Yu v New Zealand Customs Service

[2015] NZHC 1333

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-000332 [2015] NZHC 1333

BETWEEN

XIAOSHENG YU

Applicant

AND

NEW ZEALAND CUSTOMS SERVICE Respondent

Hearing:	12 June 2015
Appearances:	DPH Jones QC for applicant D Johnstone for respondent
Judgment:	12 June 2015

ORAL JUDGMENT OF DUFFY J [on application for leave to appeal]

Counsel:            DPH Jones QC, Auckland

Solicitors:           Meredith Connell, Auckland

YU v NEW ZEALAND CUSTOMS SERVICE [2015] NZHC 1333 [12 June 2015]

[1]      The appellant, Xiaosheng Yu, was convicted in the District Court for failing to report cash moved out of New Zealand contrary to s 106 of the Anti-Money Laundering & Countering Financing of Terrorism Act 2009 (the Act).  He was fined

$800 plus Court costs.   He appealed to this Court against the conviction on the ground he had not committed the actus reus of an offence under s 106 of the Act, and on the further ground that the District Court Judge was wrong to refuse to discharge him without conviction.  On 24 March 2015 I delivered an interim judgment1 which dealt with the first ground of appeal.  The appeal was then adjourned part heard in order to allow Mr Yu an opportunity to put additional material before the Court in support of his second ground of appeal.

[2]      When the appeal resumed before me today I was advised that the second ground of the appeal was abandoned.  In view of the conclusions I reached in my interim judgment, it follows that the appeal against conviction is dismissed.   The appeal against sentence is abandoned, and accordingly this appeal is struck out.

[3]      Mr Yu now wants to pursue an appeal to the Court of Appeal in respect of the interim judgment.  Leave to appeal is required.

[4]      The respondent concedes that the proposed questions of law for which leave to appeal to the Court of Appeal is sought are appropriate questions of law for leave to be granted.  I have considered them; I also consider that they meet the test for the grant of leave to appeal.  Accordingly, leave to appeal is granted on the following questions of law:

(a)      For  an  offence  under  s  106  of  the  Anti-Money  Laundering  & Countering Financing of Terrorism Act 2009 (AMLCFT Act) is the requirement that cash has been moved into or out of New Zealand part of the actus reus of the offence?

(b)      Under s 106 of the AMLCFT Act, at what point is accompanied cash

“moved out of New Zealand”?

1      Yu v New Zealand Customs Service, CRI-2014-404-000332, High Court Auckland.

(c)       Is it possible to have an attempt to commit an offence under s 106 of the AMLCFT Act?

(d)      Was the information as framed a nullity?