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Gang Chen & Another v/s The Queen


Company & Directors' Information:- I-QUEEN PRIVATE LIMITED [Active] CIN = U74999KL2017PTC048635

    CA No. 531 of 2018

    Decided On, 10 July 2019

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE CLIFFORD
    By, THE HONOURABLE MR. JUSTICE MALLON & THE HONOURABLE MR. JUSTICE WHATA

    For the Appellants: S.N.B. Wimsett, J-A Kincade, A. Shendi, Advocates. For the Respondent: T.A. Simmonds, K.J. Cooper, Advocates.



Judgment Text

REASONS OF THE COURT

(Given by Clifford and Whata JJ)

[1] Mr Chen was a solicitor on multiple residential loan applications. Mr Jiang was a bank employee assisting with some of those applications. Problematically, Mr Chen and Mr Jiang knew that the “true borrower” was a property development company, LV Park, not the named residential loan applicants, and that other information provided on some applications was also false. Mr Chen also made secret payments to bank employees, including to Mr Jiang, to facilitate the loans. Unsurprisingly, Mr Chen did not tell the banks any of this.

[2] Katz J found Mr Chen guilty of obtaining by deception pursuant to s 240(1)(b) of the Crimes Act 1961 and of making secret payments pursuant to s 3 of the Secret Commissions Act 1910.[1] She also found Mr Jiang guilty of obtaining by deception and of receiving secret payments pursuant to s 4 of the Secret Commissions Act. Mr Chen was sentenced to six years’ imprisonment with a minimum period of imprisonment (MPI) of three years.[2] Mr Jiang was sentenced to four years and nine months’ imprisonment for his role with an MPI of two years and four months.[3]

[3] Mr Chen appeals both conviction and sentence. The conviction appeal raises two key issues:

(a) Does s 240(1)(b) of the Crimes Act require proof that Mr Chen personally incurred debt or liability to obtain credit?

(b) Was Mr Chen obliged to disclose the true position to the banks?

[4] Mr Chen’s sentence appeal challenges the imposition of the MPI and its scale.

[5] Mr Jiang claims his sentence is manifestly excessive. He also challenges the MPI.

[6] Mr Chen’s and Mr Jiang’s notices of appeal were both filed approximately one week out of time. The delay was short and the Crown does not oppose the necessary extensions, and we grant them accordingly.

Background

[7] Mr Huang ran a property development business, LV Park. He wanted cheaper finance so devised a scheme to deceive three banks, including BNZ and ANZ. He (assisted by his wife, Ms Xu) arranged for properties to be transferred to, and corresponding residential loans to be obtained in the names of, family members, employees and friends together with at least one fictitious person, when in fact the loan monies were for commercial purposes. His scheme also involved the provision of false documents to support loan applications and the payment of deposits purporting to be salary payments into bank accounts to deceive banks into believing the applicants met their lending criteria. Once the loans were obtained, they were serviced by LV Park and LV Park retained control of the affected properties throughout. The named purchasers either did not exist, knew nothing of the loan application made in their name, or agreed to lend their names to what they were told was essentially a “refinancing” arrangement. Mr Huang also funded kickbacks to bank employees, Mr Jiang of BNZ and Mr Cheng of ANZ. This netted about $54 million in loan finance over a period of about two years. Mr Huang pleaded guilty to this offending and received a sentence of four years and seven months’ imprisonment for offending under the Crimes Act and nine months’ imprisonment for offending under the Secret Commissions Act, to be served concurrently.[4]

[8] Mr Chen, a conveyancing solicitor, was the middleman in Mr Huang’s scheme. He acted as the lawyer for many of the borrowers and for the affected banks. He was deeply involved in the deception. For example, he held powers of attorney for some of the named loan applicants, he supplied false salary information about some applicants, made false salary payments into loan applicant accounts, and used a false passport to enable a fictitious Mr Zhang to borrow $836,500 from BNZ and $1.29 million from ANZ. He also facilitated the kickbacks to Messrs Jiang and Cheng through his aunt’s and sister’s bank accounts. As the trial judge, Katz J, said in her sentencing, Mr Chen was the glue that held the whole fraudulent scheme together; an experienced conveyancing solicitor with connections and knowledge that were critical to the scheme’s success.[5]

[9] Mr Jiang assisted Mr Chen by knowingly inputting fraudulent information into the banks’ systems and processing and approving loans based on it. He was aware that LV Park and/or Mr Huang were behind the loan applications and that the borrowers named on the applications were, in effect, sham borrowers. He failed to disclose this to BNZ. Mr Jiang received about $7,000 per transaction and in total $240,000 in secret payments for his assistance.

[10] Mr Chen was found guilty of nine of 11 charges of obtaining credit by deception and a representative charge of paying secret commissions to Mr Jiang and Mr Cheng. Mr Jiang was found guilty of 25 charges of obtaining by deception and a representative charge of accepting secret commissions.

Does s 240(1)(b) require proof that Mr Chen personally incurred debt or liability to obtain credit?

