Citation: R v Wing Cheong Li, Wing Cheong Li v R [2010] NSWCCA 125
Court: Court of Criminal Appeal, New South Wales
Date: 25 June 2010
Judge(s): Allsop P, Basten JA, McClellan CJ at CL, Simpson J, Barr AJ
Background
The respondent, a South American businessman, arrived in Sydney in April 2005 and was convicted after a month-long trial of dealing in money totalling approximately $2.6 million, which he believed to be the proceeds of crime. The offending involved collecting large quantities of cash from a property in Roseville, depositing funds across two banks, and directing transfers overseas. The money was linked to a South American drug trafficking network operating in Australia.
The respondent's defence was that the funds were legitimate payment for a Venezuelan land sale, structured informally to avoid currency instability. The jury rejected the innocent explanation and was satisfied that he believed the money was the proceeds of crime, even if it remained possible he was also owed a legitimate debt.
District Court Judge Woods QC sentenced the respondent in July 2008 to 12 years' imprisonment with a non-parole period of 8 years. Both the Crown and the respondent appealed: the Crown argued the sentence was inadequate, and the respondent argued it was manifestly excessive.
Legal Issues
- Whether the sentence of 12 years (non-parole period: 8 years) for dealing in proceeds of crime exceeding $1 million was manifestly inadequate, as the Crown contended.
- Whether the same sentence was manifestly excessive, as the respondent contended.
- Whether the sentencing judge erred in assessing the amount of money involved and the applicable offence tier.
- Whether the sentencing judge gave insufficient weight to the respondent's bail conditions as a period of conditional liberty.
- Whether the sentencing judge adequately considered the respondent's subjective circumstances, including prospects of rehabilitation, prior good character, age, family ties, and isolation.
Decision
The Court of Criminal Appeal dismissed both appeals, leaving the 12-year sentence intact. Barr AJ, with whom all other members of the Court agreed, delivered the principal judgment.
On the Crown appeal, the Court found no error in the approach taken by Judge Woods. The offence involved an extremely large sum, and the sentence reflected the seriousness of professional money laundering connected to major drug trafficking. The Crown did not establish that the sentence fell below the range appropriate for this category of offending.
On the respondent's appeal, the Court rejected the argument that the sentencing judge had misidentified the relevant offence tier by reference to the amount of money involved. The judge had applied the correct legal framework, proceeding on the jury's finding that the respondent believed the funds were proceeds of a serious indictable offence. The Court found that the judge had reasoned appropriately and had not drawn an impermissible inference solely from the quantum of money.
The Court also found no error in the treatment of bail conditions or subjective matters. The sentencing judge had considered in detail the respondent's lack of prior convictions, family circumstances, business losses, health, language and cultural isolation, and prospects of rehabilitation. The Court declined to infer a failure of proper weight from the length of the sentence alone.
Orders Made
- The Crown appeal is dismissed.
- Leave is granted to the respondent to appeal against his sentence.
- The respondent's appeal is dismissed.
Key Takeaways
- In dismissing both appeals, the Court of Criminal Appeal confirmed that a 12-year sentence with an 8-year non-parole period for dealing in approximately $2.6 million believed to be proceeds of crime was neither inadequate nor excessive in the circumstances.
- Where a jury convicts on the basis of the defendant's belief that money was proceeds of crime, the sentencing court is not required to make a definitive finding about the underlying offence, provided it proceeds on the jury's verdict and the directions given at trial.
- The parity principle, while potentially relevant to co-offenders charged with different offences, does not automatically justify sentencing intervention; the Court of Criminal Appeal noted that any error in such cases is more likely to manifest as a finding that a sentence is excessive in all the circumstances.
- Bail conditions, even those involving regular reporting obligations over an extended period, will not necessarily be treated as a period of conditional liberty warranting a reduction in sentence unless they are sufficiently exceptional.
- Detailed engagement with subjective factors at sentencing (including good character, rehabilitation prospects, family impact, and cultural isolation) does not preclude a substantial custodial term; an argument that insufficient weight was given to those matters is not made out merely by pointing to the length of the sentence imposed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth), s 16A
- Criminal Code Act 1995 (Cth), Part 10.2, ss 400.2, 400.3(1), 400.4, 400.5, 400.6, 400.7
- Financial Transaction Reports Act (Cth)
Cases:
- R v Ansari [2007] NSWCCA 204
- R v Huang [2007] NSWCCA 259
- R v Byrne [2010] QCA 33
- R v Trandy, Nguyen & Ors [2009] VSCA 321
- Maldonado v R [2009] NSWCCA 189
- R v Jimmy [2010] NSWCCA 60
- R v Siu [2007] NSWCCA 259
- R v Viana [2008] NSWCCA 188
- R v Chen [2009] NSWCCA 66
- R v George [2004] NSWCCA 247
- Postiglione v The Queen [1997] HCA 26
- R v Kerr [2003] NSWCCA 234
- Lowe v The Queen (1984) 154 CLR 606
- R v Rajapaski [2001] NSWCCA 126
- R v Formosa [2005] NSWCCA 363
- Pham v R [2009] NSWCCA 25
- R v Woodgate [2009] NSWCCA 137