R v Jian Wen

Background

1. The Defendant faced trial on a multi-count indictment, including entering into a money laundering arrangement and possession of criminal property. The Defendant was alleged to have worked alongside another individual, Yadi Zhang, who had committed a fraud in China and purchased large volumes of cryptocurrency with the proceeds of that fraud.

2. The Defendant’s role was to launder the cryptocurrency and convert it into assets, ensuring that the source of the wealth used to purchase those assets could not be traced.

3. The Defendant entered not guilty pleas on 2 September 2022 and a trial date was set for 23 January 2023. The trial (referenced below as the “first trial”) ran from 23 January to 7 March 2023.

4. Save for counts 1 and 3 (as renumbered for the second trial), where the jury were unable to reach a verdict, the Defendant was variously found not guilty or else acquitted by the jury.

5. On 8 March 2023 the parties reconvened in court and the prosecution confirmed their intent to progress to a retrial on Counts 1 and 3 (as renumbered for the second trial), and the court gave directions for the matter to proceed.

6. On 29 March 2023 the parties attended court for a mention and a trial was fixed for 22 January 2024 with a time estimate of up to 5 weeks.

7. On 13 December 2023 the parties attended court for a pre-trial review. Amongst the matters dealt with was the prosecution’s application to amend the indictment, renumbering the counts so that they would fall in chronological order.

8. The prosecution also sought to add a further count, alleging money laundering activity relating to a cryptocurrency account dubbed the “Rainbow” wallet.

9. No decision was made on the application on 13 December 2023 but as part of the court’s case management powers, further dates were scheduled for the case to progress.

10. On 22 January 2024 the parties attended court for what had originally been scheduled as the first day of trial (the “second trial”). However, the Defendant was not produced in person and so the court dealt with a number of administrative matters and made progress in selecting a jury.

11. The second trial was then rescheduled to commence on 29 January 2024, which the parties attended. The prosecution’s application to amend the indictment and renumber the counts was approved and a jury was sworn. The second trial concluded on 18 March 2024, with the Defendant convicted on count 3 of the renumbered count, with counts 1 and 2 left to lie on the file. Claim

12. I have adopted Mr Herries KC’s skeleton argument summary, where at paragraph 1 he sets out: “This appeal concerns a single issue: whether, in the facts and circumstances of this case, the introduction of the new, additional count [the “Rainbow Count”] to a re-trial indictment represents a substantial development and/or a radical change to the nature of the alleged criminality of the defendant such that the “re-trial” should be regarded as a “new trial” for the purposes of remuneration and therefore not subject to the Regulatory requirement to reduce by 20% the second trial fees for a “re-trial.””

13. The Appellant advocate represented the Defendant in proceedings before the Southwark Crown Court and claims two separate trial fees, whereas the Determining Officer assessed that the appropriate payment was for a trial and retrial. Relevant Legislation

14. The relevant legislation is the Criminal Legal Aid (Remuneration) Regulations 2013. Of particular relevance is paragraph 2 of Schedule 1 to the Regulations. Submissions Respondent

15. The Respondent elected to be unrepresented at the hearing, and instead relied on the written submissions of Francesca Weisman, Solicitor, dated 18 September 2025. These supplement the Determining Officer’s written reasons.

16. Citing R v Eddowes & Ors , Ms Weisman observed that multiple defendants represented on a single indictment would still only attract one trial fee.

17. Citing R v Hussain [2011] 4 Costs LR 689, Ms Weisman accepted eligibility to claim one trial fee per indictment, but that indictments which had been formally joined would thereafter attract one trial fee.

18. Ms Weisman acknowledged the approach of Judge Whalan in R v Ayomanor (SC-2020-CRI000146), but also observed that in the later decision of R v Moore [ 2022] EWHC 1659 (SCCO) , Judge Whalan recognised the circumstances in which a new indictment may ultimately be treated as an amended indictment.

