Commissioner of the Australian Federal Police v Tjongosutiono

1. [1]

   HIS HONOUR: By notice of motion filed on 19 October 2018, Johannes Tjongosutiono seeks an order pursuant to sections 29 and 31 of the Proceeds of Crime Act 2002 that certain property be excluded from restraining orders, made under s 19 by Davies J on 8 October 2015, on the basis that the restrained property has ceased to be the proceeds of crime.

2. [2]

   As a preliminary, but practically significant, matter I note that N Adams J published reasons for judgment in these proceedings dealing with an earlier application by Mr Tjongosutiono in which he sought unsuccessfully to set aside the restraining orders made by Davies J: see The Commissioner of the Australian Federal Police v Tjongosutiono [2018] NSWSC 48. Her Honour’s reasons are extensive and detailed and very helpfully inform the important issues that arise for consideration by me. A familiarity with her Honour’s decision will therefore be assumed for present purposes.

3. [3]

   The issue before me turns in large part upon the terms of s 330(4)(a) of the Proceeds of Crime Act, which provides relevantly as follows:

4. [4]

   “Sufficient consideration” is defined in s 338 to mean “an acquisition or disposal of property…for a consideration that is sufficient and that reflects the value of the property, having regard solely to commercial considerations”. If I am satisfied that the property in question has ceased to be the proceeds of an offence or an instrument of an offence, I have no discretion and I am obliged by s 29(1) to exclude the specified interest in the property from the restraining order.

Relevant facts

1. [5]

   The factual background is conveniently described by N Adams J at [38]-[69] of her reasons for judgment. For present purposes it is sufficient to include the following uncontroversial summary prepared on behalf of the Commissioner.

2. [6]

   In early 2014, the New South Wales Police and New South Wales Crime Commission conducted a joint investigation into money laundering offences and activities of individuals associated with various organised crime syndicates in Australia. Prior to September 2014, Ms Pui Man Sandy Wong was identified as one of these. On 9 September 2014, Ms Wong's residence was searched by police and several items were seized, including bank deposit books in the name of "Harbor World Trading Pty Ltd". Ms Wong was later convicted of offences contrary to s 142 of the Anti-Money Laundering and Counter-Terrorism Financing Act and ss 400.4 and 400.9 of the Criminal Code.

3. [7]

   Later investigations into the bank accounts of Harbor World revealed a number of deposits under $10,000 into four bank accounts, and several "structured" deposits, suggesting that the accounts were used by Ms Wong for the purposes of engaging in money laundering activities and to facilitate the funnelling of funds to third parties. Amongst other transactions, the bank accounts recorded transfers of $70,000 on 9 September 2014 and $28,900 on 10 September 2014, from the Harbor World CBA Business Transaction account. On 9 September 2014, $70,000 was deposited into Mr Tjongosutiono's Westpac eSaver account with the description "Deposit Harbour World Tra Payment". Mr Tjongosutiono does not dispute that the eSaver account is his account. He denies any knowledge of, or connection with, Ms Wong and/or Harbor World. Mr Tjongosutiono’s evidence does not include an explanation of why those deposits into his account bear that description.

4. [8]

   The Australian Federal Police subsequently obtained bank statements for Mr Tjongosutiono's Westpac and CBA accounts. They show the making of structured deposits into Mr Tjongosutiono's eSaver account and the subsequent transfer of funds from that account to Mr Tjongosutiono's other Westpac and CBA accounts which are the subject of the restraining orders.

