BONG v R [2020] NZCA 94

BONG v R [2020] NZCA 94 [8 April 2020]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA333/2019[2020] NZCA 94BETWEEN SUNG CHANG BONGAppellantAND THE QUEENRespondentHearing: 24 February 2020Court: Clifford, Simon France and Lang JJCounsel: P K Hamlin and S J Vincent for AppellantE J Hoskin for RespondentJudgment: 8 April 2020 at 3 pmJUDGMENT OF THE COURTA The application for an extension of time is granted.B The application to adduce fresh evidence is granted.C The appeal is allowed.D The conviction for male assaults female is quashed. The appellant isdischarged without conviction.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] Following a jury trial in the District Court the appellant, Sung Chang Bong,was found guilty of one charge of male assaults female. At sentencing,Judge Sainsbury declined Mr Bong's application to be discharged without convictionand sentenced him to 12 months' supervision.1[2] Mr Bong now appeals his conviction and sentence.[3] Mr Bong says that because of his immigration status his conviction — contraryto Judge Sainsbury's conclusion — will have direct and indirect consequences out ofall proportion to the gravity of his offence. In particular, he asserts the almostinevitable consequence of his conviction is that he will be deported from New Zealandback to Korea. That will cause the breakup of the successful life he, his wife and theirthree children have established in New Zealand. Accordingly, the Judge had thediscretion under s 106(1) of the Sentencing Act 2002 to discharge Mr Bong withoutconviction. He was wrong not to do so.[4] Mr Bong's notice of appeal was received in this Court one day out of time.As the delay is very minor and no prejudice appears to arise, we grant the necessaryextension.Context[5] Mr Bong is a Korean national. He has lived in New Zealand since 2012, withhis wife and three children, on a series of successive work visas. Mr Bong works as areligious broadcaster. In early 2018 he was in a relationship with another woman.Following a physical altercation between Mr Bong and that woman, observed by thewoman's neighbours, Mr Bong faced charges of sexual violation by rape, sexualviolation by unlawful sexual connection, kidnapping, threatening to kill, assault withintent to injure and two charges of male assaults female.[6] Mr Bong's jury trial took place in September 2018. He was found not guiltyby the jury on all charges that he faced, save one of male assaults female. A conviction1 R v Bong [2019] NZDC 17142.was not entered against Mr Bong at the end of his trial, in anticipation of hisapplication to be discharged without conviction.[7] Mr Bong was sentenced some nine months later. By that time his work visahad expired. Mr Bong's application for a discharge without conviction was premisedon the proposition that there was a real and appreciable risk that, if convicted, he wouldnot get a further work visa. He would therefore have to return to Korea. In view ofthe opportunities available here, his wife and children proposed that in thosecircumstances they would remain in New Zealand. To quote the Judge:2The argument is that breaking up the family in this way would be aconsequence out of all proportion to the gravity of the offending.[8] In sentencing Mr Bong the Judge first assessed the gravity of his offending.3Given the jury's verdicts, the Judge needed to carefully identify the factual basis ofthe single guilty verdict returned. Having done so, the Judge categorised the level ofviolence involved as being at the lower end of the scale. Whilst the event was atraumatic experience for the complainant, there were relatively moderate physicalconsequences, such as bruising.[9] The Judge also noted that Mr Bong had subsequently undertaken counselling,and that a significant number of letters of support had been provided to the Courtwhich referred to Mr Bong's strong Christian principles and his general non-violentcharacter. Whilst noting the violence inherent in the events in question, the Judge alsoaccepted that Mr Bong was generally not a violent person, and that it appearedsurprising he had acted the way he did.4[10] As regards Mr Bong's s 106 application the Judge noted that, other thanMr Bong's expression of concern as to the likelihood of him getting a further workvisa if a conviction was entered, no expert evidence had been placed before the Court.The Judge considered that distinguished the case before him from that of Rahim v R.5Mr Rahim, who was in similar circumstances to Mr Bong when it came to sentencing,2 At [15].3 At [4].4 At [11]–[14].5 Rahim v R [2018] NZCA 182.provided the District Court with expert evidence as to the impact of his conviction interms of the application of the Immigration Act 2009 (the Act). That evidence wasthat if a conviction was entered there was a real and appreciable risk that Mr Rahimwould be deported, thereby splitting up the family.[11] Disagreeing with the District Court, this Court found that would be aconsequence out of all proposition to the gravity of the offending, and on appeal,granted Mr Rahim the discharge without conviction the District Court had declined tomake.6[12] Judge Sainsbury recorded that he was not prepared to adjourn Mr Bong'ssentencing to enable such evidence to be provided, given the matter had already beensubstantially delayed.7 He contrasted Rahim with other cases, where the more typicalapproach has been to leave the consequences of the entry of a conviction tothe immigration authorities. He then concluded that the risk of Mr Bong not obtaininga work visa had not been proven to be a real and appreciable risk that outweighed thegravity of his offending.8[13] The Judge then convicted Mr Bong and sentenced him to 12 months'supervision, with a special condition to complete counselling.AppealFresh evidence — leave[14] Following his conviction, Mr Bong filed his appeal and, in support, obtainedexpert evidence as to the consequences for his future immigration status of the entryof his conviction and of the result, successful or not, of this appeal. He also filedaffidavits prepared by him and his wife describing the consequences of the convictionand any possible future deportation of Mr Bong. He requires leave for that evidenceto be admitted. The general principle is that further evidence will only be admissiblein a criminal appeal where it is fresh, that is in general terms it is evidence which could6 At [33].7 R v Bong, above n 1, at [17].8 At [18]–[19].not have been obtained at the time of the original decision, and it is cogent, that it iscompelling. It is recognised, however, that the more compelling the evidence, the lessweight will be given to the need for freshness.