Song v Police

[2023] NZHC 3324

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-480

[2023] NZHC 3324

BETWEEN

YUANHUI SONG

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	14 November 2023
Appearances:	Z Chen and C Holland for Appellant R Van Boheemen for Respondent
Judgment:	22 November 2023

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 22 November 2023 at 12:30 pm.

Registrar/Deputy Registrar

Solicitors:Meredith Connell (Office of the Crown Solicitor), Auckland Righteous Law Limited, Auckland

SONG v NEW ZEALAND POLICE [2023] NZHC 3324 [22 November 2023]

[1]    At about 11:46 pm on Saturday, 20 May2023, Yuanhui Song drove with excess breath alcohol on Greville Road, Albany, Auckland. His manner of driving did not attract Police attention. Instead, he was stopped at a road safety check point. When spoken to by Police he exhibited signs of recent alcohol intake. His breath alcohol reading was found to be 472 micrograms of alcohol per litre of breath. In explanation, he said he had a few beers prior to driving.

[2]    On 22 June 2023, Mr Song pleaded guilty to one charge of driving with excess breath alcohol.1 He sought a discharge without conviction.

[3]    On 18 August 2023, Judge B R Pidwell declined the application for a discharge without conviction.2 Instead, she convicted and fined Mr Song $400 and disqualified him from driving for six months. Mr Song now appeals Judge Pidwell’s refusal to grant him a discharge without conviction.

Discharge without conviction

[4]    Section 106 of the Sentencing Act 2002 (the Act) provides that the Court may discharge an offender without conviction following a plea or finding of guilt. In order to grant a discharge without conviction, the Judge must be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.3

[5]    This proportionality assessment is to be made in accordance with the three- step approach set out by the Court of Appeal in Z (CA447/2012) v R:4

(a)the gravity of the offending, taking into account all aggravating and mitigating factors of the offending and the offender;

1      Land Transport Act 1998, s 56(1), (3)(a) and (b). Maximum penalty: Three months’ imprisonment or $4,500 fine; and mandatory minimum six months’ disqualification from holding or obtaining a driver licence.

2      New Zealand Police v Song [2023] NZDC 17793.

3      Sentencing Act 2002, s 107.

4      Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].

(b)the direct and indirect consequences of a conviction for the offender; and

(c)whether those consequences are “out of all proportion” to the gravity of the offending.

[6]    Even if the Court determines that the consequences are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although it would be rare for the Court to refuse a discharge in such circumstances).5

Approach on appeal

[7]    An appeal against a refusal to discharge without conviction is an appeal against both a conviction and sentence.6 To the extent this appeal relates to the Court’s weighing of consequences against gravity, it proceeds by way of rehearing whereby the appellate court makes its own assessment of whether the criteria for discharge without conviction are met.7

[8]    This Court must dismiss Mr Song’s appeal unless it is satisfied that a miscarriage of justice has occurred.8 In the context of a discharge without conviction, a miscarriage of justice means a “material error” or that the Judge “erred in applying the principles” for discharging an offender without conviction.9

District Court decision

[9]    At the outset of her decision, the Judge set out the three steps she must consider when dealing with an application for discharge without conviction under s 106 of the Act, as set out above.

[10]   As to the gravity of the offending, the Judge noted that Mr Song was a first- time drunk driver. There was no driver fault and he co-operated with the Police. The

5 At [27].

6      Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144; and Ovtcharenko v Police [2017] NZCA 65 at [5].

7      Austin, Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

8      Criminal Procedure Act 2011, s 232.

9      Jackson v R, above n 6, at [12].

Judge observed that in normal circumstances, he would be receiving a fine and a mandatory disqualification of six months.

[11]   The Judge also referred to Mr Song’s previous good character and genuine remorse for his actions. The Judge recounted the explanation offered for the offending: that Mr Song was at a work event and had received a call from his wife, who was ill. He was not going to drive home but because he was concerned for her and wanted to get home quickly, he made the decision to drive. After being stopped at the Police checkpoint he got home and his wife was simply asleep. She had dropped the phone and not picked up his call.

[12]   The Judge noted that any drink-driving offence is serious. Given the fact that he had no previous convictions and there was no driver fault, and taking into account the reasons that he chose to drive on the night, the Judge accepted that the gravity of the offence was at the low end of the moderate band.

