Singh v Commissioner of Police
[2015] NZHC 94
•5 February 2015
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CIV-2014-470-106 [2015] NZHC 94
BETWEEN SUKHDEV SINGH
Appellant
AND
COMMISSIONER OF POLICE Respondent
Hearing: 24 October 2014 Appearances:
J H Wiles for Appellant
R W Jenson for RespondentJudgment:
5 February 2015
JUDGMENT OF KEANE J
This judgment was delivered by me on 5 February 2015 at 4.30 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Jackson Reeves, Tauranga
Crown Solicitor, Tauranga
SINGH v COMMISSIONER OF POLICE [2015] NZHC 94 [5 February 2015]
[1] On 25 June 2014 the Alcohol Regulatory and Licensing Authority at Tauranga, chaired by Judge Weir, declined to renew Sukhdev Singh’s manager’s certificate, under s 126 of the Sale of Liquor Act 1989, which then still applied, holding that he was unable to establish that he was of satisfactory character and reputation.1 He appeals that decision as wrong in fact and law.
[2] In issue, primarily, is whether in declining to renew his then certificate, issued on 18 April 2012 by the Auckland District Licensing Agency – North, the Authority gave undue weight to its earlier decisions concerning off-licences held by the Samra group of companies in and near Tauranga, of which he was originally a shareholder and director, most especially its first decision on 10 March 2008, in which it declined to renew his original manager’s certificate.
[3] He contends that the Authority’s decisions relating to the Samra group are irrelevant. He ceased to be a director or a shareholder after March 2008. Since then the directors and shareholders have been his wife, Paramjit Kaur, and his two sisters in law, Karamjit Kaur and Kamaldeep Kaur. The Authority should instead, he contends, have accepted that on 18 April 2012 he had been found fit to hold a manager’s certificate and that he was entitled to have it renewed.
[4] Two other issues arise on this appeal. One is whether, in holding him unfit to hold a manager’s certificate, the Authority was wrong to take into account Police evidence alleging that he had made a false insurance claim in April 2013. The other is whether in that, and in other ways at the hearing itself, the Authority denied him natural justice.
Adverse 2008 certificate decision
[5] In November 2005 Samra Enterprises Limited, of which he was then a shareholder and director, purchased a Tauranga off-licence called McCallums. The off-licence fell due for renewal on 13 April 2007. By then his manager’s certificate,
which had earlier first fallen due for renewal on 24 November 2006, had been
1 Singh [2014] NZARLA 405; Sale and Supply of Alcohol Act 2012, s 406.
renewed for one year to 24 November 2007. The police opposed any further renewal.
[6] In December 2005 he had sold liquor to a minor during a controlled purchase, an offence for which he was convicted and fined $250 in the District Court, Tauranga. In May 2007, during another controlled purchase, he had sold liquor to a
17 year old boy, who had been refused alcohol at five out of eight other locations that night. On 30 August 2007 he had sold liquor to a 16 year old girl, who had falsified her date of birth on her temporary driver’s licence. In that instance, it appears, her mother had reported the sale afterwards.
[7] In its decision, dated 10 March 2008, the Authority, chaired by Judge Unwin, held as to the May 2007 controlled purchase that the boy was obviously younger than he said he was; and that it was also germane that, when visited soon after by the police, Sukhdev Singh had claimed that he had made a mistake and that it would not happen again.
[8] The Authority was equally concerned that, when on 30 August 2007 the 16 year old girl had shown him her altered temporary driver’s licence, he had at first been sceptical. He had asked her to have an adult verify her age. He had then suggested she ask an adult parked outside to purchase for her. Then, despite his clear misgivings, he had sold liquor to her directly.
[9] At the hearing before the Authority, he had contended that the girl was ‘a manipulative and compulsive liar’, but the Authority found that she ‘survived her time in the witness box with her integrity intact’. It went on to say:
The same could not be said for Mr Singh. We did not believe his assertion that T had stated that she knew the person sitting in the car behind the shop. Nor do we believe his statement that it was T’s idea that she go outside.
