Commissioner of the Australian Federal Police v Ching Kwan Ho

[2014] NSWSC 886

Supreme Court

New South Wales

Medium Neutral Citation:

Commissioner of the Australian Federal Police v Ching Kwan Ho [2014] NSWSC 886

Hearing dates:

1 July 2014

Decision date:

01 July 2014

Jurisdiction:

Common Law

Before:

Davies J

Decision:

Restraining Order

1. Pursuant to section 17 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule One below must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

Custody and control order

2. Pursuant to section 38 of the Proceeds of Crime Act 2002 (Cth), the Official Trustee in Bankruptcy (Official Trustee) is to take custody and control of the property specified in Schedule One below.

Further Orders

3. Proceedings to be listed for directions before the Common Law Registrar on 7 October 2014.

SCHEDULE ONE

AUDI20,000 held by Super Forex Financial Pty Limited (ACN: 42 125 839 572) on behalf of Ching Kwan Ho, account number 10-201308300001.

Orders to be entered forthwith.

Catchwords:

CRIMINAL LAW - proceeds of crime - restraining orders

Legislation Cited:

Commonwealth Criminal Code
Proceeds of Crime Act 2002 (Cth)

Category:

Interlocutory applications

Parties:

The Commissioner of the Australian Federal Police (Plaintiff)
Ching Kwan Ho (Defendant)

Representation:

Counsel:
S Bettridge (Plaintiff)
No appearance (Defendant)
Solicitors:
Australian Federal Police (Proceeds of Crime Litigation)

File Number(s):

2014/194950

Judgment

1. This is an application under s 17 of the Proceeds of Crime Act2002 (Cth) for a restraining order. Under s 17, a court with proceeds jurisdiction must order that the property not be disposed of or dealt with by any person if a Proceeds of Crime Authority applies for the order and, as here, a person has been convicted of an indictable offence, that the affidavit requirements in s 17(3) have been met and if the court is satisfied that the authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds.

1. In the present case, the deponent of the affidavit is an authorised officer within the meaning of s 338 of the Proceeds of Crime Act. He has identified that the defendant was charged with one count of dealing with property to the value of $100,000 Australian or more suspected of being proceeds of crime contrary to s 400.9(1) of the Commonwealth Criminal Code. The defendant pleaded guilty and was sentenced to a period of three months' imprisonment.

1. The deponent has annexed to his affidavit a copy of the statement of facts prepared by a Federal agent involved in the investigation of the offence by the defendant. He deposes to a conversation where he asked the Federal agent if he was the officer in charge of the investigation, if he was the author of the statement of facts and whether the contents of the statement of facts were correct to the best of his knowledge and belief. In each case, the agent answered in the affirmative.

1. I am satisfied, from the other material referred to in the affidavit and annexed to it, that the suspicion held by the deponent of the affidavit concerning the monies deposited into the Fourex account is a suspicion held on reasonable grounds.

1. I note that under s 26(4) of the Act the court is required to consider the application without notice being given, if the responsible authority requests the court to do so. The applicant is a responsible authority and has so requested.

1. In those circumstances, I make the orders in paragraphs 1 and 2 of the draft order provided to me.

1. I stand the proceedings over before the Common Law Registrar on 7 October 2014.

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Decision last updated: 03 July 2014