R v Li - [2008] NZSC 114

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IN THE SUPREME COURT OF NEW ZEALAND

SC 80/2007 [2008] NZSC 114

REBECCA KATSZI LI

v

THE QUEEN

Hearing: 14 August 2008
Court: Elias CJ, Blanchard, Tipping, McGrath and Wilson JJ Counsel: H D M Lawry for Appellant
B J Horsley for Crown

Judgment: 19 December 2008

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

Para No

Elias CJ [1] Blanchard, Tipping, McGrath and Wilson JJ [45]

LI v R SC 80/2007 [19 December 2008]

ELIAS CJ

[1] The appeal turns on the meaning of s 256 of the Crimes Act 1961. It was enacted in 2003 to replace the former s 264.1 The new section differs from the old provision by splitting what had been a single offence of forgery, punishable by ten years imprisonment, into two offences:

256 Forgery

(1)Every one is liable to imprisonment for a term not exceeding 10 years who makes a false document with the intention of using it to obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration.

(2)Every one is liable to imprisonment for a term not exceeding 3 years who makes a false document, knowing it to be false, with the intent that it in any way be used or acted upon, whether in New Zealand or elsewhere, as genuine.

(3)Forgery is complete as soon as the document is made with the intent described in subsection (1) or with the knowledge and intent described in subsection (2).

(4)Forgery is complete even though the false document may be incomplete, or may not purport to be such a document as would be binding or sufficient in law, if it is so made and is such as to indicate that it was intended to be acted upon as genuine.

The more serious offence, punishable by ten years imprisonment, is confined by the terms of subs (1) to those cases where a false document is made with the intention of its use to obtain “any property, privilege, service, pecuniary advantage, benefit, or valuable consideration”. The offence described by subs (2) is in terms which follow more closely the language of the old provision and does not require intent to obtain property etc, but the penalty prescribed for it is three years imprisonment. The new s 256 was enacted as part of a restructuring of similar offences under the general

1 Section 264 had provided:
264 Forgery –
(1) Forgery is making a false document, knowing it to be false, with the intent that it
shall in any way be used or acted upon as genuine, whether within New Zealand or not, or that some person shall be induced by the belief that it is genuine to do or refrain from doing anything, whether within New Zealand or not.

Under s 265, everyone who committed forgery was “liable to imprisonment for a term not exceeding ten years”.

heading “Forgery and counterfeiting” introduced into the Crimes Act by the Crimes

Amendment…

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 Li

Details

AGLC: R v Li [2008] NZSC 114
Case: [2008] NZSC 114
Decision Date: 19 December 2008

CaseChat Overview and Summary

The appellant, Rebecca Li, appealed against her conviction under s 256(1) of the Crimes Act 1961, which criminalises making a false document with the intention of using it to obtain property, privilege, service, pecuniary advantage, benefit, or valuable consideration. Li operated a printing business, forging a variety of documents, including degree certificates, for which she was paid. The purchasers of these documents knew they were not genuine and were not deceived by Li. The question on appeal was whether the intended sale of a document in these circumstances constituted the intention of “using it to obtain” property as described by s 256(1). The Court of Appeal had dismissed Li's appeal, holding that the intention required by s 256(1) included an intention to sell to a purchaser who knew the documents to be false, and that the purchaser's lack of deception was irrelevant. Li submitted that this interpretation was erroneous, as it was inconsistent with the common law understanding of forgery, and that a conviction under s 256(1) required an intention to deceive.

The Court was divided on the issue. Elias CJ held that s 256(1), properly construed, required the use intended to be a deceptive use. He held that the use of false documents to obtain benefits is inherently a deceptive use and that words indicating intended deceit are not required because they would be superfluous. He held that a false document (one that tells a lie about itself) is not used to obtain benefit unless the lie is used. An intention to deceive is inherent in the very concept of using a false document, which is defined by s 255 by reference to its false "purport". Intended use according to that false purport is necessarily a deceptive use. Elias CJ concluded that the forgery and counterfeiting offences substituted by the Crimes Amendment Act 2003, including s 256, must be ascertained from their text and in the light of their purpose, both read in the statutory context. He held that the offences described in ss 256 and 257 reconcile more satisfactorily if both require deceptive intent at the time of making and differ only in the additional element of benefit in one of the ways specified in s 256(1). That additional element is the apparent justification for the higher penalty. He held that construing both offences under s 256 to require deceptive intent accords with general principles of culpability and prevents trivial or harmless activity being the subject of significant penalty.

The majority disagreed, holding that s 256(1) required that there be an intention to use a document “to obtain … pecuniary advantage …”. In contrast, s 256(2) required only an intention that the document “be used or acted upon … as genuine”. They held that the ordinary meaning of the word “use”, a document is to be “used” when (as here) it is created with the intention of selling it to a purchaser who knows it to be false. They held that the wording of s 256(1) is clear and provides no basis for reading in the additional and unstated element that the party providing the pecuniary advantage must not have been aware the document was false. They held that it is difficult to discern any basis for distinguishing the culpability of the makers in the two categories to such an extent that Parliament would wish to render the makers liable in the first case to ten years’ imprisonment and in the second to only three years’ imprisonment. They held that the appellant’s argument requires the reading in of the words “as genuine” which are not present in s 256(1), viz “… with the intention of using it as genuine to obtain …”. They held that the provision was meant to be read as it was written, without any such interpolation. They held that in effect, the appellant was asking the Court to read back into s 256(1) the requirement that the document be used as genuine, after that requirement had been removed by Parliament. They held that the history of the law in this area and the plain words of s 256(1) both support Li’s convictions under that subsection. They held that there is nothing surprising or illogical about this conclusion. A forger such as the appellant who falsifies numerous documents for financial gain should not be subject to a much lesser penalty than the user of a single forged document, which on the appellant’s argument would be the position. They held that the appellant was therefore correctly convicted of offending under s 256(1). Her appeal was dismissed.

Orders