Han v Police - [2012] NZHC 791

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…

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 Han v Police

Details

AGLC: Han v Police [2012] NZHC 791
Case: [2012] NZHC 791
Decision Date: 24 April 2012

CaseChat Overview and Summary

Matthew Ming Han appealed against his conviction and sentence in the Queenstown District Court, where he was found guilty of common assault and disorderly behaviour after an incident in a Queenstown casino. Han had pleaded guilty and was fined $1000, ordered to pay reparation of $300, and court costs of $132.89. Han sought leave to adduce further evidence relevant to the appeal against conviction and sentence, which was granted. Han's affidavit explained the circumstances of the offence and outlined the potential consequences of the conviction, including the impact on his business, travel to China and Japan, and the general consequences of a conviction.

The court had to decide whether the consequences of the conviction would be out of all proportion to the gravity of the offending. The court considered the gravity of the offence, the direct and indirect consequences of a conviction, and whether the consequences would be out of all proportion to the gravity of the offending. The court found that the consequences of the conviction would be out of all proportion to the gravity of the offending, taking into account the low-level nature of the offence, Han's age and previous good character, the out-of-character nature of the offence, and the potential consequences for his business and travel plans.

The appeal against conviction and sentence was allowed. The convictions were quashed, and Han was discharged on the condition that he make the following payments: $1000 to a charity of his choice, $300 to the victim, and court costs of $132.89. Han will need to provide the registrar with a receipt for the first item and satisfy the registrar as to the payment made to the victim. The court acknowledged the efforts of both counsel in thoroughly arguing the case on both sides.

Orders