TSYAN v NZ POLICE [2021] NZHC 1264

TSYAN v NZ POLICE [2021] NZHC 1264 [1 June 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-000014[2021] NZHC 1264BETWEEN SHEN TSYANAppellantAND NEW ZEALAND POLICERespondentHearing: 3 May 2021Appearances: DPH Jones QC for AppellantTS Jenkin for RespondentJudgment: 1 June 2021JUDGMENT OF FITZGERALD JThis judgment was delivered by me on 1 June 2021 at 3.00pmRegistrar/Deputy RegistrarDate..Solicitors: Meredith Connell, AucklandMark Lee Lawyers, AucklandTo: D Jones QC, AucklandIntroduction[1] Shen Tsyan pleaded guilty to one charge of assault.1 He applied for a dischargewithout conviction. On 11 November 2020, Judge P J Sinclair declined hisapplication.2 Mr Tsyan appeals that decision.Facts[2] On 19 November 2017, Mr Tsyan parked his vehicle in a reserved parkingspace outside of a business. The owner of the business arranged for it to be towedaway. The tow truck arrived and started to remove the car. Mr Tsyan then returned.He approached the victim (the business owner) and yelled at him in an aggressivemanner. He demanded that the victim pay the towing fee. The victim refused.Mr Tsyan then advanced and punched the victim on the left side of his neck. Mr Tsyanwas then pulled away by other people nearby. The victim felt dizzy afterwards but didnot otherwise suffer any injuries.[3] Mr Tsyan pleaded guilty, although not at the earliest opportunity. He attendeda restorative justice session, where he apologised to the victim. He reported at thatconference that he recognised he had an anger management issue, and he had stoppedconsuming alcohol since the incident. It is not suggested Mr Tsyan attended any angermanagement programmes or similar rehabilitative programmes. In 2015, Mr Tsyanhad received a discharge without conviction for similar offending, and in 2016 he hadreceived diversion for another assault charge. This was therefore the third incident ofsimilar violence. There is, however, no suggestion of any more recent offending byMr Tsyan of this nature.[4] Mr Tsyan holds a Russian passport.3 He does not hold a Chinese passport, butboth of his elderly parents live in China. They are unable to travel for medical reasons.Mr Tsyan would be required to apply for a visa to visit China to see his parents, but isconcerned that his conviction will likely make it impossible for him to get one.1 Crimes Act 1961, s 196. Maximum penalty one year's imprisonment.2 Police v Tsyan [2020] NZDC 23329.3 Having previously been a Chinese citizen, but renouncing his citizenship to take up Russiancitizenship when he lived in that country with his (then) wife.The law[5] Sections 106 and 107 of the Sentencing Act 2002 enable a court to dischargean offender without conviction, provided the court is satisfied the direct and indirectconsequences of a conviction would be out of all proportion to the gravity of theoffence. The test has been clarified by the Court of Appeal in Taulapapa v R:4[22] It is settled law that a court considering a discharge should: examinethe gravity of the particular offence, taking into account all aggravating andmitigating factors of the offending and the offender; identify the direct andindirect consequences of conviction; and consider whether thoseconsequences are "out of all proportion" to the gravity of the offence. Onlythen does it move to considering the residual discretion under s 106. Theremust be a "real and appreciable" risk that any given consequence will happen:this standard recognises that the court is assessing the likelihood of somethingthat may happen in the future.[23] The offender should ordinarily put information before the court toprovide a factual basis for a decision that the test has been satisfied. There isno legal onus on the offender to do so however, and the standard of proof in s107 is simply that the judge be satisfied that the requirements of the sectionare met.(Citations omitted)[6] As is evident from the above extract from Taulapapa v R, in assessing thegravity of the offence, the Court is not restricted to an assessment of the conduct thatgives rise to the charge. In R v Hughes, the Court of Appeal approved the commentsof Miller J in Delaney v Police where the Judge said:5[29] ... I consider that "the gravity of the offence" should be read asincluding not only the offence itself but also anything that may affect theCourt's subsequent assessment of overall culpability. That includes guiltypleas, expressions of remorse and the Court's assessment of how likely it isthat the offender will reoffend, the victim's perspective, and any consequencealready suffered by way of reparation, community work, or publicity.(Emphasis added)4 Taulapapa v R [2018] NZCA 414.5 Delaney v Police HC Wellington CRI-2005-485-22, 22 April 2005, at [29]; R v Hughes [2008]NZCA 546, [2009] 3 NZLR 222 at [27].