Huang v Police [2018] NZHC 2159 (24 August 2018)

Last Updated: 17 September 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-216 [2018] NZHC 2159

BETWEEN	PEI-CHUN HUANG Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	21 August 2018
Appearances:	Appellant in person (assisted by M Harvey as McKenzie Friend) M J Mortimer for Respondent
Judgment:	24 August 2018

JUDGMENT OF GORDON J

This judgment was delivered by me

on 24 August 2018 at 12 noon, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Crown Solicitor, Auckland Copy To: Appellant

HUANG v POLICE [2018] NZHC 2159 [24 August 2018]

Introduction

[1] On 24 April 2018, Justices of the Peace found that the appellant, Pei-Chun Huang, had committed an infringement offence by breaching r 7.3A(1) of the Land Transport (Road User) Rule 2004, namely that he used a mobile phone while driving.¹ The Justices of the Peace ordered that Mr Huang pay a fine of $80, with $30 court costs.²

[2] Mr Huang appealed the decision. On 7 June 2018, Judge Bouchier in the District Court at Auckland dismissed Mr Huang’s appeal.³

[3] Mr Huang now applies for leave to bring a second appeal to this Court.

[4] The Crown opposes the application.

Factual background

[5] At about 9:28 am on 31 March 2017, Senior Constable McGill says he observed Mr Huang using a mobile phone while driving a Nissan motor vehicle on Symonds Street, Auckland Central. The Senior Constable was parked on the side of the road on his motor cycle, and was specifically looking for drivers not wearing seatbelts or using mobile phones.

[6] The Senior Constable says he observed Mr Huang holding a large white mobile phone in his left hand next to his left ear while driving. He says Mr Huang looked over towards him and placed the phone down. He then pulled Mr Huang over, and Mr Huang denied having used his mobile phone.

The earlier decisions

[7] The Justices of the Peace noted Mr Huang’s assertion that the data from his mobile phone provided showed incoming calls.⁴ However, they concluded that the

¹ New Zealand Police v Huang [2018] NZDC 10608.

2. See Land Transport Act 1998, s 40(1); Land Transport (Offences and Penalties) Regulations 1999, r 4(1).

³ Huang v New Zealand Police [2018] NZDC 12183.

⁴ New Zealand Police v Huang, above n 1, at [5].

phone records would not have shown incoming calls.⁵ But they went on to say that it was immaterial whether Mr Huang was actively on a call.⁶ For that proposition, they relied on Tan v New Zealand Police.⁷ They then stated that this case was essentially “one of credibility”.⁸ They concluded:

[6] ... We have evidence from the senior constable that he saw you with your phone held to your ear. He had a clear view and he is experienced in road policing. Your own credibility has been damaged by your [assertions] about your traffic history and your insistence that your phone records show incoming calls. We find this matter proven.

[8] After the finding, the Justices of the Peace explained to Mr Huang that the important point was that they had found that he used the mobile phone: “Use means holding it, whether there are calls or not does not matter. You are not allowed to hold it”.⁹

[9] On appeal to the District Court, Mr Huang produced fresh evidence in the form of a statement from his mobile phone provider which confirmed, on its face, that as well as no outgoing calls there were no incoming calls during the time Mr Huang allegedly used the mobile phone. It also confirmed there was no data usage during that particular time.

[10] Judge Bouchier noted that although the Justices of the Peace did not have this fresh evidence before them, that was “not the basis of their finding of the charge being proven”.¹⁰ The Judge said:

[17] ... It was the matter of use of the phone being in the appellant’s hand when driving along the roads as they accepted from the evidence of Senior Constable McGill that accords with “use” in the reserved judgment of Goddard J. That was the basis of their finding, not whether there was in fact or not an incoming or outgoing phone call or SMS.

[11] Therefore, the Judge concluded as follows:

[18] Accordingly, as the Justices considered matters on the law in front of them, made a finding of credibility which was open to them on the evidence,

⁵ At [5].

⁶ At [5].

⁷ Tan v New Zealand Police [2013] NZHC 90.

