Hua v Department of Corrections
[2024] NZCA 59
•14 March 2024 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA98/2024 [2024] NZCA 59 |
| BETWEEN | YE (CATHAY) HUA |
| AND | DEPARTMENT OF CORRECTIONS |
| Hearing: | 28 February 2024 |
Court: | Collins, Goddard and Ellis JJ |
Counsel: | N P Chisnall KC and Y Mortimer-Wang for Appellant |
Judgment: | 14 March 2024 at 10.30 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Collins J)
Introduction
Ms Hua appeals a High Court judgment in which Gault J refused to issue a writ of habeas corpus to compel Ms Hua’s release from prison.[1]
[1]Hua v Department of Corrections [2024] NZHC 25 [High Court judgment].
The appeal relies upon s 344(3) of the Criminal Procedure Act 2011 and is based on the following five facts:
(a)Ms Hua was sentenced to a term of imprisonment;[2]
(b)the commencement of her prison sentence was deferred on humanitarian grounds pursuant to s 100 of the Sentencing Act 2002;[3]
(c)during the period of deferment Ms Hua was granted bail;[4]
(d)Ms Hua filed a notice of appeal against conviction and sentence before the deferment expired;[5] and
(e)the order committing Ms Hua to prison was not enforced.[6]
[2]R v Hua [2023] NZDC 28784 [District Court judgment] at [1].
[3]At [2].
[4]Bail was granted automatically as a consequence of the order made under s 100 of the Sentencing Act 2002: see s 100(3A).
[5]District Court judgment, above n 2, at [3].
[6]At [16]; and High Court judgment, above n 1, at [7].
Section 344 of the Criminal Procedure Act states:
344 Issue of committal order for detention of convicted person
(1)This section applies if a notice of an appeal or notice of an application for leave to appeal is filed by either party under this Part and the convicted person has been sentenced to imprisonment under the determination to which the appeal relates.
(2)The sentencing court must issue a committal order in the form of a warrant, writ, order, direction, or authority requiring the detention of the convicted person, despite the appeal.
(3)However, if the convicted person is released on bail before the committal order is enforced, the order is suspended until the appeal has been determined or abandoned.
Ms Hua unsuccessfully argued in the District Court and in the High Court that s 344(3) entitled her to be bailed as of right until her appeal in this Court is determined. The issue on appeal is whether Ms Hua’s interpretation of s 344(3) is correct. If she is right, then Ms Hua is currently being unlawfully detained and she is entitled to a writ of habeas corpus.
Background
We shall now expand upon the basic facts.[7] Following a trial by jury in the District Court, Ms Hua was convicted of 15 charges of money laundering. On 16 November 2023, she was sentenced by Judge D J Sharp to seven and a half years’ imprisonment. Judge Sharp granted an application by Ms Hua to defer the commencement of her sentence to 27 November 2023. That deferment was made on humanitarian grounds to enable Ms Hua to put in place arrangements for the care of her daughter and mother.
[7]This summary is based upon the facts as recited in the District and High Court. See High Court judgment, above n 1, at [3]–[9]; and District Court judgment, above n 2, at [1]–[4].
On 27 November 2023 Ms Hua filed a notice of appeal against conviction and sentence and an application to extend the period of deferment for a further 14 days. Judge Sharp deferred the commencement of Ms Hua’s sentence to 12 December 2023.
The conditions on which Ms Hua was granted bail, as a consequence of the deferral of commencement of her sentence, required her to surrender herself to authorities on 13 December 2023 when the deferment expired. She did not do so because an arrangement was reached between her counsel, Mr Chisnall KC and the police, whereby the police agreed not to arrest Ms Hua pending determination of whether the filing of an appeal meant that she was no longer required to surrender herself.
On 21 December 2023 Judge Sharp granted a further extension of the deferment order to 17 January 2024.[8] That extension was made in the context of Judge Sharp rejecting the argument that Ms Hua was entitled to be bailed as of right.[9] Nevertheless, the Judge extended the deferment order to 17 January 2024 so as to enable Ms Hua to pursue an application for a writ of habeas corpus.
