Commissioner of the Australian Federal Police v Fu (No 5)

[2016] NSWSC 121

Supreme Court

New South Wales

Medium Neutral Citation:	Commissioner of the Australian Federal Police v Fu (No 5) [2016] NSWSC 121
Hearing dates:	23 February 2016
Decision date:	24 February 2016
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) The notice of motion of 10 February 2016 is dismissed. (2) The application for an alternative order by Ms Qiong Fu is dismissed. (3) Ms Qiong Fu and Ms Ya Qing Shi must pay the costs of the plaintiff of the hearing before me.
Catchwords:	Proceeds of Crime Act 2002 (Cth) – s 29 hearing – application for vacation of hearing date
Legislation Cited:	Evidence Act 1995 (NSW), s 63 Evidence on Commission Act 1995 (NSW) Proceeds of Crime Act 2002 (Cth), ss 29, 47 Uniform Civil Procedure Rules 2005 (NSW), r 31.3
Cases Cited:	Commissioner of the Australian Federal Police v Qiong Fu [2013] NSWSC 1313
Category:	Procedural and other rulings
Parties:	Commissioner of the Australian Federal Police (Plaintiff/Respondent) QF (First Defendant/Applicant) Ya Qing Shi (Second Defendant/Applicant)
Representation:	Counsel: K Anderson (Plaintiff/Respondent) R Steward (First Defendant/Applicant) G Jones (Second Defendant/Applicant)   Solicitors: Australian Federal Police (Plaintiff/Respondent) AKN and Associated (First Defendant/Applicant) Ren Zhou Lawyers (Second Defendant/Applicant)
File Number(s):	2013/272463

Judgment

Introduction

1. This is an application for the vacation of a hearing date of Monday 29 February 2016 with regard to an application pursuant to s 29 of the Proceeds of Crime Act 2002 (Cth) (POCA). The moving party at that hearing is Ms Qiong Fu (Ms Fu). An interested party is her mother, Ms Ya Qing Shi. Two important witnesses in the hearing are the father of Ms Fu, Mr Jing Gao Fu (Mr Fu), and the maternal aunt of Ms Fu, Ms Ya Chun Shi. Due to the similarity of their full names, and for ease of comprehension of the reader, I shall refer to Ms Ya Qing Shi as “the mother”, and Ms Ya Chun Shi as “the aunt”; of course I mean no disrespect to them by not using their names in this judgment.

2. The matter came before me in the Duty List on Wednesday 17 February 2016. I was unable to oblige the parties that day, but the matter was stood over for hearing before me yesterday, Tuesday 23 February 2016. Due to the urgency created by the impending hearing date, I felt it imperative to deliver my orders and judgment as soon as reasonably practicable. In the circumstances, these reasons will be rather brief.

3. In seeking vacation of the hearing, the mother of Ms Fu moved upon a notice of motion of 10 February 2016. In a nutshell, it seeks vacation of the hearing date, and an order that evidence be taken on commission in the People’s Republic of China. Some ancillary orders were also sought, including a temporary stay until the latter course could be completed.

4. Ms Fu adopted that notice of motion. At the hearing, a further alternative order was sought on her behalf; namely, that I order, pursuant to r 31.3 of the Uniform Civil Procedure Rules 2005 (NSW) (the Rules), that evidence from Mr Fu and the aunt be taken by telephone.

5. The Plaintiff (the AFP) resisted the orders in the motion, and the alternative order proposed by Ms Fu.

Background

6. The background may be shortly stated. On 9 September 2013, the AFP moved ex parte upon a summons of the same date and obtained restraining orders with regard to two pieces of real property in suburbs of Sydney and one motor vehicle also located here: see Commissioner of the Australian Federal Police v Qiong Fu [2013] NSWSC 1313. Ms Fu is the registered proprietor of the two pieces of real property, and is also the registered owner of the motor vehicle.

7. Subsequently, I was told, restraining orders were made by consent with regard to a number of separate parcels of cash, and a number of pieces of jewellery.

