Application by the Commissioner of the Australian Federal Police v Sun

Supreme Court of NSW|2022-11-18|Before: Rothman J

JUDGMENT

The Commissioner of the Australian Federal Police (hereinafter "the Commissioner") seeks a forfeiture order under s 49 of the Proceeds of Crime Act 2002 (Cth) (hereinafter "the Act") in relation to property of which the defendant, Ms Jieying Sun, is the registered proprietor or in whose name funds are deposited.
The property in question is real property at 304/118 Joynton Avenue, Zetland NSW 2017 of which, as earlier stated, the defendant, Jieying Sun is the registered proprietor, and funds standing to the credit of the defendant in ANZ being account ending in numbers #592, which account is also in the name of the defendant. The account will hereafter be referred to as the "ANZ Account" and the property as the "Zetland Property".
The order is opposed by the defendant.
Further, if the Court were minded to issue forfeiture orders then the defendant seeks compensation orders under s 78(1) of the Act in respect of all or any of the property to be forfeited.

Background

The defendant is a citizen of the People's Republic of China (hereinafter "PRC" or "China") who has lived and lives in Australia on a student visa. Her father, Mr Liwu Sun, resides in China and is a well-resourced businessperson with significant business interests operating in the PRC and who, on the evidence before the Court, has been extremely successful.
On or about 11 or 12 August 2014, an amount of $517,241 was transferred to the defendant's account with the Commonwealth Bank (hereinafter the "CBA Account"). The funds deposited originated from either the father's accounts or from one of his companies. The method of transfer is a matter which has occasioned the restraining orders sought and obtained by the Commissioner.
In or around December 2014 (according to the defendant on 28 November 2014), the defendant entered into a contract for the purchase of the Zetland Property. The financing of the property involved the defendant obtaining a bank cheque from one or two of her CBA Accounts for a deposit of $95,500; and, obtaining a loan from ANZ Bank for the purchase of the property (in the amount of $640,000). The ANZ account was opened as an offset account on that loan.
In January 2015, $430,000 was transferred from the CBA Account to the ANZ account.
Settlement of the Zetland Property occurred on 20 January 2015. The purchase price, seemingly over and above the deposit already mentioned, was $857,055.71. Further, the defendant was required to pay $38,485 in stamp duty and $2,146.11 in legal fees.
It is necessary to briefly describe the process by which the moneys were transferred from the PRC to Australia. In or about 2014, the Australian Federal Police (hereinafter "AFP") commenced an investigation into suspected money laundering syndicates and one, in particular, comprised some Chinese students who had been observed depositing large sums of cash into various Australian financial institutions and then transferring the funds overseas.
As part of the investigation in November 2014, the AFP commenced an investigation into Mr Yei Feng. In 2015, Mr Feng was charged with an offence being one contrary to s 400.9(1) of the Criminal Code Act 1995 (Cth) (hereinafter the "Criminal Code"). The charge was that between 23 July 2014 and 8 December 2014, in Sydney and elsewhere, Mr Feng dealt with money, reasonably suspected to be the proceeds of crime, and, at the time of dealing with the money, its value was $100,000 or more.
Mr Feng pleaded guilty. The conviction was recorded on 9 December 2016 at which time Mr Feng was sentenced to 8 months imprisonment.
It is appropriate to describe the criminal enterprise that occurred. The process is not uncommon and is one to which the authorities are now alert.
Money that is sought to be transferred internationally is, from time to time, transferred through unscrupulous money exchange agents who, on account of profits being earned elsewhere, offer a slightly better exchange rate and lower service fees to effect the exchange. The money is then transferred to the exchange agent who deposits it in an account of a person unknown to the transferor of the money.
The account to which it is transferred usually belongs to, or is associated with, a person engaged in criminal activity, who then pays others to deposit cash in amounts less than the reportable amount, which total the amount to be transferred, into the account of the transferee. In that way, the criminal enterprise "launders" cash obtained from criminal activity; the exchange agent obtains a commission on the laundered money greater than a market transfer commission; and the transferor transfers the money at a lower cost than otherwise would be required. Other than as a result of noticing multiple deposits, compared to one deposit, the transferee may be wholly unaware of the process that has been undertaken.
The foregoing process is illegal; launders money from criminal activities; and renders the money and anything purchased with the money an instrument of criminal activity. The process described may involve no knowledge of the process or of any illegality or criminal activity on the part of the original transferor or the ultimate transferee. In these proceedings, there is no suggestion that the defendant or her father (or his companies) were aware of the process being undertaken or the illegality of the process.
Relevant to the current proceedings, on 11 and 12 August 2014, three persons, including Mr Feng, deposited cash in Ms Sun's CBA account totalling $437,291. This was deposited in seven different deposits of which Mr Feng made five deposits totalling $357,241. The other two deposits were by Lin Su and Lin Shau, each of whom was a student, and each deposited on 12 August 2014 amounts of $30,000 and $50,050 respectively. Ms Sun also deposited, in her own account, an amount of $70,000 on 20 August 2014.
On 17 December 2014, Ms Sun obtained a bank cheque for $95,500 from the Bank utilising the moneys deposited in the account in the aforesaid manner. This bank cheque was used for the exchange of the contracts for the purchase of the Zetland Property, which occurred on 19 December 2014. The contract price was $955,000.
In December 2014, Ms Sun applied for a loan with the ANZ Bank. While the authorship of all of the information contained in each of the documents is a matter of some contention, it is sufficient for the present purposes to note that the document was based upon a completed home loan application form; an employment certificate dated 27 November 2014 issued by Ms Sun's father's company (or one of them), Beijing Xingpeng Construction Engineering Co Ltd, certifying that Ms Sun was employed with the company since November 2011 as a full-time office manager; three payslips from the company for September, October and November 2014; a bank statement showing salary credit; and statements of Financial Position dated 11 December 2014, 29 December 2014 and 30 December 2014, each purportedly signed by Ms Sun.
Leaving aside the circumstances pertaining to the obtaining of the loan by the defendant, Ms Sun, the factual matrix upon which the Commissioner relies in relation to the money transfer is not unusual. The issue in the proceedings is that the Commissioner asserts that the ANZ loan was obtained by Ms Sun by misrepresenting her circumstances in that, at the time of the loan application, Ms Sun was neither employed by her father or his companies nor receiving income as alleged.
There is no allegation that ANZ has suffered damage as a consequence of the alleged fraud, but the circumstance that ANZ has suffered no damage does not, in and of itself, overcome the reasonable suspicion that, by the misrepresentation, Ms Sun dishonestly obtained a benefit by deception. A person who, by deception, dishonestly obtains a financial advantage is guilty of the offence of fraud, pursuant to the terms of s 192E of the Crimes Act 1900 (NSW).
If the person from whom the financial advantage is obtained is the Commonwealth then there is an equivalent Commonwealth offence under s 135.2 of the Criminal Code. The latter offence is irrelevant to the current proceedings and conduct because ANZ is not the Commonwealth, nor a Commonwealth entity.
Further, the provisions of s 192G of the Crimes Act render it an offence for a person, acting dishonestly, to make or to publish or to concur in making or publishing, any statement (written or oral) that is false or misleading with the intention of, relevantly, obtaining a financial advantage. The term "dishonest" or "dishonestly", where used in the Crimes Act, signifies "dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people". [1]
The Commissioner alleges that Ms Sun obtained the advantage, being the loan funds from the ANZ, by making statements to the Bank contained within: 1. the ANZ home loan application form; 2. the employment certificate provided to ANZ; 3. the payslips, to which earlier reference has been made; 4. the bank statements from SPD Bank showing salary credits; and 5. the three Statements of Financial Position, to which earlier reference has been made, being those dated 11 December 2014, 29 December 2014 and 30 December 2014.
The Commissioner alleges that each of the documents were false or misleading in a material particular, contrary to s 192G of the Crimes Act.
Whether the Commissioner has satisfied the Court that the ANZ loan funds were proceeds of crime is a matter of fundamental controversy in the proceedings before the Court. On the other hand, the deposit, being moneys in the account derived from the transfer arrangements orchestrated by Mr Feng and for which he has been convicted, is relatively uncontroversial.
Mr Feng was convicted of an offence, being dealing with money suspected of being proceeds of crime contrary to s 400.9(1) of the Criminal Code. The moneys were transferred by Mr Feng and others into the defendant's CBA account and, pursuant to the terms of s 329(2) of the Act, the moneys in that account became an instrument of a serious offence.
It is appropriate to recite s ss 329 and 330 of the Act: "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. (4) Property only ceases to be proceeds of an offence or an instrument of an offence: (a) if it is acquired by a third party for sufficient consideration without the third party knowing, and in circumstances that would not arouse a reasonable suspicion, that the property was proceeds of an offence or an instrument of an offence (as the case requires); or (b) if the property vests in a person from the distribution of the estate of a deceased person, having been previously vested in a person from the distribution of the estate of another deceased person while the property was still proceeds of an offence or an instrument of an offence (as the case requires); or (ba) if the property has been distributed in accordance with: (i) an order in proceedings under the Family Law Act 1975 with respect to the property of the parties to a marriage or either of them; or (ia) an order in proceedings under the Family Law Act 1975 with respect to the property of the parties to a de facto relationship (within the meaning of that Act) or either of them; or (ii) a financial agreement, or Part VIIIAB financial agreement, within the meaning of that Act or a superannuation agreement within the meaning of Part VIIIC of that Act; and 6 years have elapsed since that distribution; or (c) if the property is acquired by a person as payment for reasonable legal expenses incurred in connection with an application under this Act or defending a criminal charge; or (d) if a forfeiture order in respect of the property is satisfied; or (e) if the property is forfeited, confiscated or otherwise disposed of under a corresponding law (whether or not because of an order made under that law); or (f) if the property is otherwise sold or disposed of under this Act; or (g) in any other circumstances specified in the regulations. (5) However, if: (a) a person once owned property that was proceeds of an offence or an instrument of an offence; and (b) the person ceased to be the owner of the property and (at that time or a later time) the property stopped being proceeds of an offence or an instrument of the offence under subsection (4) (other than under paragraph (4)(d)); and (c) the person acquires the property again; then the property becomes proceeds of an offence or an instrument of the offence again (as the case requires). (5A) Paragraph (4)(ba) does not apply if, despite the distribution referred to in that paragraph, the property is still subject to the effective control of a person who: (a) has been convicted of; or (b) has been charged with, or who is proposed to be charged with; or (c) has committed, or is suspected of having committed; the offence in question. (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. (8) This section does not limit section 329."
Once, in accordance with the foregoing, it is clear that the money given by the defendant's father to the money exchanger to transfer to his daughter was diverted and utilised to launder money, the money (being the cash deposited by Mr Feng and others into the account of the defendant) becomes, pursuant to the terms of ss 329 and 330 of the Act, either the proceeds of crime or an instrument of crime (possibly both).
As earlier stated, the Commissioner applies for forfeiture orders under s 49 of the Act. It is necessary to recite the provisions of s 49: "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.
There are a few aspects of the foregoing provision which require expansion. First, the provisions of s 49(1) of the Act, by using the word "must", requires a court to make an order if the conditions in the subsection have been satisfied.
In regard to the provisions of s 49(1) of the Act, it should be noted that the Court is a court with proceeds jurisdiction; the Commissioner is a relevant responsible authority described in s 49(1)(a) and has applied for an order under s 49(1) of the Act; a restraining order was issued by the Court on 21 October 2015, which, to state the obvious, is more than six months before today and before the motion for the forfeiture order was agitated, and, therefore, satisfies s 49(1)(b); and, the Commissioner has taken reasonable steps to identify and notify persons with an interest in the property. The foregoing is uncontentious.
By virtue of the proceeds of crime, the cash deposited in the account of the defendant was realised from the commission of an offence, being the offence with which Mr Feng was charged and which was committed by him and others. Further, the chose in action, or moneys contained in the account, was probably used in connection with the commission of an offence and, perhaps more importantly, the money provided to the exchange agent was money used in connection with the commission of an offence and was, as a consequence, an instrument of an offence pursuant to the terms of s 329(2) of the Act.
Further again, by operation of s 330(1) of the Act, the moneys contained in the bank account or the chose in action of the defendant is property wholly or partly derived or realised from the disposal or other dealing with proceeds of the offence, being the money laundered as a result of the offending of Mr Feng and others. It is also property wholly or partly acquired using proceeds of the laundering offence.
Over and above the foregoing, pursuant to the terms of s 330(2) of the Act, the property is an instrument because it is property wholly or partly derived or realised from the disposal or other dealing with an instrument of the offence, being the laundered moneys and/or is property wholly or partly acquired using an instrument of the offence. Similarly, if the deposit moneys are an instrument of the offence and or proceeds of an offence, then the Zetland Property is, by virtue of s 330(2)(b) property wholly or partly acquired using an instrument of the offences committed by Mr Feng and his cohorts.
Thirdly, the property only ceases to be proceeds of an offence or an instrument of an offence pursuant to the terms of s 330(4) of the Act. For that purpose, we can, without more, simply disregard the provisions of pars (b), (ba), (c), (d), (e), (f) and (g) of subsection 330(4) of the Act. In other words, the only possible relevant provision that would have the effect of the property ceasing to be proceeds of an offence or an instrument of an offence is the circumstance described in subsection 330(4)(a) of the Act. The paragraph is extracted above.
The dictionary to the Act, s 338, defines "sufficient consideration" as "consideration that is sufficient and that reflects the value of the property, having regard solely to commercial considerations". Thus, considerations that are not commercial in nature, as may sometimes represent consideration for some contracts, are not to be factored into the determination of whether sufficient consideration has been provided.
The construction of the foregoing provisions and the term "sufficient consideration" was the subject of extensive discussion by the High Court in Lordianto. [2]
In Lordianto, the High Court clarified that, essentially, for property to cease to be proceeds, pursuant to the terms of s 330(4) of the Act, there needs to be the equivalent of a bona fide purchaser for value without notice. The High Court provided the example of a drug dealer gifting cash to a relative who then purchases a motor vehicle. [3] The motor vehicle would still be the proceeds of crime and it is only when a subsequent purchaser buys the motor vehicle for value without knowledge of the criminally tainted antecedents that the property ceases to be the proceeds of crime.
Further, the High Court rejected the proposition that the third party referred to in s 330(4)(a) of the Act needs to be a third party to the transaction by which the property first became the proceeds of crime. [4]
Further again, and most relevantly for the current discussion, the High Court made clear that reliance on a "temporal" connection is a mistake. Such a temporal approach does not take account of the operation of s 330(1) and (2) of the Act. The High Court said at [100]: "[100] Third, the reliance in some judgments below on a "temporal" issue - property "becoming" proceeds or an instrument of an offence under s 330(1) or (2) at the same time as it "ceased" to be proceeds or an instrument under s 330(4)(a) - is inconsistent with the POCA. It does not take account of the operation of s 330(1) and (2), to which reference has just been made. Further, it does not take account of the fact that the inquiry under s 330(4)(a) is objective. Necessarily, there can be no detailed exposition in the abstract." [5]
The reference to the operation of s 330(1) and s 330(2) is a reference to the explanation given by the High Court at [96] that it may not be possible to identify the transaction by which the property first became proceeds of an offence or an instrument of an offence and it is not consistent with the text of the Act to limit the "third party" to which s 330(4) refers to a person with no involvement in the transaction by which property first became proceeds of an offence or an instrument of an offence. Rather, the High Court took the view that the term "third party" is no more than a descriptor of a person who satisfies s 330(4)(a) of the Act.
The Court, as presently constituted, is bound by the determination of the High Court and by its considered obiter. Yet, the reference to the absence of a temporal connection does create some tension.
The terms of s 330(4) deal with the "cessation" of property as proceeds of an offence or an instrument of an offence. Without more, this would suggest that s 330(4) of the Act operates only after property has become the proceeds or instrument of an offence.
The High Court was not dealing with that situation. Yet one can readily foresee the circumstances where the consideration is provided prior to the property becoming the proceeds or instrument of an offence. An example will suffice.
Let us assume, perhaps in a manner not totally foreign to the arrangements in this case, that an employee works for an employer whose head office is overseas. Leaving aside for present purposes whether the employee may be compensated at a rate that is above market rates, let us further assume that the employment contract is terminated and the employee, in calculating her or his entitlements, realises that there has been an underpayment of salary of, say, $100,000.
The underpayment is raised with the employer in Australia who immediately accepts the correctness of the claim and refers it to the head office overseas. The head office transfers the $100,000 to the employee's bank account and Mr Feng (or persons operating in the same manner) undertakes the same money laundering process as occurred in these proceedings.
The employee receives the $100,000 in a bank account but the consideration, being the services provided under the contract of employment, was provided before the offence took place and before the chose in action (being the bank account of the employee) was debited with the amount that is, in accordance with the analysis in these proceedings, the proceeds or instrument of an offence.
When the consideration was provided, assuming for present purposes it is "sufficient consideration" and assuming the provision of services under a contract of employment is a "commercial consideration", it was well before the money became the proceeds or instrument of an offence and at a time when there were no proceeds or instrument of an offence in any relevant sense. Does the High Court comment that there need be no "temporal connection" mean that consideration for the amount that was provided well before it became the proceeds or instrument of an offence may be sufficient consideration and, notwithstanding the inelegance of the phrase, consideration that allows the proceeds or instrument to cease to be such?
The foregoing difficulty is one that is, or may be, relevant to the current circumstances with which the Court must deal. It is further complicated by the terms of Subdivisions B and C of Division 5 of Part 2-2 of the Act, which dealt with exclusion orders and compensation orders. Exclusion orders depend upon property not being the proceeds of unlawful activity or the proceeds or instrument of an offence and merely reiterate the difficulty.
A court that has issued or is to issue a forfeiture order may make a compensation order under s 77 of the Act. There are some obvious technical requirements. An applicant must make the application for the compensation orders; the Court must be satisfied that the applicant has an interest in the specified property described in the forfeiture order or in the application for the forfeiture order; and the Court has issued, or is to make, the forfeiture order.
The non-technical requirements for a compensation order to be made require the Court to be satisfied that a proportion of the value of the applicant's interest in the property was not derived or realised, directly or indirectly, from the commission of any offence and that the applicant's interest is not an instrument of any offence.
Given the conclusions already reached, it could never be said that, in the foregoing hypothetical, an employee's chose in action (or so much of it as was transferred from overseas) was not the instrument of an offence.
It cannot have been the intention of the legislature to confiscate property of persons who are innocently exposed to their property being the instruments or proceeds of crime. The clear purpose of the provisions of s 330(4) and the capacity to issue exclusion and compensation orders is to ensure that persons, who have an interest in property, which, for reasons that do not involve their knowledge or criminality, can be classified as the instrument or proceeds of crime, should not be prejudiced.
While the federal government plainly has the power to confiscate property derived from criminal activity, if the property confiscated were property of an innocent third party, there may be interesting issues associated with the provisions of s 51(xxxi) of the Constitution.
While it is important not to read comments in any judgment beyond that with which the judgment is dealing, the High Court was expressly dealing with a submission that considered and sought to rely upon the use of the word "ceased" or "ceases" in the Act. As a consequence, the Court is not inclined to depart from the generality of the comments of the plurality and "sufficient consideration", even when provided before the property becomes the instrument or proceeds of crime, may be taken into account in determining whether the provisions of s 330(4) of the Act have been satisfied.
The High Court dealt expressly with international transfers of the kind here impugned because that was an issue in the Lordianto appeal. The High Court said at [75]-[81]: "[75] The essential initiating event is an instruction by a payer (or the originator of a payment) to their bank to reduce the value of their bank balance in an account and to increase, correspondingly, the bank balance of an account held by a named recipient (also known as the beneficiary). The form of the instruction is not fixed. The originator's title to "money" is not transferred. The transfer operates by adjusting the total amount of the debts owed by the participants, the banks, to each other by a process which the banks commercially describe as "netting". It is a process whereby a series of obligations between two participants is replaced with a single obligation which is calculated by adding all of the obligations owed by each participant to the other and deducting the smaller from the larger. On any one day, the netting involves multiple participants in the industry, often using clearing houses, which operate as multilateral contracts. The process of netting determines the net sum which each bank owes to each other in the clearing system, which is then settled. [76] There are a number of consequences. First, when an originator instructs a bank to make a transfer from their account, the chose in action representing that credit balance is extinguished or reduced by the amount of the transfer. Second, a fresh chose in action is created, or the value of an existing chose in action is increased, for the beneficiary which entitles them to withdraw an equivalent amount from their bank, subject always to the terms of their contract with their bank. Third, the property the beneficiary acquires is wholly distinct from the property which the originator had before the transfer. Indeed, the POCA recognises the change in the nature of property held by a bank by providing that "property" remains proceeds, or an instrument, of an offence even if credited to an account. [77] These processes raise significant commercial considerations and, thus, consequences for the proper construction of s 330(4)(a). As stated earlier, different forms of property will necessarily raise different questions about the form, amount, nature and source of the consideration. [78] Once the property in a bank account is properly identified and it is recognised that the value credited to another account is not the property that was deposited, many of the submissions about what was necessary in order for an applicant for an exclusion order to demonstrate that they have provided "sufficient consideration" for the acquisition of an interest in connection with their chose in action in a bank account must be rejected. [79] First, contrary to the AFP's submissions, it was unnecessary for the appellants to establish, and contrary to established banking practice to require proof, that the "funds" deposited into the appellants' respective Australian bank accounts, which they sought to exclude from the restraining order, were "their own funds". As just seen, the funds deposited with the banks were not the property the appellants held and sought to exclude. [80] Second, contrary to the approach adopted by some of the courts below, it was unnecessary for the appellants to establish, and contrary to established banking practice to require proof, that the appellants had a direct connection, contractual or otherwise, with the persons who "made the deposits" into their Australian bank accounts or that there was any contractual relationship, whether as agents or otherwise, between the remitters in the foreign country and the depositors in Australia. [81] Third, a construction that focuses attention away from whether consideration has been paid and instead towards whether the relevant relationships are direct or indirect diverts attention from the fact that a purpose of the provision is to exclude those who have not paid sufficient consideration, including volunteers, from being able to keep proceeds, or an instrument, of an offence." [6]
The foregoing analysis must be applied in dealing with the applications that are now before the Court. It is necessary to bear in mind that, as earlier stated, the jurisdiction relies on the initial formation of a reasonable suspicion and depends upon the criminal conduct of the person whose conduct forms the basis of the original restraining order, not the person whose property is being forfeited. In this case, there can be no doubt that Mr Feng whose conduct (and the conduct of his co-offenders) formed the basis of the restraining order engaged in the conduct that constituted one or more serious offences and is the basis upon which the property in issue in these proceedings is the proceeds or instrument of an offence. However, the Court is entitled not to make a forfeiture order if the Court is satisfied that property is an instrument of a serious offence other than a terrorism offence, but is not the proceeds of an offence, and should not be forfeited "in the public interest". [7]

