R v Zhang [2023] NSWDC 229

District Court New South Wales

Medium Neutral Citation: R v Zhang [2023] NSWDC 229 Hearing dates: 14 June 2023 Date of orders: 14 June 2023 Decision date: 14 June 2023 Jurisdiction: Criminal Before: Newlinds DCJ Decision: Appeal dismissed Catchwords: Appeal from Local Court Legislation Cited: Crimes Appeal and Review Act 2001 (s 18) Criminal Code Act (1995) (Cth), s 400.4(2) Crimes Act NSW 1900, s 192(e) s 400.4 of the Criminal Code s 400.4 of the Criminal Code Act 1995 Cases Cited: Chen v Director of Public Prosecutions [2011] NSWCCA 205 Xue v R [2021] NSWCCA 270 Category: Procedural rulings Parties: Hongjian Zhang (Applicant) NSW Police (Defendant) Representation: Counsel:

J Park (Applicant) M Phillipson (NSW Police)

Solicitors: Sunsolis Legal (Applicant) NSW Police (Defendant) File Number(s): 2022/311588 Publication restriction: None

JUDGMENT – EX TEMPORE 1. HIS HONOUR: This is an appeal from a decision of a Local Court magistrate brought under s 18 of the Crimes Appeal and Review Act [2001]. 2. The matter was heard before Magistrate Guy on 10 August 2022 at the conclusion of which the Applicant was found guilty of the offence of dealing with money in circumstances where there is a "risk that the money is an instrument of crime value less than $100,000 pursuant to s 400.4(2) Criminal Code Act [1995]". 3. The primary facts are largely agreed, it is what inferences can be drawn from those primary facts which divides the parties and for reasons that I will come to, there is perhaps a question of the proper construction of s 400.4(2) that I may need to resolve. 4. The proved facts are as follows and I take this from the Offender's own explanation of his conduct. 5. The Offender at the time of the offence was a 28 year old man who was out of work as at June 2020. He was apparently at a casino where he met an older Chinese man. That older man asked the Offender whether he knew English and whether he was able to deposit money into ATM machines at banks. The Offender told him that he was. The older man contacted the applicant thereafter from time to time, offering him jobs which involved the Offender being given cheques by the older man which he would then deposit into accounts as per the older man's instruction. For this service the Offender received between $100 to $300 cash for each deposit. 6. The Offender gave evidence and said that he believed the man operated a construction business and that he did not know depositing a cheque or series of cheques was an offence and said that he did know that the ATM's were monitored by security cameras. Finally, he said that the reason he carried out the tasks for the older man was because he liked to help other people as well as needing the money. 7. In short, it is common ground that the appellant took money from a stranger and deposited that money on behalf of that other person into various bank accounts. 8. When opening the case before the magistrate, the prosecution defined what the cases seem to refer to as the "predicate" offence as fraud as described by s 192E of the Crimes Act New South Wales. 9. The elements of s 400.4(2) are all conceded to have been made out other than the element of "recklessness". 10. Section 5.4 of s 400 is in the following terms: 1. A person is reckless with respect to a circumstance if (a) he or she is aware of a substantial risk that the circumstance exists or will exist and (b) having regard to the circumstances known to him or her it is unjustifiable to take the risk. 1. In context "the circumstance" is a reference back to the definition of instrument of crime in s 400. 2. It has been held by high authority that "substantial risk" means something more than a fanciful risk, or to put it another way, a real risk. 3. It is therefore a relatively low bar for the Prosecution to satisfy. 4. Obviously, if the Offender's evidence were to be accepted then there would have to be an acquittal. The Offender gave direct evidence that he did not suspect that there was anything untoward with what he was doing at all. 5. Like the magistrate, I do not accept the Offender's explanation as to his state of mind. I find his explanation entirely implausible. 6. That of course does not mean that the Prosecution has proved its case beyond reasonable doubt. I am then left to consider in the usual way whether in the circumstances the Prosecution has satisfied me based on inferences drawn from the primary facts proved that the Offender was on notice that there was a substantial risk that what he was doing was facilitating the commission of an offence, in particular fraud under s 192(e). 7. The magistrate concluded his reasoning at p 45 of the transcript after reviewing the facts and concluding that he considered the Offender's evidence implausible and rejected it. "There is overwhelming evidence that the defendant would have been on notice that there was something gravely suspicious and more about what he was doing. I am satisfied to the requisite standard that firstly when he dealt with the money clearly there is a risk and it is proved in fact it was but there was a risk that the money would become an instrument of crime. It is established as being the case, he was reckless as to the fact that there was a risk that there would become an instrument of crime". 1. I respectfully agree with the magistrate's analysis. 2. To my mind there is no other rational explanation for what the appellant was doing other than he was engaging in conduct so as to allow himself to become an instrument in a crime. 3. Of course, it is not necessary for the prosecution to prove the matter to that level. I am satisfied that at the very least he was aware that there was a substantial risk, that is a risk beyond mere speculation that what he was doing was being an instrument of a fraud. 4. I have been taken to and have carefully considered the decisions of Chen v Director of Public Prosecutions [2011] NSWCCA 205 and Xue v R [2021] NSWCCA 270. 5. I do not think either case is really on point. 6. Chen is authority for the proposition that it is not open to the Prosecutor to bring a claim (under s 400.4 of the Criminal Code Act 1995) without identifying by way of particulars a particular offence as being the crime about which the accused was aware of the "substantial risk". In that case, the Prosecution did not identify with any particularity at all any particular offence (sometimes referred to as the predicate offence). It was held that is something that the Prosecution is bound to particularise and prove notwithstanding the words of s 400.13 of the Criminal Code which on a first reading might suggest the contrary. 7. Xue distinguishes Chen but only in relation to charges brought under s 400.9 and otherwise confirms the ratio of Chen. 8. None of that interesting area of discourse has anything really to do with this case. That is because, as I have attempted to make clear, the prosecution in this case did identify a particular crime which it was said s 400.4 related to, viz s 192E fraud, and therefore the question simply becomes a question of proof. Before the magistrate the fraud was actually found. 9. Mr Park's [for the appellant] final level of submissions really boiled down to this; that whilst I might be satisfied that the Offender was aware of a substantial risk that an indictable crime (generally) existed that was not enough for the Prosecution to succeed because one could not rule out that indictable crime might be something other than fraud. 10. As I have said I do not really need to decide whether that is correct as a matter of law or not and what level of proof may be thrown on the prosecution to prove the matter at that stage. In this case I am satisfied beyond reasonable doubt, like the magistrate was, that the Offender was at least aware of a substantial risk that he was involving himself and becoming an instrument in the crime of fraud. 11. Accordingly, my orders are in relation to the conviction appeal to dismiss the appeal and if necessary to confirm the orders of the magistrate which brings me to the question, is there a penalty appeal? PARK: Court pleases, can I have a brief five minutes. HIS HONOUR: Most certainly, just remind me though what was the penalty imposed? PARK: Community Corrections Order with record of conviction for 18 months. Essentially it is a good behaviour bond to be on a condition that he be of good behaviour for 18 months. HIS HONOUR: Did he have a clean record before this? PARK: Yes, he had no record. SHORT ADJOURNMENT PARK: Thank you your Honour for that time, I am instructed to withdraw the severity appeal. HIS HONOUR: Do I just need to make a note that or should I dismiss it as well? PARK: Your Honour dismiss. 1. HIS HONOUR: The only orders I will make are : 1. I dismiss the appeal. 2. I confirm the orders made by Magistrate Guy on 10 August 2022.