Yu v New Zealand Customs Service

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?

CaseChat Overview and Summary

The case of Xiaosheng Yu versus the New Zealand Customs Service arose from the appellant’s conviction in the District Court for failing to report the movement of cash out of New Zealand, which was contrary to section 106 of the Anti-Money Laundering & Countering Financing of Terrorism Act 2009. The appellant was fined $800 plus court costs and subsequently appealed to the High Court against both the conviction and the sentence. The appeal was heard and, in part, determined by Justice Duffy. Initially, the appellant contested the conviction on the grounds that he had not committed the actus reus of an offence under section 106, and that the District Court Judge was wrong to refuse to discharge him without conviction. Upon review, Justice Duffy concluded that the appeal against conviction was dismissed, and the appeal against sentence was abandoned, resulting in the appeal being struck out.

The legal issues before the court involved interpreting the actus reus of an offence under section 106 of the AMLCFT Act, the timing of when cash is considered "moved out of New Zealand" for the purposes of the offence, whether there can be an attempt to commit an offence under section 106, and whether the information as framed constituted a nullity. Justice Duffy considered these questions, focusing on the statutory language and the appellant's actions. The court found that the questions raised were significant and warranted further examination by a higher court.

Justice Duffy granted leave to appeal to the Court of Appeal on the specified questions of law. The respondent conceded that the proposed questions were appropriate for leave to be granted. Justice Duffy found that the questions met the test for the grant of leave to appeal, emphasizing their importance in the interpretation of the AMLCFT Act and the potential implications for future cases. The court provided detailed reasoning for its decision, highlighting the need for clarity in these legal issues to ensure consistent application of the law.

The final orders of the court granted leave to appeal to the Court of Appeal on the specified questions of law, allowing the appellant to pursue further judicial review of the interim judgment. This decision paves the way for a more comprehensive examination of the legal principles at issue, potentially influencing the interpretation and application of section 106 of the AMLCFT Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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