Taylor v Onehunga Wines & Spirits Co Limited and Kim [2001] NZLLA 311 (2 August 2001)

Last Updated: 14 March 2010

Decision No. PH 311/2001 – 312/2001

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.132 of the Act for cancellation of off-licence number 007/OFF/39/99 issued to ONEHUNGA WINES & SPIRITS CO LIMITED in respect of premises situated at 28 Waitangi Road, Onehunga, Auckland known as “Onehunga Wines and Spirits”

AND

IN THE MATTER of an application pursuant to s.135 of the Act for cancellation of General Manager’s Certificate number GM 3822/99 issued to JAEWOOK KIM

BETWEEN SCOTT LYALL TAYLOR
(Police Officer of Auckland)

Applicant

AND ONEHUNGA WINES & SPIRITS CO LIMITED

First Respondent

AND JAEWOOK KIM

Second Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Mr J C Crookston

HEARING at AUCKLAND on 27 July 2001

APPEARANCES

Sergeant M J Lopdell – NZ Police – for applicant
Mr P D Swain – agent for the first and second respondents – in opposition
Mr G S Whittle – Auckland District Licensing Agency Inspector – to assist
Mr G Oh – Korean Translation Limited – Interpreter - to assist

RESERVED DECISION OF THE AUTHORITY

[1] Before the Authority are two applications for cancellation. The first is an application by Constable Scott Lyall Taylor for the cancellation of an off-licence issued in respect of a bottle store situated at 28 Waitangi Road, Onehunga, Auckland known as “Onehunga Wines and Spirits”. This licence is held by Onehunga Wines & Spirits Co Limited. The second application also by Constable Taylor, is for the cancellation of the Manager’s Certificate issued to Mr Jaewook Kim, the son of the two shareholders and directors of the company.

[2] The grounds for the applications are, that the premises have been conducted in breach of the provisions of the Act relating to the sale or supply of liquor to minors. It is further alleged that the manager’s conduct is such as to show that he was not a suitable person to hold a manager’s certificate.

[3] The applications are opposed on the grounds that some of the evidence was gained by Police entrapment. The respondents further argue that it is unfair to allow evidence relating to any historical supply to minors. If breaches of the Act have been proved, it is argued that it is not desirable to make the cancellation orders. Finally, the respondents argue that suspension is more appropriate than cancellation.

The factual background

[4] Kwang Kuk Kim and his wife Kwang Ja Kim are the sole directors and shareholders of Onehunga Wines & Spirits Co Limited. According to the records on file, the company has held an off-licence in respect of premises in Waitangi Road, Onehunga since 23 September 1999. Mr Kwang Kuk Kim stated that he had been operating the business for about four years.

[5] Because of his difficulty with the English language Mr Kim arranged for his son, Mr Jaewook Kim to apply for a General Manager’s Certificate. This was duly granted.

[6] However Jaewook Kim’s application for renewal of his certificate was opposed by the Police because of a conviction for driving with an excessive blood alcohol content on 8 February 2000. The application for renewal was heard on 30 March this year. In a decision dated 9 May last, this Authority stated that it was prepared to treat the conviction as an isolated incident. The certificate was renewed for one year.

[7] ‘Samuel’ is 16. He was born on 9 May 1985. He is currently attending secondary school. On Saturday 10 March 2001, he was with a group of friends at a shopping centre. They decided to buy some alcohol. They all put in some money.

[8] One of the friends was ‘Dane’. He is also 16 having been born on 17 May 1985. He is also a secondary school student. ‘Dane’ offered to buy the liquor if ‘Samuel’ went with him.

[9] They walked to Onehunga Wines & Spirits. ‘Dane’ went in to the liquor store while ‘Samuel’ waited outside. ‘Dane’ purchased two dozen 250ml cans of Bourbon Cola mix. He was served by Jaewook Kim.

[10] The young men then met up with their friends, and proceeded to drink the cans. They were seen by a teacher from the school and reported to the Principal. ‘Samuel’ was suspended from attending his school for three days.

[11] As a consequence, his mother visited the shop and remonstrated with Mr Kwang Kuk Kim and his son. She made a formal complaint with the Police the following Monday.