Mr Singh was only shown one document with a false date of birth. Clearly he was suspicious. He knew that the document was not an evidence of age document and yet he did not refuse the sale. In this case T looked her age and had made no attempt to look older than she was. She relied on the altered temporary driver’s licence. We did not think that the alterations were that obvious but (with the benefit of hindsight), there were a number of other clues to alert a conscientious manager.
Having suggested that T get help from the person in the carpark, it made no sense to make the sale when her attempt failed. Although Mr Singh took a long time before he agreed to make the sale we still thought he took the easy way out. Had he been fully aware of the object of the Act and the provisions of evidence of age documents, all he had to do was refuse the sale.
[10] The Authority declined to renew his general manager’s certificate. It held that ‘Mr Singh is quite unsuitable to be the holder of a general manager’s certificate’; and it added this:
Under the Mr Singh’s management the premises have acquired a reputation of being an easy touch to get liquor if one is under age. Furthermore, Mr Singh seemed to have little grasp of the responsibilities that go with managing licensed premises, and no understanding of the Act’s objective. We regret to say that we found him a less than credible witness. He appears to have lost the support of the company’s other directors.
[11] The Authority only renewed the off-licence because one of the other shareholders and directors, his sister in law, Kamaldeep Kaur, gave evidence that they did not condone his conduct, that he was no longer actively engaged in the business, and that they had since required that persons, who appeared to be under 25, to produce photo identification.
Three later decisions
[12] In its decision under appeal the Authority also took into account three later decisions relating to the Samra group in two of which it had referred to him, in one instance adversely.
First Cherrywood decision – 21 December 2009
[13] On 21 December 2009 the Authority suspended for two days the temporary authority under which Divjot Samra Limited, a second company in the Samra group, was operating another Tauranga off-licence, Cherrywood Liquor. It suspended for three weeks the manager’s certificate of Karamjit Kaur. Her husband, Jaswinder Singh, had sold liquor to a minor while she was on duty but while she was absent.
[14] There was a related application by Jaswinder Singh for a general manager’s
certificate, which the Authority adjourned for six months to get further reports about
him. Jaswinder Singh had appeared in the District Court for selling to a minor and been diverted. He must therefore, the Authority accepted, have admitted the offence. Diversion, the Authority accepted also, entitled him to a second chance. It said this:
It has been our normal guideline that because the sale of liquor to minors may well result in potential liquor abuse issues, there should be a period of time where people are able to show … that they have not re-offended, and that such behaviour or misconduct could be described as isolated. In other words the lessons from the experience have been learned.
In that instance, the Authority said, 12 months was appropriate because no conviction had been entered.
[15] The Authority declined to take into account that Sukhdev Singh was the brother in law of the duty manager, Karamjit Kaur. It said this:
Mr Singh, who is Mrs Kaur’s brother in law, was effectively removed from the company as a director. It is the police view that because Mrs Kaur was and still remains a director of that company that somehow the previous incident should impact on the sanction to be imposed against the respondent company, if not herself.
While we accept that this form of association may have an impact, it is our view that the circumstances in this case are a little different. While it is appropriate to lift the corporate veil, the issues that have been raised are more likely to affect the exercise of any discretion rather than the nature of the sanction to be imposed.
Second Cherrywood decision – 13 April 2010
[16] On 13 April 2010, in a second decision relating to the Cherrywood off-licence the Authority, chaired by Judge Hole, suspended the manager’s certificate of Navneet Singh for 14 days. The off-licence had been open during the suspension period imposed on 21 December 2009 and Karamjit Kaur gave evidence that she had misunderstood the terms of suspension.
[17] The Authority accepted that she did not have a written decision and could not be satisfied that there had been a deliberate breach. But it considered that there had been inept management and systemic failure. It was also concerned that Navneet Singh was young and inexperienced and needed to work with other duty managers.
Paeroa decision – 18 March 2010
[18] The final decision to which the Authority had regard was one it gave on 18
March 2010 declining an application by a further company in the group, NZ Samra
Limited, for an off-licence for a retail liquor store in Paeroa.
[19] At this hearing Kamaldeep Kaur said that her husband, Jasvir Singh, was involved and that Sukhdev Singh had ceased to be a director of the company and had nothing to do with the conduct of any of the group’s three off-licences. His interests lay elsewhere. For the preceding two years she had been responsible for McCallum’s, the outlet which he had managed until March 2008.
