Commissioner of the Australian Federal Police v Fung [2021] NSWSC 1359 (22 October 2021)

Last Updated: 22 October 2021

Supreme Court New South Wales

Case Name:	Commissioner of the Australian Federal Police v Fung
Medium Neutral Citation:	[2021] NSWSC 1359
Hearing Date(s):	22 October 2021
Date of Orders:	22 October 2021
Decision Date:	22 October 2021
Jurisdiction:	Common Law
Before:	Schmidt AJ
Decision:	See [41]
Catchwords:	CRIME – Money Laundering – Dealing with money suspected of being proceeds of crime – Serious and indictable offences PROPERTY – Property suspected of being proceeds of indictable offences – s 19(1)(d) Proceeds of Crime Act 2002 (Cth) – Restraining Orders – Custody and Control Orders CIVIL PROCEDURE – Service – Substituted service – Rule 1014 Uniform Civil Procedure Rules 2005 – Where the only possible method of service is by electronic mail – Orders for substituted service made
Legislation Cited:	Criminal Code (Cth) 400.3(1), 400.9(1) Proceeds of Crime Act 2002 (Cth) ss 18,19, 338 Uniform Civil Procedure Rules 2005 (NSW) r 1014
Cases Cited:	George v Rockett (1990) 170 CLR 104; [1990] HCA 26 Williams v Keelty (2001) 111 FCR 175; [2001] FCA 1301
Category:	Principal judgment
Parties:	Commissioner of the Australian Federal Police (Plaintiff) Yuen Hong Fung (First Defendant) Kha Weng Foong (Second Defendant) Un Sai Cheng (Third Defendant)
Representation:	Counsel: J Tully (Plaintiff) Solicitors: Penelope Kelton(Plaintiff) Lloyd Truman Sadiq Solicitors (Third Defendant)
File Number(s):	2021/261735
Publication Restriction:	Nil

JUDGMENT

1 The defendants came to police attention in 2015 during the investigation of money laundering offences. In August 2015 Mr Fung and Mr Foong were both arrested at an ATM while in the process of removing bundles of cash from a bag and depositing them in the machine. On arrest they were both found in possession of debit cards in other names and in Mr Foong’s case, driver licenses in false names.

2 They were charged and various search warrants were then executed, with the result that various property, including large amounts of cash found in various locations, debit cards in other names, keys to a BMW and drivers licenses in other names were all seized.

3 In September 2021 the Commissioner, who is a proceeds of crime authority under s 338 of the Proceeds of Crime Act 2002 (Cth), commenced these proceedings seeking orders under ss 18 and 19 in relation to property specified in schedules to the summons. That included the various seized cash and the BMW. Custody and control, forfeiture and other orders were also sought.

4 At the hearing orders were pressed under ss 18 and 19 of the Act in relation to the property, as well as orders for substituted service under Rule 1014 of the Uniform Civil Procedure Rules 2005 (NSW) in relation to Mr Fung, who has been deported and whose present whereabouts are unknown.

5 The second and third defendants, Mr Foong and Ms Cheng, Mr Fung’s wife, consented to the proposed restraining, forfeiture and other orders. There was no appearance for Mr Fung but on the evidence, I was satisfied that it was just to proceed to hear the Commissioner’s application for restraining orders, in his absence.

6 Having heard the Commissioner I made the orders sought, being satisfied that the onus which fell on the Commissioner had been met. I also listed the matter for further hearing in relation to Mr Fung in May and made orders as to steps which he should take, if he wishes then to be heard on the further forfeiture orders which will then be heard.

7 The reasons for the orders made are as follows.

The application

8 The application was supported by affidavits sworn by Mr Edwards, who performs duties in the Criminal Assets Confiscation Taskforce, a multi-agency body led by the AFP, Ms Tully, a senior litigation lawyer employed by the AFP, as well as affidavits of service on Mr Foong and Ms Chen.

9 Mr Edwards explained in his affidavit how Mr Fung and Mr Foong came to be arrested; how the property dealt with in the schedules to the summons came to be seized; and the suspicions which he had formed as a result. He also explained the problem with serving Mr Fung and the efforts pursued to obtain Mr Fung’s contact information.

10 Ms Tully’s affidavit explained the electronic communications pursued in order to put Mr Foong on notice of the proceedings and the orders sought and what had resulted.

