Commissioner of the Australian Federal Police v Qiong Fu
[2013] NSWSC 1313
•09 September 2013
Supreme Court
New South Wales
Medium Neutral Citation: Commissioner of the Australian Federal Police v Qiong Fu [2013] NSWSC 1313 Hearing dates: 9 September 2013 Decision date: 09 September 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Restraining order made.
Catchwords: PROCEEDS OF CRIME - no question of principle. Legislation Cited: - Criminal Code Act 1995 (Cth)
- Proceeds of Crime Act 2002 (Cth)Category: Interlocutory applications Parties: The Commissioner of the Australian Federal Police (Plaintiff)
Qiong Fu (Defendant)Representation: Counsel:
Ms L. Booth (Sol) (Plaintiff)
Solicitors:
Proceeds of Crime Litigation, Australian Federal Police (Plaintiff)
File Number(s): 2013/272463 Publication restriction: Nil. (Note: On 11 September 2013 an interim suppression order was revoked.)
EX TEMPORE Judgment
Application to close the Court
Before me is an application by the Commissioner of the Australian Federal Police for various orders under the Proceeds of Crime Act 2002 (Cth) (the "Act"). At the outset, the Commissioner has applied for an interim suppression order concerning the whole of the material in the proceedings. The solicitor for the Commissioner has referred me to paragraph 13 of the affidavit of Glyn Evan Roberts sworn 9 September 2013, which outlines various steps in the course of an investigation that are likely to occur. Having regard to that material, I am satisfied that there is a significant potential for an investigation to be compromised if it was known that these proceedings were being brought and the basis for them. On that basis, I am satisfied that it is appropriate to make an interim suppression order.
Accordingly, I will order that the publication of all the evidence and submissions in these proceedings be suppressed until further order, that the identities of the defendants in the proceedings be suppressed until further order, and that the Court be closed for the hearing of the application.
Application for restraining order
This is an application under s 18 of the Proceeds of Crime Act for a restraining order in respect of certain property associated with the defendant as well as various ancillary orders.
In support of the application, an affidavit has been sworn by Glyn Evan Roberts on 9 September 2013. Mr Roberts's affidavit identifies him as a member of the Australian Federal Police and an authorised officer within the meaning of s 338 of the Act. His affidavit identifies the defendant, Ms Qiong Fu, as the registered proprietor of real property located at an address in Strathfield and an address in Beverly Hills, and as the registered owner of a BMW motor vehicle. The affidavit traces in detail the circumstances surrounding Ms Fu's purchase of those two properties and the motor vehicle. The affidavit notes other material available concerning Ms Fu's place of residence, her occupation and declared taxable income. It is also to be noted that the person believed to be Ms Fu's partner is shortly to be charged with various offences. In the end result, the affidavit sets out a reasonable basis for there being a significant, indeed gross, discrepancy between what appears to be Ms Fu's declared income and the receipt by her of very large amounts of cash and cheques, which were in turn applied to purchase the properties and the vehicle, or at least to repay loan facilities taken out for their purchase.
The affidavit records a belief held by Mr Roberts that the funds that have been identified are the proceeds or the instruments of an indictable offence, being an offence contrary to s 400.9(1) of the Criminal Code Act 1995 (Cth), namely, dealing in property with a value in excess of $100,000 reasonably suspected to be the proceeds of crime, colloquially known as money laundering.
Subsection 18(1) specifies that a court with proceeds jurisdiction, which this Court is, must order that property not be disposed of or otherwise dealt with by any person, or must not be disposed of or otherwise dealt with by any person except in a certain specified manner, if four conditions are satisfied. The first is that a proceeds of crime authority applies for the order. There is no doubt that that condition has been met.
The second is that there are reasonable grounds to suspect that a person has committed a serious offence. The basis for that suspicion as deposed to by Mr Roberts has already been summarised, that is, the discrepancy between Ms Fu's apparently lawful income and her receipt and utilisation of funds. Given the nature of the offence that has been identified, I accept that this material discloses reasonable grounds to suspect that Ms Fu has committed that offence.
