Commissioner of the Australian Federal Police v Xin

[2023] NSWSC 192

Supreme Court

New South Wales

Medium Neutral Citation:

Commissioner of the Australian Federal Police v Xin [2023] NSWSC 192

Hearing dates:

7 March 2023

Date of orders:

7 March 2023

Decision date:

07 March 2023

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. The time for compliance with order 152 made on 31 January 2023 is extended to Friday, 28 April 2023.

2. Liberty to apply on 2 days’ notice.

Catchwords:

Criminal law - proceeds of crime – restraining orders – extension of time to comply with orders under s 39(1) Proceeds of Crime Act 2002 (NSW)

Legislation Cited:

Proceeds of Crime Act 2002 (Cth) s 39

Cases Cited:

Commissioner of the Australian Federal Police v Bahmad [2020] NSWSC 439

Commissioner of the Australian Federal Police v Cranston (No. 2) [2017] NSWSC 673

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Commissioner of the Australian Federal Police (Plaintiff)
Steven Hoitou Xin (First Defendant)

Representation:

Counsel:
R Bianchini (Plaintiff)
J Caldwell (First Defendant)

Solicitors:
Criminal Assets Litigation, Australian Federal Police (Plaintiff)
J Sutton Associates (First Defendant)

File Number(s):

2023/32255

Publication restriction:

Nil

Judgment

1. On 31 January 2023 a large number of restraining orders were made by Hamill J under the Proceeds ofCrime Act 2002 (Cth) in respect of property of the first defendant, Steven Hoitou Xin (the first defendant), his wife, Yi Min Wang and other persons and entities. Order 152 made by Hamill J was that, pursuant to s 39(1) of the Act, Mr Xin was directed to give to the plaintiff, within 14 days of the date of service of the orders on him, a sworn statement in the form set out in Schedule 49 to the orders.

2. Schedule 49 provided:

1.   Provide full particulars of the nature and extent of your property or where applicable, the property of any company of which you are a director, including in relation to each item of property:

a.   description of the property, including the nature of your interest in it and, where possible, the estimated value;

b.   the location of the property;

c.   the name of the person or institution in whose custody title documents in respect of the property are believed to be;

d.   the approximate date of acquisition of the property;

e.   income earned from the property;

f.   a full description of any liability in relation to the property and the amount of the liability;

g.   the amount and date of payments made to discharge any liability in relation to the property;

h.   the source of the payments referred to in subparagraph 1 .g above; and

i.   the name of the person or institution to which the liability is owed.

2.   Provide full particulars of your current liabilities or where applicable, the liabilities of any company of which you are a director, including, in relation to each liability:

a.   full description of each liability including the nature of the liability and the amount of the liability; and

b.   the name of the person or institution to which the liability is owed.

3.   Provide full particulars of any disposition or dealing with property since 1 July 2013 to the date on which the statement is sworn, including:

a.   description of the property disposed of or dealt with, including the nature of the disposition or dealing and any proceeds received as a result of the disposition or dealing;

b.   the location of the property;

c.   the date of the disposition or dealing;

d.   the name of the person or institution to which the property was transferred;

e.   the amount and date of payments made to discharge any liability in relation to the property; and

f.   the source of the payments referred to in subparagraph 3.e above.

3. The evidence discloses that the first defendant was served with the orders on 3 February 2023. Accordingly, a sworn statement was due from him by 17 February 2023.

4. The matter has been back before the Registrar since the first defendant’s present solicitor came to act for him on 17 February 2023. When the matter was last before the Registrar, the Registrar directed that an affidavit was to be prepared, setting out the difficulties that the first defendant had encountered in complying with the orders. That affidavit by the first defendant’s solicitor, Mr John Sutton was sworn and filed on 6 March 2023.

5. As a result of the matters contained in that affidavit, the first defendant seeks an extension of time for the provision of the sworn statement to 30 May 2023. The plaintiff, on the other hand, seeks that the extension only be given until 15 March 2023.

6. Mr Sutton’s affidavit discloses, as I have said, that he was first retained on 17 February 2023, when he received a call from a relative of the first defendant, informing Mr Sutton that the first defendant was in custody and wished Mr Sutton to visit him.

7. Mr Sutton first saw the first defendant on 20 February 2023, and he did so in the company of an interpreter because the first defendant does not speak English. It appears that the first defendant had previously retained another solicitor but Mr Sutton, despite his attempts to contact that solicitor, has not managed to find out what that solicitor had done in relation to compliance with the first defendant’s obligations under the orders.

8. Mr Sutton has drawn attention to the size of the supporting material that led to the making of the orders, there being some 6500 pages of supporting material. He drew attention, in any event, to the extent of the orders made, which run to some 163 paragraphs and involve large numbers of bank accounts and other assets, either belonging to or under the control of the first defendant and/or his wife. I am informed that the first defendant’s wife is also in custody.

9. Mr Sutton has drawn attention to the difficulty of being able to obtain face time with person in prison, particularly at the moment, and the difficulty because of the first defendant’s inability to speak English, necessitating the presence of an interpreter on every occasion.

10. The plaintiff is concerned about delays in the matter because there is an obvious possibility that prior to the provision of the financial statements, attempts might be made to dispose of property, now that the first defendant is aware of the restraining orders and the final orders that are being sought in the proceedings. I was informed from the bar table that the first defendant is charged with serious financial offences that involve money laundering, and that he is said to be a principal in a money laundering syndicate which led to the charges and to the restraining orders that were made by Hamill J.

11. The plaintiff drew my attention what has been said in two cases, being Commissioner of the Australian Federal Police v Bahmad [2020] NSWSC 439 at [16] and Commissioner of the Australian Federal Police v Cranston (No. 2) [2017] NSWSC 673 at [6]. As far as can be ascertained, one important distinction between those cases and the present is that the defendants in those cases would appear not to have been in custody at the time the extensions were being sought by them for the provision of the financial information. Additionally, in the case of Bahmad, it is clear that the defendant had delayed and prevaricated in complying with the orders before seeking an extension of time.

12. One of Mr Sutton’s concerns in the present case is that what is to be provided is sworn information and, if that is incomplete or inaccurate, the first defendant would potentially be liable for further criminal proceedings as a result of the inadequate or inaccurate provision of the information. In Cranston, Fullerton J suggested at [6] in response to a similar concern that it might be possible for information to be provided as much as is known up to a certain point, with the ability to augment that information when any further information became further available.

13. It seems to me that the date sought by the plaintiff of 15 March is an unreasonable one. What is required in Schedule 49 is demanding, particularly the requirement in para 3 to provide particulars of disposition and dealing with all property since 1 July 2013, in circumstances where the first defendant is in prison and without access to his records, both paper and electronic.

14. On the other hand, I consider that the 12 week’ period sought by the defendant is similarly unreasonable, given the legitimate concerns that the plaintiff has expressed about the matter.

15. For those reasons, I think some middle ground is required, and I will extend the time for compliance with order 152 to Friday, 28 April 2023. I will grant the parties liberty to apply on two days’ notice in case further difficulties to either side arise.

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Decision last updated: 08 March 2023