R v CHAN, CHENG & ORS No. SCCRM-98-248 Judgment No. S41

[1999] SASC 41

R v CHAN, CHENG & ORS
[1999] SASC 41

Criminal

Debelle J (ex tempore)

1. This is an application for forfeiture of property pursuant to s19 of the Proceeds of Crime Act, 1987 (Cth) (“the Act”).  The application relates to a 1986 Holden Commodore motor vehicle, registration number UTY 715.  There are two estimates for the value of the motor car.  The first is $2,500 and the second is $4,500. 

2. The vehicle is registered in the name of Bach An Chan, who has been convicted of the offence of being knowingly concerned in the importation of heroin.  The offence was a particularly serious offence, since the amount of heroin involved was about 10 kilograms of pure heroin.  In addition, Mr Bach An Chan played an important role in the commission of this offence. 

3. There is no doubt that the vehicle was used in the commission of the offence and is, therefore, tainted property within the meaning of the Act.  There are, therefore, circumstances which justify making an order of forfeiture. 

4. Ms Helen Hue Lek claims an interest in the motor vehicle.  She is the sister of Bach An Chan.  She says in an affidavit, and her assertion is not challenged, that she believed that the purchase price of the vehicle was $10,500, and that she paid $7,000 towards the purchase price.  The motor vehicle was her sole means of transport until 1993 or 1994, when she purchased a second car. However, from time to time she continued to use the Holden which had been purchased by her and her brother in 1991. 

5. She also says it was always understood between her brother and herself that, if the vehicle was sold, the proceeds would be paid to her brother and herself in the proportion in which they had respectively contributed to the purchase price.  She said she had no knowledge of his involvement in the commission of the offence.  She, therefore, applies, under s21 of the Act, for orders protecting her interest in the motor vehicle.  There is no formal application.  The application is implicit in her affidavit.   No objection is made to the absence of a formal application. 

6. The question is whether Ms Lek is entitled to an order pursuant to s21(6) of the Act.  The prerequisites for an order are set out in the paras (a) and (b) of sub-s6 which provides:

   “If a person applies to a court for an order under this subsection in respect of the applicant’s interest in property and the court is satisfied that:

   (a)...... the applicant was not, in any way, involved in the commission of an offence in respect of which forfeiture of the property is sought, or the forfeiture order against the property was made, as the case requires; and

   (b)...... if the applicant acquired the interest at the time of or after the commission of such an offence - the applicant acquired the interest;

   ........... (i)       for sufficient consideration; and

   ........... (ii)      without knowing, and in circumstances such as not to

   arouse a reasonable suspicion, that the property was, at

   ........... the time of the acquisition, tainted property;

   ........... the court shall make an order:

   (c)...... declaring the nature, extent and value (as at the time when the order is made) of the applicant’s interest; and

   (d)...... either:

   ........... (i)       if the interest is still vested in the Commonwealth -

   directing the Commonwealth to transfer the interest

   ........... to the applicant; or

   ........... (ii)      declaring that there is payable by the Commonwealth

   to the applicant an amount equal to the value declared

   ........... under paragraph (c).”

It is apparent that Ms Lek was not in any way involved in the commission of the offence.   She therefore satisfies the terms of para (a).  The question then arises as to what is the meaning of para (b). 

1. Mr Christoforou, who appears for the Director, submits that a person is able to have the benefit of s21(6) only if the applicant has acquired the interest at the time of or after the commission of the offence.  He submits that Ms Lek’s interest is also to be forfeited. The effect of the submission is that s21(6) would operate only in the case of persons who acquire the interests at the time of or after the commission of the offence and would not avail those who already had an interest in the tainted property.  That creates an obvious unfairness in the case of those who had already acquired an interest long before the commission of the offence. I do not accept that submission. In my view, the opening words of para (b) are not a condition excluding those who acquire an interest before the offence is committed but are intended to identify a group of persons who must satisfy conditions in addition to those in para (a) if they are to be able to have the benefit of s21(6). As Ms Lek acquired her interest before the commission of the relevant offence, she is required to satisfy the court only as to the requirements of para (a) of sub-s6.  For the reasons already given, she satisfies that requirement.

2. In my view the appropriate course is to make an order forfeiting the interest of Bach An Chan and then to make orders pursuant to paras (c) and (d) of sub-s6.  Pursuant to para (c) I declare the value of this motor vehicle to be $3,500.  I have chosen a figure between the two valuations.   There can be no certainty in this area.  The vehicle is at least 12 years old and the value would be relatively low.  There is no certainty that either the higher or the lower value will be obtained.  It is appropriate, therefore, in an application of this kind, to strike a balance in this way.

3. Ms Lek seeks to have her interest transferred to her and to purchase the forfeited interest of Bach An Chan.   Again, it is appropriate not to resort to arithmetic which is unduly precise.  I declare that she has a 70 per cent interest in the vehicle. Bach An Chan's 30 per cent interest has a value of $1,050 and her interest, of course,  has a value of $2,450.  I direct the Commonwealth to transfer the 70 per cent interest to Ms Lek. The interest of Bach An Chan will be forfeited to the Commonwealth. The reality is that the Commonwealth must, therefore, dispose of the 30 per cent interest and the only realistic purchaser would be Ms Lek.  Section 19(7) of the Act invests the court with power to give all directions that are necessary for giving effect to the forfeiture order.  I direct the Commonwealth to transfer the forfeited interest of Bach An Chan to Ms Lek upon payment by her of the sum of $1050.  

4. There will be orders as follows to give effect to these reasons.