5. [9]

   Between 20 September 2013 and 20 May 2015, the eSaver account received 148 cash deposits, each less than $10,000, at various bank branches throughout New South Wales and Victoria, totalling $1,140,000. These cash deposits included the following seven specific instances of structuring activity over short periods of time:

   1. (1)

      Between 8 October 2013 and 11 October 2013, $300,000 in cash was deposited in 36 different amounts under $10,000 each, at various bank branches in Sydney;

   2. (2)

      Between 17 October 2013 and 24 October 2013, $303,500 in cash was deposited in 35 different amounts under $10,000 each, at various bank branches in Sydney;

   3. (3)

      Between 17 April 2014 and 6 May 2014, $84,000 in cash was deposited in 12 different amounts under $10,000 each, at various bank branches in Sydney;

   4. (4)

      Between 18 August 2014 and 21 August 2014, $49,500 in cash was deposited in 7 different amounts under $10,000 each, at various bank branches in Sydney;

   5. (5)

      Between 3 February 2015 and 4 February 2015, $56,000 in cash was deposited in 8 different amounts under $10,000 each, at various bank branches in Sydney;

   6. (6)

      Between 13 February 2015 and 26 February 2015, $70,000 in cash was deposited in 11 different amounts under $10,000 each, at various bank branches in Sydney and Victoria;

   7. (7)

      Between 18 March 2015 and 23 March 2015, $92,000 in cash was deposited in 14 different amounts under $10,000 each, at various bank branches in Sydney and Victoria.

6. [10]

   During these periods, there were a series of substantial withdrawals from and credits to Mr Tjongosutiono's Westpac accounts, including the following:

   1. (1)

      On 28 October 2013, $500,900 was withdrawn (in six transactions) from the eSaver account and credited (in six transactions) to the Offset account.

   2. (2)

      On 31 October 2013, $224,000 was withdrawn (in three transactions) from the eSaver account and credited (in three transactions) to the Offset account.

   3. (3)

      Between 11 February 2014 and 17 February 2014, $450,000 was withdrawn (in four transactions) from the Offset account and credited (in four transactions) to the Rocket account.

   4. (4)

      On 5 May 2014, $30,000 was withdrawn from the Offset account and credited to the Rocket account.

   5. (5)

      On 2 December 2014, $1,000,000 was withdrawn from the eSaver account and credited to the Reward Saver account.

7. [11]

   It is not in dispute that $2,194,255.16 was withdrawn from Mr Tjongosutiono’s Offset account on 20 May 2015 and deposited into five CBA accounts, namely the First Term Deposit account, the Second Term Deposit account, the Third Term Deposit account, the Netbank account and a Complete Access account. Mr Tjongosutiono did this because Westpac had notified him, by letter dated 5 May 2015, that it was no longer prepared to provide him with services in respect of his eSaver account or his Reward Saver account and that he had 30 days to transfer the funds from his Westpac accounts to another institution. Mr Tjongosutiono's evidence is that he did so without obtaining an explanation from Westpac staff for the closure of his accounts.

8. [12]

   Around 1 November 2013, Mr Tjongosutiono had become the registered proprietor of a residential home unit. He obtained financing from Westpac for this acquisition. Mr Tjongosutiono opened the Rocket account on 29 October 2013 for that purpose. On 30 October 2013, there was a loan drawdown of $490,000 from the Rocket account. The sum of $450,000 was subsequently deposited into the Rocket account in the period from 11 February 2014 to 17 February 2014 and applied to reduce the loan. Substantial funds were withdrawn from the eSaver account and the same amount credited to the Offset account. The Offset account is linked to the Rocket account and operates to reduce the interest payments on the loan secured against the home unit.

Discussion

1. [13]

   Section 330(4) draws attention to four elements that call for consideration with respect to the restrained property in applications such as the present. The elements, with respect to the restrained property, are that it was:

2. [14]

   Recent cases decided by the High Court have clarified how these elements are to be identified in circumstances similar to those in this case. However, in this context, the Commissioner correctly emphasised what the High Court recently said in Lordianto v Commissioner of the Australian Federal Police (2019) 266 CLR 237; [2019] HCA 39 at [8]:

Mr Tjongosutiono’s evidence

1. [15]

   Mr Tjongosutiono relied on two affidavits sworn on 19 March 2016 and 13 November 2020. His evidence about the transfer of funds to his Westpac account was given at paragraphs [41]-[56] of his 19 March 2016 affidavit as follows:

2. [16]

   Mr Tjongosutiono was cross-examined on his evidence. Some of this is referred to later in these reasons.

