ZHANG v NEW ZEALAND POLICE [2020] NZHC 2151

ZHANG v NEW ZEALAND POLICE [2020] NZHC 2151 [24 August 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-238[2020] NZHC 2151BETWEEN NAISHI ZHANGAppellantAND NEW ZEALAND POLICERespondentVirtual hearing: 24 August 2020Appearances: M Pitch for the appellantEHK Rangamuwa for the respondentJudgment: 24 August 2020REASONS FOR JUDGMENT OF JAGOSE JThis judgment was delivered by me on 24 August 2020 at 3.00pm.Registrar/Deputy RegistrarCounsel/Solicitors:Maxine Pitch Lawyer, AucklandMeredith Connell, Crown Solicitor, Auckland[1] In April 2019, Naishi Zhang pleaded guilty to charges of carrying an imitationfirearm;1 possession of cannabis for supply;2 possession of ecstasy;3 and possession ofinstruments for the purpose of using cannabis.4 Mr Zhang applied to be dischargedwithout conviction. In the District Court at Auckland on 4 June 2020, Judge E MAitken refused his application, entering convictions against him on the latter threecharges.5 Mr Zhang now appeals to this Court.[2] At the conclusion of today's hearing – significantly abbreviated by reason ofthe unreliability of the virtual hearing facility, which meant Mr Zhang's counsel onlyintermittently could be heard – I upheld the appeal, and set aside the Judge's decision,and convicted and discharged Mr Zhang, on the three drugs charges, with reasons tofollow. These are those reasons.Background[3] Mr Zhang came to police attention in the evening of 12 December 2018, whenhe approached someone on the street in Auckland's Onehunga, to ask them to callpolice because he had been smoking cannabis and feared for his safety. When policeattended, he told them he was carrying an airgun for protection. Police located theimitation firearm down the back of Mr Zhang's pants, and 2 grams of cannabis plantin his pocket. Mr Zhang told police he had more at home for sale. On searching hishome, police located nearly 24 grams of cannabis plant (just under the threshold fordeemed supply),6 ten ecstasy tablets, and various drug-using and dealingparaphernalia.Judgment under appeal[4] Mr Zhang was entitled to be discharged without conviction only if the directand indirect consequences of his conviction were out of all proportion to the gravity1 Arms Act 1983, s 46(1). Maximum period of imprisonment: two years.2 Misuse of Drugs Act 1975, s 6(1)(f). Maximum period of imprisonment: eight years.3 Section 7(1)(a) and (2). Maximum period of imprisonment: three months.4 Section 13(1)(a) and (3). Maximum period of imprisonment: one year.5 Police v Zhang [2020] NZDC 10110. An addendum to the judgment records "[c]onvictions areentered on three charges, but not on the firearms charge as the Court is satisfied that to do so couldconvey a more serious factual scenario than the facts actually support. In respect of the firearmscharge, therefore, the application is granted".6 Misuse of Drugs Act 1975, s 6(6).of the offence.7 Only then may the sentencing judge decide if to exercise residualdiscretion. There must be a "real and appreciable" risk any given consequence willarise; this recognises the court is assessing future likelihood.8 The proportionality testis a question of fact requiring judicial assessment.9[5] The Judge noted this was Mr Zhang's first offending, in which he had obtainedpolice attendance, co-operated with their enquiry, and pleaded guilty at an early date.She observed the impact of his apparently drug-induced or aggravated psychosis onhis culpability, and assessed his offending accordingly as "moderately serious", "at thelower end", but "not minor".10 The sole consequence relied on as disproportionatewas the prospect Mr Zhang, a New Zealand citizen, would not be able to travel toChina to visit his grandmother, by whom he had been raised in accordance withChinese tradition until the age of five, when he relocated to New Zealand with hisparents. Accepting that consequence was a real and appreciable risk, the Judge notedthe grandmother's recent presence in New Zealand, entitlement permanently to residein New Zealand, and other means of maintaining contact as a "key figure" toMr Zhang, to conclude his inability to travel to China was not disproportionate.11[6] Mr Zhang's counsel, Maxine Pitch, argued on appeal Mr Zhang's convictionsconstitute a miscarriage of justice as:(a) failing to address the Court's prior indication of discharge withoutconviction on his completion of rehabilitative interventions;(b) being inconsistent with his discharge without conviction on thefirearms charge;(c) irrelevantly considering the grandmother's circumstances, to the extentthose considerations amount to an error of law; and7 Sentencing Act 2002, ss 106–107; Scott v R [2019] NZCA 261 at [78]–[80], citing Prasad v R[2018] NZCA 537 at [11].8 DC (CA47/2013) v R [2013] NZCA 255 at [43].9 Dickins v R [2012] NZCA 265 at [14], citing H (CA680/2011) v R [2012] NZCA 198 at [30] (citingR v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11], citing R v Rajamani [2007] NZSC 68,[2008] 1 NZLR 723 at [5]).10 Police v Zhang, above n 5, at [14].11 At [16]–[17].