[11] The deception charges which Mr Chen faced were laid pursuant to s 240(1) of the Crimes Act. Section 240(1) provides:

240 Obtaining by deception or causing loss by deception

(1) Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,—

(a) obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly; or

(b) in incurring any debt or liability, obtains credit; or

(c) induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage; or

(d) causes loss to any other person.

[12] The word “obtained” is now given a special meaning for the purposes of s 240. That is:[6]

obtain, in relation to any person, means obtain or retain for himself or herself or for any other person.

[13] As Katz J noted,[7] there are three elements to this type of offending:

(a) the incurring of debt or liability;

(b) the obtaining of credit; and

(c) deceptive conduct and lack of claim of right.

[14] The Crown alleged that, by deception, Mr Chen obtained credit for Mr Huang and his business, LV Park.

[15] The credit Mr Chen obtained was represented by mortgage loans that three banks were tricked into providing to bogus purchasers of residential properties built by LV Park. The deception was required because neither Mr Huang nor his business LV Park would have met the banks’ criteria for personal home loans. LV Park used the monies advanced by those banks to refinance the more expensive funding it used for the construction of those properties. Thereafter, and unbeknownst to those banks, LV Park serviced that debt.

[16] The deception for which Mr Chen was responsible involved a combination of him providing false passports in the names of the bogus loan applicants, making false salary payments into the different bank accounts of those bogus loan applicants, failing to disclose to the banks that Mr Huang/LV Park was the “true borrower” and failing to disclose to ANZ that material information provided in support of those loan applications was false.

[17] The loan applicants were “bogus” because they were either real people, known to Mr Huang, who themselves signed relevant documentation not understanding what they were doing but trusting Mr Huang; real people whose name Mr Huang used for the scam without any knowledge or participation by them; and fictitious people, that is, people who never existed. In all cases, the supporting documentation, such as false passports and false salary payments into apparent bank accounts, tricked the banks into accepting that they were dealing with real people who met their borrowing criteria and to whom they were therefore prepared to advance mortgage finance.

[18] At the end of the Crown case, Mr Chen applied for the dismissal of all the charges he faced on the basis that — by reference to the evidence the Crown had led — he had no case to answer. As relevant, Mr Chen based that application on the propositions (i) that he had not personally incurred a debt or liability, and (ii) that there was insufficient evidence to support the Crown contention that Mr Huang/LV Park was the “true borrower”, and hence the person for whom credit had been obtained.

[19] Katz J dismissed those applications and proceeded to hear closing submissions and to deliver her verdicts.[8] Katz J was satisfied that, given the expanded meaning of obtain, it was no longer good law that the credit obtained by the defendant must be obtained by him or her personally and a purposive construction favoured a wider interpretation of “in incurring debt or liability”, so that the Crown is not required to prove the defendant personally incurred the debt.[9]

[20] As regards Mr Chen, in finding him guilty on 9 of the 11 charges of obtaining credit by deception, the Judge first confirmed those two s 240 rulings. In response to further legal challenges made by counsel for Mr Chen in his closing address the Judge found, contrary to the previous understanding that the debt or liability required by s 240(1)(b) must arise from a legally enforceable contract, that the relevant liability could instead arise in tort (for example, in deceit).[10] She also concluded that Mr Chen did owe a duty to the banks as their solicitor to disclose the true identity of the persons who were actually obtaining credit from them, namely Mr Huang/LV Park.[11]

[21] In this appeal Mr Chen challenges two of those four key findings. That is, he appeals on the basis that the Judge was wrong:

(a) in dismissing his s 240 application and finding him guilty, to have found that s 240(1)(b) does not require him to have personally incurred a debt or liability; and

(b) in determining her verdicts, to have found that he did owe a duty to disclose to the banks the identity of the true borrower.

[22] On appeal, however, Mr Chen does not pursue his contention at trial that there was insufficient evidence to support the Judge’s conclusion that Mr Huang/LV Park was the true borrower and that the Judge had been wrong to find the debt or liability referred to in s 240(1)(b) did not need to be legally enforceable. Accordingly, in this judgment we make no comment on those aspects of the Judge’s reasoning.

[23] The words “in incurring any debt or liability” are the focus of this part of Mr Chen’s appeal. Mr Chen’s argument is that as he did not “incur” (as in “make oneself subject to”[12]) any debt or liability, he could not be liable for conviction under to s 240(1)(b). For the purpose of considering that argument, Katz J accepted Mr Chen’s contention he incurred no debt or liability. We assume likewise for the purpose of this judgment. So, the question is whether Mr Chen could, nevertheless, be convicted.[13]

[24] The background to this aspect of Mr Chen’s appeal is found in the history of what is now s 240. The origin of s 240 is s 13(1) of the Debtors Act 1869 (UK).[14] That section attached criminal liability to any person, “[i]f in incurring any debt or liability he has obtained credit under false pretences, or by means of any other fraud”. Its enactment, as the Judge noted,[15] marked a significant departure for the law, as up until then the common law had dealt with fraud as a civil matter only, albeit debtors were liable to imprisonment. The creation of a new offence accompanied the abolition of such imprisonment.[16] That same offence was enacted in New Zealand by s 231 of the Criminal Code Act 1893, and carried into s 253 of the Crimes Act 1908 and then s 247 of the Crimes Act 1961, the immediate predecessor to s 240.

