Application by the Commissioner of the Australian Federal Police

[2016] NSWSC 861

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Application by the Commissioner of the Australian Federal Police [2016] NSWSC 861
Hearing dates:	22 June 2016
Date of orders:	22 June 2016
Decision date:	22 June 2016
Jurisdiction:	Common Law
Before:	Garling J
Decision:	(1) Pursuant to s 49 of the Proceeds of Crime Act 2002 (Cth), the property listed in Schedule 1 to the Summons filed 13 November 2015 is to be forfeited to the Commonwealth. (2) Pursuant to s 49 of the Proceeds of Crime Act 2002 (Cth), the property listed in Schedule 2 to the Summons filed 13 November 2015 is to be forfeited to the Commonwealth. (3) Pursuant to 69(2) of the Proceeds of Crime Act 2002 (Cth), I grant leave to the Commonwealth to immediately dispose of or otherwise deal with the property forfeited by Orders 1 and 2.
Catchwords:	PRACTICE AND PROCEDURE – civil – application for forfeiture orders – Proceeds of Crime Act 2002 (Cth), s 49
Legislation Cited:	Criminal Code 1995 (Cth) Proceeds of Crime Act 2002 (Cth)
Cases Cited:	Application by the Commissioner of the Australian Federal Police [2015] NSWSC 1843
Texts Cited:	Not Applicable
Category:	Principal judgment
Parties:	Commissioner for the Australian Federal (Plaintiff) Ex parte
Representation:	Counsel: W Staples (Plaintiff)
File Number(s):	2015/334488
Publication restriction:	Not Applicable

EX TEMPORE Judgment

1. This is an application by the Commissioner of the Australian Federal Police (“the Commissioner”) pursuant to s 49 of the Proceeds of Crime Act 2002 (Cth) (“the Act”).

Relevant Factual Background

2. On 7 April 2015, officers of the Australian Federal Police (“AFP”) stopped a motor vehicle owned by Mr Lap Keung Ng in the suburb of Rhodes. Mr Ng is a Chinese national who is not a permanent resident of Australia. In that motor vehicle, the officers discovered $511,825 in cash, and six mobile phones. Mr Ng denied being the owner of the money, or having any knowledge about the ownership of the money. Mr Ng was arrested.

3. Later that same day, pursuant to a search warrant, a search was conducted of an apartment in Rhodes which had been leased by Mr Ng. He was the only occupant of the property.

4. In the property, in various places including bags, drawers, tables and other areas, officers of the AFP found and seized cash totalling $3,652,700.

5. In total, on that day, officers of the AFP seized $4,164,525 from Mr Ng’s motor car, and his residence.

6. At the time of the seizure, Mr Ng was 49 years old. He was in Australia on a student visa, although it is not apparent from the material, which course he enrolled in, or which vocation he was engaged in. He was not employed, he did not have a bank account and there was no basis for any rational conclusion that the money that was found by the AFP was in any way legitimately earned or else came into his possession legitimately.

7. Unsurprisingly, when charged with an offence contrary to s 400.9(1) of the Criminal Code 1995 (Cth) of dealing with property reasonably suspected of being the proceeds of crime, Mr Ng entered a plea of guilty.

8. He was sentenced in the District Court to a maximum of 2 years imprisonment, but was able to be released after serving 12 months upon a recognisance. I am informed that he has been released and has left Australia. Although there is no formal evidence of that fact, I am entirely unsurprised that that is so.

Present Proceedings

9. The Commissioner commenced proceedings in this Court on 13 November 2015, seeking a restraining order pursuant to s 19(1)(b) of the Act with respect to the property seized.

10. On 3 December 2015, for the reasons which she then expressed, Adamson J made restraining orders: see Application by the Commissioner of the Australian Federal Police [2015] NSWSC 1843.

11. Now that 6 months have passed, the Commissioner seeks orders for the forfeiture of the property pursuant to s 49 of the Act and orders pursuant to s 69(2) of the Act, to permit the Commonwealth to dispose of or deal with the property.

Discernment

12. The provisions of s 49 of the Act require a Court to make an order forfeiting the property to the Commonwealth if it is satisfied of a number of matters.

13. The first matter of which the Court has to be satisfied is that the applicant, namely the Commissioner, is the responsible authority for the restraining order made under s 19. I am so satisfied. The Commissioner, by s 338 of the Act, is a nominated proceeds of crime authority. Section 19 of the Act identifies a proceeds of crime authority as the lawful applicant for a restraining order. Accordingly, the Commissioner is a responsible authority as required by s 49(1)(a) of the Act.

14. The second matter is that I must be satisfied that the restraining order has been in force for at least 6 months: s 49(1)(b) of the Act. As 6 months have passed since 3 December 2015 when the restraining orders were made by Adamson J, I am satisfied of that fact.

15. The third matter of which the Court must be satisfied is that the Commissioner has taken reasonable steps to identify and notify persons with an interest in the property.

16. Mr Ng has been notified of these proceedings and has made no application to participate in them. There is simply no one else who has indicated any interest in this property at all. That is not surprising. Expressing an interest in this property would undoubtedly implicate an individual in the commission of a crime. I am satisfied that reasonable steps have been taken to identify and notify persons with an interest in the property: s 49(1)(e) of the Act.

17. Lastly, pursuant to s 49(3) of the Act, I have been persuaded that the provisions of s 49(1)(c) of the Act do not apply. I am so persuaded because it is clear from the Court record that no application has been made under the Act for any of the property to be excluded from the restraining order made by Adamson J on 3 December 2015. Accordingly, I am satisfied of all of the necessary matters for an order of forfeiture to be made.

Public Interest

18. In those circumstances, the Court is obliged to make the order by the terms of s 49(1) of the Act unless, as provided for in s 49(4) of the Act, the Court is satisfied that it is not in the public interest to make the order.

19. I cannot conceive of any reason why it would be contrary to the public interest to decline to make the orders for forfeiture in this case. A very serious crime has been committed. The $4M in cash is directly associated with the crime. No one claims any interest in the money. The objects of the Act are met by the making of a forfeiture order. In particular, depriving individuals of the proceeds of the offences, depriving persons of unexplained wealth, punishing and deterring persons from breaching the laws of the Commonwealth and undermining the profitability of criminal enterprises, which are all objects listed in s 5 of the Act as principal objects, are well met by a forfeiture order.

20. I decline to exercise my discretion under s 49(4) of the Act not to make forfeiture orders because it is clearly in the public interest to make these orders.

Orders

21. I will make the following orders:

1. Pursuant to s 49 of the Proceeds of Crime Act 2002 (Cth), the property listed in Schedule 1 to the Summons filed 13 November 2015 is to be forfeited to the Commonwealth.

2. Pursuant to s 49 of the Proceeds of Crime Act 2002 (Cth), the property listed in Schedule 2 to the Summons filed 13 November 2015 is to be forfeited to the Commonwealth.

3. Pursuant to s 69(2) of the Proceeds of Crime Act 2002 (Cth), I grant leave to the Commonwealth to immediately dispose of or otherwise deal with the property forfeited by Orders 1 and 2.

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Amendments

23 June 2016 - Correction to cover page

Decision last updated: 23 June 2016