Application by the Commissioner of the Australian Federal Police [2020] NSWSC 695

Factual background

1. The background to the matter is conveniently summarised in the written submissions on behalf of the Commissioner.
2. The company operated from premises in Sydney and Melbourne. Its sole director was Mr Ka Chun Leung who is a citizen of Hong Kong. The company had approximately seven employees including Mr Tang and Mr Li who were both at the Melbourne office. The company purported to be an agent in Australia for Chinese purchasers of wholesale meat exported from Australia.
3. Between 23 June 2014 and 26 August 2015 the company's CBA account received a total of 1,113 cash deposits totalling $27,412,561.25. Despite this, the company's income tax returns from 2010 to 2014 income years declared a taxable income ranging from zero to $3,690.

The investigation into the company's activities

1. Although purporting to conduct a business specialising in the export of meat products from Australia to China, the company did not hold the requisite meat export licence under the Australian Meat & Live-stock Industry Act 1997 (Cth).
2. The documents seized, under search warrant, from the company's premises included 89 invoices and 3 deposit documents bearing various dates in the period from 26 November 2014 to 13 August 2015. Of the 16 companies listed on those invoices and deposit documents, only three were known to the Australian licensed meat exporters who responded to New South Wales police inquiries, and of those three, two did not pay the Australian exporters with whom they dealt.
3. Amongst the records seized from the company's premises were documents which identified Swift and Company Trade Group ("STG") as the shipper of certain meat products. However, the affidavit evidence of the General Manager, Australia and New Zealand, of STG (Ms Natasha Knight) establishes that, in respect of each of the five transactions entered into between the company and STG or a related entity of STG (LAP Foods Pty Ltd), the documents seized from the company's premises relating to those transactions had been edited from the original versions sent to the company, by the deletion of relevant information from them.
4. The New South Wales police investigation ascertained that, with the exception of five transactions, not a single licensed Australian meat exporter could be located who had conducted any business either with the company or with any of the entities identified on the company's 89 invoices and three deposit documents.
5. An experienced Senior Investigator at Australian Border Force (ABF), Mr Gary Seymore, ascertained that, of the 19 companies identified on the company's invoices or deposit documents or with which the company purportedly transacted, 14 are not recorded anywhere in the IT systems used by ABF for recording import or export declarations or air cargo reports. The other five companies either had no recorded export or import declarations or air cargo reports at all or, with the exception of one single transaction, no record of any dealing with the company. The company itself had no recorded export or import declaration and only one air cargo report, for a single importation on 18 January 2015 for goods described as "documents".
6. Mr Seymore concluded that, based on his search results, none of the companies had undertaken any import or exports with the company and only five of them were even registered on the ABF IT systems. Further, Mr Seymore found that in various respects the company's invoices and deposit documents were incomplete, were missing important details or contained obvious errors or unusual features, leading him to conclude that they were not genuine invoices or deposit documents used for genuine commercial purposes.
7. Mr Domenico Rositano was a forensic accountant with the Australian Federal Police, and he assisted in the investigation into the company's activities. He found the following: (a) In the period from 1 October 2014 to 30 June 2015, the total sales declared by the company in its Business Activity Statements (BAS) (AUD 14,423,512) resulted from the generation of 63 invoices which were paid by 876 individual cash deposits into the company's CBA account. (b) In the same period, approximately 196 cash deposits paid into the company's CBA account, totalling AUD 4,244,899.25, did not correspond to the generation of sales invoices. (c) Rather than payments made to Australian meat suppliers, of the kind that one would expect in a genuine meat export business, the purchases in the company's BAS were comprised almost entirely of transfers of funds by the company to three entities located in Hong Kong. (d) In the period from 1 October 2014 to 30 June 2015, the company declared non-capital purchases in its BAS totalling AUD 17,283,069. These purchases were computed mainly from 107 international transfers (totalling AUD 17,200,360) sent by the company to the three Hong Kong entities referred to in (c) above. Mr Rositano did not locate any invoices which supported the classification of these international transfers as purchases. (e) For the period from 1 October 2014 to 30 June 2015, Mr Rositano was able to locate only three meat purchases (exports), with a total value of USD 378,780.42. These were funded mainly from moneys provided by the Hong Kong entities or by Mr Leung's sister, who was based in Hong Kong. In the 2016 financial year, the company entered into only two meat purchases (exports), totalling USD 179,413, for which no BAS lodgements were provided.