[25] The paradigm form of the offence as first enacted addressed circumstances in which a defendant had obtained goods with the consent of the vendor, and hence could not be liable for theft. Typically, a defendant would have done so when the common expectation was she would pay for those goods immediately or shortly after acquiring them. For example, in R v Jones the accused went into a restaurant for a meal and, after he had had the meal, said he was not able to pay for it.[17] The operator of the restaurant had parted voluntarily both with ownership and possession of the meal: the accused’s deception was implying a promise to pay for the meal, thereby obtaining credit, and later repudiating that implied promise.

[26] In R v Preddy the House of Lords considered convictions for, as here, mortgage fraud charged as obtaining property by deception.[18] The House of Lords found that the provision of credit, the making of a loan, did not involve the transfer of property.[19] Rather, credit had been obtained by fraud. But at that time that offence had been mistakenly omitted from English criminal law.

[27] A not dissimilar circumstance arose in New Zealand in the case of R v Wilkinson.[20] Credit was obtained on the basis of a false representation that heavy machinery was being purchased offshore by the defendant, when in fact the defendant was only obtaining possession of that machinery pursuant to hire purchase or lease arrangements. Accordingly, the purchaser deceived its financier by asserting it could provide good security over those vehicles. But the charges laid were ones of, again, obtaining property by deceit. The Court of Appeal allowed appeals against those convictions, on the basis that the defendant had not obtained “possession of or title to anything capable of being stolen” from the financier.[21] However, as has been observed,[22] a charge brought under what is now s 240(1)(b) would not have faced the same difficulties.

[28] Prior to the enactment of s 240 it was well-established that, to be guilty of the offence of obtaining credit under false pretences, the accused had to have obtained that credit themselves. Thus, in R v Bryant, the defendant Bryant, purporting to be a member of the London Stock Exchange, agreed to acquire shares from another member.[23] Under the rules of the Stock Exchange, payment was required by the end of the month. The argument was raised that if credit had been given, it had not been given to Bryant: rather it had been given to the member of the Exchange in whose name Bryant had presented himself. For the prosecutor, the argument was that it was immaterial whether the credit was given to the defendant himself or not: the words of the section were “in incurring any debt or liability he has obtained credit under false pretences”.[24] “He” meant “for himself” or “for someone else”.[25] The Common Sergeant disagreed and directed Bryant’s acquittal. He found that, assuming there was a contract, there would be a debt, but it was clear that the person to whom the credit was given was the person whose name was given by the defendant, not the defendant himself.[26] That requirement was confirmed in various subsequent cases.[27]

[29] Less attention has been paid to the significance of the words “incurring any debt or liability” which immediately precede the reference to obtaining credit. That may be because, in general terms, the incurring of a debt or liability and the obtaining of credit can be seen as correlatives: that is, without a debt or liability having been incurred there is nothing for which credit may be extended.[28] We return to the potential ongoing relevance of correlativity, given the broader definition of “obtain”, at [42] below.

[30] The point however of the separate reference to incurring any debt or liability was illustrated in R v Pierce.[29] The charge of obtaining credit by false pretences was laid against Pierce. Facing financial difficulty, Pierce offered bills endorsed by one Owen to replace bills he had previously endorsed himself. The argument was that as the bills were only by way of renewal, the debt could not be said to have been then incurred. Lord Coleridge was satisfied a new debt was incurred when new bills were endorsed.[30] The requirement was, therefore, satisfied.

[31] The point came before the English courts again in 1962 in R v Thornton, an appeal against conviction for obtaining credit by false pretence.[31] The defendant Thornton was under pressure from his bank to discharge his overdraft. He falsely represented in a bill of sale made in favour of the bank that certain vehicles were his property: by false pretences he induced an employee of the bank to sign the bill as witness, as was then required. He appealed on the basis that the debt had pre-existed his impugned actions, and hence he could not be liable. The Court confirmed that was the general principle, but noted that the same argument had, in effect, been made and rejected in R v Pierce. The Court said it was clear Pierce had been guilty of fraud in obtaining credit, the question was rather whether he had incurred a liability. On his behalf it was said, just as it had been said in Pierce, that the new bills merely renewed existing liability, and therefore did not involve the accused in incurring a liability.

[32] The Court observed:[32]

At first sight the argument is attractive that this was not a case of incurring a liability because the liability existed already. It is said that to give sense to the section the word “new” or “fresh” must by implication be introduced before the word “liability”. In other words, it must be shown that the liability incurred by fraud is something that was not there before.

[33] The Court accepted, however, that in R v Pierce the act of offering new bills to support credit previously backed by old bills did constitute the incurring of a liability and obtaining of credit by fraud. Indicating that, without that previous finding, the Court in Thornton might have reached a different decision, it commented:[33]

It is fair to say that where the liability alleged to have been incurred is of the same extent as a pre-existing liability, it can only be rarely that a charge under this section can be sustained.