⁸ New Zealand Police v Huang, above n 1, at [6].

⁹ At [7].

¹⁰ Huang v New Zealand Police, above n 3, at [17].

it matters not whether there was or was not an incoming or outgoing call and I do not find that in terms of any possible miscarriage of justice that there has been one in the hearing before the Justices of the Peace and accordingly, their finding of the infringement being proven will stand and the appeal fails.

The law

[12] Section 237 of the Criminal Procedure Act 2011 (the Act) governs applications for leave to bring a second appeal against a conviction. It provides as follows:

237 Right of appeal against determination of first appeal court

(1) A convicted person may, with the leave of the second appeal court, appeal to that court against the determination of the person’s first appeal under this subpart.

(2) The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—

(a) the appeal involves a matter of general or public importance; or

(b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

[13] The standard under s 237(2)(a) is a high one. This threshold is unlikely to be met unless the proposed appeal gives rise to an issue of general principle or of general importance in the administration of the criminal law by the Courts, such as one having a broad application beyond the circumstances of a particular case.¹¹ The threshold for a miscarriage of justice under s 237(2)(b) is similarly high, with not every error amounting to a miscarriage.¹²

[14] Courtney J explained in Williams v Police:¹³

[4] An appeal is unlikely to give rise to an issue of general or public importance unless it raises an issue of general principle or of general importance in the administration of the criminal law, including one that has broad application beyond the particular case. The Court's perception of the strength of the issues that might be raised on appeal may be relevant to determining whether an appeal is of general or public importance. A miscarriage of justice means any error, irregularity, or occurrence in or in

¹¹ McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].

¹² McAllister v R, above n 11, at [38].

¹³ Williams v Police [2018] NZHC 1278.

relation to or affecting the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial or a trial that was a nullity.

(Citations omitted)

[15] I note that although an infringement offence does not result in a conviction, s 375(2)(a) of the Act provides that a reference to a “conviction” is deemed to be a reference to an order to pay a fine and court costs. Therefore, jurisdiction to appeal an infringement offence exists under the Act.¹⁴

Submissions

[16] Mr Huang submits that it is implausible that he was holding his mobile phone to his ear when it can be shown that he was not making or receiving a call.

[17] Mr Huang also submits that he never admitted holding the mobile phone, and that his Mandarin interpreter at the hearing told him to be quiet and hit his right shoulder when Mr Huang raised concerns that some of his submissions had not been translated. He says that this placed him under pressure and disadvantaged him to such an extent that there has been a miscarriage of justice.

[18] Mr Huang further submits that Tan v New Zealand Police is distinguishable on the facts in that Mr Tan admitted he had been holding his mobile phone.¹⁵

[19] Mr Mortimer, for the respondent, submits that none of Mr Huang’s grounds of appeal discloses a matter of general or public importance, nor do they raise a risk of a miscarriage of justice.

[20] In response to the submission that Tan is distinguishable, Mr Mortimer submits the definition of ‘use’ is wide and covers the circumstances of this case. The case turns on Mr Huang’s position that he was not holding his phone (and the lower Court’s rejection of that evidence).

¹⁴ See Williams v Police, above n 13, at [3].

¹⁵ Tan v New Zealand Police, above n 7.

[21] Mr Mortimer also submits that Mr Huang is simply repeating his appeal argument made in the District Court. There was a clear evidential basis on which to make the finding that Mr Huang used his mobile phone. The decisions did not turn on whether Mr Huang was making or receiving a call.

[22] Lastly, Mr Mortimer submits that Mr Huang’s other appeal grounds are either misconceived or led to no material disadvantage.

The evidence

[23] In his evidence-in-chief, Senior Constable McGill gave evidence that he was stationary at a point in Symonds Street looking for drivers not wearing seatbelts or using mobile phones. He said he does this regularly because he has a clear unobstructed view of vehicles travelling both north and south on Symonds Street.