The evidence

As is obvious from the foregoing, a significant proportion of the primary facts are uncontentious. These reasons have already recounted that the defendant, Jieying Sun, is a citizen of the PRC, who has been employed by her father, Mr Liwu Sun, in one of his companies. Her residence in Australia, since 2008, has been pursuant to a study visa during which time she has undertaken a number of tertiary courses.
The father, Liwu Sun, resides in China. Further, the reasons have also already recounted the transfer of moneys from one of the father's companies to the defendant, through an exchange agent and the transfer was the process by which serious criminal offending occurred, because the amount transferred was used to launder money. The persons involved, or some of them, have been the subject of criminal proceedings and conviction.
Also uncontentious is the fact that the moneys standing to the credit of the defendant were used as part of the deposit for the purchase of the property in Zetland and that the defendant obtained a loan from ANZ for the difference between the deposit and the purchase price of the property in Zetland (less certain other cash deposits).
As earlier stated, none of the foregoing is contentious.
Notwithstanding the short compass of the factual dispute between the parties, significant evidence was adduced and there was lengthy cross-examination on affidavits. The Commissioner relied upon the affidavits of Glyn Evan Roberts sworn 20 October 2015 and the exhibit thereto (Exhibit GER-1); the affidavit of Scott Michael Mathews, affirmed 1 November 2016 and the exhibit thereto (Exhibit SM-1) (the "First Mathews Affidavit"); an affidavit of John Vuceric affirmed 7 May 2020 and the exhibit thereto; a second affidavit of Scott Michael Mathews sworn 2 July 2020 (the "Second Mathews Affidavit"); an affidavit of Craig Jerkavits, affirmed 14 July 2020; an affidavit of Scott Michael Mathews, affirmed 23 November 2021 (the "Third Mathews Affidavit") and the exhibit thereto; an affidavit of Jacqueline Mary Smythe sworn 3 December 2021 and the exhibit thereto; and the affidavit of Leanne Eileen Jackson sworn 9 December 2021 and the exhibit thereto.
Two further affidavits of Scott Michael Mathews affirmed 10 November 2022 and 14 November 2022 respectively are relied upon together with the entire transcript of the examination of Mr Yi Feng on 18 March 2016 and Mr Sean Huang of 18 August 2016 and Mr Guanyu Lai of 21 September 2021. Notice was given pursuant to the provisions of s 318B(1) of the Act. The transcript of Mr Huang and Mr Lai were admitted into evidence and the application for leave to admit the evidence of Mr Yi Feng was the subject of an application for leave under the relevant section.
Leaving aside the affidavits of interpreters, which were sworn in relation to translations of Chinese language exhibits and which translation was uncontentious, the defendant relied upon the affidavits of the defendant herself, Ms Jieying Sun, of 4 April 2017, two affidavits of the father, Liwu Sun of 20 January 2016 and 21 April 2016 and an affidavit of David Leamy of 13 March 2016. There are a large number of exhibits to the affidavits.
The defendant sought leave to rely upon additional evidence being the affidavit of Mr Shing Lam of 11 November 2021 which was sought to be relied upon in response to the Commissioner's further affidavits.
The affidavits of Scott Michael Mathews related essentially to procedural matters, mostly being attempts to contact witnesses, including Tom Jin and Mr Yi Feng and otherwise were formal in that they exhibited a raft of documents. A further affidavit of Jayne Alice Qorraj also related to attempts to contact Mr Yi Feng. Similarly, the affidavit of David Leamy concerned essentially the provenance of documents. It is unnecessary to summarise the formal affidavits.

