Feng’s employment as a quantity surveyor would be in jeopardy should he be convicted. The Judge acknowledged that it may make gaining another job in future more difficult than it would be for someone without a conviction.

[7] Mr Feng also said a conviction may impede his ability to travel to China where he was born, although he is a New Zealand citizen now. The Judge said that Mr Feng’s parents and children both live in New Zealand. While there was no evidence that a conviction would create a bar to entry into China, the Judge was prepared to accept that it may create difficulties and there was some potential disadvantage to Mr Feng.

[8] In deciding whether the consequences of a conviction would be out of all proportion to the gravity of the offending, the Judge acknowledged that the offending was of low to moderate seriousness for an offence of this type. However, he was…

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 Feng v Police

Details

AGLC: Feng v Police [2019] NZHC 2418
Case: [2019] NZHC 2418
Decision Date: 24 September 2019

CaseChat Overview and Summary

Shawn Feng appeals against his conviction for common assault of his now ex-wife, arguing that the circumstances warranted a decision to discharge him without conviction. The District Court Judge had convicted Mr Feng and ordered him to come up for sentence if called upon, declining to grant him a discharge without conviction. The appeal raises issues regarding the assessment of the gravity of the offending, the consequences of a conviction, and whether those consequences are out of all proportion to the gravity of the offending.

The High Court considered the mitigating factors relating to Mr Feng personally, including his absence of prior convictions, that he entered an early guilty plea, and his participation in a Stopping Violence course. The Court found that the District Court Judge had correctly assessed the gravity of the offending as "low to moderate" and had taken into account all the relevant considerations, including the mitigating factors relating to Mr Feng. However, the potential consequences of a conviction identified by Mr Feng were speculative and did not reach the high threshold of being out of all proportion to the offending. Therefore, the appeal was dismissed.

No further orders were made.

Orders