Zheng v Police [2013] NZCA 423 (6 September 2013)

Last Updated: 11 September 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA581/2013 [2013] NZCA 423
BETWEEN	BOGONG ZHENG Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	6 September 2013 (by teleconference)
Court:	O’Regan P, Randerson and White JJ
Counsel:	S Tait and J Hudson for Appellant K A L Bicknell for Respondent
Judgment:	6 September 2013 at 4.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
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REASONS OF THE COURT

(Given by O’Regan P)

[1] This is an appeal against a decision of Priestley J in which he declined the appellant’s application for a variation of bail conditions to allow him to travel to the People’s Republic of China to attend his wedding celebrations.^[1]
[2] It was common ground that the decision was a discretionary one and there is no suggestion that the Judge failed to consider a relevant matter or took into account irrelevant matters. The appeal is advanced on the basis that the decision reached by the Judge is plainly wrong.
[3] The following summary of the factual background is largely adopted from the High Court judgment. No issue was taken with the Judge’s summary.
[4] The appellant is engaged to be married. Although he and his fiancée are Chinese nationals, both reside in New Zealand. In accordance with cultural traditions, arrangements were made some time ago for their wedding to be celebrated first in his fiancée’s city with her family in a Beijing hotel on 15 September 2013 and subsequently in his family’s city Qinhuangdao on 12 October 2013.
[5] The application for variation of bail conditions was made to the High Court because, in the inherent jurisdiction of that Court, bail can be granted with the imposition of sureties. It was proposed that a surety of $100,000 would be posted. We will give details of this later.
[6] The appellant is a Chinese national. He is aged 31. He has resided in New Zealand for approximately 10 years and has permanent resident status. However, he has not become a New Zealand citizen. The Judge found that the appellant was well settled in New Zealand. He operates a business in this country and appears to enjoy a prosperous lifestyle. He co-owns with his father three properties. His father and the rest of his family live in China.
[7] The appellant met his fiancée in 2008 and they became engaged in December 2012. His fiancée has permanent resident status in New Zealand as well.
[8] The Judge was satisfied that the couple had made their marriage plans and had sorted out the arrangements for the two ceremonies referred to earlier well before the alleged offending by the appellant.
[9] The offence with which the appellant is charged is the infliction of grievous bodily harm with intent to cause grievous bodily harm, an offence under s 188(1) of the Crimes Act 1961. The maximum penalty for this offence is 14 years’ imprisonment. He is charged jointly with two others. The alleged offending took place in an Auckland restaurant in mid-July. The injuries suffered by the victim were serious. The summary of facts which was before the High Court suggests that the appellant struck the victim’s head with a ceramic vegetable bowl and then there were a combination of punches and kicks to the victim’s face and body. These culminated with the appellant kicking the victim around the head a number of times while he was on the floor with both his feet, and with a chair. The injuries suffered by the victim include not only lacerations but a fractured skull and two broken eye sockets. As the Judge noted, these details were taken from the summary of facts, and so are, of course, subject to proof at trial.
[10] The Judge noted that the appellant’s counsel had suggested that the charge faced by the appellant was more serious than warranted by the incident, but as the Judge commented, that is a matter of conjecture at the moment.
[11] The appellant is next due to appear on 23 October 2013 in the Auckland District Court, but it is unlikely that there will be a trial until the middle of 2014.
[12] The nature of the variation of bail conditions sought by the appellant was a relaxation of the condition that required him to surrender his passport, so that he would be able to leave New Zealand to attend his wedding celebrations. The initial proposal was that he would be permitted to leave New Zealand for China via Hong Kong on 11 August 2013 and return to New Zealand on 26 October 2013. The Judge noted that there would need to be some modification to those dates given that the hearing took place well after 11 August 2013 and the appellant’s next appearance in the District Court is on 23 October 2013. The essence of the proposed variation is that the appellant be permitted to travel to China in time to attend the first ceremony on 15 September 2013 and to stay until after the second ceremony on 12 October 2013.
[13] The application was advanced on the basis that the appellant would arrange to borrow $100,000 from a bank on the security of the three properties which he coowns with his father and then pay that sum into court as a surety, which would be forfeited if he did not return.
[14] The evidence before the High Court was that over the past ten years the appellant had travelled to China and returned approximately 20 times. His counsel submitted that the appellant would not be likely to stay in China given that he had now lived in New Zealand for ten years and was leading a successful and prosperous life, and now had clear economic connection with New Zealand which would make it highly unattractive for him to remain in China. Against this, the submission from the Crown was that the imposition of the surety would not adequately deal with the risk that the appellant would not return, particularly given that the appellant has no family connections in New Zealand and his parents live in China.
[15] The Judge noted a number of authorities to which he was referred, but decisions in cases such as this are very fact-specific and we do not think these authorities advance matters greatly. Overall the Judge expressed sympathy for the appellant, but felt unable to accede to his request. The Judge was concerned that a custodial sentence was likely if the appellant were convicted, given the seriousness of the offending. He thought a home detention sentence would at least be required. However, he noted (correctly) that the appellant was entitled to the presumption of innocence.
[16] The key element to the Judge’s decision was the weighing of the various factors. Those in favour of granting the request were the fact that the appellant and his fiancée both had strong New Zealand connections and had permanent residency status here, the fact that the appellant (jointly with his father) owned three properties in New Zealand and conducted a business in this country, and the fact that it was clear that the wedding plans and arrangements were made well before the offending and so they were clearly not just a pretext for travel to China. The factors against the application were that the appellant’s family connections are in China and he has no family connections in this country, the lack of any extradition treaty between New Zealand and China which would make it difficult to force the appellant to return to New Zealand to face trial if he did not return voluntarily, and the real prospect of a custodial sentence in the event of his being convicted.
[17] The Judge expressed his concern at the distress that the refusal of the application would cause to the appellant and his fiancée but decided that the application must be dismissed.
[18] In this Court the appellant’s counsel, Mr Tait, argued that the Judge was plainly wrong to conclude that the provision of a surety of $100,000 would not, when considered in light of the factors mentioned above, adequately deal with the risk that the appellant would not return from China if permitted to travel there.
[19] Mr Tait said that the Judge had set the threshold too high, and had, in effect, required that there be no risk at all that the appellant would not return from China. Mr Tait focused in particular on the following key finding in the Judge’s decision:

[21] Nonetheless, and particularly given the fact that the centre of gravity of the applicant’s family is overseas and given further the fact that the surety, if drawn down in the manner which Mr Tait describes, would be one for which the applicant’s father would be personally liable, I consider that there remains a distinct possibility of a change of mind or the applicant deciding it might suit his purposes better not to return to New Zealand.

[20] While we agree that the focus of a bail decision is on making appropriate provision to deal with the relevant risks rather than requiring that the risks be eliminated completely, we do not consider that the Judge’s finding was without an evidential basis. We accept that the bond to be paid by the appellant would be money borrowed by him personally, but given that the security would be over the properties owned jointly with his father, it was not incorrect for the Judge to note a potential liability for his father if the surety were forfeited. We do not attach much significance to the use of the term “distinct possibility” in the Judge’s oral judgment: it seems to us that the real gravamen of the Judge’s decision was that the factors weighing for and against the application came down, in a balancing exercise, on the side of determining that the risk of failing to return was not low enough to justify the application being granted.
[21] The Judge referred to a decision he had made some days previously, Bian v New Zealand Police.^[2] In Bian v New Zealand Police, the Judge commented that the purpose of a surety was to fund extradition proceedings should an accused decide not to return, having been permitted to leave the jurisdiction on payment of a surety. The Judge adopted that comment in the present case as well. It was argued that this misstated the principal purpose of the surety which is to provide an incentive for the person who has been permitted to leave the jurisdiction to return as required by the terms of his or her bail, thus reducing the risk of the failure of return to a level which satisfies the Court that the permission to leave the jurisdiction should be given.
[22] We accept that the purpose of using a forfeited surety to fund extradition proceedings is very much a secondary consideration, but we do not see this as having been a significant component of the decision made by the Judge in the present case. The important point is that travel to a country with which there is no extradition treaty involves an additional risk for the New Zealand authorities that, in the event the person who has been permitted to leave the jurisdiction fails to return, it may not be possible to enforce their return through the use of extradition or similar processes. We agree with the Judge that this is a relevant consideration though it is not a controlling one.
[23] As we mentioned earlier, we see cases such as the present as being fact-specific. What is required is a careful balancing of the factors for and against the application. In the present case, the Judge has reached the view that the factors in favour of allowing the application (the high surety offered, the appellant’s strong connections with New Zealand including that he and his fiancée are both permanent residents, that he owns properties (jointly with his father) in New Zealand and that he operates a business in this country, along with the fact that he has no previous convictions did not outweigh those against the application. The most significant of these are the fact that his family connections are all in China, there are no extradition arrangements between the Governments of New Zealand and the People’s Republic of China and the fact that a custodial sentence is in prospect for the appellant in the event of conviction.
[24] We see the case as more finely balanced than the Judge did. Another Judge may have concluded that the application should be granted. But we are conscious that in an appeal against the exercise of a discretion where no suggestion is made that the Judge failed to consider relevant matters or took into account irrelevant matters, the appellate standard that must be applied is that the decision is “plainly wrong”.^[3] We do not consider that the decision in this case can properly be described as plainly wrong. In those circumstances we dismiss the appeal.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Zheng v New Zealand Police [2013] NZHC 2255.

^[2] Bian v New Zealand Police [2013] NZHC 2192.

^[3] B v Police (No 2) [2000] 1 NZLR 31 (CA).