Discernment

1. [17]

   It is convenient to deal with this application by reference to the so-called tests that appear from the terms of s 330(4)(a) of the Act.

The acquisition test

1. [18]

   The decision of the High Court in Lordianto confirmed that an amount of money standing to the credit of a bank account could be an “acquisition” of property for the purposes of s 330(4)(a) of the Act. For example:

Conclusion

1. [19]

   The facts in the present case are not relevantly different. Subject to the consideration of s 330(4)(a) as a whole, the Commissioner did not dispute that the acquisition test was satisfied.

The third party test

1. [20]

   Consideration of who is or may be a third party for the purposes of s 330(4)(a) was given by the High Court in Lordianto commencing at [93] and [94] in these terms:

Conclusion

1. [21]

   Although I must confess to some difficulties with that analysis of who is or might be a third party for the purposes of the provision, I do not understand it to be an issue in these proceedings that Mr Tjongosutiono met the description of a third party for present purposes.

The sufficient consideration test

1. [22]

   In Lordianto, the High Court considered the question of whether an applicant had acquired property for sufficient consideration:

2. [23]

   The Commissioner contended that although Mr Tjongosutiono alleges that he provided funds to a money changer in Indonesia, he has failed to prove that the funds deposited into his eSaver account were in consideration for the funds so provided and he has failed to prove the terms of any contract with the money changer. When examined pursuant to s 180 of the Act, Mr Tjongosutiono accepted that he did not know whether the money given to the money changer was the money that was deposited into his account. The Commissioner submitted that the evidence does not otherwise demonstrate or establish a connection between the funds allegedly provided to the money changer and the funds deposited into his eSaver account. The "surprising" concession made by the Commissioner in Gwe v Commissioner of the Australian Federal Police [2020] NSWCA 247 at [53] was not made here. The Commissioner submitted that the "absence of detailed evidence from [Mr Tjongosutiono] setting out and documenting all of the amounts transmitted to the money lenders in Indonesia and detailing a broad equivalence, after allowing for fees and exchange rate erosion, with the amounts deposited into the Westpac accounts" meant that he had failed to discharge his onus of proving that the acquisition was in consideration of the funds outlaid.

3. [24]

   The Commissioner submitted further that Mr Tjongosutiono’s evidence did not demonstrate, “let alone establish”, a connection between the funds allegedly provided to the money remitter and the funds received into the eSaver account. The Commissioner contended that an “absence of probative evidence in this regard points to a failure by [Mr Tjongosutiono] to discharge his onus of proving that the acquisition was in consideration for the funds outlaid”. The Commissioner drew attention in this context to what was said by Bell P in Gwe at [52]-[54]:

4. [25]

   It is perhaps unsurprising that the same benign, not to say benevolent, approach did not find a place in the present proceedings.

5. [26]

   It was submitted by Mr Tjongosutiono that his evidence was sufficient to establish that he was not a volunteer with respect to the property sought to be excluded. He submitted that the evidence established that he paid valuable consideration at the time of instructing Wisman to transfer the funds to Australia. The consideration was not in the form of cash or any physical payment in the conventional sense of the word: it took the form of a financial benefit that was received by the remitter from transferring the funds making use of the differences in exchange rates. Mr Tjongosutiono emphasised the discussion in the High Court in Lordianto at [70]-[71], and also at [78] and [82] as follows:

6. [27]

   Mr Tjongosutiono contended that I should accept that in the course of the transfer of funds to Wisman, some part of those funds was taken as exchange funds amounting to consideration for the transfer.

Conclusion

1. [28]

   I am satisfied that Mr Tjongosutiono has demonstrated that he provided valuable consideration in the form of the price levied by Andy for the provision of services in remitting the money provided to him by Mr Tjongosutiono to his Westpac account.