Leanne Jackson

As already stated, Ms Jackson swore an affidavit on 9 December 2021 and gave evidence on 14 November 2022. At the time of swearing the affidavit, Ms Jackson was a Commercial Home and Investment Lending Manager at ANZ; a position she had held since February 2009.
Her main role was assessing home loan applications. If the application were to involve foreign income, then the application would be submitted by her to the ANZ Credit Assessment Team.
Her usual practice, in assessing a loan, was to conduct an interview with the applicant and, in that interview, confirm the details of the application; provide the applicant with details of the financial products that may meet the applicant's needs; compile the documents needed to progress the application; and request source documents from the applicant.
The source documents needed were payslips and bank records evidencing income over the last three months. If there were foreign income, an employment letter or contract would also be required. It was her ordinary practice to provide applicants with a blank home loan document for them to complete. If she were ever to help an applicant complete the form, it would only be on the basis of the information provided by the applicant. Further, she would always confirm the contents of the application with the applicant.
It was also her practice to obtain source documents directly from the applicant, rather than from the employer, for example. Ms Jackson is unaware of any situation where a person fulfilling her role at the branch level would contact an employer directly to receive from that employer the financial document or documents. If a third party, such as an accountant, were to provide a source document, then Ms Jackson would show it to the applicant for verification.
Part of the application is an authority for ANZ to obtain documents from accountants, financial advisers or employers. Despite this, Ms Jackson confirmed it was not the usual practice to obtain the documents in that manner. As part of the application process, Ms Jackson would obtain a Statement of Financial Position from the applicant, usually directly, which she would then cross-reference to source documents otherwise provided.
Ms Jackson would then submit the application with a recommendation as to whether it should be approved. There existed "Mortgage Credit Requirements", which were exhibited to the affidavit, and which governed the process internally.
In the role described, Ms Jackson did not deal with mortgage brokers. Mortgage brokers had a separate section established by ANZ for them to submit loans for assessment. If a broker were involved, the assessment would not be dealt with at the branch level.
Apart from brokers, in the relevant period of the application for loan that was subject to these proceedings, ANZ had a programme that paid third parties 0.5% for referring a customer for home loan services. The system, in the understanding of Ms Jackson, was that third parties were not to complete application forms for customers and did not usually provide source documents to the Bank. If an introducer, whose function was merely to introduce applicants to the Bank were to provide a source document, it had to be shown to the applicant for verification. That was the system operated by Ms Jackson. Her usual practice was not to accept source documents from introducers, but only from the applicant.
Ms Jackson had no connection with the application by the defendant, Ms Sun. Nevertheless, Ms Jackson reviewed the documents relevant to the loan in question in these proceedings and made comments on them. Her view was that the documents would only have been used for an application with the knowledge and consent of the applicant. She also expressed the view that, in her experience, ANZ would not have approved a loan for 100% of the purchase price without the presence of collateral security.
In cross-examination, Ms Jackson clarified and/or confirmed that the Mortgage Credit Requirements policy relates to:

the assessment of application of people approaching the Bank for a secured loan;
the "non-permanent resident credit policy" is for assessing applicants who are not permanent Australian residents;
she was not aware of a category under the policy for applicants who live in Australia but work overseas;
an assessor, at a level outside the branch level, will always assess foreign applications;
the person in the branch who dealt with the application of Ms Sun was Mr Jin;
Ms Jackson's role was the same as that filled by Mr Jin, but in a different branch;
the role does not have the same level of discretion as the foreign income assessor role;
the "Mortgage Credit Requirements" policy is applied assiduously by people in that role;
applicants were able to verify foreign income in three ways, a letter from an employer, an employment contract, or the last three months of payslips;
any one of the three available means of verifying foreign income could be provided but the credit assessor may want more on a full assessment and may gather as much information as possible;
if foreign income were involved, when preparing the Statement of Financial Position, ANZ would deduct 20% to allow for the exchange rate risk;
Ms Jackson had never encountered an applicant who was living in Australia and being paid in foreign currency;
while it was not common for Ms Jackson to undertake contact with employers, accountants or the like, such a process could be undertaken but was not common when the documents provided seemed acceptable; and
if a credit assessor needed to review an application, for when foreign income was involved, Ms Jackson's expectation would be that it would taken between 2 and 10 days.

Ms Jackson was examined about the documents in the defendant's loan application and confirmed the following issues:

there was an agent authority on the file for Alwyn Maher as agent for the defendant, which means he had access to her accounts;
the fact that the PAYG box was ticked on the Mortgagor's Application Guide by Tom Jin does not mean that foreign income was not considered or the subject of reference, even though PAYG was an Australian system. It could, on Ms Jackson's view, be a reference to the circumstance that payslips were used;
the Mortgagor's Application Guide had no indication that foreign income was in play;
Ms Jackson could not work out from the Mortgagor's Application Guide why the file had been flagged for review by a credit assessor;
Ms Jackson did not consider it unusual for Ms Sun to have an Australian address as a number of expats were in that position;
no documents were found that were created by the credit assessor; and
a commission was paid to Ling Lin as an introducer on the loan, which meant that Ling Lin introduced the defendant to ANZ.

Ms Jackson confirmed, in re-examination, that introducers did not provide documents to the Bank and that their role was limited to introducing the customer who then signed a form to say they were willing to be linked to the introducer.

Jacqueline Mary Smythe

As already stated, Ms Smythe swore an affidavit on 3 December 2021. Ms Smythe was employed as a Senior Assessor in the Foreign Income Assessments Team at ANZ as at the date of her affidavit. She had worked at ANZ since 2006 and been in the current role since October 2017. Ms Smythe gave evidence about the loan assessment process.
For new applications that were made at a branch, Ms Smythe testified that the lending officer in the branch would make an initial assessment of the serviceability of the loan, before sending it to an assessor. It was sent to an assessor only if it did not meet the criteria for automatic approval. Those criteria included a situation where the serviceability of the loan depended upon foreign income stream.
If there were a foreign income stream, the application was referred to the Foreign Income Assessments Team. Ms Smythe would review the loan documents as well as the source documents to assess the serviceability of the loan. If the declared income did not match the source documents, the loan would not be approved.
Ms Smythe assessed the defendant's loan application in 2014. By reference to the loan documents, Ms Smythe testified that the loan had been referred to her on 12 December 2014 by Tom Jin.
Ms Smythe conditionally approved the loan on the basis that certain documents and information were provided. Those documents included a property valuation, approval from the Foreign Investment Review Board, a non-resident acknowledgment form, and the date of the contract of sale. She understood that the requirements for those matters were conveyed to the branch by email.
On 31 December 2014, Mr Jin resubmitted the loan application with the requested documents as well as a transfer for the land subject of the loan. Ms Smythe then unconditionally approved the loan. She deposed that she approved the loan on the basis that the information provided was a correct representation of the defendant's assets and liabilities as well as income.
Ms Smythe advised that the loan would not have been approved if the defendant were to have resided in Australia for residency purposes; did not reside with her parents; intended to purchase the property for residential purposes; was not employed in any capacity or receiving salary or income in any capacity, or any other income. Those circumstances would still apply as at the time that the evidence was adduced and, at that time, Ms Smythe was still employed at ANZ.
If the loan application had been submitted by someone who was residing in Australia, but a foreign applicant, it would not have been assessed by Ms Smythe.
In the course of cross-examination, Ms Smythe accepted that she had assumed that the applicant was a foreign resident because of the way in which the documents were presented to her and by the circumstance that it was sent through to the department that dealt with the assessment of foreign income. Notwithstanding her comment that she had stated that she would have communicated the conditional approval of the loan to Mr Jin, ANZ could not find the email granting conditional approval. Ms Smythe was unaware of commissions, if any, based on the amount of loans written. Ms Smythe was not paid a commission based upon the number or amount of loans approved.
Ms Smythe, and the department, would only receive the documents required for the manual assessment from the lending officer and would confer with the lending officers by email. While Ms Smythe had no separate recollection of the dates referred to in her affidavit, she had reviewed the ANZ systems to check the dates to which she had referred.
Further, Ms Smythe did not have a direct recollection of imposing the conditions on the conditional approval of the defendant's loan and attested to that conditional approval after reviewing her notes. Ms Smythe is wholly unaware of the communications between Mr Jin and the defendant, which would be and is completely outside her knowledge. Ms Smythe did not contact employers or make any enquiries when assessing income.

Glyn Evan Roberts

Mr Roberts swore an affidavit on 20 October 2015 and was employed as a federal agent. It is generally unnecessary to summarise the evidence of Mr Roberts which generally went to the offending by Mr Feng. That offending is not in issue in the proceedings before the Court now. Nevertheless, Mr Roberts detailed the investigations which caused him to form the belief that Mr Feng had deposited money into accounts and it is clear that the belief was reasonable and based upon facts which were either proved or reasonably based.
During the course of cross-examination, Mr Roberts was asked about a person called Shaun Huang of Auschain Investment Group, but did not, initially, recall the person. He did recollect the person when shown orders issued by the Court in 2016 and, while not able to recollect the issues, did accept that there were a number of matters involving Mr Feng and he most likely deposited funds into the account of Auschain Investment Group.

Guanyu Lai

On 21 September 2021, Guanyu Lai attended a compulsory examination conducted under the Act. He confirmed, in examination-in-chief, that he had told the truth during that examination.
During his cross-examination, he was asked questions relating to his role in the defendant's loan application. He did not have a good recollection because of the passage of time but accepted that he may have met the defendant and that they communicated via WeChat in 2014.
Mr Lai was also operating a company called Well Finance Pty Ltd and confirmed that he had a business card (Exhibit 1 in the proceedings) that had the word "broker" written on it in handwriting, but the word was not part of the card and was not his handwriting, as best he could tell.
The business card described Mr Lai as a "lending manager" and he understood that term to mean that he was a person in a company providing financial services as a mortgage broker. Mr Lai did not recall receiving an email dated 24 December from Apex Lawyers but accepted that he was the addressee (or that was his email address).
As best he could say at this time, the email may have related to the preliminary part of the transaction for the loan, but he did not believe that he was the defendant's broker as he could not find any file on her. In response to a subpoena for documents relating to the defendant, he could not find any material.
Mr Lai also checked his settlement record, which is a document that records every customer for whom he settled, but he did not check his other communications. If a customer did not settle a loan, it would be treated as an enquiry, and he would not record it.
When shown Exhibit 3 (a further email from Chris Sun of 30 September 2014), he could not recall receiving it and when shown a significant number of messages on WeChat (Exhibit 4), the witness was unwilling to commit to whether it was his WeChat account and whether he received them or recorded them.
Mr Lai accepted the content of messages which related to him telling the defendant that her loan had not been approved but did not agree that the message meant he was involved in the transaction. In his system, if that be an appropriate description, if a loan were not approved by the lender, then the applicant would not become Mr Lai's customer.
He was asked questions about Multicredit Mortgage in 2014 and testified that he did not work for that company but had worked for them a long time ago, from approximately 2005 to 2011. He did not recall meeting the defendant or the defendant's father in 2014.
In 2014, he was in a relationship with Ling Lin, who acted as an introducer to ANZ. He thought he was familiar with Mr Jin of ANZ Burwood, but, when shown transcripts of his examination in which there was a reference to the fact that he knew Mr Jin and dealt with him, Mr Lai maintained he could not recall referring loans to Mr Jin.
Notwithstanding his evidence in examination, he had no independent recollection of searching WeChat records for Ms Sun and, more generally, had no recollection of Ms Sun at all or the events that were said to have taken place in 2014.
During re-examination, Mr Lai clarified that the front page of a contract for sale was a document he would usually obtain at the beginning of the process in seeking to act as a mortgage broker. His role as a broker involved him providing documents to the Bank as an intermediary and collecting information and documents. When shown Exhibit 3 again, which was, as earlier described, a communication from a solicitor, Chris Sun, referring to FRIB approval, he stated that his understanding was that the customer required FRIB approval because she was not a permanent resident and did not have citizenship.

Scott Michael Mathews

Mr Mathews is also an AFP agent who gave evidence via affidavit, being affidavits of 1 November 2016, 2 July 2020, 23 November 2021, 10 November 2022 (relating to procedural matters relating to the contact of witnesses, Tom Jin and Yi Feng) and 14 November 2022. Apart from the search for witnesses, and annexing the certificate of conviction for Mr Feng to the affidavit of 2 July 2020, the affidavit annexed examinations that had been conducted of the defendant, of Li Feng and of Guanyu Lai. Not all of the questions and answers were relied upon in the course of these proceedings.
Insofar as it related to the testimony at the examination of the defendant, Ms Jieying Sun, this evidence was given on 27 March 2016 and is to the following effect. Ms Sun was expecting to receive money in her bank account from her father for the purchase of a property. On the morning of 11 August 2014, she had a discussion with Shaun Huang on WeChat to the effect that someone would transfer the money into her account for the purchase of the property.
Mr Huang did not tell her who would be transferring the money to her, nor how much would be transferred. Further, she was not informed that the amount would be deposited into her account in cash. When she enquired why money had been deposited into her account from many different branches, Mr Huang told her it was "good for her" because she would not need to lodge or report some matter, the details of which Ms Sun did not recall.
Further, again, when reviewing the record of a $70,000 transfer, made on 11 August 2014, Ms Sun confirmed that she did not make that deposit. She does not know why she was listed as an agent for that transaction.
On the question of the home loan, Ms Sun testified that she needed an ANZ home loan to purchase the Zetland Property and the loan was obtained in or about December 2014, prior to the settlement in January 2015. Ms Sun was vague about the details of her assets and income which were provided with the loan application. Ms Sun could not identify whether she had bonds or shares in her father's company and could not separate the two or did not understand the difference.
On the issue of her income received from her father and whether that was salary or a gift or a payment for studying, Ms Sun did not accept that it could not be income but accepted that she was not working.
Ms Sun asserted that the broker had verified the loan application and obtained the records directly from the company in China, including payslips. Ms Sun agreed that the three payslips annexed to the loan were the only three payslips that existed and that these had been created for the purpose of the loan application to show that she had a full-time job, despite the fact that she was not working.
Questions were asked and answers given relating to the existence of money "held for her" in China by her father. Ms Sun testified that it was her income but it was held for her in China and that her father did not have access to it and, for that reason, had not disclosed it on her application for reasonable living expenses from the restrained property.
Ms Sun agreed that in 2014, she had travelled on holiday to Korea and in 2014 she did not do any work for her father's company in China. She testified that her study in Australia was work, which provided her a salary of $120,000 per annum which was disclosed to ANZ that year. Ms Sun also testified that there were restrictions on the transfer of money in China and that Mr Huang had informed her that more than $50,000 per year per person could not be transferred to Australia. Ms Sun said that Mr Huang told her to get her father to transfer money into a Chinese account, which would then be transferred through to her in Australia and would avoid that restriction.

