Jin v Regina

[2006] NSWCCA 198

CITATION:	Jin v Regina [2006] NSWCCA 198
HEARING DATE(S):	13/06/2006
JUDGMENT DATE:	28 June 2006
JUDGMENT OF:	Grove J at 1; Hidden J at 2; Kirby J at 19
DECISION:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW: - appeal against conviction - two charges of obtaining money by deception - various complaints about conduct of the trial - criticisms of the evidence - no question of principle
CASES CITED:	Black v The Queen (1993) 179 CLR 44
PARTIES:	Ming Jin (appellant) Regina (respondent
FILE NUMBER(S):	CCA 2006/537
COUNSEL:	Appellant in Person Ms Woodburne (Crown)
SOLICITORS:	Appellant in Person S Kavanagh (respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0405
LOWER COURT JUDICIAL OFFICER:	Herron ADCJ
LOWER COURT DATE OF DECISION:	19/11/2004 (jury verdict); 18/02/2005 (sentenced).

2006/537

GROVE J
HIDDEN J
KIRBY J

Wednesday 28 June 2006

Ming JIN v REGINA

Judgment

1 GROVE J: I agree with Hidden J.

2 HIDDEN J: The appellant, Ming Jin, appeals against his conviction of two counts of dishonestly obtaining money by deception after a trial in the District Court. He was sentenced to terms of imprisonment aggregating three years, with a non-parole period of one year and nine months, to date from 3 October 2004. He notified an application for leave to appeal against sentence, but he abandoned it at the hearing. No doubt, this is because he is due for release on parole very soon, on 2 July 2006.

3 He was legally represented at the trial but he has prepared and argued his appeal without representation. His notice of appeal was lodged almost a year out of time, but the Crown raised no objection on that account.

The evidence

4 The course of the trial is conveniently summarised in the Crown prosecutor’s written submissions, as follows:

The Crown case

Ms Yi Yin Choi was a married woman who was living in Australia with her two children. Her husband Mr Wong was a wealthy man who supported her but who was living in Hong Kong. Whilst Ms Choi was studying English at the Migrant Centre in Surry Hills she met the appellant and formed a relationship with him. The appellant told Ms Choi that he was a businessman from New York on an American passport. He said that he was in the medicine business and that he was investing $250,0000 in Australia.
The appellant told Ms Choi that he needed to borrow $150,000 from her for ingredients to produce medicine. He said he would repay her by 15 July 1999. Ms Choi said that she only had $80,000 and on 22 June 1999 she gave him $80,000 in cash. She did not obtain anything in writing from him about the loan because she trusted that he was able to pay the money back by 15 July 1999. The money was never repaid (count 1).
The appellant learnt that Ms Choi had $390,000 in a term deposit which was due to mature on 16 July 1999. On 15 July 1999 the appellant asked Ms Choi if he could borrow money so he could complete a contract with a medical manufacturing company in North Sydney. He said if he did not pay the money he would lose his $1.31 million deposit. The appellant promised her that if she gave him the $390,000, which he needed in cash, that he would give her two cheques, for the $80,000 and the $390,000, on the following Monday the 19th July 1999 when he returned from a short trip to China.
On 16 July 1999 Ms Choi withdrew the $390,000 and gave it to the appellant who told her that he was taking the money to the North Sydney manufacturer. Later that day Ms Choi saw the appellant at the Star City Casino when he confirmed that he had sent the money to the manufacturer and that he would repay her on the Monday. The appellant rang Ms Choi from overseas to say that he had been arrested at Beijing airport and his assets had been frozen. Ms Choi never heard from him again and never saw him again (count 2).
Ms Choi realised she had been cheated by the appellant, so she called her husband who advised her to report the matter to the police. Ms Choi contacted “Bobby” who was an English speaking friend of her husband’s. On 19 July 1999 Bobby spoke on Ms Choi’s behalf to a security guard at the Peak apartments. The security Guard took an “Incident Report” and handed it to police that day.
The appellant had in fact left Sydney on 17 July 1999 on a ticket to Shanghai (not Beijing). He returned from China on 15 June 2003. He was arrested at the Casino on 17 June 2003 after he was seen there by Ms Choi’s friend.

The appellant’s case

The appellant did not give or call evidence in the trial. Rather the appellant’s case was advanced through cross-examination of the Crown witnesses. In that regard, it was put to Ms Choi that the payments of $80,000 and $390,000, together with a further amount of $10,000, were paid to the appellant as the purchase price of a painting by Tang Yi, which the appellant sold to her. Ms Choi, Ms (Amy) Qin, and Ms (Sasha) Mei each gave evidence of an occasion on which the appellant had shown them two paintings which he said were valuable and which he was carrying in a briefcase.
Ms Choi was cross-examined about: her statements to police; her admission to them that the appellant had shown her a painting about Tom Pat Fu; and the fact that the appellant had told her that the painting he had could be sold at a profit.
It was put to the jury on the appellant’s behalf that: they would have serious doubts about the evidence of Ms Choi; there was simply nothing in writing to confirm the alleged loans to the appellant; the unlikelihood that Ms Choi would give someone she had only known a few months such large amounts of cash unless it was for some other purpose such as to obtain the painting; the evidence of other witnesses supported the appellant’s possession of paintings; Ms Choi expected to marry the appellant, and the jury would accept that she could have the money and the painting; the only person who was deceived was Ms Choi’s husband; the inconsistent statement made to the security officer that the appellant had told her he had family problems linked to money, and not that he needed money for pharmaceuticals.
The Appeal

5 The appellant filed five grounds of appeal. He also filed a written submission which deals with some of those grounds, and adds a significant amount of new material. He presented lengthy oral argument at the hearing. The Crown prosecutor furnished helpful and detailed written submissions in response to the appellant’s written material, and was content to rely upon those submissions at the hearing. In the event, I do not believe that I would do disservice to the arguments of either of them by dealing with the matter relatively briefly.

