Supreme Court New South Wales Medium Neutral Citation: The Commissioner of the Australian Federal Police [2014] NSWSC 1346 Hearing dates: 23 September 2014 Decision date: 01 October 2014 Jurisdiction: Common Law Before: Schmidt J Decision: Orders sought made. Catchwords: CRIMINAL LAW - ex parte application - orders sought under s 19 of the Proceeds of Crime Act 2002 (Cth) - examination orders - orders sought made - reasons Legislation Cited: Criminal Code (Cth) Proceeds of Crime Act 2002 (Cth) Category: Procedural and other rulings Parties: The Commissioner of the Australian Federal Police (Plaintiff) Representation: Solicitors: Ms L Bower Proceeds of Crime Litigation, Australian Federal Police File Number(s): 2014/247031 Publication restriction: None Judgment 1By summons filed on 22 August 2014, the Commissioner of the Australian Federal Police, a proceeds of crime authority under s 338 of the Proceeds of Crime Act 2002 (Cth), sought restraining orders under s 19 of the Act in relation to some $AUD411,760 in cash seized by Australian Federal Police (AFP) in April 2013. Orders under s 38 that the money be taken into the custody of the Official Trustee in Bankruptcy were also sought, as well as examination orders under s 180. 2There are two interested parties to the application, Mr Liang Chen and Mr Geoffrey Wang (or Yue). 3The application was supported by an affidavit sworn on 21 August 2014 by Glyn Roberts, a member of the Australian Federal Police ("AFP") an authorised officer under the Act; an affidavit sworn by Trenton Schmidt, another AFP member on 19 September; and by an affidavit sworn on 19 September 2014 by Caitlin Telfer, a litigation assistant in the employ of the AFP. 4For the following reasons, I make the orders sought on 23 September 2014. 5Section 26 of the Act deals with the notice which must be given of applications such as this. The evidence established that necessary notice had been given. 6Ms Telfer deposed to service of the application on Mr Chen, who is detained in remand in Melbourne and attempted service on Mr Wang at an address in Sydney, at another in Shanghai and on his former solicitor, Ms Chen. 7Mr Schmidt's affidavit explained enquiries made to locate Mr Wang, who had left Australia for China in 2013 and had not returned. Ms Telfer deposed to advice later received from Ms Chen that she had spoken to Mr Wang who was in China and who had advised her that he had received documents from the police in Australia. She did not think that he had a visa permitting him to return to Australia, but she had not received instructions to appear on his behalf. 8This Court is a court with "proceeds jurisdiction" to make the order sought under s 19 of the Act, the alleged offences having occurred in this State and the property the subject of the orders being located here (see s 335). Section 19 requires the making of restraining and other orders, upon satisfaction that an authorised officer who provides an affidavit supporting the application holds subsections of the kind specified on reasonable grounds. 9In support of this application Mr Roberts deposed as to his suspicions that the cash the subject of the application was the proceeds of an indictable and/or serious offence, namely money with a value exceeding $AUD100,000, reasonably suspected of being proceeds of crime, an offence under s 400.9(1) of the Schedule to the Criminal Code (Cth). 10Mr Roberts deposed that his suspicions rested on information provided by Federal Agent McIntyre, the criminal case officer in the matter. Mr Chen, who has resided in Australia since 2007 was suspected of being involved in an organised crime syndicate as a money remitter. The syndicate's methodology was for third parties to remit small amounts of money on his instructions, in order to evade the attention of authorities. He is known to associate with a suspected drug dealer, Mr Ng, and has been charged with money laundering and drug trafficking offences. Forfeiture orders in respect of some $1,603,806 were made against Mr Ng in June. Mr Chen's trial is scheduled to commence on 7 October 2014. 11Mr Chen and Mr Ng became the subject of surveillance by a multi-agency task force into organised crime. Based on signed statements of a Mr Lee and a Mr Kim, Mr Roberts suspected that Mr Chen was observed in their company in September 2012 taking a bag into a money exchange and transfer business in Ashfield. Exchange records show that they each remitted money that day, totalling some $AUD200,000. 12In April 2013, Mr Chen was observed by Federal Agents, including Mr Roberts, entering a money remitter at Haymarket. He was found in possession of bags of money, some of which he said his friend Mr Wang had asked him to remit to China and that the rest belonged to him. When spoken to, Mr Wang confirmed one of the bags of money was his. Mr Chen was arrested on suspicion of money laundering and later bailed. 13Mr Chen is a shareholder in a mobile phone shop, but said that most of his income came from his parents. The cash the subject of this application was seized from him on 23 April 2013. Also found in his possession were six mobile phones, a driver's licence, credit card and Medicare card, in the name of Xia, as well as a driver's licence in his name and other items, including an address at Mountbatten, where a consignment addressed to Chen Ming of a precursor ephedrine had been intercepted by Customs officers the previous day. Further investigations outlined led Mr Roberts to hold the suspicion that the Xia licence, Medicare card and credit card are all counterfeit 14Mr Chen was in the company of four others in April 2013 when arrested. On further investigation they were shown each to have remitted large sums of money to China throughout 2013, including on the previous day. One had remitted some $AUD759,454 in 16 transactions and another $AUD176,575 in four transactions. 15Mr Wang was interviewed and made statements as to the source of the money, Mr Chen was found with, which he said belonged to him. Those sources included an unknown female at a hotel room at the Star Casino who had given him $180,000 in repayment of a debt owed to him someone in Melbourne named Simon. 16Mr Roberts deposed to a suspicion that Mr Wang had agreed to provide Mr Chen with an alibi, given their inconsistent accounts; the discrepancy between the amounts seized and Mr Wang's accounts and with their observed behaviour while under surveillance. Mr Chen was later arrested in Melbourne in June 2014, in possession of a further sum of cash of some $309,811.10, which he also claimed belonged to Mr Wang. He has also been charged in respect of that money. 17Mr Wang was later examined and made statements that he had operated an informal cash loaning business which generated income of some $10,000 per week on which he had never paid cash and that he had sent money to his parents in China through Mr Chen. 18Mr Roberts considered the cash seized to be grossly disproportionate to the declared income of both Mr Chen and Mr Wang. There are no ATO records which explain a legitimate source of income for this cash. 19On the basis of Mr Robert's affidavit I was satisfied both that he holds the suspicions to which he deposed and that there were reasonable grounds for those suspicions to be held. In the result I was satisfied that the orders sought had to be made. ********** Amendments 27 October 2014 - typographical error - word 'made' changed to 'make' Amended paragraphs: [4] 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: 27 October 2014