(d) failing both to assess the least restrictive outcome in sentencingMr Zhang and the mitigating circumstances of Mr Zhang'srehabilitation, progress, and youth.Approach on appeal[7] An appeal against a refusal to grant a discharge without conviction is an appealagainst conviction and sentence.12 I must allow an appeal against conviction if I amsatisfied the Judge "erred in [her] assessment of the evidence to such an extent thata miscarriage of justice has occurred", or if I am satisfied "a miscarriage of justice hasoccurred for any reason". Otherwise I must dismiss the appeal.13[8] By 'miscarriage of justice' is meant something has occurred in relation to trialto create a real risk against a more favourable outcome for Mr Zhang, or has resultedin an unfair trial or a nullity.14 'Trial' is defined to include "a proceeding in which theappellant pleaded guilty".15 The threshold is high; not every error will amount to amiscarriage of justice.16[9] If Mr Zhang can establish Judge Aitken was wrong, I will consider hisapplication for discharge without conviction afresh.17[10] Ordinarily, if the conviction appeal fails, I then may determine if the correctsentence was imposed.18 Save for Ms Pitch's 'inconsistency' argument, there is nochallenge to sentence here. I infer the Judge's addendum means to direct Mr Zhangwas convicted and discharged on the drugs-related charges.19 Had the Judge not beenexpress as to the grant of Mr Zhang's application on the firearms charge, I should havethought that an available outcome there also.12 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.13 Criminal Procedure Act 2011, s 232.14 Section 232(4); and R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].15 Section 232(5).16 Otis v Police [2019] NZCA 231 at [4]; and McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764at [38].17 Criminal Procedure Act 2011, s 233; Maraj v Police [2016] NZCA 279 at [11]; and Austin, Nichols& Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].18 Jackson v R, above n 12, at [13].19 Sentencing Act 2002, s 108.Discussion—miscarriage of justice[11] Coming after Mr Zhang's guilty pleas, the District Court's indication ofdischarge without conviction was not a formal sentencing indication,20 and anothersentencing judge was not in any event bound by it.21 But the unexplained discrepancybetween indication for and result in sentencing illustrates there was a reasonablepossibility an outcome more favourable to Mr Zhang was at risk. The presence of thatrisk suffices to meet the miscarriage of justice threshold.22 I therefore turn to considerMr Zhang's application for discharge without conviction afresh.—gravity of offending[12] I have read the affidavits filed in the District Court. They identify Mr Zhang'smental health issues at the time of his offending, described by him as resulting in hisdelusion his mother had been killed and her body was in the back of the van he wasdriving, and their subsequent improvement under medication. I am aware the Judgealso had a psychologist's report, contending for Mr Zhang's "schizophrenic-likedisorder complicated by cannabis and MDMA abuse disorders", without absolvinghim of liability but reducing his culpability. Mr Zhang says his medication renderedhim ineligible to attend a rehabilitation facility, but he has obtained fulltimeemployment and is enrolled for tertiary study.[13] I take the supply charge as the lead offending. Leaving aside his guilty plea,Mr Zhang's separate admission to police of his possession for supply elevates thatoffending above the lowest threshold and reduces the impact of his mental health onthat offending. For the same reasons, the other offending is neither aggravating normitigating. Having regard for his youth, I assess the gravity of his offending as low tomoderate.20 Criminal Procedure Act 2011, s 60.21 Section 116(3).22 R v Sungsuwan, above n 14, citing Tuia v R [1994] 3 NZLR 553 (CA) at 555.—consequences of conviction[14] Mr Zhang's mother said she and her son emigrated to New Zealand in 2003,and became New Zealand citizens in 2015. Her parents frequently visited them here,and Mr Zhang's grandmother came to live here after the grandfather's death in 2013,before deciding to return to China in later 2019. The affidavit seemingly was made inanticipation of the three travelling together for that return, and then for Mr Zhang to"visit as often as he is able", as they had done five times since becoming New Zealandcitizens. Mr Zhang's mother is "fearful [he] will be denied a visa if convicted".