The reasonable suspicion test

1. [29]

   By far the most controversial aspect of the s 330(4)(a) calculus in the present case is the issue of whether the property in question was acquired in circumstances that would not arouse suspicion that it was the proceeds or an instrument of an offence. That in turn gives rise to the question of what precisely are the circumstances to which regard must be had in deciding that issue. By reason of the fact that Mr Tjongosutiono, by his counsel, uncontroversially conceded what might flow from an actual knowledge that structured deposits were made to his account, the focus of the present inquiry became whether Mr Tjongosutiono knew in fact that such deposits had been made or whether the circumstances that were known to him would not arouse a reasonable suspicion that the property was the proceeds or an instrument of an offence.

2. [30]

   It is important before proceeding to record the details of the concession to which I have just referred. At the end of the first day I asked Mr Chapman a series of questions, as the following extract from the transcript reveals:

3. [31]

   Despite the inelegance of my questions, Mr Walker SC clarified the situation from Mr Tjongosutiono’s perspective at the beginning of the second day. The following portion of the transcript makes this plain:

4. [32]

   I have referred to the concession as uncontroversial. It is clear in any event that Mr Tjongosutiono’s own evidence supports that description:

5. [33]

   Mr Tjongosutiono’s evidence is that in the relevant period between 2013 and 2015 he transferred money from Indonesia to his Westpac account in Sydney using the services of a money changer. The amounts transferred were always sums larger than $10,000 and it is not in issue that his instructions were ever to transfer the money in the approximately 123 smaller amounts representing the structured deposits.

6. [34]

   Mr Tjongosutiono said that he regularly checked his account balances using the Westpac online banking platform on his computer. It is accepted that when a customer logs on to this facility on a computer, using the customer identification number and dedicated password, the home page displays the customer’s account or accounts, if more than one. The account name, such as Westpac eSaver, and the account number and BSB details are also displayed, along with the balance of the account current at the time of logging on. It is common ground that the individual transactions on any of the accounts are not displayed on this page and that the Westpac online banking function displayed on a computer screen permitting the transfer of funds between accounts or paying third parties also does not display these balances. Accordingly, it is possible for a customer to check the balances of any accounts without at the same time being presented with a view of the debits and credits or any other specific activities on those accounts. Mr Tjongosutiono’s evidence was that the way that he checked to see if an anticipated deposit in a particular amount had been made to his account in accordance with his instructions to the money changer was merely to view the current balance of the relevant account and to verify that it had been increased by the sum representing the expected deposit.

7. [35]

   Consideration of a similar approach was given by the Court of Appeal in Gwe at [75]:

8. [36]

   In Gwe, Ms Hoang, who corresponded to Mr Tjongosutiono in this case, was not cross-examined on her evidence that she never checked, and accordingly had no knowledge of, the individual transactions on her account. It is a point of sharp distinction with this case, in which Mr Tjongosutiono was challenged at some considerable length upon his denials that he ever looked beyond the home page. Some of that cross-examination was as follows:

9. [37]

   Mr Tjongosutiono submitted that, as with Ms Hoang in Gwe, it was not “inherently incredible” to say that he never checked any aspect of his account beyond the fluctuating balance. He maintained that his application had to be considered in the light of the evidence, including his cross-examination, and not by reference to what might be considered to be orthodox or usual practice. In this case there is evidence that a week after the first sign of trouble concerning his accounts with Westpac, on 12 May 2015 when his daughter brought his attention to the bank’s letter notifying him that his accounts were to be closed, he flew to Australia to confront the bank in person. Mr Tjongosutiono submitted that, apart from those events, there is no evidence at all to suggest, much less establish, that he was made aware at any stage prior to 5 May 2015 of any irregularity affecting his accounts.

10. [38]

    The Commissioner made the following submissions on the home screen issue.

11. [39]

    On his own evidence, Mr Tjongosutiono intermittently transferred funds totalling $2,807,617 over the course of an 18 month period commencing in September 2013. He said that he deliberately chose to use a money remitter to take advantage of a more competitive currency exchange rate and lower fees. Mr Tjongosutiono's evidence at the s 180 examination was that he had previously used the same money remitter to transfer money to Singapore in 2009 and 2011, partly for the purpose of funding his purchase of a property there valued at SGD2,400,000. Mr Tjongosutiono accepted that he consciously transferred such funds without declaring that income to the Indonesian authorities and only later made a declaration to them because he had been "caught" in Australia.