19. Ms Weisman cited a number of cases, including Wharton, Sabir and Khan, Thomas, and Mane , as being examples of where how matters are presented on the DCS are not necessarily a reliable guide as to the status of an indictment. The point being that just because the court log records a stayed or freshly preferred indictment even where there has been an “insubstantial amendment or alteration to an indictment”, in real terms that did not equate to a real terms change in the substance of the case.

20. The Respondent submits the court should instead focus on whether there has been a change in the proceedings.

21. In so far as the Respondent recognises the instances in which two trial fees fell to be paid, the cases of R v Horsfall [2023] EWHC 3128 (SCCO) , R v Rafiq [2024] EWHC 1319 (SCCO) and R v Singh [2025] EWHC 421 (SCCO) are cited as examples of where a new indictment “in substance” arose, as opposed to an amendment.

22. In terms of the criteria the court should take into account when considering there has been a retrial or a new trial, Ms Weisman cites R v Innes (SCCO-2021-CRI-000141).

23. The Respondent’s case is that the “second leg of proceedings” took place on the basis of an amended indictment, which represented a new iteration of the indictment but not a fresh indictment (and therefore not a new case).

24. Thus far I have sought to summarise the Respondent’s written submissions document up to and including paragraph 23 of the same. The remainder of that document has been taken into account, but is more usefully addressed in the ‘decision’ section of this judgment (below). Appellant

25. Mr Herries submits that the issue is whether this is an indictment that’s been amended or if the addition of a new count is of such significance that it amounts to more than a ‘technical’ amendment, and in fact a substantial and substantive change.

26. Mr Herries submits that the addition of the Rainbow count was of such significance that it changed the nature of the criminality. He observed that the Respondent’s reasoning, at page 5 of the written reasons dated 3 September 2024, states: “Although it resulted in [a] substantial amount [of] new evidence being introduced, this did not, the determining officer submits, represent a substantial, substantive development /a radical change to the nature of the alleged criminality of the defendant.”

27. Mr Herries submits this demonstrates that the Determining Officer accepts there was a substantial amount of new evidence. Thereafter, it is a matter of how that new evidence is viewed with respect to the question of what impact that had to the indictment.

28. Mr Herries advised he had observed a dearth of relevant case law on this point, with little by way of assistive precedent, but a number of non-binding reported decisions that he says assist in terms of the approach to be applied.

29. He cites in particular R v Rafiq & Others [2024] EWHC 1319 (SCCO) as providing not only a helpful analysis of the reported case law in this area, but also an example of a case where the decision turned on whether there was one indictment, or a second such that a separate trial fee could be paid.

30. In Rafiq , Costs Judge Leonard’s provided his own analysis of R v Wharton (SC-2020-CRI-000195, 1 February 2021), a case in which Costs Judge Rowley considered the way in which indictments are managed within the DCS.

31. In particular Costs Judge Leonard observed: “15. R v Wharton concerned an assault in the course of which the defendant had injured his partner. He first faced two counts of occasioning actual bodily harm and common assault. In the course of a bail hearing, the offences with which he was indicted changed in that his assault on his partner was alleged to have caused grievous bodily harm.

16. The appellant in that case, Mr Turner, claimed two case fees, relying upon DCS entries which indicated that an application was made by the Crown and leave given to prefer a new indictment, the original being stayed. Judge Rowley, in accordance with regulation 29(11) of the Criminal Legal Aid (Remuneration) Regulations 2013, made enquiries of the Trial Judge. He found that judges in the Crown Court were increasingly adopting a flexible approach where the prosecution seeks to change an indictment. Because of the way in which the DCS works, it may be more practicable to stay an existing bill of indictment and prefer a new version, than to amend the original, but in effect no more than an amendment is being made.

17. It follows that the fact that an original indictment was stayed or quashed is not, of itself, determinative of whether there were two cases, although it may be cited in support of that proposition. In R v Wharton the second indictment simply represented an amendment to the first: there was never any prospect of the defendant facing charges of both actual and grievous bodily harm arising of the same incident. There was no basis for concluding that there had been two cases.”

