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Court of Criminal Appeal 5 April 2017

Cheng v R

[2017] NSWCCA 63

Fraud & dishonesty
CRIMINAL LAW STATUTORY OFFENCE SCOPE OF SUCH INTENTION PROOF OF OFFENCE TEMPORAL SEPARATION ESTABLISHED INSTRUMENTAL CONNECTION ESTABLISHED

Citation: Cheng v R [2017] NSWCCA 63
Court: NSW Court of Criminal Appeal
Date: 5 April 2017
Judge(s): Hoeben CJ at CL; Walton J; Price J

Background

The appellant was convicted in the District Court of dealing with money intending that it would become an instrument of crime, contrary to s 400.3(1)(b)(ii) of the Criminal Code (Cth). Between May and July 2012, he conducted 11 transactions at registered money remitters, converting a total of AU$1,098,066 in cash into Chinese currency and transferring it to bank accounts in China. On each occasion, he identified himself using a false name and fabricated identity documents.

The underlying indictable offence that the Crown relied upon was s 140 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), which makes it an offence to commence receiving a designated remittance service using a false customer name. The appellant was sentenced to 2 years and 9 months' imprisonment, with release after 15 months upon entering into a recognizance.

The appellant did not contest the facts at trial, and his counsel made no submissions on guilt. The appeal challenged only whether the evidence was legally capable of sustaining a conviction under the provision.

  • Whether a sufficient temporal separation existed between the dealing with the money and its intended use as an instrument of crime, as required by s 400.3(1)(b)(ii)
  • Whether a sufficient instrumental connection existed between the money and the commission of the s 140 offence

Decision

Temporal separation: The appellant argued that because the act of possessing the money and the act of remitting it occurred in a single, seamless transaction, there was no temporal separation between the dealing and the intended future use of the money. The Court rejected this argument. The relevant "dealing" under s 400.2(a) was the appellant's possession of the cash. That possession necessarily preceded the remittance transaction, which was the intended future use of the money. The Court found that this sequence satisfied the temporal separation requirement confirmed by the High Court in Milne v The Queen [2014] HCA 4.

Instrumental connection: The appellant also argued that the money was not "used" in the commission of the s 140 offence in any meaningful instrumental sense. The Court rejected this as well. The s 140 offence involves commencing to receive a designated remittance service using a false name. The transfer of money was integral to that service: without presenting the cash, the appellant could not receive the remittance service at all, and without receiving the service under a false name, the offence could not be committed. The money was therefore directly instrumental to the commission of the offence.

The Court also noted that, in any event, s 400.3(1)(b)(ii) is directed at the appellant's intention at the time of the dealing. The prosecution needed to establish that the appellant intended the money would become an instrument of crime. The evidence of 11 repeated transactions, each deliberately conducted under a false identity, was plainly capable of establishing that intention. Actual commission of the s 140 offence was not a necessary element of the charge.

Orders Made

• The appeal is dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the "dealing" element of s 400.3(1)(b)(ii) can be satisfied by possession of cash that immediately precedes a remittance transaction, provided the possession is temporally distinct from the intended future use of that money.
  • A sufficient instrumental connection between money and a predicate offence exists where the transfer of the money is integral to the very transaction that constitutes the offence, such that the offence could not be committed without it.
  • Under s 400.3(1)(b)(ii), proof of the accused's intention that the money will become an instrument of crime is sufficient; it is not necessary to prove that the predicate offence was actually completed.
  • Repeated conduct across multiple transactions, each carried out using false identity documents, was held capable of establishing the requisite criminal intention beyond reasonable doubt.
  • In dismissing the appeal, the Court applied the High Court's construction in Milne v The Queen of the temporal separation requirement, confirming that even brief, sequential dealing and intended use can satisfy that requirement where the two elements are analytically distinct.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 400, 400.1, 400.2A, 400.3(1)(b)(ii), 400.12
- Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), ss 5, 6, 10, 140
- Crimes Act 1914 (Cth), s 20(1)(b)
- Financial Transaction Reports Act 1988 (Cth), s 31

Cases:
- Milne v The Queen [2014] HCA 4; 252 CLR 149
- Chen v Director of Public Prosecutions (Cth) [2011] NSWCCA 205; 83 NSWLR 224