Han v Police
[2012] NZHC 791
•24 April 2012
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2011-425-000061 [2012] NZHC 791
MATTHEW MING HAN
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 24 April 2012
Appearances: K J Logan for Appellant
E J Riddell for Respondent
Judgment: 24 April 2012
ORAL JUDGMENT OF CHISHOLM J
[1] When Mr Han was in the Queenstown casino with a friend last year he became involved in an argument with the acting shift manager during the course of which he threatened the manager and pushed her in the chest. He was charged with common assault and disorderly behaviour. Having pleaded guilty he was fined
$1000, ordered to pay reparation of $300, and ordered to pay court costs of $132.89. Mr Han was represented at that hearing by the duty solicitor (not Ms Logan).
This appeal
[2] Mr Han sought leave to adduce further evidence about matters that were not before the sentencing Court but are relevant to this appeal against conviction and
HAN V NEW ZEALAND POLICE HC INV CRI-2011-425-000061 [24 April 2012]
sentence which seeks to obtain a discharge without conviction under ss 106 of the Sentencing Act 2002. The application to adduce further evidence was not opposed, and I acknowledge the responsible attitude of Ms Riddell in that regard. The application to adduce further evidence is granted.
[3] A detailed affidavit from Mr Han is before the Court. It explains the circumstances surrounding the offending. The incident arose after Mr Han’s friend had to leave the gambling table to use a cell phone. She asked him to play her chips as well as his own. When Mr Han attempted to do so he was stopped by the acting shift manager. He deposes that he had seen other people playing someone else’s hand and felt that he was being unfairly treated. He accepts that he pushed the manager and he now regrets his behaviour. Mr Han is approaching 50 years of age. He has no previous convictions.
[4] Likely consequences of the convictions are explained. The first relates to his employment. Although Mr Han was born in China he has lived in Queenstown for the past 25 years and has been involved in the restaurant business since 1996. After initially opening a restaurant he and his business partner opened another restaurant which was subsequently closed when a new lease was not available. His business partner has suffered a stroke and he now runs the business alone. He is the sole director and shareholder of the company that holds the on-licence. More recently another bar has been opened in conjunction with another business partner.
[5] Mr Han’s concern is that his convictions will prompt an enquiry into the licence and might result in the on-licence being terminated. He is also concerned that his application for manager’s certificate is likely to be affected. Although he does not currently hold a manager’s certificate, he is intending to apply for a certificate because of the transient nature of staff in Queenstown.
[6] In broad terms he asserts that if the necessary liquor licences or certificates are not available his business will be in jeopardy. And if the business fails that could carry implications for himself, his wife, and their home.
[7] Travel to China and Japan is also raised. Although he is a New Zealand citizen his parents and a brother remain in China. Being no longer a national of China means he requires a visa to return. His solicitors have made enquiries as to whether the convictions would jeopardise his ability to return to China. The response from the Chinese embassy was that any application would be based on the documents provided at the time.
[8] Mr Han’s wife is a Japanese national and she still has family in Japan. There is a possibility that Mr Han and his wife might ultimately decide to live in Japan. Enquiries have been made of the Japanese consul about visas for Japan. The response, which has been exhibited to Mr Han’s affidavit, contains a detailed explanation as to Articles under the Japanese Immigration Act concerning “Denial of Landing”. Unfortunately this document is not particularly clear. One possible interpretation is that a person who has been convicted for violating any law of a country other than Japan by assaulting or threatening a person could have problems in entering Japan.
Approach to this appeal
[9] Given that the District Court was not asked to consider whether Mr Han should be discharged without conviction and did not have the benefit of the material now before this Court, it is necessary to approach the issue of discharge without conviction de novo.
