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Hu v Minster of Immigration [2007] NZDRT 14 (19 July 2007)

Last Updated: 26 September 2008

Decision No: 4/2007 DRT No: 021/2002

IN THE MATTER of an Appeal under Section 104 of theImmigration Act 1987

BETWEEN JIA CHUN HU

Appellant

AND THE MINISTER OF IMMIGRATION

Respondent

BEFORE THE DEPORTATION REVIEW TRIBUNAL

R von Keisenberg — Chair

R H Weller JP — Member C Duncan — Member

HEARING at Auckland on 23 October 2003; Final submissions received on 26 March 2007
DATE OF DECISION 19 July 2007

APPEARANCES

S Laurent for Appellant

MJ Hargreaves and JA Waterworth for Respondent

DECISION

[1] This is an appeal against a Deportation Order issued by the Minister of Immigration

on 7 February 2002. The order was made pursuant to Section 91(1) (c) of the Immigration Act 1987 ("the Act") on the basis that Mr Hu had been convicted of an offence of murder and sentenced to life imprisonment.

[2] At the outset the Tribunal acknowledges the significant delay in the determination of

this matter. The matter was first heard on 8 October 2003. At the conclusion of the hearing,
the Tribunal adjourned the matter to seek additional submissions addressing Article 10 of the
Criminal Law of the People's Republic of China ("PRC") to assist it in determining the
likelihood of Mr Hu facing further trial and/or additional punishment if he were deported back
to China. After a delay of almost three years occasioned by the Respondent's unsuccessful attempts to obtain specific assurances through its diplomatic channels, submissions were

eventually received from the Respondent on 17 August 2006. Submissions in response were filed by Counsel for Mr Hu on 24 August 2006.

[3] Arising from the supplementary submissions received, the Tribunal issued a further

memorandum in February 2007 for Counsel to address two specific issues:

(a) What weight if any should the Tribunal place on the decisions of the United

Nations Human Rights Committee ("UNHRC") provided to Counsel; and

(b) Is the information before the Tribunal sufficient for it to assess the issue

whether the death penalty is a necessary and foreseeable consequence should the Appellant be deported to China.

[4] Further supplementary submissions were received in February and March 2007. This

decision incorporates all Counsels' various submissions.

[5] We make one final point on the issue of delay. A delay of three and a half years from

the date of hearing is unacceptable by most standards. However, little of the delay can be attributed to the Tribunal. It can also be said that Mr Hu who was sentenced to life imprisonment with a minimum non-parole period of 13 years and remains in prison has not been prejudiced by the delay. Had there been any change in his personal circumstances since the hearing, specific opportunity was afforded to his Counsel in September 2006 to bring this to the attention of the Tribunal. No such submissions were received in relation to any change in Mr Hu's circumstances since the hearing.

Background

[6] On 30 June 1995, Mr Hu's wife, Jian Huang made an application for residency in New

Zealand under the General Skills Category on behalf of herself, the Appellant, Mr Hu and the couple's infant son, Mei Jie Hu, born in 1994. The couple's successful application was based on Jian Huang's profession as a doctor and her 6 years' experience in that capacity in Shanghai.

[7] Mr Hu and his family eventually arrived in New Zealand on 16 November 1996.
[8] On 21 November 2000 in the High Court at Auckland following a Jury trial, Jia Chun

Hu was convicted of the murder of his wife Jian Huang. The offence had been committed on 26 February 2000.

[9] On 19 December 2000 in the High Court at Auckland, Mr Hu was sentenced to life

imprisonment with a non-parole period of thirteen years.

[10] Mr Hu appealed the Order for Deportation on 22 July 2002 on the grounds:

"(I) It would be unduly harsh to deport me from New Zealand because, among others, it would deprive my only child (a New Zealand citizen) and the opportunity to maintain a father/son relationship.

(2) It would be unjust to deport me from New Zealand.

(3) For fear of my own safety in China because of the retribution and physical harm that my wife's 's family will inflict on me.

Discussion

[11] Section 105 of the Act confers on the Tribunal discretion to quash a Deportation Order and in exercising that discretion it must consider specific criteria as provided in that section. The legislation requires us to focus on the personal and humanitarian aspects of the Appellant and his family pursuant to Section 105 (a), (b), (c), (d) and (g). Section 105 (e) and (f) require the Tribunal to focus on the public interest factor and in so doing have regard to the Appellant's criminal history and propensity to reoffend.
[12] In carrying out this balancing exercise the Tribunal is permitted to range widely in its

discretion. The Tribunal can quash a Deportation Order if it is satisfied it would be unjust or unduly harsh to deport the Appellant from New Zealand and that it would not be contrary to the public interest to allow the Appellant to remain in New Zealand. The words "unjust" or "unduly harsh" in section 105 set a high threshold. In the case of Fa 'avae v Minister of Immigration (DRT 8/96 pgs 1-2):

"The test expressed as "unjust or unduly harsh" goes beyond considerations of convenience or ordinary hardship. The test may be met by a particular circumstance or by a combination of circumstances, which cumulatively disclose on balance injustice or undue harshness. It is frequently assessed in relation to the gravity of the offending.... If we are so satisfied to this extent we must further find it is not contrary to the public interest for the appellant to remain in New Zealand Unlike the former consideration of "unjust or unduly harsh", which may apply to any person affected by the deportation, the latter is directed to whether the appellant's remaining in New Zealand is not contrary to the public interest."