[8]District Court judgment, above n 2, at [47].
[9]At [46].
Ms Hua surrendered herself to authorities on 17 January 2024 and commenced her sentence of imprisonment that day.
The application for a writ of habeas corpus was heard by Gault J on 19 January 2024 and dismissed by him on 26 January 2024.[10] Like Judge Sharp, Gault J did not accept the proposition that Ms Hua was entitled to be bailed as of right pursuant to s 344(3) of the Criminal Procedure Act.[11] The application for a writ of habeas corpus was therefore dismissed.
Relevant legislation
[10]High Court judgment, above n 1, at [40].
[11]At [38].
We have set out s 344 of the Criminal Procedure Act at [3].
New Zealand Bill of Rights Act 1990
Section 22 of the New Zealand Bill of Rights Act 1990 affirms the right to liberty and provides that “[e]veryone has the right not to be arbitrarily arrested or detained”.
Sentencing Act 2002
Pursuant to s 101(1) of the Sentencing Act the start date of a sentence of imprisonment “is the date on which the sentence is imposed”,[12] unless a deferral order is made pursuant to s 100 of the Sentencing Act. The relevant parts of s 100 state:
[12]Sentencing Act, s 101 refers to s 76 of the Parole Act 2002, which defines the start date of a sentence of imprisonment as the date on which the sentence is imposed.
100 Court may defer start date of sentence of imprisonment
(1)The court may defer the start date of a sentence of imprisonment for a specified period of up to 2 months on humanitarian grounds.
…
(3)The sentence of imprisonment starts on the date specified in section 78 of the Parole Act 2002.
(3A)The Bail Act 2000 provides that an offender whose sentence is deferred under this section must be granted bail.
(4)Despite subsection (1), no court may defer the start date of a sentence of imprisonment if—
(a)the sentence of imprisonment is imposed cumulatively on any other sentence of imprisonment; or
(b)the sentence of imprisonment is imposed in substitution for a sentence of imprisonment that has been quashed or set aside; or
(c)an order under this section has already been made in respect of the sentence; or
(d)the offender has already commenced serving the sentence or is detained under any other sentence or order.
…
It will be observed that s 100(3A) records that the grant of bail is mandatory after an order under s 100(1) has been made. Thus the threshold for bail under s 100(3A) is the “humanitarian grounds” threshold for deferral of the start date of a sentence in s 100(1).
Section 91(1) of the Sentencing Act governs the issue of a warrant of commitment for a sentence of imprisonment. That section provides:
91 Warrant of commitment for sentence of imprisonment
(1)If a court imposes a sentence of imprisonment, a warrant must be issued stating briefly the particulars of the offence and directing the detention of the offender in accordance with the sentence.
Bail Act 2000
Section 40 of the Bail Act 2000 states:
40 Bail on deferment of sentence
(1)This section applies if the start date of a sentence imposed on an offender is deferred under section 80W or 100 of the Sentencing Act 2002 and the offender is not liable to be detained under any other sentence or order.
(2)If this section applies, the court that defers the start date of the offender’s sentence must grant the offender bail.
(3)An offender who is granted bail under this section must be released on condition that the offender must,—
…
(b)if the sentence is deferred under section 100 of the Sentencing Act 2002, surrender himself or herself to the prison manager of the prison concerned at the expiry of the period of deferral specified by the court.
(4)The provisions of sections 30 to 39, and 41 to 44, as far as they are applicable and with all necessary modifications, apply as if the offender were a defendant who had been granted bail.
(5)If any decision is made by the District Court or the High Court under section 33(1) (as applied by subsection (4)) in respect of an offender, the provisions of sections 41 to 43, as far as they are applicable and with all necessary modifications, apply as if the offender were a defendant granted bail.
Section 40(2) requires bail to be granted once a deferment order under s 100 of the Sentencing Act is made. Section 40(3) provides for a mandatory condition of such bail: namely, surrender to the relevant prison authorities at the expiry of the period of deferral specified by the Court.
Section 40(4) of the Bail Act refers to a number of other sections in that Act. It is convenient to mention three of those provisions.