[7] In Edwards v R, the Court of Appeal stated that in order to show internationaltravel is not possible for an offender because of their conviction, the offender wouldneed to show:6that under the law and practice of the jurisdiction concerned:(1) the conviction must be disclosed but, assuming a discharge is given,the fact that the offence was committed need not be; and(2) in consequence of the conviction, the applicant is prima facieinadmissible, and for how long; and(3) there is no alternative entry process available or that, if there is, suchprocess is unreasonably difficult and uncertain in all thecircumstances.[8] Finally, and given Mr Tsyan's previous discharge without conviction, it isrelevant to note it is possible for one applicant to receive multiple discharges withoutconviction. However, previous discharges will, unsurprisingly, count against theapplicant.7 In Swami, Katz J stated that:8Courts have of course on occasion been willing to grant two or moredischarges without conviction to the same offender. However, it has beenrecognised that a previous discharge without conviction for offending of thesame type must count against a discharge on a later occasion.The District Court decision[9] Judge Sinclair summarised the facts of the case. She then turned to the gravityof the offending.[10] Judge Sinclair noted that Mr Tsyan's offending was spontaneous and did notinflict any particular injuries. She noted, however, that Mr Tsyan struck the victim'sneck, which is a vulnerable area, and that the assault ended when Mr Tsyan was pulledaway by other people. The Judge recorded the parties' agreement that, in terms of theoffending itself, the gravity was low. She noted that Mr Tsyan pleaded guilty earlyand that he had attended restorative justice. She noted that he had received a discharge6 Edwards v R [2015] NZCA 583 at [26].7 Morgan v Police HC Auckland CRI-2009-404-212, 8 October 2009; Police v McCabe [1985] 1NZLR 361 (HC); Swami v Police [2012] NZHC 2725, [2012] NZFLR 962; Martin v Police [2017]NZHC 835; Taumalolo v Police [2016] NZHC 1525; Moss v Police [2020] NZHC 1065.8 Swami v Police [2012] NZHC 2725, [2012] NZFLR 962 at [25].without conviction and diversion before. She treated these as aggravating factors. Inall the circumstances, the Judge concluded that the gravity of Mr Tsyan's offendingwas low to moderate.[11] Judge Sinclair then considered whether or not Mr Tsyan could obtain a Chinesevisa with a conviction. Mr Tsyan provided an affidavit from an immigration lawyerin support of his claim that he could not. Judge Sinclair noted that it was "notdefinitive" that a visa would be declined, and that the Chinese authorities would havea discretion to approve it. Those authorities would have all the information aboutMr Tsyan's conviction and his elderly parents. The Judge emphasised that Mr Tsyanhad no definitive plans to travel overseas. On balance, Judge Sinclair was notpersuaded that there was a real risk that the visa would be declined, but ratherconsidered that the Chinese authorities would simply "scrutinise [the] applicationmore". The Judge accordingly did not consider that the consequences of a convictionwould be out of all proportion to the gravity of Mr Tsyan's offending. Judge Sinclairtherefore declined Mr Tsyan's application for a discharge without conviction.The appellant's submissions[12] Mr Tsyan submits that the Judge erred in assessing the gravity of the offendingand the consequences of the conviction. As such, he says the Judge's assessment ofwhether the consequences were out of all proportion to the offending was alsoincorrect. Mr Tsyan submits that the gravity of the offending was low: it was minor,no injuries were sustained by the victim, there was a successful restorative justicesession held and the previous discharge without conviction and diversion were notsufficient to raise it to the "low to moderate" category. Mr Tsyan also refers toMacDonald v R,9 which he submits stands for the proposition that a previous dischargewithout conviction does not necessarily mean a fresh one cannot be granted.[13] Mr Tsyan suggests that there was a real and appreciable risk that he will not beable to get a Chinese visa. He submits that the Judge failed to properly take intoaccount the expert evidence on this topic, that the COVID-19 pandemic meant thatMr Tsyan could not be expected to have definitive plans to travel, that the possibility9 MacDonald v R [2019] NZCA 91.that the visa will be rejected does not need to be "definitive" before it poses a real risk,and that the Judge's conclusion was ultimately at odds with the immigration lawyer'sexpert evidence.The respondent's submissions[14] The respondent, unsurprisingly, disagrees on all points. It submits that theoffending was not the least serious of its type. The respondent observes that the attackwas unprovoked and directed to a vulnerable area of the body. It notes that the victimwas left dizzy, his neck was sore for a few days and he was wary of being assaultedagain. The respondent emphasises that Mr Tsyan did not stop the assault of his ownaccord, but rather was pulled off the victim by other people.