[34] Thus while the section as originally drafted did require both credit to be obtained and a liability incurred, the purpose of the requirement to incur a liability was to preclude the charge being laid where credit had not been obtained, but merely extended.

[35] In 1966, the England and Wales Criminal Law Revision Committee considered the adequacy of the then criminal law relating to larceny, and kindred offences involving fraud or dishonesty.[34] At that time, the offence of obtaining credit by deception was still provided for by s 13(1) of the Debtors Act 1969.

[36] In reporting on its considerations, the Committee recommended a new provision which was intended to become s 12(2) of a new Theft Act. That provision was to read:[35]

A person who by any deception dishonestly obtains credit or further credit for himself or another (whether for performance of an obligation which is legally enforceable or of one which is not) shall on conviction on indictment be liable to imprisonment for a term not exceeding five years.

[37] The Committee commented:

95. The alterations made by clause 12(2) are intended to widen the scope of the offence so as to cover certain kinds of dishonesty and to increase the penalty. The alterations (apart from minor alterations designed to bring the offence into line with the other provisions of clause 12) are summarized below.

(i) The new offence is not limited, as is the present offence, to obtaining credit “in incurring any debt or liability”. The present limitation excludes cases where the debt has already been incurred before the deception is practised and the credit obtained.

(ii) The new offence is expressly extended to obtaining “further credit”. This would cover obtaining an extension of time for payment of a debt or of an overdraft by pretending that something has happened which will enable the offender to pay soon. Possibly the subsection would extend to obtaining further credit even without an express reference to it, but the reference puts the matter beyond doubt. These cases would not be covered by the present law, as the further credit would not be obtained “in incurring any debt or liability”.

(iii) The clause applies to obtaining credit for another person as well as for the person who uses the deception.

(iv) The new offence is expressly extended to cover cases where credit is obtained for the payment of a debt or the performance of an obligation which is unenforceable. For example, a debt may be unenforceable because the debtor may be under age. The exclusion of such cases at present is another consequence of the requirement that the credit must have been obtained “in incurring any debt or liability”. The fact that a debt is unenforceable does not seem to us a reason why the debtor should not be criminally liable if he induces the other person by deception to give him credit for payment.

(Emphasis added.)

[38] For the reasons explained in R v Preddy,[36] as matters transpired s 12(2) was never enacted, leaving a gap in English criminal law which was filled by the Theft (Amendment) Act 1996 (UK). Be that as it may, the Committee’s explanation of those three changes is a helpful guide for our purposes.

[39] In New Zealand, the equivalent of s 13(1) of the Debtors Act 1869 was not addressed until Parliament enacted the Crimes Amendment Act 2003 containing, amongst other things, a new pt 10 of the Crimes Act. At that time what had been s 247 became s 240(1)(b). Comparing the wording of s 240(1)(b) and that of the recommended s 12(2), it can be seen that, in contrast to the approach recommended by the Criminal Law Revision Committee, the New Zealand Parliament addressed the restriction in the old Debtors Act that credit had to have been obtained by the person charged through the extended definition of the word “obtain”, but neither abolished the requirement for a debt or liability to be incurred, nor addressed the old authority that the relevant debt or liability had to be legally enforceable.

[40] In that context, Mr Chen’s reliance on the fact that he did not personally incur a debt or liability, as a defence to the charges he faced, can be seen to be fundamentally misconceived. The role of that element of obtaining credit by deception is to act temporally, to exclude from the ambit of the offence a deception which obtains an extension of credit already granted. We acknowledge that the decision of the High Court of Australia in Abrahams is, as Mr Chen argued, an example where, by offering a deceptive guarantee in support of a loan to another, a person may incur a liability (under their guarantee) in obtaining credit for another.[37] Such a person could, therefore, obtain credit by deception pursuant to s 240(1)(b). But that is not to say the incurring of a debt or liability by the person charged is a necessary element of the offence.

[41] Thus, and as the Judge found, a purposive and contextual interpretation of s 240(1)(b) does not have the result Mr Chen contends for. Rather, just as credit may now be obtained by a person other than the defendant, so the continuing temporal significance of the words “incurring any debt or liability” now apply equally to require there to be “fresh” credit obtained by another person.

[42] Furthermore, to give the words “incurring any debt or liability” the additional significance that Mr Chen contends for would be to frustrate the obvious intent of Parliament when it enacted the extended definition of obtain, and to give the words “incurring any debt or liability” a significance that they have never had. Just as the enlargement of the definition of “obtain” provided for credit to be obtained by a third party, so the debt to be incurred can be a correlative debt incurred by that third party where, for example and as here, the credit they obtain is represented by loans advanced to them.

[43] In our view, that conclusion is supported by the analysis of the background to the 2003 amendments as explained by this Court in Li v R:[38]

[22] It is apparent from this legislative history that Parliament did not intend to restrict the scope of existing offences, rather, to broaden them. We consider that the definition of “obtain” in the new interpretation section, s 217, when read with s 240, was intended to cover all offending caught by the predecessor section, s 246, including situations where the property or benefit is delivered to someone other than the offender.

