The Commissioner of the Australian Federal Police v Yiu Cho Fung

[2016] NSWSC 379

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

The Commissioner of the Australian Federal Police v Yiu Cho Fung [2016] NSWSC 379

Hearing dates:

5 April 2016

Date of orders:

05 April 2016

Decision date:

06 April 2016

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

1. I propose to make orders 1, 2, 3, 4 and 6 of the Summons, as the Commissioner requests. Those orders may be entered forthwith.

 

2. The matter is to be listed for directions before the Common Law Registrar at 9am on 27 April 2016.

 3. The plaintiff gives the usual undertaking as to costs and damages.

Catchwords:

CRIMINAL LAW – proceeds of crime – restraining order – ex parte

Legislation Cited:

Criminal Code Act 1995 (Cth)
Proceeds of Crime Act 2002 (Cth)

Category:

Procedural and other rulings

Parties:

The Commissioner of the Australian Federal Police (Plaintiff)
Yiu Cho Fung (Defendant)

Representation:

Ms Millington (Plaintiff)
Ex parte (Defendant)

File Number(s):

2016/103126

Judgment

1. By summons filed today and sought to be returnable instanter, the Commissioner of the Australian Federal Police seeks urgent ex parte orders pursuant to the Proceeds of Crime Act 2002 (Cth).

2. Tendered in support of the application is an affidavit of Jody Earl, affirmed 4 April 2016, which refers to and annexes a number of documents. Ms Earl is an authorised officer for the purposes of s 338 of the Proceeds of Crime Act.

3. She deposes to her suspicions that the defendant has committed an offence contrary to s 400.4(2) of the Schedule to the Criminal Code Act 1995 (Cth) (‘the Code’), being an offence of dealing with money or other property that is the proceeds of crime. Property the subject of Schedule One to the summons filed by the Commissioner lists property of the defendant, or which is under his control, that is believed to be such property, or property an instrument of crime.

4. Property listed in Schedules Two and Three to the Summons is believed to be the proceeds of crime, in whole or in part, the relevant offences being an offence contrary to s 400.4(2) of the Code, an offence of importing or exporting a commercial quantity of a border controlled drug or plant contrary to s 307.5(1) of the Code, and offence of dealing with the proceeds of crime contrary to s 400.9(1). Each of these offences are indictable offences as defined by s 338 of the Proceeds of Crime Act.

5. The defendant was identified during the course of an investigation into money laundering. He was the subject of surveillance, and information derived from that surveillance is before the Court as part of the evidence.

6. On 1 March 2016 the defendant was stopped whilst in a motor vehicle and found in possession of the sum of $700,000 sealed in vacuum packed bags, together with a quantity of crystalline substance believed to be methamphetamine. A search warrant was subsequently executed upon his home and a number of items seized, including $10,000 in cash, a quantity of a substance believed to be a prohibited drug, and items typically associated with drug supply, such as digital scales and plastic bags.

7. In an interview the defendant claimed to have been given the cash in his possession by a friend, although he declined to name his friend. The defendant is in this country on a student visa. He has no apparent means of support in this country, although he has significant funds in two bank accounts which appear to have been transferred to him from Hong Kong. The motor vehicle the defendant had possession of appears to have been purchased by him with funds that have no legitimate origins.

8. The defendant was subsequently charged with a number of offences and is currently before the Local Court awaiting committal proceedings.

9. The Commissioner seeks to restrain the property set out in the Schedules, before it can be disposed of by the defendant.

10. I am satisfied that there are proper grounds for making the orders sought by the Commissioner and propose to make orders 1, 2, 3, 4 and 6 of the Summons, as the Commissioner requests. Those orders may be entered forthwith.

11. Additionally, the matter is to be listed for directions before the Common Law Registrar at 9am on 27 April 2016.

12. I note the plaintiff has given the usual undertaking as to costs and damages.

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Amendments

06 April 2016 - At the request of the Commissioner of the Australian Federal Police, Order 4 is additionally made.

Decision last updated: 06 April 2016