Mr Ho seeks leave for a second appeal against conviction. He says he should be granted a discharge without conviction due to possible immigration consequences of a conviction. He did not seek discharge in the District Court. His appeal to the High Court failed.
Background and lower Court decisions
Mr Ho previously lived with his partner Mr Drage. The relationship ended badly. Mr Drage went unannounced to pick up some items, accompanied by his friend Ms Zhou. A dispute arose over the ownership of the items. In the course of this, Mr Ho kicked and punched Mr Drage and punched Ms Zhou.
District Court
In the District Court he was convicted of common assault and male assaults female and sentenced to nine months’ supervision.[1] He did not seek discharge without conviction.
High Court
[1]New Zealand Police v Ho [2015] NZDC 20158.
Mr Ho appealed against that sentence to the High Court on the ground he should have been granted a discharge without conviction. Brown J dismissed the appeal for two reasons:[2]
(a)There was no satisfactory explanation why Mr Ho had not advanced an application for discharge without conviction in the District Court. The written instructions Mr Ho had given to his counsel showed this option was explained to him.[3]
(b)This was not a case where “the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence” as required by s 107 of the Sentencing Act 2002. The violent offending was deliberate and non-trivial, and an innocent bystander, Ms Zhou, was injured.[4] Mr Ho did not take steps to express remorse prior to sentencing.[5] There was no persuasive or precise evidence that a conviction would lead to Mr Ho being deported to Hong Kong or hinder his employment opportunities. The Judge noted that courts should be reluctant to usurp the role of immigration services.[6]
Mr Ho now applies to adduce the following further evidence:
(a)An affidavit from his counsel in the District Court, Mr Ross. Mr Ross confirms that after explaining the advantages and disadvantages, Mr Ho instructed him not to apply for a discharge without conviction because Mr Ho wanted to be sentenced immediately and applying for a discharge would have necessitated an adjournment.
(b)An affidavit from an immigration lawyer, Ms Cottrell, stating that it is unlikely Mr Ho will be granted the necessary character waiver for him to obtain a work, study or…
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 Ho v R
Sign in free to access the full text
Details
AGLC
Ho v R [2016] NZCA 229
Case
[2016] NZCA 229
Decision Date
CaseChat Overview and Summary
Ka Long (Jayden) Ho has applied to the Court of Appeal of New Zealand for leave to appeal against his conviction. The case revolves around a violent altercation between Mr Ho, his former partner Mr Drage, and Mr Drage's friend, Ms Zhou. Mr Ho was convicted of common assault and male assaults female in the District Court and sentenced to nine months' supervision. He appealed to the High Court seeking a discharge without conviction, which was dismissed. Mr Ho now seeks leave for a second appeal against the conviction, arguing the consequences of the conviction are disproportionate to the gravity of the offence.
The key legal issues before the Court of Appeal were whether the consequences of Mr Ho's conviction were out of all proportion to the gravity of the offence, and whether the Court should grant a discharge without conviction when no such application was made in the District Court. The Court considered whether the appeal involved a matter of general or public importance, or whether a miscarriage of justice may have occurred.
The Court of Appeal found that the consequences of the conviction were not disproportionate to the gravity of the offence. The Court noted that Mr Ho's offending was deliberate and non-trivial, and that he had not expressed remorse or taken steps towards restorative justice. The Court also found that it was not appropriate for the Court to usurp the role of immigration services in determining the consequences of the conviction. The Court was not persuaded that justice had miscarried.
The Court declined Mr Ho's application for leave to appeal. The appeal does not involve a matter of general or public importance, nor is there a miscarriage of justice. The Court found that the Judge's assessment of the gravity of the offending and the consequences of the conviction was not erroneous.