[44] Overall, while the courts remain cautious about the interpretation of penal statutes,[39] we are not satisfied that it is necessary to construe s 240(1)(b) so that it applies only to defendants who incur debt or liability themselves. The original role of s 240(1)(b), combined with the purpose of the Act and its 2003 amendments, including the expanded meaning of “obtain”, mean the section can apply when a defendant obtains credit for another, and a corresponding debt is incurred by that other.

[45] This ground of appeal is dismissed.

Was Mr Chen obliged to tell the true position to the banks?

[46] Five charges alleged that Mr Chen was under a duty to disclose a material particular to the bank, including the identity of the true borrower and that the employment and income information provided on some applications was false. Mr Chen accepts he omitted to disclose these particulars, but denies he owed a duty to disclose them.

[47] Katz J found a duty to disclose arose because Mr Chen, as the banks’ solicitor on the loan applications, was in a fiduciary relationship with them.[40] Because of his overriding obligation of loyalty as a solicitor, the Judge also concluded that he was obliged to tell the bank of his personal interest in the loans and should have obtained their “fully informed” consent before acting.[41] The Judge was in no doubt that there was a conflict of interest between the banks and Mr Chen’s other clients (presumably, as it relates to the deception) and that he was under an obligation to disclose the relevant particulars.

Alleged error

[48] In s 240, deception includes “an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it”.[42] Mr Chen contends that the Judge was wrong to find the duty to disclose given the limited nature of Mr Chen’s instructions when acting for the banks. There was therefore no deception.

Assessment

[49] We can deal with this aspect of the appeal in reasonably brief terms. As Richardson J stated in Farrington,[43] and Lord Jauncey repeated in Clark Boyce, [44] a solicitor’s loyalty must be undivided. If there are conflicted responsibilities, he or she must disclose the material facts to both clients to obtain consent. That duty is ongoing while the solicitor continues to act for both parties. As Lord Walker recently said in Hilton v Barker Booth & Eastwood, citing Clark Boyce and Farrington in relation to whether a lawyer with divided loyalties was required to disclose information:[45]

[38] The notion that one breach of duty by [Barker Booth & Eastwood] (failure to tell Mr Hilton that they could not act for him and that he should seek independent advice) should exonerate [Barker Booth & Eastwood] in respect of a subsequent and more serious breach of duty (failure to disclose to Mr Hilton facts which would have saved him from ruin) seems contrary to common sense and justice.

[50] In the present case, Mr Chen plainly acted in self-interest and never had any intention of discharging his duty of loyalty or disclosing material facts about his self-interest or the fraud to his client banks. His breach of duty was egregious and only compounded by his ongoing failure to disclose his conflict of interest and the material facts alleged. Whatever the strict terms of his instructions by the banks, they were premised on an assumption that he would not act in his self-interest. He cannot now rely on that assumption, fairly made, to avoid his ongoing duty of loyalty. This ground is therefore also dismissed.

Minimum period of imprisonment

[51] Katz J’s reasons for imposing an MPI on Mr Chen (and Mr Jiang) were brief. The Judge simply found that, without the MPIs, the proposed sentences would not be sufficient to recognise relevant sentencing principles.[46]

[52] We agree that Mr Chen occupied a special position of responsibility, as a solicitor, to the banks. His offending involved calculated premeditation over a lengthy period (about two years) involving bank employees at three banks. Balanced against this, Mr Chen’s previous good character needs to be acknowledged, and the fact that unlike Mr Huang or Mr Jiang, he did not obtain any monetary benefit from the offending. In imposing the MPI on Mr Chen the Judge appears not to have had sufficient regard for those mitigating factors. In our view those factors obviate the need for an MPI. We therefore quash Mr Chen’s MPI.

Mr Jiang’s sentence appeal

[53] Mr Jiang makes two central claims: his starting point of five years and six months was disproportionately high to the starting point of his co-offenders and the MPI should not have been imposed.[47] We do not accept that there is any unfair disparity between the starting points. But, as with Mr Chen, we consider the imposition of the MPI was in error.

[54] Mr Jiang engaged in multiple acts of deception as a trusted bank employee involving $18 million in loans. He also netted $240,000 in secret payments. A fiveyear starting point for this deception, together with an uplift of six months for the secret profit, is well within range.[48] The equivalent starting point for Mr Chen’s offending was six years and six months.[49] Mr Chen’s offending was of greater scale and he was a key figure in the fraudulent scheme, As Mr Jiang noted, he was involved in about a third of the fraudulent transactions in number and value. Against this, unlike Mr Chen, Mr Jiang obtained a substantial direct financial benefit and the breach of his obligations to BNZ was also more acute. Given these factors we consider Mr Jiang’s starting point was appropriate relative to Mr Chen’s starting point.

[55] We are however satisfied that an MPI was not necessary for Mr Jiang. While the starting point was justified, he was less culpable than either Mr Huang or Mr Chen. He was an otherwise law-abiding citizen. Furthermore, Mr Jiang also submitted that it was of significance that he has subsequently consented to a forfeiture order made after sentencing which recouped $850,000.[50] We agree with her submission that Mr Jiang’s consent to the forfeiture orders is an important acknowledgement of wrongdoing. We also agree that the forfeiture order is an additional form of denunciation and deterrence. It does not appear the Judge took these factors into account and in our view, taken together, they justify the removal of the MPI.