Other evidence

Li Feng was the subject of examination on 18 March 2016. Mr Feng said that he did not know the defendant. He testified that when making the various cash deposits, including those into the account of Ms Sun, he was instructed by a man called Shiyu Cong who drove him around and gave him cash to deposit and gave him instructions on how to deposit it.
Mr Huang was also the subject of examination by the AFP on 18 August 2016. Mr Huang confirmed that Chinese banks have restrictions on overseas transfers and clients use currency transfer companies to effect large payments of money overseas. Such companies, on Mr Huang's knowledge, transfer the money to an account in Australia and then use that to transfer it to the nominated account.
Mr Huang said that Ms Sun, the defendant, came to see him to discuss how to transfer money for the purchase of an apartment and said that he could either transfer it to many different recipients in tranches of $50,000 or use a transfer company. This was to be done, on his understanding, by electronic funds transfer.
Mr Huang noticed that the amounts were put into the defendant's account in cash and considered that it was just a different way of this particular company operating. Mr Huang and the defendant exchanged messages on 11 August 2014. Apparently, Mr Huang asked a person by the name of Wang or Wong about the cash transactions and was informed that the cash deposit was normal and not to worry about it.
In the affidavit of 2 July 2020, Mr Mathews referred to the examinations on oath of Guanyu Lai and exhibited a copy of the transcript. A summary of the evidence obtained from that part of the transcript that was read into evidence in the proceeding follows.
Mr Lai was a mortgage broker and worked for a company called Multicredit Mortgage until early 2011 following which he worked at World Finance. His general practice was to collect information from clients so that he could assist them with a loan. He invariably had the client fill out the application form which he would then verify and check.
The client would provide him documents in support of the application and it was not his practice to obtain those documents directly from third parties, including employers. Before signing the application and sending it to the Bank, Mr Lai would go through the application with the customer. He would keep a file for each client and, if the client were to proceed with the application, the file would be kept for seven years. If, on the other hand, no application was made within three months, he would discard it.
He would not inform a client to deal directly with the Bank as that would exclude him from the transaction and jeopardise his commission.
He did not know the defendant or her father. He did not recall meeting them, nor did he have any files or records relating to either of them. He did recall being contacted by a solicitor with some questions that related to them.
Apart from the procedural matters to which he testified in the 14 November 2022 affidavit, Mr Mathews annexed a valuation report from Core Logic RP Data, dated 13 November 2022, for the Zetland Property, which valued the property at $920,000.
Mr Mathews became the case officer, which is the lead investigating officer, in relation to these matters in around 2016. The cross-examination concerned Mr Mathews' attempt to contact Tom Jin.

John Vuceric

John Vuceric swore an affidavit on 7 May 2020. He is an Information Disclosure Officer at the Australian Taxation Office (hereinafter the "ATO"). He received a request for information relating to the defendant. The request came from the AFP and sought documents from 1 July 2008 to 30 June 2014, which documents were provided. Further documents were provided after a request from the ATO on 27 March 2020. The documents provided are exhibited to his affidavit.
Other formal evidence was given by Craig Jerkavits who is an Australian Border Force (hereinafter the "ABF") supervisor. After receiving a request by email from Mr Mathews of the AFP, he provided records relating to the overseas movements of the defendant which were attached.

Liwu Sun

The defendant's father provided affidavits of 20 December 2015 and 17 March 2016.
The affidavit of 17 March 2016 corrects some minor aspects of the earlier affidavit, the only aspect of which that is relevant to note, being an addendum to par [81] of the first affidavit. Including the addendum, which is in italics below, par [81] of the affidavit would now testify to the following effect: "My daughter was employed and still is by Construction Co while she was on study leave in Australia. Her payrate was averaged out to be AUD$10,880 per month gross for the purposes of the ANZ loan. She accrued salary and bonuses and the restriction of remitting no more than RMB 1,000,000 per person per annum. She has funds still owing to her despite the large amount already paid to her. It would be fair to consider most of my daughter's payments she received from Building Co to be a gift from me via Building Co. When she was an Office Manager I agreed for her to Study in Sydney and for Building Co to pay her an education allowance for that purpose."
Otherwise, much of the evidence given by Mr Sun was uncontroversial. For reasons already explained that which was controversial was the issue of the employment of his daughter. Mr Sun gave evidence of his relationship with his daughter as her father and of his ownership of companies and, in particular, the Beijing Xingpeng Construction Engineering Company Limited, variously, in these proceedings, called the Building Company or the Construction Company and Beijing Cai Yu Water Supply Company Limited (hereinafter "the Water Company"). He owns substantial stakes in each company.
The Building Company constructed single houses, villas, offices, factories and other building compounds. The Water Company was involved in extracting water, treating it and selling it.
Mr Sun testified, which fact is uncontroversial in these proceedings, to owning assets well in excess of $50 million Australian dollars. His evidence was given by audio visual link and through an interpreter.
In late July/early August 2014, Mr Sun was in Sydney with his second wife. While in Sydney, Mr Sun saw his daughter and spoke to her about purchasing a property.
Initially, a property in Kent Road, Mascot was sought to be purchased. On or about 7 August 2014, Mr Sun met with the agent and discussed purchasing the Mascot Property off the plan. His daughter was in attendance.
The agent who is referred to as Sean Huang (and I take this to be a reference to Shaun Huang) informed them that he could get a good exchange rate on the money transfer and provided details of a transfer company to Jieying (the defendant). The account details were in the name of Teng Jingsheng.
On 11 August 2014, by this time having returned to China, Mr Sun transferred the funds in the manner suggested by Mr Shaun Huang. Mr Sun exhibited receipts for those transfers.
The money was transferred, first, by way of a 3.5 million RMB transfer from the Water Company to the Building Company. Then, 15 lots of 200,000 RMB (equivalent to about 3 million RMB) were transferred from the Building Company to Teng Jingsheng. Mr Sun understood that this would then be remitted immediately to his daughter. Mr Sun testified that the purchase of the Mascot property did not take place due to the price being increased.
In November 2014, Mr Sun returned to Australia with his wife and found another property being the Zetland Property. He testified that the Zetland Property was purchased in January 2015 using a loan from ANZ and other moneys provided by him.
Mr Sun testified that, since 2007, when his daughter graduated from college, she had been working for the Building Company. He said that the Building Company agreed to send her to Australia to study and improve her English.
He said that his intention is for his daughter to succeed him in the business with her two step-brothers and he would rely on her English skills as he did not speak English. On this basis, he said he agreed to pay her $10,880 per month while she was on "study leave" in Australia. He said that she had further amounts owing to her due to the restriction on paying more than 1 million RMB to any one person overseas in any one year. All of the foregoing was contained in the affidavit.
In cross-examination, Mr Sun confirmed that he had wanted his daughter to study overseas and that the defendant had come here on a student visa to pursue different educational qualifications between 2009 and 2017. He wanted to support her and pay for her tuition fees and living expenses.
When his daughter needed money for living expenses, he would give her that, but he also said that she had a salary source of income. He did not expect that the money he sent her would be paid back. He said that it was support and not an investment.
Mr Sun accepted that the money he sent for the benefit of his daughter was in the nature of a gift and agreed that par [81], extracted above and as amended, testified to the average pay of his daughter. He did not recall correcting the paragraph in his later affidavit to describe the funds as a gift from him through the Building Company.
He said that the majority of the payments received by the defendant were given as a gift, but maintained there was a salary income as well. He made such payments to his daughter through the finance department of his company or his assistant. His daughter would contact him to request it. When taken to the Chinese banking records attached to his affidavit, Mr Sun confirmed that the reason recorded for the transfer to his daughter on the banking records was "self-funded study abroad". [8] The same reason was given in other statements.
When questioned as to whether these payments had nothing to do with income and were in fact a loving father supporting his daughter, Mr Sun said that some of it was like that, but part of it was the salary. He thought there was unpaid salary so part of that was for that purpose.
Mr Sun agreed that the documents did not mention income but stated that his understanding at the time was that part of the funds were salary and the rest was a gift as the payments were out of his own pocket. Mr Sun testified that the unpaid salary was salary owed to his daughter to work, which was work she did before she came to Australia.
Mr Sun gave evidence that he is the chair of the Construction Company and now owns over 98% of the shares of that company. The company had no offices in Australia. He also agreed that there was an office manager role based in China which oversees administrative matters. When his daughter came to Australia, she was not discharged from her duty or role as office manager. He found a temporary replacement.
The temporary person needed help from his daughter and he did not agree that such assistance could not be performed from Australia or in Australia. Mr Sun was taken to a transcript of evidence he gave in August 2017 where he had agreed that it was impossible for his daughter to perform her role as office manager from Sydney. Mr Sun denied that such was the case. While he was correct in providing the answer at the time that he did, his daughter, the defendant, in the relevant period, was acting as a tutor to the temporary replacement.
Mr Sun denied the suggestion put to him that he was giving answers to assist his daughter or that she was not actually working for his company during the period leading up to 2014. He did not agree that during that time she was studying in Australia while being supported by a loving father. He did accept that he was a successful businessman with decades of experience and that he had purchased a large parcel of land in China with no mortgage.
When taken to par [25] of his earlier affidavit, which stated there was a mortgage over the office building, he explained that this was a result of needing to transfer assets from a previous company to the current company. He agreed that in late 2014, he was aware that his daughter was in discussions with a Bank about a loan application and that she needed documents to evidence her income. He was cross-examined on text message exchanges with his daughter in which he suggested that the defendant find out whether the Bank would accept evidence of backpay. [9]
However, Mr Sun disagreed that this enquiry was as a result of the fact that the defendant was not receiving a regular salary. Mr Sun elaborated and explained that her payments had been informal, given that it was his company and his child, but because the Bank needed documents, he had realised there were no payslips and asked whether he could generate the payslips retrospectively. He did not accept that he was being dishonest about that to assist his daughter. He also denied that he was keen to provide backpay to his daughter to support her loan application, notwithstanding messages relating to the Bank accepting retroactive payments in particular months.
When pressed, Mr Sun reiterated that these discussions were not about back payments but about generating payslips retroactively for payments that had already been made or credited to the accounts of the defendant.
Mr Sun was then questioned about records of SPD Bank. Those records were in the name of the defendant.
Mr Sun denied that documents were given to his daughter to support her loan application and that he made the payments to his daughter in September, October and November 2014 in order to support her loan application. He did agree that, directly or indirectly, he took steps to provide the SPD document to her to assist her with the application. He initially denied receiving messages from his daughter about obtaining payslips but, when taken to the messages, indicated that he did not recall them.
Mr Sun agreed that he provided his daughter with a certificate of employment which was provided to ANZ. It was put to Mr Sun that it was "nonsense" for the defendant to have commenced a full-time role as office manager in Beijing while studying full-time in Australia in 2011, which Mr Sun refuted.
Further, Mr Sun denied that the payments made were a gift or a study allowance or that at no time between late 2011 and late 2014 was the defendant ever working as a full-time office manager for the company. He confirmed that his daughter was working full-time for his company from November 2011 until the present time and he knew that his daughter had declared a monthly gross income of $10,880 to the ANZ in relation to her loan application.
As to the reason that there were no documents evidencing employment prior to September 2014, Mr Sun explained that corporate procedures and paperwork were not as strict in China as they were in the West. He denied that he provided the payslips to help his daughter obtain a loan.
When examined on a list of transfers he made to his daughter over the last five years and the changing amounts and irregular periods during which payments were made, Mr Sun accepted that there might be times when his daughter's salary was not paid on time, but that did not mean she would not get it in the fullness of time. While he agreed that, in 2013, the payments added up to $40,500 and that, as a matter of arithmetic, this was a lot less than $10,880 per month, he explained that the examiner did not know enough about how private businesses operated in China. The sums, he said, did not include all due payments and reserved payments.
When examined about the differential between $51,000 and $10,000 per month, Mr Sun continued to refer to "overdue payments" which he said accounted for the shortfall between the money received by Ms Sun and her stated income to ANZ. He denied that the amount of $10,880 per month was fabricated to help his daughter obtain a loan.
He was aware that his daughter used an ANZ loan of $640,000 to purchase the Zetland Property and that the balance of the stamp duty and purchase price were paid by him. He explained that one could say that he provided those funds to help her purchase the property but he did not agree that they were a gift and maintained that some of it was her salary.
He did not agree that his daughter had not worked for the money provided to her and accepted that he provided her financial assistance after the purchase of the Zetland Property. Because she was his daughter, he never calculated in detail the money he had given the defendant.

