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:  [email protected]

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 following a plea of guilty unless there is compelling evidence of a miscarriage of justice.[1]   I accept that submission.

[1] Te Hira v R [2011] NZCA 599; and R v Ripia [1985] 1 NZLR 122.

[7]      In this case the Crown makes the point that the Appellant does not contend that he did not understand the plea he was making.  In fact, the Crown submits that handwritten amendments to the summary of facts indicate that, at the material time, the Appellant entered his guilty plea freely.

[8]      On the face of the summary it is apparent that there was such an amendment, to the effect that the watch in question was valued at $499.  Prior to that amendment the summary put the value at $687.70.   I note also that the same amendment was made  to  the  information  and  on  the  face  of  the  information  the  amendment is recorded as having been amended “By Consent 15/11/12”, which is the day the plea was  entered.     Both  the  information  and  summary  originally  referred  to s 223(c) Crimes Act 1961.  Section 223(c) sets out the maximum penalty for theft of goods  exceeding  $500.    The  information  and  summary  were  amended  to  refer instead to s 223(d) which is concerned with theft of property to a value of less than

$500, with a lesser maximum penalty.  In short, the effect of the amendments was to reduce the seriousness of the charge.

[9]      Crown counsel submits that these amendments are evidence of negotiation between the prosecutor and counsel for the Appellant at the time the plea was entered and  are  consistent  with  that  plea  having  been  freely  entered.     I  accept  that submission.

[10]     The Crown also refers to evidence that it says the Prosecution would have relied on at any defended hearing.   This includes a signed brief of evidence from

Mr Vladimir Bacarji, a loss prevention officer employed by DFS Galleria.   In his

brief of evidence, Mr Bacarji describes how the Appellant came to his attention, that he asked one of his staff members to wait at the front door and stop the Appellant from leaving, and that the Appellant went past several cashier desks as he made his way to the front door of the shop.  Attached to the brief are images of the Appellant taken from CCTV cameras, including one in which the Appellant appears to be putting the watch in his pocket and another of his being approached by the security guard.  Also attached is a floor plan of the shop and Mr Bacarji  has marked in red the route that the Appellant took through the shop on his way to the front door.  That plan shows the Appellant passed several cashier desks as he went towards the exit.

[11]     The Appellant’s case it is that he appreciates now it was wrong to seek to leave the shop without paying for the watch and that doing so would constitute theft. However, the Appellant’s   case is that at the time his mind was so clouded by depression that he did not appreciate that he was committing an offence.

[12]     On the evidence before me I am not satisfied that any miscarriage of justice has resulted from the conviction and, accordingly, the Appellant has not crossed the threshold  where the Court  may entertain  an  appeal  against  conviction.    I place particular reliance on the amendments that were made to the information and the summary, to which I have referred.

[13]     In so far as concerns the appeal against sentence, the fine imposed is not manifestly excessive and I do not propose to interfere with it.

[14]     To conclude, I decline to reinstate this appeal.  To do so would be pointless as

I am satisfied it has no prospect of success.

..................................................................

M Peters J