Citation: The Commissioner of the Australian Federal Police v Yiu Cho Fung [2016] NSWSC 379
Court: Supreme Court of New South Wales
Date: 6 April 2016
Judge(s): Wilson J
Background
The Commissioner of the Australian Federal Police (the AFP Commissioner) brought an urgent ex parte application (meaning the other party was not present or notified) in the Supreme Court, seeking to restrain property belonging to, or under the control of, the defendant. The application was made on the day it was filed and was sought to be heard immediately.
The defendant, a foreign national present in Australia on a student visa with no apparent means of local support, had come to the attention of investigators during a money laundering investigation. On 1 March 2016, he was stopped in a motor vehicle and found to be carrying $700,000 in vacuum-packed bags along with a substance believed to be methamphetamine. A subsequent search of his home uncovered a further $10,000 in cash, more suspected prohibited drugs, and items associated with drug supply including digital scales and plastic bags.
The defendant told investigators the cash had been given to him by a friend, but refused to identify that person. He had significant funds in two bank accounts, apparently transferred from Hong Kong, and the vehicle he was driving appeared to have been purchased with funds of no legitimate origin. He was charged with multiple offences and was before the Local Court awaiting committal proceedings at the time of this application.
Legal Issues
- Whether the AFP Commissioner had established sufficient grounds to warrant a restraining order over the defendant's property under the Proceeds of Crime Act 2002 (Cth)
- Whether the property identified in the Schedules to the Summons was, or was suspected to be, proceeds of crime or an instrument of crime connected to indictable offences
- Whether the orders could be made urgently and ex parte (without notifying the defendant)
Decision
The AFP Commissioner relied on an affidavit from an authorised officer under the Proceeds of Crime Act, who deposed to her suspicion that the defendant had committed offences including dealing with the proceeds of crime (s 400.4(2) of the Criminal Code), importing or exporting a commercial quantity of a border controlled drug or plant (s 307.5(1)), and a further proceeds of crime dealing offence (s 400.9(1)). All three offences qualify as indictable offences under the Proceeds of Crime Act.
Wilson J reviewed the evidence, including surveillance material and the circumstances of the 1 March 2016 interception, and was satisfied that proper grounds existed for making the restraining orders sought. The orders were made covering property listed in Schedules One, Two, and Three to the Summons, covering property suspected to be in the defendant's possession or under his control, as well as property believed to constitute proceeds of crime in whole or in part.
The Court noted that the AFP Commissioner had given the standard undertaking as to costs and damages, which is a customary requirement in applications of this kind (providing a measure of protection to the restrained party should the orders later prove unwarranted). The matter was listed for further directions before the Common Law Registrar on 27 April 2016.
Orders Made
- Restraining orders made in terms of Orders 1, 2, 3, 4, and 6 of the Summons, covering property in Schedules One, Two, and Three (property suspected to be proceeds of crime or an instrument of crime)
- Orders entered forthwith
- Matter listed for directions before the Common Law Registrar at 9am on 27 April 2016
- AFP Commissioner's undertaking as to costs and damages noted
Key Takeaways
- The Supreme Court of New South Wales granted an urgent ex parte restraining order under the Proceeds of Crime Act 2002 (Cth) on the same day the application was filed, confirming the Act permits such orders to be made without delay and without notifying the affected party.
- An authorised officer's sworn suspicion of an indictable offence, supported by surveillance material and physical evidence, was sufficient to satisfy the Court that proper grounds for restraint existed.
- Under the Proceeds of Crime Act, property may be restrained where it is suspected to be proceeds of crime or an instrument of crime, across multiple potential underlying offences, provided those offences are indictable offences within the meaning of s 338 of the Act.
- The AFP Commissioner's standard undertaking as to costs and damages was recorded, reflecting the procedural safeguard applied in ex parte restraining order applications of this kind.
- Restraining orders of this nature are interim in character: the matter was listed for directions shortly after, providing a mechanism for the defendant to be heard at a later stage.
Legislation and Cases Referenced
Legislation:
- Proceeds of Crime Act 2002 (Cth), including ss 338 (definitions, including "authorised officer" and "indictable offence")
- Criminal Code Act 1995 (Cth) (Schedule), including:
- s 307.5(1) (importing or exporting a commercial quantity of a border controlled drug or plant)
- s 400.4(2) (dealing with money or property that is proceeds of crime)
- s 400.9(1) (dealing with proceeds of crime)
Cases cited: No cases were cited in the judgment.