Tsyan v Police
[2021] NZHC 1264
•1 June 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-000014
[2021] NZHC 1264
BETWEEN SHEN TSYAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 3 May 2021 Appearances:
DPH Jones QC for Appellant TS Jenkin for Respondent
Judgment:
1 June 2021
JUDGMENT OF FITZGERALD J
This judgment was delivered by me on 1 June 2021 at 3.00pm
Registrar/Deputy Registrar
Date…………………..
Solicitors: Meredith Connell, Auckland
Mark Lee Lawyers, Auckland
To: D Jones QC, Auckland
TSYAN v NZ POLICE [2021] NZHC 1264 [1 June 2021]
Introduction
[1] Shen Tsyan pleaded guilty to one charge of assault.1 He applied for a discharge without conviction. On 11 November 2020, Judge P J Sinclair declined his application.2 Mr Tsyan appeals that decision.
Facts
[2] On 19 November 2017, Mr Tsyan parked his vehicle in a reserved parking space outside of a business. The owner of the business arranged for it to be towed away. The tow truck arrived and started to remove the car. Mr Tsyan then returned. He approached the victim (the business owner) and yelled at him in an aggressive manner. He demanded that the victim pay the towing fee. The victim refused. Mr Tsyan then advanced and punched the victim on the left side of his neck. Mr Tsyan was then pulled away by other people nearby. The victim felt dizzy afterwards but did not otherwise suffer any injuries.
[3] Mr Tsyan pleaded guilty, although not at the earliest opportunity. He attended a restorative justice session, where he apologised to the victim. He reported at that conference that he recognised he had an anger management issue, and he had stopped consuming alcohol since the incident. It is not suggested Mr Tsyan attended any anger management programmes or similar rehabilitative programmes. In 2015, Mr Tsyan had received a discharge without conviction for similar offending, and in 2016 he had received diversion for another assault charge. This was therefore the third incident of similar violence. There is, however, no suggestion of any more recent offending by Mr Tsyan of this nature.
[4] Mr Tsyan holds a Russian passport.3 He does not hold a Chinese passport, but both of his elderly parents live in China. They are unable to travel for medical reasons. Mr Tsyan would be required to apply for a visa to visit China to see his parents, but is concerned that his conviction will likely make it impossible for him to get one.
1 Crimes Act 1961, s 196. Maximum penalty one year’s imprisonment.
2 Police v Tsyan [2020] NZDC 23329.
3 Having previously been a Chinese citizen, but renouncing his citizenship to take up Russian citizenship when he lived in that country with his (then) wife.
The law
[5] Sections 106 and 107 of the Sentencing Act 2002 enable a court to discharge an offender without conviction, provided the court is satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. The test has been clarified by the Court of Appeal in Taulapapa v R:4
[22] It is settled law that a court considering a discharge should: examine the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender; identify the direct and indirect consequences of conviction; and consider whether those consequences are "out of all proportion" to the gravity of the offence. Only then does it move to considering the residual discretion under s 106. There must be a "real and appreciable" risk that any given consequence will happen: this standard recognises that the court is assessing the likelihood of something that may happen in the future.
[23] The offender should ordinarily put information before the court to provide a factual basis for a decision that the test has been satisfied. There is no legal onus on the offender to do so however, and the standard of proof in s 107 is simply that the judge be satisfied that the requirements of the section are met.
(Citations omitted)
[6] As is evident from the above extract from Taulapapa v R, in assessing the gravity of the offence, the Court is not restricted to an assessment of the conduct that gives rise to the charge. In R v Hughes, the Court of Appeal approved the comments of Miller J in Delaney v Police where the Judge said:5
[29] ... I consider that "the gravity of the offence" should be read as including not only the offence itself but also anything that may affect the Court's subsequent assessment of overall culpability. That includes guilty pleas, expressions of remorse and the Court's assessment of how likely it is that the offender will reoffend, the victim's perspective, and any consequence already suffered by way of reparation, community work, or publicity.