32. Mr Herries described the uplifting of ABH to GBH in Wharton as essentially a new way of describing the same assault, with no change to the factual matrix of offending. The defendant in that case couldn’t simultaneously face a charge of ABH and GBH on the same indictment. It was simply a case of a different label attached to the same factual matrix.

33. Mr Herries also referenced R v Moore [2022] EWHC 1659 (SCCO) , which at paragraph 18 of Rafiq , Costs Judge Leonard summarised that: “Costs Judge Whalan, in the light of the changes in light of the practices identified by Costs Judge Rowley in R v Wharton , refined his approach from that taken in R v Ayomanor . In R v Moore , [a] second indictment had superseded a first, which was formally stayed by the court, and the changes were substantive rather than “a mere tinkering or tidying up of the charge”. Yet, he found, the offence was essentially the same. The second indictment was, accordingly, merely an amendment of the original indictment.”

34. Finally, Mr Herries cited R v Brazendale [2024] EWHC 108 (SCCO) , another case summarised by Costs Judge Leonard in Rafiq – see paragraph 20: “20. In R v Brazendale [2024] EWHC 108 (SCCO) Costs Judge Whalan found that there had been two cases in a prosecution where an indictment alleging a single count against one Defendant became an indictment alleging two counts against four co-defendants and the overall criminality alleged against the co-defendants changed quite radically. In the circumstances, he concluded that the changes made to an indictment were not technical amendments, but represented a substantial, substantive development in the alleged criminality. The stay of previous indictments reflected the fact that the case had evolved to the extent where it was right to conclude that the Defendant was effectively subject, to two cases.”

35. Mr Herries submits that the key question addressed in Brazendale was whether the change to the indictment amounted to a substantial development such that it amounted to a 2nd indictment.

36. Returning to Rafiq , and the outcome therein, Mr Herries cited paragraphs 34 and 35, where Costs Judge Leonard found: “34. An indictment may incorporate one or more counts against a given defendant and may name more than one defendant. It follows that the addition of additional defendants or additional counts to an indictment may represent nothing more than an amendment to the indictment. It seems to me however that this is not such a case. It bears more similarity to R v Brazendale than to R v Wharton or R v Moore .

35. Procedurally speaking, for the reasons given by the Senior Costs Judge in R v Hussain , it must be right to conclude that (presumably on 24 June 2022) the court quashed or stayed the first indictment against the Defendant and allowed the June 2022 indictment to proceed in its place. In consequence, the Defendant faced an additional count of perverting the course of justice, one of the persons with whom the Defendant was alleged (and ultimately proved) to have done so, having been added to the indictment. That radically changed the nature of the criminality alleged against the Defendant, the case he had to face, and the nature and volume of evidence relied upon by the Crown.”

37. Mr Herries relies on the notion that whilst an additional count “may represent nothing more than an amendment to an indictment”, the alternative is to treat the outcome as a new indictment, and pay the 2nd trial fee without discount. Mr Herries also relies on the principles of an indictment having “radically changed..” as well as the “nature of criminality alleged..”

38. In referencing the Respondent’s written submissions dated 18 September 2025, Mr Herries submits that the Respondent is arguing there was nothing more than a technical change to the case against the Defendant.

39. Mr Herries submits there is nothing technical about this. It was a new count, flowing from new and additional information, and new facts, which led to new allegations. He described the change as a “seismic inflation on the level of seriousness of allegations faced.”

40. He described the Rainbow wallet as being of much greater value compared to the Pink wallet and the 31b wallet.

41. Mr Herries accepted there may be a degree of connection and some overlap of the facts, but only in so far as the Rainbow wallet could be shown to have “fed” bitcoin to the Pink wallet and the Kraken exchange (a mechanism for the conversion of Bitcoin to cash).

