Li v R [2016] NZCA 237 (31 May 2016)

Last Updated: 18 June 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA24/2016 [2016] NZCA 237
BETWEEN	ZHIWEI LI Appellant
AND	THE QUEEN Respondent

Hearing:	10 May 2016
Court:	Wild, Courtney, Gilbert JJ
Counsel:	F C Deliu for Appellant P K Feltham for Respondent
Judgment:	31 May 2016 at 11 am

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is granted.

B The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Introduction

[1] Following a judge-alone trial in the Auckland District Court, Judge Bergseng found Mr Li guilty of obtaining by deception possession of a benefit, namely a New Zealand Diploma in Business in the name of Chi-Wei Chen, issued by the New Zealand Qualifications Authority (NZQA) contrary to s 240(1)(a) of the Crimes Act 1961.^[1]
[2] On 15 July 2015, Judge Bergseng sentenced Mr Li to four months’ home detention.^[2]
[3] Mr Li seeks an extension of time to appeal against his conviction. He has explained that he did not initially appeal because he was concerned that a conviction appeal could lead to his sentence being increased. It was not until he received legal advice on this issue that he lodged his appeal. We are satisfied that the relatively short delay has been explained adequately and an extension of time to appeal should be granted.

Brief facts

[4] Mr Chen was engaged by a television production company, Screentime, in relation to a series it was producing entitled Illegal New Zealand. One of the episodes, televised on 20 August 2009, concerned the prospect of purchasing New Zealand tertiary qualifications. Mr Chen’s role was to pose as a student seeking a tertiary qualification without completing any of the course requirements.
[5] Mr Chen made contact with Mr Li by responding to an advertisement headed “Assignment Pro” offering educational services in the Mandarin Times, an Auckland newspaper. Following a number of telephone discussions and meetings, Mr Li introduced Mr Chen to the New Zealand Academy of Studies (NZAS), which was a private training establishment authorised by NZQA to provide the New Zealand Diploma in Business.
[6] Mr Chen went with Mr Li to NZAS’ central Auckland premises on 29 October 2008. As they walked to the school, Mr Chen asked Mr Li how the assignments would be dealt with and was told that these would be taken care of for him. On arrival at the school, Mr Chen partially completed an enrolment form and then he and Mr Li met with Daniel Qu, the owner of the school. Mr Chen was again assured that he would be able to obtain the diploma without completing any of the assignments himself:

Counsel: And then you leave and in having a discussion walking down the street with the defendant ... about how the assignments part is going to be dealt with, is that right?

Chen: Correct, ‘cos I wasn’t sure. I wanted to make sure, ah, that I don’t have to write the assignments myself.

Counsel: Mhm.

Chen: And I was told that it will be taken care of.

Counsel: By who?

Chen: By somebody, I don’t know.

Counsel: But who told you it would be taken care of?

Chen: Oh, by, by Daniel sorry, yeah.

Counsel: Sorry?

Chen: Daniel, ah, sorry Mr Li.

Counsel: Mr Li?

Chen: Mr Li said that, yeah. But also in the room when I met Daniel he did say, “Yeah, so this is how we do it. You know, you’ve got all these papers and assignments and exams you have to go through and it will all be taken care of”.

[7] On 30 October 2008, Mr Chen paid Mr Li the sum of $12,000. This was to cover all costs, including the cost of having the assignments completed for him. However, no assignments were in fact completed by or for Mr Chen.
[8] On 2 December 2008, Mr Li handed Mr Chen a certificate from NZAS confirming that he had qualified with a New Zealand Diploma in Business (level 6). This diploma normally takes two years to complete. Mr Li also gave Mr Chen an academic transcript showing that he had achieved a C grade in each of the 12 subjects listed.
[9] On 3 April 2009, NZAS registered Mr Chen as a student with NZQA. NZAS notified NZQA that Mr Chen had successfully completed the first eight papers by 1 April 2009. NZAS later notified NZQA that Mr Chen completed the remainder of the papers on 14 July 2009.^[3] It appears that Mr Qu entered all of this information onto the computer system and transmitted it to NZQA. This could only be done using a password and unique identifying number issued by NZQA. Mr Qu was the only person at NZAS authorised by NZQA to submit such information and the password and unique identifying number were provided to him.
[10] In reliance on the information provided by NZAS, NZQA issued a certificate in July 2009 confirming that Mr Chen had qualified for a New Zealand Diploma in Business (level 6), having completed the prescribed course of study at NZAS. This certificate was sent to Screentime’s post office box.