[13] In Fa'atafa v Minister of Immigration (unreported, High Court, Christchurch, CIV2005-409-1494, 17 October 2005, per Panckhurst J) the Court, referring to R v Leitch [1998] 1 NZLR 420, the Court held that "satisfied" was merely a direction to the Tribunal to come to a judicial decision without the imposition of standards of proof or adverbial qualifications.
[14] It is generally accepted authority that the starting point for this Tribunal's

consideration is the offending itself, which prompted the issuing of a Deportation Order (M v Minister of Immigration (unreported, High Court, Auckland, AP 84/89 17 August 2000, Goddard J)). We now address Mr Hu's offending.

The Offending

[15] The facts of the case were that prior to the commission of the offence, it appeared on the evidence that Mr Hu and his wife had been experiencing problems in their marriage. In an interview Mr Hu had with the Probation Service prior to sentencing, he told the Probation Officer he considered his marriage to have been a happy one until 1999 when he claims his wife had taken a lover who had provided her with an apartment. The relationship continued to deteriorate with many arguments between them and in December 1999 the parties separated. Shortly after separation Mr Hu told the Tribunal that he signed over his share of the unit that the parties owned together and also consented to his wife having the primary care of the son (with reasonable contact reserved to him). On February 26 2000, Mr Hu murdered his wife.

[16] Mr Hu did not plead guilty to the offence of murder but was found guilty following a Jury Trial in November 2000.
[17] When sentencing Mr Hu in December 2000, His Honour Justice Fisher described the background to the offending as follows:

"You were separated from your wife who had obtained a protection order under the Domestic Violence Act. Your wife formed a new relationship. There were some reconciliation attempts but these were unsuccessful. You were jealous of your wife's new boyfriend. You were also angry with her for refusing to pay you a sum which you considered to be due to you for matrimonial property. Your wife had custody of your five year old son but on the day of the murder he was in your care. You and the boy happened to encounter her elsewhere in Auckland and you followed her to a beach. You had a violent argument with her there. You decided to kill her. You went to her townhouse to lie in wait for her. The house was locked but you gained access by having your son put his arm through a mail slot in the front door and open the door. You entered the house with a hammer with which to kill her. In the house you saw a peeling knife and decided to use that instead You lay in wait watching for her arrival through an upstairs window. You were hiding in an upstairs bedroom. Your wife entered the house not realising that you were there. You emerged as she climbed the stairs and attacked her. You stabbed her twelve times. She died shortly after."

[18] His Honour noted that to the Appellant's credit he had written a letter expressing his

remorse and his concern for his son and his wife's family. Justice Fisher observed however that some of the comments that he may have made to the Probation Officer in preparation of the Pre-sentence Report reflected "a less than total acceptance of the offending". He commented in sentencing Mr Hu that the "full road to self-realisation is an acceptance of the truth in every detail".

[19] The penalty imposed by the Court (a term of life imprisonment with a minimum non- parole period of 13 years) reflected the "home invasion" provisions, which had been breached in three separate ways:
(a) The offence had been committed after Mr Hu had broken into the deceased

dwelling house;

(b) That after having unlawfully entered, remained there without right; and

(c) He did so contrary to a protection order which was in force.

[20] Counsel for Mr Hu, in his submissions, addressed the Tribunal on the background to Mr Hu's offending. The Tribunal was told that back in China Mr Hu and his wife Mrs Jian Huang had lived a relatively successful and prosperous life. Despite this they came to New Zealand to seek a better future for themselves and their son. However following their arrival they were unable to progress their chosen professions; Mrs Huang was unable to obtain employment as a doctor and Mr Hu was not successful in securing the same or similar employment he had enjoyed in China. Counsel submitted that the social pressures of migration and moving to a different society were a major cause in the breakdown of the parties' relationship which it was submitted, ultimately led to Mr Hu's offending. While it was not in dispute that the offending was premeditated, Counsel submitted that Mr Hu was not a “murderer” per se.

[21] Mr Hu in his statement to the Tribunal expressed remorse about the offending and urged that his response to imprisonment should also be taken into account, not having breached any conditions of his imprisonment since the commencement of his sentence.
[22] During the course of the hearing Mr Hu was questioned closely regarding his gambling habits prior to his imprisonment. Mr Hu acknowledged that he had spent over $50,000 on gambling prior to the offending but did not regard himself as having a problem in this regard. On 14 December 2000 a pre-sentence report was prepared by the Community Probation Services Auckland office.
[23] In relation to the "assessment" aspect of her report, the Probation Officer identified

low self control and impulsivity and family relationship instabilities as key factors contributing to the offending and motivation to change. She commented:

"Mr Hu engaged in a devastating action which resulted in the loss of his wife's life, deprived their child of his parents and will result in his probable imprisonment for a significant period of time. It appeared to be unplanned and exhibited a lack of self control or thought for the consequences. His gambling also exhibited a lack of self control and impulsivity and may well have extended to compulsion by the time of his arrest. The extent of these behaviours is perhaps aberrant in the context of his usual

