The Commissioner of the Australian Federal Police v Shao

In these proceedings, the Commissioner has obtained restraining orders in relation to three real properties, a motor vehicle, choses in action in the nature of bank accounts, and shareholdings of the first defendant in three named companies.

The Commissioner, when the matter first came before me, sought orders under s 180 of the Proceeds of Crime Act 2002 (Cth) (“the Act”) for examination of the first defendant in relation to her own affairs and in relation to the affairs of eight other named entities. Following a discussion at the hearing the Commissioner only presses for orders for the examination of the first defendant in relation to her own affairs and in relation to the affairs of two other entities, one of those entities being a trustee. I will return to that shortly. Although the orders were proposed by consent, it did not appear to me that I had power to make the orders in the terms sought in relation to the affairs of all eight of the proposed entities, and accordingly I have received submissions about those orders and heard further argument today.

The Commissioner’s overarching suspicion is that the first defendant committed offences contrary to s 400.9(1) of the Criminal Code Act 1995 (Cth) (ie, dealing with property worth more than $100,000 that is reasonably suspected of being the proceeds of indictable crime); and s 11.2 of the Criminal Code Act and s 233BABAD(1) and (2) of the Customs Act 1901 (Cth) (ie, aiding and abetting the importation and conveyance of tobacco products with intent to defraud revenue). However, while the Commissioner deposes to having this suspicion, Garling J when making the restraining order was not persuaded that there was a reasonable suspicion as to the latter offence (ie, the tobacco offence). Accordingly, the restraining order was only made on the basis of the former offence (ie, the offence in the nature of money laundering).

In light of the Commissioner’s refined position before me, it is not necessary for me to canvass the nature of the offence which is the subject of the restraining order. The examination order is sought for the examination of the first defendant in relation to her own affairs and in relation to two other entities.

The first is an individual. On the evidence before me that individual has an interest in real property that has been restrained and that individual is the spouse of the first defendant. He is accordingly a person about whose affairs an examination order can be made under s 180(1)(a) and (c) of the Proceeds of Crime Act.

The second entity, Gan and Shao Pty Ltd, is on the evidence before me the holder of two restrained bank accounts and is accordingly an entity about whose affairs an examination order may be made pursuant to s 180(1)(a). Although the orders originally proposed also sought a separate order for examination of the first defendant in relation to the affairs of the Gan and Shao Family Trust, being a trust of which Gan and Shao Pty Ltd is the trustee, I do not think that separate subparagraph of the proposed order is necessary.

It is true on the evidence before me that Gan and Shao Pty Ltd holds bank accounts as trustee of the proposed trust. Nevertheless, the affairs contemplated by s 180 are the affairs of a person. The “person” is the corporate trustee. An examination of that corporate trustee’s affairs is apt to include an examination of matters relating to the trust. I propose to make orders to make this clear.

In light of the Commissioner’s refined position it is not necessary to offer a concluded view about the other entities whose affairs were previously proposed to be the subject of an examination order. During argument I indicated that I had some hesitation about the Court’s power to make an examination order in relation to the affairs of at least some of those other entities. While it is neither necessary nor appropriate for me to canvass those arguments, it is appropriate to stress that in only making the orders I make in respect of the first defendant and the two entities that will be named in the orders, I should not be understood to be limiting in any way the scope of the expression “affairs of a person”, so far as those words relate to a person in respect of whom I have made an order.

The “affairs of a person” are defined in the Dictionary at the end of the Act. The definition is inclusive. By way of example, examination of the first defendant about her own affairs may well, depending on the circumstances, include examination in relation to other entities she has owned and controlled and perhaps in relation to at least some aspects of entities with whom she has had dealings, provided the examination can properly be characterised as being about “the first defendant’s” affairs in relation to those other entities. I note that those “affairs”, by reason of the extended inclusive definition in the Act, include “any activities of the person that are, or may be, relevant to whether or not the person has engaged in unlawful activity of a kind relevant to the making of an order under this Act.” As I say, nothing in these reasons is intended to cut down or limit the ordinary scope of that statutory language or indeed offer any concluded view about its proper interpretation.

Accordingly, I make the following orders: