Xing v Auckland Council
[2025] NZCA 433
•27 August 2025 at 12 pm
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
CA498/2025
[2025] NZCA 433
BETWEEN WEIWEI XING Applicant AND AUCKLAND COUNCIL Respondent
| Court: | French P and Collins J |
| Counsel: | T A Hwang for Applicant |
| B V Magill for Respondent | |
| Judgment: | 27 August 2025 at 12 pm |
| (On the papers) |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by French P)
Background
Mr Xing pleaded guilty to a charge under s 57(2) of the Dog Control Act 1996
of being the owner of a dog that attacked a person. The District Court Judge,
Judge Davenport KC, discharged Mr Xing without conviction under s 106(1) of the
Sentencing Act 2002 on the condition that he pay reparation and that Mr Xing’s dog,
Bi Dong, be destroyed.[1] During the hearing, in response to the Judge’s question about the dog’s whereabouts, Mr Xing said he had not seen him since the day of the attack
[1] Auckland Council v Xing [2025] NZDC 12271 at [3].
and did not oppose an order being made for his destruction.
Section 57(3) of the Dog Control Act relevantly provides that in a proceeding
under s 57(2), the Court must order the destruction of the dog if it has committed an
attack unless satisfied that due to “exceptional” circumstances a destruction order is
not warranted. In the 2020 decision of Auckland Council v Hill,[2] this Court provided
[2] Auckland Council v Hill [2020] NZCA 52, [2020] 3 NZLR 603.
guidance as to what is to be taken into account when considering whether there are
exceptional circumstances.
This Court has also confirmed in a 2024 decision, Solicitor-General’s reference
from CRI-2022-404-212 ([2022 NZHC 31]), that there is no jurisdiction under s 57(3)
to make a destruction order in the absence of a conviction, such as where the dog
owner is discharged without conviction.[3]
[3] Solicitor-General’s reference from CRI-2022-404-212 ([2022] NZHC 31) [2024] NZCA 401,
In reliance on this latter decision, Mr Xing subsequently appealed the
destruction order for his dog to the High Court on the grounds of lack of jurisdiction.
On appeal, Wilkinson-Smith J observed that the District Court sentencing notes
did not specify the statutory provision under which the Judge was purporting to act.[4]
[4] Xing v Auckland Council [2025] NZHC 1874 at [25].
We pause here to interpolate that, in his submissions, Mr Xing contends that it was not
open to the Judge to determine that the District Court ordered destruction under the
Sentencing Act, instead of the Dog Control Act. However, in our view, that is to
misinterpret the High Court decision. The point the High Court Judge was making
was that it was uncertain which of the two statutory provisions the District Court Judge
was relying on.[5] Arguably, if anything, given that the District Court Judge was making
[5] The High Court judgment records that the District Court did not discuss the legislative basis for
an order under s 106(1), it could be said that it was more likely the order was made
under the Sentencing Act.
Returning to the High Court decision, Wilkinson-Smith J further held that,
although the District Court Judge did not have jurisdiction to make the order under
s 57(3) of the Dog Control Act, there was jurisdiction under s 106(3)(c) of the
Sentencing Act.[6] Section 106(3)(c) provides:
[6] At [16]–[17].
106 Discharge without conviction
… (3) A court discharging an offender under this section may— …
(c) make any order that the court is required to make on conviction.
Applying this provision to destruction orders made under s 57(3) of the Dog
Control Act, Wilkinson-Smith J held that in the absence of exceptional circumstances,
such an order would qualify for the purposes of s 106(3)(c), being an order the Court
would have been required to make had Mr Xing been convicted.[7] Unfortunately,
[7] At [26].
s 106(3)(c) had not been raised in the District Court and accordingly there was no
evidence or submissions about the existence or otherwise of exceptional circumstances
and it was not addressed by the Judge.[8] Wilkinson-Smith J further accepted that, in
[8] At [25]–[29].
the District Court, Mr Xing had been labouring under the misapprehension that his
agreement to a destruction order was a condition precedent to obtaining a discharge.[9]
[9] At [29] and [33]–[34].
Given those circumstances, Wilkinson-Smith J concluded that the most just
disposition of the appeal was to quash the order for destruction and remit the case to
the District Court for re-consideration of whether an order for destruction of the dog
should be made pursuant to s 106(3)(c).[10]
The application before us
[9] Mr Xing now seeks leave to appeal the High Court decision to this Court. Leave is required under s 253 of the Criminal Procedure Act 2011 because such an appeal would be a second appeal. In order to obtain leave, Mr Xing must satisfy us
that his proposed appeal raises a question of general or public importance or that a
miscarriage of justice may have occurred, or may occur unless the appeal is heard.[11]
[10] At [33]–[37].
