Chen v R

Case [2019] NZCA 299 10 July 2019

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA531/2018
[2019] NZCA 299

BETWEEN	GANG CHEN Appellant
AND	THE QUEEN Respondent

CA539/2018
BETWEEN	ZONGLIANG JIANG Appellant
AND	THE QUEEN Respondent

Hearing:	25 February 2019
Court:	Clifford, Mallon and Whata JJ
Counsel:	S N B Wimsett for Appellant Chen J-A Kincade and A Shendi for Appellant Jiang T A Simmonds and K J Cooper for Respondent
Judgment:	10 July 2019 at 10 am

JUDGMENT OF THE COURT

A The applications for an extension of time are granted.

B Mr Chen’s appeal against conviction is dismissed.

C Mr Chen’s appeal against sentence is allowed.

D Mr Chen’s minimum period of imprisonment is quashed.

E Mr Jiang’s appeal against sentence is allowed in part.

F Mr Jiang’s minimum period of imprisonment is quashed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford and Whata JJ)

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.
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]
[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.
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?
Mr Chen’s sentence appeal challenges the imposition of the MPI and its scale.
Mr Jiang claims his sentence is manifestly excessive. He also challenges the MPI.
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

Mr Huang ran a property development business,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chen v R

Details

AGLC: Chen v The Queen [2019] NZCA 299
Case: [2019] NZCA 299
Decision Date: 10 July 2019

CaseChat Overview and Summary

Gang Chen and Zongliang Jiang were found guilty of multiple counts of obtaining by deception and secret commissions, arising from their involvement in a complex fraud scheme orchestrated by Gang Chen and Huang. Chen was a solicitor, and Jiang a bank employee, both involved in deceiving three banks into providing loans to fictitious or unknowing borrowers for the benefit of Huang’s property development company, LV Park. Chen’s role was central, while Jiang assisted by processing fraudulent loan applications. Both Chen and Jiang appealed their convictions and sentences. Chen challenged both his conviction and sentence, arguing that s 240(1)(b) of the Crimes Act required personal incurring of debt or liability and that he was not obliged to disclose the true position to the banks. Jiang appealed his sentence, claiming it was manifestly excessive and that the imposition of a minimum period of imprisonment (MPI) was inappropriate.

The Court of Appeal granted the extensions for late filing of appeals. Regarding Chen's conviction, the Court found that s 240(1)(b) does not require the defendant to personally incur a debt or liability. The provision allows for credit to be obtained by another person, with a corresponding debt incurred by that person. The Court also upheld the finding that Chen, as a solicitor, owed a duty to disclose material particulars to the banks, including the true identity of the borrower and false employment information provided. Regarding sentencing, the Court found that the imposition of an MPI for Chen was in error, given his previous good character and lack of personal financial gain. For Jiang, while the starting point was appropriate, the Court found the MPI was inappropriate given Jiang's cooperation post-sentencing and the forfeiture order that recouped significant funds.

In conclusion, the Court dismissed Chen's appeal against conviction, upheld his appeal against sentence by quashing the MPI, and dismissed Jiang's appeal against sentence in part by also quashing the MPI.

Orders