[13]   The Judge then turned to the consequences of a conviction. She referred to an affidavit filed by Mr Song and the concern he had of the effect of a conviction on international travel. The Judge noted that Mr Song also had a son, who seems to be doing very well and is looking to further his education overseas. The Judge said that was all commendable.

[14]   The Judge referred to the Top Talent Pass Scheme visa (TTPS visa) for Hong Kong, which Mr Song had obtained earlier this year. It lasts for two years and means that his son could attend educational facilities under that visa. The Judge noted that although the documents state he should have a clean criminal record, there is a discretion for immigration authorities in Hong Kong in regard to that visa and any other travel that he may choose to do around the world.

[15]   The Judge, however, was of the view that it was not for the Court to hide a person’s conviction when there is a discretion for immigration authorities to consider all the circumstances, including good character, the outcome of the offending and so forth, and still grant a visa.10 The Judge said she was not persuaded by the argument

10     Referring to Basnyat v Police [2019] NZSC 21.

that he would be adversely affected in international travel to the extent that he suggested in terms of his professional and personal obligations.

[16]   Furthermore, the stress to Mr Song’s wife and son was a natural consequence of people going through the court process, and that was not out of all proportion to the gravity of the offending.

[17]   In conclusion, in determining whether the consequences would be out of all proportion to the gravity of the offending, the Judge found that there was nothing outside the usual consequences of conviction and therefore declined Mr Song’s application for a discharge without conviction. The Judge then convicted and sentenced Mr Song to a fine of $400 and disqualified him from holding a driver’s licence for six months.

Appellant submissions

[18]   As to Mr Song’s personal circumstances, counsel explains that Mr Song’s wife has been diagnosed with various rare autoimmune diseases significantly restricting her independence and ability to carry out daily tasks. She is largely confined to the house and depends on Mr Song to drive her to all specialist appointments.

[19]   Their son is 12 years old and attending school in New Zealand. Mr Song took over the duties of looking after him and his schooling since his wife fell ill.

[20]   Regarding the offending, counsel says that Mr Song has fatty liver disease and does not typically drink. However, on the night in question he was at a business function and felt it would have been rude to continue to refuse toasts of traditional Chinese alcohol offered by the host. After the function ended he called a colleague to ask for a lift home, but received no response. He then called his wife and only managed to hear that she was not feeling well before their conversation was cut short. He could not get her on the phone again. Counsel says he had genuine fear and concern about what had happened to his wife so he made the unwise decision to drive home.

[21]The application for a discharge without conviction was made on the basis that:

(a)the gravity of the offence is at the lower end of a moderate band after weighing the aggravating and mitigating factors of the offence;

(b)the direct consequence of the conviction has a real likelihood of causing indirect consequences on the appellant’s son, wife, and others in his company who are not culpable in the offence and have no control over such offence; and

(c)these said consequences are out of all proportion to the gravity of the offending.

[22]   The direct consequence presented by the appellant is the impact of the conviction on his ability to either maintain his recently obtained TTPS visa, or to be granted a temporary visa for other countries, especially Australia, the United States of America (USA), and the United Kingdom (UK).

[23]   However, it is the indirect consequences that are submitted by counsel to be out of all proportion to the gravity of the offending:

(a)The impact on the appellant’s son, who wishes to continue his high school education overseas. This is the reason why Mr Song applied for the TTPS visa for the family. Should Mr Song’s TTPS visa be cancelled (or unable to be renewed), or Mr Song be unable to travel to other countries, his son will not be able to study overseas because he requires a legal guardian to accompany him and Mr Song’s wife’s health does not allow her to accompany him.

(b)The restriction on Mr Song’s ability to travel overseas could also impact the business development of his company, Sky Media Ltd. Mr Song’s ability to attend events, functions, exhibitions, or meetings outside New Zealand is pivotal to the company. The company relies on him to establish business and personal relationships and to create and explore commercial opportunities to sustain and develop the company.

(c)The conviction and the potential consequences flowing from the conviction have caused and will continue to cause emotional distress to Mr Song’s wife. In essence, she blames herself for what happened, compounding the already self-imposed guilt of being a hindrance to her family. Such worry and distress has manifested itself further since the offending. There is a real concern as to how this continued emotional distress will affect her current and future treatments.

[24]   There was an extensive range of material filed in the District Court together with an affidavit from Mr Song, dated 28 July 2023. In addition, Mr Song relied on a number of cases where expert evidence had been led as to the effect of a conviction for drink-driving on an offender’s ability to travel to other countries.