Outcome

[56] The applications for an extension of time are granted.

[57] Mr Chen’s appeal against conviction is dismissed.

[58] Mr Chen’s appeal against sentence is allowed. The MPI is quashed.

[59] Mr Jiang’s appeal against sentence is allowed in part. The MPI is quashed.

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[1] R v Xu [2018] NZHC 1433, [2018] 3 NZLR 626 [Verdicts judgment].

[2] R v Xu [2018] NZHC 1971 [Sentencing notes] at [92].

[3] At [93]. Both Mr Chen’s and Mr Jiang’s sentences included a concurrent sentence of one year and six months’ imprisonment for one representative charge under the Secret Commissions Act 1910.

[4] Serious Fraud Office v Huang [2018] NZHC 86.

[5] Sentencing notes, above n 2, at [22].

[6] Crimes Act 1961, s 217.

[7] R v Xu [2018] NZHC 779 [Section 147 judgment] at [28]

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. [8] Section 147 judgment, above n 7. [9] At [47]–[58]. [10] Verdicts judgment, above n 1, at [67]–[68]. [11] At [513]–[524]. [12] Shorter Oxford English Dictionary (6th ed, Oxford University Press, Oxford, 2007). [13] In the course of concluding as part of the Verdicts judgment that the debt or liability referred to in s 240(1)(b) did not need to be a legally enforceable debt or liability in contract, the Judge found, that, in any event, a legally enforceable liability had been incurred in tort: namely his civil liability to the banks for example in the tort of deceit (see Verdicts judgment, above n 1, at [68]). Whata J agrees and would uphold Mr Chen’s convictions on that ground also (see Pasley v Freeman [1775– 1802] All ER Rep 31 and Day v Mead [1987] NZCA 74; [1987] 2 NZLR 443 (CA) at 460). That issue was not raised in this appeal. On that basis Clifford and Mallon JJ also make no comment on that aspect of the Judge’s reasoning. [14] Debtors Act 1869 (UK), 32 & 33 Vict c 62. [15] Section 147 judgment, above n 7, at [39]. [16] Criminal Law Revision Committee Eighth Report Theft and Related Offences (Cmnd 2977, May 1966) at [94]. [17] R v Jones [1898] 1 QB 119. [18] R v Preddy [1996] UKHL 13; [1996] AC 815 (HL). [19] At 834–835. [20] R v Wilkinson [1999] 1 NZLR 403 (CA). [21] At 404 and 410–411. [22] Kevin Dawkins “Criminal Law” (1999) NZ Law Review 415 at 437. [23] R v Bryant (1899) 63 JP 376. [24] At 377. [25] At 377. [26] At 377. [27] See, for example, R v Steel (1910) 5 Cr App R 289; Abrahams v R [1941] HCA 24; (1941) 64 CLR 577 at 587; and R v Mitchell [1955] 1 WLR 1125 (Crim App) at 1126. [28] Abrahams v R, above n 27; and Herbert v R [1941] HCA 12; (1941) 64 CLR 461 at 465. [29] R v Pierce (1887) 3 TLR 586 (Cr C R). [30] At 587. [31] R v Thornton [1964] 2 QB 176 (Crim App). [32] At 183–184. [33] At 184. [34] Criminal Law Revision Committee, above n 7. [35] At 103. [36] R v Preddy, above n 18, at 830–833. [37] In that case a defendant provided a deceptive guarantee which enabled a third party to obtain credit. The four Judges of the High Court each held that as the credit was not in fact obtained by the defendant, he could not be liable under the Bankruptcy Act 1924–1933 (Cth) for obtaining credit by means of fraud. [38] Li v R [2016] NZCA 237. [39] As the Court of Appeal was in R v Wilkinson, above n 20, at 406. [40] Verdicts judgment, above n 1, at [517]–[518]. [41] At [519]–[522], citing s 4 of the Lawyers and Conveyancers Act 2006 and rr 6.1–6.3 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. [42] Crimes Act, s 240(2)(b). [43] Farrington v Rowe McBride & Partners [1985] NZCA 21; [1985] 1 NZLR 83 (CA) at 90. [44] Clark Boyce v Mouat [1993] 3 NZLR 641 (PC) at 646–647. [45] Hilton v Barker Booth & Eastwood (a firm) [2005] UKHL 8, [2005] 1 WLR 567; approved by the Supreme Court in Premium Real Estate v Stevens [2009] NZSC 15, [2009] NZLR 384 at [71]. [46] Sentencing notes, above n 2, at [88]–[89]. [47] At [68]. [48] See Cherry v R [2013] NZCA 636 at [21]–[26]. [49] Sentencing notes, above n 2, at [64]. [50] Commissioner of Police v Wong [2018] NZHC 2771.
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Judgements of Similar Parties

