Tong v Police

[2012] NZHC 3036

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2012-412-50 [2012] NZHC 3036

MICHAEL WONG TONG

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         14 November 2012

Appearances: S Turner for Appellant

R D Smith for Respondent

Judgment:      14 November 2012

ORAL JUDGMENT OF FOGARTY J

[1]      This is an appeal against a decision of District Court Judge Crosbie who, on

27 April 2012, sentenced the appellant to 150 hours community work because of his contempt of Court.  Leave to appeal out of time was granted.

[2]      The appellant had been a member of the public gallery in the District Court on the morning of 26 April 2012. A fellow gang member had been placed in custody. Mr Wong Tong stood and was observed by the Judge to raise his hand and with a clenched fist uttered or yelled out “Sieg Heil”, and then he and his colleagues started to leave the Court in an abrupt and noisy fashion.   At the Judge’s direction, the appellant was taken into custody and held in contempt.   At the end of the day’s sitting, he came back before the Court after assistance from the duty solicitor.  When

he was placed before the Court he apologised to the Judge.  He said:

WONG TONG V NEW ZEALAND POLICE HC DUN CRI-2012-412-50 [14 November 2012]

I’m very sorry for what was done.  Didn’t know.  It was a big understanding. It’ll be the last time I see him for a while.  I don’t know.  Get out of hand.  It won’t happen again.  It was one of one.

[3]      As Mr Turner, his counsel, correctly pointed out, in cases of contempt the fact that there is an apology to the Judge is important and is taken into account – and I do.

[4]      Both counsel before me have done considerable research and it is quite clear that the Judge simply did not have the power to sentence him to community work. Judge’s of the District Court are given by statute the power to punish for contempt, as distinct from Judges of inherent jurisdiction of the High Court.  It is not necessary to burden this judgment with an examination of the law, as both counsel are in agreement that there was no power on the part of the District Court Judge to do anything other than fine or order a period of time in prison.  I should say that my clerk was independently also checked the law and came to the same conclusion.

[5]      Mr Turner, this morning, argued at three levels.  Firstly, that in the history of this event no further sentence is required, particularly emphasising the apology. Second, that if there was to be a penalty it should be a fine.  Thirdly, although he was arguing against any order of imprisonment, he argued that it should be not very long at all.

[6]      I deal briefly with the three levels of argument.   Firstly, the judgment of Judge Crosbie that this was a contempt of Court has to be respected by the appellate Court.   It is not being challenged on appeal.   It needs to be kept in mind that an appellate Judge is not able to capture and fully understand the experience of the Judge who was in the Court when the contempt took place.  Body language, as this contempt included, and the yelling out of the call “Sieg Heil”, which this young man may not, of his generation, have fully understood how insulting that was, and the departure of the Court with other colleagues in an abrupt and noisy fashion, have to be experienced to inform the judgment of contempt of Court.

[7]      I  am  quite  satisfied  however  that  Judge  Crosbie  was  right  to  find  it  a contempt  of  Court.    I  should  just  briefly  say,  because  it  was  partly  raised  by

Mr Turner who talked about his client’s liberties being attacked, that the public are in the Judge’s Court.  The Judge’s Court is held in public, except for very extraordinary circumstances, normally justified only by act of Parliament, for the reason that under our legal system so far as possible all the work of the Court is done in public to be observed by the public to eliminate any suggestion of corruption.  Members of the public are there in that sense to make sure that justice is done openly and transparently, but they are in the Judge’s Court.  Any insult to the Judge or to the Court, and there can be a distinction between the two, or the Court process, is taken extremely seriously by the Judges.  This is because the Court is the mechanism by which wrongful behaviour and other disputes are peacefully adjudicated, and penalties and relief ordered.   This function of the Courts is essential to the maintenance  of  law  and  order,  and  of  a  peaceful  society,  and,  indeed,  to  the protection of personal liberties.  Therefore, contempt of Court is serious.   The assessment of the Judge in the Court at the time is taken very seriously by the appellate Court.

[8]      I am satisfied that a fine is not an appropriate sentence. This young man is on a benefit.  He talked in Court about getting a job.  He simply does not have evident means to pay a fine.  If I were to impose a fine there is a strong possibility it would never be paid.

[9]      That leaves then the question of ordering him to spend some time in a prison. That  seems  to  me  the appropriate  order.    I have  had  the  benefit  of  authorities collected by Mr Turner which include Masuitama v District Court,[1]  a decision of

Judge Tompkins and a recent decision of Lang J in the case of De Montalk.[2]    The

outside range, it seems to me, is 21 days imprisonment.  I have had the benefit of submissions from Mr Smith for the Crown who suggested in the circumstances seven days.  I am much assisted by that realistic submission from Mr Smith.

[1] Masuitama v District Court (Papakura) HC Auckland AP203/86, 3 October 1986.

[2] De Montalk v District Court at Dargaville [2012] NZAR 346 (HC).

[10]     So the consequence of this appeal is that it is allowed.   The sentence of community work is declared to have been made without authority, to the extent that

an order is needed, it is quashed.

[11]     The punishment for this contempt is an order that the appellant spends seven days in prison.   He is due back in Dunedin next Wednesday, I understand he is appearing for sentence in another matter in which he is likely to get home detention. Accordingly, the order is that he will present himself to the Registrar of the Dunedin District Court next Wednesday.  He will be taken into custody and serve seven days imprisonment, and then whatever the sentence is that is imposed by the Court on the cannabis related matter will take effect from that date.

Solicitors:

Stephen Turner Barrister, PO Box 14, Portobello, Dunedin 9048

Crown Solicitor, PO Box 803, Dunedin – R D Smith