Other evidence

1. There was evidence of a former employee of the company (Ms Wun Ying Ling) that Mr Tang usually (and, on rare occasions, Mr Leung or his sister) supervised the payment of invoices; that Mr Leung told Ms Ling that it was he who located customers in China and managed relationships with them; that it was Mr Leung or his sister who would forward company invoices by email or by WeChat (a Chinese mobile messaging application) to the company's staff, following which the staff would then receive cash payments from individuals who visited the company's office and provided cash which matched the amount of the invoices; that the company's invoices were always paid in cash; that staff of the company, including Ms Ling herself, would then deposit the cash into the company's bank account; and that Mr Leung had told Ms Ling that, after the cash was so deposited, she and the other staff should leave the rest to Mr Leung for him to deal with, such that Ms Ling had no involvement with the company's funds after the cash was deposited.
2. There is evidence from intercepted phone calls between Mr Leung and his sister in relation to the provision of false invoices to avoid detection of what was happening in relation to the cash deposits. There are also transcripts of WeChat messages between Mr Tang and Mr Leung, and between Mr Tang and others. These messages, particularly when read in the context of the other evidence, point to the arrangements and matters being discussed as attempts to make things appear other than they were.
3. The New South Wales Police case officer assigned to the investigation and prosecutions relating to the company's activities, Detective Senior Constable David Gillan, has deposed that, based on his investigations, the company did not engage in business transactions which explain the large amounts of cash deposited into the CBA account. Nor is the officer able to identify any lawful reason for the high number and manner of the cash deposits, or any lawful explanation as to the company's income.