(Emphasis added)
4 Taulapapa v R [2018] NZCA 414.
5 Delaney v Police HC Wellington CRI-2005-485-22, 22 April 2005, at [29]; R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [27].
[7] In Edwards v R, the Court of Appeal stated that in order to show international travel is not possible for an offender because of their conviction, the offender would need to show:6
…that under the law and practice of the jurisdiction concerned:
(1)the conviction must be disclosed but, assuming a discharge is given, the fact that the offence was committed need not be; and
(2)in consequence of the conviction, the applicant is prima facie inadmissible, and for how long; and
(3)there is no alternative entry process available or that, if there is, such process is unreasonably difficult and uncertain in all the circumstances.
[8] Finally, and given Mr Tsyan’s previous discharge without conviction, it is relevant to note it is possible for one applicant to receive multiple discharges without conviction. However, previous discharges will, unsurprisingly, count against the applicant.7 In Swami, Katz J stated that:8
Courts have of course on occasion been willing to grant two or more discharges without conviction to the same offender. However, it has been recognised that a previous discharge without conviction for offending of the same type must count against a discharge on a later occasion.
The District Court decision
[9] Judge Sinclair summarised the facts of the case. She then turned to the gravity of the offending.
[10] Judge Sinclair noted that Mr Tsyan’s offending was spontaneous and did not inflict any particular injuries. She noted, however, that Mr Tsyan struck the victim’s neck, which is a vulnerable area, and that the assault ended when Mr Tsyan was pulled away by other people. The Judge recorded the parties’ agreement that, in terms of the offending itself, the gravity was low. She noted that Mr Tsyan pleaded guilty early and that he had attended restorative justice. She noted that he had received a discharge
6 Edwards v R [2015] NZCA 583 at [26].
7 Morgan v Police HC Auckland CRI-2009-404-212, 8 October 2009; Police v McCabe [1985] 1 NZLR 361 (HC); Swami v Police [2012] NZHC 2725, [2012] NZFLR 962; Martin v Police [2017] NZHC 835; Taumalolo v Police [2016] NZHC 1525; Moss v Police [2020] NZHC 1065.
8 Swami v Police [2012] NZHC 2725, [2012] NZFLR 962 at [25].
without conviction and diversion before. She treated these as aggravating factors. In all the circumstances, the Judge concluded that the gravity of Mr Tsyan’s offending was low to moderate.
[11] Judge Sinclair then considered whether or not Mr Tsyan could obtain a Chinese visa with a conviction. Mr Tsyan provided an affidavit from an immigration lawyer in support of his claim that he could not. Judge Sinclair noted that it was “not definitive” that a visa would be declined, and that the Chinese authorities would have a discretion to approve it. Those authorities would have all the information about Mr Tsyan’s conviction and his elderly parents. The Judge emphasised that Mr Tsyan had no definitive plans to travel overseas. On balance, Judge Sinclair was not persuaded that there was a real risk that the visa would be declined, but rather considered that the Chinese authorities would simply “scrutinise [the] application more”. The Judge accordingly did not consider that the consequences of a conviction would be out of all proportion to the gravity of Mr Tsyan’s offending. Judge Sinclair therefore declined Mr Tsyan’s application for a discharge without conviction.
The appellant’s submissions
[12] Mr Tsyan submits that the Judge erred in assessing the gravity of the offending and the consequences of the conviction. As such, he says the Judge’s assessment of whether the consequences were out of all proportion to the offending was also incorrect. Mr Tsyan submits that the gravity of the offending was low: it was minor, no injuries were sustained by the victim, there was a successful restorative justice session held and the previous discharge without conviction and diversion were not sufficient to raise it to the “low to moderate” category. Mr Tsyan also refers to MacDonald v R,9 which he submits stands for the proposition that a previous discharge without conviction does not necessarily mean a fresh one cannot be granted.
[13] Mr Tsyan suggests that there was a real and appreciable risk that he will not be able to get a Chinese visa. He submits that the Judge failed to properly take into account the expert evidence on this topic, that the COVID-19 pandemic meant that Mr Tsyan could not be expected to have definitive plans to travel, that the possibility
9 MacDonald v R [2019] NZCA 91.
that the visa will be rejected does not need to be “definitive” before it poses a real risk, and that the Judge’s conclusion was ultimately at odds with the immigration lawyer’s expert evidence.