Section 35(1), (3), and (4) of the Bail Act provides:
35Defendant on bail may be arrested without warrant in certain circumstances
(1)Any constable may arrest without warrant a defendant who has been released on bail by a court or Registrar or Police employee if the constable believes on reasonable grounds that—
(a)the defendant has absconded or is about to abscond for the purpose of evading justice; or
(b)the defendant has contravened or failed to comply with any condition of bail.
…
(3)In any such case, the judicial officer, on being satisfied that the defendant had absconded or was about to abscond or has contravened or failed to comply with any condition of bail, must reconsider the question of bail.
(4)After a defendant has been arrested under subsection (1), the defendant cannot be bailed as of right and is bailable only under section 7(5).
Section 37(1) of the Bail Act authorises a court to issue a warrant for the arrest of a defendant who breaches bail conditions.
Section 38(c) provides that it is an offence for a defendant to fail “without reasonable excuse” to comply with any condition imposed under s 40(3) of the Bail Act.
Also relevant is s 14 of the Bail Act, which governs the granting of bail pending an appeal. That section provides:
14 Exercise of discretion when considering bail pending appeal
(1) This section applies if an appellant—
(a) is appealing his or her conviction or sentence, or both; and
(b) is—
(i) in custody; or
(ii)in a home detention residence subject to a sentence of home detention.
(1A)The court must not grant bail to the appellant unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so.
(2) The onus is on the appellant to show cause why bail should be granted.
(3)When considering the interests of justice under subsection (1A) the court may, instead of the considerations in section 8, take into account the following considerations:
(a) the apparent strength of the grounds of appeal:
(b)the length of the sentence that has been imposed on the appellant:
(c)the likely length of time that will pass before the appeal is heard:
(d)the personal circumstances of the appellant and the appellant’s immediate family:
(e) any other consideration that the court considers relevant.
Appellant’s submissions
The gravamen of the submissions advanced on behalf of Ms Hua is that because she was on bail before the deferral order expired, and because she filed a notice of appeal while on bail, s 344(3) of the Criminal Procedure Act displaced the consequences of s 40(3)(b) of the Bail Act. As a consequence, she became entitled to remain on bail until her appeal was determined, without needing to seek bail pending appeal under s 14 of the Bail Act.
Three grounds of appeal were advanced by Mr Chisnall.
First, the plain meaning of s 344(3) of the Criminal Procedure Act mandates the continuation of bail pending final determination of Ms Hua’s appeal. The Courts below erred by “reading down the clear language” of s 344(3) of the Criminal Procedure Act and by elevating the meaning of s 100 of the Sentencing Act and s 40(3)(b) of the Bail Act.
Second, it was submitted that, contrary to the approach taken by Gault J, the legislative history of s 344(3) does not weigh against the plain meaning interpretation advocated on behalf of Ms Hua.
Third, a rights-consistent approach leads to the conclusion that Ms Hua is entitled to be bailed as of right pursuant to s 344(3) of the Criminal Procedure Act.
Respondent’s submissions
Mr McMullan submitted that Ms Hua was not released on bail before the committal order was enforced because her release on bail came to an end before the committal order could be enforced due to the effect of s 40(3)(b) of the Bail Act. That section imposed an obligation on Ms Hua to surrender herself. On this basis, s 344(3) was not engaged.
It was submitted that the deferral provisions of the Sentencing Act are coherent. It is abundantly clear that Parliament did not intend a deferment under s 100 of the Sentencing Act to operate beyond the two-month limit set by s 100 by simply filing an appeal and calling in aid s 344(3) of the Criminal Procedure Act.
Allowing bail to continue under s 344(3) is problematic because if s 344(3) prevails in the way advocated by Ms Hua, the courts would not be able to apply the controls that usually govern the grant of bail and the continuation of bail under the Bail Act.
The rights-based approach argued for by Ms Hua is not relevant because Ms Hua’s detention followed her conviction and sentence and was therefore not arbitrary. She has never been bailable as of right under the Bail Act.