Legislative provisions

1. The relevant power to make a forfeiture order is found in s 49 of the Proceeds of Crime Act. That section provides: 49 Forfeiture orders - property suspected of being proceeds of indictable offences etc. (1) A court with *proceeds jurisdiction must make an order that property specified in the order is forfeited to the Commonwealth if: (a) the *responsible authority for a *restraining order under section 19 that covers the property applies for an order under this subsection; and (b) the restraining order has been in force for at least 6 months; and (c) the court is satisfied that one or more of the following applies: (i) the property is *proceeds of one or more *indictable offences; (ii) the property is proceeds of one or more *foreign indictable offences; (iii) the property is proceeds of one or more *indictable offences of Commonwealth concern; (iv) the property is an instrument of one or more *serious offences; and (e) the court is satisfied that the authority has taken reasonable steps to identify and notify persons with an *interest in the property. (2) A finding of the court for the purposes of paragraph (1)(c): (a) need not be based on a finding that a particular person committed any offence; and (b) need not be based on a finding as to the commission of a particular offence, and can be based on a finding that some offence or other of a kind referred to in paragraph (1)(c) was committed. (3) Paragraph (1)(c) does not apply if the court is satisfied that: (a) no application has been made under Division 3 of Part 2‑1 for the property to be excluded from the *restraining order; or (b) any such application that has been made has been withdrawn. Refusal to make a forfeiture order (4) Despite subsection (1), the court may refuse to make an order under that subsection relating to property that the court is satisfied: (a) is an *instrument of a *serious offence other than a *terrorism offence; and (b) is not *proceeds of an offence; if the court is satisfied that it is not in the public interest to make the order. (emphasis added)
2. Section 66 provides that property specified in a forfeiture order vests absolutely in the Commonwealth at the time the order is made.
3. Sections 329 and 330 deal with the definitions of proceeds and instrument, and when property becomes proceeds and instrument. Those sections relevantly provide: 329 Meaning of proceeds and instrument (1) Property is proceeds of an offence if: (a) it is wholly derived or realised, whether directly or indirectly, from the commission of the offence; or (b) it is partly derived or realised, whether directly or indirectly, from the commission of the offence; whether the property is situated within or outside *Australia. (2) Property is an instrument of an offence if: (a) the property is used in, or in connection with, the commission of an offence; or (b) the property is intended to be used in, or in connection with, the commission of an offence; whether the property is situated within or outside *Australia. (3) Property can be proceeds of an offence or an instrument of an offence even if no person has been convicted of the offence. (4) Proceeds or an instrument of an *unlawful activity means proceeds or an instrument of the offence constituted by the act or omission that constitutes the unlawful activity. 330 When property becomes, remains and ceases to be proceeds or an instrument (1) Property becomes proceeds of an offence if: (a) the property is wholly or partly derived or realised from a disposal or other dealing with *proceeds of the offence; or (b) the property is wholly or partly acquired using proceeds of the offence; or (c) an *encumbrance or a security on, or a liability incurred to acquire, retain, maintain or make *improvements to, the property is wholly or partly discharged using proceeds of the offence; or (d) the costs of retaining, maintaining or making improvements to the property are wholly or partly met using proceeds of the offence; or (e) the property is improved using proceeds of the offence; including because of one or more previous applications of this section. (2) Property becomes an instrument of an offence if: (a) the property is wholly or partly derived or realised from the disposal or other dealing with an *instrument of the offence; or (b) the property is wholly or partly acquired using an instrument of the offence; or (c) an *encumbrance or a security on, or a liability incurred to acquire, retain, maintain or make *improvements to, the property is wholly or partly discharged using an instrument of the offence; or (d) the costs of retaining, maintaining or making improvements to the property are wholly or partly met using an instrument of the offence; or (e) the property is improved using an instrument of the offence; including because of one or more previous applications of this section. (3) Property remains proceeds of an offence or an instrument of an offence even if: (a) it is credited to an *account; or (b) it is disposed of or otherwise dealt with. … (6) Property becomes, remains or ceases to be proceeds of an *unlawful activity, or an instrument of an unlawful activity, if the property becomes, remains or ceases to be proceeds of the offence, or an instrument of the offence, constituted by the act or omission that constitutes the unlawful activity. (7) Paragraphs (1)(a) to (e) and (2)(a) to (e) do not limit each other. …
4. The definitions of other relevant terms are found in the Dictionary to the Act, being s 338: indictable offence means an offence against a law of the Commonwealth, or a *non‑governing Territory, that may be dealt with as an indictable offence (even if it may also be dealt with as a summary offence in some circumstances). interest, in relation to property or a thing, means: (a) a legal or equitable estate or interest in the property or thing; or (b) a right, power or privilege in connection with the property or thing; whether present or future and whether vested or contingent. Note: For references to an interest in property of a person who has died, see subsection 325(2). property means real or personal property of every description, whether situated in *Australia or elsewhere and whether tangible or intangible, and includes an *interest in any such real or personal property. responsible authority, in relation to an application for a *principal order, or a principal order, or to an application, proceedings, function, order, power or duty related to, or arising out of, such an application or order, means: (a) in the case of an application for a principal order: (i) the *proceeds of crime authority that made the application; or (ii) if responsibility for the application has been transferred under section 315B - the proceeds of crime authority to which responsibility has been transferred (or has been latest transferred) under that section; or (b) in the case of a principal order: (i) the proceeds of crime authority that made the application for the order; or (ii) if responsibility for that application, or the order, has been transferred under section 315B - the proceeds of crime authority to which responsibility has been transferred (or has been latest transferred) under that section. Note 1: The proceeds of crime authority is the Commissioner of the Australian Federal Police, or the DPP (see the definition of proceeds of crime authority in this section). Either authority may start and conduct proceedings under this Act. Note 2: Section 315B provides that responsibility for an application for a principal order, or for a principal order, may be transferred between the 2 proceeds of crime authorities. serious offence means: (a) an *indictable offence punishable by imprisonment for 3 or more years, involving: … (ii) unlawful conduct constituted by or relating to a breach of section 81 of the Proceeds of Crime Act 1987 or Part 10.2 of the Criminal Code (money‑laundering); or (iii) unlawful conduct by a person that causes, or is intended to cause, a *benefit to the value of at least $10,000 for that person or another person; or (iv) unlawful conduct by a person that causes, or is intended to cause, a loss to the Commonwealth or another person of at least $10,000; or …

