Xing v Auckland Council - [2025] NZHC 1874

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-263

[2025] NZHC 1874

BETWEEN
WEIWEI XING

Appellant

AND

AUCKLAND COUNCIL

Respondent

Hearing: 30 June 2025

Appearances:

T A Hwang for Appellant B V Magill for Respondent

Judgment:

10 July 2025

JUDGMENT OF WILKINSON-SMITH J

This judgment was delivered by me on 10 July 2025 at 12 pm.

………………………… Registrar/Deputy Registrar

Solicitors/Counsel:
Queen City Law, Auckland Auckland Council, Auckland

XING v AUCKLAND COUNCIL [2025] NZHC 1874 [10 July 2025]

Introduction

[1] On 1 May 2025 Weiwei Xing entered a guilty plea in respect of one charge of owning a dog that attacked a person contrary to s 57(2) of the Dog Control Act 1996.1

[2] Judge K Davenport KC in the District Court discharged Mr Xing without conviction pursuant to s 106 of the Sentencing Act 2002. She ordered Mr Xing pay reparation to the victim of $60 and $2,000 to the Auckland Council. An order was made for the destruction of Mr Xing’s dog.

[3] Mr Xing now appeals against the order for destruction of the dog on the grounds that the destruction order was an error because a conviction of a dog’s owner is a precondition to an order for destruction being made under s 57(3) of the Dog Control Act.

[4] The respondent opposes the appeal and submits that jurisdiction to make the order exists pursuant to s 106(3)(c) of the Sentencing Act.

The offending

[5] The appellant, Mr Xing, was jointly responsible with his wife, Ms Yuan, for Bi Dong, a tan and white male Shiba Inu. Ms Yuan was the registered owner of Bi Dong.

[6] On 4 May 2024 at approximately 12.15 pm the complainant was walking his dog Jack in a Remuera reserve. The complainant noticed Bi Dong on the reserve apparently unaccompanied. Bi Dong then approached Jack and started growling. The complainant moved away from Bi Dong and Jack followed the complainant. Bi Dong approached Jack from behind and the dogs started growling and biting at each other’s faces. Jack was not injured. The complainant reached down to grab Jack by the collar and pull him away from Bi Dong. Bi Dong then bit the complainant on his right lower leg before running off. The complainant sustained a three-centimetre laceration to his lower right shin and three puncture wounds to the back of his lower right leg. The complainant’s leg bled heavily as a result of the bite, requiring medical treatment.

1 Auckland Council v Xing [2025] NZDC 12271.

[7] In a statement, Mr Xing acknowledged he and his wife were Bi Dong’s owners and accepted Bi Dong had escaped their property and bitten the complainant. Mr Xing did not cooperate with animal management following the incident and refused access to his property when animal management arrived to seize and impound Bi Dong. By the time police arrived to assist animal management with the seizure, Bi Dong was not able to be located. Bi…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NZHC 1874
Decision Date: 10 July 2025

CaseChat Overview and Summary

In the High Court of New Zealand, Weiwei Xing appeals against the order for the destruction of his dog, Bi Dong, which was made by Judge K Davenport KC in the District Court. The appeal is based on the contention that the destruction order was erroneous, as a conviction of the dog's owner is required before such an order can be made under s 57(3) of the Dog Control Act 1996. The Auckland Council opposes the appeal, asserting that the jurisdiction to make the order exists under s 106(3)(c) of the Sentencing Act 2002.

The legal issues revolve around the jurisdictional basis for the destruction order, particularly whether a conviction is necessary for such an order under the Dog Control Act and whether the court retains the discretion to order destruction under s 106(3)(c) of the Sentencing Act when granting a discharge without conviction. The court must determine if the destruction order was appropriately made and whether the appellant’s lack of opposition was due to a misunderstanding of his legal rights.

The court found that while a conviction is typically required for a destruction order under the Dog Control Act, the court retains discretion to make such an order under s 106(3)(c) of the Sentencing Act when granting a discharge without conviction. The court held that the destruction order could be made if it was an order that the court would have been required to make upon conviction, provided no exceptional circumstances were present. In this case, the District Court did not consider whether exceptional circumstances existed, and no such evidence was presented. The court concluded that the appeal must be allowed due to the risk of a miscarriage of justice arising from the appellant's mistaken understanding of his legal position.

The appeal is allowed, and the order for destruction of Bi Dong is quashed. The matter is remitted to the District Court for reconsideration of the destruction order, allowing the appellant to present any relevant evidence.

Orders