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R v Zhang

R v Zhang

Case [2022] NZHC 3168 30 November 2022

Obtaining by Deception

Fiduciary Duty

Criminal Liability

Sentencing

Premeditation and Planning

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-004-806

[2022] NZHC 3168

THE KING

v

YIKUN ZHANG, SHIJIA (COLIN) ZHENG, and HENGJIA (JOE) ZHENG

Hearing: 30 November 2022

Appearances:

P Wicks KC, K Hogan, and H Moore-Savage for the Crown J Katz KC and N Small for Mr Zhang

P Dacre KC for Mr Shijia (Colin) Zheng
R L Thomson and A Young for Mr Hengjia (Joe) Zheng

Sentencing:

30 November 2022

APPLICATION FOR DISCHARGE WITHOUT CONVICTION AND SENTENCING REMARKS OF GAULT J

Solicitors / Counsel:
Mr P Wicks KC, Mr J Dixon KC and Ms K Hogan, Barristers, Auckland Ms K Bannister and Ms H Moore-Savage, Serious Fraud Office, Auckland Mr J Katz KC, Ms L Lindsay and Ms N Small, Barristers, Auckland
Mr D Courtney (Mr Zhang’s instructing solicitor), Courtney & Co, Auckland
Mr B A Keown, Ms Z Farquhar and Mr D Scholes (for Mr Zhang), Bell Gully, Auckland Mr P Dacre KC and Ms W Andrews, Barristers, Auckland
Ms R L Thomson and Mr A Young, Barristers, Auckland
Ms J Pidgeon (Mr H Zheng and Mr S Zheng’s instructing solicitor), Pidgeon Judd Ltd, Auckland

R v ZHANG [2022] NZHC 3168 [30 November 2022]

[1] Mr Yikun Zhang, Mr Shijia (Colin) Zheng and Mr Hengjia (Joe) Zheng, following a Judge-alone trial in September you were found guilty of some charges and remanded for sentence today.1

[2] The guilty verdicts primarily relate to the offence of obtaining by deception in the context of donations to a political party, involving a fraudulent device, trick, or stratagem to deceive by providing sham names of purported donors below the $15,000 disclosure threshold in the Electoral Act 1993.

(a)Mr Zhang, you were found guilty of one charge of obtaining by deception in relation to a political donation to the National Party in June 2018.2 Although a conviction was entered on 5 October 2022, you have applied to be discharged without conviction.

(b)Mr Colin Zheng, you were found guilty of two charges of obtaining by deception, one in relation to a political donation to the National Party in June 2017 and one in relation to the donation to the National Party in June 2018.3

(c)Mr Joe Zheng, you were found guilty of one charge of obtaining by deception in relation to a political donation to the National Party in June 2018.4 You were also found guilty of one charge of providing false or misleading information to the Serious Fraud Office (SFO).5

[3] I will first outline the facts of your offending. Although these were set out in detail in my earlier reasons for verdicts judgment, I need to summarise them publicly today. I will then deal with Mr Zhang’s application for a discharge without conviction. Then I will explain the approach I am required to take in sentencing, which involves selecting a starting point for the offending and adjusting that starting point based on personal circumstances in order to determine an end sentence.

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 Zhang

Details

AGLC: R v Zhang [2022] NZHC 3168
Case: [2022] NZHC 3168
Decision Date: 30 November 2022

CaseChat Overview and Summary

The case of R v Zhang was heard in the High Court of New Zealand in Auckland. The defendants, Yikun Zhang, Shijia (Colin) Zheng, and Hengjia (Joe) Zheng, were found guilty of charges related to obtaining by deception in the context of political donations to the National Party. The defendants were also found guilty of providing false or misleading information to the Serious Fraud Office (SFO). Mr Zhang applied for discharge without conviction, and the court assessed the application by considering the gravity of the offending, the consequences of conviction, and whether those consequences were out of all proportion to the gravity of the offence. The court found that the consequences were not out of all proportion and declined the application for discharge without conviction. The court then outlined its approach to sentencing, considering the purposes and principles of sentencing, and selected a starting point for the offending, adjusting that starting point based on personal circumstances to determine an end sentence. The court imposed sentences of community detention combined with community work for each defendant, taking into account the aggravating and mitigating factors of their offending and personal circumstances.

The final orders were that Mr Zhang was sentenced to four months’ community detention, with a daily curfew from 10:00 pm to 6:00 am, and 200 hours’ community work. Mr Colin Zheng was sentenced to five months’ community detention, with a daily curfew from 10:00 pm to 6:00 am, and 250 hours’ community work. Mr Joe Zheng was sentenced to two months’ community detention, with a daily curfew from 10:00 pm to 6:00 am, and 100 hours’ community work for the obtaining by deception charge, and one month’s community detention, with a daily curfew from 10:00 pm to 6:00 am, and 50 hours’ community work for the charge of providing false or misleading information to the SFO, to be served cumulatively.

Orders