12. [40]

    Mr Tjongosutiono confirmed at his examination that he knew that each time he arrived in Australia he was required to declare whether he was bringing into Australia more than $10,000 in cash. His evidence was that on no occasion did he ever do so. The 35 incoming and outgoing passenger cards completed by Mr Tjongosutiono when he arrived in, or departed from, Australia between 2010 and 2018 record that on each occasion he declared that he was not bringing into, or taking out of, Australia $10,000 or more in Australian foreign currency equivalent.

13. [41]

    At his examination, Mr Tjongosutiono confirmed that he has English proficiency and that he worked in a "professional" industry in which, as a "senior equities trader", he provided information to clients to assist in stock market trading. He accepted at his examination that he was "very careful" to make sure that the money transferred to Australia was properly received. Moreover, it was his usual practice to check his bank accounts to make sure payments such as bonuses and commissions were properly received.

14. [42]

    The Commissioner contended that the totality of the evidence demonstrates that Mr Tjongosutiono, alike with the unsuccessful applicants in Lordianto, was "financially sophisticated and used to transferring large sums of money across national borders, as well as dealing with currency controls and a myriad of national disclosure requirements". Moreover he was aware of the advantageous rate offered by the remitters.

15. [43]

    Mr Tjongosutiono said that he would check the home screen of his account only "after the time that Andy had suggested". However, his evidence does not establish that he knew when in fact such funds would arrive. At its highest, his evidence was that he was given an estimate that it would generally be between three and five days and normally would take up to seven days or a few days. The Commissioner submitted that the uncertainty, variability and length of that estimated range (and the value of funds transferred) support an inference that Mr Tjongosutiono had reason to, and did, check the eSaver account balance more frequently than he asserted and that he continued checking, on a daily (or otherwise regular) basis, until the whole amount had arrived in his account. This inference is said to be reinforced by the irregularity of the pattern of receipt of the structured deposits revealed by the eSaver account statements.

16. [44]

    The eSaver account statements further reveal that on at least two occasions the account was accessed prior to receipt of the full amounts said to have been remitted from Indonesia. By way of example, on Mr Tjongosutiono's evidence, he had arranged for the remittal of the sum of $92,250 on 4 October 2013. The eSaver account statements record that a funds transfer was made through online banking on 8 October 2013. This demonstrates that Mr Tjongosutiono accessed his eSaver account online on or around that date. As at that date, the balance of the eSaver account was $77,050.05, or noticeably lower than the amount he had allegedly remitted on 4 October 2013. This discrepancy would have caused a reasonable person to review the deposits that had been made to that date by going beyond the home page to view the transactions list, which in turn would have revealed the structured deposits that had been made. It is objectively likely that Mr Tjongosutiono did so. At a minimum, the discrepancy in the account balance would have put Mr Tjongosutiono on notice that the funds being remitted from Indonesia were not being remitted in a lump sum.

17. [45]

    On the following day, another online banking funds transfer was made to the eSaver account. According to Mr Tjongosutiono's evidence, he had since 4 October 2013 arranged for the remittal of a further $325,000 (being a total transfer of $417,750, including the earlier sum). However, as at 9 October 2013, the balance of his eSaver account was only $219,050.05. When he accessed that account on 9 October 2013, the unexpectedly low balance would have caused him to check the transactions list. That, in turn, would have revealed that structured deposits had been made into his account.

18. [46]

    Further, Westpac's Internet Protocol logs in respect of the eSaver account from 1 June 2014 to 30 June 2015 recorded a very large number of log-ins to the internet banking account, both with and without transactions being conducted. This is said to be consistent with the objective probabilities and the apparent logic of events, namely that Mr Tjongosutiono was closely monitoring his eSaver account.