_life. 71

[24] Counsel for Mr Hu in his submissions stated that deportation would be unjust and unduly harsh for Mr Hu on two main bases; that there was a high risk of double jeopardy in that he would likely face re-prosecution on his return to China with a likelihood of a further sentence being imposed on him and secondly, that deportation would ultimately separate him from his son. It was submitted that by the time that Mr Hu was released back into society, he would have paid his debt.
[25] In support of Mr Hu's appeal a friend of the Appellant Mr Jin Hua Zhu gave evidence. He stated he had known Mr Hu from approximately 1997 and in his experience Mr Hu was not a "violent person, rather a good person who had loved his wife very much".
[26] The Tribunal also received two witnesses' statements from a Kok Seong Khoo and a Jason Zhao whose statements were admitted by consent. In his statement, Mr Zhao stated that he did not believe Mr Hu had committed premeditated murder bur rather had lost temporary control of himself He described Mr Hu previously as a tolerant, kind and forgiving man. He urged the Tribunal not to deport him, as Mr Hu needed to be in New Zealand for his son. He stated also that if Mr Hu were deported to china there was a possibility that the wife's family would seek Chinese justice through the Courts and he could be sentenced to death as a result.
[27] In addressing the issue of Mr Hu's offending the Respondent submitted that it was the "ultimate grave offence". It was submitted that the Tribunal should in its assessment, take into account both the seriousness of the offending and the degree of premeditation involved.

Summary of Offending

[28] The Tribunal accepts the submission by the Respondent that the offending is one of the more serious and grave offences that can be committed. The Tribunal also observes that there were aggravating features to the offending: the crime was premeditated; it was

committed by Mr Hu in the presence of his son who was in the house at the time and that he actively involved his son by using him to gain entry to his wife's home. The offending in the Tribunal's view was a callous and merciless crime.

The Appellant's Family Interests

[29] The Tribunal recognises its duty to weigh the interests of the State with the relevant interests of the family and in so doing giving it (the family) the weight that is explicitly provided for in International Conventions to which New Zealand is a party. These include the International Covenant of Civil and Political Rights, the Optional Protocol to the Covenant and the United Nations Convention on the Rights of the Child. Article 3.1 of the Convention on the Rights of the Child states:

"In all actions concerning children whether undertaken by a public or private social welfare institution, Courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

In Puli'uvea v Removal Review Authority (1996) 2 HRNZ 510; (1996) 14 FRNZ 322 the Court noted that although the best interests of the child are a primary consideration in a decision to remove or not, they are not the "paramount" consideration.

[30] The Tribunal accepts the Respondent's submissions that while the family unit is considered a highly important and primary consideration in the decision making process of this Appeal, it is not absolute and the Tribunal must weigh the interests of the Appellant, the family and the State. It is accepted that on occasion, State responsibilities may weigh heavier in the final determination.
[31] The essence of Mr Hu's evidence in relation to family interests was that his deportation would result in a final separation from his son. Although he had not been permitted to have contact with his son following his imprisonment he had continued to write to him since then. He had last seen his son in January 2000 and from 2001 had had no contact with him at all. In a statement prepared by Mr Hu he said that if it were not for his son he would have taken his own life and "left this world in the footsteps of my wife. My son is the only reason I am able to go on, otherwise life would be meaningless for me".
[32] Despite the lack of response Mr Hu continued to write letters and post cards to him. (His son is in the care of his maternal grandmother and uncle following his incarceration and is subject to a protection order). Mr Hu's evidence was that upon release from prison he expected to resume full contact with his son and assist him in his "future course in life".
[33] Mr Hu's parents reside in China. Mr Hu told the Tribunal that the last contact he had had with his parents was in the year prior to the Deportation hearing and other family members, a sister and brother reside in Japan.
[34] The Respondent's position in terms of family interest was that while acknowledging the interests of the child are of primary (but not paramount) importance, submitted that taking into account Mr Hu circumstances and the gravity of the offending it was neither harsh nor unjust for Mr Hu to be deported. It was further submitted, that in view of Mr Hu's earliest release date of 2013 at which time his son would be 19 years of age and the lack of contact

since 2000 it was open to the Tribunal to find that a separation between Mr Hu and his son had already taken place.

Summary of Family Interests

[35] For the purposes of our consideration, Mr Hu's family interests in New Zealand consist of the Appellant's son who is now a New Zealand citizen. He is in the care of his maternal grandmother and maternal uncle since the Appellant's imprisonment.
[36] The Tribunal acknowledges that a major ground of Mr Hu's appeal against deportation is that he does not wish to be separated from his son. It is noted that since imprisonment his son's maternal family have not supported Mr Hu having ongoing contact. At the earliest release for parole in 2013 Mr Hu's son will be aged 19 years old and of an age where he will be able to make the decision for himself as to whether he wishes to resume a relationship with his father. Whilst it is understandable that Mr Hu believes he can resume a relationship with his son, in the Tribunal's view, it demonstrates a lack of insight that Mr Hu does not regard the circumstances of his offending namely the brutal murder of his son's mother as an impediment in re-establishing a relationship with his son. Mr Hu's evidence was that he wanted to be available for his son during his formative years. By the age of 19 the "formative years" it seems will have passed. In that regard, we accept the submission by the Respondent that to that extent a separation has already occurred. if the lack of contact continues up to the earliest time of Mr Hu's release, there will have been at least 12 years since there was any contact between the Appellant and his son. We refer once again to the decisions of Puli'uvea (supra) and Tavita v Minister of Immigration [1994] 2 NZLR 257 that while the interests of a child are of primary importance they are not absolute and must be weighed against other considerations. We do so at the conclusion of this decision.

