Lin v The Queen

[2016] HCATrans 30

[2016] HCATrans 030

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S167 of 2015

B e t w e e n -

HENG‑SHENG LIN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 FEBRUARY 2016, AT 11.03 AM

Copyright in the High Court of Australia

MR P.D. LANGE:   Your Honours, I appear on behalf of the applicant.  (instructed by Law Corporation Pty Ltd)

MR R.J. BROMWICH, SC:   May it please the Court, I appear for the respondent with my learned friend, MR K. D. GINGES.  (instructed by Commonwealth Director of Public Prosecutions)

BELL J:   Yes, Mr Lange.

MR LANGE: Thank you, your Honours. This application, in my submission, raises a point of general importance. Your Honours will have noted that it concerns the interpretation to be given to section 400.9 of the Criminal Code (Cth) and to what must be proved and, preceding that, what must be particularised by the prosecution. It is the offence to which regard is ordinarily had when money is found in a large quantity, for instance, or transactions are discovered but otherwise there is no evidence as to the source or the purpose of such funds.

BELL J:   Mr Lange, this is an application for special leave to appeal from a determination of an interlocutory matter ‑ ‑ ‑

MR LANGE:   That is so.

BELL J:   ‑ ‑ ‑ by the Court of Criminal Appeal.  What feature is there of this application, Mr Lange, that would justify the grant of special leave in those circumstances?

MR LANGE:   Dealing with the fragmentation issue head on, putting aside the importance, we say, of the construction is the following feature, that of course, having regard to the background set out in both my and my learned friend’s written submissions, it will become clear that the central focus of any defence would be the ability of the prosecution to establish, if our argument be correct, that there is some connection to an indictable offence.  In order to preserve such point in view of the finding – holding, I should say, of the Court of Criminal Appeal, to preserve such a point it would be incumbent upon this applicant to in effect run a trial, and based on your Honour’s reasonings earlier this week it would have to be a jury trial occasioning significant expense and inconvenience to both the court and the public more generally.

BELL J:   Whenever an interlocutory determination is adverse to an accused the argument is if the High Court does not take the matter on at that point there will be a long and costly trial, and would it not be convenient to avoid that?  What feature is there beyond the proposition that if leave is not granted you will proceed to trial to justify the grant at this point?

MR LANGE:   Might I say that ordinarily in cases where fragmentation is the central focus for refusal of a grant of special leave there are - or at least there is in theory, the possibility that a jury might otherwise acquit based on the sufficiency of evidence or otherwise, there can be other arguments which are raised.  In this particular case the argument now presented before this Court is the central argument.  It is for that reason, in my submission, that it is one which will trouble the Court invariably ultimately.

It is not a situation where there may potentially be an acquittal, as in other cases, and therefore particularly in view of the fact that there has already been considerable delay – and I appreciate that that is a double‑edged submission – that the additional delay which would be occasioned by a grant would not greatly fragment the criminal process further than it already has been.

Your Honours will see that leave was granted by the Court of Criminal Appeal.  It was of course open to their Honours as well to say in view of the fragmentation that leave would be refused.  The argument was heard in its entirety on the merits and as a result leave was granted and, in my submission, given the central focus of the trial on this particular issue, in my submission, the Court would not consider that fragmentation stands in the way of the application.  I think that is all I can say on that particular aspect.

BELL J:   Thank you, Mr Lange.

MR LANGE:   That is all I wish to say on the fragmentation aspect.

BELL J:   Yes, all right, very well.

MR LANGE:   On the substance which, in my submission, too is a matter which this Court ought to take into account if it be a case where there is substantial prospects of – a prospect of finding in favour of the applicant, that too ought to weigh in favour, in my submission, of a grant of special leave, particularly because it will have an impact upon other cases pending across the Commonwealth and, indeed, may have an impact on cases in State jurisdictions. 

As your Honours, particularly Justice Bell, will be aware, there is very similar legislation enacted by the State in section 193C of the Crimes Act which also deals with property reasonably suspected of being the proceeds of crime.  Therefore this is, in my submission, a case of general importance.

Under section 400.1, which is set out at page 54 of the application book, your Honours will see that that is the section containing the definitions and might I start with the introductory three words, “In this Division”, which appear at line 20 on page 54.  That is, the following definitions obviously apply across the board to all offence provisions in Division 400.

At page 55 at about line 35 one sees the definition of “proceeds of crime”. I will not read it out, but the Court will observe that it refers specifically to an indictable offence, and that is what distinguishes proceeds of crime from general property which might otherwise be derived from crime, such as summary crime. It requires identification of an indictable offence. One then turns to section 400.9 at page 65 of the application book and your Honours will there observe in subsection (1)(b) the requirement that:

it is reasonable to suspect that the money or property is proceeds of crime –

We submit this is an important inclusion which distinguishes this offence from the ordinary goods in custody offence, such as section 527C of the Crimes Act (NSW) and similar offences also found in Queensland, that the legislature has quite expressly made reference to proceeds of crime rather than, as is provided in the defence, a reference to property derived or realised directly or indirectly from some form of unlawful activity.

