The Queen v Chun Lei Mu

[2003] NZCA 243

IN THE COURT OF APPEAL OF NEW ZEALAND

CA262/03

THE QUEEN

v

CHUN LEI MU

Hearing:13 October 2003

Coram:McGrath J
Goddard J
Laurenson J

Appearances:  C. Harder for Appellant

MA Woolford for Crown

Judgment:24 October 2003 

JUDGMENT OF THE COURT DELIVERED BY LAURENSON J

[1]        The appellant has applied for special leave to appeal to this Court pursuant to s144(3) of the Summary Proceedings Act 1957.  He is a Chinese national studying at university in New Zealand.  In 2001 he graduated as a Year 13 student from a Christchurch college.  He has paid some $14,525 in fees and levies.

[2]        On 10 July 2002 a friend of his lost control of his vehicle and crashed into a fence in the city.  The appellant was called to the scene by his friend who asked him to represent that he, the appellant, had been the driver of the car because the friend, the actual driver, did not have a licence.  The appellant proceeded to do so telling both ambulance staff and the police that he was the driver.  There was an independent witness to the accident and on two occasions the appellant and his friend spoke to her, seeking to get her to inform the police that the appellant was the driver of the car.  They told her that the other man did not have a licence.  On the second of these occasions a police constable was present at the scene.  At that stage the two men physically prevented the witness from approaching the police and again asked her to say that the appellant, and not the other man, was the driver.  She refused to do that and they tried to make her move up a nearby driveway to discuss the matter further.  There was no suggestion of any assault or threats, but she was crowded by the appellant and his friend who were trying to persuade her not to tell the truth to the police.

[3]        It is recorded that the witness was highly intimidated by the actions of the appellant and his friend and was shaken when she spoke to the police.

[4]        The appellant was charged with wilfully attempting to obstruct the course of justice by pressuring the witness to the accident to give false information to the enforcement officer as to the identity of the driver.

[5]        On his second appearance the appellant had legal advice.  He was also attended in court by a friend who acted as interpreter.  He pleaded guilty to the charge having signed a request to do so, and was sentenced to 200 hours community work.

[6]        The sentencing Judge said the courts looked very seriously on people who tried to influence witnesses and tried to influence the way the courts and police would look at dealing with them;  that the maximum penalty was seven years’ imprisonment;  that the two were first offenders and it was likely they had fallen to some degree into panic because of the driver’s bad driving.  The Judge regarded the matter as deserving of more than a fine.  He had also noted that the accident itself was such that it was fortunate no one had been seriously injured or killed.

[7]        On 23 July 2002 the appellant’s student permit was revoked.  The reason given being that on 18 July he had been charged with the offence and sentenced on that date.

[8]        The appellant appealed to the High Court.  The appeal was heard before Neazor J in Christchurch on 20 May 2003. 

[9]        The appeal against conviction was put forward on the basis that the appellant had failed to understand he was pleading guilty and that he had thought if he told the court he was sorry for what he had done he would not be convicted.  There was a waiver of privilege and the Crown obtained and filed an affidavit from counsel who had appeared for him at the hearing.

[10]     Neazor J was satisfied that the appellant had been properly represented and that he, with the assistance of an interpreter, had properly understood the nature of the proceeding, the consequences of the plea of guilty and that the question of immigration status was in the minds of both men from an early stage.

[11]     Neazor J recorded in his decision that the appellant’s counsel acknowledged that in the particular circumstances, as outlined above, the appeal against conviction was so unlikely to succeed it would not be pressed.  Nor was an alternative suggestion that the appellant should be permitted to withdraw his guilty plea.  The appeal had then become one against sentence, the contention being that in the circumstances a discharge without conviction pursuant to ss106 and 107 of the Sentencing Act 2002 would have been the proper outcome.

[12]     Neazor J was advised because statutory time limits in respect of immigration matters had not been met, not necessarily due to any fault on the part of the appellant, he had not had any substantive review of the removal order, and his only recourse now lay in an appeal to the Minister of Immigration.

[13]     It was submitted to the Judge that

[14]     … the effect of the conviction had such severe repercussions for the appellant that a discharge should be substituted.  Consequences to the appellant if he is not allowed to remain in New Zealand to continue with his studies are plainly serious.  He will lose access to the educational opportunities available here, and the work he has done over the past two years, and the considerable financial cost that study has involved will all be thrown away because of what counsel submitted to be a foolish “spur of the moment” action to help his friend whose driving was the cause of all the trouble.

Accordingly, in the circumstances, a discharge without conviction would have been the proper outcome.

