A man who punched a puppy to death could soon be deported after losing a bid to overthrow his conviction.
Boqing Tao, 26, was convicted and sentenced to 40 hours community service in July last year for killing his flatmate's six-month old Pomeranian by punching it in the head five or six times, after it defecated on his bed.
Since then, Tao has been served with a deportation notice which could see him sent to China without his wife and New Zealand-born child - which his lawyers say is too harsh a punishment.
In his appeal to the High Court, Tao's lawyers asked for him to be discharged without conviction because the sentencing judge had failed to consider mitigating factors and the separation from his family would be out of proportion as a punishment.
His lawyer, Frank Deliu, told the court Tao had pleaded guilty and the attack had been a momentary lapse in judgment by a person of otherwise good character.
But in his decision, Justice Christian Whata said even considering all those factors, the sentencing judge had got it right.
"While the present offending is not the worst of its kind, the violence meted out to the puppy for biting and defecating was utterly disproportionate and brutal," he said.
Lawyers for the Crown said Tao had already been living in New Zealand unlawfully for four years and already had a criminal conviction.
Justice Whata said while sympathy had to be given to the family situation, the conviction was not the primary reason for deportation anyway.
"Mr Tao's unlawful residency is the genesis of the problem he now finds himself in," he said.
The additional risk caused by the convictions for offending in this case must not be conflated with this underlying, primary cause of any deportation."
If the deportation now goes ahead, Tao could also be banned from New Zealand for up to five years.