Determination

1. The onus is on the Commissioner (s 317(1)) and any question of fact is to be decided on the balance of probabilities (s 317(2)). The Commissioner accepts that it is necessary to meet the civil standard of proof by reference to the Briginshaw standard: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362. Regard must also be had to s 140 of the Evidence Act 1995 (Cth).
2. Under s 49 of the POCA, the court must make a forfeiture order if the matters set out in subs (1) are satisfied, subject to subs (4). Under subs (4) the court retains a limited discretion not to make an order if the property is of a certain type and the court is satisfied it is not in the public interest to make the order.
3. Paragraphs (a) and (b) of subs (1) are satisfied. The application is made by the Commissioner who is a responsible authority, as defined in s 338, and the restraining order was made more than six months ago, on 26 August 2015.
4. In relation to s 49(1)(e), I am satisfied that the only person required to be notified of the application is ASIC in the circumstances where the company has been, and remains, deregistered. ASIC was notified by a letter from the Australian Federal Police on 9 August 2018. On 16 August 2018 ASIC said, inter alia, that it did not wish to be heard nor joined as a party to the proceedings.

Was the application for exclusion withdrawn?

1. The significant matters for determination are whether paragraph (c) applies and, if it does, whether it is satisfied. If the circumstances set out in subs (3) exist, paragraph (c) does not apply.
2. In the first instance, it is necessary to construe the words in s 49(3)(b) "any such application that has been made has been withdrawn". The question is whether "withdrawn" covers the situation where an application has been made but dismissed, as in the present case.
3. In Commissioner of the Australia Federal Police v Courtenay Investments Ltd (No. 4) [2015] WASC 101 Edelman J said at [118]: [118] There is a good argument that a dismissed exclusion application would fall within s 49(3)(a). This argument would require the words "no application has been made" to be construed to mean that no extant application has been made. The Explanatory Memorandum that accompanied the Proceeds of Crime Bill 2002 (Cth) described the concern of cl 49 as involving circumstances which include where "no application for exclusion from restraint has been made or is on foot". However, in the absence of any considered submissions on this point I do not need to decide it, and I do not decide it.
4. The proper construction of s 49(3) arose subsequently in Commissioner of the Australian Federal Police v Vo [2015] NSWSC 152 where full argument was heard on the issue.
5. In that matter applications to exclude property from forfeiture had been filed by the property owner. However, she accepted that those applications would be unsuccessful. Nevertheless, if a forfeiture order was sought, the property owner wished to advance a legal argument that an onus fell on the Commissioner to establish under s 49(1)(c), that the seized cash was either proceeds or an instrument of the nominated offence. She was advised that, if she withdrew her motions for exclusion, s 49(3) would operate so that the matter about which the property owner wished to advance a legal argument, that is the issue in s 49(1)(c), would not be a consideration on the forfeiture application. The issue was whether, if her motions were dismissed rather than withdrawn, such a dismissal would constitute a withdrawal within the meaning of s 49(3).
6. Justice Schmidt first set out the proper approach to construction of an Act such as the Proceeds of Crime Act. Her Honour said: [15] The statutory construction question lying between the parties must be approached in the way the Chief Justice discussed in SAS Trustee Corporation v Woollard [2014] NSWCA 75; (2004) 86 NSWLR 367 at [58]: "... As was said by the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47], the task of statutory construction must begin with the words of the statute itself considered in context, which includes the general purposes and policy of the provisions. Ascertainment of the statutory purpose may be based on an express statement of purpose in the statute, inference from the text and, where appropriate, reference to extrinsic material: Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23]-[25], [68] and [88]. As was pointed out by Kiefel J in that case, the starting point is the words in question, read in the context of the statute." [16] Legislation such as the Proceeds of Crime Act, providing as it does for forfeiture of property, is penal in nature, with the result that ambiguities ought to be construed in favour of the owner of the property (see Forbes v Traders' Finance Corporation Ltd [1971] HCA 60; (1972) 126 CLR 429 at 447 per Gibbs J). Clear words are required before an intention to take the draconian step of imposing automatic forfeiture is attributed to the Parliament (see Murphy v Farmer [1988] HCA 31; (1988) 165 CLR 19 at 28. Nevertheless, ordinary rules of construction must still be applied when the proper construction of such a statute arises for consideration (see Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 at 576). [17] The duty of the Court is thus to ascertain and give effect to the purpose of the legislature, as expressed in the language enacted by the Parliament. The principle suggesting a stricter approach to the interpretation of penal legislation remains useful, when ambiguity seems intractable (see R v Lavender [2005] HCA 37; (2005) 222 CLR 67 at [94]). But the practical consequences of the competing interpretations must also be taken into account (see Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336). An interpretation of an act which allows a person to take advantage of his or her own wrongdoing must also be resisted (see the discussion in D C Pearce and R S Geddes, Statutory Interpretation in Australia (7th ed 2011, LexisNexis) at [2.41])
7. Her Honour went on to discuss the scheme of the Act and the opportunities a property owner has for seeking to exclude property from forfeiture.
8. Her Honour then concluded: [61] As the Commissioner submitted, to construe the word "withdrawn" used as it is in s 49(3)(b), as not encompassing an application brought under s 31 to exclude property from a restraining order made under s 19, which is not pressed, because it is admitted that it has no prospects of success, would be to permit the opportunity to make an application under s 31 to be used as an entirely artificial device, designed to circumvent the onus imposed on a person who claims an interest in restrained property under s 29, to establish that it was lawfully derived. [62] Such an approach to the construction of s 49(3) would not only fail to give the word "withdrawn" its ordinary meaning, but would also fail to pay necessary attention to other relevant aspects of the statutory scheme and its purpose. The word "withdraw" is relevantly defined in the Macquarie Dictionary to mean: "1. to draw back or away; take back; remove. 2. to retract or recall: to withdraw a charge." [63] In the face of that definition, it is apparent that an application brought under s 31 to have a motion in which orders under s 29 are sought dismissed, because it is admitted that there is no basis on which they could be made, given evidence which is led, is in reality a withdrawal of the application for the orders sought in the motion. [64] To accept the construction for which Ms Vo contended would result in a construction that on its face is manifestly absurd and unreasonable, undermining as it would the clear purpose of this legislative scheme. It would not only mean that applicants could thereby avoid the onus the legislature intends that they must bear when pursuing the interest they claim to have in the restrained property. It would also disrupt what was intended to be a simple process, by which forfeiture of property the subject of a restraining order under s 19 results, without proof of the matters specified in s 49(1)(c), in cases where persons who claim to have an interest in the property, have no basis on which to establish that they acquired the property in question by lawful means.
9. In Commissioner of the Australian Federal Police v Lee [2016] NSWSC 915 the issue was which of an exclusion application and a forfeiture application should proceed first or whether they should be dealt with together. Justice Campbell said: [12] There is an argument that a dismissed exclusion application would fall within s 49(3)(a). This involves interpreting the expression "[n]o application has been made" as meaning "that no extant application has been made": Commissioner of the Australian Federal Police v Courtney Investments Ltd (No 4) [2015] WASC 101 (Edelman J) at [118]. The argument was there noted, but not decided. However, this construction did not appear obvious to the Victorian Court of Appeal: Commissioner of the Australian Federal Police v Dong Hua International Investments Pty Ltd [2016] VSCA 15 at [39] - [40]. [13] In the somewhat different case of Commissioner of the Australian Federal Police v Vo [2015] NSWSC 1523, Schmidt J decided that a s 29 application which was dismissed after a hearing when the applicant offered no evidence was covered by the word "withdrawn" in s 49(3)(b). With respect, this must be correct. Those circumstances amounted to a constructive withdrawal.
10. I respectfully agree with the judgments in those cases. In the present case, there is an additional reason why the events which took place result in a conclusion that the company's application was withdrawn. In his judgment dismissing the company's exclusion motions, Johnson J said at [25]: The position is that the deregistered company has two Notices of Motion on foot. The proceedings themselves commenced by the Plaintiff remain valid, but the applications made by the now deregistered company, in my view, have no legal effect. If the applications have no legal effect by reason of the deregistration of the company it is strongly arguable that no exclusion application has been made.
