SONG v NEW ZEALAND POLICE [2023] NZHC 3324

SONG v NEW ZEALAND POLICE [2023] NZHC 3324 [22 November 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-480[2023] NZHC 3324BETWEEN YUANHUI SONGAppellantAND NEW ZEALAND POLICERespondentHearing: 14 November 2023Appearances: Z Chen and C Holland for AppellantR Van Boheemen for RespondentJudgment: 22 November 2023JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Wednesday, 22 November 2023 at 12:30 pm.Registrar/Deputy RegistrarSolicitors: Meredith Connell (Office of the Crown Solicitor), AucklandRighteous Law Limited, Auckland[1] At about 11:46 pm on Saturday, 20 May2023, Yuanhui Song drove with excessbreath alcohol on Greville Road, Albany, Auckland. His manner of driving did notattract Police attention. Instead, he was stopped at a road safety check point. Whenspoken to by Police he exhibited signs of recent alcohol intake. His breath alcoholreading was found to be 472 micrograms of alcohol per litre of breath. In explanation,he said he had a few beers prior to driving.[2] On 22 June 2023, Mr Song pleaded guilty to one charge of driving with excessbreath alcohol.1 He sought a discharge without conviction.[3] On 18 August 2023, Judge B R Pidwell declined the application for a dischargewithout conviction.2 Instead, she convicted and fined Mr Song $400 and disqualifiedhim from driving for six months. Mr Song now appeals Judge Pidwell's refusal togrant him a discharge without conviction.Discharge without conviction[4] Section 106 of the Sentencing Act 2002 (the Act) provides that the Court maydischarge an offender without conviction following a plea or finding of guilt. In orderto grant a discharge without conviction, the Judge must be satisfied that the direct andindirect consequences of a conviction would be out of all proportion to the gravity ofthe offence.3[5] This proportionality assessment is to be made in accordance with the three-step approach set out by the Court of Appeal in Z (CA447/2012) v R:4(a) the gravity of the offending, taking into account all aggravating andmitigating factors of the offending and the offender;1 Land Transport Act 1998, s 56(1), (3)(a) and (b). Maximum penalty: Three months' imprisonmentor $4,500 fine; and mandatory minimum six months' disqualification from holding or obtaining adriver licence.2 New Zealand Police v Song [2023] NZDC 17793.3 Sentencing Act 2002, s 107.4 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].(b) the direct and indirect consequences of a conviction for the offender;and(c) whether those consequences are "out of all proportion" to the gravityof the offending.[6] Even if the Court determines that the consequences are out of all proportion, itmust still consider whether it should exercise its residual discretion to grant a discharge(although it would be rare for the Court to refuse a discharge in such circumstances).5Approach on appeal[7] An appeal against a refusal to discharge without conviction is an appeal againstboth a conviction and sentence.6 To the extent this appeal relates to the Court'sweighing of consequences against gravity, it proceeds by way of rehearing wherebythe appellate court makes its own assessment of whether the criteria for dischargewithout conviction are met.7[8] This Court must dismiss Mr Song's appeal unless it is satisfied that amiscarriage of justice has occurred.8 In the context of a discharge without conviction,a miscarriage of justice means a "material error" or that the Judge "erred in applyingthe principles" for discharging an offender without conviction.9District Court decision[9] At the outset of her decision, the Judge set out the three steps she must considerwhen dealing with an application for discharge without conviction under s 106 of theAct, as set out above.[10] As to the gravity of the offending, the Judge noted that Mr Song was a first-time drunk driver. There was no driver fault and he co-operated with the Police. The5 At [27].6 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144; and Ovtcharenko v Police [2017] NZCA65 at [5].7 Austin, Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.8 Criminal Procedure Act 2011, s 232.9 Jackson v R, above n 6, at [12].Judge observed that in normal circumstances, he would be receiving a fine and amandatory disqualification of six months.[11] The Judge also referred to Mr Song's previous good character and genuineremorse for his actions. The Judge recounted the explanation offered for theoffending: that Mr Song was at a work event and had received a call from his wife,who was ill. He was not going to drive home but because he was concerned for herand wanted to get home quickly, he made the decision to drive. After being stoppedat the Police checkpoint he got home and his wife was simply asleep. She had droppedthe phone and not picked up his call.[12] The Judge noted that any drink-driving offence is serious. Given the fact thathe had no previous convictions and there was no driver fault, and taking into accountthe reasons that he chose to drive on the night, the Judge accepted that the gravity ofthe offence was at the low end of the moderate band.[13] The Judge then turned to the consequences of a conviction. She referred to anaffidavit filed by Mr Song and the concern he had of the effect of a conviction oninternational travel. The Judge noted that Mr Song also had a son, who seems to bedoing very well and is looking to further his education overseas. The Judge said thatwas all commendable.