[12] It was then discovered that ‘Dane’ had been to this store several times before. He started going there in July 2000. Since that time, he had purchased alcohol from the premises about ten to twelve times. He used to go there with ‘Oliver’. Oliver was born on 16 July 1986. He has just turned 16 and was 15 when the visits started.

[13] ‘Dane’ did most of the buying of liquor. However at times ‘Oliver’ handed over the money. ‘Oliver’ thought they had visited the shop and purchased liquor about ten times.

[14] The first time they went there in July 2000, they were served by Mr Jaewook Kim. He asked them their ages. ‘Dane’ said he was eighteen. No identification was asked for, and they were duly served. Since that time, they have never again been asked their ages, and they have never been asked to give identification.

[15] Most of the time when they went to the shop they were served by Mr Jaewook Kim. Most of the time both Mr and Mrs Kim senior were present. Occasionally, Mr Kim senior served them, or helped by putting the liquor into bags. Both young men specifically remembered going to the premises between Christmas and New Year, and also at the end of January 2001.

[16] Both ‘Dane’ and ‘Samuel’ were wearing school uniforms when they gave evidence. Mr Swain took exception to this, although it was explained that the young men would be returning to school, after they had given their evidence. The wearing of school uniforms had no significant impact on us at all.

[17] As it happens, ‘Samuel’s’ evidence had no probative value, apart from corroborating the evidence given by ‘Dane’. Furthermore, there was no argument put up by Mr Jaewook Kim that he believed on reasonable grounds that either ‘Dane’ or ‘Oliver’ had attained the age of eighteen, so the issue of how old they may have looked did not really arise.

[18] When he gave evidence, ‘Dane’ did acknowledge that he had been advised that he would not be charged if he gave evidence. This matter was taken no further when Constable Taylor gave evidence. Although Mr Swain exposed a potential motive for the giving of false evidence, the facts which we have outlined, were never seriously challenged.

[19] In the light of the evidence later given by Mr Kwang Kuk Kim and Mr Jaewook Kim, we have no doubt that there were at least ten unauthorised sales to minors between July 2000, and March 2001.

Unfairness of evidence of historical offending

[20] It is an appropriate moment to refer to Mr Swain’s concerns about the evidence. He submitted that it was unfair to admit evidence of historical offending where no convictions had been obtained. He relied on a decision of Barker J in Kim v New Zealand Police and Liquor Licensing Authority HC 118/97.

[21] In that case, the Police report had contained a statement about the appellant’s “continual offending”. The Judge stated

“It was hardly fair to call the two charges for which he was acquitted ‘offending’, it was unfair to call other conduct ‘offending’ when it had not been the subject of a conviction.”

[22] All cases will depend on the quality of the evidence. In this case the evidence of the Police witnesses was virtually uncontested. It was never suggested that the young men were lying or had memory problems. Mr Jaewook Kim was asked in cross-examination whether he disputed the evidence of serving the boys ten to twelve times. He said he did. However he then accepted that there had been some occasions when sales had been made to them. The matter was taken no further.

[23] In enforcement proceedings such as these, we do not believe it is appropriate to insist on convictions being obtained in the District Court. There are three reasons for this. First, there is the issue of delay. The District Court is already under pressure to dispose of its backlog of cases. A defended hearing of a matter such as this could take up to twelve months in some courts. Second, there is the question of double jeopardy. And thirdly, the Court only has the power to suspend a licence for seven days. Where there is evidence of regular breaches of the Act leading to the abuse of liquor, it is important that the Authority is seen to be acting swiftly.

[24] For these reasons we have no difficulty in admitting the evidence of sales from July 2000.

Further factual background

[25] ‘Nicola’ is 17. She will be 18 on 15 December 2001. She offered to assist the Police with the vetting of off-licences for underage sales of liquor. Her mother gave her permission to assist the Police in this way.

[26] She was asked to attempt to purchase liquor from Onehunga Wines & Spirits. She was requested not to dress up, or to wear makeup. On Tuesday 29 May 2001, at about 4.45 pm, she went into the premises of Onehunga Wines and Spirits. Constable Taylor was already in the shop in plain clothes.