The defendant, Jieying Sun

As earlier indicated, the defendant, Jieying Sun, relied on three of her own affidavits, being affidavits of 29 November 2015, 14 March 2016 and 4 April 2017. The first affidavit was sworn in support of an application for reasonable living expenses to be excluded from the restraining orders initially made by the Court in relation to her assets.
In this affidavit, the defendant deposed that she did not know Li Feng and that she purchased the Zetland Property using funds provided by her father which were sent from his Chinese company through a third party, who had arranged a good exchange rate. The remainder of the funds, after the purchase of the property, were for her living expenses and, at least in part, to service the loan from ANZ.
Her plan was to remain in Australia after completing her studies and to open a small business. The funds remaining were to help her open the small business and they were a gift from her father.
Her only income otherwise was $350 per week from renting out the spare room in the Zetland Property. She requested, in the affidavit, reasonable living expenses from the restrained assets as she suggested that she could not ask her father for more money. She set out, in her affidavit, the expenses at that time.
The next affidavit of 14 March 2016 was only read in relation to pars [32]-[34]. Those three paragraphs annexed: 1. The employment certificate dated 27 November 2014 showing a net income of CNY624,660 (roughly AUD$131,399); 2. Three payslips (together with a comment that the defendant had never received any other payslips); and 3. Documents showing her employment contract with the Building Company.
The third affidavit, of 4 April 2017, was said to have been sworn in substitution for earlier affidavits so that, as a matter of convenience, all her evidence was in one document for the purposes of a motion to exclude her property from the orders made on 21 October 2015.
The affidavit testified to her education, which included: 1. the completion of a degree in Architecture Design at Beijing City University in late 2007; 2. the studying of English in Australia for about 12 months from May 2008; 3. the commencement of an accounting degree at Central Queensland University in February 2009; and 4. the continuation of an accounting degree in Sydney from approximately March 2010.
The defendant maintains that, in or about mid-2011, she graduated in her accounting degree and returned to China. Around this time, she and her father discussed the defendant doing more study in Australia and her father agreed to pay her salary, so she could study more and develop for her future.
After that discussion, the defendant decided to return to Australia to study and to become a certified accountant. The defendant commenced her course for the purposes of registration as a certified accountant in or about August 2011 and continued the course until about 2014. At that time, the defendant ceased the course without completing it.
The defendant returned to Sydney in 2017 and continued her studies to become a certified practising accountant.
The defendant worked at her father's construction company since 2007 and, in this affidavit, exhibited an Employment Certificate and some payslips relating to that employment. When the defendant is in China, according to her affidavit, the defendant works for the company and when she is in Australia, she gets paid a study allowance. The defendant exhibited copies of documents evidencing other transfers made by the building company to her from time to time. The defendant described the payments as in part study allowance, salary, and gift. The defendant said that the amounts exceed her salary and that, in China, employees are not required to lodge tax returns.
Dealing with the purchase of property, the defendant testified that in July/August of 2014, she and her father were looking to purchase property in Sydney. On 7 August 2014 they met with real estate agent, Shaun Huang, for the purpose of purchasing four apartments "off the plan". These were in Mascot.
The defendant said that Mr Huang told her that they needed to pay deposits. There was a discussion about transferring money from China to Australia and Mr Huang expressed the view that he could arrange the transfer for them through a person whom he knew, assuring them that it was a process used by 80% of his clients.
On 9 August 2014, Ms Sun procured counter cheques for the deposits for the four units. The money for that bank cheque was described as having been transferred by her father to her account and the defendant exhibited messages from Mr Huang which gave the account details into which the money was to be transferred.
On 11 and 12 August 2014, the money sent from her father was deposited into her CBA account to the sum of $517,241. Ms Sun was unaware of anything illegal about the process. She assumed that her father had legitimately earnt the money and was sending it to her in a way that had been recommended by a real estate agent. She did not deposit the cash into her accounts. Ultimately, the purchase of the Mascot property did not proceed because the price increased.
On 28 November 2014, the defendant's father returned to Australia and after discussion they decided to purchase the Zetland Property. Mr Huang was not involved in this purchase.
On 17 December 2014, Ms Sun procured a bank cheque for the deposit of $95,500 and she signed the contract on 19 December 2014. The ANZ loan was procured by a broker, Mr Guanyu Lai of Multicredit Mortgage Pty Ltd. Notwithstanding her attempts, the defendant has been unable to obtain any documents relating to her loan from Mr Lai since 2015. According to the defendant, Mr Lai arranged the loan for her. He told her and her father what information they were required to provide (passport, front page of the contract, address, company name and details) and they provided those documents to him.
On 10 December 2014, the defendant attended ANZ in Burwood and met with Tom Jin, an employee of ANZ. Mr Jin gave her documents to sign which she executed. The documents, according to Ms Sun, had financial information already completed on them which she had assumed had been provided by Mr Lai. She did not check them carefully.
The loan was one available means by which the property could be bought but she testified that her father would have been able to provide her the full purchase price if she needed it. According to her affidavit, the defendant did not provide the employment documents that ANZ used to assess her loan. The defendant provided them neither to the ANZ nor to the broker. She first saw them when the AFP showed them to her during her examination. She assumed that the broker had obtained them from the building company. She also made clear that the handwriting and signature on the non-resident home loan applicant acknowledgment form were not her handwriting, nor her signature.
On 7 January 2015, Ms Sun transferred $430,000 from her CBA account to her ANZ account for the purpose of purchasing the Zetland Property. A sum of $258,000 was then deducted from that account for that purpose on 20 January 2015. The only other matters to which the defendant testified in her affidavits were the attempts made by her or on her behalf to procure Shaun Huang as a witness. She denied having discussions with Mr Huang that he testified took place during the examination (see transcript of the examination).
Lastly, in the affidavit of 16 November 2022, the defendant annexed copies of translated WeChat messages from Guanyu Lai, Mr Lai's business card, and emails between APEX Lawyers and Mr Lai. She also deposed in that last affidavit that she had only met Tom Jin once, on 6 January 2015.
In cross-examination, the defendant agreed that she came to Australia in 2009 to pursue study and was on a student visa. When she was taken to her tax returns, the defendant confirmed that she did not lodge an income tax return between 2009 and 2014 and also confirmed that by June 2013, the defendant had never declared any income in Australia.
Between 2009 and 2014, the defendant was living in Australia and would return to China sometimes for a few months. The defendant said that she did not declare income from 2009 to 2013 because she was not working in Australia. The defendant was referred to answers she gave under cross-examination in August 2017 and specifically to an answer in which she said that she did not lodge income tax returns in those years because she did not have a job and just studied. [10]
The defendant confirmed that she was a full-time student between 2009 and 2013. She confirmed that the first time the defendant lodged a tax return was 2014 and that was because she obtained a job in that year with Ausworld Trading Pty Ltd. Ausworld had no connection with her father. The defendant finished employment with Ausworld in August or September 2014. She was taken to an answer in August 2017 that, when the defendant was studying, the defendant was studying full-time and not working. The defendant maintained that the answer given in August 2017 was truthful at the time that it was given.
The defendant also accepted that in the three or four years leading up to the ANZ loan, the defendant was studying full-time in Australia for the most part. She also accepted that she left Australia for about one month a year during that time.
The defendant did not agree that the income declared in 2014 was the only income she earned at all in that year. The defendant maintained that it was her only income in Australia. She also reiterated that a tax return would be lodged in a financial year, which I take to mean income in Australia, but it may be broader.
The cross-examination went through the discussions with her father as to the purchase of the Zetland Property and the inspection of the property by her father and the defendant. It also confirmed testimony, otherwise given, that her father caused the money to be transferred into her CBA account. It was that money that formed the basis for the moneys used to purchase the Zetland Property.
The defendant reiterated that her broker, Guanyu Lai, arranged a loan for her and that she had submitted an application to ANZ in December 2014 for the loan.
The defendant denied that she knew, at that stage, that she needed to prove income to obtain a loan, notwithstanding that she had been studying business and finance. She also denied knowing, as at December 2014, that the lender would be interested in her ability to repay the loan. Notwithstanding that it was put to her that those answers were untrue, the defendant maintained the truthful nature of the answers given to the subject matter of the last two issues summarised.
As at December 2014, the defendant did not know that she needed to provide payslips to the bank and asserted that she only knew that documents generally needed to be submitted. She only made enquiries about payslips with her father, or her father's staff, because Guanyu Lai requested it. Further, she denied knowing that the payslips were required because the bank was interested in her income.
The defendant was taken to a contrary answer given in August 2017, which she explained as a mistake and the reason for the mistake. The defendant said that she submitted those documents that were required by the bank but did not know, at the time, the purpose of the documents.
In relation to a contrary answer given in August 2017, the defendant maintained that she had not properly understood the question as she was without an interpreter. On further questioning, the defendant accepted that she did have an interpreter at the time but maintained that the interpreter was not good. Yet she was taken to parts of the transcript of August 2017 when the defendant had requested the interpreter to repeat a question when she had not properly understood the question and contrasted that conduct with the question and answer in relation to the payslips.
The defendant, when shown the payslips, maintained the first time she had seen them, was when she had been shown them by the cross-examiner in August 2017. While initially vague about the performance of work during the months covered by the payslips, the defendant ultimately accepted that she was not working in Sydney for her father's company during that period and that she was in Sydney during the period. The defendant reiterated and re-confirmed that she did not do any work in September, October, or November 2014.
The defendant continued to maintain that she had worked for her father's company since 2011 but that she had not received any payslips other than those for September, October or November 2014. Further, she did not know whether the payslips were generated for the purpose of the loan application but did not agree that they gave a false impression that she was working when she was not.
The defendant was taken to an affidavit sworn in March 2016 which attached the payslips to them and which was sworn at a time prior to the examination in which she said she had seen the payslips for the first time. The defendant said that she did not remember seeing them at the time that she attached them to her affidavit.
There were a series of WeChat messages communicating between the defendant, her father and an aunt about the provision of payslips. [11] The messages indicated that the Aunt sent the payslips to the defendant, but the defendant maintained that she did not receive them. Yet, she agreed that she did not follow up with her father about the payslips thereafter.
It was put to her, relying upon the examination transcript, that she had agreed that she only needed three payslips to give to the bank and that the payslips were created to support the home loan. Further, the defendant had agreed that the payslips were to give the impression that she had a full-time job at a time when she was not working at all. The defendant denied that she knew the payslips were created to give a dishonest state of her employment and income to the bank.
Further, again, the defendant denied giving the bank the employment certificate in support of the loan application and maintained that she was first aware of it when examined by the AFP. The defendant was then taken to her affidavit of 14 March 2016 which annexed the employment certificate but still denied providing the document to the bank.
The defendant was then cross-examined about her dealings or recollection of them with Guanyu Lai. There was no evidence that the broker obtained the documents directly from the father's company and the defendant accepted that she had also informally spoken to another broker who told her that documents were needed for the loan.
The defendant denied providing the SPC Bank Statement to ANZ in support of her loan application and after the discussion with her father whether the bank would accept back-pay payslips, she contacted Mr Guanyu Lai and not the bank. The defendant denied that she was dealing directly with the bank for the purpose of the loan application. The SPC Bank Statement had been given to her by Guanyu Lai.
The defendant was then taken to various Statements of Financial Position that she had completed. In relation to the first one, dated 29 December 2014, the defendant said that she signed the document but had not looked at its content. She was then taken to an answer that she gave during the course of examination to the effect that she ensured that the form was correct when signing it.
Nevertheless, the defendant asserted that, in fact, she did not look at the documents carefully and just flipped through them. The defendant maintained that the broker had completed the statements using information that the broker obtained from her father's company. While the document contained other information related to other accounts and assets relevant to the defendant, the defendant denied that she had provided the information to ANZ.
Further, she continued to deny that she was not earning the $10,880 monthly income disclosed to the ANZ in the document. Money was received from her father's company into Australian bank accounts while she was staying in Australia and the money received was not divided or specified as to what parts were income and what parts were other than income. Her understanding was that she needed to declare to the ATO income that was earned in Australia and she was not sure how much exactly there was.
Chinese income was said to be already taxed at the employer level, but the defendant accepted that no evidence going to this had been put forward other than her statement.
The defendant agreed that the income declared to ANZ was greater than the amounts listed in the transfers from her father but maintained that there may be other transfers that were not listed. She denied that, when signing the Statements of Financial Position, she was knowingly providing false information to ANZ. The defendant maintained that, since coming to Australia, her father had provided financial support to her.
Questions were asked about the conversations with Shaun Huang relating to the transfer of the money for the Mascot properties. The defendant only discussed the arrangements to transfer money with Mr Huang once and the discussion took place at his office.
The defendant was unaware of exactly how much would be transferred, the identity of the money remitted or whether a commission would be charged. The defendant had never before been involved in a large money transfer such as this. After the first meeting with Mr Huang, all subsequent communication was through WeChat or by phone. All of the moneys were deposited into a new CBA account that she established as a consequence of being directed to set it up by Mr Huang.
The defendant accepted that she received the money (or more accurately, the account increased by amounts) over two days through a number of deposits that were recorded as cash deposits. She denied being suspicious that something unlawful might be occurring and, although she was referred to messages with Mr Huang about receiving the funds from multiple sources, the defendant denied that she was worried or suspicious. Further, she denied that her finance background or education gave her cause for concern over what was happening.
When referred to evidence that was given on 30 August 2017 in which the defendant maintained that the process seemed "weird", the defendant confirmed that she did not make any further enquiries with Mr Huang, because the full balance was paid to her on 12 August 2014. She continued to maintain that she did not know Yi Feng or that he was depositing money into her account at the request of Cong Shiyu. There were a number of persons, the names of whom were put to her and whom the defendant denied knowing. She continued to deny that the defendant deposited the $70,000 in cash on 11 or 12 August 2014.
The defendant has an offset account associated with the ANZ loan and, in January 2015, the defendant drew a cheque for $430,000 from the CBA account and put it into the ANZ account. That money was used to pay the balance of the purchase price on the Zetland Property. The remainder was for the purpose of servicing the loan and was a gift from her father.
Her father gave the defendant money so she could focus on her studies and have a stable place to live and not worry about finances. She confirmed that, in her view, the balance amount remaining was a gift.
The defendant accepted that she had never worked in Australia as an office manager for her father's company, maintaining, instead, that her only job in Sydney was to study. However, the defendant did not accept that it was false to suggest that she had been employed in that role.
Once more, the defendant denied that she gave the SPC Bank Statement to ANZ to give the impression that she had income that she did not have. She reiterated that her father was sufficiently wealthy to give her the money to buy the unit outright and when asked why then she took out a loan, the defendant maintained that there was a Government incentive at the time so to do. The Government to which she was referring was the Australian Government. Further, there were Chinese Government restrictions on transferring money out of China.
The defendant borrowed $640,000. At the time of giving evidence, the defendant was paying $1,100 or $1,200 per month in interest payments. There was no re-examination.
Because the finalisation of these matters will be delayed considerably, it is necessary, while summarising the evidence, to outline, at this stage, some comments on the evidence that was given. It is unnecessary to say more than the Court accepts the evidence of Ms Jackson and Ms Smythe.
While Ms Jackson's evidence did not deal directly with the circumstances of the loan application by the defendant, it gave evidence of a system which, in the absence of evidence to the contrary, renders more probable than not that the application by the defendant was dealt with in the manner described by Ms Jackson.
I accept the evidence of the AFP officers, but that does not include evidence given on examination and attached to affidavits of the officers.
As to the evidence adduced from Yi Feng, the Court does not accept anything controversial from Mr Feng and unless that to which he testified is uncontentious or independently verified, the evidence is not accepted.
Further, in relation to Mr Guanyu Lai, the Court has serious doubt as to the reliability of this evidence. The evidence given by Mr Lai seems inconsistent with the circumstances before the Court that are otherwise accepted. Plainly, for example, the word "Broker" which Mr Lai said he did not "think" was his handwriting is, on the balance of probability, a word that Mr Lai wrote. It is inconceivable that he did not recognise his own handwriting or identify that it was not his writing.
The evidence that he gave relating to his relationship with Mr Jin of ANZ is, frankly, fanciful and is not accepted.
Necessarily implied in the foregoing comments is that the Court accepts into evidence the AFP examination of Yei Feng as evidence before the Court. Apart from any other factor, Mr Yei Feng was unavailable and his statement in examination would be admissible under the ordinary rules.
The major issues related to the evidence of Mr Liwu Sun and the defendant, Jeiying Sun. While Mr Sun was not fully aware of the formalities of the evidence to be given by him, I considered his evidence both reliable and truthful. That is not only based upon demeanour but demeanour plays a significant part in the assessment. What conclusions are then drawn from that assessment is a different issue.
Further, I consider the defendant largely truthful, although in some areas I consider that some of the testimony was unreliable, even though the defendant attempted to be truthful. There was significant confusion in the defendant; it showed in her demeanour, as well as her answers. To the extent that there was inconsistency, the Court takes the view that the inconsistency arises from confusion and not from an attempt to dissemble.
While the conclusions of fact will be dealt with more fully and the effect of them will become clear when the judgment is finalised, it was necessary to deal with those aspects and one further aspect. That further aspect is the conclusion of facts that seem to be most in dispute.
First, the Court accepts that the defendant was employed by the Building Company from at least 2011 until 2017 and beyond. The Commissioner's questioning was based upon a premise that there is an inconsistency between being employed and not working.
While the Court will deal with that issue in its conclusions, there is no such inconsistency. The premise is wrong. There is no obligation on an employer to require an employee to work, even though there may, in most circumstances or at least in some circumstances, be an obligation to make work available when an employee so desires.
Where an employer and an employee each agree that there is a contract of employment, and the contract is before the Court, in order for the Court to determine that an employment relationship does not exist, it would need to determine that the contract of employment was either a sham or wholly fraudulent. The evidence does not allow either finding.
Secondly, I find that the defendant was entitled to be paid an amount, the full extent of which is not absolutely clear, during the time of her employment and was paid an amount equivalent to the three payslips in September, October and November 2014.
Whether amounts were paid into a Chinese account or were held by the employer to the credit of the employee and paid on return to China is, for the purposes of these proceedings, mostly irrelevant.
Thirdly, as a consequence of the foregoing, I do not consider that the defendant was being knowingly dishonest in the application to ANZ for a loan.

