FOREIGN STUDENT GUILTY OF FRAUD

Thai is a an example of what NOT to do. Beware of those who offer to fabricate documents.

R. v. Zhong

Between
Regina, and
Lei Zhong

[2007] B.C.J. No. 3266

2007 CarswellBC 3416

File No. 51298-1

Registry: Richmond

 British Columbia Provincial Court

R.D. Fratkin Prov. Ct. J.

Heard: November 1, 2007.
Judgment: November 1, 2007.

(18 paras.)

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1     R.D. FRATKIN PROV. CT. J.:-- This is a case that is probably a terrific example, or as close to a terrific example as you can get, wherein the phrase "desperate situations require desperate means." Mr. Zhong was in a desperate situation from January of 2007. The expiration of his student study visa (for my purposes I'll just refer to it as a visa) was January of 2007. He had been on that visa, in effect, since 2003. This was the third renewal of the original visa. There had been two previous, each for one year. The obvious conclusion to draw from the fact that in 2004 a three-year visa was provided to him because he had been, by all accounts, in school, complying with the terms of his visa. Come 2004, those in the position of authority granted him a three-year visa to complete whatever studies he was embarked upon. Hence, 2007 was the end date.

2     In February 2005, the accused has testified that it came to his attention or it was brought to his attention that his grandfather was ill in China and would require his attendance to China. It was not until April 2005 that the accused was able to make the arrangements to travel to China and he was there for some four months, in cross-examination it is revealed that those four months were the only time that the accused was out of Canada in the four-year timeframe that he had been here.

3     In any event, he returned to Canada in August 2005, at which time he had now been out of school for some six months. He dropped out of his course in February 05. That is corroborated by the New Caledonia transcript that has been made an exhibit in this court. The accused admits, he says that he had in fact been out of school, dropped out of school February 2005.

4     In August of 200 6 a proposition is presented to him by his now partner or his subsequent partner. That proposition had to do with investment in a restaurant in Prince George where the accused was residing. For $75,000 he could invest in this company, A lawyer had been retained, the company was incorporated, a name had been chosen. In other words, all the necessary ingredients for the accused to invest in an ongoing enterprise were present.

5     As part of this investigation, the accused has produced a number of cheques which he acknowledges are his with his handwriting on them. They are contained in Exhibit 10 in these proceedings. The accused, in cross-examination, acknowledged that his signature appears on all of them. I must say that the legibility of the handwriting is excellent. He appears to have mastered written English, perhaps well beyond the situation that is before the court, that is with the use of an interpreter.

6     In any event, in February 2006 the partnership, the enterprise, is engaged. He is a full partner with the woman that he has referred to. The accused, subsequent to this, gets married. He is engaged around Christmastime and by my recollection it may be Christmas 2005. The marriage apparently was May 2006 and the accused finds himself in the situation Of having to somehow deal with his visa that is shortly expiring.

7     One of the problems that the accused has is that he is no longer a student and by the time the visa is to be renewed, in or about that time, it is approximately 24 months from the time he ended being a student, almost two years. February 2005 to January 2007, I believe it is the 30th of January 2007, which is virtually 24 months after he ceased being a student. The reason for his cessation as a student is one thing but the fact is that the facts are beyond dispute, for two years he has not been a student. He now has to somehow be able to make an application in an honest, forthright fashion, describing what has happened and seek renewal. That may well have been, had the application not been fraudulent. He may well have been able to secure some additional time but what happened here is Ms. Wilmot spotted the application. She saw that it was fraudulent and followed up on it, much to the loss of the accused. It turns out that not only was there a lack or absence of the true facts, there were now embellished facts. The accused was now representing via the consultant that Mr. Zhong says he engaged, that, he had gone to Okanagan College. He had gone in 2006. The exhibits that are before the court indicate that the accused not only had gone to the Okanagan College but had taken particular courses, had achieved certain levels, had spent "X" number of hours in the course, in other words, the fraudulent representations were that he was a full-time student.