[27] Nicola was asked to take her driver’s licence showing her exact age. She was told to be totally honest with all her answers. She was given a cashflow card with a pin number. She was advised that the card would not work, and no sale would take place.

[28] As instructed, she took a 1125ml bottle of vodka from a shelf to the counter. Mr Jaewook Kim asked her is she had identification. She produced her driver’s licence showing her correct date of birth. Mr Kim had a good look at it and then handed it back. He then processed the card and proceeded to put the vodka in a bag. The Eftpos transaction was then declined. Nicola took the card and left the store without the vodka.

[29] After ‘Nicola’ had left, the Constable identified himself. He asked Mr Kim how old the girl was whom he had just dealt with. Mr Kim replied “Born in ‘83”. The constable repeated the question. Mr Kim answered “18”. When he gave evidence, Mr Kim stated that he misread the month on the driver’s licence. He did not say which month he thought it was.

[30] Either he read the month correctly, and decided that the sale was worth the risk, or he made a mistake. In view of his explanation at the time, we are not prepared to say that this was a deliberate attempted sale to a minor. Nevertheless, considering how ‘Nicola’ looked at the time, and considering that she was attempting to buy a 1125ml bottle of vodka, Mr Kim’s actions in not ensuring that she was eighteen, were grossly negligent. Viewed in its best light, it was a significant error of judgement.

Entrapment

[31] Mr Swain submitted that the evidence should be excluded as it was obtained by entrapment. He relied on a number of the Authority’s decisions to support his contention.

[32] In William Charles Kennedy and Joan Kathleen Kennedy LLA 1076/91 an attempt to use a 16 year old failed when the licensee was tipped off. With the background, the Authority had this to say:

“Having regard to the complexities of the provisions of the Act governing the sale of liquor to minors, and the obvious difficulties that licensees have in assessing the age of marginal purchasers, in our view this is not an area where entrapment evidence should have to be relied upon by the Police.”

[33] In David Alexander Gallon LLA 819/98 – 820/98, the Police gave a customer $15.00 and asked him to purchase liquor after closing time. The Authority stated:

“We have previously said that in our view there is no place in enforcement of the liquor licensing laws for entrapment procedures and we are surprised to find the Police being involved in giving money to a patron to make a purchase outside licensing hours.”

[34] In Craig William Gibbs LLA 1530/98 – 1534/98, a ‘plainclothes’ constable was

able to purchase and drink a bottle of beer without dining. He then purchased two

bottles to take away although the premises had no off-licence. Six months later, two

‘plainclothes’ constables were able to purchase and consume eight beers without

being asked if they intended to purchase a meal.

[35] The Authority did not reject the evidence but placed little weight on it. It stated:

“In our view both incidents have an element of entrapment about them.”

[36] It will be seen that only one of the decisions relates to a sale to a minor and that plan did not work. Furthermore, the three decisions were given against a different background than exists today. Not only have the penalties for selling to minors been doubled; not only has the Court been given a discretion to suspend the licence, but the Police must report to the Authority with a recommendation as to whether the licence should be suspended or cancelled.

[37] In contrast, Sergeant Lopdell referred us to the Court of Appeal decision of The Queen v Kapita [1986] 2 CRNZ 4. The law was restated as follows:

“New Zealand Courts accept that there is a distinction between the use of police agents who merely provide the opportunity to those disposed to commit offences of a particular kind on the one hand, and the sort of active encouragement that may result in a crime being committed by the offender that otherwise would not be committed, on the other.”

[38] The Court of Appeal also cited with approval the following passage from a judgment of Speight J in The Queen v Climo T85/77 Auckland Registry:

“In my view it does not mean that the evidence is disqualified if all that can be said is that the instant offence would not have occurred but for the availability and stimulation of the police witness as a consumer. The provision of opportunity, even if it is an opportunity which would not otherwise have arisen, does not universally disqualify. If the person appears to the Court to be one who was in any event ready and available to commit the offence then the fact that the witness increased the number of or extent of the individual offences perpetrated does not offend against the principle laid down in the cases. If, on the other hand, the availability of the witness progressed to the point of being an initiator of offences by a person who would otherwise have been a non-offender in a general sense, then the matter will have crossed the dividing line and the policeman and the Police Department would not be detecting offences but seducing otherwise non-offending persons into a course of criminal activity.”

