Zhang v Police
[2020] NZHC 2151
•24 August 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-238
[2020] NZHC 2151
BETWEEN NAISHI ZHANG
Appellant
AND
NEW ZEALAND POLICE
Respondent
Virtual hearing: 24 August 2020 Appearances:
M Pitch for the appellant
EHK Rangamuwa for the respondent
Judgment:
24 August 2020
REASONS FOR JUDGMENT OF JAGOSE J
This judgment was delivered by me on 24 August 2020 at 3.00pm.
…………………………
Registrar/Deputy Registrar
Counsel/Solicitors:
Maxine Pitch Lawyer, Auckland
Meredith Connell, Crown Solicitor, Auckland
ZHANG v NEW ZEALAND POLICE [2020] NZHC 2151 [24 August 2020]
[1] In April 2019, Naishi Zhang pleaded guilty to charges of carrying an imitation firearm;1 possession of cannabis for supply;2 possession of ecstasy;3 and possession of instruments for the purpose of using cannabis.4 Mr Zhang applied to be discharged without conviction. In the District Court at Auckland on 4 June 2020, Judge E M Aitken refused his application, entering convictions against him on the latter three charges.5 Mr Zhang now appeals to this Court.
[2] At the conclusion of today’s hearing – significantly abbreviated by reason of the unreliability of the virtual hearing facility, which meant Mr Zhang’s counsel only intermittently could be heard – I upheld the appeal, and set aside the Judge’s decision, and convicted and discharged Mr Zhang, on the three drugs charges, with reasons to follow. These are those reasons.
Background
[3] Mr Zhang came to police attention in the evening of 12 December 2018, when he approached someone on the street in Auckland’s Onehunga, to ask them to call police because he had been smoking cannabis and feared for his safety. When police attended, he told them he was carrying an airgun for protection. Police located the imitation firearm down the back of Mr Zhang’s pants, and 2 grams of cannabis plant in his pocket. Mr Zhang told police he had more at home for sale. On searching his home, police located nearly 24 grams of cannabis plant (just under the threshold for deemed supply),6 ten ecstasy tablets, and various drug-using and dealing paraphernalia.
Judgment under appeal
[4] Mr Zhang 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
1 Arms Act 1983, s 46(1). Maximum period of imprisonment: two years.
2 Misuse of Drugs Act 1975, s 6(1)(f). Maximum period of imprisonment: eight years.
3 Section 7(1)(a) and (2). Maximum period of imprisonment: three months.
4 Section 13(1)(a) and (3). Maximum period of imprisonment: one year.
5 Police v Zhang [2020] NZDC 10110. An addendum to the judgment records “[c]onvictions are entered on three charges, but not on the firearms charge as the Court is satisfied that to do so could convey a more serious factual scenario than the facts actually support. In respect of the firearms charge, therefore, the application is granted”.
6 Misuse of Drugs Act 1975, s 6(6).
of the offence.7 Only then may the sentencing judge decide if to exercise residual discretion. There must be a “real and appreciable” risk any given consequence will arise; this recognises the court is assessing future likelihood.8 The proportionality test is a question of fact requiring judicial assessment.9
[5] The Judge noted this was Mr Zhang’s first offending, in which he had obtained police attendance, co-operated with their enquiry, and pleaded guilty at an early date. She observed the impact of his apparently drug-induced or aggravated psychosis on his culpability, and assessed his offending accordingly as “moderately serious”, “at the lower end”, but “not … minor”.10 The sole consequence relied on as disproportionate was the prospect Mr Zhang, a New Zealand citizen, would not be able to travel to China to visit his grandmother, by whom he had been raised in accordance with Chinese tradition until the age of five, when he relocated to New Zealand with his parents. Accepting that consequence was a real and appreciable risk, the Judge noted the grandmother’s recent presence in New Zealand, entitlement permanently to reside in New Zealand, and other means of maintaining contact as a “key figure” to Mr Zhang, to conclude his inability to travel to China was not disproportionate.11
[6] Mr Zhang’s counsel, Maxine Pitch, argued on appeal Mr Zhang’s convictions constitute a miscarriage of justice as:
(a)failing to address the Court’s prior indication of discharge without conviction on his completion of rehabilitative interventions;
(b)being inconsistent with his discharge without conviction on the firearms charge;
(c)irrelevantly considering the grandmother’s circumstances, to the extent those considerations amount to an error of law; and
7 Sentencing Act 2002, ss 106–107; Scott v R [2019] NZCA 261 at [78]–[80], citing Prasad v R
[2018] NZCA 537 at [11].