Age and length of time in New Zealand

[37] The Appellant, Mr Hu, at the date of hearing was aged 47 years. He arrived in New Zealand in 1996 and at the time of the hearing, had been in New Zealand almost seven years of which four years was in the community and the rest in prison.
[38] The Respondent submitted at the time of release from prison in 2013 Mr Hu would be 55 years of age and at an age where he could cope with a return to China, where he has lived for the majority of his life.

[39] It is clear the he has spent by far the majority of his life in China and on that basis we find that the length of lawful time that Mr Hu has been in New Zealand is not a factor in itself which provides a compelling ground in this Appeal.

Employment record

[39] At the time he provided a statement to the Immigration Officer from NZIS in November 2001 he stated he was training in prison as a sewing machinist. Prior to his imprisonment he worked in a bakery shop for over two years and has also been a self employed painter. He received the benefit only for a short time following his arrival in New Zealand. There is no compelling aspect of his employment record to militate against deportation.

Other Matters (s105(h)) - Risk to the Appellant of further prosecution and penalty in China

[40] A serious and important issue for the Tribunal to determine in this appeal in assessing whether deportation is unduly harsh or unjust, is whether there is any likelihood that if the Appellant were deported, that he would be re-prosecuted in China for the same offence and face further imprisonment or even the death penalty. At the outset, we sought additional submissions from Counsel for both the Appellant and the Respondent to further address our queries in relation to this critical issue.
[41] Following the Tribunal's initial request for further information on this issue at the

conclusion of the hearing in 2003, the Respondent sought the assistance of the Ministry of Foreign Affairs to obtain if possible any assurances from the Chinese government through diplomatic circles to ascertain whether the Appellant would be retried and/or face further punishment. The Respondent ultimately determined that this course was unlikely to receive much response and in turn sought an opinion from a legal expert on Chinese criminal law. Dr Jianming Sun, an Associate Professor and Director of Criminal Procedure Law at the Law School of East China University of Politics and Law was asked to provide an opinion on whether Mr Hu, a Chinese national having been convicted of murder in New Zealand would face a second trial in China and be sentenced to further penalty on his repatriation to China.

[42] In his lengthy opinion dated 22 May 2006, Professor Sun summarised the relevant section and articles of the Criminal Law of the PRC. Section 1 Article 7 of the said Criminal Law legislation states:

"This law applies to Nationals of the People's Republic of China who have committed a crime included in this law outside the territory of the People's Republic of China; however, crimes that are subject to a maximum penalty up to three years in prison under this law may not be prosecuted"

[43] Professor Sun referred to other relevant sections of the legislation. He stated that

according to Chinese Criminal Law, the concept of "the crime" contains three characteristics; social harm, violation of the criminal law and justice in being punished. Professor Sun formed the view that Mr Hu's offence would meet the material elements of the crime of murder as specified in Article 232 Chapter 4 Part II of the Criminal Law of the People's Republic of China. The basis of his comparison was that had Mr Hu committed this crime in China, whether what he did would firstly amount to a crime and whether he would be punished. Dr Sun concluded unequivocally that Mr Hu's act constituted a crime as specified in Chinese criminal law.

[44] Dr Sun addressed the imposition of penalties in China. He stated that in China the crime of murder could attract a wide range of penalties including death, the possibility of imprisonment of ten years or of a sentence of three to ten years in some cases. Having been provided the decision of Justice Fisher, Professor Sun opined that Mr Hu would have been sentenced to a term of more than three years imprisonment in China noting that sentencing in China attracted a separate analysis. There are two categories of sentencing factors in the Chinese criminal law — legally prescribed circumstances of sentencing and discretionary circumstances. The imposition of a severe penalty as provided in the Penal Code may be imposed if Jia Chun Hu is a recidivist. The Court it seems is able to take into account mitigating factors which could include voluntary surrendering, meritorious actions if they exist, a deficiency in the offender's capacity, identifying or control capacity when carrying out the act and whether criminal punishment has already been imposed in a foreign judicial trial. The ability to look at other factors is at a Judge's discretion.

[45] In his view, had Mr Hu been tried in China, the main factors that would have affected his sentencing would have been Mr Hu's motive for murdering his wife and whether the victim had any fault which contributed to the motive.
[46] In addressing the issue of whether Mr Hu would be prosecuted on his return to China, Professor Sun referred to Article 10 of the Criminal Law of the PRC which specifies:

"Where a person commits a crime outside the territory of PRC and is prosecutable according to this law, he/she may be prosecuted in accordance with this law even if he/she has already been put on trial in a foreign country. However, if a criminal punishment has already been imposed in the foreign country, he/she may be exempted from or given a mitigated further punishment".