[20] The Authority, chaired by Judge Hole, was unconvinced. It held that the application was ‘ill-conceived and opportunistic’ and expressed concern about the conduct of the group’s existing off-licences. It also held that Sukhdev Singh was
‘the driving force behind the application’. It said:
He signed the lease and is recorded as the contact person on the application. He also drove Mrs Kaur and counsel to the hearing from Tauranga. The full extent of his involvement was not however, made clear. It seemed to us that there was a lack of candour by the applicant and its director in this respect.
[21] The Authority clearly saw his part in the application as fatal in itself. It set out from its 2008 decision its comments about him, which I have set out in paragraph [10]. It made it clear that it adhered to that assessment of his character and reputation.
New manager’s certificate
[22] At the hearing, and in its decision, the Authority was no less concerned that he had obtained from the Auckland District Licensing Agency – North on 12 April
2012 the manager’s certificate he wished to renew.
[23] In that application, dated 14 March 2012, which was signed by his agent Jackie Dahlin of Liquor Concepts Limited, he explained that he required a certificate in order to be a part time manager of Norwest Liquor, Kumeu; a fact confirmed by
Gagan Singh, a director of Norwest Investments Limited, who said that he had worked for that company for some time:
… from time to time Sukhdev will be working at Norwest Liquor when required to. Sukhdev has his LCQ certificate and has been working on and off at this premises for quite sometime. His is well aware of the rules and circumstances that come with holding a GM certificate and I am happy to have Sukhdev working for us as a manager on site.
[24] To establish his competence he relied on a certificate confirming that he had gained a certificate, dated 19 August 2009, from the Hospitality Standards Institute of New Zealand confirming that he had completed two NZQA units, one relating to the Sale of Liquor Act 1989 as it related to licensed premises and the other as it related to duty managers.
[25] He did not answer the question ‘has the applicant been convicted of any offence. If yes – what are the details of each offence?’ However he had in his authority to Ms Dahlin disclosed that he had two convictions; one in 2005 for sale to a minor for which he was fined $150, and a second in 2006 resulting in the shop being closed for four days.
[26] He answered ‘yes’ to the question ‘has the applicant had any experience, in particular recent experience, in managing any premises or conveyance in respect of which a licence was in force?’ In answer to the further question, ‘if yes – what are the details and dates of that experience?’ he stated ‘working in own retail store Tauranga 2005 – 2010’.
[27] On 23 March 2012 this application was sent to the police and the local licensing agency inspector. On 27 March 2012, in an email to that agency, a Kumeu police officer responded, ‘Checks on this person reveal that due to his previous non compliance history, police object to his application being accepted’. In a second, dated 12 April 2012, however, another officer told Don Sara, the agency officer responsible for assessing the application:
Inquiries completed.
The decision to object to the application has been reviewed in the light of the fact that the conviction was in 2005. The conviction is of concern but at the
time the applicant was the holder of a manager’s certificate and I understand that the matter was dealt with on that basis. In the past an isolated lapse resulting in one conviction has not disqualified a person from holding a manager’s certificate.
Therefore the police have no objection to this application.
[28] On 12 April 2014, after interviewing Sukhdev Singh, Mr Sara recommended that the Agency grant his application. He was employed by Norwest Liquor, Kumeu and, if granted a certificate, was to act as duty manager as and when required; and, as to his ‘experience’ Mr Sara said:
The applicant has obtained the Licence Controller Qualification. A copy of the certificate is attached to the file.
In an interview the applicant displayed a good knowledge of his legal responsibilities and would seem suitable to be granted a General Manager’s Certificate.
The applicant has declared no convictions on his application form. The police have reported on the application with no opposition.
[29] On 18 April 2012 the manager of Northern Licensing and Compliance, Rosemary Hagg, confirmed that it had resolved to grant his application as from that date because:
Reports from police and an inspector appointed under the Act do not oppose the issue of a certificate. Based on the information provided, the application may be approved.
[30] The manager’s certificate granted that day extended for one year or until the date on which his renewal application was considered as long as that application was made before the one year term expired.