Ground 1

6 The effect of the first ground of appeal is a complaint that the trial judge directed the jury that their verdicts must be unanimous, and did not explain that they could be discharged if they were unable to agree. The short answer to that ground is that no occasion for such an explanation arose at the trial. The jury might have been told of the possibility of discharge if they had conveyed to the judge that they were having difficulty agreeing upon verdicts and his Honour had given them a direction in accordance with Black v The Queen (1993) 179 CLR 44. However, they did not convey any such difficulty. Indeed, they returned with verdicts after a retirement of only one hour and twenty-two minutes.

Ground 2

7 The second ground relates to a document which was in evidence as exhibit C. The document was written by the appellant and expressed his intention to marry Ms Choi. He signed it. She also signed it, firstly in a different name and then in her own name. She gave evidence of why she did so, the effect of which, as I understand it, is that she did not take the document seriously. She said that the document came into being before she provided any money to the appellant.

8 The ground of appeal complains that the jury sent a question to the trial judge, asking what was implied by the “fraudulent signatures on the promise to marry”, to which the judge responded that it did not matter. However, the transcript records no such exchange. It does record that during the summing-up the jury sent a note to his Honour requesting “a translation” of the document “in relation to the two signatures”. This led his Honour to remind them of Ms Choi’s evidence about the document. That, of course, was entirely appropriate.

Ground 3

9 The summary of the evidence set out above refers to the “incident report” prepared by the security guard to whom Ms Choi spoke on 19 July 1999. That document also was in evidence, as exhibit A. On the face of it, two matters contained in it were inconsistent with Ms Choi’s evidence at the trial, and she was cross-examined about that. As to one of them, she denied having said what was recorded in the document. She had spoken to the security officer through an (unqualified) interpreter.

10 The third ground claims that, in relation to “a huge discrepancy” between the incident report and Ms Choi’s evidence, the judge had said that “it might be a mistake made by the interpreter…”. It is not necessary to recite the detail of the inconsistencies about which Ms Choi was cross-examined. It is sufficient to say that they could not readily be described as “a huge discrepancy”. More importantly, the appellant does not identify any part of the transcript in which his Honour said the words attributed to him about a mistake made by the interpreter. When dealing generally with the incident report in the summing-up, he invited the jury to bear in mind that it had been obtained through an interpreter. There the matter appears to have rested and, again, this was entirely appropriate.

Ground 4

11 The fourth ground relates to the appellant’s understanding of the trial proceedings. It complains that the interpreter at the trial spoke Cantonese while he spoke Mandarin, and that the judge refused a request by his counsel to change the interpreter. Again, the transcript does not record any such exchange between counsel and the trial judge. Morevover, it is contradicted by the affidavit of the appellant’s solicitor at the trial, who is also Chinese and, I take it, fluent in Mandarin. It appears that, in fact, there were two interpreters during the course of the trial and the solicitor had no difficulty understanding either of them.

Ground 5

12 The fifth ground alleges a lack of capacity and competence on the part of counsel who appeared for the appellant at the trial. It is sufficient to say that that complaint is answered effectively by an affidavit of counsel, and there is nothing in the record of the trial to suggest other than that the appellant’s case was conducted diligently and ably.

Other matters

13 In his written submission, the appellant also made an allegation against his solicitor about a matter unconnected with the conduct of the trial. He produced no evidence to support the allegation, and it is denied in the solicitor’s affidavit. As it does not bear upon the conduct of the trial, it is of no present relevance.

14 The appellant also complains in the written submission that his solicitor and counsel did not allow him “to speak and defend himself during the hearing”. This, no doubt, is a reference to the fact that he did not give evidence. However, the transcript records a statement by counsel after an adjournment that the appellant had provided instructions that he did not wish to give evidence. Moreover, annexed to the affidavits of both the solicitor and the barrister are copies of written instructions to that effect signed by the appellant and attested to by an interpreter.

15 The written submission complains of other things alleged to have been said by his Honour during the summing-up. Yet again, the statements complained of do not appear in the transcript. It is also said that two questions asked by the jury were not answered, but from the transcript it appears that any question that was asked was answered. Finally, complaint is directed to an observation which his Honour made in the course of referring to evidence relating to the painting. His Honour did make the observation but it was within his province to do so and, in any event, he made it clear that it was a matter for the jury to assess.

16 Otherwise, the written submission and the appellant’s oral argument amounted to a criticism of the evidence in the trial, and the assertion that certain material not produced at the trial was inconsistent with Ms Choi’s evidence or supported his account of relevant events. Argument was directed, in particular, to the evidence about the painting, about his departure from Sydney in July 1999 and the phone call said to be from Beijing, and about his relationship with Ms Choi. He sought to impugn her credibility generally.

17 In so far as he relied upon material not led at the trial, or issues not raised at the trial, he has provided no basis for this Court to receive and consider that material as fresh evidence. Some of them are matters about which he might have given evidence if he had chosen to do so, although it must be said that in large part they were of peripheral relevance only. Otherwise, his criticisms of the evidence were the subject of cross-examination and were dealt with by counsel in their addresses, and were for the jury to assess. It is sufficient to say that nothing he raised could provide any justification for the verdict being set aside.

18 I would dismiss the appeal.

19 KIRBY J: I agree with Hidden J.

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