The respondent’s submissions
[14] The respondent, unsurprisingly, disagrees on all points. It submits that the offending was not the least serious of its type. The respondent observes that the attack was unprovoked and directed to a vulnerable area of the body. It notes that the victim was left dizzy, his neck was sore for a few days and he was wary of being assaulted again. The respondent emphasises that Mr Tsyan did not stop the assault of his own accord, but rather was pulled off the victim by other people.
[15] The respondent submits that Mr Tsyan has not made substantial progress towards rehabilitation. It concedes that he pleaded guilty, accepted responsibility and engaged in restorative justice, but does not consider he has taken substantial steps to deal with the underlying causes of his offending. The respondent emphasises Mr Tsyan’s previous discharge without conviction and diversion, and note that these must count against him in receiving what is essentially a third chance instead of a second chance.
[16] As to the immigration consequences of Mr Tsyan’s conviction, the respondent submits that Mr Tsyan would not be automatically prohibited from entering China. Rather, according to the expert evidence, the Chinese authorities would weigh the assault conviction in the balance to assess whether they should grant him a visa. There is no reason why the immigration officials would not consider the mitigating factors identified by Mr Tsyan or the health and situation of his parents. The respondent notes that Mr Tsyan has no specific travel plans, nor has he adduced any evidence indicating that he regularly travelled to China before COVID-19. Finally, the respondent notes that Mr Lee, the expert witness who gave evidence on Mr Tsyan’s behalf, is not independent because Mr Tsyan has been a client for some years of the firm for whom Mr Lee works.
Analysis
[17] As noted earlier, the parties agreed that the gravity of Mr Tsyan’s offending was low, at least when focussed solely on the nature of the offending itself. That in my view is correct. The offending involved a punch to the victim’s neck area, but there is nothing to suggest this was premeditated or targeted. There do not appear to have been any lasting physical injuries to the victim.
[18] The Judge then – rightly, in my view – recognised as aggravating factors that Mr Tsyan had a previous discharge without conviction for a charge of resisting arrest in 2015 and received diversion for an assault charge in 2016. It does not appear that any details in relation to these matters were before the District Court Judge at the time, but she noted that both of those instances involved anger and violence, a point with which Mr Tsyan does not take issue with on this appeal. Accordingly, there was no error in the Judge taking this into account as an aggravating factor contributing to the gravity of the offending overall. I observe, however, that those earlier instances must themselves have been low level offending, to have attracted a discharge without conviction and been the subject of the diversion scheme.
[19] Mr Jones QC, counsel for Mr Tsyan, submits on appeal that the Judge erred by failing to actually give effect to, rather than simply commenting on, matters that operated by way of mitigation, including remorse, Mr Tsyan’s guilty plea and the participation in what appears to have been a valuable and productive restorative justice conference. Mr Jones submits that these combined mitigating factors ought to have effectively “balanced out” the aggravating factors, with the result that the gravity of the offending remained low.
[20] I agree with Mr Jones that the Judge did not articulate precisely how she took into account the identified mitigating factors, though she had plainly turned her mind to them. I do not see any substantial error in the Judge’s conclusion as to the overall gravity of the offending. As noted, the Judge concluded that it was low to moderate. My own evaluation of the relevant factors relating to both the offender and the offending is that this conclusion was not an error, though taking into account the mitigating factors in particular, I conclude that the gravity of the offending sits towards
the lower end of this culpability range. This is reinforced by the fact that, by the time the matter came before Judge Sinclair in November 2020, some three years had passed since Mr Tsyan’s index offending, which itself suggests a degree of rehabilitation.