[14]     Neazor J. noted in paragraph [12] of his decision as follows:

[12]     Such an order is provided for under ss.106 and 107 of the Sentencing Act 2002.  Under s.106(1) if a person who is charged with an offence pleads guilty the Court may discharge the offender without conviction unless by any enactment applicable to the offence the Court is required to impose a minimum sentence.  Such a discharge is deemed to be an acquittal.  The Court discharging the offender may make orders for the payments of costs, or restitution of property, or may make monetary compensation orders in some respects.  Section 107 provides that 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.

[15]     At paragraph [19] of his decision he said:

[19]     Although it was not trivial, if the consequences of the conviction are sufficiently serious it might be regarded as one which warranted a discharge under s.107 of the Sentencing Act 2002.  It appears, however, that the revocation of the appellant’s permit and the consequential order to depart from New Zealand are not, in fact, consequences of the conviction.  Section 33 of the Immigration Act 1987 which authorises the revocation of a temporary permit does not specify the grounds on which a permit may be revoked.  Counsel supplied a copy of an Immigration Department manual which indicates that as a matter of practice a permit may be revoked after conviction of a crime committed after the permit has been granted, or after discharge without conviction in such a case.  That indicates that it is the conduct involved, rather than the entry of a conviction which is the deciding factor.  A conviction is not a condition precedent of revocation.  One must ask in those circumstances where is the consequence, whether it is regarded as direct or indirect, of conviction, which is to be adjudged as out of all proportion to the gravity of the offence?  In a case like this if the Court was to grant a discharge without conviction solely for immigration-related reasons, it would simply be trying to give an indication to the Minister what its view is on the desirability of the person convicted being required to leave New Zealand.

[16]     Finally, at paragraphs [25] and [26] of his decision, Neazor J. concluded as follows:

[25]     On my assessment following the District Court Judge’s, the offending was not trivial, but it was on the “spur of the moment” and not the most serious of its kind.  The Minister will be aware of that assessment.  However, there are no consequences flowing from the conviction to be balanced against the offending to decide whether a discharge should be given.  The only justification for the entry of a discharge would be that the Court thought it might indicate to the Minister of Immigration what should be done.  If there are such cases when that is appropriate, this is not one of them.

[26]     For those reasons the appeal against sentence is dismissed.

[17]     The appellant sought leave to appeal to this Court on a point of law pursuant to s144(1) of the Summary Proceedings Act 1957.  The application was heard by Panckhurst J on 2 July 2003.  In his decision dated 3 July 2003 the Judge noted that before leave could be granted the further appeal must involve a question of law which “by reason of its general or public importance or for any other reason ought to be submitted to the Court of Appeal for decision:  s144(2)”.  He reformulated the point of law, as he understood it, as follows:

Did the Judge err in holding that the test in s107 of the Sentencing Act 2002 was not met because ‘there (were) no consequences flowing from the conviction to be balanced against the offending, when the fact of a conviction may be material to the decision concerning deportation, so that the risk of deportation was at least an indirect consequence of the conviction.

[18]     Panckhurst J was not persuaded there was an available point of law, much less one which meets the statutory test.  Put shortly, the indirect consequences of influence upon a deportation decision was considered, but did not find favour.  Leave was accordingly declined.

The Application

[19]     In order to succeed on his application for special leave to appeal, the applicant must, pursuant to s144(3)

144     Appeal to Court of Appeal

,,,

(3)  Where the [High Court] refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the [High Court] or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[20]     Sections 106 and 107 of the Sentencing Act 2002 state:

106     Discharge without conviction - (1)  If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

(2)  A discharge under this section is deemed to be an acquittal.

(3)  A court discharging an offender under this section may—

(a)make an order for payment of costs or the restitution of any property; or

(b)  make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—

(i)loss of, or damage to, property; or

(ii)emotional harm; or

(iii)loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:

c)make any order that the court is required to make on conviction.

(4)  Despite subsection (3)(b), the court must not order the payment of compensation in respect of any emotional harm, or loss or damage consequential on emotional harm, unless the person who suffered the emotional harm is a person described in paragraph (a) of the definition of victim in section 4.

(5)  Despite subsection (3)(b), the court must not order the payment of compensation in respect of any consequential loss or damage described in subsection (3)(b)(iii) for which the court believes that a person has entitlements under the Injury Prevention, Rehabilitation, and Compensation Act 2001.

(6)  When determining the amount of compensation to be paid, the court must take into account any offer, agreement, response, measure, or action as described in section 10.

(7)  Nothing in section 320 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 applies to sentencing proceedings.