The third requirement is that any affidavit requirements in s 18(3) have been met. Without traversing the details of s 18(3), in broad form they require that the affidavit record the statement by the authorised officer as to various matters. Mr Roberts' affidavit meets that requirement.
The fourth requirement for the making of a restraining order is that the Court is satisfied that the authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds. I have already referred to the suspicion that Ms Fu has committed a serious offence. To the extent that there are other suspicions stated in the affidavit concerning, for example, the use of proceeds of the offence and their connection with the property in question, I am satisfied that this requirement has been met as well.
Subject to what follows, the position is that the Court must make an order under s 18(1).
One matter of potential concern is that, quite properly, the Commissioner has brought to my attention that one of the properties has been the subject of an exchange of contracts. The added complication to that circumstance is that the orders sought by the Commissioner include an order delaying service of the order effectively so that the immediate investigation and potential charging of Ms Fu's partner will not be compromised. The potential for harm to an innocent third party from this combination of events is obvious. However, to mitigate this, I note two points. First, the Commissioner proffers, and I accept, an undertaking as to damages on behalf of the Commonwealth in accordance with s 21 of the Act. Second, it is anticipated that the arrest of Ms Fu's partner will occur very shortly, in which case immediate notice will be given. Also, notification of these orders will be placed on title. Further, for reasons that I will outline in relation to one of the proposed ancillary orders, I will be adding an order that there be liberty to apply on six hours' notice. The end result is that a purchaser who comes across the notation on title of the Court's orders will have the ability to approach this Court on an urgent basis, and will have the protection of an undertaking as to damages.
The next matter to note about the orders sought is, as I have already indicated, the Commissioner seeks to delay giving immediate notice that the orders have been made. Insofar as this concerns the giving of notice of the orders, the authority to delay service is to be found in s 33(3)(b) of the Act. Insofar as this concerns the delay in service of the initiating summons and accompanying material, authority is to be found in UCPR 10.1. In short, the proposal is that service be delayed for the shorter of one week or until the arrest of Ms Fu's partner. For the reasons I have outlined, I consider that that course is appropriate.
The next issue that arises concerns proposed orders that, under s 39(1)(d) of the Act, the defendant provide a sworn statement setting out her dealings with the property. I think that order is appropriate.
The next order sought is one directed to the Commonwealth Bank of Australia, which is the mortgagee of one of the properties, being the one the subject of the sale. The proposed order is in the form of a direction to the Commonwealth Bank, requiring it to provide any information requested by the Commissioner or its delegate about the sale within 24 hours of receipt of such a request. The authority to give the order is said to be s 39(1). Subsection 39(1) empowers the Court to "make any ancillary orders that the court considers appropriate" and then, without limiting the generality of that power, lists a number of specific forms of orders that can be made. None of the specific forms of order appears to go to the length of enabling a direction to be given to a third-party financier to provide information. However, I accept that it is at least reasonably arguable that the opening words of s 39(1) do authorise that. I think the appropriate course in this context is to extend the time within which the Commonwealth Bank may respond to 48 hours and then to also include a requirement that the bank receive a copy of all of the orders, which will include the express provision of liberty to apply on six hours' notice. This will enable the bank sufficient time, upon the receipt of any direction, to approach the Court if it seeks either to challenge the order or clarify some aspect of it.
Finally, I note that one of the orders sought seeks the examination of the affairs of the defendant, her partner and a relative who appears to have some connection with the alleged offences. Those orders are appropriate.
Accordingly, I will make orders 3, 4, 5, 6, 7 and 8 in the document entitled "ORDER" that will be initialled by me, dated today and placed with the papers. I will make order 9 but with the inclusion of a comma after "UCPR". I will make order 10. I will make order 11, modified as follows, namely, by the substitution of "48" for "24" in the last line and the addition of the words "provided that any such request is accompanied by a copy of these orders". I will make order 12. I will make order 13. And I will include an additional order, which I have numbered 14, to the effect that there be liberty to apply on six hours' notice.
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Decision last updated: 17 September 2013
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