The Article in Professor Sun's view demonstrated that the criminal law of China adopts a principle of "passive acknowledgement towards foreign criminal verdicts".

[47] He stated that China has the right to prosecute him in accordance with Article 10 even though he has been sentenced by New Zealand judicial authorities. Nevertheless China may also decide to mitigate or exempt him from a penalty according to the "however" provision of this Article.
[48] A further important factor identified by Professor Sun which might affect the outcome for Mr Hu should he return to China was that China and New Zealand had entered into a "Criminal Judicial Assistance Treaty". Professor Sun stated that the agreement had been reached on a "mutual acknowledgement of criminal verdicts or transfer of jurisdictions in the Treaty". His view of the Treaty was that the two countries had established a bi-lateral relationship which respected each other's judicial sovereignty. It was Professor Sun's view that by the time Mr Hu was repatriated (in the event that this occurred), it would occur at a time when a new trend in criminal judicial assistance between China and New Zealand was emerging.
[49] Professor Sun also observed that the PRC had signed the International Convention on Civil and Political Rights in October 1988.
[50] Finally he stated that there had been an Extradition Treaty signed between the PRC and Spain, establishing a precedent of "promise" for China, not to apply or not to execute the death penalty upon criminals extradited from countries where the death penalty has been abolished. For those reasons, Professor Sun believes that China will be cautious in the sentencing of criminals who have been repatriated from countries where the death penalty has been abolished. Such matters, in his view, will be treated with great caution by Chinese judicial authorities. He stated that at present the application of the death penalty has become a serious and controversial issue in criminal judicial theoretical circles in China. Although there may be difficulties in securing a change in legislation, the call for caution, he says, in applying the death penalty has attracted supreme judicial authorities in China. The Supreme Peoples Court has recently reclaimed the right to review cases involving the death penalty.
[51] In providing an opinion at the request of the New Zealand Embassy, Professor Sun did so, on the proviso that his views expressed were based on his analysis and study of Chinese law as a scholar, but did not in any way represent the view of the Chinese Government or Judicial authorities. On that basis he summarised his findings; that while the victim's family would probably request the Chinese authorities to take legal action following Mr Hu's repatriation, he thought it highly unlikely that Mr Hu would be sentenced to death following his repatriation for the reasons earlier given.
[52] As earlier noted, following the receipt of the Respondent's supplementary submissions in August 2006 containing inter alia Dr Sun's opinion and submissions in response from Counsel for the Appellant, the Tribunal of its own volition undertook further legal research on the issue of what risk the Appellant faced for re-prosecution and / or death penalty should be deported to China.
[53] Counsel were referred to the additional material which the Tribunal had regard to relating to the requirement of this Tribunal to take into account New Zealand's obligations under the International Covenant on Civil and Political rights ("ICCPR") and specifically to cases where breaches of the International Covenant on Civil and Political Rights (ICCPR) had been considered by the United Nations Human Rights Committee (UNHRC). In the decisions of Ch.Ng v Canada Communication No. 469/1991 and J Kindler v Canada Communication No. 470/1991 adopted on 30 July 1993, the UNHRC stated that if a state party makes a decision about a person within its jurisdiction and the foreseeable consequences of the decision is that the person's rights under the ICCPR are or will be violated in another jurisdiction the state party itself may be in violation of the ICCPR.
[54] In Judge v Canada Communication No. 829/1998 it was held that Canada had breached Article 6.1 of the ICCPR (which Article deals with the right to life) in extraditing the Appellant Mr Judge to the United States of America without first seeking assurances that the death penalty to which he had been sentenced in the United States would not be carried out.
[55] The Tribunal sought supplementary submissions from Counsel to address in particular what weight should the Tribunal place on these decisions.

The Respondent's submissions on risk of re prosecution

[56] As earlier noted Professor Sun's opinion was obtained by the Respondent in response to further requests for information from the Tribunal to assess the risk to Mr Hu of further prosecution and/or penalty. The Respondent's submissions in relation to Professor Sun's opinion can be summarised as follows:
(i) That it is only speculative that Mr Hu would face re-prosecution or further punishment should he be repatriated to China. The Respondent accepts that based on the Chinese criminal law of People's Republic of China, the Appellant would be liable for re-prosecution but based on Professor Sun's evidence it is not certain that he would in fact be re-prosecuted upon a return to China.

be put on trial or punished again on the same accusation". The Respondent accepts however that whilst China has signed it, they have not yet ratified it. (The Tribunal also notes that the UNHRC has held that Article 14(7) does not guarantee ne his in idem (or "not twice for the same") with respect to the national jurisdictions of two or more states — AP v Italy Comunication No 204/1986).