Initial Consideration

There are, as earlier stated, two applications with which the Court is required to deal. First, the Commissioner seeks orders under s 49 of the Act that the Zetland Property and the funds standing to the credit of the defendant in a nominated ANZ bank account be forfeited. The order is opposed by the defendant.
Secondly, the defendant applies, if any or all of the forfeiture orders were to be made by the Court, for a compensation order under s 78(1) of the Act in respect of all or any of the property to be forfeited.
The Court has already recited the terms of s 49 of the Act. It is necessary to extract the terms of s 78 of the Act, which is required to be understood in the context of the Court's jurisdiction, granted under s 77 of the Act. The relevant provisions are in the following terms: "77. Making compensation orders (1) A court that made a forfeiture order, or that is hearing, or is to hear, an application for a forfeiture order, must make an order under subsection (2) (a compensation order) if: (a) a person (the applicant) has applied for a compensation order; and (b) the court is satisfied that the applicant has an interest in property specified in the forfeiture order or in the application for the forfeiture order; and (c) the court is satisfied that a proportion of the value of the applicant's interest was not derived or realised, directly or indirectly, from the commission of any offence; and (d) the court is satisfied that the applicant's interest is not an instrument of any offence; and (e) in the case of a court that is hearing or is to hear an application for a forfeiture order--the court makes the forfeiture order. (2) A compensation order must: (a) specify the proportion found by the court under paragraph (1)(c); and (b) direct the Commonwealth, once the property has vested absolutely in it, to: (i) if the property has not been disposed of--dispose of the property; and (ii) pay the applicant an amount equal to that proportion of the difference between the amount received from disposing of the property and the sum of any payments of the kind referred to in paragraph 70(1)(b) in connection with the forfeiture order. 78. Application for compensation orders Before a forfeiture order has been made (1) A person may apply to a court for a compensation order if an application for a forfeiture order that could specify property in which the person claims an interest has been made to the court, but the forfeiture order is yet to be made. After a forfeiture order has been made (2) A person who claims an interest in property specified in a forfeiture order may, at any time after the forfeiture order is made, apply to the court that made the forfeiture order for a compensation order. (3) However, unless the court gives leave, the person cannot apply under subsection (2) if he or she: (a) was notified of the application for the forfeiture order, but did not make an application under subsection (1) before the forfeiture order was made; or (b) appeared at the hearing of the application for the forfeiture order. (4) The court may give the person leave to apply under subsection (2) if the court is satisfied that: (a) if paragraph (3)(a) applies--the person had a good reason for not making an application under subsection (1) before the forfeiture order was made; or (b) in either case: (i) the person now has evidence relevant to the making of the compensation order that was not available to the person at the time the forfeiture order was made; or (ii) there are other special grounds for granting the leave."
Further to the foregoing, it is necessary to extract definitions from s 338 of the Act, the Dictionary, including: ""account" means any facility or arrangement through which a financial institution accepts deposits or allows withdrawals and includes: (a) a facility or arrangement for: (i) a fixed term deposit; or (ii) a safety deposit box; and (b) a credit card account; and (c) a loan account (other than a credit card account); and (d) an account held in the form of units in: (i) a cash management trust; or (ii) a trust of a kind prescribed by the regulations; and (e) a closed account. To avoid doubt, it is immaterial whether: (f) an account has a nil balance; or (g) any transactions have been allowed in relation to an account. "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."
There is a degree of artificiality and tension associated with treating a bank account as "property". The bank account is a chose in action being a right, by the customer of the Bank, to draw an amount equal to the amount standing to the customer's credit in the account. As already explained, by reference to the description by the High Court in Lordianto, no money changes hands when a transfer occurs. In those circumstances, the "instrument" is the process by which the netting occurs. As a consequence, it would seem that the overseas chose in action from which a transfer is sought to be made is an instrument.
As already described, the money laundering process is relatively simple. Assuming for present purposes that the transferor and the ultimate transferee are both innocent third parties, the transferor transfers the "money" to the money exchanger who, in turn, transfers money to a criminal or an agent or recipient of money from the criminal (hereinafter "the Criminal").
As a consequence of that transfer, the Criminal has money in a bank account, which is traceable and "clean" as distinct from the proceeds of another criminal offence, probably the sale of drugs or other such offences but, also including money upon which tax is payable that has not been declared. The Criminal then provides cash to one or more persons which cash is equivalent to the amount sought to be transferred. The cash is then deposited in the bank account of the innocent transferee.
The effect of the foregoing is that the Criminal has money that is, on its face, not the product of the criminal activity that the Criminal has undertaken; the transferor would be wholly unaware of that which has occurred; and the transferee receives the amount which was intended to be transferred, being the cash equivalent of the transferred amount, the cash having been derived from the earlier criminal activity. In that way, subject to the operations of the AFP or other law enforcement agencies, the proceeds of crime has been "laundered". It is a "money-laundering" offence.
The foregoing simplified account reiterates an earlier description but omits the complications associated with the operations of the financial institutions and the circumstance that the transferor and the transferee are dealing with choses in action, which is the right to withdraw moneys standing to their credit in the respective bank.
Further, the foregoing analysis discloses that the transferor's chose in action is not the proceeds of crime. Nor, it would seem, is the transferor's chose in action itself the instrument of crime. The transferor's chose in action remains unaffected by any criminal activity and is not part of any criminal process.
The instrument of the criminal process is the transferring netting process. The property of the transferor, being the interest in and/or the right to withdraw an amount which is property is neither impacted by the criminal offence nor part of the process by which the criminal offence is committed.
In the foregoing sense, the transferor's "property", being the chose in action, is not wholly or partly derived or realised, directly or indirectly, from the commission of the offence. It is therefore not proceeds of an offence. [12] The property or interest on which the transfer operates is not in the foregoing sense proceeds of crime.
Further, the chose in action of the transferor has not directly been used in the commission of the offence. However, it may be said that the chose in action of the transferor has been used "in connection with" the commission of the offence.
The term "in connection with" is of wide import. The words involve a relationship between one thing and another. They are words that are wider than the term "in" and wider than the term "incidental to". [13]
The term "in connection with" merely requires some connection or relationship between the chose in action of the transferor and the criminal offence and are words that connote the widest possible meaning used to convey some connection or relationship between two subject matters. They are used similarly to the term "with respect to" or "in respect of". [14]
If the term "in connection with" in the context of determining whether property is an instrument of an offence, although "somewhat vague", [15] requires only that there be a relationship between the property and the commission of an offence, then the transferor's chose in action is an instrument of an offence. It is an instrument of an offence because it is property used in connection with the commission of the offence.
It is property because it is "an interest in any real or personal property". It is an interest in the property because it is, at least, "a right, power or privilege in connection with" the chose in action.
But the Commissioner does not seek an order forfeiting the transferor's chose in action or any interest in it. Were that to be the case, it would be the property and/or funds and/or interest in the chose in action, being the bank account of Mr Sun, not the defendant, which would be sought to be the subject of orders and would be required to be the subject of a restraining order. Neither of those circumstances exists.
I turn then to the interest in the chose in action of the transferee. Clearly, there is a restraining order that restrains dealings with the Zetland Property and with funds in the accounts of the defendant. The Court, in these reasons, has earlier referred to the orders issued by the Court already restraining the property in question and those orders are a foundational basis which allows the Court to make forfeiture orders in relation to such property.
The analysis previously provided in relation to the chose in action of the transferor, the father, Mr Sun, applies, the necessary changes being made, equally to the transferee, the defendant. Thus, given the nature of the money laundering offence that has been committed by Mr Feng and others, each of the choses in action of the transferor and the transferee is, under the definitions in the Act, property used in connection with the commission of the offence.
In short, the defendant has a "right, power or privilege in connection with" the chose in action, which means that the defendant has an interest in the chose in action. Because the defendant has an "interest" in the chose in action, the defendant has "property", which includes an interest in real or personal property, whether tangible or intangible.
Further, in the same way as applied to the transferor, the property became an instrument of the money-laundering offence because it was property used "in connection with" the commission of the money-laundering offence.
The foregoing analysis satisfies the Court that the chose in action of the defendant is an instrument of the money-laundering offence, which is a serious offence as defined, and, in relation to the chose in action which is the bank account that has been restrained, the provisions of s 49(1)(c) of the Act have been satisfied in relation to that bank account. It is an instrument of the money-laundering offence.
The question still arises as to whether the transferee's bank account, being the chose in action, is also the proceeds of the money-laundering offence. The terms are not mutually exclusive as is obvious from the terms of s 49(4) of the Act, amongst other provisions.
As the chose in action of the defendant is an instrument of an offence, then the Zetland Property is also an instrument of the offence, because it is property "wholly or partly acquired using an instrument of the offence" (the chose in action). [16]
If, as is alleged by the Commissioner, the loan was obtained by fraud, then the Zetland Property would, for another reason, be the instrument of an offence. In the latter case, the offence would be the fraud by which the loan was obtained.
Further, if the loan were obtained by fraud, then the loan would have been realised or derived from the criminal fraud offence and, therefore, proceeds of the offence. [17] Further again, if the loan were to have been proceeds of crime, then the Zetland Property would be proceeds of crime. [18]
Moreover, if the defendant's interest in the chose in action, which, in this context is confined to that part of the interest in the chose in action that relates to the purported transfer from her father, is the proceeds of crime, as well as an instrument of crime, then the Zetland Property would be proceeds of crime, whether or not the loan was obtained by fraud. The defendant's impugned interest in the chose in action is proceeds of crime if, relevantly, it is wholly or partly derived or realised, directly or indirectly from the money-laundering offence.
Stating the obvious, if the impugned interest in the chose in action is the proceeds of crime, then the Zetland Property has been wholly or partly acquired using proceeds of the offence, assuming for this purpose, but not yet deciding, the impugned interest is the proceeds of the money-laundering offence. Similarly, if the loan were obtained by fraud, and the moneys from the loan were used to acquire the Zetland Property, which they were, then for a different reason the loan moneys would have been the proceeds of an offence and the Zetland Property would be proceeds of an offence.
It is necessary, then, to examine the allegation of fraud in the obtaining of the loan from ANZ and, in that context, to look at the existence of the contract of employment and whether the defendant committed the offence alleged by dishonestly obtaining a financial advantage (the loan) by deception. It matters not, in the context of the determinations necessary under the Act, whether the defendant has been charged with the alleged offence or acquitted of it.
The onus in proving that the loan moneys were the proceeds of an offence rests upon the Commissioner. The burden of proof is civil and the Commissioner is required to prove the offence only on the balance of probabilities. It is unnecessary to determine whether, because of the seriousness of the allegation, the principles associated with Briginshaw apply to that civil onus. [19]
While the Court issues restraining orders on the basis of a reasonable suspicion when, inter alia, there are reasonable grounds to suspect that the property is, relevantly, the instrument or proceeds of an offence, reasonable grounds, in and of themselves, are not sufficient to ground the making of forfeiture orders. The Court is required to be satisfied that the property is proceeds or an instrument, as the case may be, of an offence, and while it is irrelevant that a person has not been convicted of the offence in question, or any offence, the Court is required to be satisfied that the property is wholly or partly derived or realised from, or wholly or partly used in or in connection with, the commission of an offence.
The Court has been provided with a contract of employment between Beijing Xing Peng Construction Engineering Co Ltd and the defendant, Jieying Sun, although, in accordance with Chinese custom, she is described as Sun Jieying. The Court necessarily has been provided with a translation of the contract. The translation occurred on 18 April 2016. The contract itself is dated 10 July 2011. The translation suffers for the circumstance that it has been translated. The foregoing is not a criticism of the interpreter, but the numbering is the most confusing aspect of the translation.
Although the Court as presently constituted does not read Chinese, it seems that the headings have been numbered separately from the numbers of each paragraph (referred to as Article). Apart from the confusion seemingly caused by that process and the necessary flexibility that is required of any translated document, the contract is in not unusual terms.
The contract purports to commence on 10 July 2011, which is the date of its execution. It is described as "open-ended" in the phrase "open-ended work contract" and I take the term "open-ended" to mean indefinite. The contract is a contract of permanent employment.
Notwithstanding the indefinite nature of the contract, each party has, in certain circumstances, the right to terminate the contract. First, as is a given, all contracts may be terminated by agreement. However, if an issue arises, the agreement to terminate will be "binding" or "enforceable" only if there is consideration, i.e. it is itself a contract. It is unnecessary here to deal with accrued benefits or rights.
In the case of employment contracts, contracts are at least in part executory requiring availability and readiness to work as directed and an obligation to pay. Secondly, the employer is, implicitly, given the right to lend out the employee to an overseas subordinate business and to an overseas non-subordinate business if each party agrees and, in the case of a non-subordinate business, the employer and the non-subordinate business must also agree.
Thirdly, the employer may terminate on several bases including:

Poor performance;
Inability to meet the criteria for the position;
The employee's fraud or deception in signing the agreement;
Serious breaches of labour discipline or damage to the employer's interests;
Serious negligence or malpractice causing great damage to the employer's interests;
Breach of the confidentiality provisions (which are elsewhere in the document);
Criminal responsibility;
Incompetence;
Incapacity through illness or non-work-related injury; and
An alteration to the objective circumstances upon which the agreement has been based. [20]

The employer may also terminate if, because it is suffering financial difficulties or on the verge of bankruptcy, it notifies the Union and all the employees and consults with them and reports to the Labour Administration Department. There are qualifications on termination for incompetence, illness or change in circumstances which ameliorate the effect on the employee.
There is also a process if there is an employment dispute, which process includes a dispute mediation through a committee established, seemingly under the Labour Law, and if the mediation is unsuccessful by arbitration in the People's Court in China. Otherwise, Party B (the employer) may terminate on 30 days' notice in writing. [21]
The contract of employment or "Employment Agreement" seems to be a pro-forma agreement and includes a clause allowing the parties to extend the contract and for the culmination of the contract at its expiry date, even though the contract is expressed as being unending and no expiry date is prescribed. Lastly, the contract stipulates that the agreement is made and enforceable under the Labour Law of China.
One other provision should be mentioned. The employee has the capacity under the contract (Article 30) to request backpay and financial compensation if the employee is underpaid or the employer delays the payment of salary; the employer refuses to pay for overtime; the employer pays lower than the "lowest salary standard"; and the employer does not pay compensation pursuant to Article 30 of the Agreement after termination of the Employment Agreement.
For obvious reasons, the translated document is not signed, but the original document in Chinese is completed in the space that, according to the translation, would be for the signature and is said to contain the signature. There is no evidence that the employment agreement has been concocted. There is no evidence that the Employment Agreement is fraudulent or a forgery. There is no evidentiary basis for a suggestion that the defendant, Jieying Sun, was not employed in her father's company as an office manager from 2011. Further, there is no evidence that the contract of employment was ever terminated.
The Employment Agreement is binding on Mr Sun's company and the defendant. Mr Sun, on his own behalf and on behalf of his company, testifies that the defendant is employed, as does the defendant.
Here, the parties' business relationship is comprehensively committed to a written contract and the validity of that agreement is not in dispute between the parties to the contract. In the absence of evidence in or to the effect that there has been a termination of the employment, or the contractual document is a sham, the working relationship between Mr Sun and the defendant is that which is contained in the document. [22]
As earlier stated, the premise upon which the plaintiff examined both Mr Sun and the defendant was that there was an inconsistency between being employed (and, consequently, being paid) and not performing work. Unfortunately, the questions often referred to whether the defendant was "working" for her father. Of necessity, such a term involves a degree of ambiguity.

Submissions of the Commissioner

The Commissioner seeks forfeiture of the Zetland Property and the balance in the ANZ account. It does so because the deposit was the proceeds of crime. As earlier stated, the deposit was the proceeds of crime because of the money laundering offence which resulted in the deposit in the CBA account, which, in turn, was utilised for the deposit. Secondly, the Commissioner seeks the Zetland Property because it was the product of the use of the deposit and the defendant obtained the loan from the ANZ in circumstances where it is reasonable to suspect that the quantum of the loan funds advanced, is the proceeds of crime as a consequence of the suspected breach of s 400.9(1) of the Criminal Code.
Further, the Commissioner submits that it is reasonable to suspect that the ANZ loan funds were "proceeds of crime" as they were wholly derived, directly or indirectly, from the commission of an offence against NSW law, being s 192G of the Crimes Act.
The Commissioner relies upon the terms of the loan application form to which reference has already been made; the employment certificate of 27 November 2014 to which reference has also been made; the three payslips for September, October and November 2014; the bank statement from SPD Bank showing salary credits; and three statements of Financial Position dated 11 December 2014, 29 December 2014 and 30 December 2014, each signed by the defendant.
The Commissioner submits that the documents were "false or misleading in a material particular". The Commissioner submits that as at December 2014, the defendant was not employed by the Building Company, which was represented in the loan application; her salary from the Building Company was not as stated in the application form; and, her average gross monthly income was not, as represented, $7,641.00. The Commissioner also relies upon the representation that the defendant received payslips from the Building Company in September, October and November. While it was suggested to the defendant (and Mr Sun) that the payslips were concocted for the purpose of supporting the loan application, I do not understand that there was any suggestion that the defendant did not receive the payslips (except to the extent they may have been sent to an agent or broker).
As earlier indicated, the Commissioner submits that Ms Sun was not employed by her father's company in 2014, she did not receive a salary or income from the Building Company and the payslips provided were created solely for the purpose of securing the loan.
In support of the proposition that the defendant was not an employee of the Building Company in 2014, the Commissioner submits that the defendant was studying in Australia and was not "working for" the Company. Between 2008 and at least 2015, the defendant was for most of the time in Australia on a student visa. The Commissioner relies upon the defendant's own evidence that she came to Australia to study.
In support of the visit to Australia being to study, the Commissioner relies upon the incoming passenger cards provided to the ABF which identified the defendant's occupation as "Student". The Commissioner also relies upon the fact that the defendant agreed, during the examination under the Act, that during the whole time she had been in Australia, the defendant had been there as a student.
In support of the submission that the defendant did not receive income or salary from the Building Company in 2014, the Commissioner relies upon the proposition that the payments were not "dependant" upon her doing work for the Company. The submission was that they were a "gift from her father to support her study". They rely on the statement in evidence of the defendant's father who, albeit without context, gave evidence that "it would be fair to consider most of my daughter's payments received from the Building Company to be a gift from me via Building Company" and the defendant's comment that the Building Company has "since at least 2008 transferred money to me. I have not had to differentiate which payments are for salary, study allowance or gift".
The Commissioner also relies upon the statement by the defendant that the money she received from China was more like a gift than a salary and that she, the defendant, did not "need to work for the money because of my father's support".
The Commissioner submits that the defendant did not receive any income for work done for the Building Company and such a circumstance is consistent with the tax records. Without being overly critical, it is not absolutely clear whether this differentiates between the receipt of income and the receipt of income for work done. It seems that the Commissioner does not differentiate between the two circumstances, which is consistent with the analysis earlier in these reasons, as to the aligning by the Commissioner of the term "employment" and "working". The Commissioner submits that the non-filing of income tax returns for the financial year 2014 is consistent with her not being employed. It is certainly consistent with her not receiving income in Australia.
Next, the Commissioner relies upon the payslips being concocted and relies in particular on a question and answer as to the receipt of only three payslips. The defendant testified, in the examination under the Act, that she only needed three in order for the broker to get the home loan.
The extract of the transcript from the s 180 examination confirms the elision and confusion between the notion of working full-time and the status of employment.
The Commissioner submits that the false or misleading statements were made with the intention of obtaining a financial advantage. If the statements were false or misleading, then they would have been made with the intention of obtaining the loan, which is a financial advantage. It is unnecessary to rehearse that submission.
Next, the Commissioner attacks the credit of the defendant. These reasons have already summarised the evidence of the ANZ witnesses and the evidence of Mr Lai. I have, earlier in these reasons, dealt with the reliability of Mr Lai's evidence. Nothing in the submission has caused me to alter that assessment.

Submissions of the Defendant

The defendant spent some significant time on the admissibility of the examination under s 180 of the Act of Yi Feng's evidence. I have already dealt with the admissibility of that evidence. I take the view that reasonable steps have been taken to procure Mr Feng. He is overseas and while I do not condone some of the last-minute steps taken by the Commissioner, it does not impact upon the view I take that the material is admissible under s 318A of the Act. The witness is absent outside of the State and, on the evidence before the Court, I have formed the view that it is not reasonably practicable to secure the witness's attendance. Further, as earlier indicated, the witness is unavailable and the document, being the transcript of the questions and answers under s 180 of the Act, contains the representation. Notice had been given of the reliance by the Commissioner on the evidence.
Further again, the Court draws no inference that the evidence of Yi Feng would not otherwise assist the Commissioner.
As to the loan amount, the Court has already made clear that the obtaining of a loan is the obtaining of a financial advantage, even though the Commissioner has shown no likelihood or probability that the loan would be the subject of default and accepting that ANZ, in all likelihood, would profit from the transaction.
The defendant submits that the Commissioner has failed to prove that the defendant made or published the document. It is fair to say that the evidence as to who published the document or completed it, is unclear.
The Court has already dealt with whether the statement is false or misleading in a material particular. Further, those comments relate to whether, in the ordinary use of the term, the statements were made "dishonestly", which is a further factor relied upon by the defendant.
The defendant relies upon the imprecision in the Commissioner's allegations. Notwithstanding that submission, it seems to the Court that there is sufficient particularity to allow the defendant to understand the allegation made against her. The defendant, however, relies upon the proposition that the Commissioner alleges only that there is "a statement in a signed loan application" which is inaccurate and fails to prove that it is "false", ie. not believed to be true by the person who completed it and/or the defendant.
Further, the defendant relies upon the proposition that the loan application that is in evidence does not bear any signature. Since the Commissioner relies upon a statement in a "signed loan application", it should not be permitted, on the submission of the defendant, to depart from the allegation upon which the parties are on notice.
Next, the defendant relies upon the lack of clarity as to the receipt of supporting documents by the defendant and the provision by the defendant of the documents to the ANZ. The Court has drawn the inference that, whoever received the supporting documents, did so because the supporting documents were requested by the defendant. Ultimately, because of the findings the Court has made, nothing turns on that inference.
However, the evidence is vague. There were significant other factors, as submitted by the defendant, in the process. The defendant's father met with Mr Lai in October and received a "shopping list" of documents that Mr Lai required. The defendant's stepmother was also involved in the process and was identified in the ANZ documents as the defendant's agent.
Next, Mr Tom Jin was the subject of significant evidence; was a branch lending officer of ANZ who dealt with the defendant; and was not called by the Commissioner. Over and above the foregoing, Ms Lin, who was paid a commission for the loan and was described as a "third party introducer" for ANZ, was Mr Lai's partner.
The defendant submits that she, on the evidence, played a peripheral role in the application itself. Any one of the other parties could have supplied the documents upon which the Commissioner relies to show that the defendant has committed an offence. The defendant denied providing the documents to the ANZ and there is no evidence to suggest otherwise.
The defendant submits, as a consequence, the Commissioner cannot establish, at any level, that the defendant actually or even circumstantially provided the documents to ANZ. There is much force in this submission.
The defendant also relies upon the relationship between Mr Lai and Ling Lin. That relationship includes the fact that the evidence of Mr Lai was that he was, at the relevant time, running a company known as "Ling Financial". A company search, in evidence, shows that the shareholder and director of that company was Mr Lai's partner, Ling Lin and that Mr Lai later became a director in 2017.
If, as was conceded by Mr Lai, he was running the business of Ling Financial, in circumstances where Ling Lin received the commission for the loan referral, then Mr Lai was involved in the loan transaction. The relationship between Ling Lin and Mr Lai included that the two of them were co-habiting.
The defendant also relies upon the WeChat messages between the defendant and Mr Lai in which the defendant seeks updates on her loan application, all of which, according to the submissions of the defendant, are consistent with Mr Lai being involved in the application and most probably in a position to provide the documents to the Bank. Mr Lai accepted that, from time to time, he contacted a customer's employer to obtain information for loan applications.
Overall, there is no evidence in the Bank files as to how the Bank came into possession of the documents upon which the Commissioner relies.
Assuming for present purposes that the statements given to the Bank were for the benefit of the defendant, in order for the defendant to be held liable, on the submission of the defendant, for the false or misleading statements in them (without, on the submission, accepting that the statements were either false or misleading) the Commissioner was required to prove that the defendant was aware of the contents of the document. The Commissioner has failed to prove that fact and the Commissioner has failed to prove that the defendant concurred in the publication of the false documents and, otherwise, failed to prove that the defendant provided the documents. Such lack of proof does not take into account the seriousness of the allegation, albeit in the context of the civil onus.
I accept that the Commissioner has not proved, on the balance of probability, and taking into account the seriousness of the allegation, that the defendant provided the documents or was aware of the contents of the documents when they were provided. I also take the view that the failure of the Commissioner to provide a signed copy of the loan application, allows the Court to infer that no such signed application exists. The circumstance that the system utilised by the ANZ requires the application to be signed, and it is not, confirms that approach.
While it is not, directly, submitted by the defendant, the Court, as may be clear from the earlier comments on the evidence itself, considers that it is far more likely that the relationship between Mr Lai and Ms Ling allowed for the cutting of corners and that the material was just as probable to have been produced to ANZ by any one of Mr Jin, Mr Lai, or Ms Ling.
The defendant also relies upon a submission that the Commissioner has not satisfactorily identified, or proved, the nature of the falsity in a material particular. In that submission, the defendant relies upon the existence of the employment agreement; the employment certificate; the payslips; and the uncontentious nature of the circumstance that the defendant received the money from the Building Company. The defendant relies upon the proposition that, even if the defendant were in breach of her employment contract, or if the company were acting irregularly by continuing the defendant on their books, it does not go to whether the defendant was entitled to the income.
This argument has been dealt with already in the foregoing reasons and relates, although in this sense it was not put by the defendant, to the different nature of the existence of an employment relationship, a contract of employment and "working for" the company or employer.
The defendant submits that the bank statements are neither false nor misleading. They are bank statements and accurate. Similarly, the Statements of Financial Position, which comprise figures that could only have been calculated and inserted by someone at ANZ or with knowledge of their processes, are neither misleading nor deceptive.
The defendant submits that the Court would not find and ought be slow to find, and should reject any finding that the defendant has acted dishonestly, within the meaning of that term.
Moreover, the defendant submits that the ANZ must have known that the defendant was not working full-time for the Beijing Building Company. Her address was given as a Sydney address; her New South Wales driver's licence was provided as documentation and identification; she attended on the Bank to sign documentation on 6 January 2015; and the Bank addressed correspondence to her in Sydney. In those circumstances, it cannot be suggested that the defendant was representing that she was a full-time office worker in Beijing. The most likely explanation, on the submission of the defendant, is that ANZ asked for documentation in relation to her employment with her father's company and her father facilitated that information being received by the Bank.
The Court accepts the submissions made by the defendant in relation to the failure of the Commissioner to approve an offence under s 192G of the Crimes Act, in addition to the analysis already outlined in these reasons for judgment. The Court does not accept the submission of the defendant that the Commissioner if there were a breach of s 192G of the Crimes Act, has failed to satisfy the provisions of s 400.9(1) of the Criminal Code.
The defendant's submissions in this latter regard depend upon the subjective knowledge of the defendant as to that which is illegal and s 400.9(1) of the Criminal Code does not depend upon the subjective knowledge of the person, there described, of the law. Rather, it depends upon a knowledge of the facts giving rise to a reasonable suspicion.
The defendant also submits that the Court should draw an adverse inference based upon the failure of the Commissioner to call Mr Jin. [32]
There is no suggestion that Mr Jin was unavailable. Mr Jin was the employee at ANZ who handled the loan application for the defendant.
Given that the Commissioner bore the onus of proof on the commission of the offence by the defendant in applying for the loan and in that regard, the onus of proof that it was the defendant who submitted the documents and/or completed them; had knowledge of their contents; and the other matters to which reference has already been made, an inference is available that the evidence of Mr Jin does not assist the Commissioner and, more readily, allows the Court to draw the affirmative inference arising from the evidence of the defendant that she did not submit the document and/or was unaware of their contents.
The affidavit of Mr Matthews testifies that the AFP could not locate Mr Jin. However, the affidavit does not testify as to what, if any, steps were taken and the affidavit of Shing Hei Lam testifies as to where, after 2021 when Mr Jin left ANZ, he worked. This was obtained in a Google search.
Lastly, the defendant relies upon the provisions of s 330(4)(a) of the Act and the comments of the High Court in Lordianto, supra, to submit that the defendant is a third party for which sufficient consideration has been paid.

