Cheng v The Queen - [2017] NSWCCA 63

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Cheng v R [2017] NSWCCA 63
Hearing dates: 22 March 2017
Date of orders: 05 April 2017
Decision date: 05 April 2017
Before: Hoeben CJ at CL at [1]
Walton J at [56]
Price J at [57]
Decision:
Appeal dismissed.

Catchwords: CRIMINAL LAW – statutory offence – dealing with money with intention money to be instrument of crime – scope of such intention – need for temporal separation between two physical elements of offence – proof of offence – need for instrumental connection between money and relevant indictable offence – temporal separation established – instrumental connection established – appeal dismissed.
Legislation Cited: Anti-Money Laundering and Counter-Terrorism
Financing Act 2006 (Cth) – ss 5, 6, 10,140
Crimes Act 1914 (Cth) – s 20(1)(b)
Criminal Code (Cth) – ss 400, 400.1, 400.2A, 403.3(1)(b)(ii)
Financial Transaction Reports Act 1988 (Cth) – s 31
Cases Cited: Chen v Director of Public Prosecutions (Cth) [2011] NSWCCA 205; 83 NSWLR 224
Milne v The Queen [2014] HCA 4; 252 CLR 149
Category: Principal judgment
Parties: Benny Zhong Cheng – Appellant
Regina – Respondent Crown (Cth)
Representation:
Counsel:
I McLachlan – Appellant
WJ Abraham QC/T Muir – Respondent Crown (Cth)
Solicitors:
Watsons – Appellant
Commonwealth Director of Public Prosecutions – Respondent Crown

File Number(s): 2012/301096
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

8 December 2015

Before:

Norrish QC DCJ

File Number(s):

2012/301096

Judgment

HOEBEN CJ at CL:

Offence and Crown case

The appellant was charged with the offence of dealing with money intending that it would become an instrument of crime, contrary to s 400.3(1)(b)(ii) of the Criminal Code (Cth) (the “Code”). The indictment was in the following terms:

“Benny Zhong Cheng between about 27 May 2012 and 17 July 2012 at Sydney in the State of New South Wales, did deal with money or other property intending that the money or other property will become an instrument of crime, and at the time of the dealing the value of the money or other property was $1,000,000 or more.
Contrary to section 400.3(1)(b)(ii) of the Criminal Code (Cth).”

The appellant’s trial took place before Norrish QC DCJ and a jury between 2 December and 9 December 2015. The appellant was sentenced by his Honour to imprisonment for 2 years and 9 months, commencing 18 March 2016 and expiring 17 December 2018, to be released after serving 15 months upon entering into a recognizance on 17 June 2017 pursuant to the Crimes Act 1914 (Cth) s 20(1)(b) self in the sum of $500 to be of good behaviour for 3 years.
The appellant has appealed against his conviction on the following ground:

The verdict was not open at law in that the jury could never find that:

(a) At the time of dealing with the subject money the appellant intended that it “will become” an instrument of crime; or

(b)…

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 Cheng v The Queen

Details

AGLC: Cheng v The Queen [2017] NSWCCA 63
Case: [2017] NSWCCA 63
Decision Date: 05 April 2017

CaseChat Overview and Summary

In the High Court of Australia, the case of Cheng v The Queen involved the appellant, Cheng, who was convicted of dealing with money with the intention that it be used as an instrument of an offence. The court was tasked with determining the sufficiency of the evidence to support the conviction. The dispute centred around the statutory elements required to prove the offence, including the need for a temporal separation between the physical elements of the offence and the establishment of an instrumental connection between the money and the relevant indictable offence.

The primary legal issue before the court was whether the evidence presented was sufficient to establish the elements of the offence. Specifically, the court needed to determine if there was sufficient proof that the money was intended to be used as an instrument of a crime and whether the necessary temporal separation and instrumental connection were demonstrated. The court also had to consider the broader scope of the statutory offence and the extent to which the elements needed to be proven.

In reaching its decision, the court found that the evidence did establish the necessary temporal separation between the physical elements of the offence. Furthermore, the court confirmed that the instrumental connection between the money and the relevant indictable offence was adequately demonstrated. The court held that the conviction was supported by the evidence and dismissed the appeal. The reasoning was that the statutory offence did not require the two physical elements to be contemporaneous, and the evidence sufficiently showed that the money was intended to be used as an instrument of the crime.

The High Court dismissed the appeal, upholding the conviction. The court affirmed that the evidence was sufficient to establish the elements of the offence, including the necessary temporal separation and instrumental connection. The decision underscores the importance of establishing these elements for a conviction under the statute in question.

Orders