Lang v Police HC Rotorua CRI-2010-463-46

[2011] NZHC 185

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2010-463-46

BETWEEN  SONNY CRUSMON LANG Applicant

ANDNEW ZEALAND POLICE Respondent

Hearing:         3 March 2011

Counsel:         Applicant in person

N Tahana for Respondent

Judgment:      7 March 2011

JUDGMENT OF BREWER J

This judgment was delivered by me on 7 March 2011 at 3:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS

Gordon Pilditch (Rotorua) for Respondent

(copy to Applicant in person)

LANG V POLICE HC ROT CRI-2010-463-46 7 March 2011

[1]      Mr Lang applies for leave to appeal to the Court of Appeal against a decision of Lang J issued on 13 December 2010.[1]

[2]      Mr Lang was convicted in the District Court at Rotorua on 6 May 2010 by Judge CJ McGuire on one charge of seeking donations by false pretence contrary to s 15 of the Summary Offences Act 1981.  The nub of the allegation against him was that he was going from door to door ostensibly soliciting donations for “Victim Relief” when he himself was the donee.   He was sentenced by Judge McGuire to

40 hours community work.[2]   He appealed his conviction and sentence.  Lang J held:

[1] Lang v Police HC Rotorua CRI-2010-463-46, 13 December 2010.

[2] Police v Lang DC Rotorua CRI-2009-063-5144, 6 May 2010.

[9]     There was no dispute that Mr Lang had obtained the sum of money referred to in the charge through soliciting donations from members of the public.   There was no dispute, either, that he had obtained that sum by representing that the donations were being collected on behalf of a charitable organisation.   The letter and the card both suggested that that charitable organisation existed to alleviate “victim relief from the suffering of poverty”. They also gave the impression that the victims in question were persons other than Mr Lang.

[10]   That  was  not  the  true  state  of  affairs,  because  Mr Lang candidly accepts that he was collecting the donations to meet his own living costs. The letter and the card contained no hint, however, that Mr Lang would retain the donations for his own use and benefit. In effect, Mr Lang was operating as a beggar without disclosing that fact to those whom he approached.

[11]   This leads me to agree with the Judge’s conclusion.   I agree that it may not be against the law for a person to collect donations for himself or herself.  It was essential, however, for Mr Lang to make that fact known to those with whom he dealt.  Those persons were entitled to know the basis on which he was seeking donations.   Like the Judge, I conclude that he deliberately pretended to be collecting donations for parties other than himself.   That pretence was demonstrably false, because Mr Lang was collecting the money to meet his own living costs.   In making the representation Mr Lang must have known that he was misleading the persons with whom he was dealing.   He therefore acted dishonestly in obtaining donations from them.

[12]   It follows that the prosecution established the essential ingredients to prove the charge. The appeal against conviction is accordingly dismissed.

[3]      His Honour also dismissed the appeal against sentence, noting that this was

Mr Lang’s second conviction for similar offending.

[4]      Section  144(2)  of  the  Summary  Proceedings  Act  1957   governs  this application for leave to appeal:

A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[5]      Therefore, my inquiry is restricted to a consideration of whether a question of law exists which is of sufficient significance that it ought to be submitted to the Court of Appeal for decision.   Section 144(2) does not confer a right of general appeal.

[6]      The residual discretion extends to a right to refuse to grant special leave even though there is a question of law involved and that question is one of general or public importance but it does not give a discretion to grant leave if no question of law arises in the appeal.[3]

[3] R v Slater [1997] 1 NZLR 211 (CA).

[7]      Mr Lang’s notice of application sets out the basis of his appeal as follows:

QUESTION OF LAW:

New Zealand Bill of Rights Act 1990: Sec’s 3; 5; 22; 27

And:        Social Security Act 1964; Sec 58(1)(a)(b)(c) And:       Crown Ref: SOC 329/277

And:        Crown Ref: SOL 115/1328

UPON THE GROUNDS

1             Constituting a civil suit

2             Which include Founding Principle of Charitable Foundation

[8]      In his oral submissions to me Mr Lang seemed to be saying that he had been wrongly deprived of a benefit by the State and he was therefore entitled to approach members of the public for donations.  They had the right to refuse to donate (and I accept, as he said, that many did).  Whether or not he identified himself as the donee

was, he said, “irrelevant to the circumstances”.   He also disputed that prospective

donors would not have been aware that he was the donee because his name was on one of the documents he would take with him.  Mr Lang handed up supplementary documents  which  I  cannot  make  sense  of  and  which  Mr  Lang  was  unable  to elucidate.  I annex the documents headed 4A, 4B and 4C to this judgment.

[9]      Section 15 of the Summary Offences Act 1981 provides:

Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $1,000 who solicits, gathers, or collects alms, subscriptions, or contributions by means of any false pretence.

[10]     It  is  possible,  in  theory,  to  construct  a  question  of  law  relating  to  the definition of “false pretence”.   However, I cannot construct one in relation to the circumstances of this case.

[11]     Mr Lang’s conviction followed from a finding of fact by the District Court Judge that he did not identify himself to prospective donors as the recipient of any donation.  The District Court Judge found that this was done with dishonest intent. Lang J simply agreed that it was proper for the District Court Judge to reach those conclusions.

[12]     Accordingly, leave to appeal to the Court of Appeal is denied.

Brewer J