[15] The respondent submits that Mr Tsyan has not made substantial progresstowards rehabilitation. It concedes that he pleaded guilty, accepted responsibility andengaged in restorative justice, but does not consider he has taken substantial steps todeal with the underlying causes of his offending. The respondent emphasisesMr Tsyan's previous discharge without conviction and diversion, and note that thesemust count against him in receiving what is essentially a third chance instead of asecond chance.[16] As to the immigration consequences of Mr Tsyan's conviction, the respondentsubmits that Mr Tsyan would not be automatically prohibited from entering China.Rather, according to the expert evidence, the Chinese authorities would weigh theassault conviction in the balance to assess whether they should grant him a visa. Thereis no reason why the immigration officials would not consider the mitigating factorsidentified by Mr Tsyan or the health and situation of his parents. The respondent notesthat Mr Tsyan has no specific travel plans, nor has he adduced any evidence indicatingthat he regularly travelled to China before COVID-19. Finally, the respondent notesthat Mr Lee, the expert witness who gave evidence on Mr Tsyan's behalf, is notindependent because Mr Tsyan has been a client for some years of the firm for whomMr Lee works.Analysis[17] As noted earlier, the parties agreed that the gravity of Mr Tsyan's offendingwas low, at least when focussed solely on the nature of the offending itself. That inmy view is correct. The offending involved a punch to the victim's neck area, butthere is nothing to suggest this was premeditated or targeted. There do not appear tohave been any lasting physical injuries to the victim.[18] The Judge then – rightly, in my view – recognised as aggravating factors thatMr Tsyan had a previous discharge without conviction for a charge of resisting arrestin 2015 and received diversion for an assault charge in 2016. It does not appear thatany details in relation to these matters were before the District Court Judge at the time,but she noted that both of those instances involved anger and violence, a point withwhich Mr Tsyan does not take issue with on this appeal. Accordingly, there was noerror in the Judge taking this into account as an aggravating factor contributing to thegravity of the offending overall. I observe, however, that those earlier instances mustthemselves have been low level offending, to have attracted a discharge withoutconviction and been the subject of the diversion scheme.[19] Mr Jones QC, counsel for Mr Tsyan, submits on appeal that the Judge erred byfailing to actually give effect to, rather than simply commenting on, matters thatoperated by way of mitigation, including remorse, Mr Tsyan's guilty plea and theparticipation in what appears to have been a valuable and productive restorative justiceconference. Mr Jones submits that these combined mitigating factors ought to haveeffectively "balanced out" the aggravating factors, with the result that the gravity ofthe offending remained low.[20] I agree with Mr Jones that the Judge did not articulate precisely how she tookinto account the identified mitigating factors, though she had plainly turned her mindto them. I do not see any substantial error in the Judge's conclusion as to the overallgravity of the offending. As noted, the Judge concluded that it was low to moderate.My own evaluation of the relevant factors relating to both the offender and theoffending is that this conclusion was not an error, though taking into account themitigating factors in particular, I conclude that the gravity of the offending sits towardsthe lower end of this culpability range. This is reinforced by the fact that, by the timethe matter came before Judge Sinclair in November 2020, some three years had passedsince Mr Tsyan's index offending, which itself suggests a degree of rehabilitation.