Wu v Police

[2020] NZHC 2022

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-203

[2020] NZHC 2022

BETWEEN

HUI WU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	10 August 2020
Appearances:	M W Ryan and J-A E Tulloch for the appellant R M Gibbs for the respondent
Judgment:	10 August 2020

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:

M W Ryan, Barrister, Auckland

Kayes Fletcher Walker, Crown Solicitor, Manukau

WU v NEW ZEALAND POLICE [2020] NZHC 2022 [10 August 2020]

[1]                  Hui Wu appeals against Judge C S Blackie’s decision in the District Court at Manukau on 16 December 2019 to  refuse him  discharge without  conviction,1  on Mr Wu’s guilty plea to three charges of theft by a person in a special relationship.2 As his first offending, the Judge sentenced him to 150 hours’ community work, and ordered reparation of the stolen money.

Background

[2]                  Mr Wu was employed as a trainee in a hardware store in May 2017, and permitted to operate its store alone from August 2017, serving customers, receiving payment for items, issuing invoices, and recording sales in a sale book. In December 2017, he stole minorly in excess of $1,000 paid by customers in cash, omitting to record the foundation transactions. He pleaded not guilty in July 2018, but changed his plea to guilty in August 2019, on establishing the correct sums subject to his thefts. He unsuccessfully sought discharge without conviction, being sentenced instead to 150 hours’ community work, and ordered to pay reparations.

Judgment under appeal

[3]                  Mr Wu was entitled to be discharged without conviction only if the direct and indirect consequences of his conviction were out of all proportion to the gravity of the offence.3 Only then may the sentencing judge decide if to exercise residual discretion.4 The proportionality test is a question of fact requiring judicial assessment. There must be a “real and appreciable” risk any given consequence will arise; this recognises the court is assessing future likelihood.5

[4]                  The Judge considered Mr Wu’s offending was relatively serious, involving a breach of trust, and resisted for an extended period by him (without apology or reimbursement). He noted the victim nonetheless had not expressly dismissed Mr Wu for that offending, whose employment ended on other grounds. The application for

1      Police v Wu [2019] NZDC 25361.

2      Crimes Act 1961, ss 220 and 223(a). Maximum penalty seven years’ imprisonment.

3      Sentencing Act 2002, ss 106–107; Scott v R [2019] NZCA 261 at [78]–[80], citing Prasad v R

[2018] NZCA 537 at [11].

4      An appeal against a refusal to grant a discharge is an appeal against conviction and sentence; see

Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.

5      DC (CA47/2013) v R [2013] NZCA 255 at [43].

discharge without conviction was made, without reference to any substantiating information, exclusively on grounds Mr Wu’s subsequent employer of some fourteen months may dismiss him if his conviction came to light. That was an insufficient speculative basis on which “to conceal issues which are otherwise public from people who might have a genuine interest in knowing about them”.6

[5]                  Mr Wu’s counsel, Mark Ryan, argues on orthodox grounds the consequences of Mr Wu’s conviction on his current and future employment are wholly disproportionate to the gravity of his offending.

Approach on appeal

[6]                  An appeal against a refusal to grant a discharge without conviction is an appeal against conviction and sentence.7 I must allow an appeal against conviction if I am satisfied the Judge “erred in his … assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or if I am satisfied “a miscarriage of justice has occurred for any reason”. Otherwise I must dismiss the appeal.8 By ‘miscarriage of justice’ is meant something has occurred in relation to trial to create a real risk against a more favourable outcome for Mr Wu, or has resulted in an unfair trial or a nullity.9 The threshold is high; not every error will amount to a miscarriage of justice.10

[7]                  If Mr Wu can establish Judge Blackie was wrong, I will consider his application for discharge without conviction afresh.11

[8]                  If the conviction appeal fails, I then may determine if the correct sentence was imposed.12 But there is no challenge to the sentence here.

6      Police v Wu, above n 1, at [13].

7 At [9].

8      Sentencing Act 2002, ss 240 and 232.

9      Section 232(4); and R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].

10     Otis v Police [2019] NZCA 231 at [4]; and McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [38].

11     Maraj v Police [2016] NZCA 279 at [11]; and Austin, Nichols & Co Inc v Stichting Lodestar

[2007] NZSC 103, [2008] 2 NZLR 141 at [13].