Decision under appeal
[31] In declining to renew Sukhdev Singh’s manager’s certificate, the Authority first pointed out that while he had obtained it to assist his friend, Harpreet Singh, in Kumeu, he wished to renew it in order to be the manager of Te Puna Liquor, an off- licence owned by one of the Samra group, Samra Holdings Limited.
[32] The Authority expressed concern that he had been granted that certificate administratively without the Auckland District Licensing Agency – North being
made aware of its own decisions adverse to him and to the group; and it also questioned whether he had obtained that certificate legitimately.
[33] He was not then living in Kumeu. He then still lived in Tauranga. In a recent letter to the police, furthermore, Gagan Singh had described him as a family friend, who had helped out in Kumeu during 2012 without being paid. Gagan Singh had not been more specific but he did say:
Had we been aware of the full extent of Sukhdev Singh’s history regarding the sale of liquor to minors we would not have given support to his application.
[34] On 27 April 2013, the Authority next said, he had filed a complaint with the police that a car of his had been stolen from a Greerton address. But a fortnight later a police officer had found it in a shed at the back of a Te Puna shop which he owned, next to the liquor centre. He had explained to the officer that his brother must have borrowed the car, and that he had not been in the shed in the last fortnight. He had withdrawn his complaint that day.
[35] In issue on his application for renewal, the Authority concluded by saying, was his character and reputation under s 126 of the Sale of Liquor Act 1989. The onus lay on him to demonstrate that he was suitable and that his certificate should be renewed.2 In declining his application the Authority gave these reasons:3
What has clearly been demonstrated by the decisions referred to, is that the applicant has been the subject of very adverse findings by this Authority.
The applicant did not disclose his history when he made his application for a general manager’s certificate to the Auckland District Licensing Agency. If he had, the Authority has little doubt that his application would have been refused.
The applicant was dishonest in describing himself as residing in Kumeu in that application when his permanent address has always been, for present purposes, in Waterside Drive, Tauranga.
It is [dis]ingenuous for the applicant to say that he has nothing to do with the running of any of the Samra Group of companies. In the past the Authority has found to the contrary (see decision no. NZLLAPH204/210 paragraph
66). In our view that decision still pertains.
2 Page v Police HC Christchurch AP84/98, 24 July 1998.
3 Singh, above n 1 at [16] – [20].
Mr Singh’s most recent complaint to the police with regard to his allegedly
stolen motor vehicle casts further aspersions upon his character.
Principles of appeal
[36] In resolving this appeal I gratefully adopt the principles set out by KÓs J in Triveni Puri Ltd and Nauhria v Commissioner of Police and Wanganui Licensing Agency:4
Section 138 of the Act provides for an appeal to the High Court where the Authority refuses an application for renewal on the grounds of suitability … Section 138(7) provides that the appeal is to be by way of rehearing. Section
138(11) provides the High Court may confirm, modify or reverse the decision appealed against. The section does not provide specifically for the
matter to be remitted back to the Authority.
It has been observed … that there is a limited scope for appeal from the Authority. The Act puts responsibility for enforcement decisions largely in the hands of the Authority, reflecting Parliament’s view of its central importance to the licensing system. This Court is nevertheless bound to reach its own independent conclusion.5
[37] I agree also with what Kos J then had to say as to this Court’s powers on an appeal:
It may give such weight as it thinks fit to the opinion of the Authority, but must not regard itself as bound by the Authority’s opinions, simply because it is a specialist tribunal.6 However, the Authority is an experienced body, well able to assess evidence and has the advantage of actually seeing and hearing the witnesses in question and listening to the cross-examination.7
Grant and renewal
[38] Sukhdev Singh’s primary ground of appeal, most especially, must be set against the two sections of the Sale of Liquor Act 1989, which govern the grant and renewal of manager’s certificates, ss 121 and 126. In their interplay they have three
features with a bearing.
4 Triveni Puri Ltd v Commissioner of Police [2012] NZHC 2913, [2013] NZAR 88 at [18], [19].
5 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 (NZSC);
Henwood v Dalziell-Kernohan HC Hamilton CIV-2010-419-983, 17 December 2010 at [36].
