Commissioner of the Australian Federal Police v Fung

[2022] NSWSC 562

Supreme Court

New South Wales

Medium Neutral Citation:

Commissioner of the Australian Federal Police v Fung & Ors [2022] NSWSC 562

Hearing dates:

04 May 2022

Date of orders:

04 May 2022

Decision date:

04 May 2022

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), the property listed in Schedules 1 and 2 be forfeited to the Commonwealth.

(2) Pursuant to section 69(2) of the Proceeds of Crime Act 2002 (Cth), the Commonwealth be given leave to deal immediately with the forfeited property.

(3)  The Commonwealth be released from the usual undertaking as to costs and damages, given on 22 October 2021.

(4)  The balance of the summons is dismissed.

(5)  These orders be entered forthwith.

Catchwords:

CIVIL LAW – proceeds of crime – forfeiture orders – leave to deal with forfeited property – “bounce back emails” – no appearance by defendant with interest in property – no question of principle

Legislation Cited:

Proceeds of Crime Act 2002 (Cth) ss 19, 49, 69, 73, 74, 77, 78

Cases Cited:

Commissioner of the Australian Federal Police v Fung [2021] NSWSC 1359

Category:

Principal judgment

Parties:

Commissioner of the Australian Federal Police (Plaintiff)
Yuen Hong Fung (First Defendant)
Kha Weng Foong (Second Defendant)
Un Sai Cheng (Third Defendant)

Representation:

Solicitors:
Australia Federal Police (Plaintiff)

File Number(s):

2021/00261735

Publication restriction:

Nil

EX TEMPORE Judgment (REVISED)

1. On 22 October 2021, Schmidt AJ made orders under the Proceeds of Crime Act 2002 (Cth) (the Act), in particular certain restraining orders in relation to property identified in a summons filed by the Commissioner of the Australian Federal Police (the Commissioner). [1] The Commissioner now seeks forfeiture orders under s 49 of the Act, as well as leave to deal with the property pursuant to s 69(2).

   1. See Commissioner of the Australian Federal Police v Fung [2021] NSWSC 1359 at [41].

2. The background to the matter is set out generally in her Honour's brief judgment, and in more detail in an affidavit of Adrian Linus Edwards sworn on 8 September 2021 relied on by the Commissioner in the proceedings before Schmidt AJ, and read again in these proceedings in order to provide the necessary background.

3. The summons nominates three defendants. The first defendant is Yuen Hong Fung, the second defendant is Kha Weng Foong, and the third defendant is Un Sai Cheng. The third defendant is the ex-wife of the first defendant. The first and second defendant have each been convicted and sentenced in relation to offences that can generally be described as money laundering offences.

4. The summons sets out five schedules of property. Schedules 3, 4 and 5 relate to property in which the second defendant is said to have an interest, and orders disposing of that property were made by Schmidt AJ in October 2021. The property with which I am now concerned includes the items identified in Sch 1 which are three separate but related amounts of cash (Australian currency), and the item identified in Sch 2, a 2015 BMW convertible motor car with registration number xxx xxx.

5. The only persons said to have an interest in that property are the first and third defendant, and probably really only the first defendant, but that is not a matter with which I need concern myself because the third defendant has consented to orders under the Act. The second defendant plays no further part in the proceedings, the property in which he had an interest having already been dealt with in the proceedings before Schmidt AJ. What is left are the interests of the first defendant in the cash in Sch 1 and the car in Sch 2.

6. The Commissioner has also read an affidavit of Mrs Tully, sworn on 2 May 2022, who also appears on today’s application. One of the orders made by Schmidt AJ in October 2021 was an order for substituted service which involves, speaking fairly loosely and generally, service of the relevant documentation on the first defendant by means of various email addresses.

7. Mrs Tully’s affidavit sets out occasions on which those email addresses have been used to attempt to notify the first defendant of the current proceedings and the outcome of the matter when it was before Schmidt AJ.

8. While the use of two of those email addresses has resulted in what I will term “bounce back emails”, indicating that there was a problem in their transmission, the third email was sent, and there has been no response to indicate that it was not received or that the first defendant proposed to do anything, such as seek exclusion of the property as not being the proceeds of crime or otherwise. I am speaking in general terms, somewhat loosely, and not attempting to parrot the precise words of the legislation.

9. I am satisfied pursuant to s 49(1)(a) of the Act that the Australian Federal Police is a responsible authority for a restraining order under s 19, and that they have applied for an order under s 49.

10. I am satisfied pursuant to s 49(1)(e) that the restraining order made by Schmidt AJ has been in force for at least six months.

11. I am satisfied pursuant to s 49(3)(a) that no application has been made for any property nominated in Schs 1 or 2 to be excluded from the restraining order.

12. I am satisfied pursuant to s 49(1)(e) that the Australian Federal Police, or those representing the Commissioner, have taken reasonable steps to notify the first defendant, being the only person seemingly with an interest in the property identified in Schs 1 and 2.

13. Accordingly, the prerequisites for an order are made out. Section 49(1) is in mandatory terms, which is to say that the Court “must” make an order once the various matters identified in the section are satisfied.

14. There is a discretion to refuse to make the forfeiture order in s 49(4) if it is not in the public interest to make the order. There is nothing before the Court to suggest that that is the case, and accordingly I propose to make an order pursuant to s 49.

15. The Commissioner also seeks an order for leave under s 69(2) to enable it to deal with the property immediately. In the absence of such an order it would be necessary to wait for the relevant appeal period. [2] I accept the submission of Mrs Tully that it is appropriate to grant leave given the nature of the property involved. Part of the property is cash, and the BMW is not, on my understanding of cars, anything special. Either can be replaced by way of cash compensation. Further, there is available under the Act the capacity for the first defendant, if at some point he decides to engage in the proceedings, to make an application for a compensation order pursuant to ss 77 and 78, or an exclusion order pursuant to ss 73 and 74.

    2. See Proceeds of Crime Act 2002, s 69(1).

16. Accordingly, I make orders in accordance with the short minutes of order as follows:

1. Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), the property listed in Schedules 1 and 2 be forfeited to the Commonwealth.

2. Pursuant to section 69(2) of the Proceeds of Crime Act 2002 (Cth), the Commonwealth be given leave to deal immediately with the forfeited property.

3. The Commonwealth be released from the usual undertaking as to costs and damages, given on 22 October 2021.

4. The balance of the summons is dismissed.

5. These orders be entered forthwith.

Schedule 1

Cash seized by members of the Australian Federal Police on 24 August 2015 from premises located at xxxx xxxxxx, Chippendale:

Item 1:   Cash in the amount of AUD1,650 from a black wallet inside a bum bag, together with any interest on that amount;

Item 2:   Bundled Australian cash stored in a black travel light bag valued at AUD520,000, together with any interest on that amount;

Item 3:   Bundled Australian cash located in a draw in the bedroom valued at AUD35,560, together with any interest on that amount.

Schedule 2

Registered in the name of Un Sai Cheng:

2015 BMW 235i convertible motor vehicle with NSW registration xx xx and VIN WBAxxxxxxxxxxxx.

The Court notes that the value of the property specified in Schedule 2 to the Summons had a fair market value of $40,000 and a forced liquidation value of $30,000.

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Endnotes

Decision last updated: 10 May 2022