12     Jackson v R, above n 4, at [13].

Further evidence

[9]                  Mr Wu seeks to adduce further evidence on appeal before me, explaining the circumstances of the termination of his former employment, the terms of his current employment, and his wish to enrol his daughter at a childcare centre at which his contended mandatory supervision of her would require a police check. Mr Wu should have put the information he now seeks to adduce before me before the Judge to provide a factual basis for a decision if the test was satisfied. But there was no legal onus on him to do so.13

[10]              Leave will be granted if the interests of justice favour admission of new evidence on appeal.14 If the evidence is both credible and fresh, it generally should be admitted.15

[11]              Mr Wu’s desired evidence falls a good way short on both counts. That Mr Wu’s former employer may have treated him unlawfully is not credible evidence he had some justification to steal in diminution of the seriousness of his offending. Self-help is not an available response. Neither is Mr Wu’s current employment contract’s reference to summary dismissal for criminal offending credible evidence his employment is at material risk. The test for dismissal remains one of objective justification, if “the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal … occurred”.16 Nor are the childcare centre’s requirements credible evidence his daughter could not be enrolled there, or Mr Wu’s dishonesty offending would disqualify him from her supervision. The evidence is simply that a police check is required for the person bringing the child to the centre. The terms of Mr Wu’s former and current employment were available at the time of the Judge’s decision, as likely were the childcare centre’s conditions, or at least their statutory foundation.17

13     R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [49] and [53]; and DC (CA47/2013) v R,

above n 5, at [43].

14     Criminal Procedure Rules, r 8.8; Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [119]; and

Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34].

15     Lundy v R, above n 14, at [120].

16     Employment Relations Act 2000, s 103A.

17     See also Education Act 1989, ss 319D–319FA: a “satisfactory Police vet”.

[12]              None of the proposed evidence offers any prospect Mr Wu’s trial may have miscarried. There is no interest of justice in its belated admission. I will not allow the further evidence to be adduced.

Discussion

—gravity of the offending

[13]              I do not accept Mr Wu’s offending was low-level. The Judge assessed the gravity of the offending as “relatively serious”. It was by an employee entrusted to operate a retail sales facility unsupervised, in which Mr Wu took advantage of his vulnerable employer, whose knowledge of Mr Wu’s offending only came inadvertently to his attention.

[14]              As I have explained in connection with refusing leave to adduce further evidence, Mr Wu’s personal circumstances are not mitigating. Neither does his dispute as to the amount stolen, or his resistance to reparation before this appeal is determined, offer any basis to reduce the gravity of his offending. It always was open to him to identify what he had stolen (especially as he says it precisely equated with that which he says he was owed), and to restore it, whether or not with police agreement.

—consequences of conviction

[15]              The Judge did not make any express finding as to the consequences of conviction. Nevertheless, his views on the seriousness of it were apparent from his description of the consequences as speculative, and no more serious than anyone before the court facing a dishonesty conviction. That is to say, where honesty is at issue in any endeavour, Mr Wu has an additional and warranted barrier to cross. But the actuality of those consequences for Mr Wu remain speculative, even on the additional evidence he would have me take into account.

[16]              I do not see the Judge’s reference to Mr Wu keeping his offending “under wraps” from his current employer is unjustifiably prejudicial to Mr Wu. It merely was a statement of fact, but illustrative of Mr Wu’s continuing lack of probity.

[17]              The effect of conviction on Mr Wu’s future employment prospects was central to the Judge’s reasoning. He directly confronted the prospect of prejudice in future employment, but considered future employers have a right to know of prospective employees’ relevant past offending. In continuation of Mr Wu’s retail sales career, that includes his dishonesty offending. Courts cannot be party to concealing that relevant background, to give Mr Wu unfair advantage in competition for work in which his trustworthiness is relevant.18 If he wishes a career in which his honesty is relevant, Mr Wu must re-earn that trust. Transparency of disclosure, and assurance of redemption, is the better course.

—proportionality

[18]              Far from being wholly disproportionate, the consequences of Mr Wu’s conviction are entirely condign to the gravity of his offending. There was no prospect of a more favourable outcome for Mr Wu. There was no miscarriage of justice.

Result

[19]The appeal is dismissed.

—Jagose J

18     Lawrence v Police [2016] NZHC 148 at [24].