[57] In support of its submissions, the Respondent referred to two UK decisions of the Immigration Appeal Tribunal and Asylum and Immigration Tribunal in WC [2004] UKIAT 00253 and SC [2006] UKIAT 007. In WC the Tribunal considered the likelihood of the Appellant being re-prosecuted upon a return to China. After considering the evidence of the legal experts, the Tribunal took the view that there were only two identifiable cases in which prosecution or double punishment could conceivably have occurred but held these cases did not "exemplify the use of re-prosecution or double punishment ofpersons convicted in foreign Courts".
[58] In SC the Immigration Tribunal again considered the likelihood of the Appellant being re-prosecuted on his return to China. The Immigration Tribunal at page 44 stated:

"We cannot ignore the absence of evidence in this case. It is clear that experts such as Dr Dillon visit China regularly and read local newspapers and listened to local radio, yet, he like Professor Palmer who gave evidence in WC can point to no example of re- prosecution where a person has been prosecuted abroad. Dr Dillon made the point that there was a distinction between there not being evidence of re prosecutions and accepting or not accepting that there had been no cases of prosecutions and we agree that there is a distinction there. We have to be concerned with the evidence of a real risk as opposed to speculation in coming to our conclusions."

[59] The Appeal was ultimately unsuccessful. It was held however that even if the Appellant was sentenced in China to further time in prison, even taking into account accepted prison conditions in China this in itself would not give rise to a "real risk of a breach of human rights". The Tribunal held that in a close examination of all the cases cited, none bore out that the Chinese authorities enforced re-prosecutions and double punishment in the context of offences wholly committed abroad. It was held that there was insufficient evidence to hold that the Appellant faced a real risk of re-prosecution or double punishment for offences committed in the United Kingdom. While it was accepted he would face punishment for illegal exit (immigration offending) they did not consider this would result in any breach of fundamental human rights.
[60] The Respondent submitted that on the basis of Professor's Sun's opinion and the IAT cases referred to, the threat of re-prosecution and/or further punishment was speculative at best. On these grounds it was submitted it was neither unjust nor unduly harsh for Mr Hu to be deported.

[61] In its supplementary submissions, the Respondent submitted that the decisions of UNHRC are not binding on the Tribunal but that such cases provide guidance to it in its decision making process. In any event, the Respondent submitted that the decisions of Kindler v Canada [470/1991] and Judge v Canada [829/1998] could be distinguished from the present case in that both Appellants, facing extradition from Canada, were already subject to death sentences in the US making it virtually inevitable that UNHRC would find that “a
necessary and foreseeable consequence [of extradition] is that the person's rights under the covenant will be violated'. The point was specifically made in Judge where UNHRC noted:

"The committee recognises that Canada did not itself impose the death penalty on the author. But by deporting him to a country where he was under sentence of death (our emphasis) Canada established the crucial link in the causal chain that would make possible the execution of the author."

[62] In its decision UNHRC noted:

"For countries that have abolished the death penalty there is an obligation not to expose a person to the real risk of its application. Thus, they may not remove, either by deportation or extradition, individuals from their jurisdiction if it may be reasonably anticipated that they will be sentenced to death without ensuring that the death sentence would not be carried out."

[63] The Respondent noted in Ng v Canada [469/1991], that the Appellant's extradition was being sought but at the time was not subject to a death sentence. Ng faced 19 criminal counts including kidnapping and 12 murders. The District Attorney of the State seeking extradition confirmed that, "there is sufficient evidence to convict and send Ng to the gas chamber if extradited."
[64] We accept the submission by the Respondent on this issue that given the number of charges that Ng was facing, the imposition of a death penalty was clearly a necessary and foreseeable consequence of Mr Ng's extradition, a conclusion reached by UNHRC.
[65] To summarise the Respondent's submissions on the UNHRC decisions in relation to this appeal:

• (i) The decisions are not binding on the Tribunal but provide a useful guide.
• (ii) There is no evidence to support the submission that the Appellant is at real risk of

re-prosecution or further punishment upon his return to China let alone that a necessary and foreseeable consequence of his return would be the death penalty.

(iii) The Appellant is being deported as a result of criminal offending in New Zealand, not as a result of any request from Chinese authorities. (In that regard many of the cases with UNHRC dealt with extradition cases (N2 and Kindler) from Canada to United States of America).

Appellant's Submissions on risk of re prosecution

[66] We now turn to the Appellant's submissions in relation to re-prosecution of Jia Chun Hu. We acknowledge the helpful and comprehensive submissions received from Counsel for the Appellant in 2003, 2006 and 26 March 2007 addressing these issues.
[67] We firstly address the Appellant's submission in relation to the opinion provided by Professor Sun.

[68] Counsel for the Appellant in our view correctly summarised Professor Sun's conclusion that, based on the application of Chinese criminal law, Mr Hu may be or is liable to re-prosecution in China although accepts that Article 10 of the Chinese Criminal Law Code clearly allows for the exercise of discretion where an offender has already convicted and sentenced outside the PRC. Although Counsel for the Appellant accepts that Professor Sun is qualified to provide a legal opinion, he does not accept the view that the Appellant may not be prosecuted because of the factors identified by Professor Sun earlier outlined in this decision. For those reasons it is relevant to traverse Counsel's response to Professor Sun's opinion as to what factors he regarded as relevant in the exercise of the Chinese Court's discretion pursuant to Article 10.