I submit that is a significant inclusion because plainly if the legislature had intended to expand the provision to include all property, such as under 527C which refers to property stolen or otherwise unlawfully obtained, there would be no reason to include the words “proceeds of crime” as distinct from “property derived from some form of unlawful activity”.  It is said against ‑ ‑ ‑

BELL J:   How do you address the reasoning of the Court of Criminal Appeal at application book 38, paragraph 26, with reference to the construction of the provision in light of subsection (2)?

MR LANGE:   In my submission, what her Honour Justice Simpson there said is that the intention of the legislature is as set out in the very first sentence, to expand 400.9 not simply to matters dealing with indictable offences but, indeed, any crime potentially, and her Honour of course in paragraph 25 made express reference to subsections 2(c) and (e) which may not involve the commission of any criminal activity whatsoever.

In my submission, that is such a different provision from one which is contained in a series of provisions dealing with proceeds of crime and a provision which makes express reference to proceeds of crime, that that was not in fact the intention of the legislature.  Rather, those matters are set out in subsection (2) in order to explain the circumstances in which the test of reasonableness contained in subsections (1)(b) and (1A)(b) are made out.  It is reasonable to have such a suspicion if any of the matters in subsection (2) are satisfied.  The further reason ‑ ‑ ‑

KEANE J:   So that, if any of the matters in subsection (2) are satisfied, then so is the element that it is reasonable to suspect that the money or property is proceeds of crime.

MR LANGE:   We contend not, your Honour Justice Keane.  That is what is put against us by the respondent and quite ‑ ‑ ‑

KEANE J:   Well, and by the words of the provision.

MR LANGE:   But, in my submission, one must not look to the context in which the words appear.  I accept, and I must accept, that the plain wording of the statute immediately draws one to the wording of subsection (1)(b) and the satisfaction by such matters is contained in subsection (2).  But, in my submission, when one looks at the context of the section, one realises at that stage that that was not the intention of the legislature.  The further reason I advance is set out in the written submissions and is helpfully analysed by my learned friend in his written submissions.

Might I perhaps take your Honours also, apart from subsection (2) on page 66, to the analysis in the respondent’s written submissions at pages 80 and 81?  In particular, I have made reference in the written submissions to subsection (2)(ba) and (d) which also make express reference to offence provisions within other legislation.  It is said by Justice Simpson in the Court of Criminal Appeal’s decision and by the respondent that to criminalise conduct in two different sections is uncontroversial, and that much was said in Elias’ Case.  I do not say otherwise here.  But what I do say is that it is an unusual form of legislative drafting to include express reference to another statute.  One takes, for instance, subsection (2)(ba):

section 139 . . . of the Anti‑Money Laundering and Counter‑Terrorism Financing Act2006 –

The conduct in any of those sections necessarily involves the dealing with money or property, therefore proof of section…..or 141 will inevitably overlap with proof of section 400.9(1)(a). The reasonableness in (b) is satisfied by the commission of such an offence. In other words, the elements are identical. At (c) there is then the distinction across the subsections depending upon the value of the property. In my submission, it is most unusual – indeed, I have not found any other statute, and I do not believe the Crown has pointed ‑ ‑ ‑

BELL J:   Whether it is usual or unusual, Mr Lange, what is it that would cause one to doubt the correctness of the analysis that Justice Simpson makes at the paragraph to which I directed your attention?

MR LANGE:   Your Honour, I think the answer to that is, as I asserted before, that it expands the ambit of the statute well beyond that which is intended.  It is a section, in my submission, which is intended to deal with proceeds of crime, hence the inclusion in subsection (1)(b).  To allow it to be interpreted as expansively as her Honour Justice Simpson did in paragraph 26 would permit the casting of an onus in respect of an indictable offence carrying a significant term of imprisonment - three years under subsection (3); two years under subsection (1) – where no unlawful conduct may have occurred whatsoever.  That is particularly in respect of subsections (2)(d) and (e).

For that reason, in my submission, it was not the intention of the legislature to capture lawful activity, but rather to capture lawful activity when there is this additional suspicion that the conduct involves – I use the term loosely – a connection to proceeds of crime.

If I might just return to the submission I was making, your Honour, in respect of the unusual construction, that, in my submission, is an indication that it was not the intention of the legislature simply to criminalise the equal conduct under two sanctions.  My learned friend at paragraph 18 on page 80 of the application book refers to an example which, in my submission, demonstrates the distinction to be drawn.  He points to the Social Security Act 1947 which dealt with offences involving obtaining of benefits, contrary to obviously entitlements under the Act, and general fraud‑type offences under the Crimes Act, sections 29A to D, as it once stood.

That is a typical example, in my submission, where the conduct may be criminalised by different statutes and be made subject to different levels of punishment. Here, however, one has an express reference to the other statute and therefore one sees section 400.9, if the respondent’s construction be correct, simply saying if you commit an offence, contrary to section 139 of the Anti‑Money Laundering Act, you are guilty of a further offence as well and, in my submission, that too demonstrates why the construction contended for by the applicant ought to be accepted and why the Court of Criminal Appeal erred.

BELL J:   Thank you, Mr Lange.  We do not need to hear from you, Mr Bromwich. 

We are of the opinion that the application does not present a question which would make it appropriate to further fragment the criminal trial process.  Special leave is refused.

MR LANGE:   If the Court pleases.

AT 11.17 AM THE MATTER WAS CONCLUDED