Analysis
It is axiomatic that we are required to ascertain the meaning of s 344(3) “from its text and in the light of its purpose and its context”.[13] The literal meaning of words in the statute does not automatically trump the purpose and context of the legislation in question.[14] As stated by the Supreme Court:[15]
Reaching a meaning different to the plain or ordinary meaning is a conventional outcome of statutory interpretation, where that is necessary to correct errors in statutory expression and to achieve clear legislative purpose. …
Text
[13]Legislation Act 2019, s 10.
[14]See for example Agnew v Pardington [2006] 2 NZLR 520 (CA) at [32] and [41]; Fuati v Jin [2023] NZCA 165 at [81]; and Kiwi v Commissioner of Police [2023] NZCA 106, [2023] 2 NZLR 776 at [106]. See also Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [88]–[94].
[15]Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551 at [61] (footnote omitted).
The language of s 344(3) can be interpreted in a way to mean that Ms Hua is entitled to bail as of right, pending the determination of her appeal. That literal meaning of s 344(3) however flouts both the purpose and contextual meaning of the section.
Purpose
The critical requirement of s 344(3) is that it applies to an appellant who has been granted bail before a committal order is enforced. The plain purpose is to allow that appellant to remain on bail where s 344(2) of the Criminal Procedure Act would otherwise require their detention. Where an appellant’s bail comes to an end of its own accord, as occurs for example when a deferment of sentence expires or bail is revoked through, for example, ss 35 or 37 of the Bail Act, then, s 344(3) must cease to apply. It is in our view implicit in s 344(3) that the suspension of the warrant continues only for so long as bail continues. It would make no sense for the suspension to continue in circumstances where the grant of bail came to an end because of the terms of the original grant, or for example, because of a breach of conditions of bail which resulted in bail being revoked.
Ms Hua’s bail came to an end first, on 12 December 2023 when the deferment granted on 27 November 2023 expired and again, on 17 January 2024 when the deferment granted on 21 December 2023 also expired.
Thus, the plain purpose of s 344(3) is to protect appellants who are on bail, pending the determination of the appeals for so long as their bail remains in force. Once bail lapses or is revoked, then the purpose of s 344(3) is exhausted and it ceases to be engaged.
Context
Our interpretation of s 344(3) is reinforced by an examination of the context of the section. Context can be examined through:
(a)the broader legislative scheme that s 344(3) forms part of; and
(b)the legislative history of s 344(3).
Legislative scheme
Section 344(3) must not be interpreted in a vacuum. The wider legislative scheme is integral to understanding the meaning of the section. The wider legislative scheme includes s 100 of the Sentencing Act and s 40 of the Bail Act. We make four points about those provisions.
First, s 100(1) of the Sentencing Act provides for the deferment of a sentence of imprisonment on humanitarian grounds for a period of up two months. Parliament intended a person sentenced to a term of imprisonment could only defer that sentence for a limited period of time. The time limit in s 100(1) would be rendered otiose if the effect of filing an appeal was to extend bail automatically until such time as the appeal was determined or abandoned.
Second, s 40(3)(b) of the Bail Act requires a person whose sentence has been deferred on humanitarian grounds to surrender themselves to a prison manager at the expiration of the period of deferral. That requirement would also be rendered redundant if, by filing an appeal, bail continued as of right until the determination or abandonment of the appeal.
Third, s 40(4) of the Bail Act expressly provides for the bail granted to give effect to a s 100 deferral to be subject to the ability of the court to impose conditions on that bail, and to the provisions governing arrest for breach of such conditions and review of the grant of bail. It also expressly provides for such bail to be subject to the appeal rights in the Bail Act. Mr Chisnall accepted that conditions could be imposed, and that if those conditions were breached bail could be revoked and the person would commence serving their sentence despite s 344(3). He also accepted that if the Crown appealed against a grant of bail under s 40, and that appeal was successful, the person would be required to surrender to prison authorities and begin serving their sentence. We agree. Equally, where bail terminates as a result of the condition prescribed in s 40(3)(b) the suspension must come to an end, as it would if the bail terminated for any other reason.
