Chen v R

Case [2010] NSWCCA 224 8 October 2010

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New South Wales
Court of Criminal Appeal

CITATION: Chen v R [2010] NSWCCA 224

HEARING DATE(S): 8 March 2010

JUDGMENT DATE:
8 October 2010

JUDGMENT OF: Basten JA at 1; Hulme J at 2; Schmidt J at 89

DECISION: 1. Grant leave to appeal against conviction.
2. Dismiss the appeal against conviction.
3. Grant leave to appeal against sentence.
4. Dismiss the appeal against sentence.

LEGISLATION CITED: Financial Transaction Reports Act 1988 (Cth)
Criminal Code Act 1995 (Cth)
Criminal Appeal Rules (NSW)
Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED: Azzopardi v R [2001] HCA 25; (2001) 205 CLR 50
B v The Queen (1992) 175 CLR 599
Bourke v The Queen (1988) 62 ALJR 425
Dee (1985) 19 A Crim R 224
Healey v R [2006] NSWCCA 235
Kannan v R [2006] NSWCCA 109
Postiglione v R (1996-1997) 189 CLR 295
R v Adler [2002] NSWCCA 180
R v Banic (2004) NSWCCA 322
R v D (unreported, 26 May 1997)
R v Guerin [1967] 1 NSWR 255
R v Huang [2007] NSWCCA 259; (2007) 174 A Crim R 370
R v Meher [2004] NSWCCA 355
R v Ronen [2006] NSWCCA 123
R v Taleb [2006] NSWCCA 119
R v Tsigos (1964-5) NSWR 1607
R v Viana [2008] NSWCCA 118
R v Zorad (1990) 19 NSWLR 91
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Taleb v R [2006] NSWCCA 119

PARTIES: Zhen Chi Chen (appellant)
The Crown

FILE NUMBER(S): CCA 2007/16290

COUNSEL: T Game SC/K H Averre (appellant)
G P Long SC (Crown)

SOLICITORS: Mai Lawyers (appellant)
Commonwealth Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0024

LOWER COURT JUDICIAL OFFICER: Nield DCJ

LOWER COURT DATE OF DECISION: 27 March 2008

2007/16290

BASTEN JA
RS HULME J
SCHMIDT J
FRIDAY 8 OCTOBER 2010

Zhen Chi CHEN v R

Judgment

1 BASTEN JA: I agree with the orders proposed by R S Hulme J, for the reasons he gives.

2 RS HULME J: On 20 September 2007 the abovenamed Appellant was arraigned on a charge that, “between about 14 January and 4 November 2003 ... (he) did deal with money intending that the money become an instrument of crime namely an offence against Section 31(1) of the Financial Transaction Reports Act 1988 (Cth) and at the time of the dealing the value of the money was $1 million or more, namely $3,088,311. The charge alleged an offence against s400.3(1) of the Criminal Code Act1995 (Cth).

3 On 22 October 2007 a jury found the Appellant guilty and on 27 March 2008 Nield DCJ sentenced the Appellant to imprisonment for 15 years, 6 months and 10 days including a non-parole period of 9 years, 6 months and 10 days, both such periods to commence on 22 October 2007. In arriving at those period his Honour took into account a period of pre-sentence custody, having previously expressed the view that the appropriate penalty otherwise was imprisonment for 16…

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 Chen v R

Details

AGLC: Chen v R [2010] NSWCCA 224
Case: [2010] NSWCCA 224
Decision Date: 8 October 2010

CaseChat Overview and Summary

Zhen Chi Chen (the appellant) appealed against his conviction and sentence following a jury trial in the District Court in which he was found guilty of one count of dealing with money intending that the money become an instrument of crime. The appellant was sentenced to imprisonment for 15 years, 6 months and 10 days including a non-parole period of 9 years, 6 months and 10 days. The Crown opposed the appeal. The court considered the appeal against conviction on four grounds. The appellant submitted that the trial judge had erred in his warning and failed to direct adequately the jury with respect to the evidence of Huang, who was a co-offender. The court found that the trial judge had complied with the requirements of the Evidence Act. The appellant also submitted that the trial judge had impermissibly removed from consideration any and all legitimate hypotheses consistent with innocence. The court found that the trial judge's directions to the jury did not preclude them from considering possibilities or hypotheses consistent with innocence. The trial miscarried by reason of the trial judge's statement that he had formed an opinion about the case combined with a lack of balance in the trial judge's directions to the jury. The court found that the trial judge was entitled to form a view and comment strongly to the jury on factual issues. Finally, the appellant submitted that the sentence imposed was manifestly excessive. The court found that the sentence was not manifestly excessive. The appeal against conviction was dismissed and the appeal against sentence was dismissed but leave to appeal was granted.

Orders