11 The offending in which Mr Edwards suspected the defendants had been involved, involved serious and indictable offences for the purpose of the Criminal Code Act 1995 (Cth). Mr Edwards also explained the basis of his suspicions that the seized cash and the BMW were the proceeds and/or instrument of an offence contrary to s 400.9(1) of the Criminal Code and within his effective control: s 18(2)(c) of the Proceeds of Crime Act.

12 For their part Mr Fung and Mr Foong have since been convicted, having entered pleas of guilty, to:

(1) Dealing in proceeds of crime worth more than $1million contrary to s 400.3(1) of the Code; and

(2) Dealing in money or property reasonably suspected of being proceeds of crime worth more than $100,000, contrary to s 400.9(1) of the Code.

Mr Fung

13 Mr Edwards explained how Mr Fung was interviewed after arrest about ownership of the cash seized by police from various locations and the identity of the persons named on the cards found in his possession. He provided no information about the source of the cash, or those named on the cards. He has since claimed no interest in that cash or the BMW.

14 Mr Fung’s income and that of Ms Cheng, as well as the ownership of the BMW were investigated. Mr Fung had not declared any income and Ms Cheng’s limited income cannot have been the source of the cash, nor financed the purchase of the BMW, which had been acquired in another name.

15 At one point, Ms Cheng contacted Mr Edwards and later, a solicitor acting for her contacted the AFP and claimed that she owned the BMW. When advised that she had to provide proof of her ownership, she instructed that she no longer wished to claim any interest. Since then she has not pursued any interest which she might have in this car and consents to the orders which the Commissioner seeks in respect of it.

16 In 2017 Mr Fung was sentenced in the District Court for his offending to imprisonment for 6 years and 4 months with a non-parole period of 4 years and 6 months. On release he was deported.

Orders for substituted service

17 Mr Edwards’ evidence established that on release from custody in February 2020 Mr Fung departed Australia under the name Ng, intending to travel to Taiwan. He has not returned and did not provide authorities with any contact information there, or elsewhere.

18 Mr Fung had provided an email address in the name of Fung in 2014 and one in the name of Phung in 2012, as well as an email contact address and phone numbers of another person, to Ms West, in 2007. The mobile number then provided was the number Ms Cheng had used, when she spoke to Mr Edwards about the BMW.

19 On that evidence I was satisfied that the only possible method of service on Mr Fung was by electronic email.

20 In her affidavit Ms Tully explained steps already taken to serve Mr Fung electronically at his known addresses with correspondence, the sealed summons, Mr Edwards’ affidavit, notice of the Court listing and directions given. Failure notifications were received from some, but not all of the email addresses to which the documents were sent and relay notifications were received from two of them.

21 Mr Fung has still not entered an appearance, nor sought to resist the orders which the Commissioner sought.

22 In those circumstances I was satisfied that the application for restraining orders had to be heard and orders for substituted service had to be made, sufficient steps having been taken to give Mr Fung notice of the proceedings and the orders which would be sought against him, to proceed to hear and determine the Commissioner’s application, in his absence.

Restraining orders should be made

23 I was also satisfied that restraining orders should be made.

24 What the Commissioner must establish on the evidence on such an application is the existence of facts which are sufficient to induce suspicion in the mind of a reasonable person: George v Rockett (1990) 170 CLR 104; [1990] HCA 26 at 112. Further, in assessing whether such facts exist, the evidence must be approached in the way discussed in Williams v Keelty (2001) 111 FCR 175; [2001] FCA 1301 at [166]:

“It is the issuing officer who is required to be satisfied that there are reasonable grounds for suspecting the relevant matters. The notion of reasonable grounds for a suspicion imports an objective test, but "reasonable" involves a value or normative judgment (Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 at 167), and there may well be legitimate differences of opinion as to what falls within the term, particularly when it is used in relation to a nebulous expression such as "suspicion". A Court is not entitled to substitute its own opinion on that question for the opinion of the issuing officer. That does not mean that the issuing officer has an unexaminable discretion; it does mean, however, that the issuing officer's decision is only impeachable if the decision was one which the officer could not lawfully reach on the materials before him: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-276.”

25 Such reasonable grounds may be based on materials “falling well short of making out a prima facie case”: at [172]. In this case, of course, there have been convictions.

26 In the result I was satisfied that the evidence I have discussed did establish reasonable grounds for Mr Edward’s suspicions.

