Zhu v Customs - [2022] NZHC 1122

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-53 [2022] NZHC 1122

BETWEEN
HUA YI ZHU

Appellant

AND

NEW ZEALAND CUSTOMS

Respondent

Hearing: 26 April 2022

Appearances:

D M Cross for Appellant D B Dow for Respondent

Judgment:

20 May 2022

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 20 May 2022 at 2pm

Registrar/Deputy Registrar

Solicitors:
Meredith Connell, Auckland

ZHU v NEW ZEALAND CUSTOMS [2022] NZHC 1122 [20 May 2022]

Introduction

[1] Hua Yi Zhu (the appellant) appeals against her sentence of three years’ imprisonment imposed by Judge EM Thomas in the Auckland District Court on 20 January 2022 in respect of charges of defrauding the revenue of the New Zealand Customs Service (Customs) and possession of uncustomed goods relating to the illegal importation into New Zealand of a large quantity of cigarettes over a period of approximately three years between 2015 and 2018.1 The appellant says that the Judge erred in adopting a starting point of six years in relation to her sentence, and as a consequence, the sentence she received was manifestly excessive.

[2] The Crown on behalf of Customs as respondent opposes the appeal. It says that the sentence imposed was not manifestly excessive and the appeal should be dismissed.

The charges

[3]The appellant was charged with:

(a)28 charges alleging that together with Wei Yi (Charles) Hu, and Zhong Ze Group New Zealand Limited, she knowingly imported cigarettes from China into New Zealand, intending to evade the payment of any duty on the cigarettes, and contrary to s 211(1)(a) and (3)(a) of the Customs and Excise Act 1996;2

(b)seven charges alleging that together with Wei Yi (Charles) Hu, and Zhong Ze Group New Zealand Limited, she knowingly imported cigarettes from China into New Zealand, intending to evade the payment of any duty on the cigarettes, and contrary to s 371(1)(a) and (4)(a) of the Customs and Excise Act 2018;3 and

1      New Zealand Customs Service v Zhu [2022] NZDC 785 [Sentencing decision].
2      Customs and Excise Act 1996, s 211(1)(a) and (3)(a): carrying a maximum penalty of six months’ imprisonment or a fine not exceeding $20,000 or both.
3      Customs and Excise Act 2018, s 371(1)(a) and (4)(a): carrying a maximum penalty of five years’ imprisonment or a fine not exceeding $20,000 or both.

(c)four charges alleging that together with Wei Yi (Charles) Hu, and Zhong Ze Group New Zealand Limited, she knowingly and without lawful justification had in their possession imported tobacco cigarettes, knowing that they were uncustomed goods, and contrary to s 372(1) and (3)(a) of the Customs and Excise Act 2018.4

[4] The appellant’s co-defendant, Wei Yi (Charles) Hu, is her husband. The appellant denied the charges and they were heard by Judge EM Thomas at a judge-alone trial between 17 and 19 February 2021. In a decision dated 24 February 2021, Judge Thomas found the appellant not guilty of one charge relating to an importation of cigarettes in…

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 Zhu v Customs

Details

AGLC: Zhu v Customs [2022] NZHC 1122
Case: [2022] NZHC 1122
Decision Date: 20 May 2022

CaseChat Overview and Summary

The appeal was heard by Paul Davison J in the High Court of New Zealand. The appellant, Hua Yi Zhu, sought to appeal against her sentence of three years’ imprisonment imposed for charges of defrauding the revenue of the New Zealand Customs Service and possession of uncustomed goods. The legal issues before the court were whether the sentencing judge erred in adopting a starting point of six years in relation to the appellant's sentence and if the sentence was manifestly excessive. The Crown, on behalf of Customs as the respondent, opposed the appeal and submitted that the sentence imposed was not manifestly excessive and the appeal should be dismissed. The court found that the appellant played an active, central, and significant role in the illegal operation and her level of culpability was only slightly below that of her husband, who was the instigator and mastermind behind the operation. The court held that the starting point of six years, being two years below that adopted for the husband, was appropriate, if not generous, and the sentence of three years’ imprisonment imposed on the appellant was not manifestly excessive. The appeal was dismissed.

Orders