HO v R [2016] NZCA 229

HO v R [2016] NZCA 229 [26 May 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA36/2016[2016] NZCA 229BETWEEN KA LONG (JAYDEN) HOApplicantAND THE QUEENRespondentCourt: Kós, Courtney and Gilbert JJCounsel: R C Laurenson for ApplicantA Ewing for RespondentJudgment:(On the papers)26 May 2016 at 3.00 pmJUDGMENT OF THE COURTThe application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Kós J)[1] Mr Ho seeks leave for a second appeal against conviction. He says he should be granted a discharge without conviction due to possible immigration consequences of a conviction. He did not seek discharge in the District Court. His appeal to the High Court failed.Background and lower Court decisions[2] Mr Ho previously lived with his partner Mr Drage. The relationship ended badly. Mr Drage went unannounced to pick up some items, accompanied by hisfriend Ms Zhou. A dispute arose over the ownership of the items. In the course of this, Mr Ho kicked and punched Mr Drage and punched Ms Zhou.District Court[3] In the District Court he was convicted of common assault and male assaultsfemale and sentenced to nine months' supervision.1 He did not seek discharge without conviction.High Court[4] Mr Ho appealed against that sentence to the High Court on the ground he should have been granted a discharge without conviction. Brown J dismissed the appeal for two reasons:2(a) There was no satisfactory explanation why Mr Ho had not advanced an application for discharge without conviction in the District Court. The written instructions Mr Ho had given to his counsel showed this option was explained to him.3(b) This was not a case where "the direct and indirect consequences of aconviction would be out of all proportion to the gravity of theoffence" as required by s 107 of the Sentencing Act 2002. The violentoffending was deliberate and non-trivial, and an innocent bystander, Ms Zhou, was injured.4 Mr Ho did not take steps to express remorse prior to sentencing.5 There was no persuasive or precise evidence that a conviction would lead to Mr Ho being deported to Hong Kong or hinder his employment opportunities. The Judge noted that courts should be reluctant to usurp the role of immigration services.61 New Zealand Police v Ho [2015] NZDC 20158.2 Ho v New Zealand Police [2015] NZHC 3156.3 At [24]–[26].4 At [35] and [44].5 At [34].6 At [39] and [43].Application to adduce further evidence[5] Mr Ho now applies to adduce the following further evidence:(a) An affidavit from his counsel in the District Court, Mr Ross. Mr Ross confirms that after explaining the advantages and disadvantages, Mr Ho instructed him not to apply for a discharge without conviction because Mr Ho wanted to be sentenced immediately and applying for a discharge would have necessitated an adjournment.(b) An affidavit from an immigration lawyer, Ms Cottrell, stating that it is unlikely Mr Ho will be granted the necessary character waiver for him to obtain a work, study or residence visa. He will be unlikely to be able to visit the United States, United Kingdom, Australia or Canada.[6] We are satisfied that despite the fact that this application is to be considered on the papers, we have jurisdiction to receive such evidence under s 331(2)(a) of the Criminal Procedure Act 2011. Where cross-examination is not sought by the respondent, s 335(3) of the Criminal Procedure Act does not preclude the receipt of affidavit evidence.[7] The Crown does not oppose receipt of this further evidence, and we will consider it.Application for leave to appeal[8] Mr Ho submits the consequences of the convictions are out of all proportion to the gravity of the offending. He says the offending was not serious, had a particular private circumstance to it, was his first offending, isolated and out of character. The evidence of Ms Cottrell raises a reasonable argument that Mr Ho could be eligible for a discharge.[9] He also submits that the High Court erred in law in ruling that a failure to make an application for discharge without conviction at sentencing precludes raising that issue on appeal.Analysis[10] Leave for a second appeal will only be granted if the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred.7Mr Ho does not argue his appeal involves a matter of general importance. He solely relies on the miscarriage of justice ground.[11] We put to one side whether Brown J was correct to refuse to entertain an application for discharge without conviction when there had been no application in the District Court. We will assume for present purposes that it may be appropriate to consider granting a discharge on appeal where there are changes in circumstance or fresh evidence becomes available.[12] The question then is whether it is arguable the Judge erred in his consideration of the gravity of the offending and the consequences of convictions. This is a matter of assessment which, if leave were granted, would give rise to a general appeal.8[13] We are not however persuaded that the Judge erred.[14] First, we do not think the Judge erred in assessing the offending as deliberate and non-trivial. That finding was supported by the trial Judge's reasons for verdict.The fact this was Mr Ho's first offending was noted by the Judge although not explicitly considered in his discharge evaluation. But we do not consider it would or should make a difference to the overall evaluation, especially where there was no remorse or attempt at restorative justice.[15] Secondly, even if it is unlikely Mr Ho will be able to stay in New Zealand, that does not amount to a disproportionate consequence of the convictions. As a foreign national he has no general right to stay in New Zealand. It is a matter for immigration services to decide whether to renew his visa, having regard to factorsincluding the Court's assessment of the gravity of Mr Ho's offending. The Court7 Criminal Procedure Act 2011, s 2538 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].should not usurp that assessment. We agree with the observation of Asher J in Zhang v Ministry of Economic Development:9In relation to a conviction affecting an offender's immigration status, orindeed ability to travel overseas, the courts often conclude that it is appropriate for the consequences of conviction to be resolved by the appropriate authorities, rather than the Court attempting to pre-empt that decision-making process by a decision to discharge without conviction: R v Foox, Liang v Police and Steventon v Police. There is nothing that requires the courts to intervene to try and impose their perception of what the right immigration consequences should be. That is best left to the immigration authorities. But a Court's assessment of culpability in the sentencingexercise may assist those authorities. And there will always be occasions where in a finely balanced case a discharge may be warranted on these types of grounds: R v Hemard. The case for discharge may not be so strong where the details of the offending will be known and closely examined by the relevant authority in any event, than where the query will be only as to prior convictions, for instance in an application for professional certification.(Footnotes omitted).And even if Mr Ho returns to Hong Kong, there is no suggestion that will engenderhardship such as to be a "disproportionate consequence".[16] Finally, although it may be harder for Mr Ho to enter other countries with aNew Zealand conviction, Ms Cottrell's evidence obviously does not go so far as to state he will not be able ever to enter those countries. In any event, even if a discharge were granted, he may still be required to declare the fact an offence was committed.10Result[17] For these reasons, it is not realistically arguable that justice has miscarried.[18] The application for leave to appeal is declined.Solicitors:Gault Mitchell Law, Wellington for ApplicantCrown Law Office, Wellington for Respondent9 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [14].10 Edwards v R [2015] NZCA 583 at [26].