[21] What then, are the consequences of a conviction? In this case, and consistent with the approach endorsed in Edwards, Mr Tsyan adduced expert evidence from a Mr Lee, a barrister and solicitor with expertise in immigration law. Mr Lee states that he has provided advice to clients on Acts and Regulations of China for the last 10 years and that he is therefore familiar with Chinese visa requirements. No issue was taken with Mr Lee’s expertise to give evidence on these matters. But as noted, the respondent submits that there may be a question as to Mr Lee’s independence, given he is a solicitor practising for a firm of lawyers of whom Mr Tsyan has been a client for some years. Mr Jones noted at the hearing of the appeal that this point had not been raised before and if it had been, and appeared to be of material consequence, the expert evidence would have been obtained from a different expert. The point was not pressed to any real degree on appeal, however, and I do not consider it to be of any material relevance in any event. There is no dispute Mr Lee is suitably qualified to give the expert evidence he does, and he deposes that he has read the code of conduct for expert witnesses and agrees to comply with it. Mr Lee is first and foremost an officer of this Court. Mr Lee also responsibly notes that Mr Tsyan has been a client of his firm for several years, but that he provides his evidence on the basis he would for any person, whether a client or not.
[22] As to the prospects of Mr Tsyan being declined a Chinese visa, Mr Lee advises as follows:
15.In general, a conviction like assault, which has a maximum potential penalty of 12 months imprisonment, would be regarded by Chinese authorities as likely to indicate or imply that the applicant may disrupt public order under the Crimes Law in China as the nature of assault may well occur in public places. A crime of this nature would be a red flag.
16.Criminal activities are taken very seriously in China and are frequently punished by a term of imprisonment. The summary of facts in Mr Tsyan’s case indicates the offence might also be caught under Article 293, Chapter 1, Part One, General Provisions, the Aim, Basic Principles and Scope of Application of the Criminal Law of PRC. This provides that whoever disrupts the social order by committing the provocative and disturbing acts, including assaulting any other person
at will with execrable circumstances, shall be sentence to imprisonment of not more than 5 years criminal detention or control. Annexed and marked with the letter “B” is a copy of Article 293, Chapter 1, Part One of Criminal Law of PRC.
17.Question 3.3 of the Visa Application Form of the People’s Republic of China requires the applicant to answer the question “Do you have any criminal record in China or any other country?” Annexed and marked with the letter “C” is a copy of the Visa Application Form. Accordingly, should Mr Tsyan sustain a conviction he would have to declare it in his visa application. In doing so he would be declaring that he had a criminal record in New Zealand.
18.This would necessarily lead to his application being closely considered and in all likelihood declined. There would be no benefit for the Chinese authorities in letting him into the country.
19.If Mr Tsyan is convicted of this offence, he would be required to declare it. Chapter III, Article 21 of the Act would then give the relevant Chinese consulate official the discretion to decline his application for a visa on the understanding that act of “Common Assault (Crimes Act) manually” has the potential implication that the applicant might repeat the same behaviour which would be taken as “disrupting social order”. This discretion is likely to be exercised, although the consulate official has the absolute discretion to grant or refuse the visa application. No reasons need to be given at all, so effectively the decision cannot be challenged.
20.In general, each application for a temporary visa is considered on its own merits. A criminal conviction would necessarily have a prejudicial effect on the outcome of the application because it is declaring that the person has committed an offence (in this case an assault in New Zealand) and this would trigger scrutiny by the Chinese authorities and provide a basis for declining a visa.
Conclusion
21.It is my view therefore that a conviction for assault would in all likelihood mean Mr Tsyan could not obtain a visa to travel to China to see his parents. In my experience, the Chinese authorities are strict and would decline the application in a summary way. There is no right of appeal. Mr Tsyan would have no ability to travel to China as a result.
(Emphasis added)
[23] Mr Lee also annexes the relevant Visa Application Form. This requires an applicant to answer the question “Do you have any criminal record in China or any other country?”, but does not require disclosure of the fact of offending.
[24] As noted, the Judge concluded that there was not a “real and appreciable risk Mr Tsyan would be denied a visa to visit his parents”. Rather, she concluded that “In my view it will simply mean the authorities may scrutinise your application more”.