Grounds of appeal

[11] Mr Li appeals on the following grounds:

• (a) The verdict cannot be supported because the evidence was insufficient to establish the essential elements of the offence: obtaining; benefit; deception; and absence of claim of right.
• (b) He was entrapped.

Was there sufficient evidence to establish the essential elements of the offence?

[12] The Judge identified the essential elements that the Crown had to establish beyond reasonable doubt to prove the offence:^[4]

• (i) the defendant obtained (directly or indirectly) possession of a benefit (namely a NZQA issued New Zealand Diploma in Business (level 6), in the name of Chi-Wei Chen);

It is noted that [s 217] of the Act provides that a benefit can be obtained for the defendant or any other person, and need not be monetary.

(ii) a reason for NZQA issuing the diploma was the defendant’s deception, namely the submitting of false information to NZQA that Mr Chen had completed the prescribed course of study necessary to obtain the diploma;

(iii) the defendant knew the information submitted to NZQA was false or he was reckless as to whether it was false; and

(iv) the defendant, in submitting the false information, did so with intent to deceive and without claim of right.

Was there evidence to show that Mr Li obtained possession of the claimed benefit?

[13] The charge alleged that Mr Li obtained possession of a benefit, namely the diploma issued by NZQA.
[14] There was no evidence that Mr Li personally obtained possession of the certificate from NZQA. This was sent directly to Screentime. In response to questions from the Court, Mr Deliu submitted that the Crown needed to prove that Mr Li took possession of the certificate and had failed to do so. He argued that the appeal would have to be allowed on this ground alone.
[15] We have come to the conclusion that it does not matter that Mr Li did not personally obtain possession of the certificate because of the broad definition of the word “obtain” in s 217 of the Crimes Act:

217 Interpretation

In this Part, unless the context otherwise requires,—

...

obtain, in relation to any person, means obtain or retain for himself or herself or for any other person.

[16] The words “obtained possession” in the charge are therefore sufficiently broad to cover the situation where the defendant obtained possession of the property or benefit for another person. We agree with the learned authors of Adams on Criminal Law that it is not necessary to show that the defendant personally obtained possession of the property or benefit. A purposive interpretation should be given to this section so that it will suffice if the defendant causes some other person to deliver the property in question to someone other than the defendant:^[5]

First, it is not clear whether the defendant must actually acquire possession or control of the goods (with an intention they be passed to the intended recipient), or whether it suffices that the defendant cause some person to deliver the property in question to a person other than the defendant. The first is the literal meaning of the words; the latter would accord more with the older law, and is a reading which avoids leaving what otherwise would be a lacuna in the property offences.

...

... the literal reading would be unfortunate and a more purposive interpretation should be given to the section.

[17] The reference to the “older law” in this commentary is a reference to the predecessor of s 240 of the Crimes Act, which was s 246 — obtaining by false pretence. Section 246(2) as then enacted provided:

Every one who, with intent to defraud by any false pretence ... obtains possession of or title to anything capable of being stolen, or procures anything capable of being stolen to be delivered to any person other than himself, is liable ...