8. In a nutshell, the case for the plaintiff is that the income of Ms Fu in no way supports her ownership of two valuable pieces of real property, and a rather expensive motor vehicle. It is also said that it is not unimportant that her second husband, Mr Wei Zhong Chen, has been charged with a number of offences of identity fraud. It is also said that documents prepared in order to obtain loans secured by mortgages towards the purchase price of the two properties contain falsehoods. Finally, it is said that large amounts of money have moved into and out of bank accounts associated with Ms Fu.

9. The summons of the AFP also seeks final orders for forfeiture, pursuant to s 47 of POCA. A hearing with regard to those orders is pending, and no date has been set. As I have said, what has had a date set (since as long ago as July 2015) is a hearing with regard to exclusion of property from the restraining orders, pursuant to s 29 of POCA.

10. The position of Ms Fu and her mother is that the real property, the chattels and the cash are not derived directly or indirectly from any unlawful activity. Rather, their position is that they are the product of gifts received by Ms Fu over the years, including from her own family and from the family of her first husband; and investments made by her mother in this country through her daughter. The mother is in Australia, has sworn an affidavit to the above effect, and can be conveniently cross-examined at the hearing next week.

11. Each of Mr Fu and the aunt has sworn an affidavit generally corroborating the case of Ms Fu and her mother. Mr Fu and the aunt are in a different position from the mother, however. They are each in China. Affidavit evidence suggests that Mr Fu is 77 years of age and quite unwell. There is a medical certificate that suggests that he is incapable of travelling to Australia, and indeed his travel within China is quite restricted as well. There is similar, though less forceful, medical evidence with regard to the aunt, who is aged 66 years.

12. There is also evidence that it will be difficult indeed to create a formal audio-visual link between this Court and either Weihai City (in which city Mr Fu resides) or Harbin (in which city the aunt resides).

Notice of motion of the mother

13. In short, the submission on behalf of the mother was that it is imperative that the tribunal of fact at the hearing be able to assess the credibility of her husband, Mr Fu, and her sister, the aunt. Indeed, the AFP has indicated that it will object to the reading of the affidavits of those two witnesses unless they are available for cross-examination. And yet, as things stand, that will not be able to occur, because neither of those witnesses can come to give evidence in person in Sydney, and nor can he or she give evidence by way of an AVL link. It was said, in short, that the only way that the matter can properly be adjudicated is for the hearing date to be vacated, and for the evidence of the two witnesses to be taken on commission by this Court sitting in China.

14. I do not accept that submission. That is so for the following reasons.

15. First, the evidence shows that a formal audio-visual link suite is not practicably available. But that is not the end of the matter. In the affidavits read before me by the mother, there are repeated references to alternative ways of creating a link between Sydney and cities within China. They are as follows.

16. In the affidavit of Ms Lu (a legal clerk of the firm representing Ms Fu) of 22 February 2016, at Annexure C, there is a reference to the possibility of using the software “Jabber”, which is said to be similar to the well-known software Skype.

17. In the affidavit of Mr Goh (the solicitor for the mother) of 10 February 2016, at Annexure B, a reference is made to the possibility of “desktop conferencing”.

18. And in the affidavit of Mr Cramer (a solicitor assisting Mr Goh) of 10 February 2016, at Annexure F, there is a reference to the possibility of using software known as “Lifesize Cloud”.

19. In short, the evidence before me repeatedly raises the possibility of alternative ways by which an audio-visual link could be established between this Court and the locations of Mr Fu and the aunt, whereby their evidence could be taken from China in such a way that their credibility could be properly assessed by a judge of this Court sitting in Sydney.

20. Secondly, I accept that each of the witnesses is unwell and of advanced years. But the affidavit evidence shows that they are capable of travelling some distance away from their homes with assistance. Whilst it is also true that it seems neither of them has an internet connection at his or her home, there is nothing to suggest that they cannot be brought to a place where such a connection exists without endangering their health.