[14] The Judge referred to the Top Talent Pass Scheme visa (TTPS visa) for HongKong, which Mr Song had obtained earlier this year. It lasts for two years and meansthat his son could attend educational facilities under that visa. The Judge noted thatalthough the documents state he should have a clean criminal record, there is adiscretion for immigration authorities in Hong Kong in regard to that visa and anyother travel that he may choose to do around the world.[15] The Judge, however, was of the view that it was not for the Court to hide aperson's conviction when there is a discretion for immigration authorities to considerall the circumstances, including good character, the outcome of the offending and soforth, and still grant a visa.10 The Judge said she was not persuaded by the argument10 Referring to Basnyat v Police [2019] NZSC 21.that he would be adversely affected in international travel to the extent that hesuggested in terms of his professional and personal obligations.[16] Furthermore, the stress to Mr Song's wife and son was a natural consequenceof people going through the court process, and that was not out of all proportion to thegravity of the offending.[17] In conclusion, in determining whether the consequences would be out of allproportion to the gravity of the offending, the Judge found that there was nothingoutside the usual consequences of conviction and therefore declined Mr Song'sapplication for a discharge without conviction. The Judge then convicted andsentenced Mr Song to a fine of $400 and disqualified him from holding a driver'slicence for six months.Appellant submissions[18] As to Mr Song's personal circumstances, counsel explains that Mr Song's wifehas been diagnosed with various rare autoimmune diseases significantly restricting herindependence and ability to carry out daily tasks. She is largely confined to the houseand depends on Mr Song to drive her to all specialist appointments.[19] Their son is 12 years old and attending school in New Zealand. Mr Song tookover the duties of looking after him and his schooling since his wife fell ill.[20] Regarding the offending, counsel says that Mr Song has fatty liver disease anddoes not typically drink. However, on the night in question he was at a businessfunction and felt it would have been rude to continue to refuse toasts of traditionalChinese alcohol offered by the host. After the function ended he called a colleague toask for a lift home, but received no response. He then called his wife and onlymanaged to hear that she was not feeling well before their conversation was cut short.He could not get her on the phone again. Counsel says he had genuine fear and concernabout what had happened to his wife so he made the unwise decision to drive home.[21] The application for a discharge without conviction was made on the basis that:(a) the gravity of the offence is at the lower end of a moderate band afterweighing the aggravating and mitigating factors of the offence;(b) the direct consequence of the conviction has a real likelihood of causingindirect consequences on the appellant's son, wife, and others in hiscompany who are not culpable in the offence and have no control oversuch offence; and(c) these said consequences are out of all proportion to the gravity of theoffending.[22] The direct consequence presented by the appellant is the impact of theconviction on his ability to either maintain his recently obtained TTPS visa, or to begranted a temporary visa for other countries, especially Australia, the United States ofAmerica (USA), and the United Kingdom (UK).[23] However, it is the indirect consequences that are submitted by counsel to beout of all proportion to the gravity of the offending:(a) The impact on the appellant's son, who wishes to continue his highschool education overseas. This is the reason why Mr Song applied forthe TTPS visa for the family. Should Mr Song's TTPS visa be cancelled(or unable to be renewed), or Mr Song be unable to travel to othercountries, his son will not be able to study overseas because he requiresa legal guardian to accompany him and Mr Song's wife's health doesnot allow her to accompany him.(b) The restriction on Mr Song's ability to travel overseas could also impactthe business development of his company, Sky Media Ltd. Mr Song'sability to attend events, functions, exhibitions, or meetings outside NewZealand is pivotal to the company. The company relies on him toestablish business and personal relationships and to create and explorecommercial opportunities to sustain and develop the company.(c) The conviction and the potential consequences flowing from theconviction have caused and will continue to cause emotional distress toMr Song's wife. In essence, she blames herself for what happened,compounding the already self-imposed guilt of being a hindrance to herfamily. Such worry and distress has manifested itself further since theoffending. There is a real concern as to how this continued emotionaldistress will affect her current and future treatments.