[15] An immigration lawyer offered her expert opinion Mr Zhang, who – by reasonof his New Zealand citizenship, and China's prohibition of dual nationality – requiresa visitor's visa to enter China, may find his conviction "a major impediment to being granted entry into and temporary stay in China", on the basis applicants arerequired to "declare their criminal record". The application asks: "[d]o you have anycriminal record in China or any other country?".23 Ms Pitch separately filed adocument seemingly obtained from a Chinese government website, purporting to bethe "Exit and Entry Administration Law of the People's Republic of China".24 Article21(3) and (6) provide "visas shall not be provided to foreigners [who] [may]endanger China's national security or interests, or disrupt social and public order, orengage in other illegal or criminal activities" or in "[o]ther circumstances in whichvisa authorities consider a visa should not be issued".[16] When discharge is sought on the basis conviction will impede travel to aparticular jurisdiction, detailed and reliable evidence is required under the law andpractice of the jurisdiction concerned:(a) a conviction has to be disclosed but, if discharged, the fact the offencewas committed need not be; and(b) in consequence of a conviction, the applicant would prima facie beunable to gain entry, whether at all or for some time; and23 The application also requires disclosure of any current "serious mental disorder".24 Adopted at the 27th meeting of the Standing Committee of the Eleventh National People'sCongress on 30 June 2012. The Law also prohibits issue of visas to foreigners "suffering fromserious mental disorders".(c) there is no alternative entry process available or, if there is, such aprocess would be unreasonably difficult and uncertain in all thecircumstances.Even if all these are established, I must further be satisfied the offence is not so seriousit would be wrong to allow Mr Zhang to present himself to foreign immigrationauthorities without disclosing it. Proof of these matters may require expert evidence.25[17] The immigration lawyer's evidence does not cross the evidentiary threshold.I do not know what Chinese authorities consider constitutes a criminal record, or whatthey may assess to qualify as risking national security or interests or social and publicorder or illegal or criminal activities. She does not stipulate entry to China would bedenied, but only his conviction "could be a major impediment". In concluding heropinion, without further explanation, she amplifies that to conviction "will seriouslyimpede permission to enter and remain in China".26 In neither case does she identifyhow, or in what circumstances, with what prospect of being overcome by Mr Zhang.Even although assessing future likelihood, I may not speculate on matters of presentfact, which the immigration lawyer does not establish.—proportionality assessment[18] I accept the requirement to disclose a criminal record to Chinese authorities inseeking to gain entry to that country is a consequence of Mr Zhang's offending, whichwould not exist at least if he had not offended. I do not know if it would continue toexist if Mr Zhang was discharged without conviction, even although in New Zealandlaw discharge without conviction is deemed an acquittal.27[19] I acknowledge the impact Mr Zhang's offending likely has had on his familyrelations. I do not see them materially further aggravated by his conviction.Mr Zhang's sought discharge on grounds of speculative travel and as speculative25 Edwards v R [2015] NZCA 583 at [25]–[27].26 The immigration lawyer drew the same conclusion in terms of Mr Zhang's travel prospects toAustralia (which is not relied on by Mr Zhang for the purposes of his s 106 application), but it iswell-accepted such conviction only results in an evaluative exercise by Australian authorities toascertain if the offender met a good character test: Wanoa v Police [2018] NZHC 259; R vTaulapapa [2018] NZCA 414.27 Sentencing Act 2002, s 106(2).constraints do not sufficiently tip the scales.28 Far from being wholly disproportionate,the direct and indirect consequences of Mr Zhang's conviction are entirely condign tothe gravity of his offending.Result[20] I therefore upheld the appeal, and set aside the Judge's decision, and convictedand discharged Mr Zhang, on the three drugs charges.—Jagose J28 Brunton v Police [2012] NZHC 1197 at [16]; Marszolek v Police [2015] NZHC 2858 at [35].