[18] This provision plainly would have covered the circumstances of the present case. There was no need to prove that the offender obtained possession himself.
[19] The old pt 10 of the Act, which incorporated s 246, was repealed and replaced with the current pt 10 as from 1 October 2003 by the Crimes Amendment Act 2003. The changes were largely driven by this Court’s decision in R v Wilkinson, which exposed the inadequacy of the old provisions in dealing with electronic money transfers.^[6] The main aim of the Crimes Amendment Bill (No 6) 1999 was set out in a Supplementary Order Paper:^[7]

The main aim of the bill is to update the Act so that it can address current uncertainties in the application of existing offences to computer crime. It does this by:

- repealing most of Part X of the Act ... and replacing it with a modernised Part 10.
- redefining the key terms underlying property offences, namely the terms “dishonestly”, “property”, “document” and “colour of right” ... and broadening some existing offences.
[20] The genesis of the new s 240 (s 305U in the Bill) was explained as follows:^[8]

New section 305U draws on sections 246, 247 and 270 of the principal Act. It combines obtaining by false pretence, obtaining credit fraudulently, and procuring execution of documents by fraud in the crime of obtaining by deception.

[21] At its second reading in the House the then Minister of Justice, the Hon Phil Goff, who had chaired the select committee that considered the Bill, described the intended effect of the new section, s 240, in these terms:^[9]

The offence of obtaining by deception, or causing loss by deception, replaces the current offence of false pretences. That will cover a broader range of financial benefits than the current offence, and the element of causing loss is also new.

[22] It is apparent from this legislative history that Parliament did not intend to restrict the scope of the existing offences, rather, to broaden them. We consider that the definition of “obtain” in the new interpretation section, s 217, when read with s 240, was intended to cover all offending caught under the predecessor section, s 246, including situations where the property or benefit is delivered to someone other than the offender.
[23] Mr Deliu next submitted that the NZQA certificate was not a “benefit”. “Benefit” is not defined in the Crimes Act and therefore bears its ordinary meaning of “advantage”, “good” or “profit”.^[10]
[24] The Judge found that the NZQA certificate was a benefit to Mr Chen in at least two ways. First, he could have used it to gain employment although it was clear from the evidence that this was never his intention. Second, he was able to use the benefit for the purposes of the television programme to demonstrate corrupt practices in this area of the education sector.^[11] The Judge found that “[i]t was of advantage to him”.^[12]
[25] Mr Deliu argued that because Mr Chen did not use the certificate to obtain a benefit (employment), no actual benefit was ever obtained. As to the second claimed benefit, Mr Deliu argued that any benefit had to flow from its intended use, not from use for some other purpose. He gave the example of using the certificate as toilet paper and suggested that Parliament cannot have intended that this would be a benefit within s 240 of the Crimes Act. Mr Deliu also submitted that where a benefit has been obtained by deception, there must be a corresponding disadvantage to the victim, in this case NZQA. He contended that there could be no benefit and no detriment in the present case unless the NZQA certificate was actually used for its intended purpose.
[26] We reject these submissions. The issue is whether the certificate comes within the meaning of “benefit” for the purposes of the section, not whether some consequential benefit, such as employment, has been gained as a result of acquiring it. The question of whether the certificate is a benefit is to be judged at the time it is obtained and is not dependent on whether it is later used. We consider that the certificate is a “good” and therefore a benefit within its ordinary meaning. It could also be regarded as an “advantage”, as the Judge found.^[13]
[27] Mr Deliu referred to this Court’s decision in R v Morley as authority for the proposition that the victim must suffer a corresponding detriment.^[14] That case concerned the offence of causing loss by deception, which was one of the new offences inserted as a result of the 2003 amendments to the Crimes Act. In the course of discussing the differences between the offences of obtaining by deception and causing loss by deception, the Court observed:^[15]

Secondly, the commission of the obtaining by deception offences necessarily contemplates an identifiable benefit obtained by the offender and a corresponding disadvantage to the victim.

