The Commissioner of the Australian Federal Police v Fung

[2017] NSWSC 122

Supreme Court

New South Wales

Medium Neutral Citation:	The Commissioner of the Australian Federal Police v Fung [2017] NSWSC 122
Hearing dates:	22 February 2017
Decision date:	22 February 2017
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Orders as sought in short minutes
Catchwords:	PROCEEDS OF CRIME – forfeiture orders – where person from whom cash seized makes no claim
Legislation Cited:	Proceeds of Crimes Act 2002 (Cth), ss 19, 49, 69 Criminal Code (Cth), s 400.4
Category:	Procedural and other rulings
Parties:	The Commissioner of the Australian Federal Police (plaintiff) Yiu Cho Fung (defendant)
Representation:	Counsel: J Millington (solicitor for the plaintiff) (ex parte)   Solicitors: The Commissioner of the Australian Federal Police – Criminal Assets Litigation
File Number(s):	2016/00103126

Judgment

1. HER HONOUR: This is an application by the Commissioner of the Australian Federal Police for forfeiture orders sought in paragraphs 14 to 17 of an amended summons filed 11 July 2016. The proceedings are brought against Mr Fung, who has pleaded guilty to offences contrary to ss 400.4(1) and 400.4(2) of the Criminal Code (Cth).

2. On 27 April 2016, restraining orders were made in the proceedings pursuant to s 19 of the Proceeds of Crime Act 2002 (Cth) over amounts of cash specified in schedules 2 and 3 to the amended summons. On 27 July 2016, further restraining orders were made pursuant to the same section in respect of two further amounts of cash specified in schedules 4 and 5 of the amended summons. The Commissioner now seeks forfeiture of those four amounts of cash.

3. Section 49 of the Act provides that the Court must make a forfeiture order in respect of restrained property if certain conditions are satisfied. Those conditions are, first, that the responsible authority applies for an order under the section. That has occurred.

4. Secondly, it is a condition that the relevant restraining order must have been in force for at least six months. That is the case.

5. A third condition is that the Court must be satisfied that one or more of the circumstances specified in s 49(1)(c) applies. However, that provision does not apply if the Court is satisfied in the terms of sub-s (3)(a) that no application has been made for property to be excluded from the restraining order. In the present case, no such application has been made.

6. The final condition is contained in s 49(1)(e), being that the Court must be satisfied that the authority has taken reasonable steps to identify and notify persons with an interest in the property.

7. The present application is supported by the affidavit of Jody Earl affirmed 17 February 2017 which sets out the steps that have been taken in that respect. On the strength of that material, I am satisfied in the terms of the section. It follows from the terms of s 49 that I must make the order sought.

8. The Commissioner also seeks an order pursuant to s 69 of the Act granting leave to the Commonwealth to deal with the forfeited property immediately. Section 69 is not prescriptive as to the circumstances in which the Court may grant such leave. Section 69(1) contemplates deferral of the period within which the Commonwealth may begin dealing with forfeited property for the purpose of allowing an appeal to be brought against the forfeiture order. It may be inferred that s 69(2), which provides that such disposals and dealings may occur earlier with leave of the Court, contemplates the exercise of that discretionary power at least in circumstances where it is plain that no appeal will be brought.

9. The only persons identified who might have an interest in the property are the defendant and one other person. Their attitude to the present application, as revealed in the correspondence annexed to Ms Earl's affidavit, has been to take no interest in it. It is plain that there will be no appeal in this case. I am satisfied that it is appropriate to grant the leave sought.

10. For those reasons I make orders 1-7 in the form of order handed up by Ms Millington on behalf of the Commissioner.

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Decision last updated: 23 February 2017