Zeng v Police - [2021] NZHC 1057

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-215

[2021] NZHC 1057

BETWEEN
QIHUI ZENG

Appellant

AND

NZ POLICE

Respondent

Hearing: 22 February 2021

Appearances:

J M Grainger for the Appellant

B Hamilton and A Tumahai for the Respondent

Transcript provided:

12 April 2021

Judgment:

14 May 2021

JUDGMENT OF POWELL J

This judgment was delivered by me on 14 May 2021 at 12 noon Registrar/Deputy Registrar
Date:

ZENG v NZ POLICE [2021] NZHC 1057 [14 May 2021]

[1] Qihui Zeng has appealed his conviction and sentence, having been found guilty of assault with intent to injure by Judge A C Roberts after a judge-alone trial.1

[2] In a reserved judgment, Judge Roberts rejected the evidence of Mr Zeng and adopted the evidence of the complainant, Mr Zeng’s then partner, that he had cut her on the forearm with a knife.2

[3] Judge Roberts subsequently declined Mr Zeng’s application to be discharged without conviction.3 His Honour found that the accepted consequences of the conviction did not outweigh the gravity of the offence4 and sentenced Mr Zeng to five months’ community detention and 120 hours of community work.

[4]Mr Zeng appeals on three grounds:

(a)Mr Zeng’s choice of a judge-alone trial rather than a jury trial was not properly informed;

(b)Judge Roberts erred in declining to stay the prosecution following significant trial delays combined with the non-disclosure and subsequent loss of a photo of Mr Zeng’s forehead; and

(c)Judge Roberts erred in his assessment of the gravity of Mr Zeng’s offending when determining the discharge without conviction application.

[5] This Court must determine whether either of the first two issues has given rise to a miscarriage of justice.5 A miscarriage of justice means any error, irregularity or occurrence that has created a real risk that the trial outcome was affected or that has resulted in an unfair trial or a trial that was a nullity.6

1      Crimes Act 1961, s 193. Maximum penalty three years’ imprisonment.
2      New Zealand Police v Zeng [2019] NZDC 26429 at [3] and [22]-[23].
3      New Zealand Police v Zeng [2020] NZDC 4823.
4 At [22].
5      Criminal Procedure Act 2011, s 232(2)(c).
6      Section 232(4).

[6] With regard to the third ground of appeal, an appeal against a discharge without conviction is an appeal against conviction and sentence.7 Accordingly, the appeal stands to be determined pursuant to sub-pt 3 of pt 6 of the Criminal Procedure Act 2011. Section 232(2) of the Act in particular provides that the appeal must be allowed if there has been miscarriage of justice resulting from the refusal to grant a discharge without conviction, or as the Court in Jackson conceptualised it:8
... the principled basis for determining an appeal against a discharge without conviction is to establish that a miscarriage of justice has occurred by virtue of a material error by the sentencing judge in entering a conviction. That is because a trial includes a proceeding in which the…

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.

Continue reading Zeng v Police

Details

AGLC: Zeng v Police [2021] NZHC 1057
Case: [2021] NZHC 1057
Decision Date: 14 May 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Qihui Zeng appealed his conviction and sentence for assault with intent to injure. Zeng was found guilty by Judge A C Roberts in a judge-alone trial, and subsequently sentenced to five months' community detention and 120 hours of community work. Zeng's appeal was based on three grounds: his choice of a judge-alone trial rather than a jury trial was not properly informed, Judge Roberts erred in declining to stay the prosecution due to significant trial delays and the non-disclosure and subsequent loss of a photograph, and Judge Roberts erred in his assessment of the gravity of Zeng's offending when determining the discharge without conviction application.

The court first examined whether Zeng's choice of a judge-alone trial was properly informed. Zeng claimed that his lawyer did not adequately explain the differences between a jury trial and a judge-alone trial. However, the court found that Zeng was aware of the choice between the two systems of trial, and his decision was based on the perceived speed advantage of a judge-alone trial. The court concluded that there was no miscarriage of justice in this regard.

Second, the court considered whether the prosecution should have been stayed due to the significant delays in bringing the matter to trial and the non-disclosure of a photograph. The court found that the delays, while unfortunate, were not sufficient on their own to warrant a stay, and the loss of the photograph did not cause prejudice to Zeng in advancing his defence. As a result, the second ground of appeal also failed.

Lastly, the court examined whether Zeng should have been granted a discharge without conviction. Zeng argued that the consequences of conviction would be out of proportion to the gravity of the offence, given his low culpability and potential adverse impacts on his career and immigration prospects. However, the court found that Judge Roberts had appropriately categorised the offending as moderately serious and considered the mitigating features of the offending and offender, including Zeng's good character and community work. The court concluded that the consequences of conviction on Zeng were not out of all proportion to the gravity of his offending, and thus the third ground of appeal could not succeed.

In conclusion, the appeal was dismissed, and the conviction and sentence of Qihui Zeng were upheld.

Orders