Zhang v Police - [2020] NZHC 2151

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…

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: [2020] NZHC 2151
Decision Date: 24 August 2020

CaseChat Overview and Summary

The case of Zhang v Police concerns an appeal by Naishi Zhang against the decision of the District Court, which had refused his application for discharge without conviction on three charges related to drug possession and supply. The appeal was heard virtually on 24 August 2020 by Jagose J, who upheld the appeal, setting aside the District Court's decision and discharging Zhang without conviction on the three drug-related charges. The key legal issues the court had to decide involved whether the consequences of Mr Zhang's conviction were disproportionate to the gravity of his offending, and if there was a miscarriage of justice in the District Court's decision.

The court first considered whether the District Court's refusal to grant a discharge without conviction constituted a miscarriage of justice. Jagose J noted that the District Court's indication of discharging Zhang without conviction on the firearms charge, but not on the drug-related charges, suggested a more favorable outcome might have been at risk, thereby meeting the high threshold for a miscarriage of justice. The court then reassessed the proportionality of the consequences of Mr Zhang's conviction to the gravity of his offending. Jagose J determined that while Mr Zhang's offending was of low to moderate gravity, the consequences of his conviction, particularly the potential impediment to his travel to China due to his criminal record, were proportionate to the seriousness of his offending. The court found that the potential difficulty in gaining entry to China was not sufficiently disproportionate to warrant discharge without conviction.

Given the findings that there was no miscarriage of justice and that the consequences of conviction were proportionate to the gravity of the offending, Jagose J upheld the appeal. The District Court's decision was set aside, and Mr Zhang was convicted but discharged without conviction on the three drug-related charges. This outcome reflects a careful balancing of the consequences of conviction against the nature and seriousness of the offending.

Orders