Li v R

Case [2016] NZCA 237 31 May 2016

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA24/2016
[2016] NZCA 237

BETWEEN	ZHIWEI LI Appellant
AND	THE QUEEN Respondent

Hearing:	10 May 2016
Court:	Wild, Courtney, Gilbert JJ
Counsel:	F C Deliu for Appellant P K Feltham for Respondent
Judgment:	31 May 2016 at 11 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.

B The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Introduction

Following a judge-alone trial in the Auckland District Court, Judge Bergseng found Mr Li guilty of obtaining by deception possession of a benefit, namely a New Zealand Diploma in Business in the name of Chi-Wei Chen, issued by the New Zealand Qualifications Authority (NZQA) contrary to s 240(1)(a) of the Crimes Act 1961.[1]
[1]R v Li [2015] NZDC 4224.
On 15 July 2015, Judge Bergseng sentenced Mr Li to four months’ home detention.[2]
[2]R v Li [2015] NZDC 13893.
Mr Li seeks an extension of time to appeal against his conviction. He has explained that he did not initially appeal because he was concerned that a conviction appeal could lead to his sentence being increased. It was not until he received legal advice on this issue that he lodged his appeal. We are satisfied that the relatively short delay has been explained adequately and an extension of time to appeal should be granted.

Brief facts

Mr Chen was engaged by a television production company, Screentime, in relation to a series it was producing entitled Illegal New Zealand. One of the episodes, televised on 20 August 2009, concerned the prospect of purchasing New Zealand tertiary qualifications. Mr Chen’s role was to pose as a student seeking a tertiary qualification without completing any of the course requirements.
Mr Chen made contact with Mr Li by responding to an advertisement headed “Assignment Pro” offering educational services in the Mandarin Times, an Auckland newspaper. Following a number of telephone discussions and meetings, Mr Li introduced Mr Chen to the New Zealand Academy of Studies (NZAS), which was a private training establishment authorised by NZQA to provide the New Zealand Diploma in Business.
Mr Chen went with Mr Li to NZAS’ central Auckland premises on 29 October 2008. As they walked to the school, Mr Chen asked Mr Li how the assignments would be dealt with and was told that these would be taken care of for him. On arrival at the school, Mr Chen partially completed an enrolment form and then he and Mr Li met with Daniel Qu, the owner of the school. Mr Chen was again assured that he would be able to obtain the diploma without completing any of the assignments himself:
Counsel:And then you leave and in having a discussion walking down the street with the defendant … about how the assignments part is going to be dealt with, is that right?
Chen:Correct, ‘cos I wasn’t sure. I wanted to make sure, ah, that I don’t have to write…

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 Li v R

Details

AGLC: Li v R [2016] NZCA 237
Case: [2016] NZCA 237
Decision Date: 31 May 2016 at 11 am

CaseChat Overview and Summary

The appellant, Zhiwei Li, sought an extension of time to appeal his conviction for obtaining by deception possession of a benefit, namely a New Zealand Diploma in Business in the name of Chi-Wei Chen, issued by the New Zealand Qualifications Authority (NZQA) contrary to s 240(1)(a) of the Crimes Act 1961. The Auckland District Court had found Mr Li guilty following a judge-alone trial. He was sentenced to four months' home detention. The primary legal issues were whether there was sufficient evidence to establish the essential elements of the offence and whether Mr Li was entrapped. The Court concluded that the evidence was sufficient to establish all the essential elements of the offence and that there was no entrapment. The appeal was dismissed, and the application for an extension of time to appeal was granted.

Orders