[10] The steps to be taken are well settled. The first step is to identify the gravity of the offending; the second step, to identify the direct and indirect consequences of a conviction; and the third step, to assess whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending. Depending on the outcome of that enquiry the Court then needs to decide
whether it should exercise its discretion in favour of a discharge: see Blythe v R.[1]
[1] Blythe v R [2011] NZCA 190
[11] Apart from the summary of facts and the matters raised by Ms Logan and Ms Riddell, I have had the benefit of reviewing a DVD of the incident. The push to the midriff was brief in the extreme, and there was not the slightest possibility of injury. It seems to be plain that the physical assault was not premeditated. Obviously Mr Han was abusive towards the acting manager. Whether or not there was substance in his grievance cannot be determined.
[12] I accept that Mr Han pleaded guilty at the first available opportunity and is genuinely remorseful about the incident
Consequences of convictions
[13] The issue is whether there is a real and appreciable risk that the consequences described by Mr Han will follow. Ms Logan detailed the consequences with reference to Mr Han’s affidavit and exhibits and also with reference to relevant case law. She claims that in relation to each consequence a real and appreciable risk had been demonstrated. On the other hand, Ms Riddell submitted that none of the consequences had been made out to the necessary standard.
Liquor licensing
[14] In relation to the liquor licensing aspect detailed submissions were advanced on both sides. It is unnecessary to go into detail.
[15] In broad terms, Ms Logan relied on a number of decisions of the Liquor Licensing Authority to demonstrate that an enquiry into the licence or a stand down period before Mr Han could apply for a manager’s licence is on the cards. These
decisions are: Russell[2], Pussell[3]and Hartell[4]. Ms Logan also drew attention to
[2] Russell decision PH 36/2007, 17 January 2007
[3] Pussell [2007] NZLLA 402 (1 May 2007)
[4] Hartell [2009] NZLLA 402 (16 April 2009
R v Ranchhod[5] in which the Court of Appeal stated in the context of an appeal against conviction and sentence seeking a discharge where a liquor licence was involved:
[5] R v Ranchhod [2009] NZCA 340
[23] Secondly, and reinforcing that reading, the proper focus for a sentencing Judge is on whether an inquiry into Mr Ranchhod’s licence as a result of the conviction would be so disproportionate as to support a discharge without conviction. It is not for the Court to anticipate or determine the outcome of the inquiry. Rather in some cases the Judge may be in a position to say that the nature of the offending is such that it would not be a proportionate response for there to be any jeopardy at all and so it is fair to avoid that by granting a discharge.
She submitted that there should be a similar focus in this case.
[16] For the respondent Ms Riddell argued that the likelihood of the alleged consequences in this case is low. She emphasised that the convictions would not give rise to an absolute bar and that currently Mr Han does not hold a manager’s licence (which, she submitted, might indicate that he is using the licence issue as an
excuse). She also relied on the decision of Summers v Police[6] in which Hansen J had
adopted the approach that the possible consequences of a conviction in obtaining a liquor licence did not add to the case for a discharge because a conviction would not be an absolute bar to obtaining a licence.
[6] Summers v Police¸HC Whangarei, CRI-2008-488-36, 28 August 2008
[17] Whether or not the appellant has established a real and appreciable risk of the consequences in relation to the liquor licence or manager’s certificate is finely balanced. However, I am not prepared to disregard the decisions of the Liquor Licensing Authority that have been brought to my attention. They indicate that there might be a stand down period before Mr Han could apply for a manager’s licence. Nor on the evidence am I prepared to accept the Crown’s submission to the effect that Mr Han might be using the licensing issue as an excuse. He has explained in his affidavit why he needs to seek a certificate. Failure to obtain a certificate is likely to
have severe consequences for the businesses.
[18] There is no solid information on this topic. However, I am not prepared to assume that the conviction for assault will be of no consequence when it comes to gaining entry into China. If entry is denied the consequence would be extremely severe for Mr Han and his family in China.