[24] There was an extensive range of material filed in the District Court togetherwith an affidavit from Mr Song, dated 28 July 2023. In addition, Mr Song relied on anumber of cases where expert evidence had been led as to the effect of a convictionfor drink-driving on an offender's ability to travel to other countries.Respondent submissions[25] Counsel for the respondent submits that the District Court Judge did not err inher assessment of the consequences. First, counsel says that the basis of the refusalwas mischaracterised and submits that the Judge was rather not persuaded on theevidence before her that Mr Song would be affected by limitations on internationaltravel to the extent that he submitted. Counsel relies on Edwards v R,11 and severalother authorities regarding travel consequences to say that the court will normallyrequire expert evidence where a discharge is sought on the basis the conviction willimpede travel to a particular jurisdiction.[26] Counsel therefore submits the Judge was correct to find that there wasinsufficient evidence to demonstrate that the conviction would impact Mr Song'sability to maintain his TTPS visa and/or obtain a visa to Australia, the USA, or theUK. Parallels were also drawn to Linterman v Police where this Court found theevidence fell short of showing the appellant's future depended in any substantial wayon the particular reason for needing to travel.1211 Edwards v R [2015] NZCA 583.12 Linterman v Police [2013] NZHC 891.[27] As regards the consequences to Mr Song's wife, while expressing sympathy,counsel submits the suggested consequences are not in any way a certainty, nor is therea real risk they may eventuate. In any event, it is said this would not be an indirectconsequence out of all proportion but rather a natural consequence, as the DistrictCourt Judge found.Discussion[28] Mr Song's appeal rests on the second and third steps of the assessment giventhe Judge accepted that the gravity of the offence was at the lower end of the moderateband. For completeness, I agree. Broadly, Mr Song identifies several travelconsequences for him as a result of the conviction and also points to indirectconsequences on his wife, son, and company.[29] Mr Song's travel concerns are two-fold. He is concerned about the effect of adrink-driving conviction on his existing TTPS visa for Hong Kong and his ability totravel and/or obtain a temporary visa for, in particular, Australia, USA and the UK.Consequently, he is further concerned with the ability of his son to continue educationin Hong Kong or elsewhere overseas, and the impact loss of travel may have on thedevelopment of his business. I address these concerns below.[30] Mr Song's TTPS visa enables his son, as his dependent, to also be granted thesame visa. He says that as a visa holder, his son will be eligible to continue studyingin Hong Kong, which in turn will increase his chances of further study at qualityschools or universities in Australia, the USA, and the UK. However, he says that hisTTPS visa may be cancelled which would prevent his son from studying in Hong Kongunder the same visa.[31] In support of this consequence, Mr Song annexes a printout from the HongKong Immigration Department website on the Top Talent Pass Scheme. As a startingpoint, the printout seems to be contradictory. In one part it states:An application for a visa/entry permit to enter the HKSAR under the TTPSmay be favourably considered if:a. there is no security objection and no known record of serious crime inrespect of the applicant.[32] Further on it states:In general, unless a person has the right of abode or right to land in theHKSAR, he/she requires a visa/entry permit to work in the HKSAR. Whileeach application is determined on its individual merits, an applicant shouldmeet normal immigration requirements (such as holding a valid traveldocument with adequate returnability to his/her country of residence orcitizenship; be of clear criminal record and raise no security or criminalconcerns to the HKSAR; have no likelihood of becoming a burden on theHKSAR, etc.) as well as the relevant specific eligibility criteria detailed abovebefore he/she may be considered for the grant of a visa/entry permit. It shouldbe noted that the eligibility criteria may be subject to change from time to timewithout prior notice.[33] The first extract talks of "no known record of serious crime", while the secondextract talks of being "of clear criminal record". With no expert evidence presentedon the potential barriers the conviction may present in respect of the TTPS visa, thisCourt is not in a position to conclude whether there is a real and appreciable risk thatthe Hong Kong authorities will revoke (or decline to renew) Mr Song's TTPS visa asa result of the drink-driving conviction.[34] As to Mr Song's ability to travel to or obtain a temporary visa in othercountries, I consider the evidence put forward in relation to the three countriesidentified in turn.[35] For a temporary visa in Australia, Mr Song annexes a printout from theAustralian Department of Home Affairs website on character requirements for visas.It states:You may not meet the character requirements if:• you have a substantial criminal record[36] Again, I cannot conclude that Mr Song will be prevented from obtaining atemporary visa because in the absence of any evidence to the contrary, I am of theview that one drink-driving conviction is unlikely to be considered a "substantialcriminal record". Furthermore, the printout also states:We consider all circumstances of a case. Even if you do not meet the characterrequirements, we, or the Minister for Home Affairs can choose to grant yourvisa.