31-08-2020 James Leonard Toia Versus The Queen Court of Appeal of New Zealand
30-06-2020 Van Dung Nguyen Versus The Queen High Court of Australia
05-06-2020 Steven Robertson Versus The Queen Court of Appeal of New Zealand
02-06-2020 Wai Yew Chai Versus The Queen Court of Appeal of New Zealand
26-05-2020 Michaela Patricia Irwin Versus The Queen Court of Appeal of New Zealand
19-05-2020 Melissa Mary Haereroa Versus The Queen Court of Appeal of New Zealand
13-05-2020 James William Manuoa Te Hiko Versus The Queen Court of Appeal of New Zealand
11-05-2020 Phillip Richard Joe Versus The Queen Court of Appeal of New Zealand
08-05-2020 Malagi Vela Versus The Queen Court of Appeal of New Zealand
07-05-2020 Sammy Ayoun Soud Versus The Queen Court of Appeal of New Zealand
30-04-2020 Marshall James Dennis Joyce Versus The Queen Court of Appeal of New Zealand
28-04-2020 Kane Joseph Manoah Versus The Queen Court of Appeal of New Zealand
22-04-2020 Deo Narayan Versus The Queen Court of Appeal of New Zealand
07-04-2020 George Pell Versus The Queen High Court of Australia
03-04-2020 James Andrew Mills Versus The Queen Court of Appeal of New Zealand
24-03-2020 Jacob Lowenstein Versus The Queen Court of Appeal of New Zealand
23-03-2020 Te Iwi Ngaro Rameka Versus The Queen Court of Appeal of New Zealand
19-03-2020 Richard Tuwhakakorongo Te Roroa Te Kani Versus The Queen Court of Appeal of New Zealand
18-03-2020 William Rodney Swan Versus The Queen High Court of Australia
11-03-2020 Kelvin Clive Wood Versus The Queen Court of Appeal of New Zealand
02-03-2020 The Principal Commissioner of Customs, Chennai-VII Commissionerate, Chennai V/S M/s. Sea Queen Shipping Services (P) Ltd., Adyar, Chennai High Court of Judicature at Madras
02-03-2020 Leanne Maree Crighton Versus The Queen Court of Appeal of New Zealand
20-02-2020 Jimmy Peter Akuhata Versus The Queen Court of Appeal of New Zealand
05-02-2020 Zeki Ray Kadir Versus The Queen High Court of Australia
06-09-2019 Papa Manu Versus The Queen Court of Appeal of New Zealand
15-08-2019 Shane Arron Hunter Versus The Queen Court of Appeal of New Zealand
07-08-2019 Wen Xu Versus The Queen Court of Appeal of New Zealand
31-07-2019 Her Majesty The Queen Versus R.V. Supreme Court of Canada
29-07-2019 Shayal Upashna Sami Versus The Queen Court of Appeal of New Zealand
11-07-2019 Keith Bartram Versus The Queen Court of Appeal of New Zealand
09-07-2019 Zen Pulemoana Versus The Queen Court of Appeal of New Zealand
08-07-2019 Kovinantie Fukofuka Versus The Queen Court of Appeal of New Zealand
05-07-2019 Majesty The Queen Versus Albert Penunsi Supreme Court of Canada
01-07-2019 Danial John Keeley Versus The Queen Court of Appeal of New Zealand
28-06-2019 Patrick John Goldfinch Versus Her Majesty The Queen Supreme Court of Canada
13-06-2019 QI XIE Versus The Queen Court of Appeal of New Zealand
11-06-2019 Kevin Martin Matthews Versus The Queen Court of Appeal of New Zealand
04-06-2019 Ngakiri Williams Versus The Queen Court of Appeal of New Zealand
31-05-2019 Tom Le Versus Her Majesty The Queen Supreme Court of Canada
24-05-2019 Bradley David Barton Versus Her Majesty The Queen Supreme Court of Canada
10-05-2019 Ram Parshotam Mittal & Others Versus Hotel Queen Road Pvt. Ltd. & Others Supreme Court of India
07-05-2019 Jason Phillip Dehaar Versus The Queen Court of Appeal of New Zealand
18-04-2019 Sean Patrick Mills Versus Her Majesty The Queen Supreme Court of Canada
12-04-2019 Rajeshwar Singh Versus The Queen Court of Appeal of New Zealand
10-04-2019 The Queen Versus Dylan Cossey Court of Appeal of New Zealand
09-04-2019 Tuatahi Te Parau Gotz Versus The Queen Court of Appeal of New Zealand
28-03-2019 Corey Lee James Myers Versus Her Majesty The Queen Supreme Court of Canada
22-03-2019 Shaun Thomas Bishop Butler Versus The Queen Court of Appeal of New Zealand
12-03-2019 Christian Lee Hone Hobson Versus The Queen Court of Appeal of New Zealand
28-02-2019 Stead Nuku Versus The Queen Court of Appeal of New Zealand
25-02-2019 Kanwal Kant Chagti Versus Hotel Queen Road Pvt. Ltd. High Court of Delhi
25-02-2019 Kanwal Kant Chagti Versus Hotel Queen Road Pvt. Ltd. High Court of Delhi
25-02-2019 Kanwal Kant Chagti Versus Hotel Queen Road Pvt. Ltd. High Court of Delhi