107     Guidance for discharge without conviction - 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.

[21]       The grounds put forward by the applicant on this application were

a)The learned judge in the Court below erred in holding that the test for a discharge without conviction under s106 of the Sentencing Act 2002 was not met when significant consequences flow from the appellant’s conviction that need to be balanced against the offending.  The risk of deportation was at least an indirect consequence of the conviction and therefore needed to be considered in relation to the possibility of a discharge under s106.

b)That his case is of significant public interest because of discharges pursuant to s106 of the Sentencing Act being sought based on immigration issues.  For this reason, the Court should provide direction to the Courts below when dealing with matters such as these.

For the above reasons, the Appellant respectfully requests that his application for leave to appeal be granted to allow a full and thorough consideration of the pertinent issues by this Court.”

[22]     As to the first ground, it was submitted that:

a)As accepted by Neazor J there was no question that a Court’s decision, be it to convict or grant a discharge, was determinative of the Minister’s decision;

b)Nevertheless the Court’s decision was a factor which could have a bearing on the final outcome.

c)Therefore, the concern of the Court when considering whether to grant a discharge without conviction, should be on the potential circumstances – regardless of whether the Court’s decision may be determinative or not.

d)Neazor J had, however, in effect, restricted the availability of discharge without conviction to only those cases where it could be clearly established that the Court’s decision would be determinative of the final outcome in favour of the person seeking the discharge;

e)This conclusion would place an unwarranted fetter on the exercise of the discretion and would also have the effect of influencing the decision ;of another competent authority.

[23]     It was submitted, therefore, that the question to be considered in this application was whether, in any case, where the indirect consequences of a conviction could result in another unfavourable decision, then this alone should be sufficient grounds for granting a discharge without conviction.

[24]     As to the second ground, the appellant submitted:

a)Even though a Court’s decision on sentence will not inevitably influence  the final decision maker, because the sentence will necessarily reflect the Court’s assessment of the degree of seriousness of the offending, it will nevertheless be a significant factor to be considered by the Minister.

b)The consequences to the appellant could entail not only the loss of his Temporary Permit, but also his outlay of some $14,000;

c)The trial Judge had made the necessary finding as to the seriousness of the offending;

d)It was quite consistent in these circumstances to pay regard to s8(h) of the Sentencing Act 2002, namely:

“8     Principles of sentencing or otherwise dealing with offenders - In sentencing or otherwise dealing with an offender the court—

…

(h)  must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe;”

[25]     Finally the appellant submitted:

“For the reasons stated above, the appellant respectfully requests that the Court grant this application for leave to appeal in order that this division of opinion surrounding this issue may be resolved, thus providing guidance for the courts below when consideration an application for discharge without conviction based on immigration related consequences.”

[26]     The Crown, in response, submitted:

a)Neazor J had correctly determined that:

“.. the removal order was not a direct or indirect consequence of the conviction.  Referring to the New Zealand Immigration Services Operational Manual the Judge noted that a permit may be revoked either following conviction or a discharge without conviction.  This led to the proposition that the issue for Immigration is not whether or not a conviction is entered, but is rather, the gravity of the particular conduct proved.”

b)Further, he had paid regard to the issue of proportionality between the acknowledgedly possible serious consequences to the appellant on the one hand and the degree of seriousness of the offending;

c)He had correctly concluded this was not a case where, even if it was appropriate to indicate to the Minister the Court’s view as to what might be an appropriate outcome, this was not an appropriate case to do so.

Decision

[27]     The issue is whether the question of law that the applicant for leave to appeal wishes to raise is one which, by reason of its general and public importance, or for any other reason ought to be submitted to the Court of Appeal for decision.

[28]     In this case Neazor J recognised that the applicant’s permit could be revoked by the Minister on account of his conduct, whether or not he was convicted or discharged without conviction.  The decision-maker’s assessment of the conduct itself would be the deciding factor. Neazor J did not determine the appeal on the basis that in the circumstances s107 of the Sentencing Act could not apply although he queried the point.  His reason for dismissing the appeal was that, if there were cases where s107 did permit a discharge without conviction in order to influence the decision of another competent authority, this case was not one of them.  Accordingly he refused to substitute a discharge without conviction and dismissed the appeal on the merits of the case.

[29]     Such a case is not appropriate for a second appeal to this Court because the issue of the meaning of s107, the statutory provision in issue, was not in the end decided.  There is no question of law raised by the appeal.  Parliament has not authorised a general right of second appeal against findings on the merits and the merits, were ultimately the sole basis on which the High Court determined the appeal.

[30]     For the above reasons we have unanimously decided that the applicant has not satisfied the test imposed by s144(3) of the Summary Proceedings Act 1957.

[31]     Accordingly the application for special leave must be dismissed.

Solicitors:           

Crown Solicitor, Auckland