[28] The benefit obtained by the deceit will normally be matched by the disadvantage suffered by the victim. The example given in Morley was where the offender consumes a meal and fails to pay for it. Even though a corresponding disadvantage may follow, s 240 does not require proof of it.^[16] In any event, we consider that the certified endorsement of NZQA that was obtained by deception in this case carried with it a corresponding detriment or disadvantage to NZQA. NZQA provided the certificate and confirmed that it had endorsed the qualification on its database. It would not have been prepared to take these steps if it had not been deceived and had been aware of the true position. It follows that NZQA acted to its detriment by providing this endorsement in reliance on the dishonest representations, which was contrary to its role of assuring and protecting the credibility of the New Zealand qualifications it endorses.
[29] Even if we had been persuaded that the NZQA certificate was not a “benefit”, it would clearly come within the broad scope of s 240(1)(a) of the Crimes Act which includes obtaining any property, privilege or valuable consideration.
[30] Our conclusion on this issue means that we do not strictly need to consider the Judge’s alternative findings of “benefit”. These were that Mr Li retained $3,000 of the $12,000 paid by Mr Chen and that the arrangement furthered Mr Li’s business relationship with NZAS.^[17] The verdict could not have rested on these benefits because they are not referred to in the charge and are therefore irrelevant.

Was there evidence to show that Mr Li submitted false information to NZQA?

[31] The charge in the indictment did not stipulate the basis on which it was alleged that Mr Li was liable as a party. However, the Crown opened and closed its case on the basis that Mr Li could be found guilty on any one of three bases: as the principal, namely the person who deceived NZQA by submitting the false information; or as a person who assisted the principal offender to do so; or as a person who procured the principal offender to submit the false information to NZQA.
[32] In opening, Crown counsel said:

In terms of the deception, the Crown is really relying on [section] 240 subsection (2)(a), it alleges that a false representation is made effectively by the conduct of submitting the false grades and information from the NZAS system in the name of Mr Chen to NZQA because the act in submitting that clearly falsely suggests Mr Chen has completed the assignment components. Either the defendant directly or someone at NZAS did that, so the defendant is either a principal or a party to the act of that occurring. It doesn’t matter if he himself didn’t do it but because he would be a party to it, given that at the very least it was he who brokered the deal in order for this to occur in the first place. The Crown says the person who submitted that false information had to have known that it was false material particular[ly] that the grades had not been properly obtained by Mr Chen and the intent on doing all of this is plainly the deceit of NZQA which ultimately occurred ...

Alternatively to what I’ve described, it could also be said, I guess, that the defendant procured NZAS into committing the offence because he set out to see that they submitted false information and took steps to ensure that that happened and to produce that result. So there’s more than one way to look at it but by virtue of being a principal, being a party or being a procurer, Mr Li, on the Crown’s case, would be guilty of obtaining by deception if Your Honour accepts the Crown’s evidence because he either obtained it directly via the deal he brokered or at a minimum he assisted or procured that to occur. Without the steps that he took quite simply the deception of NZQA would not have occurred.

[33] The Crown advanced its case in closing as follows:

His role in brokering this deal makes him guilty of obtaining by deception, in my submission, and whether that’s as a party, as a principal or as a procurer doesn’t much matter, because the case in respect of each is the same.

...

So, the false representation here is the conduct in submitting the information ... to NZQA through the electronic system ...

Now, exactly who did it isn’t necessarily known but there’s two available options for that. It had to have been, on the evidence, either Mr Qu, the defendant, or both of them, and in my respectful submission it doesn’t matter too much how that worked exactly, provided Your Honour accepts that the Crown has proven the defendant knew that information was to be submitted, that there was a second step in the process, that it would be given to NZQA and that he had a clear role in that process occurring so that he was, therefore, at least a party to the end result.

...

... on any analysis, he clearly either obtained that diploma himself, via the deal that he brokered, or at the very least he has assisted or procured the offence to occur, but no matter which way you approach the issue, without the steps that Mr Li took, in my submission, the deception that occurred of NZQA simply would not have occurred at all.

[34] The Judge made no express finding about who provided the false information to NZQA. However, he noted that Mr Qu was the only person at NZAS who had been issued with a password and unique number required to access NZQA’s database.^[18] The Judge correctly found that there was no evidence that Mr Li submitted the false information to NZQA.^[19] It follows that the Crown did not prove that Mr Li was the principal offender.
[35] The Judge also rejected the Crown’s case that Mr Li assisted by arranging for the assignments to be completed on Mr Chen’s behalf:^[20]

The Crown submission is that an inference can be drawn that it was the defendant who had engaged “Assignments For You” to complete Mr Chen’s assignments for his qualification ...