Fourth, Parliament has, in s 14 of the Bail Act, put in place a regime for bail pending an appeal. That regime places the onus on the appellant to establish why bail should be granted and requires consideration of the factors in s 8 of the Bail Act or the factors set out in s 14(3) of the Bail Act.
It would be very peculiar if the requirements of s 14 could be circumvented if a defendant, who is granted a deferral of sentence on humanitarian grounds, is also entitled to bail as of right upon the expiration of the deferral simply by reason of having filed a notice of appeal. The more realistic conclusion, reading the legislation as a coherent whole, is that the deferral of Ms Hua’s sentence has lapsed and she can only be granted bail pending the determination of her appeal by making an application under s 14 of the Bail Act. In our view, the opportunity afforded to Ms Hua to apply for bail under s 14 underscores the fallacy that she is entitled to bail as of right pursuant to s 344(3) of the Criminal Procedure Act.
Legislative history
Although Gault J concluded that the history of s 344 weighed against the interpretation of s 344(3) advocated on behalf of Ms Hua, we have not found it especially instructive.[16] It neither particularly detracts from, nor supports, her argument and we do not propose to traverse it here.
[16]High Court judgment, above n 1, at [36].
But the legislative history of s 100 is of a little more assistance. Its predecessor was s 78 of the Criminal Justice Act 1985. Section 78 made no reference to the grant of bail where a deferral order was made, and case law up until 2004 makes it clear that bail was not then a necessary adjunct to deferral of the commencement of a sentence. Offenders whose sentence start dates were deferred under s 78 (and the earlier iterations of s 100) could be released at large for the period of deferment, or made subject to orders under mental health legislation.[17] Indeed, it seems the District Court had no power to grant bail upon deferment under earlier iterations of s 100, which is what led to the insertion in 2004 of what is now s 100(3A) and s 40 of the Bail Act.[18]
[17]See for example R v Redmile [1987] 1 NZLR 157 (CA) (offender made subject to mental health orders); and Ussher v Police HC Christchurch A12/02, 27 February 2002 and R v McEwen CA135/03, 19 June 2003 (offender in each appeal released at large).
[18]Section 40 was s 39A of the Bail Act when it was inserted into the Act in 2004, but became s 40 in 2013. The explanatory note to the Parole (Extended Supervision) and Sentencing Amendment Bill makes it clear that the amendments were made because there was no existing power to grant bail. The High Court could, and did, grant bail on deferment under its inherent jurisdiction, however.
For present purposes, the key point is that prior to the 2004 amendment an offender released at large who filed a conviction appeal during the period of deferment could not have made the argument now advanced by Ms Hua. A separate application for bail would have been required if the offender wished to avoid incarceration at the end of the deferment period, notwithstanding their pending appeal. It seems most improbable that Parliament would have intended that an offender released at large whose sentence start date had been deferred under earlier versions of s 100 should be disadvantaged over an offender who had been remanded on bail when granted a deferral. Yet, applying Ms Hua’s analysis, the offender who had been released on bail would have the benefit of s 344(3) and would not have had to make a fresh bail application pending their conviction appeal, whereas the offender released at large would not.
We do not think such a perverse outcome was contemplated, and we do not think it was the purpose of the 2004 amendment to enable those granted bail under s 100 to obtain some new advantage under s 344(3). As already noted, s 100(3A) of the Sentencing Act and s 40 of the Bail Act were inserted simply to empower a court to grant bail on deferment, when there was no such power to do so before 2004.
Section 22 New Zealand Bill of Rights Act
Section 22 of the New Zealand Bill of Rights Act is not engaged. Ms Hua was imprisoned following her conviction and sentence. The deferral of her sentence on humanitarian grounds came to an end on 17 January 2024. There is nothing arbitrary about her now being detained pursuant to the sentence that was lawfully imposed, particularly as she has the option of seeking bail pending the determination of her appeal pursuant to s 14 of the Bail Act.
Result
The appeal is dismissed.
Solicitors:
Zhang Law Ltd, Auckland for Appellant
Crown Solicitor, Auckland for Respondent
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