8 DC (CA47/2013) v R [2013] NZCA 255 at [43].
9 Dickins v R [2012] NZCA 265 at [14], citing H (CA680/2011) v R [2012] NZCA 198 at [30] (citing
R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11], citing R v Rajamani [2007] NZSC 68,
[2008] 1 NZLR 723 at [5]).
10 Police v Zhang, above n 5, at [14].
11 At [16]–[17].
(d)failing both to assess the least restrictive outcome in sentencing Mr Zhang and the mitigating circumstances of Mr Zhang’s rehabilitation, progress, and youth.
Approach on appeal
[7] An appeal against a refusal to grant a discharge without conviction is an appeal against conviction and sentence.12 I must allow an appeal against conviction if I am satisfied the Judge “erred in [her] … 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.13
[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 Zhang, or has resulted in an unfair trial or a nullity.14 ‘Trial’ is defined to include “a proceeding in which the appellant pleaded guilty”.15 The threshold is high; not every error will amount to a miscarriage of justice.16
[9] If Mr Zhang can establish Judge Aitken was wrong, I will consider his application for discharge without conviction afresh.17
[10] Ordinarily, if the conviction appeal fails, I then may determine if the correct sentence was imposed.18 Save for Ms Pitch’s ‘inconsistency’ argument, there is no challenge to sentence here. I infer the Judge’s addendum means to direct Mr Zhang was convicted and discharged on the drugs-related charges.19 Had the Judge not been express as to the grant of Mr Zhang’s application on the firearms charge, I should have thought that an available outcome there also.
12 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.
13 Criminal Procedure Act 2011, s 232.
14 Section 232(4); and R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
15 Section 232(5).
16 Otis v Police [2019] NZCA 231 at [4]; and McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [38].
17 Criminal Procedure Act 2011, s 233; 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].
18 Jackson v R, above n 12, at [13].
19 Sentencing Act 2002, s 108.
Discussion
—miscarriage of justice
[11] Coming after Mr Zhang’s guilty pleas, the District Court’s indication of discharge without conviction was not a formal sentencing indication,20 and another sentencing judge was not in any event bound by it.21 But the unexplained discrepancy between indication for and result in sentencing illustrates there was a reasonable possibility an outcome more favourable to Mr Zhang was at risk. The presence of that risk suffices to meet the miscarriage of justice threshold.22 I therefore turn to consider Mr Zhang’s application for discharge without conviction afresh.
—gravity of offending
[12] I have read the affidavits filed in the District Court. They identify Mr Zhang’s mental health issues at the time of his offending, described by him as resulting in his delusion his mother had been killed and her body was in the back of the van he was driving, and their subsequent improvement under medication. I am aware the Judge also had a psychologist’s report, contending for Mr Zhang’s “schizophrenic-like disorder … complicated by cannabis and MDMA abuse disorders”, without absolving him of liability but reducing his culpability. Mr Zhang says his medication rendered him ineligible to attend a rehabilitation facility, but he has obtained fulltime employment and is enrolled for tertiary study.
[13] I take the supply charge as the lead offending. Leaving aside his guilty plea, Mr Zhang’s separate admission to police of his possession for supply elevates that offending above the lowest threshold and reduces the impact of his mental health on that offending. For the same reasons, the other offending is neither aggravating nor mitigating. Having regard for his youth, I assess the gravity of his offending as low to moderate.
20 Criminal Procedure Act 2011, s 60.
21 Section 116(3).
22 R v Sungsuwan, above n 14, citing Tuia v R [1994] 3 NZLR 553 (CA) at 555.
—consequences of conviction
[14] Mr Zhang’s mother said she and her son emigrated to New Zealand in 2003, and became New Zealand citizens in 2015. Her parents frequently visited them here, and Mr Zhang’s grandmother came to live here after the grandfather’s death in 2013, before deciding to return to China in later 2019. The affidavit seemingly was made in anticipation of the three travelling together for that return, and then for Mr Zhang to “visit as often as he is able”, as they had done five times since becoming New Zealand citizens. Mr Zhang’s mother is “fearful [he] will be denied a visa if convicted”.
