A Brisbane judge has dismissed an application by the Australia Federal Police (AFP) Commissioner for the registration of a Chinese court order confiscating assets of Chinese nationals, on the grounds they were proceeds of serious crimes.
District Court Judge Ken Barlow KC on Friday dismissed the AFP Commissioner’s application filed on 25 January 2021 in the case involving Chinese citizens Xufeng Peng and Suyu Jai.
The couple had been respondents of a court order in the People’s Republic of China for the confiscation as proceeds of crime of property they hold, including real properties in Queensland.
A summary of the 63-page Queensland District Court judgment published last week said the Chinese court made its orders against Xufeng and Suyu in January 2020 and then asked the Commonwealth Attorney-General to assist in its enforcement, as Ms Jia owns three properties in Queensland.
“That request was made under a treaty made in 2006 between the Australian and Chinese governments for mutual assistance in recovering the proceeds of serious crimes,” the summary said.
“The Chinese Court had earlier, in 2018, ordered that Mr Peng’s and Ms Jia’s assets in several countries, including Australia, be frozen. That order was registered in the District Court in October 2018.”
Until 2017, Mr Peng was Chairman of a large Chinese Government-controlled corporation, the Changsha Metro Group. Mr Peng and his wife, Ms Jia, left China on holidays in March 2017, leaving their then two-year old son in China with Ms Jia’s parents.
“While they were away, they were charged with bribery and money laundering,” the summary said. “The Chinese authorities alleged that, over about 6 years, Mr Peng had received bribes totalling the equivalent of about (AUS) $51,000,000 and they had used the proceeds to purchase valuable properties and other assets in China, Australia and other countries.
“Mr Peng and Ms Jia have not returned to China. They eventually settled in the United States of America, where it is understood they may be seeking political asylum.
“They contend that the charges and the confiscation orders are part of a political vendetta against them by the Chinese authorities because Mr Peng refused to give false evidence against other people whom the government believed to be opposed to the President, Xi Jinping.”
Under the treaty and the relevant legislation, the AFP Commissioner applied to register the Chinese court’s confiscation order in Queensland. Registration would allow its enforcement in Queensland and would lead to confiscation of the properties and their transfer to the Chinese Government.
In the application before the District Court, Mr Peng and Ms Jia argued that the confiscation order should not be registered in Queensland because it was the result of a political vendetta, the Chinese court was not independent of the Chinese Government and the Communist Party, and they had not been given any notice of the application to that court.
Judge Barlow KC found that Mr Peng and Ms Jia had not proved that there was a political vendetta against them, nor that the Chinese court was not independent.
However, Judge Barlow found that they were not told about the application for confiscation that was made in the Chinese court, so they had no opportunity to be represented, to defend the allegations against them and to oppose the confiscation orders.
“For that reason, his Honour found that it would be contrary to the interests of justice to register the order in Queensland,” the summary said.
Read the decision.