Liu v The Queen - [2019] NZHC 190

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-370

[2019] NZHC 190

BETWEEN
HANFANG LIU

Appellant

AND

THE QUEEN

Respondent

Hearing: 4 February 2019

Counsel:

R P Chambers for Appellant E Hoskin for Respondent

Judgment:

18 February 2019

JUDGMENT OF BREWER J

This judgment was delivered by me on 18 February 2019 at 4:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Crown Law (Wellington) for Respondent

LIU v R [2019] NZHC 190 [18 February 2019]

Introduction

[1] Ms Liu established a company in 2012 called Headsun International Group Ltd (“Headsun”). Ms Liu was its director. She advertised Headsun as an educational placement service for international students looking to study in New Zealand. The services Ms Liu offered through Headsun necessarily involved giving immigration advice and assisting with applications for visas. Ms Liu, however, was not a licensed immigration adviser.

[2] In 2018 Ms Liu pleaded guilty to four charges of breaching the Immigration Advisers Licensing Act 2007 (“the Act”). The charges related to advice she gave to four Chinese nationals. Each charge carried a maximum sentence of seven years’ imprisonment and/or a fine not exceeding $100,000.

[3] On 16 November 2018, Judge JM Kelly sentenced Ms Liu to nine months’ home detention on all the charges.1 Ms Liu now appeals the sentence on the ground it is manifestly excessive.

Judge Kelly’s sentence

[4] Judge Kelly decided the purposes of sentencing were to denounce Ms Liu’s offending and to deter her and others from offending in the same way. The Judge said:

[11] I take into account that the Immigration Advisers Licensing regime, enacted in 2007, was intended to raise the standard of immigration advice in New Zealand and promote and protect the interests of migrants and potential migrants who receive immigration advice and enhance the reputation of New Zealand as a migration destination.

[5]As to aggravating factors:

[14]The aggravating factors relating to your offending are:

(a)There was a high degree of premeditation;

(b)Your offending was for commercial gain;

(c)There was an abuse of trust in that you gave the impression that your company was reputable and an approved education agent and able to offer immigration advice and assistance; and

1 R v Liu [2018] NZDC 25065.

(d)The vulnerability of the victims.

[6]Judge Kelly noted:

[5] In the case of the students whose applications were not approved, you provided a refund of the fee. It is also accepted, on the basis of evidence you have provided today, (although that has not [sic] able to be verified by the Crown) that in respect of one of the charges you paid compensation of $10,000 to one of the students.

[7]The Judge adopted a starting point of two years’ imprisonment and said:

[15] … In setting that starting point I take into account that you refunded the fees to unsuccessful applicants and the $10,000 payment you made to one of the students.

[8] Judge Kelly allowed a discount of four…

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 Liu v The Queen

Details

AGLC: Liu v The Queen [2019] NZHC 190
Case: [2019] NZHC 190
Decision Date: 18 February 2019

CaseChat Overview and Summary

Hanfang Liu appealed against her sentence of nine months’ home detention for four breaches of the Immigration Advisers Licensing Act 2007 (the Act). Ms Liu had pleaded guilty to providing unlicensed immigration advice to four clients through her company, Headsun International Group Ltd. The appeal was heard by Brewer J in the High Court of New Zealand. The central issue was whether the sentence was manifestly excessive, given that the Judge did not properly take into account the payment Ms Liu made to one of her clients.

The court considered whether the starting point for the sentence was appropriate, given the payments made by Ms Liu. The court also considered the precedent set by the Court of Appeal in Hakaoro v R, where a similar sentence was upheld. The court concluded that while the starting point of two years was not outside the range available to the Judge, it was towards the top of the available range. The court found that Ms Liu’s offending was somewhat less serious than that of the defendant in Hakaoro v R, as the harm to the victims was more limited. The court also found that the Judge should have given a further discount to take account of the payments made by Ms Liu. The court found that a discount of at least 10 percent should have been applied, resulting in a sentence of one year and four months’ imprisonment, which would have been commuted to eight months’ home detention.

The appeal was allowed, and the sentence of nine months’ home detention was quashed. An eight-month sentence of home detention was substituted.

Orders