42. Addressing the Respondent’s written submissions dated 18 September 2025, Mr Herries submits that the fact the Rainbow wallet’s existence was known at the time of the first trial does not equate to the Defendant having been tried in relation to that wallet at the first trial.

43. Mr Herries sought to stress that at the first trial, the crown could not connect the Rainbow wallet to the Defendant’s offending. The Rainbow wallet only became part of the crown’s case by the second trial.

44. In furtherance of this point, Mr Herries cited exhibit CNW 96, being a list of blockchain transactions which included the Rainbow wallet, served ‘after’ the first trial had concluded.

45. As to the Respondent’s reliance on R v Anjum [2024] EWHC 3126 (SCCO) , Mr Herries argues Anjum is distinguishable from index appeal because it concerned a diminution of seriousness, not an increase.

46. Mr Herries invited focus on the fact that the Defendant’s sentence of 6 years and 8 months was based on the 150 coins in the 31b wallet.

47. He contrasted this with the outcome had the Defendant been found guilty in relation to the Rainbow wallet, whereby based on the potential value of the same the sentencing guidelines were 8-13 years with a starting point of 10 years imprisonment.

48. Mr Herries therefore sought to highlight the significant potential difference in sentence that the Defendant faced following the addition of the Rainbow count.

49. Mr Herries submits that the Rainbow count amounted to a substantial, substantive and significant development, suggesting a greater degree of criminality than that originally faced by the Defendant, making it a totally different case with longer sentence outcomes. It was, accordingly, much more than a technical change. Analysis and decision

50. Unsurprisingly, this decision is necessarily fact sensitive.

51. I accept Ms Weisman’s explanation of the Determining Officer’s reference to a “totally new indictment”. Whilst that reference may have caused some confusion, the fact is the substance of the Determining Officer’s response was to reject the assertion that there was a new indictment such that the second trial could be treated as a new trial as opposed to a retrial.

52. The Respondent’s written submissions thereafter acknowledge it is also the substance of what happened which is important, and that simply following the court logs could, on occasion, lead to perverse results.

53. Having said that, the Determining Officer has elected to rely on the court log and highlight references to the word “amend” on three occasions, in support of a general chain of argument that the indictment was amended, and not in terms sufficiently substantial to warrant being treated as a new trial.

54. In terms of the factual matrix, I do not place as much importance as the Respondent does in references to the prosecution’s expressed wishes for a retrial. My decision will be based on what happened, not what words the prosecution used ahead of an actual application to add a new count to the indictment.

55. The original indictment contained 12 counts, including 7 counts of ENTERING INTO OR BECOMING CONCERNED IN A MONEY LAUNDERING ARRANGEMENT, contrary to section 328(1) of the Proceeds of Crime Act 2002 , and 5 counts of POSSESSING CRIMINAL PROPERTY, contrary to section 329(1)(c) of the Proceeds of Crime Act 2002.

56. By the time of the second trial, count 1 on the original indictment had become count 3. Count 3 on the original indictment had become count 1. In addition, a new count 2 of “ENTERING INTO OR BECOMING CONCERNED IN A MONEY LAUNDERING ARRANGEMENT, contrary to section 328(1) of the Proceeds of Crime Act 2002 ” was added, in that: “[The Defendant] between the 1st day of October 2017 and the 20th day of January 2022 entered into or became concerned in an arrangement, namely dealing in cryptocurrency (through the cryptocurrency wallet known as ‘Rainbow’), knowing or suspecting that the arrangement would facilitate the acquisition, retention, use or control of criminal property by Yadi Zhang (also known as Zhimin Qian).”

57. The other two counts addressed at the second trial also concerned ENTERING INTO OR BECOMING CONCERNED IN A MONEY LAUNDERING ARRANGEMENT, contrary to section 328(1) of the Proceeds of Crime Act 2002 , also concerned a period of offending between 1 October 2017 and 20 January 2022, and also concerned cryptocurrency dealing “knowing or suspecting that the arrangement would facilitate the acquisition, retention, use or control of criminal property by Yadi Zhang”.