[39] The use of young volunteers to monitor compliance with the Smoke Free Environments Act 1990, (selling cigarettes to persons under the age of eighteen), was approved by Her Honour Judge Rushton in Auckland Healthcare Services Ltd v Hikerry Foods Ltd Waitakere District Court crn 8090017857 – 58 (8.2.1999).

[40] We have no hesitation in accepting ‘Nicola’s’ evidence. She was a volunteer. She had her mother’s informed consent. She was not asked to make up any story, or be anyone than herself. She carried out the actions of any normal customer during normal trading hours and well after schools had closed. There was no prolonged conversation with Mr Jaewook Kim. No sale took place. The evidence merely showed Mr Kim’s inability to police the law in the way expected of the manager of any licensed premises.

The evidence of the respondents

[41] When he gave evidence, Mr Kwang Kuk Kim acknowledged that the systems had not been tight enough. He said that they were now turning away about five customers a week. He said he intended to get out of the liquor business. He said he could offer no excuse for what had happened. He apologised for what had happened.

[42] Mr Jaewook Kim said that he always asked for ID. He could not believe how he had not asked for ‘Dane’ and ’Oliver’s’ ID. He said there was now a large sign on the counter. He also apologised for his actions. He said that he had learned from his mistakes.

Conclusion

[43] In this case it is clear that the company (through its owners) have allowed a system to develop where minors have not been asked for their identification. At least ten sales have taken place in a period of less than a year. The company and its manager have ignored their responsibilities to the law. The inference is that profit was the motivation.

[44] Mr Swain referred us to the case of Tudor Trading Company Limited LLA 2516-2520/99. Eight minors gave evidence of purchases from an off-licence. The Authority stated that the factual evidence would normally warrant cancellation of the licence and the managers’ certificates. In the event the off-licence was suspended for two months, and renewed for a further six months. This was to allow ample opportunity for the business to be sold. The following comment was made.

“We comment that Police or Inspector applications made pursuant to ss. 132 and 135 of the Act based on sales to underagers, that is under 18, after 1 December 1999 will attract more severe penalties than those imposed in this matter.”

[45] Mr Swain submitted that although the offences were serious, the fact that the Police had become involved had had a salutary effect on the company and the manager. He contended that the number of proved sales was small. He confirmed that new procedures had been adopted. While he appreciated that the economic affairs of the licensee were not part of the criteria to be considered, they were relevant to penalty. The estimate wholesale value of stock on hand was over $80,000.00. He said the family had to live. Of course we are not imposing a penalty. We are exercising a statutory discretion. Mr Swain asked for suspension rather than cancellation.

[46] We believe that Sergeant Lopdell is right when he submits that the sale of liquor to minors is a liquor abuse issue. Since the age limit was reduced to eighteen, there have been regular concerns expressed throughout the country about the ability of young people to obtain alcohol. The hospitality industry has invested a great deal of time and money into training and upskilling management and staff, to ensure that any such abuse of the law relating to sales to minors, does not happen in licensed premises.

[47] It may be that suspension will be appropriate for ‘one off’ breaches of the law. However in this case, the respondent company and its manager have consistently failed in their duty to control the sale and supply of liquor in a satisfactory manner. When Parliament doubled the penalties, it was sending a message to the public that people who breached the law regarding sales to minors, must expect rigorous enforcement and severe consequences.

[48] Under s.4(2) of the Act, we are required to exercise our jurisdiction, powers and discretions in a manner most likely to promote the reduction of liquor abuse.

[49] In making orders for cancellation, we have allowed time for any appeal process to take effect. With effect from 7 September 2001 off-licence 007/OFF/39/99 issued to Onehunga Wines & Spirits Co Limited, and Manager’s Certificate number GM 3822/99 issued to Jaewook Kim are hereby cancelled.

DATED at WELLINGTON this day of August 2001

Judge E W Unwin Mr J C Crookston
Chairman Member

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