R v Lau

Case [2018] NZHC 2935 15 November 2018

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-246

CRI-2018-404-247 [2018] NZHC 2935

BETWEEN
THE QUEEN

Appellant/Cross-respondent

AND

EE KUOH (AUGUSTINE) LAU

Respondent/Cross-appellant

CRI-2018-404-293

BETWEEN

THE QUEEN
Appellant

AND

JIAWEN MAO

Respondent

Hearing: 29 October 2018

Counsel:

S Symon and D J Collins for Crown

M Dyhrberg QC and A Kashyap for Mr Lau L Burns for Ms Mao

Judgment:

15 November 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 15 November 2018 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Meredith Connell, Auckland
Aaron Kashyap Law, Auckland

R v LAU [2018] NZHC 2935 [15 November 2018]

Introduction

[1] Mr Lau managed several residential properties in contemptuous disregard for planning or building regulation or enforcement authorities. After a sentencing indication, he pleaded guilty to 16 offences (many of them representative) under the Resource Management Act 1991 (RMA), 10 offences under the Building Act 2004 (BA) and one offence under the Companies Act of operating a “phoenix company”.1 He was sentenced by Judge Thompson to 24 months’ imprisonment for this offending. The Crown appeals against his sentence as manifestly inadequate. He appeals that it was manifestly excessive.

Background

[2] In a sentencing indication, Judge Thompson described the offending as follows:

[13] In respect of the property at 387 Ormiston Road, Mr Lau managed the development and the use of that property. In terms of the relevant District Plan, one single dwelling was permitted. Mr Lau converted the existing home of one dwelling into three, and a barn on the property was converted into two dwellings. Two former classrooms and a relocated weatherboard house were also moved into the property and used as dwellings – so there was a total of eight where the rules said one.

[14] Of significance, four of those dwellings were connected to the existing sewerage disposal system which was thus overloaded. The other four were connected to a newly constructed system which was almost completely inadequate. They discharged, as the agreed summary records, almost raw sewerage to a slope above a stream which was contaminated by the discharge. The discharge area was immediately next to the houses, raising health risks and unpleasant odours.

[15] There were interim enforcement orders issued. They were completely ignored. Enforcement orders to remediate the non-compliant housing and waste water were also completely ignored. The Council had to intervene and remedy matters at its own cost. The charges are set out in the agreed summary.

[16] In respect of 88 Fairburn Road, that was owned by a company, Chen Hong Company Limited of which Ms Mao was the director; it was managed by Mr Lau. Nine hundred cubic metres or more of earthworks were undertaken. They created an unstable and unsafe situation; they were done without preparation or compaction and without consent.

1 Defined in the Companies Act 1993, s 386B as “in relation to a failed company, a company…

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 R v Lau

Details

AGLC: R v Lau [2018] NZHC 2935
Case: [2018] NZHC 2935
Decision Date: 15 November 2018

CaseChat Overview and Summary

The case of R v Lau involved two appellants, Lau and Mao, who were appealing their sentences imposed by the Auckland District Court for multiple offences under the Resource Management Act 1991, the Building Act 2004, and the Companies Act 1993. Lau had managed several residential properties in blatant disregard for planning and building regulations, resulting in numerous illegal dwellings, unsafe conditions, and significant environmental damage. Mao was a director of a company that owned one of the properties and was involved in the illegal activities facilitated by Lau. The Crown appealed Lau's sentence as manifestly inadequate, while Lau appealed his sentence as manifestly excessive. Additionally, the Crown appealed Mao's sentence as manifestly inadequate.

The High Court found that the sentence imposed on Lau was not manifestly excessive but was manifestly inadequate. The court determined that the starting point for Lau's sentence should have been higher, considering the severity of his offending. The court also found that the sentence imposed on Mao was not manifestly inadequate, as the District Court had correctly assessed her lesser role in the offending and imposed an appropriate non-custodial sentence.

In conclusion, the Crown's appeal against Lau's sentence was dismissed, while Lau's appeal against his sentence was also dismissed. The Crown's appeal against Mao's sentence was dismissed, and no orders were made in relation to the sentences of either appellant.

Orders