[15] An immigration lawyer offered her expert opinion Mr Zhang, who – by reason of his New Zealand citizenship, and China’s prohibition of dual nationality – requires a visitor’s visa to enter China, may find his conviction “a major impediment to … being granted entry into and temporary stay in China”, on the basis applicants are required to “declare their criminal record”. The application asks: “[d]o you have any criminal record in China or any other country?”.23 Ms Pitch separately filed a document seemingly obtained from a Chinese government website, purporting to be the “Exit and Entry Administration Law of the People’s Republic of China”.24 Article 21(3) and (6) provide “visas shall not be provided to foreigners [who] … [may] endanger China’s national security or interests, or disrupt social and public order, or engage in other illegal or criminal activities” or in “[o]ther circumstances in which visa authorities consider a visa should not be issued”.
[16] When discharge is sought on the basis conviction will impede travel to a particular jurisdiction, detailed and reliable evidence is required under the law and practice of the jurisdiction concerned:
(a)a conviction has to be disclosed but, if discharged, the fact the offence was committed need not be; and
(b)in consequence of a conviction, the applicant would prima facie be unable to gain entry, whether at all or for some time; and
23 The application also requires disclosure of any current “serious mental disorder”.
24 Adopted at the 27th meeting of the Standing Committee of the Eleventh National People’s Congress on 30 June 2012. The Law also prohibits issue of visas to foreigners “suffering from serious mental disorders”.
(c)there is no alternative entry process available or, if there is, such a process would be unreasonably difficult and uncertain in all the circumstances.
Even if all these are established, I must further be satisfied the offence is not so serious it would be wrong to allow Mr Zhang to present himself to foreign immigration authorities without disclosing it. Proof of these matters may require expert evidence.25
[17] The immigration lawyer’s evidence does not cross the evidentiary threshold. I do not know what Chinese authorities consider constitutes a criminal record, or what they may assess to qualify as risking national security or interests or social and public order or illegal or criminal activities. She does not stipulate entry to China would be denied, but only his conviction “could be a major impediment”. In concluding her opinion, without further explanation, she amplifies that to conviction “will seriously impede permission to enter and remain in China”.26 In neither case does she identify how, or in what circumstances, with what prospect of being overcome by Mr Zhang. Even although assessing future likelihood, I may not speculate on matters of present fact, which the immigration lawyer does not establish.
—proportionality assessment
[18] I accept the requirement to disclose a criminal record to Chinese authorities in seeking to gain entry to that country is a consequence of Mr Zhang’s offending, which would not exist at least if he had not offended. I do not know if it would continue to exist if Mr Zhang was discharged without conviction, even although in New Zealand law discharge without conviction is deemed an acquittal.27
[19] I acknowledge the impact Mr Zhang’s offending likely has had on his family relations. I do not see them materially further aggravated by his conviction. Mr Zhang’s sought discharge on grounds of speculative travel and as speculative
25 Edwards v R [2015] NZCA 583 at [25]–[27].
26 The immigration lawyer drew the same conclusion in terms of Mr Zhang’s travel prospects to Australia (which is not relied on by Mr Zhang for the purposes of his s 106 application), but it is well-accepted such conviction only results in an evaluative exercise by Australian authorities to ascertain if the offender met a good character test: Wanoa v Police [2018] NZHC 259; R v Taulapapa [2018] NZCA 414.
27 Sentencing Act 2002, s 106(2).
constraints do not sufficiently tip the scales.28 Far from being wholly disproportionate, the direct and indirect consequences of Mr Zhang’s conviction are entirely condign to the gravity of his offending.
Result
[20] I therefore upheld the appeal, and set aside the Judge’s decision, and convicted and discharged Mr Zhang, on the three drugs charges.
—Jagose J
28 Brunton v Police [2012] NZHC 1197 at [16]; Marszolek v Police [2015] NZHC 2858 at [35].
0
12
0