11. In Commissioner of the Australian Federal Police v Dong Hua International Investments Pty Ltd Yuhong Zhou [2016] VSCA 15 the Victorian Court of Appeal suggested a different view of s 49(3), but the opinion was expressed in the context of a submission by the Commissioner in that case, that exclusion applications should be heard before forfeiture applications. The ruling at first instance against that submission was referred to as "the first Zhang ruling". The basis for the submission was that if the exclusion application was defeated by the Commissioner, then he would not need to prove the matters in s 49(1)(c). This was because, the argument ran, the exclusion application would thereby be withdrawn.
12. The Court of Appeal said of that submission at [40]: But the Commissioner's contentions in the first Zhang ruling requires a court to ascribe to s 49(3) the meaning that an exclusion application that has been heard and determined adversely to an applicant for an exclusion order falls within s 49(3) of the Act as either not having been made or as having been withdrawn. The meaning which the Commissioner seeks to attribute to s 49(3), is not the literal meaning of the text and is hardly so obvious a meaning as to justify the Commissioner conducting applications on the basis that no other view could be taken as to its meaning. Significantly, even if the construction which the Commissioner contends for is correct, it is very difficult to see how such a construction supports the further contention that applications for exclusion should be heard before or at the same time as the application for forfeiture. On the Commissioner's construction, that was a course that was open to a court but it was not one that a court was mandated to follow. That is to say there was no justification for the Commissioner's asserted confidence that a court would endorse the approach for which he contended in the first Zhang ruling. To institute forfeiture applications and then not fully prepare them on the basis that a court would accede to an argument that was at least attended by doubt was a highly risky strategy for the Commissioner. We are far from persuaded that the explanation based upon the first Zhang ruling was so compelling as to mandate an exercise of the trial judge's discretion in favour of the Commissioner. (emphasis added)
13. It does not appear that the construction of s 49 was argued. Rather, it appears that the Commissioner was attempting to justify his approach to the procedures to be followed on the assumption that the court at first instance would accept that construction of s 49(3).
14. With all due respect to the Victorian Court of Appeal, no final view was reached on the issue of whether a dismissed exclusion application could amount to a withdrawal within the meaning of s 49(3). It does not appear that the Court was referred to either of the decisions in Courtenay Investments or Vo.
15. Section 15AB of the Acts Interpretation Act 1901 (Cth) relevantly provides: (1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or (b) to determine the meaning of the provision when: (i) the provision is ambiguous or obscure; or (ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
16. In my opinion, having regard to the purpose or object of the POCA, consideration may be given to extrinsic material for the purpose of interpreting s 49(3). That material includes the Explanatory Memorandum which says (as Edelman J noted in Courtenay Investments at [118]): The court must make such an order, on the application of the DPP, in relation to property which has been restrained for six months under Part 2-1 of this Chapter and no application for exclusion from restraint has been made or is on foot.
17. I prefer the closely reasoned judgment of Schmidt J in Vo, which was followed by Campbell J in Lee. I note that the conclusion reached by Schmidt J was the prima facie view of Edelman J in Courtenay Investments. I note the support for that view in the Explanatory Memorandum.
18. I respectfully endorse what Schmidt J said in Vo at [64]. The purpose and object underlying the POCA would be undermined if a property owner could simply lodge an application for exclusion, whether or not it was pursued, and whether or not it had any basis, and thereby force the Commissioner to proof of s 49(1)(c) even if the exclusion application was dismissed, summarily or otherwise. A construction of s 49(3)(b) which permitted that course would be unreasonable. The construction that best achieves the purpose or object of the POCA (s 15AA of the Acts Interpretation Act) is that, if no such application is on foot at the time when forfeiture is sought, s 49(3) applies. This is consistent with the purpose behind applications for forfeiture and exclusion applications. A party seeking to exclude property under Division 3 of Part 2-1 of the Act must show (inter alia) that the property or interest in property is neither proceeds nor an instrument of unlawful activity. If the party fails to do so, it would be otiose to require the responsible authority to prove, on a subsequent forfeiture application, that the property was either proceeds or an instrument of unlawful activity or both.
19. In my opinion, the plaintiff is not required to prove the matters in s 49(1)(c) in the present matter because the exclusion applications were dismissed by Johnson J.
20. However, in case I am in error in this conclusion, I will consider whether, in any event, the plaintiff satisfies the matters in s 49(1)(c).