Criminal Judicial Assistance Treaty

[69] Counsel for the Appellant rejects Professor Sun's referral to this as a "treaty for judicial assistance". Counsel submitted that the treaty does not amount to a recognition of judicial sovereignty but rather is about information sharing and co-operation in prosecutions. He noted, referring to the Report of the Law and Order Committee, that the closest the treaty comes to a respect for the double jeopardy rule is where one party could refuse to assist the other in cases where either punishment was under way or is contrary to the fundamental law of one of the parties.
[70] In reviewing this aspect of Professor Sun's opinion and the views of both Counsel, we interpreted Professor Sun's view of this "treaty" as saying that the two countries (New Zealand and China) have a bi-lateral relationship in which China "respects the result of the trial and penalty execution situation in New Zealand". Professor Sun's view is that the "arrangement" will have an impact on the "degree of prosecution" against Mr Hu following any repatriation to China. Accordingly the Tribunal does not accept Counsel for the Appellant's submission that Professor Sun's conclusions on the effects of the "treaty" are of little value. In the absence of any alternative qualified opinion we can take into account and give appropriate weight to his views.

Signing of the ICCPR by the PRC in 1998

[71] We accept the observations made by Counsel of the Appellant in this regard that although the PRC has signed the International Convention on Civil and Political Rights it has not been ratified. All that can be said in this regard is that China appears to be heading down a path of reform in an attempt to modernise its judicial system.

Extradition Treaty between PRC and Spain

[72] Counsel for the Appellant is critical of Professor Sun's opinion that on the basis of this treaty, China will treat death penalty with "caution" in respect of a person who has been deported from a country where the death penalty has been abolished. Counsel proffers that Professor Sun's opinion on this issue should be ignored. The Tribunal does not accept this submission. The Law Professor has simply advanced his view of where the law in China is heading in this regard. He did not, in our view, overstep the mark but quite properly reported the changes and progress occurring in Chinese jurisprudence. It is simply a question of what weight we give to this issue. For those reasons we reject Counsel for Appellant's view that "little assistance is afforded" in this regard.

[73] In relation to the IAT cases earlier referred to of WC and SC Counsel for Mr Hu accepted that these cases reflected the current state of the law in the UK. In those cases, the
Tribunal had held that there was "insufficient concrete evidence" before it that deportees who had been repatriated to the PRC were in fact re-prosecuted.

[74] We now turn to Counsel for the Appellant's submissions in relation to the decisions of UNHRC.
[75] Both Counsel for Appellant and Respondent are in agreement that the decisions of the UNHRC are not binding on how the Tribunal makes its decision but provide a useful guide for interpretation. The status of UNHRC was carefully considered in Wellington District Legal Services Committee v Tangiora [1998] 1 NZLR 129 where the UNHRC was found not to be an "administrative tribunal or judicial authority" for the purposes of the Legal Services Act. Coming to its conclusion the Court of Appeal considered its title, membership, relatively informal procedural provisions and its role in making its "views" known to the state parties concerned, as well as the fact that its procedures contrast markedly with international dispute resolution bodies which do enjoy judicial status.
[76] The Tribunal accepts that UNHRC decisions are not binding on it but regard them as a useful tool in its statutory decision making and a guide for the interpretation of human rights instruments to which New Zealand is a party.
[77] Counsel for the Appellant accepted that in the UNHRC decisions of Ng, Kindler and Judge a deciding factor was the nexus between the probable consequence that the "author" would be exposed to further prosecution and real risk of the death penalty was very clear because the complainants in all cases were to be extradited to the USA for murders committed in the US where imposition of the death penalty was a live option. Counsel for the Appellant conceded that the present case did not possess the same level of nexus because the Chinese government has not indicated that it wishes to retry the Appellant for murder.
[78] The Tribunal also refers to the decisions of ARJ v Australia 692/1996 and GT v Australia 706/1966 which are relevant to this issue. These cases related to persons being deported from Australia (to Iran and Malaysia respectively) for crimes committed in Australia. They did not face prosecution at that stage in their home countries but feared future punishment once they were deported. In both cases Australia submitted evidence to show there was no historical pattern of application of the death penalty for drug offences where the appellants had already served time in Australia. It was also established in ARJ that there was no warrant for arrest after the complainant or expressed intent on the part of the Iranian authorities to prosecute. Similarly in Mr Hu's case, there has been no manifestation of an intent to either prosecute, punish or arrest the Appellant on a return to China.

Other evidence before the Tribunal

[79] It is relevant to review the other evidence before the Tribunal in its assessment of the issue as to whether IVir Hu would be subject to re-prosecution and possible death penalty upon his return to China. Aside from the evidence of Professor Sun the Appellant's evidence comes from three sources namely two witnesses, Jinhua Zhu, Jason Zhao and the Appellant himself. These are summarised.

[80] Jinhua Zhu in his evidence in chief spoke of the Appellant's parents moving house because they "were being constantly harassed by some people who were employed by the family members of Mr Hu's wife". Under cross-examination however Mr Zhu stated that the Appellant's windows had been smashed and when asked if anything else had happened to them, he replied that he was not sure. At paragraph 14 of his brief he stated:

"The legal system in China is quite unfair. I am certain that if Mr Hu is forced to return to China he would be liable to prosecution."

[81] At paragraph 10 of Jason Zhao's brief he states:

"If Mr Hu was deported to China there was also the possibility that his wife 's family would seek Chinese justice through the Chinese Courts. He could be sentenced to death as a result. These things have happened before in China."