8     Furthermore, there is a letter dated January 26th, 2007 from Memorial University of Newfoundland, wherein there appears to be a reply to Mr. Zhong's inquiry or interest in attending to the Memorial University of Newfoundland, The letter is from the Manager of Academic Advising, thanking him for his inquiry, thanking him for his interest, etcetera.

9     The defence in this case is as follows: (a) that is not my signature on the application that Mr. Du (phonetic) on my behalf completed. I did not see, nor did I sign anything that Mr. Du created. Mr. Du had no authority to make application in the fashion that turns out that Ms. Wilmot saw. All I had done with Mr. Du was discuss the situation that I was in, discuss the possibility of making an entrepreneurial status request, a student status request, or a business status request.

10     Up until this point, in the three previous applications, the accused had relied upon the student services at the New Caledonia College in Prince George. For an extremely modest fee, $125 for an application, another $200 on top of that, for $325 the accused could fill out the student visa request, it was granted and he had the. four years liberty to study here in Canada. The application was relatively straightforward, if you take a look at it, it is very simple. It is really ticking a few boxes and perhaps expressing a couple of phrases and providing your material information. The students services in New Caledonia apparently provided that service.

11     Now Mr. Du comes on the scene, according to the accused, to the degree that Mr. Zhong has to attend two occasions from Prince George to see Mr. Du. On one of the occasions he provides $2,000 by way of a deposit. My question is, for what? What would you be depositing $2,000 into Mr. Du's account if all Mr. Du was about to accomplish out of all this was fill out an application that could have been done for next to nothing.

12     On top of all of that, it turns out that Mr. Du was going to receive from the accused $8,000. For what service would $8,000 be worth? Surely it wasn't just filling out some papers. Was it obtaining letterhead and doctoring materials so that he could go along with an application? The answer is probably. That is what $8,000 would get you, would be a fraud. Anybody who would not realize that is beyond wilfully blind. I have no understanding as to what $8,000 could bring to Mr. Zhong. Mr. Zhong knew full well that the best he had going for him wag that he was married and he knew there was a category for that. He had invested $75,000, according to him, he had that. But that which had kept him there for some four years was, in fact, really only utilised for two of those four years, 2005 February. That is where the desperation came in.

13     The turn of events was that Mr. Du, assuming there was a Mr, Du, and I say that because we have expert evidence who cannot rule out Zhong's signature being on the application, but assuming for the sake of my findings that there is a Mr. Du, I can only conclude that Mr. Zhong was in cahoots with Mr. Du to get that which we have before the court by way of the applications and the matters that are there to corroborate the application or to form part of the necessary ingredients for the application, that being Memorial University of Newfoundland, Okanagan College and all the information that pertains to it.

14     The accused was in such a situation that the easy course, or perhaps the most expedient course, or perhaps the most attractive course to solve the dilemma that he was faced with would have been to pay an inordinate amount of money for someone to fill out applications. I would think that to create a fraud, somebody who is the fraudster, would demand a significant fee and 1 would find that $8,000 to fill out papers requesting a stay in Canada is an enormous fee when, in fact, earlier papers had been done in the neighbourhood of $300.

15     Mr. Zhong had $83,000 worth of reasons to want to Stay in Canada. If there was a $75,000 investment, 75,000 reasons and 8,000 reasons can only lead me to the conclusion that he was so desperate that he was prepared to be a party to a fraud or wilfully blind to a fraud to attempt to stay in the country.

16     I do not accept his evidence that he did not know that this document was being created for him. I do not accept his evidence that he did not know that there were irregularities to the degree that it was a fraud. I do not accept his evidence that he did not know about Okanagan College or Memorial University. In the alternative, if I am wrong about that, I am satisfied that he knew or ought to have situation such as the one he was wilfully blind to that which known was going to occur in a that presented itself. To conclude otherwise, I would have to conclude that Mr. Zhong was a fool, I listened to him carefully. He is far from a fool. He is a bright, capable individual who knew or ought to have known what was occurring. I find that he knew what was occurring.

17     I find him guilty.

18     I have paid particular attention to the submissions made by both counsel and I accept the submissions made by Mr. Clements. I do not agree with you, Mr. Lee, on the basis of the facts that were before the court and the witnesses having testified.