6 Te Awamutu Wines & Spirits (1988) Ltd v Greenwood [2009] NZAR 394 (HC).
7 Cats Niteclub (1991) Limited v Police [1997] NZAR 83 (HC).
[39] The first is that these decisions may be taken by a licensing agency if they are unopposed, but must be taken by the Authority if they are opposed.8 The second is that the essential criteria are constant but those on renewal recognise the fact that there has been a prior grant.
[40] As to an application for the grant of a manager’s certificate, s 121(1) says this:
In considering any application for a general manager’s certificate, the Licensing Authority or District Licensing Agency, as the case may be, must have regard to the following matters:
(a) The character and reputation of the applicant: (b) Any convictions recorded against the applicant:
(c) Any experience, in particular any recent experience, that the applicant has had in controlling any premises or conveyance in respect of which a licence was in force:
(d) Any relevant training, in particular recent training, that the applicant has undertaken and evidence that the applicant holds to prescribe qualification required under s 117A:
(e) Any matters dealt with in any report made under s 119.
Whereas, on an application for renewal under s 126, the criteria become these:
(a) The character and reputation of the applicant;
(b) Any convictions recorded against the applicant since the certificate was issued or last renewed;
(c) The manner in which the manager has managed the sale and supply of liquor pursuant to the licence with the aim of contributing to the reduction of liquor abuse;
(d) Any matters dealt with in any report made under s 124 of this Act.
[41] The third feature is this. On a grant or renewal there must always be a report from a district licensing inspector,9 but there need only be a report from the Police if they wish to raise some ‘matter in opposition’.10 And it is only when the Police file a
report that the application passes from an agency to the Authority.
8 Sale and Supply of Alcohol Act 2012, ss 91(c), (d), 120, 125.
9 Sections 119(2), 124(2).
10 Sections 119(3), 124(3).
[42] The second of these features is especially significant. On an application for a grant all an applicant’s convictions are relevant, whereas on a renewal the only convictions that need be considered are those since the grant. On a grant all of an applicant’s prior experience must be considered, whereas on renewal what must be considered particularly is how he or she has acted as a manager. This might suggest that the Authority was fixed with the Agency’s 2012 decision and could not look behind it.
[43] On a renewal, as on a grant, however, an applicant’s ‘character and reputation’ must be considered as must any report from a district licensing inspector or the police. And to resolve an opposed application the Authority must be able to take into account any factor relevant to ‘character and reputation’ left latent at the time of the grant. Otherwise the purposes and scheme of the Act would be frustrated.
Onus and standard
[44] Sukhdev Singh’s application was to be resolved on the premise that he carried the primary onus. As Holland J said in Hayford v Christchurch District Licensing Authority, where the renewal of an off-licence turned on the conduct of the proprietor, ‘a holder of a liquor licence under the Sale of Liquor Act 1989 is granted
a privilege. It permits him to sell liquor where others are not permitted to do so’.11
Consequently, as Panckhurst J said in Page v Police, where an application for an on- licence was in issue, in a passage on which the Authority relied:12
… the application for an on-licence must demonstrate his or her suitability. In other words what is required is a positive finding. That implies an onus upon the applicant that demonstrates suitability.
[45] Conversely, however, as Greig J held in Goldsmith v Liquor Licensing
Authority, the Authority is obliged to take into account the reports of an inspector or the police, it must be satisfied to a heightened civil standard as to any
11 Hayford v Christchurch District Licensing Authority HC Christchurch AP201/92, 3 December
1993 at [9].
12 Page v Police, above n 2.
misdemeanours they allege. The grant or refusal of a licence is ‘a matter of livelihood’ and is ‘not lightly to be granted or refused’.13
[46] In Triveni Puri also, where the Authority had refused to renew an off-licence and cancelled a general manager’s certificate, Kos J held that whenever the conduct of the manager is in issue, and sales to minors are relied on, in respect of which the manager has never been prosecuted or perhaps convicted, the Authority must be satisfied to a heightened standard:14
when the result of the Authority being satisfied that someone is not suitable to hold a manager’s certificate can be a loss of employment, then the seriousness of the consequences of the police succeeding on their application for cancellation means the standard of proof must be very close to that of a criminal prosecution.
