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Kuang v Police [2012] NZHC 3369 (11 December 2012)

Last Updated: 9 January 2013


IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000317 [2012] NZHC 3369


JIANZHAN KUANG

Appellant


v


NEW ZEALAND POLICE

Respondent

Hearing: 11 December 2012

Appearances: E Te Whata for appellant

E Rutherford for respondent

Judgment: 11 December 2012


ORAL JUDGMENT OF CHISHOLM J

[1] Having pleaded guilty in the District Court to common assault and committing a threatening act, Mr Kuang sought discharge under s 106 of the Sentencing Act 2002. His application was declined. He was then convicted and sentenced to 12 months supervision and ordered to complete 80 hours community work.

[2] This appeal is confined to the refusal to grant a discharge without conviction. It is alleged that the Judge failed to take into account relevant evidence concerning the gravity of the offending, gave inadequate consideration to the consequences of the conviction, and failed to properly evaluate whether the consequences were out of

all proportion to the gravity of the offending.

KUANG V NEW ZEALAND POLICE HC AK CRI-2012-404-000317 [11 December 2012]

[3] An application to adduce further evidence is before the Court. That application relates to a letter from a lawyer in China to the effect that if a person seeking an entry visa for the People’s Republic of China has a criminal record then it is impossible to gain an entry visa.

[4] Given that Ms Te Whata does not place a great deal of reliance on the absolute terms stated in the letter, I do not think that anything would be achieved by admitting this evidence. As will be mentioned shortly, there is other relevant evidence concerning the likely impact of convictions on Mr Kuang’s ability to enter China.

The offending

[5] In many respects this offending has highly unusual features. It appears that the appellant was severely depressed and his wife thought that he was about to leave in his car for the purpose of committing suicide. She declined to give him the keys.

[6] An argument developed and Mr Kuang screamed at his wife, thereby awakening their 24 year old son. Mr Kuang then grabbed his wife by the shoulder and started repeatedly striking her, yelling that they were going to the car to die together. As she tried to pull away Mr Kuang put both hands around her neck and tried to pull her inside the vehicle.

[7] At this point Mr and Mrs Kuang’s son intervened and tried to free his mother. However, Mr Kuang slapped his wife on the check before he was wrestled to the ground by their son. When their son asked his mother to ring the police she refused. Ultimately Mrs Kuang and their son took refuge in a bedroom and closed the door. Mr Kuang then went to the kitchen, grabbed a knife, and plunged it into the closed bedroom door, narrowly missing the couple’s son.

[8] Mr Kuang had left the house by the time the police arrived but was located soon after.

[9] Mr and Mrs Kuang came to New Zealand from China in 1995 and Mr Kuang is now a New Zealand national. He is 55 years of age and does not have any previous convictions. According to Mr Kuang’s affidavit his family had been experiencing financial difficulties with their export business, and he had suffered from depression.

[10] At sentencing a report from a victim advisor, supported by a statement by Mrs Kuang, was before the Court. Mr and Mrs Kuang have been married for 30 years. Mrs Kuang confirmed that her husband suffered from very bad depression and had tried to kill himself in 2007 and 2008. She was still highly supportive of her husband whom she describes as “a nice man, a good husband and a good father”. She expressed confidence that they would be able to work their way through the difficult times they had encountered.

[11] A forensic court liaison nurse also provided a brief report. She recorded a history of depression for which Mr Kuang was now receiving support and treatment from mental health services.

The District Court decision

[12] Having briefly described the offending, the Judge categorised it as “significant”. He also noted that the assault carried a maximum term of 12 months imprisonment and the threatening act, a maximum of three years.

[13] Turning to the consequences of a conviction the Judge noted that Mr and Mrs Kuang had emigrated to New Zealand and set up business in this country. He also appears to have accepted that the export business required promotion which involved Mr Kuang travelling to and from other countries, particularly China. He noted that there was evidence that convictions could give rise to difficulties in entering China and that this evidence came from what is “effectively a travel agency”. He expressed uncertainty about the actual position and commented that the person providing the information “is not an expert in this situation”.

[7] It seems to me that what you are asking me to do is to conceal from the authorities in China the true position so that you are able to apply for a visa to go back to China and to gain entry without telling China about yourself and that is not my role. The Chinese authorities need to decide whether or not you can get a permit to go to China, not me.

[8] Earlier today I gave counsel the decision of the Commissioner of

Inland Revenue v Abdale DC Manukau CRI-2006-092-16809, 26 March

2009 which sets out very clearly that where there is an authority which determines whether or not a person should be admitted into a profession or

into a situation such as this where a visa application is to be considered, that

the Courts should not be involved in that process. The body that is set up to deal with it, they are the ones that should consider all the facts and make the appropriate decisions.

[15] Finally the Judge considered whether the consequences of convictions would be out of all proportion to the seriousness of the offending. He noted that Mr Kuang’s wife was “part and parcel of the business” and proceeded on the basis that she could undertake any travel to China that might be necessary for the business. The application for discharge was dismissed.

Discussion

[16] There is no question that the Judge adopted the correct approach in the sense of applying the three steps required by ss 106 and 107 of the Sentencing Act described by the relevant authorities: the first step is to identify the gravity of the offending; the second step is to identify the direct and indirect consequences of a conviction; and the third step is to assess whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.

[17] For the appellant Ms Te Whata effectively contended that the Judge had failed to take into account all relevant circumstances when assessing the seriousness of the offending, had an adopted an unduly narrow approach when considering the direct and indirect consequences of the offending, and had failed to properly balance the consequences of the convictions against the seriousness of the offending. Those allegations were rejected by Ms Rutherford on behalf of the respondent. Under

those circumstances it is necessary for this Court to exercise its own judgment in accordance with Austin, Nichols & Co Inc v Stitchting Lodestar.[1]

[18] As to the seriousness of the offending, the Judge understandably categorised it as significant. On the face of it, the incident was serious. But it needs to be assessed within the overall context of a man apparently intent on attempting to commit suicide. Significantly, initially Mrs Kuang did not want the police to be involved.

[19] In terms of the direct and indirect consequences of a conviction it is apparent from the affidavit of Mr Kuang that the potential consequences go beyond wishing to visit China for business reasons. He still has family in China and is concerned that he would not be able to visit them once his current Chinese passport expires (which I understand will be relatively soon).

[20] The evidence about the possible consequences came from a person who described himself as a licensed immigration advisor. That evidence is to the effect that a person with a criminal record in another country is likely to be declined entry into China. Some supporting information, apparently from the People’s Republic, was also provided.

[21] While this might not provide chapter and verse, the evidence indicates that a conviction is likely to present difficulties in obtaining a visa to enter China, and in this respect there are parallels with Han v New Zealand Police.[2] If entry is denied the direct and indirect consequence will be, first, that Mr Kuang will be unable to personally pursue the family’s business interests in China and, secondly, he will be unable to see his relatives (assuming that they cannot come to New Zealand).

[22] The Judge seems to have proceeded on the basis that it was not for the Court to make a decision that might cause the Chinese authorities to decide whether Mr Kuang should enter China without knowledge of all the facts. However, as the

Court of Appeal said in Police v Roberts[3], there are dangers in a rigid approach to

that issue because it might have the effect of setting guidelines which amount to a fetter on the wide discretion conferred on the Court. While the approach adopted by the Judge might well be appropriate in many cases, I do not accept that it was appropriate in this case.

[23] The final issue is whether the consequences of a conviction would be out of all proportion to the seriousness of the offending. When undertaking this balancing exercise the Judge seems to have concluded that the scales were tipped against a discharge because Mrs Kuang could undertake the necessary business trips to China. However, Mrs Kuang said in her statement that she was suffering health issues (high blood pressure) and that she does not wish to work “too hard”. Consequently the solution the Judge had in mind might not be effective.

[24] Apart from that the overall balancing exercise requires Mr Kuang’s personal circumstances to be taken into account. Mr Kuang, who is aged 55 years and has no previous convictions, was depressed to the extent that he wanted to take his own life. Equally importantly his family are still strongly supportive of him. Once those circumstances are taken into account I am satisfied that the consequences outweigh the seriousness of the offending and that Mr Kuang should have been discharged without conviction.

Result

[25] The appeal is allowed. The conviction and sentences of 12 months supervision and 80 hours community work are quashed. Given that Mr Kuang has probably served the whole, or at least part, of his sentence of community work, I do not see any point in making the discharge conditional on any other requirements.

Solicitors:

Public Defence Service, Auckland, DX EX11066, Edith.TeWhata@justice.govt.nz and

racheal.treloar@justice.govt.nz ,

Meredith Connell, Auckland, DX CP240-63 elizabeth.rutherford@meredithconnell.co.nz


[1] Austin, Nichols & Co. Inc v Stitchting Lodestar [2008] 2 NZLR 141 at [16].
[2] Han v New Zealand Police [2012] NZHC 791
[3] Police v Roberts [1991] 1 NZLR 205 (CA).


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