[15] As the Judge noted, it would have been possible for Mr Bong, as Mr Rahimhad done, to provide the Judge at sentencing with expert evidence. By the same token,by the time we heard Mr Bong's appeal things had moved on considerably as regardshis immigration status. It transpired that the assumption Mr Bong and his counsel hadmade at the time of his sentencing, namely that Mr Bong was lawfully in New Zealandon a temporary visa, had proved to be incorrect. The expert evidence Mr Bongobtained, by way of two affidavits from Mr Simon Laurent of Auckland, a solicitorand a recognised expert in the field of immigration law, therefore provided veryhelpful updating evidence for the Court.9 Moreover, we did not understand the Crownto oppose the introduction of that evidence which, in the circumstances, was aresponsible approach. Leave is granted for that additional evidence accordingly.[16] Likewise, we consider that the affidavits of Mr Bong and his wife are cogent,and fresh in that they canvas developments since Mr Bong's sentencing. Considering,moreover, the background of a misunderstanding of Mr Bong's then immigrationstatus in the Court below, we are satisfied that leave should also be granted to admitthese affidavits and do so accordingly.What the fresh evidence tells us[17] Mr Laurent in fact swore two affidavits. The first proceeded on the basis that,as the Judge had recorded in his sentencing notes, Mr Bong's work visa had expiredon 1 March 2019. That is after he had been found guilty on the charge of male assaultsfemale, but before he had been sentenced. That affidavit went on to comment thatMr Bong had applied for a visitor visa before that date and had been issued an interimvisa by Immigration New Zealand (INZ) to maintain his lawful status in New Zealandwhile his substantive application was being considered. However, neither Mr Laurentnor Mr Bong's counsel was then aware that INZ had in fact declined to follow itsnormal course and had instead refused to issue an interim visa to Mr Bong. He had9 It was Mr Laurent who provided expert evidence in Mr Rahim's case.consequently been in New Zealand unlawfully since 1 March 2019 and liable fordeportation accordingly, irrespective of whether he was convicted for his offending ornot.10 Mr Laurent reconsidered Mr Bong's circumstances in his second affidavit onthat basis.[18] In that affidavit Mr Laurent first commented that Mr Bong's true status underthe Act significantly altered the immigration consequences that might flow from hisconviction being upheld on appeal. Mr Laurent explained why, in his view, INZ hadcaused that status by not granting an interim visa:This is probably because the existence of the charges against him had raised acharacter alert against Mr Bong's customer profile which prevented theautomatic grant of the interim visa, and the manual assessment resulted in adecline.[19] Notwithstanding Mr Bong's liability for deportation, INZ determined hissubstantive application for a visitor visa, which was declined on 12 August 2019.Mr Laurent noted the basis for that decision, as recorded in a letter from INZ whichhe had sighted, was the fact of Mr Bong's conviction and sentence on 20 June.[20] Against that background, Mr Laurent assessed the significance of Mr Bong'sconviction on the ability he had, first, to avoid deportation or if deported, to applysuccessfully to return to New Zealand.Liability for deportation[21] Mr Bong had had 42 days from the expiry of his last visa on 1 March 2019 tofile an appeal against deportation under s 154 of the Act. As he had not done so, hehad lost that appeal right. He could therefore be served with a deportation order at anytime under s 175 of the Act. Once served, such an order would authorise his removalfrom New Zealand. Given Mr Bong's criminal offending and his unlawful status,Mr Laurent considered that service of a deportation order was "likely" in the future,most probably after our decision in this appeal.10 Immigration Act 2009, s 154.[22] Mr Laurent identified two ways in which Mr Bong could avoid deportation:(a) first, by successfully applying to the Minister to exercise his absolutediscretion to grant a visa under s 61 of the Act, before a deportationorder was served; or(b) second, by persuading an immigration officer to exercise her absolutediscretion, conveyed by s 177 of the Act, to cancel that order.[23] Given the description of both decisions as being in the "absolute discretion" ofthe decision-maker Mr Laurent was careful about his assessment of the consequencesof Mr Bong's conviction.[24] In the case of a ministerial s 61 decision, Mr Laurent noted that Mr Bong hadalready applied unsuccessfully to the Minister under s 61 when his substantiveapplication for a visitor visa was declined.11[25] Were Mr Bong's appeal to be successful, and his conviction quashed, theabsence of a conviction might have a positive influence on the mind of a person calledto consider a s 61 application.12 At the same time, the presence of the charge and theguilty finding already made would probably work against Mr Bong's chances ofsecuring a visa.