R v Tang

Case [2019] NZHC 2056 21 August 2019

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-307

[2019] NZHC 2056

THE QUEEN

v

QIANNAN TANG

Hearing: 21 August 2019

Appearances:

S T L Teppett for Crown G J Newell for Defendant

Sentence:

21 August 2019

SENTENCING NOTES OF WALKER J

R v TANG [2019] NZHC 2056 [21 August 2019]

Introduction

[1] Ms Qiannan (Christine) Tang, you appear before me today for sentencing. A jury has found you guilty of one charge of money laundering.1 The verdict relates to your receipt of NZD $54,000 from a client while working at a money remitting company. After converting those proceeds to USD, you remitted those proceeds overseas to two payees, Mr Ryszard Wilks and Mr Ralph Wilks. This was carried out at the request of the client, Mr Khan. It transpired that the money you received from Mr Khan was the proceeds of cocaine sales made by parties to a drug operation. The jury found that you were reckless as to whether that money was the proceeds of an offence.

[2] A conviction was not entered on delivery of the jury verdict at the request of your counsel, Mr Newell. You now apply for a discharge without conviction under s 106 of the Sentencing Act 2002 (the Act). A discharge under s 106 is deemed to be an acquittal.2

[3] The principal ground relied on is the consequence to your immigration status. Mr Newell, on your behalf, submits there is a real and appreciable risk that a conviction will result in your deportation. He submits that this is a consequence which is out of all proportion to the gravity of the offending because of the impact on your relationship with your four-year-old son who is a New Zealand born citizen. You share custody of your son with your estranged husband who has permanent residency status.

[4] The Crown today advises the Court that its position is one of neutrality on the application.

Summary of result

[5] I begin with a summary of the result I have reached. For the reasons I will shortly set out, overall, I am satisfied that the adverse consequences of a conviction for you are out of all proportion to the gravity of your offending. The disproportion is

1 Crimes Act 1961, s 243. The maximum penalty is seven years’ imprisonment.
2 Sentencing Act 2002, s 106(2).

significant in that the impact would be devastating, in my view, to you and your son; and attributable to conviction, rather than just to the offending.

[6] Having satisfied myself that I have jurisdiction to exercise my discretion to discharge without conviction, I determine that there are no factors which would persuade me not to exercise my discretion.

[7] Ms Tang, the result is now I discharge you without conviction under s 106 of the Sentencing Act. You may be seated while I deliver my full reasons for this outcome.

Factual background

[8] In November 2016, the National Organised Crime…

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 Tang

Details

AGLC: R v Tang [2019] NZHC 2056
Case: [2019] NZHC 2056
Decision Date: 21 August 2019

CaseChat Overview and Summary

Ms Qiannan Tang was sentenced in the High Court of New Zealand following her conviction for money laundering, a charge relating to her receipt of NZD $54,000 from a client while employed at a money remitting company. Tang converted the proceeds to USD and remitted them overseas at the request of her client, Mr Khan, who was involved in a drug operation. Tang was found to be reckless as to whether the money was the proceeds of a crime. Tang applied for a discharge without conviction under section 106 of the Sentencing Act 2002, citing the potential adverse consequences of a conviction on her immigration status and her relationship with her four-year-old son, who is a New Zealand citizen. The Crown was neutral on the application.

The court considered the gravity of the offence, the direct and indirect consequences of a conviction, and whether those consequences were out of all proportion to the gravity of the offence. The court found Tang's offending to be at the moderate end of the scale of seriousness, given her lack of significant financial benefit and her acceptance of responsibility. The court determined that the direct and indirect consequences of a conviction, particularly the risk of deportation and separation from her son, were out of all proportion to the gravity of the offending. The court exercised its discretion to discharge Tang without conviction under section 106 of the Sentencing Act. Tang was discharged without conviction, and the court made observations on the importance of learning from this experience and exercising better judgment in the future.

Orders