Kitcher v Jin [2008] NZLLA 1383 (1 October 2008)

New Zealand Liquor Licensing Authority

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Kitcher v Jin [2008] NZLLA 1383 (1 October 2008)

Last Updated: 9 February 2010

Decision No. 1383/2008

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application pursuant to s.135 of the Act for suspension or cancellation of General Manager's Certificate number 015/GM/122/02 issued to ENXIN (JENNY) JIN

BETWEEN WAYNE DENNIS KITCHER

(Police Officer of Greenlane)

Applicant

AND ENXIN (JENNY) JIN

Respondent

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Ms J D Moorhead

HEARING at AUCKLAND on 9 September 2008

APPEARANCES

Sergeant W D Kitcher – NZ Police – applicant
Mr P D Swain – agent for respondent
Ms M J McLeod – Auckland District Licensing Agency Inspector – to assist

ORAL DECISION OF THE AUTHORITY

[1] Before the Authority is an application brought by the Police for the suspension or cancellation of a General Manager's Certificate issued to Enxin (Jenny) Jin. The application was received by the Authority in March of this year. In May, the application was adjourned at the request of Ms Jin’s counsel because of an alleged lack of disclosure.

[2] The application is based on the grounds that Ms Jin’s conduct has been such as to show a lack of suitability. The evidence is that on 20 June 2007, a visit was made to an Asian grocery store situated in the Sylvia Park Shopping Centre in Mount Wellington. This particular store is not licensed. Not unnaturally there were no signs to that effect. However liquor was on display. A Constable was able to select a 300 millilitre bottle of Japanese saki from a shelf and take it to the counter. The saki contained 50% alcohol by volume. It has been accepted by Mr Swain that the bottle contained liquor as defined in the Act. The money was paid over and the bottle of saki was wrapped and delivered. A receipt confirmed the sale. Ms Jin is the owner of the store and was present at the time. She did not make the sale.

[3] The Policeman returned to the store and spoke with Ms Jin. She confirmed that she was a duty manager. She also confirmed that she had been told that it was unnecessary for her to have a licence because of advice she had received from a licensing consultant. She accepted that in normal circumstances the store would need a licence, but not in this particular case. As a result of the sale a charge was laid alleging a breach of s.152 of the Act. Under this section, every person commits an offence and is liable to imprisonment for a term not exceeding three months or a fine not exceeding $40,000, who being an occupier of any unlicensed premises, allows any other person to sell or expose or keep for sale any liquor on or from the premises. The charge went through a long process in the District Court. It appears that in the light of the advice that Ms Jin has received, the charge was eventually withdrawn.

[4] Mr P D Swain appeared for Ms Jin. We are grateful to him for carrying out this assignment on instructions. He advised us that he had recently received a copy of the receipt. He acknowledged that the receipt undermined any potential defence his client may have had. He explained that his client resides in Hamilton. His instructions were to acknowledge the illegality of the transaction and to make submissions in mitigation. Mr Swain had signed an affidavit in which he had indicated that Ms Jin had conducted her business at Sylvia Park in accordance with advice that had been given. The advice relates to what is known as the “Gilmour Loop” in which a wholesaler had been granted the opportunity to make sales from unlicensed premises with a number of conditions. Mr Swain had indicated that Ms Jin had obtained two off-licences in Hamilton. It was his intention that one of the off-licences would be used in the “Gilmour Loop” way by either selling on a wholesale basis to other licence holders, or by selling to members of the public through a somewhat complicated computerised system.

[5] Whether that advice would have resulted in an approval by this Authority or the Agency has yet to be determined. We are somewhat surprised to hear that such a system from such a distance might have been possible. The fact of the matter is that Ms Jin did not follow to the letter the instructions and advice given to her by the agent. Liquor was clearly displayed for sale to members of the public and liquor could be purchased relatively easily. There was no suggestion of a connection to an off-licence in Hamilton. It is therefore clear that there was a serious breach of the Act. On the other hand we accept that there are some mitigating factors. In particular Ms Jin did indicate at the time the sale was made that she thought she was legally able to display and sell the liquor.

[6] Our disciplinary role in the industry is partly educational. It does not have to be purely punitive. The essence of the Act is one of reasonableness. After considering Mr Swain’s submissions and weighing up all factors we have decided that the General Manager’s Certificate number 015/GM/122/02 issued to Enxin (Jenny) Jin will be suspended for a period of three months commencing on Tuesday 9 September 2008.

DATED at WELLINGTON this 1st day of October 2008

Sara Cunningham
Secretary

Enxin Jin.doc