Are the matters in s 49(1)(c) proved?

1. I have had regard to the evidence set out at [12]-[21] above.
2. The plaintiff submitted, and I accept, that the processes described by Ms Ling enabled substantial cash deposits to be made into the company's account without providing any opportunity for staff of the company to confirm the authenticity of the invoices or to confirm that any meat products had been exported. Those processes also ensured that the use made of the funds deposited into the company's account was at the complete and unsupervised discretion of Mr Leung.
3. I have read the transcripts of intercepted phone calls between Mr Leung and his sister, and between Mr Leung and other persons. Those conversations support a conclusion that false invoices were prepared to justify the deposits of cash. The conversations also tend to show that Mr Leung and his sister organised the company's affairs to prevent ordinary employees from knowing what was occurring in relation to the payments received, purportedly for invoices issued by the company.
4. Further, strong inferences are available from those phone calls and from the WeChat messages that Mr Leung, his sister and Mr Tang were engaged in wrongdoing in relation to money that was being received by the company. The amounts deposited into the CBA account bear no relationship to what appears in the company's tax returns.
5. I am satisfied from all of this evidence that the company did not engage in the business transactions it purported to transact. The company did not engage in other than isolated meat export transactions. Those isolated transactions were intended to give an air of legitimacy to what was occurring within the company.
6. As mentioned earlier, on 12 November 2019 Mr Sony Tang pleaded guilty to five counts of an offence contrary to s 400.9(1) of the Criminal Code. The offending occurred in Mr Tang's capacity as a manager of the company and concerned the cash payments made into the company's bank account with the CBA. The evidence to which I have referred is consistent with Mr Leung, his sister and the company being involved in those offences or offences of that kind.
7. I am satisfied that the chose in action constituted by the company's right to the funds standing to the credit of its CBA account was wholly or partly derived or realised, directly or indirectly, from offences of a kind for which Mr Tang pleaded guilty. In those circumstances the whole of that property of the company constitutes "proceeds" of one or more indictable offences within the meaning of s 329(1) of the Proceeds of Crime Act. Such offences are indicatable offences and serious offences within Part 10.2 of the Criminal Code.
8. I am further satisfied that the chose in action was an "instrument" of serious offences of the same kind within the meaning of s 329(2)(a) of the Act, because it was property which was used in, or in connection with, the commission of offences of that kind.
9. In those circumstances, s 49(1)(c) is satisfied.

Discretion in subs (4)

1. Sub-section (4) gives a discretion to the Court to refuse an order if the Court is satisfied that the property is an instrument of a serious offence other than a terrorism offence, and is not proceeds of an offence. The discretion does not arise in the present case because I have found that the property is the proceeds of an offence.

Conclusion

1. The requirements of s 49 are satisfied and, in the circumstances, the Court must make an order that the property specified is forfeited to the Commonwealth.
2. Accordingly, I make the following orders: (1) Pursuant to s 49 of the Proceeds of Crime Act 2002 (Cth) the property specified in the Schedule to these orders is forfeited to the Commonwealth. (2) Pursuant to s 69(2) of the Proceeds of Crime Act 2002 (Cth), leave is given to the Commonwealth to dispose of, or otherwise deal with, the property forfeited by order 1 above, immediately. (3) In the event that the registration of C C & B International Pty Limited (ACN 140 719 722) is reinstated, it is to pay the plaintiff's costs of the proceedings. SCHEDULE Funds standing to the credit of Commonwealth Bank of Australia account number 06 2184 1108 1708 held in the name of C C & B International Pty Ltd (ACN 140 719 722) together with any interest earned thereon.

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: 11 June 2020