Supreme Court New South Wales Medium Neutral Citation: Commissioner of the Australian Federal Police v Isaac El Chami [2021] NSWSC 165 Hearing dates: 1 March 2021 Date of orders: 1 March 2021 Decision date: 01 March 2021 Jurisdiction: Common Law Before: Campbell J Decision: (1) Restraining orders made in accordance with the short minutes of order over the property described in schedules one, two and three of the Commissioner's summons. (2) Custody and control orders made allowing the Official Trustee in Bankruptcy to take custody and control over the property described in schedules one, two and three. Catchwords: CRIME — Confiscations — Restraining order — Property proceeds of an indictable offence Legislation Cited: Proceeds of Crime Act 2002 (Cth) Criminal Code 1995 (Cth) Cases Cited: N/A Texts Cited: N/A Category: Procedural rulings Parties: Commissioner of the Australian Federal Police (Plaintiff) Isaac El Chami (First defendant) Chenqui Lu (Second defendant) Representation: Solicitors: J Kim (Plaintiff) File Number(s): 2021/00058202 Publication restriction: Restriction lifted EX TEMPORE Judgment - revised 1. This is an application by the Commissioner of the Australian Federal Police on an urgent, ex parte basis for restraining orders under ss 18 and 19 of the Proceeds of Crime Act 2002 (Cth). Other ancillary orders are sought if I am persuaded that the Commissioner has made out grounds for the restraining orders. They include orders under s 38, that the property the subject of the orders be vested in the official trustee in bankruptcy for custody and control purposes and that the defendants provide information about their interests in property, under the provisions of s 39 of the Act. 2. Under s 18, the Court is required by law to make a restraining order if the conditions set out in paras (c) to (f) of sub-s (1) of s 18 are made out on the basis of an affidavit complying with the requirements of s 18(3). 3. The affidavit relied upon in that regard is the affidavit of Federal Agent Scott McAllister affirmed on 1 March 2021. That affidavit, to my mind, complies with s 18(3). The officer states that he suspects that the defendants have committed the serious offences referred to in his affidavit, particularly at paras 12 to 15. The offences involved are a contravention of s 134.21 of the Criminal Code 1995 (Cth), dishonestly obtaining a financial advantage from the Commonwealth and s 400.91 of the Criminal Cod,e dealing with money that is reasonably suspected to be the proceeds of crime. Each of those matters is a serious indictable offence for the purpose of the Act. The financial deception offence carries a maximum penalty of 10 years imprisonment and the money-laundering offence, three years imprisonment. 4. The officer also has the suspicion, in accordance with para (b) of subs (3), that the property the subject of these proceedings, which principally consist of money in bank accounts and a motor vehicle, is property which is at least under the effective control of the suspect and the affidavit fulsomely sets out the grounds on which the officer holds that suspicion. 5. I will simply say that the first defendant is a person of no obvious profession or ongoing occupation, whose disclosed income for tax purposes has largely been the proceeds of various amounts of social security payments. He has come into, through a method which is not entirely clear but the result of which is clear, some millions of dollars of Commonwealth money by lodging false, forged business activity statements for what appears to be a legitimate business who had already lodged its BAS in accordance with the law. The forged, false amended documents resulted in three very large refunds which the legitimate company did not claim, and to which the defendants were not entitled and those amounts, as I have said, total some millions of dollars which were diverted from the taxpayer's account to an account controlled by the first defendant. 6. I am satisfied that the Commissioner is a proceeds of crime authority who has applied for the s 18 restraining order, and that there are reasonable grounds to suspect that the defendants, in particular, Mr El Chami, have committed a serious offence and that s 18(3) has been complied with. Having reviewed the material and the affidavit for myself, I am satisfied that Mr McAllister's suspicions are held on reasonable grounds. 7. I should say in relation to the second defendant that, on the evidence, he does seem to be an associate of the first defendant and he seems to have derived a very large payment of $385,000 out of the bank accounts which were used to launder the money of which the Commonwealth was apparently defrauded. 8. Restraining orders are also sought under s 19. I am satisfied, for the same reasons I have given, that the Commissioner has applied for an order and is a proceeds of crime authority. I am also satisfied that there are reasonable grounds to suspect that the property the subject of the application is either, or both of, the proceeds of a serious indictable offence or an instrument of a serious offence and that the affidavit of Federal Agent McAllister complies with s 19(1)(e). I am satisfied that these suspicions that the officer affirms are held on reasonable grounds. Again, I am required by law to make the restraining orders sought. 9. Given that the property the subject of the orders is, as I have said, money in the bank or, more formally, a chose in action against the bank, it goes without saying that the funds could readily be dissipated. Another item of property is a Mercedes Benz motor vehicle, not of any particular value, but, likewise, it could readily be dealt with adversely to the legitimate interest of the Commonwealth in clawing back the proceeds of the suspected criminal activity. 10. For those reasons, I am satisfied that the orders should include the orders sought by way of custody and control orders under s 38, in the terms set out in paras 8 to 13 of the summons and indeed as contained in the short minutes of order that Mr Kim, solicitor, who appears for the Commissioner, has handed up. 11. I will make the other orders sought. 12. I note that the Commissioner on behalf of the Commonwealth proffers the usual undertaking as to costs and damages and I make orders in accordance with the short minutes of order handed up by Mr Kim, signed by me and dated today. 13. These orders may be entered forthwith. ********** Amendments 28 May 2024 - Publication restriction lifted due to completion of legal process DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 May 2024