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Chung v The Queen

Chung v The Queen

Case [2007] NSWCCA 231 2 August 2007

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Reported Decision: (2007) 25 ACLC 1,132

New South Wales

Court of Criminal Appeal

CITATION: Francisco CHUNG v Regina [2007] NSWCCA 231

HEARING DATE(S): 5 July 2007

JUDGMENT DATE:
2 August 2007

JUDGMENT OF: Spigelman CJ at 1; Hislop J at 65; Harrison J at 66

DECISION: 1 Grant leave to appeal; 2 Appeal dismissed.

CATCHWORDS: SENTENCING - Dishonesty offences - Appellant convicted of conspiracy to cheat and defraud - Appellant not convicted of substantive offence – guilty plea – whether offence nonexistent because statute has overridden common law – effect of Corporations Act 2001 (Cth) s 184(2) and Criminal Code Act 1995 (Cth) Div 11.5 – no intention to displace common law - CRIMINAL LAW – Practice and Procedure - Prosecution – Powers of the prosecution – discretion to select appropriate charge – principle of non interference by courts

LEGISLATION CITED: Constitution s109
Corporations Act 2001 (Cth) s5E, s 9, s 184(2), s 184(3), s 185a), s 1308A, s 1311(2)
Crimes Act 1912 (Cth) s 29D, s 86, s 86A
Criminal Appeal Act 1912 s 5F
Criminal Code Act 1998 (Cth) Div 11.5 (1), Div 11.5(7A), Div 11.6(1), Div 135.4

CASES CITED: Chow v DPP (1992) 28 NSWLR 593
Felton v Mulligan (1971) 124 CLR 367
Maxwell v The Queen (1996) 184 CLR 501
Peters v The Queen (1998) 192 CLR 493
R v El-Kotob (2002) 4 VR 546
R v McCready (1985) 20 A Crim R 32
The Queen v Hoar (1981) 148 CLR 32
Weininger v The Queen (2003) 212 CLR 629

PARTIES: Francisco Chung (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/1166

COUNSEL: G D Wendler (Appellant)
W Dawe QC (Respondent)

SOLICITORS: K S Van Houten, Van Houten Solicitors (Appellant)
K Frearson, S C Kavanagh Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/0264

LOWER COURT JUDICIAL OFFICER: Coorey DCJ

LOWER COURT DATE OF DECISION: 30 March 2007

- 12 -

2007/1166

SPIGELMAN CJ
HISLOP J
HARRISON J

Thursday 2 August 2007

Francisco CHUNG v REGINA

Judgment

1 SPIGELMAN CJ: The Applicant pleaded guilty to one count of conspiracy to cheat and defraud. He was an employee of Westpac who transferred a software template to external parties, which enabled them to access specific accounts and transfer funds from them. Those persons used the access so provided to defraud Westpac and its customers of more than US$3.5 million and A$1.1 million.

2 After plea, but prior to sentence, the Applicant challenged the jurisdiction of the District Court to hear and determine the matter. The challenge was based on the proposition that the common law offence of conspiracy to cheat and defraud has been “repealed” by s184(2) and (3) of the Corporations Act 2001 (Cth) in combination with provisions of the Criminal Code Act 1998 (Cth). The Applicant contends that these provisions of Commonwealth acts constitute an implied “repeal” of the common law offence of conspiracy to cheat and defraud with respect to, relevantly, employees of a corporation, presumably, although the scope of…

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 Chung v The Queen

Details

AGLC: Francisco Chung v Regina [2007] NSWCCA 231
Case: [2007] NSWCCA 231
Decision Date: 2 August 2007

CaseChat Overview and Summary

In the case of Chung v The Queen, the appellant was convicted of conspiracy to cheat and defraud, following a guilty plea. The High Court of Australia was tasked with addressing the legal issues surrounding the appellant's conviction. Specifically, the court needed to determine whether the offence of conspiracy to defraud was nonexistent due to the statute overriding the common law, particularly considering the Corporations Act 2001 (Cth) section 184(2) and the Criminal Code Act 1995 (Cth) Division 11.5. The central question was whether these statutory provisions intended to displace the common law offence of conspiracy to defraud.

The court found that there was no intention to displace the common law offence of conspiracy to defraud. It held that the provisions of the Corporations Act and the Criminal Code Act did not negate the common law offence. The court emphasised the principle of non-interference by courts with the prosecutorial discretion to select the appropriate charge. It underscored that courts should not interfere with the prosecution's decision to charge an offence unless there is a clear error of law or a manifest injustice. The court's reasoning affirmed the appellant's conviction, finding no grounds to consider the offence nonexistent or to interfere with the prosecutorial discretion.

As a result of the court's decision, the conviction for conspiracy to cheat and defraud was upheld. The court did not find any legal basis to overturn the conviction, and therefore, the appeal was dismissed. The ruling clarified the relationship between statutory provisions and common law offences, reinforcing the principle that courts should respect prosecutorial discretion unless there is a clear legal error or injustice.

Orders