I am not prepared to draw that inference. The evidence is simply not sufficient for me to do so. There is no sufficient evidence of any link between the defendant and “Assignments For You”. There is no evidence of the defendant making any payments to “Assignments For You” as per the various invoices that were issued by “Assignments For You”. The description of the work undertaken by “Assignments For You” does not necessarily correlate with the New Zealand Diploma in Business (level 6) course work. In the course of searches being undertaken on the “Assignments For You” computer, reference was found to the name “Wei Chen” in respect of a company. Wei Chen is noted as being a director of this company. There is no suggestion that this company has any connection with Mr Chen. There is an alternative inference available to be drawn that there was a second person by the name of Wei Chen.

[36] In summary, the Judge was not satisfied that the Crown had proved that Mr Li submitted the false information to NZQA or that he assisted in that process. Nevertheless, the Judge found that Mr Li was a party to the deception by entering into the agreement with Mr Chen, thereby procuring Mr Qu (or NZAS) to commit the offence:^[21]

However I am satisfied that it is proven beyond reasonable doubt that at least, the defendant was a party to the false representation based on his entering into the arrangement with Mr Chen, whereby for the sum of $12,000.00, Mr Chen was buying a “genuine” qualification. The defendant procured the commission of the offence.

[37] Mr Deliu submitted that the Judge was wrong to conclude that Mr Li procured the offence by entering into the arrangement with Mr Chen. He contended that there was no evidence connecting Mr Li to Mr Qu’s action in submitting false information to NZQA.
[38] To procure simply means to bring about. To procure another to commit an offence means to deliberately bring about the commission of the offence by another. It is sufficient for the procurer to induce the principal offender to commit the offence. In Attorney-General’s Reference (No 1 of 1975) Lord Widgery CJ explained it this way:^[22]

To procure means to produce by endeavour. You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening.

[39] Mr Li entered into an arrangement with Mr Chen whereby, in return for the payment of $12,000, Mr Li was to make arrangements for Mr Chen to obtain a diploma from NZAS followed by a certificate from NZQA. These documents would be obtained in short order and without Mr Chen having to attend any classes or complete any assignments. Mr Li knew that this qualification would normally take two years to achieve. Mr Li also knew that NZQA would not issue a certificate confirming that Mr Chen had successfully completed the course at NZAS unless it was deceived into believing that he had done so. Mr Li commissioned NZAS, through Mr Qu, to make the necessary arrangements for all of this to occur in return for the payment of $9,000, the amount Mr Li passed on. NZQA was deceived, as Mr Li and Mr Qu had planned, and duly issued the certificate. We consider that there was ample evidence to justify the Judge’s conclusion that Mr Li procured Mr Qu to commit the offence in these circumstances. It was not necessary for the Crown to prove that Mr Li knew the precise means by which the deception would occur.^[23]
[40] Finally, Mr Deliu submitted that the alleged crime was impossible because, as a matter of law, it is impossible to deceive a computer system. He contended that there was no evidence that any person at NZQA was deceived. However, the certificate from NZQA could not have been issued without someone from NZQA being involved. Mr Deliu accepted this in oral argument. There is nothing in the “impossibility” point.

Was there evidence to show that the benefit was obtained without claim of right?

[41] Section 2 of Crimes Act, as at the time of Mr Li’s offending,^[24] defined “claim of right” as:

a belief that the act is lawful, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.