[19] I do not accept the proposition that the Criminal Records (Clean Slate) Act
2004 provides an answer. While the appellant would probably qualify under that Act, it is likely to be seven years before that could happen. There is also strength in Ms Logan’s submission that we do not know whether erasure of the convictions would necessarily overcome any requirement for disclosure of previous convictions.
Travel to Japan
[20] On the evidence before the Court there is likely to be a problem in obtaining a visa to enter Japan. At the very least, on my reading of the relevant Japanese legislation, the possibility of an impediment cannot be disregarded. Again the remarks I have already made about the Clean Slate Act apply. Given that Mrs Han has family in Japan and that they might wish to ultimately live there, the consequences if entry was denied would be very severe.
General consequences
[21] Ms Logan relies on the general consequences of a conviction. In this respect she relies on R v Nash[7] and Tahitahi v Police.[8] I accept that the general implications of a conviction (embarrassment etc) are a relevant consideration and apply here.
[7] R v Nash, HC Wellington, CRI 2009-485-7, 22 May 2009
[8] Tahitahi v Police, [2012] NZHC 663
Failure of police to offer diversion
[22] Before leaving the issue of consequences I should also mention this issue which was raised by Ms Logan. Without going into detail, Ms Logan submitted that
even though the appellant was eligible for diversion, it was not offered to him. She referred to a number of cases in which this had been a relevant consideration, including Masson v Police[9], McRae v Police[10] and Sheng v Police.[11]
[9] Masson v Police, HC Christchurch, A 61/01, 26 July 2001
[10] McRae v Police, HC Rotorua, CRI-2008-463-78, 3 December 2008
[11] Shena v Police, HC Wellington, AP 261/91, 19 April 1992
[23] Ms Riddell responded that diversion had been considered by the police in this case and that they decided that it should not be offered. We do not know whether the complainant expressed a view and whether that played any part in the decision. On the information available I am not prepared to place any weight on this matter.
Whether the consequences of a conviction would be out of all proportion
[24] This involves a balancing exercise as to the direct and indirect consequences. In this case a number of factors are relevant.
(a) This was low level offending.
(b)By a man who is approaching 50 years and who has no previous convictions. In this regard I note two references have been provided which speak in glowing terms of the appellant.
(c) Judging from all the information before the Court this offending was out of character and there is probably little prospect of re-offending.
(d)The conviction might trigger an enquiry into the relevant liquor licences or mean that Mr Han cannot immediately obtain a manager’s certificate. If that happened the consequences could be dire for the businesses in which the appellant is involved.
(e) It is also possible that Mr Han will have difficulty in returning to
China. If that came to pass the consequences would be dire indeed,
given that some of Mr Han’s family are still in China.
(f) Similarly there might be impediments to him returning to Japan. If that happened the consequences for Mr Han’s wife, to the extent that her husband could not accompany her, could also be dire. There might also be consequences in terms of living in Japan.
[25] Once those matters are weighed (as well as the general consequence of a conviction to the extent that a person of previously good character would have to disclose convictions for assault and disorderly behaviour) I am satisfied that the consequences would be out of all proportion to the gravity of the offending.
[26] In terms of discretion there are no factors that would render it appropriate for the discretion to be exercised against a discharge without conviction.
Result
[27] The appeal against conviction and sentence is allowed. The convictions are quashed. The appellant is discharged on condition that he makes the following payments:
(a) The sum of $1000 to a charity of his choice; (b) $300 to the victim; and
(c) Court costs of $132.89
The appellant will need to provide the registrar with a receipt for the first item. I understand that he has already paid $300 to the victim. He will need to satisfy the registrar as to that payment.
[28] One final matter. The appellant should appreciate the enormous amount of work that has been put into this case by his counsel, Ms Logan. Her efforts certainly enhanced the prospects of the appeal succeeding. Having said that, I also acknowledge the contribution that Ms Riddell has made. This case has been thoroughly argued on both sides.
Solicitors:
Macalister Todd Phillips, Queenstown, [email protected]
Preston Russell Law, Invercargill [email protected]
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