[21] What then, are the consequences of a conviction? In this case, and consistentwith the approach endorsed in Edwards, Mr Tsyan adduced expert evidence from aMr Lee, a barrister and solicitor with expertise in immigration law. Mr Lee states thathe has provided advice to clients on Acts and Regulations of China for the last 10 yearsand that he is therefore familiar with Chinese visa requirements. No issue was takenwith Mr Lee's expertise to give evidence on these matters. But as noted, therespondent submits that there may be a question as to Mr Lee's independence, givenhe is a solicitor practising for a firm of lawyers of whom Mr Tsyan has been a clientfor some years. Mr Jones noted at the hearing of the appeal that this point had notbeen raised before and if it had been, and appeared to be of material consequence, theexpert evidence would have been obtained from a different expert. The point was notpressed to any real degree on appeal, however, and I do not consider it to be of anymaterial relevance in any event. There is no dispute Mr Lee is suitably qualified togive the expert evidence he does, and he deposes that he has read the code of conductfor expert witnesses and agrees to comply with it. Mr Lee is first and foremost anofficer of this Court. Mr Lee also responsibly notes that Mr Tsyan has been a clientof his firm for several years, but that he provides his evidence on the basis he wouldfor any person, whether a client or not.[22] As to the prospects of Mr Tsyan being declined a Chinese visa, Mr Lee advisesas follows:15. In general, a conviction like assault, which has a maximum potentialpenalty of 12 months imprisonment, would be regarded by Chineseauthorities as likely to indicate or imply that the applicant may disruptpublic order under the Crimes Law in China as the nature of assault maywell occur in public places. A crime of this nature would be a red flag.16. Criminal activities are taken very seriously in China and are frequentlypunished by a term of imprisonment. The summary of facts in MrTsyan's case indicates the offence might also be caught under Article293, Chapter 1, Part One, General Provisions, the Aim, BasicPrinciples and Scope of Application of the Criminal Law of PRC. Thisprovides that whoever disrupts the social order by committing theprovocative and disturbing acts, including assaulting any other personat will with execrable circumstances, shall be sentence to imprisonmentof not more than 5 years criminal detention or control. Annexed andmarked with the letter "B" is a copy of Article 293, Chapter 1, Part Oneof Criminal Law of PRC.17. Question 3.3 of the Visa Application Form of the People's Republic ofChina requires the applicant to answer the question "Do you have anycriminal record in China or any other country?" Annexed and markedwith the letter "C" is a copy of the Visa Application Form. Accordingly,should Mr Tsyan sustain a conviction he would have to declare it in hisvisa application. In doing so he would be declaring that he had acriminal record in New Zealand.18. This would necessarily lead to his application being closely consideredand in all likelihood declined. There would be no benefit for theChinese authorities in letting him into the country.19. If Mr Tsyan is convicted of this offence, he would be required to declareit. Chapter III, Article 21 of the Act would then give the relevantChinese consulate official the discretion to decline his application for avisa on the understanding that act of "Common Assault (Crimes Act)manually" has the potential implication that the applicant might repeatthe same behaviour which would be taken as "disrupting social order".This discretion is likely to be exercised, although the consulate officialhas the absolute discretion to grant or refuse the visa application. Noreasons need to be given at all, so effectively the decision cannot bechallenged.20. In general, each application for a temporary visa is considered on itsown merits. A criminal conviction would necessarily have a prejudicialeffect on the outcome of the application because it is declaring that theperson has committed an offence (in this case an assault in NewZealand) and this would trigger scrutiny by the Chinese authorities andprovide a basis for declining a visa.Conclusion21. It is my view therefore that a conviction for assault would in alllikelihood mean Mr Tsyan could not obtain a visa to travel to China tosee his parents. In my experience, the Chinese authorities are strict andwould decline the application in a summary way. There is no right ofappeal. Mr Tsyan would have no ability to travel to China as a result.(Emphasis added)[23] Mr Lee also annexes the relevant Visa Application Form. This requires anapplicant to answer the question "Do you have any criminal record in China or anyother country?", but does not require disclosure of the fact of offending.[24] As noted, the Judge concluded that there was not a "real and appreciable riskMr Tsyan would be denied a visa to visit his parents". Rather, she concluded that "Inmy view it will simply mean the authorities may scrutinise your application more".