Commissioner of the Australian Federal Police v Wong

[2020] NSWSC 1693

Supreme Court

New South Wales

Medium Neutral Citation:

Commissioner of the Australian Federal Police v Wong [2020] NSWSC 1693

Hearing dates:

20 November 2020

Date of orders:

20 November 2020

Decision date:

20 November 2020

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

Orders made as in accordance with the short minutes of order

Catchwords:

CRIME – confiscations – restraining order – property instrument of a serious offence – where money property held in a controlled monies account - where order also sought to take custody and control of the funds

Legislation Cited:

Corporations Act 2001 (Cth) s 1043A

Proceeds of Crime Act 2002 (Cth) ss 17, 26(4), 38, 39(1)(da), 93, 333

Uniform Civil Procedure Rules 2005 (NSW) r 18.2(2)

Category:

Consequential orders (other than Costs)

Parties:

Commissioner of the Australian Federal Police (Applicant)
Wong (Respondent)

Representation:

Counsel:
Ex parte application
J. Kim (Applicant) (solicitor)

Solicitors:
Australian Federal Police (Applicant)

File Number(s):

2020/26857

EXTEMPORE JUDGMENT REVISED

1. Earlier today I made orders permitting this Summons to be filed in Court and returned immediately and also for the substantive relief contained in prayers 3-5 to be heard and determined today without notice under s 26(4) Proceeds of Crime Act 2002 (Cth). I have dealt with the matter ex parte because the authorised officer under the delegation of the Commissioner of the Australian Federal Police has requested that I proceed in that way. The effect of those provisions, that is to say s 26(4) of the Commonwealth Act and r 18.2(2) Uniform Civil Procedure Rules 2005 (NSW), necessarily mean that the matter must be dealt with ex parte.

2. Mr Kim relies upon the affidavit of Federal Agent Alexander Lachlan Archibald Drummond affirmed on 20 November 2020 to which is annexed exhibit AD-1 exhibiting relevant material on which his suspicion is based. The power invoked to make the restraining order in this case is s 17 of the Act.

3. The evidence establishes that the defendant, Mr Wong, was convicted of a serious offence of insider trading in the District Court of New South Wales on 4 June 2020. These offences were contrary to s 1043A Corporations Act 2001 (Cth). Under s 333 Proceeds of Crime Act the conviction day for the offence is taken to be 4 June 2020. Mr Kim has pointed out, in his helpful written submissions, that in those circumstances there is a requirement of urgency in dealing with the matter because, under s 92 of the Commonwealth Act, if the order is made, the property will be forfeited to the Commonwealth on 4 December 2020.

4. The specific property sought to be made the subject of the restraining order is a sum which is said to be the proceeds of the insider trading offending. That sum, which is an amount in excess of $2 million, on the evidence before me, is held in a controlled money account established by the law firm Dentons who acted for Mr Wong in his defence of the prosecution. His solicitor is a partner of that firm, Ms Emma Jane Hodgman. Her affidavit of 13 May 2020 was read in the proceedings on sentence before his Honour Judge Bennett SC in the District Court on 15 May 2020 and was referred to in his judgment of 4 June 2020, which I also have read, and I am satisfied that I am entitled to have regard to the affidavit for today's purposes.

5. I am satisfied that Mr Wong has been convicted of the indictable offence I have referred to. I am also satisfied, having read Agent Drummond's affidavit, that it complies with the provision of s 17(3) of the Act and that it fully states the grounds upon which Mr Drummond has formed the suspicions to which he deposes. I am satisfied that those suspicions are held by the officer on reasonable grounds.

6. In those circumstances, in accordance with s 17(1), I am required to make the order sought in respect of that property. I am required to make the order notwithstanding that given the undertakings previously made by Mr Wong through his solicitors there is no risk of the property being disposed or otherwise dealt with. I note this is not a matter to which the provisions of s 17(4) of the Commonwealth Act apply.

7. It is also the case that an order is sought under s 38 of the Act directing that the Official Trustee take custody and control of the funds. I accept the evidence of Mr Drummond and the argument of Mr Kim, solicitor, that this is an appropriate order to safeguard the funds. In the hands of the Official Trustee they will be invested and will attract such interest rate as might currently be available in respect of such a sum of money.

8. An order is also sought under the provision of s 39(1)(da). That provision applies if I am satisfied that there are reasonable grounds to suspect that a person, other than the owner of the funds, has information relevant, in this case, to quantifying the property, that I may make an order directing that person to give a sworn statement to a specified person within a specified period setting out particulars of dealings inter alia with the property.

9. It seems to me, from the evidence before me, that Ms Hodgman is such a person and that it is legitimate for the Commissioner to be provided with information in relation to the dealings with the Trust Fund while it has been under the control of Dentons Solicitors for the purpose of understanding the present balance and considering whether there is any justification for the Commissioner seeking to trace any part of the funds into the hands of any other person.

10. I have made these orders and will pronounce the formal orders upon the undertaking given by the Commissioner on behalf of the Commonwealth, in accordance with the form of the usual undertaking as to costs and damages required under the rules when interlocutory orders of this type are made.

11. I should record in these reasons that, given the shortness of time between the making of these orders and the date for forfeiture, provided by s 92 of the Act, the Commissioner has made clear that if Mr Wong seeks an extension of time under s 93 it will be consented to. For that purpose I have allowed liberty to apply on short notice to the Duty Judge.

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Decision last updated: 27 November 2020