[37] There evidently remains a discretionary element when being considered for avisa that leaves open the possibility of Mr Song still obtaining a visa even if theconviction was considered to be a "substantial criminal record".[38] Similarly, for the USA, Mr Song annexes a printout from the website of the USEmbassy in the UK headed "Arrest, Caution, Conviction". It states:If you have ever been arrested, cautioned and/or convicted of an offenseanywhere in the world, you are required to declare it when applying for a visa.In cases where an arrest resulted in a conviction, you may be permanentlyineligible to receive a visa and will require a waiver ineligibility to travel tothe United States.[39] As in the case of Australia, this statement indicates there is a discretionaryelement to the granting of visas even where an applicant has a conviction. In theabsence of expert evidence as to how this requirement is interpreted in practice, noconclusion can be drawn on the effect of Mr Song's conviction for drink-driving onhis ability to travel to the USA.[40] Finally, Mr Song annexes a printout from the UK Government on the goodcharacter requirements for persons applying for British citizenship. The difficultywith this extract is that it does not, in its own terms, apply to persons such as Mr Songwho (possibly) wishes to travel to the UK. Nonetheless, it states:Having a criminal record does not necessarily mean that an application [forBritish citizenship] will be refused. However, a person who has not shownrespect for, or is not prepared to abide by, the law is unlikely to be consideredof good character.[41] Such a general statement in relation to an application for British citizenshipdoes not assist in assessing whether Mr Song's drink-driving conviction will preventhim from travelling to the UK.[42] In the District Court the Judge said that she was not persuaded by the argumentthat Mr Song would be adversely affected in international travel to the extent that hesuggested in terms of his personal and business obligations.[43] I agree. The Court of Appeal was clear in Edwards v R that the Court will notpermit an applicant to speculate about matters such as travel restrictions.13 Whereconsequences such as restrictions on travel are not agreed, proof of the matters mayrequire expert evidence.14 Therefore, in the absence of any compelling proof or expertevidence, I too am not persuaded that a drink-driving conviction will be a substantialimpediment to overseas travel by Mr Song.[44] As to the indirect consequences on Mr Song's son, I am also not persuaded thatthere will be significant consequences for him, even if the TTPS visa is cancelledand/or Mr Song is unable to travel to Australia, the USA or the UK. If Mr Song's sonis unable to complete his high school education overseas because of the inability ofMr Song or his wife to accompany him, then that is the loss of an opportunity andnothing more. There is nothing to suggest that the high school education he isreceiving in New Zealand is anything other than excellent. When he turns 18,Mr Song's son will presumably not require a legal guardian to accompany him and hewill be able to undertake university study anywhere in the world, subject to grades andfunding.[45] Mr Song is the managing director and one of the shareholders of Sky MediaLtd. Sky Media Ltd is the owner and operator of www.skykiwi.com and other variousbusiness ventures in New Zealand and internationally. It is also the largest Chineselanguage media company in New Zealand. Mr Song has advised the othershareholders of the charge. He says they indicated that should such a conviction posea risk to the image and reputation of the company, he would need to step down asmanaging director. There is no evidence put forward, however, to suggest that aconviction would pose a risk to the image and reputation of the company.[46] Mr Song's wife also provided a letter to the District Court to explain theindirect consequences of Mr Song's conviction on her. She has witnessed Mr Song'sworry and regret, which has led to her being unable to sleep. If Mr Song wereburdened with a criminal record, she would feel immense guilt. She would not knowhow to face it or explain it to their son.13 Edwards v R, above n 11, at [25].14 At [25].[47] Addressing these indirect consequences, the Judge stated:I am sympathetic to your role in your family and your wife's medical conditionand the stress that this is causing on her and your son. That is a naturalconsequence of people going through the court process. It has a further effecton family members and in my view that is not all out of proportion to theoffending that you have committed.[48] While I do also have sympathy for Mr Song's wife's health issues, thesuggested consequences of a conviction for Mr Song are not in any way a certainty.Nor has it been established that there is a real and appreciable risk any of these adverseconsequences may eventuate.15[49] I agree with the Judge that the identified consequences are no more than theordinary consequences that may arise as a result of a conviction and therefore are notout of all proportion to the gravity of Mr Song's offending. Accordingly, a miscarriageof justice has not occurred in this case.Result[50] The appeal is dismissed.________________________________Woolford J15 At [24].