27 I was satisfied that there could be no issue about the Court’s power to make the orders sought.

28 Further, that the evidence I have discussed established that the cash and the BMW identified in schedules 1 and 2 of the summons were in Mr Fung’s effective control: s 18(2)(c) of the Proceeds of Crime Act. It also established that they were the proceeds and/or instruments of indictable and serious offences: s19(1)(d).

29 The evidence did not suggest that anyone other than Mr Fung or Ms Cheng had an interest in that property. She had consented to the proposed restraint and forfeiture. While Mr Fung is no longer in the jurisdiction and has not been heard, the evidence also established that there was no conceivable basis on which he might resist the restraining orders sought.

30 In the result I was satisfied that the proposed orders in relation to the property the subject of schedules 1 and 2 of the summons had to be made.

Mr Foong

31 Mr Foong was also interviewed after arrest about the seized cash, cards in other names found in his possession and his ownership of two vehicles, a Mitsubishi and a Kluger. He then claimed that he had been unemployed for many years and had last worked for cash the previous week, at a café which he identified. That was also investigated. The tax records of the company which operated the cafe established that it had limited legitimate income to pay workers’ wages.

32 In the Mitsubishi further cash and several other cards were later found in other names, about which Mr Foong was also interviewed. Investigation of those names led Mr Edwards to suspect that those persons did not exist. More cash was found at Mr Foong’s residence, as well as drivers licenses in false names. Since then Mr Foong has also not claimed any interest in this cash.

33 Mr Edwards also explained the basis of his suspicions that Mr Foong had limited legitimate income; that the cash was grossly disproportionate to his income and expenditure around the time of his arrest; that it was derived from conduct involving bank accounts held in false names; and that the cash was also proceeds and/or an instrument of offending contrary to s 400.9(1) of the Code and had been within Mr Foong’s effective control, within s 18(2)(c) of the Act.

34 In 2017 Mr Foong was also sentenced in the District Court for his offending to imprisonment for 5 years and 3 months, with a non-parole period of 4 years and 6 months.

35 I was also satisfied that the evidence established that the cash identified in schedules 3, 4 and 5 of the summons were in Mr Foong’s effective control and that it was the proceeds and/or instrument of indictable and serious offences: s 19(1)(d).

36 The evidence also did not suggest that anyone other than Mr Foong had an interest in that property. He had also consented to the proposed restraint and forfeiture.

37 In the result I was satisfied that the proposed orders in relation to the cash the subject of schedules 3, 4 and 5 of the summons also had to be made.

Ms Cheng

38 I have already discussed the evidence which dealt with Ms Cheng’s position. I was satisfied that this evidence and her consent to the orders sought provided a proper basis for the orders made.

Custody and control orders

39 It should be noted that the orders made included orders placing the restrained property in the custody and control of the Official Trustee in Bankruptcy: s 38 Proceeds of Crime Act.

40 In the circumstances I have discussed, I was satisfied that it was also necessary to make those orders.

Orders

41 For the reason given I thus ordered that:

(1) Direct the Commissioner to give Mr Fung notice of the adjourned hearing in accordance with the orders for substituted service.

(2) Order that if Mr Fung wishes to be heard on the application for forfeiture of the property in Schedules 1 and 2 of the Summons, he file and serve on or before 20 April 2022 any affidavit on which he wishes to rely, and an outline of any submissions he wishes to advance.

(3) Liberty to approach.

(4) Reasons to be provided at a later date, with a copy of the reasons to be served on Mr Fung.

UPON THE PLAINTIFF PROVIDING, ON BEHALF OF THE COMMONWEALTH, THE USUAL UNDERTAKING AS TO COSTS AND DAMAGES THE COURT ORDERS THAT:

Restraining Orders

(1) Pursuant to section 18 of the Proceeds of Crime Act 2002 (Cth), in relation to the First Defendant, the property specified in Schedule 1, must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

(2) Pursuant to section 19 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule 1 must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

(3) Pursuant to section 18 of the Proceeds of Crime Act 2002 (Cth), in relation to the First Defendant, the property specified in Schedule 2, must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

(4) Pursuant to section 18 of the Proceeds of Crime Act 2002 (Cth), in relation to the Third Defendant, the property specified in Schedule 2 must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

(5) Pursuant to section 19 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule 2 must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