[26] The s 177 discretion responds to the possibility that the person liable fordeportation might invoke New Zealand's international obligations. In that context,Mr Laurent was of the view the factor most likely to influence INZ would be thesituation of Mr Bong's wife and children, who had lived here with him since 2012.If a case could be made that the children would benefit from remaining inNew Zealand, Mr Bong's deportation could result in them being deprived of his11 Mr Bong lodged a request to have the refusal to grant him a visitor visa reviewed. However,because he was unlawfully in New Zealand, Mr Laurent explained this was apparently treated byINZ as a request for a visa under s 61.12 Mr Laurent explained that s 61 requests were normally assessed by suitably graded visa officersexercising delegated ministerial authority.presence to care for and support them, a factor of possible relevance to, for instance,New Zealand's obligations under the Convention on the Rights of the Child.13[27] Mr Laurent was also of the view that the decision of this Court on Mr Bong'sappeal could be influential. If the conviction stood, it was unlikely the needs of hisfamily would outweigh the existence of that criminal record. On the other hand,a discharge without conviction could highlight the causal connection between theoriginal conviction and the decision to decline Mr Bong's substantive visitor visaapplication which had, in turn, led to his unlawful status in New Zealand. That changein circumstances might justify cancellation, although the highly discretionary natureof the power under s 177 made that "far from certain".[28] Mr Laurent then commented on the effect of a conviction on the possibility ofMr Bong being able to return to New Zealand if he was deported or left voluntarily.[29] Mr Bong could choose to depart New Zealand before a deportation order wasserved on him. In those circumstances he would not be prevented from applying fora visa to return to New Zealand in the future.14 Were his conviction to stand, however,he would fail to meet INZ's character requirements, as set out in their immigrationinstructions, for a temporary entry class visa. He would therefore require INZ to granthim a character waiver. Mr Laurent described Mr Bong's chances of obtaining sucha waiver as "quite finely balanced" as he considered that INZ generally viewedviolence convictions with considerable suspicion. He also noted INZ had declined acharacter waiver for Mr Bong once already, when his application for a visitor visa wasdeclined on 12 August 2019 (see above at [19]). On the other hand, were Mr Bong'sappeal to be allowed and his conviction quashed, he would no longer fail INZ'scharacter requirements and his chances of obtaining a visitor or work visa wouldsubstantially increase. As Mr Laurent concluded, "[t]he outcome of the present appealcould therefore have a significant impact on [Mr Bong's] chances of success inobtaining a visa."13 United Nations Convention on the Rights of the Child (1989) 1577 UNTS 3 (opened for signature20 November 1989, entered into force 2 September 1990)14 Although Mr Bong would still be considered "deported" in terms of s 10 of the Immigration Act,the usual prohibition on re-entry would not apply: s 179(2).Analysis[30] We start by noting our assessment, with which the Crown agreed, that thebehaviour upon which the jury's guilty verdict was based is very low-level offending.When separated from the Crown narrative of the other alleged offending, in respect ofwhich Mr Bong was found not guilty, the assault involved some form of tussle betweenMr Bong and his victim as a result of which they both fell to the floor. There is anindication, moreover, that outcome may have been influenced in part by the fact thatMr Bong suffers from weakness in his legs. The assessment of the consequences ofhis conviction is to be made against that recognition. We also note this against thebackground of mitigating factors personal to Mr Bong, including his previous sixyears' successful residence in New Zealand and his considerable contributions to thecommunity (as amply demonstrated in material provided to the Court), as a result ofhis involvement in good works as part of his commitment to his church.[31] We note the conviction has already had significant adverse consequences onMr Bong. Those include the inevitable stresses and strains the immigration processeshave caused Mr Bong, his wife, their three children and their wider families.In addition, Mr Bong has suffered considerable ill health in the intervening period.Because of his unlawful immigration status, he was not entitled to receive free medicalcare and has faced significant costs as a result of his offending, given its very lowgravity.[32] In that context we see the severity of a conviction for Mr Bong's futureimmigration status as significant. We accept Mr Laurent's evidence that the presenceof a conviction will make it very difficult for Mr Bong to persuade an immigrationofficer to exercise her discretion to cancel a deportation order under s 177. We alsoaccept that if Mr Bong leaves New Zealand, the need for him to obtain a characterwaiver will represent a significant barrier to him gaining a visa in future. We note that,absent a conviction, INZ will remain on notice as to the fact of the charges Mr Bongfaced and the jury's verdict, but any future application will be assessed without thesignificant headwind of the character waiver requirement. On balance, we are satisfiedon the basis of the updated information we now have that in terms of s 106 of theSentencing Act and in these unusual circumstances, the consequences of Mr Bong'sconviction are likely to be out of all proportion to the seriousness of his offending.We therefore allow the appeal, quash Mr Bong's conviction and discharge him withoutconviction.Result[33] The application for an extension of time is granted.[34] The application to adduce fresh evidence is granted.[35] The appeal is allowed.[36] The conviction for male assaults female is quashed. The appellant isdischarged without conviction.Solicitors:Crown Law Office, Wellington for Respondent