Respondent submissions

[25]   Counsel for the respondent submits that the District Court Judge did not err in her assessment of the consequences. First, counsel says that the basis of the refusal was mischaracterised and submits that the Judge was rather not persuaded on the evidence before her that Mr Song would be affected by limitations on international travel to the extent that he submitted. Counsel relies on Edwards v R,11 and several other authorities regarding travel consequences to say that the court will normally require expert evidence where a discharge is sought on the basis the conviction will impede travel to a particular jurisdiction.

[26]   Counsel therefore submits the Judge was correct to find that there was insufficient evidence to demonstrate that the conviction would impact Mr Song’s ability to maintain his TTPS visa and/or obtain a visa to Australia, the USA, or the UK. Parallels were also drawn to Linterman v Police where this Court found the evidence fell short of showing the appellant’s future depended in any substantial way on the particular reason for needing to travel.12

11     Edwards v R [2015] NZCA 583.

12     Linterman v Police [2013] NZHC 891.

[27]   As regards the consequences to Mr Song’s wife, while expressing sympathy, counsel submits the suggested consequences are not in any way a certainty, nor is there a real risk they may eventuate. In any event, it is said this would not be an indirect consequence out of all proportion but rather a natural consequence, as the District Court Judge found.

Discussion

[28]   Mr Song’s appeal rests on the second and third steps of the assessment given the Judge accepted that the gravity of the offence was at the lower end of the moderate band. For completeness, I agree. Broadly, Mr Song identifies several travel consequences for him as a result of the conviction and also points to indirect consequences on his wife, son, and company.

[29]   Mr Song’s travel concerns are two-fold. He is concerned about the effect of a drink-driving conviction on his existing TTPS visa for Hong Kong and his ability to travel and/or obtain a temporary visa for, in particular, Australia, USA and the UK. Consequently, he is further concerned with the ability of his son to continue education in Hong Kong or elsewhere overseas, and the impact loss of travel may have on the development of his business. I address these concerns below.

[30]   Mr Song’s TTPS visa enables his son, as his dependent, to also be granted the same visa. He says that as a visa holder, his son will be eligible to continue studying in Hong Kong, which in turn will increase his chances of further study at quality schools or universities in Australia, the USA, and the UK. However, he says that his TTPS visa may be cancelled which would prevent his son from studying in Hong Kong under the same visa.

[31]   In support of this consequence, Mr Song annexes a printout from the Hong Kong Immigration Department website on the Top Talent Pass Scheme. As a starting point, the printout seems to be contradictory. In one part it states:

An application for a visa/entry permit to enter the HKSAR under the TTPS may be favourably considered if:

a.there is no security objection and no known record of serious crime in respect of the applicant.

[32]Further on it states:

In general, unless a person has the right of abode or right to land in the HKSAR, he/she requires a visa/entry permit to work in the HKSAR. While each application is determined on its individual merits, an applicant should meet normal immigration requirements (such as holding a valid travel document with adequate returnability to his/her country of residence or citizenship; be of clear criminal record and raise no security or criminal concerns to the HKSAR; have no likelihood of becoming a burden on the HKSAR, etc.) as well as the relevant specific eligibility criteria detailed above before he/she may be considered for the grant of a visa/entry permit. It should be noted that the eligibility criteria may be subject to change from time to time without prior notice.

[33]   The first extract talks of “no known record of serious crime”, while the second extract talks of being “of clear criminal record”. With no expert evidence presented on the potential barriers the conviction may present in respect of the TTPS visa, this Court is not in a position to conclude whether there is a real and appreciable risk that the Hong Kong authorities will revoke (or decline to renew) Mr Song’s TTPS visa as a result of the drink-driving conviction.

[34]   As to Mr Song’s ability to travel to or obtain a temporary visa in other countries, I consider the evidence put forward in relation to the three countries identified in turn.

[35]   For a temporary visa in Australia, Mr Song annexes a printout from the Australian Department of Home Affairs website on character requirements for visas. It states:

You may not meet the character requirements if:

·you have a substantial criminal record

…

[36]   Again, I cannot conclude that Mr Song will be prevented from obtaining a temporary visa because in the absence of any evidence to the contrary, I am of the view that one drink-driving conviction is unlikely to be considered a “substantial criminal record”. Furthermore, the printout also states:

We consider all circumstances of a case. Even if you do not meet the character requirements, we, or the Minister for Home Affairs can choose to grant your visa.

