Lim v Police - [2013] NZHC 924

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-474 [2013] NZHC 924

BETWEEN KWONG MING LIM Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 29 April 2013

Appearances: Appellant in person
W N Fotherby for Respondent

Judgment: 30 April 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 30 April 2013 at 3.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors:
Meredith Connell, Crown Solicitor, Auckland: william.fotherby@meredithconnell.co.nz

Copy for:
K M Lim, Flat 5, 76 Portage Road, New Lynn, Auckland

LIM V POLICE HC AK CRI-2012-404-474 [30 April 2013]

[1] On 15 November 2012 the Appellant was convicted of theft in the District Court at Auckland. The allegation against the Appellant was that he had stolen a watch from DFS Galleria in Auckland on 13 April 2012. The Appellant pleaded guilty to the charge and he was fined $275 and ordered to pay Court costs of
$132.89.

[2] On 21 December 2012 the Appellant filed a notice of appeal against conviction and sentence. The appeal was filed several days out of time. The Crown submits that the appeal is without merit and that I should not grant leave to the Appellant to pursue his appeal. I grant leave regardless, as the Crown has not been prejudiced by the lateness.

[3] It is not necessary for me to address the history of the matter, other than to say that Woolford J dismissed the appeal for want of prosecution on 8 March 2013. Following an appearance on 15 March 2013 Woolford J allowed the Appellant an opportunity to make submissions as to why his appeal should be reinstated. The Judge made certain directions and the matter was to be called before him on
12 April 2013. The Appellant did not comply with Woolford J’s directions. Regardless on 12 April 2013 Woolford J set down the application for reinstatement for hearing on 29 April 2013.

[4] The Appellant appeared on 29 April 2013 and in support of his application for reinstatement has made submissions going to the merits of his appeal. Essentially the Appellant submits that, having entered a plea of not guilty, he changed his plea “to get the matter over with” and that he did so with the tacit encouragement of counsel. As to the substance of the offending the Appellant says that he did not steal the watch and that he had been intending to pay for it. His account is that there was no cashier available at the time, and that he was suffering from depression and not thinking clearly at the material time.

[5] The Appellant produced evidence of a consultation with his general medical practitioner on 2 July 2012 as evidence of his depression but that consultation took

place some 10 weeks or so after the incident occurred. Given that it is of little relevance.

[6] The Crown opposes reinstatement of the appeal. Crown counsel submits that the Court will not entertain an appeal against conviction entered…

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 Lim v Police

Details

AGLC: Lim v Police [2013] NZHC 924
Case: [2013] NZHC 924
Decision Date: 30 April 2013

CaseChat Overview and Summary

Kwong Ming Lim appealed against his conviction and sentence in the High Court of New Zealand, Auckland Registry, following a conviction in the District Court for theft of a watch from DFS Galleria in Auckland. Lim pleaded guilty to the charge and was fined $275, in addition to being ordered to pay court costs of $132.89. The appeal was filed out of time, but leave was granted as the Crown was not prejudiced. The key issue for the court was whether there was a miscarriage of justice that would allow the appeal to proceed. The Appellant argued that he had changed his plea to guilty to expedite the matter, and that he did not steal the watch but intended to pay for it. The Crown opposed the reinstatement of the appeal, arguing that an appeal against a conviction entered following a plea of guilty would only be entertained if there was compelling evidence of a miscarriage of justice.

The court found that the Appellant did not contest that he understood the plea he was making and that there was evidence of negotiation between the prosecutor and the Appellant’s counsel at the time the plea was entered. The court was satisfied that the plea was freely entered and that there was no miscarriage of justice. The court also noted that the fine imposed was not manifestly excessive and declined to interfere with it. Therefore, the appeal was dismissed, and the conviction and sentence stood.

Orders