Wang v R

Case [2016] NZCA 56 10 March 2016

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA695/2015
[2016] NZCA 56

BETWEEN	JIANBIN WANG Appellant
AND	THE QUEEN Respondent

CA698/2015
BETWEEN	FENGLAN LIU Appellant
AND	THE QUEEN Respondent

Hearing:	18 February 2016
Court:	Stevens, Simon France and Ellis JJ
Counsel:	J C Hannam for Appellant Wang S W Hughes QC for Appellant Liu S C Carter and M J Ferrier for Respondent in both appeals
Judgment:	10 March 2016 at 10.00 am

JUDGMENT OF THE COURT

AThe appeal by Jianbin Wang against sentence is dismissed.
BThe appeal by Fenglan Liu against conviction is allowed.
CThe convictions entered in the District Court on all charges against Fenglan Liu are quashed and verdicts of acquittal are entered.
DThere is no order for a retrial.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Table of Contents

Para No

Introduction  [1]
Wang appeal ‑ background  [5]
Sentencing process  [10]
The disputed facts hearing  [12]
Challenge on appeal  [16]
Analysis  [20]
The three specific challenges  [28]

Ruling 1  [29]
Ruling 4  [33]
Standard of proof of aggravating factor  [36]
Overview  [38]

Result  [39]
Appeal by Ms Liu ‑ background  [40]
The charges against Ms Liu  [44]

The prosecution case [46]

Judge’s findings on knowledge and intention  [51]
Appellate review  [54]
Our analysis  [56]

Submissions for Ms Liu [56]
Factual assessment [57]

Result [76]

Introduction

Top International Trading Ltd (TITL) is a company that operated three retail stores under the name Best 4 Less in New Plymouth, Waitara and Whanganui. For several years TITL under-reported its earnings to the Commissioner of Inland Revenue (the Commissioner), resulting in the evasion of both income tax and goods and services tax (GST). In 2015 TITL pleaded guilty to 16 counts of knowingly providing false information to evade the assessment or payment of GST and income tax.
Mr Wang is the director and sole shareholder of TTIL. He was the person behind the tax evasion. He pleaded guilty to a number of charges of being party to the offending of TITL, and was sentenced by Judge Roberts in the New Plymouth District Court to three years and nine months’ imprisonment.[1] Mr Wang disputes the amount of tax that was evaded. He unsuccessfully challenged the Commissioner’s assessment at a disputed facts hearing,[2] and does so again on appeal. The primary submission is that the correct lesser amount of tax would support a reduced level of sentence.
[1]R v Top International Trading Ltd & Ors DC New Plymouth CRI-2013-043-562, 26 November 2015 [Notes on Sentencing].
[2]Pursuant to s 24 of the Sentencing Act 2002.
Fenglan Lui is the wife of Mr Wang. Although not a director or shareholder of TITL, she was also charged as a party to the company’s tax evasion. She was found guilty by Judge Roberts of a total of 16 charges.[3] Ms Liu managed one of the three stores, and brought the cash takings from that store home each night. The business of TITL was managed from the family home. She appeals her convictions…

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 Wang v R

Details

AGLC: Wang v The Queen [2016] NZCA 56
Case: [2016] NZCA 56
Decision Date: 10 March 2016 at 10.00 am

CaseChat Overview and Summary

Jianbin Wang and Fenglan Liu were both convicted in the District Court for their involvement in the tax evasion activities of International Trading Ltd (TITL). Wang was the director and sole shareholder of TITL, while Liu was not a shareholder or officeholder of TITL, but was involved in managing one of the retail stores under the Best 4 Less name. Wang appealed against his sentence, while Liu appealed against her conviction. The Court of Appeal dismissed Wang's appeal against sentence, finding that the level of tax evaded was not the only aggravating factor and that the sentence imposed was lenient. However, the Court of Appeal allowed Liu's appeal against conviction, finding that the evidence did not establish beyond reasonable doubt that Liu had the requisite knowledge of the offending by TITL and an intention to aid that offending. As a result, the convictions entered in the District Court on all charges against Liu are quashed and verdicts of acquittal are entered.

Orders