19. [47]

    Mr Tjongosutiono was at least aware that the very large sums he provided to the money remitter were not leading to deposits in corresponding amounts, but rather to a number of deposits of considerably smaller amounts, with no cogent explanation for why that might be so. Mr Tjongosutiono's position in this respect is not materially different from the High Court's description of the state of mind of one of Mr Ganesh in Lordianto: namely that Mr Ganesh knew that the very large sums he provided to his associate, for delivery to the money remitter, were not leading to deposits in corresponding amounts, but rather to a number of deposits of considerably smaller amounts, and that he did not establish a cogent explanation for why that might be so. The High Court held that as a result Mr Ganesh failed to discharge the onus he bore of establishing that he acquired the property for sufficient consideration and in circumstances that would not have aroused a reasonable suspicion that the property was proceeds or an instrument of an offence.

20. [48]

    The Commissioner maintained that Mr Tjongosutiono’s credit suffered from the available inference that he conspicuously failed properly or indeed at all to confront “Andy”, his money changer, with the fact that his bank account had been used as the destination for hundreds of structured deposits of less than $10,000 in the period, and in total amounts, precisely corresponding to his dealings with Andy. Mr Tjongosutiono’s evidence about this was as follows:

21. [49]

    The Commissioner also drew attention to the following evidence given by Mr Tjongosutiono:

22. [50]

    The Commissioner submitted that the failure to call Andy gave rise to an adverse inference, that nothing that Andy could have said would have assisted his case. However, presumably according to Mr Tjongosutiono, he had been defrauded by Andy. It is entirely unsurprising in those circumstances that he would not have attempted to obtain assistance from someone who was definitively not in his camp. It does not seem to me that the Commissioner can both rely upon Mr Tjongosutiono’s failure to confront and interrogate Andy after problems arose following the revelation of the curious deposits into his account and at the same time criticise him for not approaching him to give evidence in support of his application.

Conclusion

1. [51]

   I am not satisfied that Mr Tjongosutiono has established that he acquired the relevant property in circumstances that would not arouse a reasonable suspicion that the property was proceeds of an offence or an instrument of an offence.

2. [52]

   In order to succeed, Mr Tjongosutiono must satisfy me both that he did not know that structured deposits were being made to his Westpac account and that a person in his position without that knowledge would not have had a reasonable suspicion that the deposits into his account were proceeds of an offence or an instrument of an offence. The fact that Mr Tjongosutiono says that he never looked at his accounts beyond checking the balances, and that he was unaware of the structured deposits, does not mean that the objective circumstances can be disregarded, although a finding adverse to Mr Tjongosutiono on the first issue obviates the need to make a finding on the second issue: see, for example, Lordianto at [69].

3. [53]

   I am not satisfied that Mr Tjongosutiono was not aware that scores of deposits in amounts of less than $10,000 were being made to his Westpac eSaver account in the 19 month period between September 2013 and March 2015. It follows that I reject his evidence that he did not, during that entire period when utilising his Westpac online banking facility, ever go beyond the information displayed on the home screen or examine the details of a single transaction in that account during that time. In particular, I reject the following evidence, and evidence to like effect, as untruthful:

4. [54]

   While I accept that the Court of Appeal in Gwe at [75] was not satisfied that it was inherently incredible that Ms Hoang had not ventured beyond the home screen in that case, I am unable to reach a similar conclusion in the particular circumstances of this one. My reasons for forming that view are as follows.

5. [55]

   First, the sheer number of times that Mr Tjongosutiono logged in to his eSaver account favours the conclusion I have come to. I accept immediately that the electronic evidence of Mr Tjongosutiono’s log in activities does not distinguish between whether he had access to only the home screen and account balances on the one hand and whether he had access to more detailed account activity information including transactions, such as deposits to his account, on the other hand. However, it is in my opinion implausible that a person engaged in relatively significant international forex transfers would never once have been concerned or interested to inspect the transactional details of that account.