[82] The Respondent's view of Mr Zhao's evidence is that Mr Hu is liable to prosecution and does not accept that re-prosecution will necessarily take place.
[83] The evidence provided by Mr Hu and his witnesses on the issue of the risk of re- prosecution and / or imposition of further penalty that he be deported back to China is mostly anecdotal and uncorroborated. While the Tribunal recognises the difficulty in such circumstances of witnesses producing concrete evidence to satisfy the Tribunal that it is unjust or unduly harsh on these grounds to deport Mr Hu, it cannot place much weight on their evidence in the absence of such corroboration.

Summary

[84] We now summarise the Tribunal's view of Mr Hu's risk for re-prosecution and imposition of further penalty in China.

[85] We have considered the UK and UNHRC cases together with the comprehensive submissions of both Counsel. We conclude that in the event that Mr Hu is deported back to China:

(i) Based on Article 10 of the criminal law of the PRC, there is the possibility of Mr

Hu of being re-prosecuted in the PRC.

(ii) There is also scope for further punishment upon his return to China but noting the rider to Article 10 that the person may be exempted from punishment or given a mitigated punishment if he has been punished in a foreign country.

[86] In the absence of other expert opinion, we have given weight to Professor Sun's opinion as an expert in Chinese criminal law. In his opinion, he identified the risks and the trends in Chinese jurisprudence and concluded for the detailed reasons provided that the risk of the death penalty being imposed on Mr Hu was highly unlikely.

[87] We observe that similarly as in the IAT (UK) cases of WC and SC (supra), this Tribunal has not received evidence of any cases of prosecutions of persons in similar situations upon their repatriation to China. We accept that we can be guided by the UNHRC decisions but are not bound by them. In any event there was no dispute between Counsel that the decisions referred to of Kindler, Ng and Judge could be easily distinguished from the present case. All three involved extradition to the USA where the offending had been committed and where there was a real risk of the death penalty.

[88] While we reservedly acknowledge the submission of Mr Hu's counsel that there does not appear to be independent information available about whether or not offenders returning from abroad face re-prosecution in China, the Tribunal takes the view that it has exhausted its best efforts in obtaining any evidence of the existence of the real risk of "potential breaches of human rights". The Tribunal concludes on the evidence in this case and decisions of UKIAT and UNHRC that there is insufficient evidence to be satisfied that there is a real risk of re- prosecution and/or imposition of the death penalty.
[89] We note that pursuant to s105 the assessment of the risk of the Appellant being re- prosecuted and/or facing further punishment upon the return to China is only one factor to be considered by the Tribunal when deciding whether deportation would be unjust or unduly harsh.

We have addressed each of the humanitarian factors earlier in this decision and summarise our findings.

Summary

[90] The Tribunal has earlier addressed the various humanitarian factors required of it pursuant to s.I 05, and concluded that in terms of the Appellant's age, length of time in New Zealand and employment factors, none of these factors in themselves are sufficiently compelling to militate against deportation. We have noted that the earliest Mr Hu can be released from prison is 2013. At that stage his son will be 19 years of age. We have determined earlier that in regards to his family interests, upon Mr Hu's release, his son will be in a position and of an age to decide for himself whether he wishes to re-instate a relationship with his father. Mr Hu is currently estranged from his son and to that end a significant separation has already taken place.
[91] In line with the principles enunciated in M (earlier referred to), these factors must be

weighed against the gravity of the offending. As we earlier noted the attack by Mr Hu on his wife was brutal and unprovoked, invoking the "home invasion" provisions of the Criminal Justice Act. While Mr Hu expressed concern for the wellbeing of his son for the reasons earlier given, the Tribunal observed that he did not express much compassion for his victim.

[92] We have addressed at length the issue of what risk Mr Hu faces for further prosecution/penalty in China should he be deported and concluded that while there is a possibility and provision for China to re-prosecute and impose further penalty there is insufficient evidence before us to be satisfied conclusively that further prosecution will occur in this case.
[93] Finally, having regard to the gravity of the offending, and weighing this against the humanitarian factors present in this appeal, we conclude it is neither unjust nor unduly harsh for Mr Hu to be deported.

Public Interest

[94] We now turn to the matter as to whether deportation would be contrary to the public interest for the Appellant to remain in New Zealand. It is generally accepted that notions of public interest have historically focussed on the likelihood or potential for an Appellant to re-offend. While it is not necessary for us to make a finding in relation to this factor (given that the first leg of s.105 was not satisfied) we do comment on this issue. As earlier noted a report was prepared for sentencing which traversed the motives for the offending and pre-sentence his personal circumstances. Key factors as earlier noted were his low self control and impulsivity particularly in relation to his gambling which was regarded as possibly at the level of "compulsion" by the time of his arrest. Mr Hu, in his evidence, did not see this as an issue and at the time of the hearing had not received treatment for it. In any event while the issue of a deportee's potential to re-offend is one of the main issues in "the public interest" factor, it can also take into account whether the public interest would be served by allowing a resident who has committed such a serious offence to remain a member of the New Zealand community. We have concluded based on the gravity of the offending, it is not.

Decision

[95] For the reasons set out above the Tribunal finds that the Appeal should be dismissed and the Order confirmed
Robyn von Keisenberg RH Weller JP C Duncan
Chairperson Member Member