R v Zhou

[2004] NZCA 1

IN THE COURT OF APPEAL OF NEW ZEALAND

CA405/03

R

v

RI TONG ZHOU

Hearing:4 February 2004

Coram:Anderson P
Glazebrook J
Chambers J

Appearances:  C J Milnes for Appellant

B J Horsley for Crown

Judgment:4 February 2004 

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

[1]       This is an appeal against conviction on one representative charge pursuant to s233(1)(b) of the Fisheries Act 1996 of knowingly, for the purpose of obtaining a benefit under that Act, engaging in commercial activity involving the dealing with fish, otherwise than in accordance with the Act.

[2]       The facts of the alleged offending, in brief, were that on four occasions the appellant purchased on the black market, from an undercover Fisheries Officer, paua totalling 137 kg and 57 rock lobster.  Having pleaded guilty on arraignment to the representative charge the appellant was sentenced to 18 months imprisonment on 8 September 2003. 

[3]       On 15 September 2003 this Court held in R v Armstrong & Ors, CA194/03, CA230/03, CA231/03, CA232/03, CA233/03, that conduct such as that of the appellant, did not constitute the particular offence because the relevant commercial activity involving the dealing with fish could not be regarded as for the purpose of obtaining a benefit under the Fisheries Act 1996.  The terms of that judgment meant that the appellant had pleaded guilty to an offence of which he could not lawfully be convicted on the facts. 

[4]       The appellant subsequently appealed to this Court on that basis and the Crown acknowledges that it cannot argue against the appeal having regard to the decision in R v Armstrong & Ors.

[5]       The appeal is accordingly allowed and the conviction and sentence quashed.

Solicitors:
Crown Law Office, Wellington