[42] The Judge was satisfied that, despite Mr Li’s evidence to the contrary, the Crown had excluded the reasonable possibility that Mr Li had an honest belief that Mr Chen was entitled to obtain the diploma without completing the prescribed course.^[25] The Judge was also satisfied that the information falsely representing that Mr Chen had successfully completed the diploma was submitted to NZQA with the intention of deceiving NZQA and that Mr Li procured this.^[26]
[43] Mr Deliu submitted that the Judge was wrong to reject Mr Li’s evidence. He argued that Mr Li was simply a sales or marketing person who honestly believed that his actions were not illegal:

As a sales or marketing person, the Appellant is expected to reasonably be able to convey the information given by NZAS and fairly do some sales talk to close a deal. That alone is insufficient to conclude the Appellant’s intention to deceive NZQA. As the Appellant gave evidence that he honestly believed his actions were not illegal then in this context it should have been accepted. The Appellant ran this at trial and it was wrongly dismissed.

[44] This argument necessarily fails for the same reasons we have given for finding that there was sufficient evidence to support the Judge’s conclusion that Mr Li procured the deception. The Judge was entitled to reject Mr Li’s evidence, which was inherently implausible. There was ample evidence led by the Crown to support the Judge’s conclusion that Mr Li knew that the diploma could not be obtained lawfully in just one or two months without completing any course requirements. For example, Mr Li negotiated a substantial price increase when it became clear that Mr Chen wanted a “genuine” NZQA endorsed qualification as opposed to a fake diploma that could not be searched and verified online. Mr Li told Mr Chen that it normally takes two years of study to obtain this diploma but he said that Mr Chen would not need to attend any classes and would be able to obtain the diploma within weeks. That Mr Li knew that what was being proposed was unlawful is also supported by the fact that he told Mr Chen that he could not assist his associate, Tony Wall, who was also involved in the television programme, to obtain a tertiary qualification because he was a “foreigner” and had “a different way of thinking from Chinese” which could lead to trouble.
[45] The almost inevitable inference on the evidence was that Mr Li knew that Mr Chen could not lawfully obtain a Diploma in Business endorsed by NZQA without doing anything other than paying $12,000. Mr Li clearly knew that NZQA would have to be deceived into believing that Mr Chen had personally completed the necessary course requirements before it would be prepared to issue a certificate confirming that he had done so.
[46] We conclude that the verdict was supported by the evidence. The first ground of appeal fails.

Entrapment

[47] The Crown applied pursuant to s 344A of the Crimes Act for a pre-trial ruling as to the admissibility of the evidence of Messrs Chen and Wall and the video and audio recordings of their meetings and telephone conversations with Mr Li. Counsel then acting for Mr Li submitted that this evidence was improperly obtained in breach of Mr Li’s right under s 21 of the New Zealand Bill of Rights Act 1990 to be secure against unreasonable search and seizure. He argued that the evidence was therefore unfairly obtained and should be excluded under s 30 of the Evidence Act 2006. Alternatively, even if there was not a breach of the Bill of Rights Act, counsel argued that the evidence was unfairly obtained by entrapment and should be excluded on that ground. Judge Field rejected these arguments and ruled that the evidence was admissible.^[27]
[48] Before us Mr Deliu submitted that Mr Li was entrapped by Messrs Chen and Wall. Mr Deliu noted in his written submissions that entrapment can be a ground for a stay of proceedings, referring to the Supreme Court’s decision in Wilson v R.^[28] However, Mr Deliu did not argue that this would be an appropriate course in the present case. He also did not argue that the evidence was improperly obtained or that it should have been excluded on that ground. Rather, he focused this part of his submissions on the “impossibility” point with which we have already dealt. We nevertheless briefly consider whether the evidence should have been excluded on the basis that it was obtained unfairly in circumstances amounting to entrapment.
[49] Evidence is improperly obtained if it is obtained unfairly.^[29] It is clear that evidence obtained by police through conduct amounting to prosecution entrapment can be excluded on the basis that it has been obtained unfairly.^[30] However, Mr Deliu did not refer us to any case where the principle of entrapment was found to be applicable where the party who obtained the evidence was not an enforcement officer seeking to rely on it for the purposes of a prosecution. We do not need to determine this issue because we are satisfied that the principle of entrapment does not arise on the facts of this case in any event.
[50] In Stephenson v R this Court approved the test for entrapment in the context of evaluating the limits of acceptable police conduct as outlined by Lord Nicholls in R v Looseley: Attorney-General’s Reference (No 3 of 2000):^[31]

a useful guide is to consider whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime. ... The yardstick for the purpose of this test is, in general, whether the police conduct preceding the commission of the offence was no more than might have been expected from others in the circumstances. Police conduct of this nature is not to be regarded as inciting or instigating crime, or luring a person into committing a crime.

[51] Leaving aside the question of whether the conduct of Messrs Chen and Wall could be brought within the concept of entrapment given that they were civilians seeking evidence for the purposes of a television programme rather than a prosecution, we are satisfied that they did no more than anyone else responding to Mr Li’s advertisement might have done. As Ms Feltham submitted, Mr Chen did not specifically target Mr Li. Mr Chen told Mr Li in clear terms that he wanted to obtain a tertiary qualification without completing any of the course requirements. Mr Li was a willing participant in the arrangements that he made to enable Mr Chen to achieve this. At no stage did Mr Chen or Mr Wall pressure Mr Li to proceed. There is nothing to indicate that the service he provided to Mr Chen was outside the scope of his normal business. In summary, Mr Chen and Mr Wall did no more than present an unexceptional opportunity for Mr Li to commit the crime that he did.
[52] For the foregoing reasons, the appeal must be dismissed.

Result

[53] The application for an extension of time to appeal is granted.
[54] The appeal is dismissed.

Solicitors:
Amicus Law, Auckland for Appellant
Crown Solicitor, Wellington for Respondent

---

^[1] R v Li [2015] NZDC 4224.

^[2] R v Li [2015] NZDC 13893.

^[3] There are some discrepancies between the academic transcript provided by NZAS to Mr Chen and the details submitted by NZAS to NZQA: Management Accounting appears on the transcript but not in the information supplied to NZQA; NZQA was told that Mr Chen failed Financial Accounting and was awarded a D, whereas the transcript indicates that he passed this paper and was awarded a C. However, these discrepancies are immaterial for present purposes.

^[4] R v Li, above n 1, at [23].

^[5] Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Westlaw) at [CA 217.08].

^[6] R v Wilkinson [1999] 1 NZLR 403 (CA).

^[7] Supplementary Order Paper 2001 (85) Crimes Amendment Bill (No 6) 1999 (322-2) (as reported from the Law and Order Committee) at 12 (footnotes omitted).

^[8] Crimes Amendment Bill (No 6) 1999 (322-1) (explanatory note) at vii.

^[9] (12 June 2003) 609 NZPD 6238.

^[10] Dixon v R [2015] NZSC 147 at [51].

^[11] Li v R, above n 1, at [31].

^[12] At [32].

^[13] At [32].

^[14] Morley v R [2009] NZCA 618, [2010] 2 NZLR 608.

^[15] At [16].

^[16] At [16].

^[17] R v Li, above n 1, at [34] and [35].

^[18] At [40].

^[19] At [98].

^[20] At [95] and [96].

^[21] At [98].

^[22] Attorney-General’s Reference (No 1 of 1975) [1975] EWCA Crim 1; [1975] QB 773 at 779 (Crim App).

^[23] Commerce Commission v Cardin Laurant Ltd [1989] NZHC 201; [1990] 3 NZLR 563 (HC) at 569.

^[24] It was amended on 19 March 2012 by the Crimes Amendment Act (No 3) 2011.

^[25] R v Li, above n 1, at [102].

^[26] At [99] and [100].

^[27] R v Li [2015] NZDC 2377.

^[28] Wilson v R [2015] NZSC 189.

^[29] Evidence Act 2006, s 30(5)(c).

^[30] R v Liu [2009] NZCA 409; Stevenson v R [2012] NZCA 189, (2012) 25 CRNZ 755.

^[31] R v Looseley: Attorney-General’s Reference (No 3 of 2000) [2001] UKHL 53, [2001] 1 WLR 2060 at [23].