58. I consider the approach in R v Anjum to be useful in so far as considering the question of whether the charges against the Defendant resulted from a course of conduct leading to connected charges. That, essentially, is the Respondent’s case – i.e. that “the different counts across both indictments related to the same, ongoing underlying course of conduct, connecting the various parts into a whole”.

59. Despite references to R v Nettleton , the Respondent is clear that they have never sought to treat the two trials as a continuous, single trial. They say it is appropriate to pay the Appellant both a trial and retrial fee. The question is whether the factual matrix here takes this matter into the territory of a trial and new trial.

60. The Appellant’s case is that the introduction of the Rainbow count represented a “substantial development and/or a radical change to the nature of the alleged criminality of the defendant such that the “re-trial” should be regarded as a “new trial” for the purposes of remuneration”.

61. The Respondent’s stance is that the addition of the Rainbow Count into the second trial indictment “did not…represent a substantial, substantive development/a radical change to the nature of the alleged criminality of the defendant.”

62. In the second trial, count 1 related to the “Pink Letter” wallet, which received 722 in Bitcoin between 18 and 22 December 2017. Records also show 116 outgoing transfers including 4 transactions amounting to 30 Bitcoin to Bitbuy in Austria. On 31 October 2018, the day of the first police raid, 1,831 Bitcoin was transferred in to this wallet from the Rainbow wallet. On 4 November 2018, on discovering this wallet had been compromised, the balance of 2,436 Bitcoin was transferred to various other wallet addresses, including a wallet known as 3nauq (which was one of the counts on which the Defendant was acquitted at the first trial). The balance transferred out was estimated to be worth £11.8m.

63. Count 2 at the second trial showed that on 17 December 2017, 2,700 Bitcoin was deposited in the Rainbow wallet, at a value estimated at £37.8m. Within 6 weeks, 801 bitcoin left the wallet, and from 18 July 2018 onwards a series of transfer out reduced the balance to 1,831 Bitcoin. On 31 October 2018, that balance amount was moved to the Pink wallet, at a value estimated to be £8.8m.

64. Count 3 concerned the “31b” wallet, which first became active on 22 June 2019 and received 150 Bitcoin over the next 5 months in three equal instalments. From 22 June 2019 to 2 June 2020, a series of transfers out left 33.89 Bitcoin in this wallet – which was seized by police. The seizure had an estimated value of nearly £1m.

65. Notwithstanding that the second trial was longer than the first, the Appellant elected to receive 100% of their fee for the first trial on the basis that the second trial would be treated as a new trial.

66. In the event, the second trial was paid at a 20% discount, meaning the Appellant received £45,415.72 instead of £56,632.93 (both figures net of VAT).

67. There is no doubt that the Rainbow count involved money laundering, and so bears some resemblance to counts 1 and 3 at the second trial.

68. However, not only was this a new count but it seems to me the introduction of this new count changed the nature of counts 1 and 3. Further, the introduction of the Rainbow count also substantially increased the value of the criminality and the volume of transactions under investigation – with an inevitable impact on the volume of evidence to be considered.

69. The value of Bitcoin flowing through the Rainbow wallet was substantially more than that flowing through the Pink Letter and 31b wallets. There were substantially more transactions to the BitBuy exchange via the Rainbow wallet, being over 4 times as many from the Pink wallet. Further, the significance of both the Rainbow wallet and the Pink wallet were markedly increased once the Defendant had been linked to the former.

70. I agree with the Appellant that the introduction of the Rainbow count presented a new dimension to the offending and one cannot reasonably ignore the significantly greater number of transactions deriving from a substantially greater source of Bitcoin in that wallet – representing around 2,700 bitcoin / £37m+ in value.

71. I also accept the evidential significance of the addition of the Rainbow count, which substantially contributed to the length of the second trial.