Relevance of offences and misdemeanours
[47] Finally, the Authority’s decision must be set against the decisions of this Court, and its own decisions, as to the extent to which convictions and misdemeanours remain relevant as time passes.
[48] There can be no issue that, as Holland J said in Hayford, ‘deliberate failure to carry out conditions attached to the licence or the terms of the licence must be a strong factor justifying a conclusion that the holder of the licence is not a suitable person to hold the licence.’15 But, as he also said, that conclusion ‘need not be infinite’.
[49] Then, in Re Sheard, where the Authority had refused applications for an on-licence and an off-licence on the ground that the applicant was not suitable because of previous convictions, Holland J held that the Authority had overstated their significance.16 Past conduct may be ‘very relevant to the consideration of
suitability’, but it is not necessarily decisive:17
13 Goldsmith v Liquor Licensing Authority HC Wellington AP No 234/92, 19 October 1993.
14 Triveni Puri Ltd v Commisioner of Police, above n 4, at [24], [25].
15 Hayford v Christchurch District Licensing Authority, above n 11, at [9].
16 Re Sheard [1996] 1 NZLR 751.
17 At 755.
The real issue is whether the evidence of that past conduct will indicate a lack of confidence that the applicant will properly carry out the obligations of a licensee. He has already been punished for his offending.
Those with convictions could not expect licences ‘to be easily granted’. But nor were they to be refused, ‘merely because of previous convictions’:18
The real test is whether the character of the applicant has been shown to be such that he is not likely to carry out properly the responsibilities that go with the holding of a licence.
[50] In Schroeder v Police, which concerned renewal of an on-licence and of a general manager’s certificate, William Young J decided that appeal on the same principle as I intend to on this appeal.19 The Authority itself has recognised that an applicant’s fitness may be reconsidered, despite convictions. Most typically it has looked for five years free of convictions and cogent evidence that the applicant has become fit to be reconsidered.20
Conclusions
[51] As the Authority recognised in its decision under appeal, this is an unusual renewal application. Sukhdev Singh obtained his manager’s certificate in 2012 from the Auckland District Licensing Agency – North, unopposed by the police or the licensing inspector, because neither were aware that the Authority had declined to renew his original certificate in 2008.
[52] The Authority appears at least to have suspected that he applied to that agency to avoid an opposed application in Tauranga, and there is some basis for that inference. To what extent, if at all, he needed a manager’s certificate to work in Kumeu remains unclear to this day.
[53] But his 2012 application was completed on his behalf by his agent. He did disclose to her his previous convictions and the Kumeu police were plainly aware of
them. He also disclosed in his application that he been involved in liquor retailing in
18 At 758.
19 Schroeder v Police HC Christchurch AP8/02, 10 June 2002.
20 Alexander Hugh Bannatyne Fraser-Tytler, Decision No PH 281/2003, 3 April 2003.
Tauranga as late as 2010. Had the police made a closer inquiry, they would have discovered the 2008 decision and, in all likelihood, have opposed his application.
[54] The Authority could not then be satisfied to the civil standard applying that his 2012 application was a cynical ploy, in itself precluding renewal. It was entitled, indeed obliged, however, to decide that application taking into account his character and reputation, and any convictions and proven misdemeanours since 2008, as well as whether he had acted as a responsible manager since 2012.
[55] If he did make a fraudulent insurance claim in March – April 2013 that would have put in issue his present character and reputation. But on the evidence, the Authority could not be satisfied to the civil standard applying that he had. He was never charged with, let alone convicted of, any such offence. There had to be a question, independently, as to the sufficiency of the police evidence. To the extent that the Authority held that claim against him, it was incorrect.
[56] Ultimately, I consider however, the Authority was right to decline his renewal application. While his last misdemeanour was in 2007 and he appears not to have been the subject of any complaint since he obtained his fresh licence in 2012, his evidence in support of his application was minimal.
[57] He put in evidence his 2009 hospitality qualification. But he did not explain to what extent he had remained involved in retailing in Tauranga until 2010 or once he obtained his manager’s certificate in 2012. He gave and called no evidence that he had since 2008 become fit to manage an off-licence and was worthy of a renewed
certificate. I dismiss his appeal.
P.J. Keane J
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