[25] With respect, I do not consider this conclusion accurately reflects the expert evidence before the Judge. Before turning to that evidence, I note that it is not a requirement that there are definitive plans to travel before a court will consider the risks to that travel being impeded. Accordingly, in Edwards, the Court noted that an applicant for a discharge need only point to a real and appreciable possibility that the applicant would need to travel overseas.10 There will of course be a sliding scale between vague and speculative possibilities of future travel versus definitive and clearly defined travel plans. As the Court of Appeal noted in R v Taulapapa, and having made reference to that Court’s earlier decision in Edwards:11
So far as that offender is concerned, a court might find a real and appreciable risk that she will travel in future. That is a question of fact. The question then is what evidence she ought to adduce to show the convictions will affect that ambition. That is a question of judicial judgement the answer to which would depend on the circumstances. We note the authorities listed in Adams on Criminal Law under this heading. By way of illustration only, Edwards does not exclude the possibility that a young New Zealander wanting to go on OE could show that in consequence of conviction she would have to go through the formality of obtaining visas for jurisdictions to which she would otherwise enjoy visa-free entry. Whether that administrative burden and associated expense would be out of all proportion to the gravity of her offending as another question. Ms Taulapapa, who faces just such a consequence in relation to Australia, did not suggest that it is a disproportionate consequence in this case.
(Emphasis added)
[26] In light of these authorities, I consider the Judge placed too much emphasis on the fact that Mr Tsyan did not put before the Court any present and definitive travel plans to China. Obviously in the current COVID-19 environment, that is somewhat difficult. But the Judge nevertheless accepted the evidence before the Court that Mr Tsyan’s parents are both elderly, in their eighties, that Mr Tsyan’s father in particular has “numerous medical concerns” and they are not able to travel out of
10 Edwards v R [2015] NZCA 583 at [24].
11 R v Taulapapa [2018] NZCA 414 at [56].
China. The Judge accordingly accepted that Mr Tsyan’s “ability to be with [his] parents is dependent on [him] being able to travel to China”.
[27] In his affidavit in support of his application for a discharge without conviction Mr Tsyan noted that he had visited his parents in September 2017 and expressed his desire that his application for discharge without conviction would be successful and he would therefore be able to visit them again.
[28] I accept that there is therefore a real and appreciable possibility that Mr Tsyan will wish to travel to China again to visit his elderly parents. I am also satisfied, unlike the Judge, there is also a real and appreciable risk that Mr Tsyan will not be able to do so were he to be convicted for his 2017 offending. I consider the overall effect of Mr Lee’s evidence paints a much more negative picture of the prospects of Mr Tsyan obtaining a Chinese entry visa than the authorities simply scrutinising his application more than they would have otherwise done so.
[29] This then brings the Court to the assessment of whether the consequences of a conviction are out of all proportion to the gravity of the offending. As noted earlier, I consider the gravity of the offending to sit at the lower end of the scale of culpability identified by the District Court Judge. I consider the adverse consequences of a conviction mean that there is a real prospect of Mr Tsyan not being granted a Chinese entry visa were he required to disclose his conviction, and thus a real likelihood that he may not be able to see his elderly parents again while they are alive. Conducting the evaluative exercise required, I am therefore satisfied that the consequences of entry of a conviction are out of all proportion to the gravity of the offending.
[30] It then remains to consider the residual exercise of discretion. I am troubled that this will be the third time Mr Tsyan has received, in effect, the benefit of the doubt and been subject to a diversion or discharge without conviction. But I also take into account that the index offending occurred some three and a half years ago and there is no suggestion of any further offending by or charges being laid against Mr Tsyan. Mr Tsyan deposes that he gave up drinking alcohol as a consequence of his 2017 offending and this may have contributed to what appears to be a degree of reform on his part. Taking all of these matters into account, I do not consider it appropriate to
exercise the residual discretion and decline to grant a discharge without conviction. Mr Tsyan will of course be under no illusion that the Court is highly unlikely to give him another “benefit of the doubt” in the event of any future similar offending.
Result
[31] The appeal is accordingly granted. I grant a discharge without conviction and the conviction entered in the District Court is quashed.
Fitzgerald J
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