Lin v R

Case [2015] NSWCCA 204 3 August 2015

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Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	Lin v R
Medium Neutral Citation:	[2015] NSWCCA 204
Hearing Date(s):	21 April 2015
Decision Date:	3 August 2015
Before:	Simpson J at [1]; R A Hulme J at [30]; Bellew J at [31]
Decision:	(1) Leave granted to appeal; (2) Appeal dismissed.
Catchwords:	CRIMINAL LAW - Criminal Code (Cth), s 400.9 - money laundering - notice of motion seeking indictment be stayed or quashed - motion dismissed - application for leave to appeal, Criminal Appeal Act 1912 (NSW), s 5F(3)(a) - dealing with money or other property reasonably suspected to be proceeds of crime - whether indictment defective without identification of class of indictable offences from which money is reasonably suspected of being proceeds - purpose of sub-s (2) - specifies various kinds of conduct proof of which is sufficient to satisfy s 400.9(1), Criminal Code (Cth) - expands operation of sub-s (1) - leave granted - appeal dismissed
Legislation Cited:	Crimes Act 1914 (Cth), s 4G Criminal Appeal Act 1912 (NSW), s 5F(3)(a) Criminal Code (Cth), s 4.1, s 400.2, s 400.3, s 400.4, s 400.5, s 400.6, s 400.7, s 400.8, s 400.9, s 400.13 Financial Transactions Reports Act 1988 (Cth), s 31
Cases Cited:	Ansari v R [2007] NSWCCA 204; 70 NSWLR 89 Chen v Director of Public Prosecutions (Cth) [2011] NSWCCA 205; 83 NSWLR 224
Category:	Principal judgment
Parties:	Heng-Sheng Lin (Applicant) Regina (Respondent)
Representation:	Counsel: G James QC/P Lange (Applicant) R J Bromwich SC/K Ginges (Respondent) Solicitors: Law Corporation Pty Ltd (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2013/374156
Decision under appeal:
Court or Tribunal:	District Court
Date of Decision:	16 October 2014
Before:	Hoy DCJ
File Number(s):	2013/374156

JUDGMENT

SIMPSON J: Pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), the applicant, Heng-Sheng Lin, seeks leave to appeal against an interlocutory decision of Judge Hoy in the District Court of 16 October 2014, dismissing a notice of motion pursuant to which the applicant sought that an indictment presented against him be “stayed or quashed”.

Background

By the indictment, the Director of Public Prosecutions (Cth) (“the Director”) charged the applicant with five counts of offences against s 400.9 of the Criminal Code (Cth) (“the Code”). Section 400.9 is set out in full below. Put shortly, sub-s (1) creates an offence of dealing with money or other property which, it was reasonable to suspect, was the proceeds of crime, and was of a value of $100,000 or more.
It is unnecessary to go into the facts alleged by the Director in any detail. He alleges that, on five occasions between 16 May 2013 and 12 September 2013, the applicant made arrangements to transfer money from Australia to a Hong Kong bank account. On each occasion, the amount in question exceeded $100,000. The total amount involved in the transactions was $2,845,000. Subsequently, when questioned by Federal Police, the applicant claimed that the money belonged to a person he…

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 Lin v R

Details

AGLC: Lin v R [2015] NSWCCA 204
Case: [2015] NSWCCA 204
Decision Date: 3 August 2015

CaseChat Overview and Summary

Lin sought to have a notice of motion dismissed which sought to stay or quash an indictment against him for money laundering. The court was required to determine whether the indictment was defective for not identifying the class of indictable offences from which the money was reasonably suspected of being proceeds. The court also needed to consider the purpose of subsection 2 of the relevant section of the Criminal Code, which specifies various kinds of conduct proof of which is sufficient to satisfy subsection 1.

The court found that the indictment was not defective as it was sufficient to specify that the money was reasonably suspected to be proceeds of crime without identifying the specific class of indictable offences. The purpose of subsection 2 was to expand the operation of subsection 1, and therefore, the indictment was valid. The court also found that the application for leave to appeal was successful as the question of law was of sufficient importance to warrant an appeal.

The final orders of the court were to dismiss the motion to stay or quash the indictment, grant leave to appeal, and dismiss the appeal. The court found that the indictment was valid and that the question of law was of sufficient importance to warrant an appeal. The appeal was ultimately dismissed as the motion to stay or quash the indictment was unsuccessful.

Orders