Commissioner of the Australian Federal Police v Fung

[2016] NSWSC 522

Supreme Court

New South Wales

Medium Neutral Citation:

Commissioner of the Australian Federal Police v Fung [2016] NSWSC 522

Hearing dates:

27 April 2016

Date of orders:

27 April 2016

Decision date:

27 April 2016

Jurisdiction:

Common Law

Before:

Davies J

Decision:

Upon the Plaintiff providing, on behalf of the Commonwealth, the usual undertaking as to costs and damages, the Court orders that:

 

Restraining Order

 

1. Pursuant to section 19(1 )(b) of the Proceeds of Crime Act 2002 (Cth) (Act) the property specified in Schedule Two must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified.

 

2. Pursuant to section 19(1)(b) of the Act the property specified in Schedule Three must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified.

 

Custody and Control Orders

 

3. Pursuant to section 38 of the Act the Official Trustee is to take custody and control of the property specified in Schedule Two.

 

4. Pursuant to section 38 of the Act the Official Trustee is to take custody and control of the property specified in Schedule Three.

 

Further Orders

 

5. The proceedings are listed for directions before the Common Law Registrar at 9:00am on 27 July 2016.

 

6. The parties are granted liberty to restore on three days' written notice.

 

7. Any orders made be entered forthwith

 

SCHEDULE TWO
Cash seized by AFP Members on 1 March 2016 from a Silver 4WD Land Rover Discovery motor vehicle bearing NSW Registration Number AM13VS identified as Items AUDRM/001, AUDRM/002 and AUDRM/003 on Property Seizure Record M370618, including any interest earned thereon.

 SCHEDULE THREE
Cash seized by AFP Members on 1 March 2016 from premises located at Unit 106A, 81-86 Courallie Avenue, Homebush West NSW identified as Item 4 on Property Seizure Record Number M370621, including any interest earned thereon.

Catchwords:

CRIMINAL LAW – proceeds of crime – restraining orders

Legislation Cited:

Proceeds of Crime Act 2002 (Cth)

Category:

Procedural and other rulings

Parties:

The Commissioner of the Australian Federal Police (Plaintiff)
Yiu Cho Fung (Defendant)

Representation:

Counsel:
J Millington (Plaintiff)
A Lloyd (Defendant)

  Solicitors:
Proceeds of Crime Litigation, Australian Federal Police (Plaintiff)
Sachs Gerace Broome (Defendant)

File Number(s):

2016/103126

Judgment

1. These are proceedings seeking restraining orders under s 19 of the Proceeds of Crime Act 2002 (Cth). The restraining orders now sought concern the property described in schedules two and three of the Summons, being amounts of cash.

2. Under s 19 a court with proceeds jurisdiction must order that property must not be disposed of in accordance with sub-s (1) of s 19 if certain conditions are met. The conditions are that it is a proceeds of crime authority that applies for the order, that there are reasonable grounds to suspect that the property is derived from one of the types of offences referred to in s 19(1)(d), that there is an affidavit from an authorised officer stating that the officer suspects that the property is the proceeds of the offence or if the offence is a serious offence that the property is an instrument of the offence, and that the court is satisfied that the officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds.

3. In the present case, I am satisfied that the requirements of s 19 have been met. The application is made by a proceeds of crime authority, being the Commissioner of the AFP. The property concerned is demonstrated by the affidavit of the authorised officer to be the proceeds of an indictable offence or as an instrument of a serious offence, that is the offence with which two persons have been charged, namely an offence contrary to s 400.4(2) of the schedule to the Criminal Code. That is an offence relevantly of dealing with money that is the proceeds of crime and at the time the value of the money was AUD100,000 or more.

4. There is an affidavit from an authorised officer, Jodie Earl, setting out the officer’s suspicion that the property is the proceeds of the offence mentioned. I am satisfied from reading that affidavit that the suspicion that the authorised officer has is reasonably held.

5. The present proceedings have named a Defendant. Mr Lloyd appears for that Defendant. He has sought effectively that the restraining orders now sought should not be made in the same proceedings that led to the making of restraining orders by Wilson J on 6 April in relation to a motor vehicle referred to in schedule one to the summons. The basis for suggesting that the matter should be separated derives from the criminal proceedings which have been instituted against the Defendant. In that regard Mr Lloyd points to the naming of Mr Fung as a Defendant in these proceedings when , on his instructions, the cash seized does not belong to the Defendant.

6. The proceedings named the Defendant because the restraining order in relation to the car was sought pursuant to s 18 of the Act. The Defendant was the owner of the car. Were the proceedings only to involve the cash seized the proceedings would have been ex parte proceedings under s 19. I can see no prejudice to the Defendant arising out of the criminal proceedings from the present restraining orders being made in the same proceedings that the restraining order was made in respect in respect of the motor vehicle.

7. The Plaintiff seeks leave to amend paragraph 5 of the summons filed so that the reference to schedule 2 is a reference to schedule 3. Leave is granted in that respect.

8. The Plaintiff also seeks orders under s 38 of the Act that the official trustee take custody and control of the property. In the light of the nature of the property and what is contained in Ms Earl’s affidavit I consider that orders under s 38 should be made.

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Decision last updated: 28 April 2016