72. In that regard, one observes that the page count for the first trial was 4,132 pages as compared with the second trial, at just under 7,800 pages. The increase included an additional 144 pages of witness evidence, plus exhibits. Additionally, the crown presented a new timeline as compared to the first trial, comprising some 5,616 events over 340 pages.

73. Additionally, 622 pages of evidential transcripts of the Defendant’s evidence in Trial 1 were produced.

74. In terms of the consequences, there can be no dispute that the higher the monetary value of the crime, the higher the likely sentence. I observe the trial judge commented that “In financial crime monetary value is one of the benchmarks by which the court assesses harm.”

75. Ultimately, and despite counts 1 and 3 being matters upon which the Defendant was being retried, the Defendant was convicted on count 3 only. In terms of sentencing, category 3 applied (value between £500,000 and £2m) and a sentence of 80 months was imposed, which accounted for the highest degree of culpability within category 3.

76. By contrast, the value associated with the Rainbow wallet would have placed sentencing firmly in category 1, which is reserved for cases worth £10m+. I say value, because the trial judge was clear that value was not to be benchmarked by transfers out alone.

77. That was the approach taken when sentencing count 3. There is no reason to doubt that the same approach would have been taken had the Defendant been convicted on count 2, thus underlining how high the stakes were for the Defendant.

78. I therefore accept the Appellant’s analysis that applying the sentencing Judge’s same approach as count 3, a conviction on the Rainbow count would very likely have attracted the highest category of culpability for a Category 1 offence.

79. That in turn raised very real prospects of the Defendant receiving a custodial sentence of up to 13 years imprisonment, with a starting point of 10 years.

80. In this regard, I accept that the addition of the Rainbow count elevated the second trial to one where criminality of far greater seriousness was on trial as compared to the first trial.

81. The addition of the Rainbow count was more than “a mere tinkering or tidying up of the charge” (as per R v Moore ).

82. In contrast with Wharton , the addition of the Rainbow count cannot amount to an indictment arising out of the same originating offence. It was a new offence in itself, and it altered the characteristics of the renumbered counts too.

83. In R v Brazendale [2024] EWHC 108 (SCCO) , Costs Judge Whalan considered the evolution of a case between the first and second trial by considering whether changes made to an indictment were “not technical amendments but represented a substantial, substantive development in the alleged criminality….[such that] the case had evolved to the extent where I could conclude properly that the Defendant was effectively subject, to two cases.”

84. In R v Rafiq [2024] EWHC 1319 (SCCO) , Costs Judge Leonard considered whether there had been a radical change in the nature of the criminality alleged against Rafiq , the case he had to face, and the nature and volume of evidence relied upon by the Crown.

85. In my view, the addition of the Rainbow count was more than a technical amendment to the indictment. Instead, it represented a substantial, substantive development in the alleged criminality such, in my view, the second trial ought to be remunerated as a new trial and not subject to the 20% discount applied.

86. The nature of the criminality alleged had changed radically, as had the nature and volume of evidence relied on by the crown.

87. Finally, one recognises that had the second trial proceeded on the basis of a retrial of counts 1 and 3 (once renumbered) alone, there seems to be no dispute the Appellant would have been remunerated on the basis of a 20% reduction.

88. Further, had counts 1 and 3 (once renumbered) been resolved at the first trial, I cannot see how the Rainbow count would not have been remunerated as a new trial had it proceeded as a single (new) indictment trial.

89. Additionally, and as observed above, the renumbered counts 1 and 3 had to be looked at in a new light as a consequence of the addition of the Rainbow count.

90. The appeal is therefore allowed and the Appellant shall be remunerated the 20% shortfall that has thus far been deducted from their remuneration for the second trial. Costs

91. In addition, the Respondent shall repay the Appellant the £100 appeal fee, plus costs of £1,000 (net of VAT, with VAT to be applied in addition only where applicable). COSTS JUDGE NAGALINGAM