08-11-2018 Virgil Balajadia & Another Versus The Queen Court of Appeal of New Zealand
31-10-2018 Jesse-James Winter & Another Versus The Queen Court of Appeal of New Zealand
18-10-2018 John Garry Davidoff Versus The Queen Court of Appeal of New Zealand
11-10-2018 Iraia Aranga Ngamotu Burton Versus The Queen Court of Appeal of New Zealand
10-10-2018 Eric Walter Smith Versus The Queen Court of Appeal of New Zealand
05-10-2018 William Arthur Parkin Versus The Queen Court of Appeal of New Zealand
18-09-2018 Kelly William Stewart Versus The Queen Court of Appeal of New Zealand
11-09-2018 NZME Publishing Limited & Others Versus The Queen & Another Court of Appeal of New Zealand
10-09-2018 Shannon Taimania Heemi Versus The Queen Court of Appeal of New Zealand
06-09-2018 Heather Gleason-Beard Versus The Queen Court of Appeal of New Zealand
23-08-2018 Laurence Tyson Te Ruki & Another Versus The Queen Court of Appeal of New Zealand
10-08-2018 Rodney George Martel & Others Versus The Queen Court of Appeal of New Zealand
20-07-2018 Her Majesty The Queen & Others Versus Derek Brassington & Others Supreme Court of Canada
13-07-2018 Her Majesty The Queen in Right of British Columbia Versus Philip Morris International, Inc. & Others Supreme Court of Canada
09-07-2018 Michael Robert Pollard Versus The Queen Court of Appeal of New Zealand
06-07-2018 William Hines Versus The Queen Court of Appeal of New Zealand
02-07-2018 Benjamin Shepherd Versus The Queen Court of Appeal of New Zealand
29-06-2018 Richard Alan Suter Versus Her Majesty The Queen Supreme Court of Canada
22-06-2018 David Shaun Galloway Versus The Queen Court of Appeal of New Zealand
20-06-2018 Paul Ian Lane Versus The Queen High Court of Australia
13-06-2018 Jeffrey G. Ewert Versus Her Majesty The Queen in Right of Canada (the Commissioner of the Correctional Service of Canada, the Warden of Kent Institution & the Warden of Mission Institution) & Others Supreme Court of Canada
29-05-2018 Leon Delshannon Turner & Others Versus The Queen Court of Appeal of New Zealand
29-05-2018 Leon Delshannon Turner & Others Versus The Queen Court of Appeal of New Zealand
25-05-2018 Wing Wha Wong Versus Her Majesty The Queen & Others Supreme Court of Canada
18-05-2018 Timothy Brunsell Versus The Queen Court of Appeal of New Zealand
18-05-2018 Timothy Brunsell Versus The Queen Court of Appeal of New Zealand
10-05-2018 The Queen Versus Merkins Bah Agu Court of Appeal of New Zealand
10-05-2018 The Queen Versus Merkins Bah Agu Court of Appeal of New Zealand
09-05-2018 John Collins Versus The Queen High Court of Australia
02-05-2018 Joshua Terehunga Edwards Versus The Queen Court of Appeal of New Zealand
02-05-2018 Joshua Terehunga Edwards Versus The Queen Court of Appeal of New Zealand
01-05-2018 Manoj Vohra & Another Versus The Queen Court of Appeal of New Zealand
01-05-2018 Manoj Vohra & Another Versus The Queen Court of Appeal of New Zealand
27-04-2018 Lealofi Setu Versus The Queen Court of Appeal of New Zealand
27-04-2018 Lealofi Setu Versus The Queen Court of Appeal of New Zealand
19-04-2018 Her Majesty The Queen Versus Gerard Comeau & Others Supreme Court of Canada
13-04-2018 Marie-Eve Magoon & Another Versus Her Majesty The Queen Supreme Court of Canada
26-03-2018 Isaac Cruz Eru Broughton Versus The Queen Court of Appeal of New Zealand
23-03-2018 Bruce Carson Versus Her Majesty The Queen Supreme Court of Canada
23-03-2018 Zhuoling Gao & Others Versus The Queen Court of Appeal of New Zealand
21-03-2018 Ronald Michael Craig Versus The Queen High Court of Australia
21-03-2018 Hone Rankin Daniels Versus The Queen Court of Appeal of New Zealand
15-03-2018 Matthew John Young Versus The Queen Court of Appeal of New Zealand
09-02-2018 Canadian Broadcasting Corporation Versus Her Majesty The Queen & Others Supreme Court of Canada
02-02-2018 Williams Lake Indian Band Versus Her Majesty The Queen in Right of Canada as Represented by the Minister of Aboriginal Affairs & Northern Development Canada & Others Supreme Court of Canada
21-12-2017 Donald Joseph Boutilier Versus Her Majesty The Queen & Others Supreme Court of Canada
14-12-2017 Brian Frank Taylor & Others Versus The Queen Court of Appeal of New Zealand