Xiaosheng Yu v New Zealand Customs Service
| Jurisdiction | New Zealand |
| Judge | Miller J |
| Judgment Date | 20 April 2016 |
| Neutral Citation | [2016] NZCA 140 |
| Docket Number | CA389/2015 |
| Court | Court of Appeal |
| Date | 20 April 2016 |
[2016] NZCA 140
Miller, Fogarty and Toogood JJ
CA389/2015
IN THE COURT OF APPEAL OF NEW ZEALAND
Appeal against conviction under s106 Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (AMLCFT Act) (Failure to report cash over applicable threshold value moved into or out of New Zealand) — the appellant was apprehended after passing through New Zealand Customs Service (Customs) checks but before boarding his overseas flight — he was found to be carrying Chinese Yuan amounting to over $136,000 and which, the appellant admitted, belonged to him -the appellant was charged with an attempt under's 106 AMLCFT Act and s72 Crimes Act 1961 (Attempts) because the Customs believed the cash had not been taken out of New Zealand when the appellant was apprehended — whether the requirement under s106 AMLCFT Act that cash had been moved into or out of New Zealand was part of the actus reus of the offence — whether the accompanied cash had been “moved out of New Zealand” — whether it was possible to have an attempt to commit an offence under s106 of the AMLCFT Act.
DPH Jones QC for Appellant
I R Murray for Respondent
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A The questions of law are answered as follows:
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(a) For an offence under's 106 of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 is the requirement that cash has been moved into or out of New Zealand part of the actus reus of the offence?
Answer: Yes.
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(b) Under's 106 of the Anti-Money Laundering and Countering Financing of Terrorism Act, at which point is accompanied cash “moved out of New Zealand”?
Answer: When the person takes the cash out of New Zealand.
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(c) Is it possible to have an attempt to commit an offence under's 106 of the Anti-Money Laundering and Countering Financing of Terrorism Act?
Answer: Yes.
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(d) Was the information as framed a nullity?
Answer: No.
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B The appeal is dismissed.
(Given by Miller J)
It is an offence to fail to make a cash report to a Customs officer disclosing cash of $10,000 or more 1 that a person moves or takes out of New Zealand. 2 Xiaosheng Yu failed to make such a report and was apprehended after passing through Customs checks but before boarding his overseas flight. A charge of attempting the offence was found proved. 3
The principal question on this appeal is whether the offence of moving cash out of New Zealand without making a cash report is complete on leaving the jurisdiction or after the last official opportunity to disclose the cash to a Customs officer at a Customs checkpoint. The answer matters because it is said to determine the ultimate issue: whether an attempt is impossible in law because the offence comprises an omission to do something.
The Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (the 2009 Act) was enacted to detect and deter money laundering and the
106 Failure to report cash over applicable threshold value moved into or out of New Zealand
A person commits an offence if the person fails, without reasonable excuse, to make or cause to be made a cash report, in accordance with subpart 6 of Part 2, concerning cash over the applicable threshold value that the person has moved into or out of New Zealand.
The obligation to make such a report about the movement of cash into or out of New Zealand is found in s 68:
68 Reports about movement of cash into or out of New Zealand
(1) A person must not move cash into or out of New Zealand if—
(a) the total amount of the cash is more than the applicable threshold value; and
(b) the person has not given a report in respect of the movement of that cash in accordance with this subpart; and
(c) the movement of that cash is not exempted under this Act or regulations (if any).
(2) For the purposes of this Act, a person moves cash into New Zealand if the person brings or sends the cash into New Zealand.
(3) For the purposes of this Act, a person moves cash out of New Zealand if the person takes or sends the cash out of New Zealand.
It will be seen that subs (3) specifies that a person moves cash out of New Zealand if the person takes or sends the cash out of New Zealand.
