Liu v Police HC Christchurch CRI-2011-409-000095 [2011] NZHC 1881 (20 October 2011)

Last Updated: 30 January 2012

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

_{CRI-2011-409-000095}

HONG LIU

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 20 October 2011

Appearances: M Cole for Appellant

C J Boshier for Respondent

Judgment: 20 October 2011

_{ORAL JUDGMENT OF CHISHOLM J}

[1] After pleading guilty to using a false passport to enter New Zealand Mr Liu was sentenced to 18 months imprisonment on 20 September 2011. He appeals against that sentence. It is conceded by the respondent that there is a fundamental problem with the sentence and the appeal will have to be allowed.

[2] Sentencing took place on the basis that the maximum penalty under s 31 of the Passports Act 1992, is 10 years imprisonment. However, that is the maximum penalty where the charge has been laid indictably. While that was obviously the underlying intention in this case, the charge was in fact laid summarily and s 38

_{provides that the maximum penalty in that situation is three months imprisonment.}

LIU V NEW ZEALAND POLICE HC CHCH CRI-2011-409-000095 20 October 2011

[3] The appeal is allowed and the sentence of 18 months imprisonment is quashed. Because the appellant has been in prison for much more than the three months and is not opposing extradition, it is academic to consider what the sentence should have been if the matter had been approached properly. Rather I will simply substitute a sentence of three months imprisonment.

[4] Given the outcome of this appeal Mr Liu is technically able to be released. However, my understanding is that he accepts that deportation is inevitable. It will be necessary for the Department of Immigration to apply for a warrant to detain. To enable that step to be taken this decision will lie in Court until 10 a.m. tomorrow morning.

Solicitors:

Moana Cole, 84 Edward Avenue, Edgeware, Christchurch 8013

Raymond Donnelly, P O Box 533, Christchurch