[25] With respect, I do not consider this conclusion accurately reflects the expertevidence before the Judge. Before turning to that evidence, I note that it is not arequirement that there are definitive plans to travel before a court will consider therisks to that travel being impeded. Accordingly, in Edwards, the Court noted that anapplicant for a discharge need only point to a real and appreciable possibility that theapplicant would need to travel overseas.10 There will of course be a sliding scalebetween vague and speculative possibilities of future travel versus definitive andclearly defined travel plans. As the Court of Appeal noted in R v Taulapapa, andhaving made reference to that Court's earlier decision in Edwards:11So far as that offender is concerned, a court might find a real and appreciablerisk that she will travel in future. That is a question of fact. The question thenis what evidence she ought to adduce to show the convictions will affect thatambition. That is a question of judicial judgement the answer to which woulddepend on the circumstances. We note the authorities listed in Adams onCriminal Law under this heading. By way of illustration only, Edwards doesnot exclude the possibility that a young New Zealander wanting to go on OEcould show that in consequence of conviction she would have to go throughthe formality of obtaining visas for jurisdictions to which she would otherwiseenjoy visa-free entry. Whether that administrative burden and associatedexpense would be out of all proportion to the gravity of her offending asanother question. Ms Taulapapa, who faces just such a consequence inrelation to Australia, did not suggest that it is a disproportionate consequencein this case.(Emphasis added)[26] In light of these authorities, I consider the Judge placed too much emphasis onthe fact that Mr Tsyan did not put before the Court any present and definitive travelplans to China. Obviously in the current COVID-19 environment, that is somewhatdifficult. But the Judge nevertheless accepted the evidence before the Court thatMr Tsyan's parents are both elderly, in their eighties, that Mr Tsyan's father inparticular has "numerous medical concerns" and they are not able to travel out of10 Edwards v R [2015] NZCA 583 at [24].11 R v Taulapapa [2018] NZCA 414 at [56].China. The Judge accordingly accepted that Mr Tsyan's "ability to be with [his]parents is dependent on [him] being able to travel to China".[27] In his affidavit in support of his application for a discharge without convictionMr Tsyan noted that he had visited his parents in September 2017 and expressed hisdesire that his application for discharge without conviction would be successful andhe would therefore be able to visit them again.[28] I accept that there is therefore a real and appreciable possibility that Mr Tsyanwill wish to travel to China again to visit his elderly parents. I am also satisfied, unlikethe Judge, there is also a real and appreciable risk that Mr Tsyan will not be able to doso were he to be convicted for his 2017 offending. I consider the overall effect ofMr Lee's evidence paints a much more negative picture of the prospects of Mr Tsyanobtaining a Chinese entry visa than the authorities simply scrutinising his applicationmore than they would have otherwise done so.[29] This then brings the Court to the assessment of whether the consequences of aconviction are out of all proportion to the gravity of the offending. As noted earlier, Iconsider the gravity of the offending to sit at the lower end of the scale of culpabilityidentified by the District Court Judge. I consider the adverse consequences of aconviction mean that there is a real prospect of Mr Tsyan not being granted a Chineseentry visa were he required to disclose his conviction, and thus a real likelihood thathe may not be able to see his elderly parents again while they are alive. Conductingthe evaluative exercise required, I am therefore satisfied that the consequences of entryof a conviction are out of all proportion to the gravity of the offending.[30] It then remains to consider the residual exercise of discretion. I am troubledthat this will be the third time Mr Tsyan has received, in effect, the benefit of the doubtand been subject to a diversion or discharge without conviction. But I also take intoaccount that the index offending occurred some three and a half years ago and there isno suggestion of any further offending by or charges being laid against Mr Tsyan.Mr Tsyan deposes that he gave up drinking alcohol as a consequence of his 2017offending and this may have contributed to what appears to be a degree of reform onhis part. Taking all of these matters into account, I do not consider it appropriate toexercise the residual discretion and decline to grant a discharge without conviction.Mr Tsyan will of course be under no illusion that the Court is highly unlikely to givehim another "benefit of the doubt" in the event of any future similar offending.Result[31] The appeal is accordingly granted. I grant a discharge without conviction andthe conviction entered in the District Court is quashed.____________________________Fitzgerald J