6. [56]

   In this respect, I consider that the following evidence given by Mr Tjongosutiono in cross-examination should be noted:

7. [57]

   A number of things emerge from that evidence. Mr Tjongosutiono accepts that he was concerned to monitor the money that he gave to Andy and that he expected would be going into his account. However, it is clear both from the form of his answer – “I could have” – and from his frank concession that he did not have a recollection of the reason why he logged into his account on any one of the myriad occasions that he did so, that Mr Tjongosutiono is in effect asking me to accept his evidence as establishing that he never looked past the home page when that request is based on no more than his assumption that he did not do so. Put in context, Mr Tjongosutiono bears the onus of establishing that he never checked the transactional details of his account but offers evidence that rises no higher than self-serving speculation.

8. [58]

   Secondly, it is inherent in Mr Tjongosutiono’s position that the changing balance of his account provided a sufficiently accurate reflection for his purposes of the deposits that he instructed Andy to make. His proposition does not apparently take account of the changing balance arising from direct debits to his account from fees and charges or the credit of interest on balances from time to time.

9. [59]

   Thirdly, I reject as entirely improbable that Mr Tjongosutiono never received a bank statement of any kind, whether electronically or in hard copy, during the whole of the period in question. He bears the onus on the present application. I reject his denial that Westpac never furnished him with bank statements in any format in the ordinary course of its administration of the relevant account. It would not, for example, have been possible for Mr Tjongosutiono to account for interest earned for income tax purposes without reference to bank statements or deducting costs such as bank fees and charges.

10. [60]

    Fourthly, it is undisputed that at no stage did Mr Tjongosutiono ever seek an explanation from Andy as to what happened to the money. It does seem to me to be extraordinary that some immediate inquiry would not have been directed to Andy or his employer when Mr Tjongosutiono was first confronted with the unfolding disaster. Even by the time his interests had been forfeited, Mr Tjongosutiono appears lamely to have refrained from approaching Andy directly and proclaiming what one might have expected to be furious indignation with the actions of the very person who on his version must have been complicit in the events that defrauded him. It is remarkable that a sophisticated businessman would not have been interested to find out at some stage why his account had been used in this way, entirely contrary either to his instructions or expectations.

11. [61]

    Fifthly, Mr Tjongosutiono was forced by Westpac to take his business elsewhere when the bank indicated that his accounts were to be closed. As N Adams J noted at [210], he did so without ever obtaining an explanation as to why the bank no longer wished him to bank with them. He gave the following evidence in the present application:

12. [62]

    I adopt with respect the comments of N Adams J on this issue at [201] as follows:

13. [63]

    Sixthly, I am unable to discard the force of the Lordianto analogue, most helpfully recorded at [111] of the High Court’s decision:

14. [64]

    I cannot meaningfully distinguish Mr Tjongosutiono from the financially sophisticated participants to whom the High Court was there referring. As N Adams J noted at [203] of her reasons for judgment, Mr Tjongosutiono is a sophisticated bank customer who was earning, at least at the time of the subject transfers, a not insignificant income from his endeavours as a stockbroker who had been involved with overseas property investment from as early as 2009 and in Australia since 2013. I do not accept in such circumstances that Mr Tjongosutiono would not have been concerned or interested to review the details of transactions on his Westpac account in order to verify that the instructions given to Andy had been followed.

15. [65]

    In summary, I am not satisfied that Mr Tjongosutiono limited his relevant online banking activity or inquiries to the inspection only of his Westpac home page or home screen. I am satisfied that in the 19 month period between 2013 and 2015, during the course of which in excess of $1M was deposited into his account in amounts of less than $10,000, he knew or became aware of that. I am not satisfied that Mr Tjongosutiono has discharged the onus that he bears to establish that he did not know. I am accordingly not satisfied that Mr Tjongosutiono acquired the relevant property in circumstances that would not arouse a reasonable suspicion that it was proceeds of an offence or an instrument of an offence.

Decision

1. [66]

   Mr Tjongosutiono’s notice of motion filed on 19 October 2018 is dismissed with costs.