Commissioner of the Australian Federal Police v Wu

Consideration

The foregoing construction of the statute is adopted and applied, without further comment.
Essentially, the applicant submits that the evidence before the Court is to the effect that the monies received and utilised for the purpose of the purchase of the real estate was a gift. That proposition depends, fundamentally, on the acceptance of the evidence of Ms Li. Further, the submission limits the proceeds of crime or the instrument of serious crime to the monies received from China.
The Court has serious doubts as to the proposition that the monies received from China were by way of gift. Part of the doubt stems from the fact that each of the actors is a director of at least one of the aforementioned companies involved in the handling of the amounts of money.
Further, the applicant submits that, if it were not a gift, it was a loan and repayable. I have even more doubt as to the veracity of a claim that the amounts received were by way of loan.
If it were a loan, there is no documentation to support such a proposition or to govern the terms and conditions upon which such repayment would be effected. Further again, if the amounts received were a loan and repayable, no such repayment has been made, since the monies were advanced.
Ultimately, as the plaintiff, the Commissioner, puts its case, it does not matter whether the cash amounts received were by way of loan or by gift or the direct proceeds of crime that involved or related to Ms Li. The Commissioner refers to the manner in which the loan from the financial institution or institutions was obtained.
The Commissioner refers to the provisions in ss 192E(1) and 192G of the Crimes Act, which provide, in the case of s 192E(1), that it is an offence to obtain dishonestly a financial advantage by deception; and, in the case of s 192G, that it is an offence to provide false or misleading information to obtain a financial advantage.
The applicant was questioned during an examination, undertaken pursuant to the interlocutory orders made by the Court and under s 180 of the Act, which is summarised in the second Lee Affidavit at [14]-[55]. Apart from the examination demonstrating that the applicant is unreliable (to say the least), it discloses that the applicant made false declarations to obtain significant financial benefits, being the loans.
The applicant admitted that she made various false declarations in the home loan application she signed and provided to the ANZ Bank in respect of the Hurstville Grove Property in December 2014. Those false declarations included that she earned $87,000 per annum at a company called T & F Group and the address at which she was living when she made the application. The applicant has never worked for T & F Group.
It matters not that the applicant suggests she signed the application because the broker told her, or asked her, to sign it. Ultimately, she made the declaration, which is a false declaration and is misleading information to obtain financial advantage.
Further, I do not accept that the applicant was unaware that the information was false and I accept, on the material before the Court, that the deception that obtained a financial advantage was done "dishonestly".
Moreover, the applicant's home loan application for the Hurstville Grove Property was supported by a payroll advice, addressed to the applicant, purporting to be from T & F Group. The applicant maintained she has never worked for T & F Group. Nevertheless, the applicant admitted that she provided the name of that company to the broker but suggested that it was the broker who forged the document.
Over and above the false information relating to the ANZ loans, the applicant also admitted, during the course of the examination, to the making of numerous false declarations in an application she signed and provided to the NAB to refinance the loan for the Hurstville Grove Property in November 2015.
In that NAB documentation, the applicant falsely declared that: she was working full-time as a marketing manager in China; she had worked full-time as a manager at a company called Bob Power Tech Pty Ltd; her home address was in China; she owned a Toyota Camry worth $24,000; and her gross monthly income was HK$51,369.83. None of the foregoing declarations were true.
Despite her signature on the document, the applicant says she never saw the document. The company at which she declared she was working was a company owned by her father.
Further again, there were similar false declarations made in relation to a Westpac loan offer signed by her and dated 14 June 2013. That loan related to the Pemulwuy property and contained similarly false declarations for the purpose of obtaining that loan.
Part of the evidence on the examination of the applicant related to a Residential Tenancy Agreement, which is in evidence adduced by the plaintiff, in which the applicant admitted that it was she, who provided the false information to the broker to include in the Residential Tenancy Agreement.
Generally, the applicant's evidence during the course of the examination was unsatisfactory. Overall, the applicant ought not to be believed.
Further, only three months after affirming the third Wu Affidavit in which she purportedly particularised her assets over $5,000 and confirmed that she had no other property, on 12 December 2016, she, on oath, revealed that she had further interest in property being: a 10% share in real property located at 48 Burwood Road, Burwood worth approximately $500,000 and purchased in 2015; an interest in property at 37 Delhi Road, North Ryde worth approximately $590,000; and funds standing to the credit of a China Agricultural Bank account of about $15,000.
The applicant then asserted that she had, in fact, told her solicitor about the North Ryde property, but nevertheless signed the Affidavit and swore to its truth, without mentioning that (and other) property and she does not know why she did that.
Over and above all of the foregoing, the evidence of the applicant on examination was, to say the least, obfuscatory. According to her tax returns, it would be impossible to have purchased the properties that stand to her credit. The proposition that an unidentified older female to whom she shows respect has provided $85,000 via Ms Li and Mr Zhang is fanciful.
If it were necessary so to do, I would draw the inference, on the balance of probabilities, that the applicant was an agent of, or a party to, the purchase of real property by Ms Li and Mr Zhang, using the proceeds of crime derived from their serious criminal activity. It is unnecessary to come to that finding.
It is sufficient for present purposes to conclude that it is beyond doubt, or any reasonable doubt, that the applicant made false declarations and obtained a loan or loans fraudulently. As a consequence, the loans and amounts she received from the ANZ and NAB were the proceeds of her unlawful activity; the proceeds of crime and an instrument of serious crime.
In coming to those findings, it is unnecessary to utilise any Jones v Dunkel, supra, inference. The inferences otherwise available, and the direct evidence, are irrefragable.
As earlier stated, it is for the applicant to satisfy the Court. The applicant bears the onus of establishing that there are "no grounds" on which the restraining order could have been or can be made. The Court has not been satisfied, even on the lower standard of proof.
Further, the Court does not consider it is in the public interest to revoke the restraining orders. In my view, the restraining orders were properly made and are appropriate.
The revocation of the restraining order is not a means by which one can circumvent the limitations on the exclusion of property from a restraining order: MA v Commissioner of the Australian Federal Police [2016] VSC 553 at [12]; Lee v Director of Public Prosecutions (NSW) (2009) 75 NSWLR 581
The Court is satisfied that the property held by the applicant is, at least in part, the proceeds of criminal activity and no exclusion or revocation order should be made. For the foregoing reasons, the Court makes the following orders: 1. Motion dismissed; 2. The applicant on the motion shall pay the plaintiff's costs of and incidental to the proceedings.

At a glance

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Judgment (7 paragraphs)

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Legislation Cited (5)

Cases Cited (5)