Yicheng v Police - [2023] NZHC 816

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000476

[2023] NZHC 816

BETWEEN
LI YICHENG

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 3 April 2023

Appearances:

T A Simmonds for Appellant B Archibald for Respondent

Judgment:

18 April 2023

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew on 18 April 2023 at 4.00 pm
pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar
Date …………………….

LI v NEW ZEALAND POLICE [2023] NZHC 816 [18 April 2023]

Introduction

[1] Mr Li Yicheng pleaded guilty to two charges of robbery1 and one charge of attempted robbery.2 In the Auckland District Court, Judge de Ridder declined his application for discharge without conviction. Mr Li was convicted and sentenced to 200 hours’ community work and 12 months’ supervision.3

[2] Mr Li now appeals against the Judge’s refusal to discharge him without conviction. He contends that the Judge overstated the overall gravity of the offending and understated the likely consequences of a conviction, namely the immigration consequences. He says that the Judge was plainly wrong to conclude that the likely consequences of conviction were not out of all proportion to the gravity of the offending.

[3] In opposing the appeal, the Police say there was no error in the Judge’s approach.

The offending

[4] Mr Li’s offending relates to three instances of a similar nature where he robbed, or attempted to rob, young women of their shoes. On 4 September 2020, Mr Li followed the first complainant into her apartment building in Auckland Central. He was wearing a scarf to hide his face. He followed her into the elevator, and when asked what level he was going to, he replied “the same as you”. Mr Li proceeded to tell the complainant “I like your feet; I really like your feet”, before dropping to his knees and wrapping his arms around her knees. Mr Li grabbed the complainant’s left shoe and started to take it off. The complainant struggled to get free from Mr Li’s hold and he managed to remove her right shoe. When the elevator returned to ground level, Mr Li exited the elevator and left the building with both of the complainant’s shoes.

[5] The second incident occurred nine months later on 2 June 2021. Mr Li was following the second complainant from a distance as she was walking home in the early evening in central Auckland. When the complainant entered her apartment building, Mr Li “tailgated” her into the building with his hood up and a medical mask

1      Crimes Act 1961, s 234, maximum penalty 10 years imprisonment.
2      Crimes Act 1961, ss 234 and 72, maximum penalty five years imprisonment.
3      Police v Li Yicheng [2022] NZDC 22962.

on. He followed her up the elevator and got off on the same level as her. He then violently tackled the complainant to the ground and ripped off one of her shoes. Mr Li tried…

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.

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Details

Case: [2023] NZHC 816
Decision Date: 18 April 2023

CaseChat Overview and Summary

Li Yicheng appeals against the decision of the Auckland District Court to refuse his application for discharge without conviction. The offending involved Mr Li following three women into their apartment buildings and stealing their shoes. Mr Li pleaded guilty to two charges of robbery and one charge of attempted robbery. The District Court Judge declined to discharge Mr Li without conviction and sentenced him to 200 hours of community work and 12 months of supervision. Mr Li contends that the Judge overstated the overall gravity of the offending and understated the likely consequences of a conviction, namely the immigration consequences. In opposing the appeal, the Police say there was no error in the Judge’s approach. The court first considers the offending itself and whether the Judge erred in assessing it as “very serious” and ultimately as “moderately very serious” once all personal mitigating factors were taken into account. The court finds that the offending was serious but not “very serious”. The court next considers the consequences of conviction. The court accepts that the entry of convictions may well have a detrimental effect on Mr Li’s ability to obtain a post-study work visa. However, the court finds that the consequences of a conviction, albeit significant, would not be out of all proportion to the gravity of the offending, which is moderately serious. Accordingly, the appeal is dismissed.

Orders