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Zhang v R

Zhang v R

Case [2022] NZCA 267 27 June 2022

Sentencing

Restitution

Aggravated & Exemplary Damages

Breach of Trust

Unconscionable Conduct

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA20/2022
[2022] NZCA 267

BETWEEN	WENTING ZHANG Appellant
AND	THE QUEEN Respondent

Hearing:	12 May 2022
Court:	Miller, Duffy and Ellis JJ
Counsel:	N P Chisnall and L A Elborough for Appellant A M McClintock for Respondent
Judgment:	27 June 2022 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

On 14 May 2021, Ms Wenting Zhang pleaded guilty in the High Court to 26 dishonesty charges: 10 of theft by a person in a special relationship,[1] six of obtaining by deception,[2] two of using a forged document,[3] one of false accounting,[4] and seven of dishonestly using a document.[5]
[1]Crimes Act 1961, ss 220 and 223(a) [maximum penalty of seven years’ imprisonment].
[2]Sections 240(1)(a) and 241(a) [maximum penalty of seven years’ imprisonment].
[3]Section 257(1)(a) [maximum penalty of 10 years’ imprisonment].
[4]Section 260(a) [maximum penalty of 10 years’ imprisonment].
[5]Section 228(b) [maximum penalty of seven years’ imprisonment].
On 17 December 2021, Gordon J sentenced Ms Zhang to two years and 10 months’ imprisonment.[6]
[6]R v Long [2021] NZHC 3522 at [116] [Sentencing notes].
Ms Zhang appeals that sentence and says material errors in the sentencing process resulted in a manifestly excessive outcome. She says the starting point taken was too high and that the Judge gave insufficient credit for her remorse, financial restitution and personal circumstances.

The offending

The details of the offending were set out in an agreed summary of facts which, by Ms Zhang’s guilty plea, she accepted. The précis that follows is only a thumbnail sketch of a considerable number of complex and interrelated dealings and transactions over a two-year period.
Mr Li and Ms Wang — the victims in this case — had applied to immigrate to New Zealand under the Government’s investor immigration category. Investment requirements form part of the approval process to obtain permanent residence.
The couple’s immigration consultant in New Zealand was one of Ms Zhang’s co-defendants, Mr Long. Ms Zhang acted as the couple’s investment broker. In September 2015 Mr Li and Ms Wang came to New Zealand for the first time. Mr Long and Ms Zhang persuaded them to join them and the third co-defendant, Mr Pian (also an investment broker) in a syndicate for the purpose of purchasing land for investment. Ms Zhang helped them open a bank account here.
Mr Li was induced to contribute funds to purchase land in Hobsonville on the basis that it would be developed by the syndicate. Ms Zhang and her co-offenders conveyed the impression that there were other investors (including themselves) when, in fact, Mr Li would be entirely responsible for funding the purchase. There were misrepresentations that involved overstating the purchase price for the land and Mr Li’s share of the deposit. Mr Li was also told that a $4 million “under the table” payment to Mr Pian’s “boss” was required and that Mr Li’s contribution…

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 Zhang v R

Details

AGLC: Zhang v R [2022] NZCA 267
Case: [2022] NZCA 267
Decision Date: 27 June 2022 at 11.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Ms Wenting Zhang appealed against her two-year and 10-month imprisonment sentence for 26 charges of dishonesty. The Court of Appeal found that the sentence was not manifestly excessive and dismissed the appeal. Ms Zhang was found to have been involved in a fraud scheme with her co-offenders, Mr Long and Mr Pian, who defrauded Mr Li and Ms Wang of approximately $6 million. The fraud was facilitated through a corporate structure and false documents. The victims were completely restored and even improved their position as a result of the fraudulent property investment venture. The Court of Appeal found that the starting point of the sentence was within the appropriate range for fraud offending involving such a significant benefit. The Court also found that the 20 per cent discount on the starting point for the reparation made was appropriate and that the Judge did not make any error in her assessment. The Court further found that the discounts given for personal factors were generous and did not result in a manifestly excessive sentence.

Orders