(6) Pursuant to section 18 of the Proceeds of Crime Act 2002 (Cth), in relation to the Second Defendant, the property specified in Schedule 3 must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

(7) Pursuant to section 19 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule 3 must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

(8) Pursuant to section 18 of the Proceeds of Crime Act 2002 (Cth), in relation to the Second Defendant, the property specified in Schedule 4 must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

(9) Pursuant to section 19 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule 4 must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

(10) Pursuant to section 18 of the Proceeds of Crime Act 2002 (Cth), in relation to the Second Defendant, the property specified in Schedule 5 must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

(11) Pursuant to section 19 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule 5 must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

Custody and control orders

(12) Pursuant to section 38 of the Proceeds of Crime Act 2002 (Cth), the Official Trustee in Bankruptcy (Official Trustee) is to take custody and control of the property specified in Schedules 1 to 5.

Forfeiture orders

(13) Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), the property listed in Schedules 3 to 5 be forfeited to the Commonwealth.

Leave to deal with forfeited property

(14) Pursuant to section 69(2) of the Proceeds of Crime Act 2002 (Cth), the Commonwealth be given leave to deal immediately with forfeited property.

Substituted Service Orders

(15) Pursuant to rule 10.14 of the Uniform Civil Procedure Rules 2005 (NSW), service of the First Defendant is to be effected by emailing a copy of:

(a) this Summons; and

(b) the affidavit of Adrian Edwards sworn 8 September 2021;

(c) UCPR Form 161- Service outside the jurisdiction; and

(d) any orders made on the first return of the Summons

(e) (together Documents) to:

(i) xxxxxxxx @gmail.com;

(ii) xxxxxxxxxx @outlook.com;

(iii) xxxxxxxx @gmail.com; and

(iv) xxxxxxxxx @hotmail.com.hk.

(16) Pursuant to rule 10.14(2) of the Uniform Civil Procedure Rules 2005 (NSW), the Documents be taken to have been served on the First Defendant on 22 September 2021, being the date upon which order 15 above is complied with.

Other orders

(17) The proceedings are listed for hearing on 4 May 2022.

(18) These orders be entered forthwith.

Schedule 1

Cash seized by members of the Australian Federal Police on 24 August 2015 from premises located at XXXXX/X XXXXXXX Street, Chippendale:

Item 1: Cash in the amount of AUD1,650 from a black wallet inside a bum bag, together with any interest on that amount;

Item 2: Bundled Australian cash stored in a black travel light bag valued at AUD520,000, together with any interest on that amount;

Item 3: Bundled Australian cash located in a draw in the bedroom valued at AUD35,560, together with any interest on that amount.

Schedule 2

Registered in the name of Un Sai Cheng:

2015 BMW 235i convertible motor vehicle with NSW registration XXX XXX and VIN WBAXXXXXXXXXXXXX

Schedule 3

Cash seized by members of the Australian Federal Police on 24 August 2015 during execution of search warrant on Mr Kha Weng Foong

Item 1: Cash in the amount of AUD9,950 from an aborted transaction commenced by the Second Defendant at an automatic teller machine outside the Commonwealth Bank of Australia Branch, Eastgardens on 24 August 2015, together with any interest on that amount;

Item 2: Cash in the amount of AUD900 extracted from the Second Defendant’s trouser pocket at the time of his arrest, together with any interest on that amount;

Item 3: Cash in the amount of AUD31,000 from a satchel bag carried by the Second Defendant at the time of his arrest, together with any interest on that amount;

Item 4: Cash valued at $98 from the Second Defendant’s wallet, in his possession at the time of his arrest, together with any interest on that amount.

Schedule 4

Cash seized by members of the Australian Federal Police on 24 August 2015 during execution of a search warrant on Mitsubishi Mirage NSW Registration XXXXXX and VIN XXXXXXXXXXXXXXXXXX

Cash in the amount of AUD199,950 stored in a brown leather bag seized from the Mitsubishi Mirage on 24 August 2015, together with any interest on that amount.

Schedule 5

Cash seized by members of the Australian Federal Police on 24 August 2015 during execution of search warrant at premises located at X/XX XXXXXXXX Street, Petersham, New South Wales

Item 1: Cash in the amount of AUD700 extracted from a black wallet, together with any interest on that amount;

Item 2: Bundle of cash in the amount of AUD8,000 stored in a black underarmour sports bag, together with any interest on that amount.

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