Conclusion

Many of the factual determinations have already been outlined. As has been expressed earlier, I do not find that the Commissioner has proved, even on the balance of probabilities, that the defendant has breached s 192G of the Crimes Act. In those circumstances, the Commissioner has failed to prove that the defendant has contravened s 400.9 of the Criminal Code.
The Commissioner has failed the burden placed upon him to establish that the loan was the proceeds of crime or an instrument of crime and the Commissioner is not entitled to a forfeiture order in relation to the property, at least over and above the deposit, with which the Court will now deal.
The evidence before the Court does not establish that either Mr Sun or the defendant had any knowledge of the criminal activity of the money changers and/or Yei Feng. The evidence does establish that each of them is wholly innocent and caught up in a money-laundering operation conducted for the benefit of others.
The money-laundering operation utilised the transfer by Mr Sun or his company to the defendant to "launder" money, which the Court assumes was otherwise tainted. There is no suggestion that the money held by the Building Company or Mr Sun was, at that time, tainted.
As discussed earlier, in terms of the analysis of the High Court in Lordianto, supra, each of Mr Sun and the defendant are "third parties" to the transaction by which the property first became the proceeds of crime. In that sense, the defendant is "a bona fide receiver of property without notice".
Yet, the issue is not quite as the defendant puts it. The Court is still required to determine whether the property has been "acquired" "for sufficient consideration".
As can be seen from the earlier comments, I accept that the defendant would not, even at the point in time when the defendant received the transferred monies into her account, have aroused a reasonable suspicion that the property was proceeds of an offence or an instrument of an offence. Thus, the Court is required to determine whether the property has ceased to be the proceeds of an offence or an instrument of the offence committed by the money exchanger, Yei Feng, and the others associated with the offence.
The term "acquired" is not a narrow term and not confined to a purchase. In the context of s 330(4)(a) of the Act, it means to obtain. If it were confined to a purchase, the need for "consideration" and its use in the provision would be otiose. There would still need to be an issue relating to sufficiency but that would be achieved by utilising the well-known term "for value". There is no reason, in the context of the Act and this provision, to read down the term "acquired" to mean anything other than "obtained".
The next issue is whether the property was acquired "for sufficient consideration". There is no suggestion or contest that suggests that the salary paid for the full-time position was exorbitant. There was a degree of leniency and generosity associated with the capacity of the defendant to take study leave and enjoy it, no doubt, as a result of the fact that there is a relationship between the defendant and the principal of the company which is employing her. But if the consideration were wages or salary, there is no suggestion that it is other than a salary that "reflects the value of the services to be provided under the contract having regard solely to commercial considerations". [33]
In a contract of employment, the consideration is, on the one hand, the remuneration, being the amount paid or to be paid (and other benefits) and, on the other hand, the requirement to be ready, willing and able to work in accordance with the contract. The contract of employment, even in the current circumstances, would have required, if the employer so directed, the defendant to return to China and fulfil duties, whether, in an emergency situation, for a short time or indefinitely. The only recourse the defendant would have to such a direction would be to terminate the contract, in accordance with the contract. It is unnecessary to discuss how that could occur.
At the time of the transfer of money, if it were salary or back pay, the employee was obliged to be ready, willing and able to perform work as directed. If the money transferred were salary, payable under the contract of employment, then the defendant "acquired" it "for sufficient consideration".
If, as is one of the possibilities, the transfer were a "gift", then no consideration was given for the transfer. Whether the transfer was a gift or salary, the question arises as to when the transfer was effective.
Leaving aside for present purposes the complication associated with the property being a chose in action, for personal property to be transferred and the gift effective, there must be a transfer of the property. In particular, a gift is complete when it is delivered to the donee. This is not the first time the courts have been required to deal with property that may not be "delivered" in the physical sense. Going to first principles, the High Court has said: "The whole law on the subject is contained in the judgment of Turner LJ in Milroy v Lord: 'I take the view of this Court to be well settled that, in order to render a voluntary settlement valid and effectual, the settlor must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him. He may of course do this by actually transferring the property to the persons for whom he intends to provide, and the provision will then be effectual, and it will be equally effectual if he transfers the property to a trustee for the purpose of the settlement, or declares that he himself holds it in trust for those purposes; and if the property be personal, the trust may, as I apprehend, be declared either in writing or by parol; but, in order to render the settlement binding, one or either of these modes must, as I understand the law of this Court, be resorted to, for there is no equity in this Court to perfect an imperfect gift. The cases I think go further to this extent, that if the settlement is intended to be effectuated by one of the modes to which I have referred, the Court will not give effect to it by applying another of those modes. If it is intended to take effect by transfer, the Court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be effectual by being converted into a perfect trust.' … I think that the words 'necessary to be done' … mean necessary to be done by the donor. Thus, in the case of shares in a company which are only transferable by an instrument of transfer lodged with a company, I think that the donor has done all that is necessary on his part as soon as he has executed the transfer. So, in the case of a gift of land held under the Acts regulating the transfer of land, I think that a gift would be complete on execution of the instrument of transfer and delivery of it to the donee. If, however, anything remains to be done by the donor, in the absence of which the donee cannot establish his title to the property as against a third person, the gift is imperfect, and in the absence of consideration the Court will not aid the donor as against the donor. But, if all that remains to be done can be done by the donee himself, so that he does not need the assistance of the Court, the gift is, I think, complete." [34]
If the transfer by the Building Company were a gift, then the donor, the Building Company, has done all within its power to effect that gift at the time that the transfer is lodged with the money exchanger. No further act of the Building Company is required or possible.
In those circumstances, the defendant is the "owner" of the gifted sum at the point that the Building Company completes and lodges the transfer request. It is, in my view, no different if the amount provided is salary. Whether the amount transferred, and ultimately received by the defendant and utilised for the deposit or credited in the offset account, was salary or a gift, it was the property of the defendant when the Building Company executed and lodged the transfer request.
In those circumstances, the property received by the money exchanger was the property of the defendant and the defendant has provided "sufficient consideration" for the property received in her accounts in Sydney. The amounts standing to the credit of the defendant in Sydney (being the amount recoverable under the chose in action) has been acquired by the provision by the defendant of the equivalent amount to the money exchanger. Or provided by the money exchanger fraudulently and illegally dealing with the property of the defendant by transferring it to an account other than an account of the defendant. In either case, "sufficient consideration" has been provided by the defendant.
The amounts standing to the credit of the defendant in each of the offset accounts and which was paid by way of deposit for the Zetland Property, ceased to be the proceeds or instrument of crime pursuant to the terms of s 330(4)(a) of the Act.
To the extent that it is necessary for the Court to determine whether the monies transferred were a gift or salary, I determine that the monies were, more probably than not, salary payable in part and from time to time in accordance with the needs of the defendant and otherwise accruing in the accounts of the employer and payable on application by the defendant. But, in my view, whether it is salary or a gift does not alter the conclusion that the monies in the accounts (and the money used for the deposit for the Zetland Property) ceased to be the proceeds of or an instrument of crime or an offence.
As already indicated for the reasons outlined by the Court, the Commissioner has not proved that the obtaining of the loan from ANZ was an offence under s 192G of the Crimes Act and the loan was not the proceeds or an instrument of crime. The reasons already given, include the additional reasons provided by the defendant and summarised above.
The Court is not required in relation either to the accounts or the Zetland Property to make a forfeiture order under s 49 of the Act because the Court is not satisfied that in any of the cases the property is either the proceeds of or an instrument of a serious indictable or foreign indictable offence. Pursuant to the terms of s 45(3), the effect of the refusal of the Commissioner's application for a forfeiture order is that the restraining order initially issued by the Court ceases to be in force after the time for an appeal has expired or, if there were an appeal, it has lapsed or been dismissed and finalised.
For the foregoing reasons, the Court makes the following Orders: 1. The Court refuses the application by the Commissioner of the Australian Federal Police for a forfeiture order pursuant to s 49 of the Proceeds of Crime Act 2002 (Cth); 2. Any parties seeking costs under s 323 of the Proceeds of Crime Act 2002 (Cth) shall, within 14 days of the date of the delivery of this judgment, file submissions of no more than five pages, together with any documents upon which reliance is placed for that purpose and any party opposing such order shall, within a further 14 days, file submissions of no more than five pages together with any documents upon which the opponent relies. The matter will be listed for short argument before the Court at a convenient time to the parties.

Endnotes

Crimes Act 1900 (NSW), s 4B.
Lordianto v Commissioner of the Australian Federal Police (2019) 266 CLR 273; [2019] HCA 39.
Lordianto, supra, at [86], [103] (Kiefel CJ, Bell, Keane and Gordon JJ).
Lordianto, supra, at [99] (Kiefel CJ, Bell, Keane and Gordon JJ).
Lordianto, supra, at [100] (Kiefel CJ, Bell, Keane and Gordon JJ) (footnotes omitted).
Lordianto, supra, at [75]-[81] (Kiefel CJ, Bell, Keane and Gordon JJ) (footnotes omitted).
Proceeds of Crime Act 2002 (Cth), s 49(4).
See PCB, p. 1083.
PCB, p.1718.
See transcript p. 27
PCB Volume 3, p 1726.
Proceeds of Crime Act 2002 (Cth), s 329(1).
R v Watson; Ex parte Australian Workers' Union (1972) 128 CLR 77 at 95 (Gibbs J); [1972] HCA 72; R v Neil; Ex parte Cinema International Corporation Pty Ltd (1976) 134 CLR 27 at 31 (Gibbs J); [1976] HCA 11.
See State Government Insurance Office (Qld) v Crittenden (1966) 117 CLR 412 at 416 (Taylor J); [1966] HCA 56; Technical Products Pty Ltd v State Government Insurance Office (Qld) (1989) 167 CLR 45 at 47 (Brennan, Deane and Gaudron JJ), 51 (Dawson J); [1989] HCA 24; Herald and Weekly Times Ltd v Commonwealth (1966) 115 CLR 418 at 436 (Kitto J); [1966] HCA 78; Paull v Munday (1975) 11 SASR 346 at 348-349 (Bray CJ), 352, 353-355 (Wells J).
R v Watson, supra, at 95 (Gibbs J).
Proceeds of Crime Act 2002 (Cth), s 330(2)(b).
Ibid, ss 329(1)(a), (b).
Ibid, s 330(1)(b).
Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J); [1938] HCA 34.
Contract of Employment, Exhibit PCB3, p 1507.
Article 24, PCB3, p 1508.
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165; [2022] HCA 1.
Collier v Sunday Referee Publishing Co Ltd [1940] 2 KB 647 at 650 (Asquith J); [1940] 4 All ER 234. As for one exception, see Blackadder v Ramsey Butchering (2005) 221 CLR 539; [2005] HCA 22 at [80] (Callinan and Heydon JJ).
Proceeds of Crime Act 2002 (Cth), s 329(1).
(1987) 61 ALJR 393; [1987] HCA 27.
Re Queensland Electricity Commission, supra, at 399 (Deane J) (while Deane J was in dissent as to the result, such dissent does not detract from the principles here expressed).
Proceeds of Crime Act 2002 (Cth), s 338 definition of "property".
Ibid, ss 17(2)(d), 18(2)(d).
Ibid, s 338 definition of "property".
Ibid, s 338 definition of "interest".
Ibid, s 330(3).
Ta Lee Investment Pty Ltd v Antonios [2019] NSWCA 24 at [136]-[137] (Bathurst CJ, Beazley P and Macfarlan JA).
Proceeds of Crime Act, s 338 definition of "sufficient consideration".
Anning v Anning (1907) 4 CLR 1049 at 1056-1057 (Griffith CJ); [1907] HCA 13 (footnotes omitted). 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: 25 July 2024

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