[37]   There evidently remains a discretionary element when being considered for a visa that leaves open the possibility of Mr Song still obtaining a visa even if the conviction was considered to be a “substantial criminal record”.

[38]   Similarly, for the USA, Mr Song annexes a printout from the website of the US Embassy in the UK headed “Arrest, Caution, Conviction”. It states:

If you have ever been arrested, cautioned and/or convicted of an offense anywhere in the world, you are required to declare it when applying for a visa. In cases where an arrest resulted in a conviction, you may be permanently ineligible to receive a visa and will require a waiver ineligibility to travel to the United States.

[39]   As in the case of Australia, this statement indicates there is a discretionary element to the granting of visas even where an applicant has a conviction. In the absence of expert evidence as to how this requirement is interpreted in practice, no conclusion can be drawn on the effect of Mr Song’s conviction for drink-driving on his ability to travel to the USA.

[40]   Finally, Mr Song annexes a printout from the UK Government on the good character requirements for persons applying for British citizenship. The difficulty with this extract is that it does not, in its own terms, apply to persons such as Mr Song who (possibly) wishes to travel to the UK. Nonetheless, it states:

Having a criminal record does not necessarily mean that an application [for British citizenship] will be refused. However, a person who has not shown respect for, or is not prepared to abide by, the law is unlikely to be considered of good character.

[41]   Such a general statement in relation to an application for British citizenship does not assist in assessing whether Mr Song’s drink-driving conviction will prevent him from travelling to the UK.

[42]   In the District Court the Judge said that she was not persuaded by the argument that Mr Song would be adversely affected in international travel to the extent that he suggested in terms of his personal and business obligations.

[43]   I agree. The Court of Appeal was clear in Edwards v R that the Court will not permit an applicant to speculate about matters such as travel restrictions.13 Where consequences such as restrictions on travel are not agreed, proof of the matters may require expert evidence.14 Therefore, in the absence of any compelling proof or expert evidence, I too am not persuaded that a drink-driving conviction will be a substantial impediment to overseas travel by Mr Song.

[44]   As to the indirect consequences on Mr Song’s son, I am also not persuaded that there will be significant consequences for him, even if the TTPS visa is cancelled and/or Mr Song is unable to travel to Australia, the USA or the UK. If Mr Song’s son is unable to complete his high school education overseas because of the inability of Mr Song or his wife to accompany him, then that is the loss of an opportunity and nothing more. There is nothing to suggest that the high school education he is receiving in New Zealand is  anything  other than  excellent.  When  he  turns  18, Mr Song’s son will presumably not require a legal guardian to accompany him and he will be able to undertake university study anywhere in the world, subject to grades and funding.

[45]   Mr Song is the managing director and one of the shareholders of Sky Media Ltd. Sky Media Ltd is the owner and operator of and other various business ventures in New Zealand and internationally. It is also the largest Chinese language media company in New Zealand. Mr Song has advised the other shareholders of the charge. He says they indicated that should such a conviction pose a risk to the image and reputation of the company, he would need to step down as managing director. There is no evidence put forward, however, to suggest that a conviction would pose a risk to the image and reputation of the company.

[46]   Mr Song’s wife also provided a letter to the District Court to explain the indirect consequences of Mr Song’s conviction on her. She has witnessed Mr Song’s worry and regret, which has led to her being unable to sleep. If Mr Song were burdened with a criminal record, she would feel immense guilt. She would not know how to face it or explain it to their son.

13     Edwards v R, above n 11, at [25].

14 At [25].

[47]Addressing these indirect consequences, the Judge stated:

I am sympathetic to your role in your family and your wife’s medical condition and the stress that this is causing on her and your son. That is a natural consequence of people going through the court process. It has a further effect on family members and in my view that is not all out of proportion to the offending that you have committed.

[48]   While I do also have sympathy for Mr Song’s wife’s health issues, the suggested consequences of a conviction for Mr Song are not in any way a certainty. Nor has it been established that there is a real and appreciable risk any of these adverse consequences may eventuate.15

[49]   I agree with the Judge that the identified consequences are no more than the ordinary consequences that may arise as a result of a conviction and therefore are not out of all proportion to the gravity of Mr Song’s offending. Accordingly, a miscarriage of justice has not occurred in this case.

Result

[50]The appeal is dismissed.

Woolford J

15 At [24].