[11] Criminal Procedure Act 2011, s 253(3).
Mr Xing argues that test is met because his proposed appeal raises the issue of
whether a dog destruction order qualifies as a mandatory order for the purposes of
s 106(3)(c).
If that were an arguable issue, we accept it would indeed be a question of
general importance. But in our view, it is not. The basis for the argument Mr Xing
seeks to advance on appeal is that because conviction has now been confirmed as a
necessary pre-condition to a dog destruction order under s 57(3), then this precludes
or ousts any power under s 106(3)(c) to make such an order. However, that would
render s 106(3)(c) meaningless. The provision is premised on there being no
conviction. Further, Mr Xing’s reliance on Solicitor-General’s reference is misplaced.
The reasoning in that decision is confined to the provisions of the Dog Control Act
and there is no suggestion that it was intended to impact on the Court’s discretion
under s 106(3)(c). Indeed, on the contrary, the judgment refers without comment to
the fact that the High Court Judge, having held that a conviction was a condition
precedent to making an order under s 57(3) of the Dog Control Act, nevertheless went
on to consider the making of such an order under s 106(3)(c).[12]
[12] Solicitor-General’s reference from CRI-2022-404-212 ([2022] NZHC 31), above n 3, at [11].
The proposed appeal in this case also faces the insuperable barrier that dog
destruction orders are indistinguishable from other types of orders, such as
disqualification orders under the Land Transport Act 1998, which are indisputably
within the scope of s 106(3)(c).[13] In both cases, the orders are mandatory on
conviction — that is to say, they are required in every case, or in the absence of a
prescribed exception. In the case of disqualification orders, the principal prescribed
exception is the existence of a special reason relating to the offence.[14] In this case, the prescribed exception is the existence of exceptional circumstances.[15] Absent
exceptional circumstances, the order must be made.
[13] Other examples are orders for confiscation of motor vehicles under s 129(3) of the Sentencing Act
[14] Land Transport Act 1998, s 81(1).
[15] Dog Control Act 1996, s 57(3).
In our view, the approach taken by the High Court Judge in this case is
unarguably consistent with the authorities,[16] as well as with the wording of s 106(3)(c)
and the public safety policy of the Dog Control Act. We are unable to discern any
arguable issue of statutory interpretation, principle or policy that would possibly
justify rejecting the established position.
[16] See, for example, Adams v South Taranaki District Council [2021] NZHC 3254 at [44]; Fountain
At the risk of stating the obvious, we add that the process required under
s 106(3)(c) is for the sentencing Court to first consider whether the order is one that it
would have been required to make on conviction. In the context of this case, that
means determining whether the prescribed exception (the existence of exceptional
circumstances, as defined in Hill) is satisfied. If there are found to be exceptional
circumstances, then the order would not have been required to be made on conviction
and, in turn, that means 106(3)(c) does not apply, and no destruction order can be
made.
Conversely, if the finding is there are no exceptional circumstances, as defined
in Hill, that does not, of itself, mean a destruction order must automatically follow as
it would had the person been convicted. Otherwise, the existence of the discretion
under s 106(3)(c) would be meaningless. The discretion contained in s 106(3)(c) is
intended to enable a broader range of factors to be taken into account than those
driving the conclusion that the statutory exception is not met. Thus, although public
safety concerns will still be relevant, pre-attack and post-attack history may, for
example, be taken into account at this stage of the inquiry.
[16] For completeness, we also observe that there are no grounds for arguing the risk of a miscarriage of justice if leave is not granted. The only aspect of the remittal relates to the dog destruction order. Mr Xing still retains the benefit of a discharge
without conviction. And, he is still able to provide evidence and submissions in
support of his contention that a destruction order should not be made.
For all these reasons, the application for leave to bring a second appeal is
declined.
Outcome
The application for leave to bring a second appeal is declined.
| Solicitors: |
Queen City Law, Auckland for Applicant
XING v AUCKLAND COUNCIL [2025] NZCA 433 [27 August 2025]
[2024] 3 NZLR 656 at [66].
the destruction order: at [9].
2002 and forfeiture orders under the Fisheries Act 1996. See Fountain v Auckland Council [2018]
NZHC 591, [2018] 3 NZLR 216 at [40].
v Auckland Council, above n 13, at [40]–[43]; and Snodgrass v Kapiti Coast District Council
[2014] NZHC 1333, [2014] NZAR 834 at [54]. Our review of the caselaw has identified only one
High Court decision contrary to the approach taken by Wilkinson-Smith J in this case and, in any
event, it involved an obiter statement based on a mistaken assumption about the absence of any
exceptions to mandatory disqualification orders under the Land Transport Act. See Ingle v
Auckland Council [2020] NZHC 1164 at [110]–[111].
0
0
0