Section 70 specifies what form the cash report must take and when and to whom it must be made; that is, the report must be provided to a Customs officer at the same time as a departure card is presented:
70 Reporting requirements
A report under this subpart must—
(a) be in writing in the prescribed form; and
(b) contain the prescribed information; and
(c) be completed in accordance with regulations (if any); and
(d) be provided to a Customs officer,—
(i) in the case of accompanied cash, at the same time as a departure card is presented in accordance with section 126(2) of the Immigration Act 1987:
(ii) in the case of unaccompanied cash, before the cash leaves New Zealand.
The prescribed form of report is very detailed. It calls for details of the value of the cash, its destination or origin, its source, what it is to be used for, and if the person is moving cash on behalf of another person, the details of that other person. 6 We understand that a passenger is required to complete the form upon reporting the cash to a Customs officer by ticking the appropriate box on the departure card.
The facts are of narrow compass and undisputed. On 13 November 2012 Mr Yu went to Auckland International Airport with his wife, Hong Fang, and a friend, intending to travel to Hong Kong. They signed departure cards, were processed by Customs, and cleared the aviation security checkpoint. All that remained was to board their flight. At that point a Customs dog trained to detect large amounts of cash indicated on a bag carried by Ms Fang, and it was established that between them the trio were carrying substantial amounts of cash in Chinese yuan. All of it belonged to Mr Yu. Some of the cash, which was equivalent in value to NZD 136,452.24, was carried in their checked luggage.
Mr Yu was charged with an attempt under's 106 of the 2009 Act and s 72 of the Crimes Act 1961 because the New Zealand Customs Service (Customs) believed
the cash had not been taken out of New Zealand when he was apprehended. The information, which was laid under the Summary Proceedings Act 1957, charged that:Xiaosheng Yu … on 13 November 2012 … at Auckland, did commit an offence against [s]ection 106 & 112 Anti-Money Laundering and Countering Financing of Terrorism Act 2009 and section 72 & 311(1) Crimes Act 1961 in that you [a]ttempted to move cash over $9,999.99 out of New Zealand without first making a cash report to a Customs Officer.
Mr Yu was convicted after a defended hearing in the District Court 7 and his conviction was upheld on appeal by Duffy J, 8 who granted leave to appeal to this Court on questions of law. 9
The questions posed for the opinion of this Court are: 10
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(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?
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(b) Under's 106 of the AMLCFT Act, at what point is accompanied cash “moved out of New Zealand”?
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(c) Is it possible to have an attempt to commit an offence under's 106 of the AMLCFT Act?
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(d) Was the information as framed a nullity?
Mr Yu contends that movement of cash into or out of New Zealand is not part of the actus reus of the offence; that accompanied cash is “moved out of New Zealand” once the obligation to report has crystallised at the Customs check point; that the completed offence is a conduct offence as opposed to a results offence, meaning that it is not possible to charge attempt; and that the information was a nullity because it disclosed no offence and was incapable of amendment.
New Zealand is a signatory to the United Nations Convention against Transnational Organised Crime, which provides that states must criminalise money-laundering and should both take measures to detect cash moving across their borders and ensure that they can cooperate and exchange information about such movements with other states. 11 It is also a member of the Financial Action Task Force, an intergovernmental body that promotes the criminalisation o money-laundering, the establishment of investigative and enforcement powers, and the establishment of mechanisms to share information among counterparts. 12 A paper prepared by the Task Force explains: 13
37. International co-operation is usually demand driven and, since incoming travellers always arrive from somewhere, it is important that destination jurisdictions and jurisdictions of origin share information, both spontaneously and upon request, in relation to cross-border transportations of currency/[bearer-negotiable instruments (BNI)]. In particular, since one jurisdiction's outgoing traveller will be another jurisdiction's incoming traveller, it is best practice for the competent authorities to inform their overseas counterparts, in a proactive manner, of travellers who are known to be carrying significant amounts of currency/BNI and who are on their way to the other jurisdiction, especially where there is insufficient suspicion to restrain the currency/BNI or detain the traveller. Likewise, when a traveller arrives from an overseas jurisdiction with a significant amount of currency/BNI, it is also best practice to proactively...
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