[24] Senior Constable McGill then said as follows:

1. At this time I observed a Nissan motor vehicle with the registration EMM498 approaching me northbound on Symonds Street. I observed as the car got closer to me, I could see that the driver had his left hand up to his left ear. As it got a little bit closer I could see quite clearly a white object, a white cellphone in his hand. I probably had a good view of this for three or four seconds and the closest point the vehicle would have been would have been no more than about five metres away from me that was when it was directly in front. As the vehicle got directly in front of me, the driver looked over towards me and his hand dropped down, so I could not see the cellphone as he went by ... As I approached the driver’s window, I noticed a white cellphone, I don’t recall at the moment whether it was on the passenger seat or in the centre console but there definitely was a white cellphone in the vehicle ...

[25] The Senior Constable later said that he would only ever issue a ticket if he was 100 per cent sure of what he had seen.

[26] Under cross-examination, Mr Huang focused his questioning on the distance between the Senior Constable and himself. The Senior Constable accepted in re- examination that there was around a 15-metre distance when he first saw Mr Huang, but when he saw Mr Huang go past using the mobile phone, the gap would not have been more than five or six metres.
[27] The Senior Constable also denied that Mr Huang had his mobile phone under the armrest the whole time.

[28] During Mr Huang’s evidence-in-chief, he focused on the fact that the call logs for his mobile phone did not show any incoming or outgoing calls at the relevant times, nor any data usage.

[29] Under cross-examination, Mr Huang stated that this was the first time he had been in trouble with the Police. It was then revealed that Mr Huang had previously had a speeding ticket.

Discussion

[30] As the Justices of the Peace stated, this case ultimately comes down to credibility. There are two contrasting versions of events.

[31] The Justices of the Peace were entitled to believe Senior Constable McGill’s account, and reject Mr Huang’s account.

[32] Mr Huang is overly focused on the fact that the records show he did not make or receive a call while driving. However, r 7.3A(1) of the Land Transport (Road User) Rule is not limited to making or receiving calls:

7.3A Ban on use of mobile phones while driving

(1) A driver must not, while driving a vehicle,—

(a) use a mobile phone to make, receive, or terminate a telephone call; or

(b) use a mobile phone to create, send, or read a text message; or

(c) use a mobile phone to create, send, or read an email; or

(d) use a mobile phone to create, send, or view a video message; or

(e) use a mobile phone to communicate in a way similar to a way described in any of paragraphs (b) to (d); or

(f) use a mobile phone in a way other than a way described in any of paragraphs (a) to (e).

...

[33] As Goddard J recognised in Tan v New Zealand Police:¹⁶

[10] The interpretation of “use” in relation to the ban on use of mobile phones while driving under the Land Transport (Road User) Rule 2004 7.3A, is not restrictive and includes any use whilst driving ...

[34] Based on the Senior Constable’s evidence, there is a clear factual basis for the finding that Mr Huang used the mobile phone. A person can use a mobile phone other than making or receiving a call.

[35] As to Mr Huang’s alleged admission, I accept that Mr Huang never admitted to using his mobile phone while driving. But Judge Bouchier’s decision did not turn on any mistaken understanding that Mr Huang admitted using his mobile phone while driving. This is immaterial to the outcome. No miscarriage of justice arises in this respect.

[36] Lastly, as to the interpreter, I am satisfied that Judge Bouchier understood Mr Huang’s submissions. Mr Huang has not identified any argument that he was prevented from putting before Judge Bouchier. There has been no miscarriage of justice in this respect.

Conclusion

[37] Both Courts below accepted Senior Constable McGill’s evidence that he saw Mr Huang holding a mobile phone to his ear while driving. That conduct was sufficient to establish “use”.

[38] Mr Huang advanced his main ground of appeal before Judge Bouchier. It was not accepted. He is simply endeavouring to run the same fact-specific argument on the second appeal.

¹⁶ Tan v New Zealand Police, above n 7.

[39] I am satisfied that this case does not raise a matter of general or public importance. There is no issue which has broader application beyond this particular case. I am further satisfied that there is no risk of a miscarriage of justice.

[40] Leave to bring a second appeal is declined and the appeal is dismissed.








Gordon J