21. Thirdly, Mr Fu is resident in Weihai City. Its name itself strongly suggests that it is by no means a small rural village. The aunt is resident in Harbin. There was no dispute before me that that is a metropolis in the north of China. I consider that one is entitled to infer that there must be an internet connection conveniently available to each of them in those cities, even accepting that it is not in his or her home.

22. Fourthly, it is the case for Ms Fu and her mother that the latter is quite a wealthy woman. Aspects of the affidavit evidence are to that effect, quite apart from the central evidence of all of the gifts and investments that is to be relied upon next week. There is nothing to suggest that the family is incapable of meeting the outlay that may be necessary for the software to which I have referred being used, along with the necessary computer hardware.

23. Fifthly, whilst evidence on commission is undoubtedly an option pursuant to the Evidence on Commission Act 1995 (NSW), no party sought to dissuade me from my initial thought that that expensive, time-consuming, and logistically difficult way of proceeding should only be adopted as a last resort. As I have said, on the evidence before me there may very well be alternatives available.

24. Sixthly, counsel for the AFP informed me that, speaking generally, he would not stand in the way of a link to China being used next Monday to take the evidence of the two witnesses, so long as it is of satisfactory quality. In other words, the AFP is by no means insisting that each of the witnesses travel to Australia. Rather, the AFP is insisting that, if Ms Fu and her mother are to rely upon the evidence of the witnesses, the tribunal of fact must have a proper opportunity to assess the credibility of each of them. There is nothing inapposite in that insistence.

25. Seventhly, the evidence shows that, for many months, the question of the availability of Mr Fu and the aunt to give evidence has been a point of discussion between the parties. It was explained by counsel for the mother that a change of representation late last year had led to logistical problems. I accept that submission. Still and all, it is not as if the hearing date has been endangered by some very recent development unforeseen by Ms Fu and her mother; quite the contrary.

26. Eighthly, if it be the case that the witnesses are simply unavailable, Ms Fu and her mother have open to them reliance upon s 63 of the Evidence Act 1995 (NSW). I accept that tender of previous representations of the witnesses is a less satisfactory way to proceed. But I consider it significant that Parliament has expressly turned its mind to the fact that witnesses may be unavailable for various reasons, and has provided an alternative mechanism that can be relied upon if its preconditions are satisfied.

27. In short, on the evidence before me it is quite possible that a satisfactory alternative can be found whereby the remote evidence of the witnesses can be received. In those circumstances, I do not consider it appropriate to order that evidence be taken on commission. Nor do I consider it appropriate to vacate the hearing date. For those reasons, the motion should be dismissed.

Alternative order sought by Ms Fu

28. As I have said, Ms Fu sought an alternative order; namely, that I would order that the evidence of the two witnesses be taken by telephone. That was presented as a way forward that protects the interests of all parties. It was also submitted that perhaps I could make such an order contingently upon any better form of connection not becoming available.

29. I consider that to make such an order at this stage would be precipitous. I repeat my view that it is quite possible that a better way of taking the evidence from the two remote witnesses will be able to be found by the lawyers for Ms Fu and her mother, and agreed in by the AFP. Furthermore, I do not think it appropriate for me to make orders now that are contingent upon eventualities that cannot be predicted. Finally, whether such an order should be made is a question that can more appropriately be answered by the trial judge once the position is clearer.

30. For those reasons, I do not propose to make the alternative order sought by Ms Fu.

Conclusion

31. In short, I am not persuaded on the evidence before me that I should vacate the hearing date, or make any other order binding the trial judge.

Costs

32. Neither Ms Fu nor her mother resisted the proposition that, if the AFP were successful before me, each of them should pay the costs of the plaintiff.

Orders

33. I make the following orders:

1. The notice of motion of 10 February 2016 is dismissed.

2. The application for an alternative order by Ms Qiong Fu is dismissed.

3. Ms Qiong Fu and Ms Ya Qing Shi must pay the costs of the plaintiff of the hearing before me.

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Decision last updated: 04 March 2016