R v Wong [2001] NSWCCA 444

New South Wales Court of Criminal Appeal

CITATION : R v Wong [2001] NSWCCA 444 FILE NUMBER(S) : CCA 60309/01 HEARING DATE(S) : 1 November 2001 JUDGMENT DATE : 1 November 2001

PARTIES : Regina v Kai Chee Wong JUDGMENT OF : Ipp AJA at 48; Studdert J at 1; Greg James J at 50

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0462 LOWER COURT JUDICIAL Shadbolt DCJ OFFICER :

COUNSEL : L.M.B. Lamprati (Crown) S.L. Bell (Appellant) SOLICITORS : S.E. O'Connor (Crown) Ian B. Mitchell (Appellant)

LEGISLATION CITED : Crimes Act Evidence Act M v The Queen (1994) 181 CLR 487 CASES CITED: R v Birks (1990) 19 NSWLR 677 Browne v Dunn (1894) 6 R.67 (HL) Allied Pastoral Holdings Pty Limited v The Federal Commissioner of Taxation (1983) 44 ALR 607 DECISION : Appeal dismissed.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

60309/01 IPP AJA STUDDERT J GREG JAMES J

Thursday 1 November 2001 REGINA v KAI CHEE WONG

Judgment 1 STUDDERT J: The appellant, Kai Chee Wong, stood trial in the District Court charged with an offence under s 176A of the Crimes Act of defrauding the Australian and New Zealand Banking Group Limited (ANZ) in his dealings with that bank when acting in his capacity as a director of Strategic Commodities Pty Limited. After a trial of five days, the jury found the appellant guilty and following his conviction an order was made that he enter into a good behaviour bond for a period of two years. 2 The appellant appeals against his conviction. 3 On the Crown case, the opportunity for the appellant to defraud ANZ arose when the bank duplicated a transaction involving the sum of $US288,562.50 ($AUD431,269.62) and the appellant acted on the bank's error to his own advantage by a series of investments. 4 The evidence disclosed that the appellant had considerable experience in working for banks and he had acquired a working knowledge of international banking transactions. The appellant came to Australia in 1987 and at the time of the alleged offence, and for some considerable time before that, he was employed by Pacific Asia Merchandise Pty Limited (PAM) in which Liu Chiu Wah had a controlling interest. Liu was the general manager and the appellant managed the paperwork for trade transactions and for investments. The appellant also performed clerical and administrative duties for a number of companies Liu had set up, which included Strategic Commodities Pty Limited, the company named in the indictment. 5 The appellant was a director of Strategic Commodities as well as being the manager of it. Strategic Commodities and other companies controlled by Liu were intermediaries for the sourcing of goods and commodities to sell to PAM and the goods were generally obtained from a company in Hong Kong called Wealth Court Limited, also controlled by Liu. According to the appellant, Liu carried out the necessary dealings and advised the appellant through which of the intermediary companies the arrangements were to be made, and then it was for the appellant to do the necessary administrative work. Ms Liu did not give evidence at the trial. 6 Strategic Commodities had its bank account with the ANZ Bank. The procedure for a typical transaction appears to have been that Liu would inform the company picked as the intermediary that money was to be received for a particular commodity and that intermediary would be directed to pay most of the money to Wealth Court through a designated bank in Hong Kong. The intermediary company would retain a modest commission. When Strategic Commodities was the intermediary company it would send a letter to ANZ directing what was to occur to the moneys being received by ANZ. The letter Strategic Commodities used to write to ANZ giving directions appears to have followed a standard format as reflected in the six examples tendered at the trial as Exhibit A and in Exhibit B. 7 In the erroneous transaction earlier mentioned, the bank credited $AUS431,269.62 to the ANZ account of Strategic Commodities. 8 The circumstances in which this occurred were addressed at length in the evidence at the appellant's trial. Suffice it to say here that an ANZ employee misunderstood an internal bank communication and failed to make such internal inquiries which would have revealed that that same amount had, on instructions from Strategic Commodities, been paid to Wealth Court on 21 June 1999 (except for a modest commission payment deposited to Strategic Commodities ANZ account). 9 The instruction on which the bank had acted was conveyed in a letter from Strategic Commodities dated 17 June 1999 which became Exhibit B: "We are expecting to receive a TT of US$28,562.50 in our favour from Sydney. We have requested them to forward these funds to us through your goodselves. Upon receipt of these funds kindly remit funds as follows: