MA v Auckland Council - [2017] NZHC 1274

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-115

CRI-2017-404-116 [2017] NZHC 1274

BETWEEN
QIANLI MA (ALSO KNOWN AS

CHARLIE MA) First Appellant

YAO LU (ALSO KNOWN AS ELAINE LU)

Second Appellant

AND

AUCKLAND COUNCIL Respondent

Hearing: 6 June 2017

Counsel:

M Keall for Appellants
V Tamatea for Respondent

Judgment:

12 June 2017

JUDGMENT OF BREWER J

This judgment was delivered by me on 12 June 2017 at 3:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Duncan King (Auckland) for Appellants
Auckland Council (Auckland) for Respondent

MA & LU v AUCKLAND COUNCIL [2017] NZHC 1274 [12 June 2017]

Introduction

[1] The appellants are licensed real estate agents. Every year they must apply for renewal of their licences if they wish to continue to work as real estate agents.1 A criterion for renewal of their licences is that they satisfy the Registrar2 that they are (individually) fit and proper persons to hold a licence.3

[2] In 2016, the appellants each pleaded guilty to three charges of carrying out building work without the required building consent.4 They attempted to persuade Judge M-E Sharp that they should be discharged without conviction. They did not succeed.5 They were convicted and fined $7,500 each.6 They now appeal the Judge’s refusal to discharge them without conviction. Their fear is that if their convictions stand then the Registrar (to whom they would have to report their convictions) might not renew their licences because he might not be satisfied they are fit and proper persons.

[3] I will allow the appeal if I am satisfied that Judge Sharp made an error and should have discharged the appellants without conviction.7

How does an offender get discharged without conviction?

[4] The law recognises that sometimes the consequences for an offender of being convicted of their offending will be so harsh that justice is better served by not entering a conviction. The test is set out in s 107 of the Sentencing Act 2002:

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[5] This test raises a high threshold between an offender and a discharge without conviction. It is not enough to satisfy the Judge that the consequences of a

1      Real Estate Agents Act 2008, s 52.
2      The Registrar of the register of licences appointed by the Real Estate Agents Authority pursuant to s 12 of the Real Estate Agents Act 2008.
3      Real Estate Agents Act 2008, s 36(1)(c).
4 Building Act 2004, s 40(2).
5      Auckland Council v Lu & Ma [2017] NZDC 5491.
6      The Judge must have considered that one charge each could be representative of the offending.
On the other two charges each appellant was discharged without conviction.
7      Criminal Procedure Act 2011, s 250.

conviction would be disproportionate to the gravity of the offence. The Judge must be satisfied that the…

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.

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Details

Case: [2017] NZHC 1274
Decision Date: 12 June 2017

CaseChat Overview and Summary

The case of MA v Auckland Council involves licensed real estate agents, Qianli Ma and Yao Lu, who were convicted of carrying out building work without the required building consent. The primary concern of the appellants is that their convictions might prevent the Registrar from renewing their real estate agent licenses, as they must demonstrate that they are fit and proper persons to hold such licenses. The appellants appealed the Judge's refusal to discharge them without conviction, arguing that the consequences of their convictions would be disproportionate to the gravity of the offence. The central legal issue was whether the consequences of a conviction would be out of all proportion to the gravity of the offence, as required by section 107 of the Sentencing Act 2002. The Court conducted a three-step analysis to determine this, assessing the gravity of the offending, the consequences of a conviction, and whether those consequences were out of all proportion to the gravity of the offending. The Court found that the gravity of the offending was moderate, considering factors such as the extent of the unauthorised work, the commercial motive, and the potential for harm. The consequences of a conviction, which included the risk of not having their licenses renewed and potential delays in citizenship applications, were deemed not to be out of all proportion to the gravity of the offence. The Court emphasised that professional matters, such as the decision to renew a license, are typically left to the appropriate regulatory body. Therefore, the appeals were dismissed, and the convictions were upheld.

Orders