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First criminal prosecution of foreign interference

Year
2024
Location
Victoria

Partner Agencies: ASIO, AFP

Di Sanh Duong was the first person in Australia to be convicted of a foreign interference offence since the National Security Legislation Amendment (Espionage and Foreign Interference) Bill amended the Criminal Code in 2018. 

By way of summary, the case against Mr Duong was put on the basis that while engaging in what was, on its face, community work, Mr Duong sought to involve the then Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Honourable Alan Tudge (‘the Minister’) in the donation of money related to the Covid-19 pandemic in order to influence the Minister to adopt and advance positions favourable to the Chinese Communist Party (CCP) and its interests.

The Counter Foreign Interference Taskforce, led by the Australian Federal Police (AFP) and working with the Australian Security and Intelligence Organisation (ASIO), conducted the investigation known as Operation Fruithof. 

The procedural history

In October 2020, the AFP executed warrants at Mr Duong’s home and offices. In November 2020, Mr Duong was charged with preparing for, or planning, a foreign interference offence contrary to s 92.4(1) of the Criminal Code 1995 (Cth).

The 5 week trial commenced in late 2023 in the County Court of Victoria. During the trial, Mr Duong’s counsel argued that the donation reflected Mr Duong’s genuine concern for rising anti-Chinese sentiment in Australia during the COVID-19 pandemic and was intended to promote the goodwill of the Chinese-Australian community. The Crown alleged that he was using the donation as a means to prepare for or plan to influence the Minister on behalf of the CCP. 

The Court heard that Mr Duong had originally connected with the Minister in 2018 when they discussed immigration policy, and that Mr Duong perceived him as a potential future Prime Minister. The Crown alleged that Mr Duong had used his positions in community groups, such as the Oceania Federation of Chinese Organisations for Vietnam, Cambodia and Laos, membership of the Liberal Party and history of charity work to gain access to the Minister. He did so concealing his connections to a number of organs of the CCP, including the United Front Work Department, Ministry of State Security and the Chinese Consulate in Australia. 

A jury in the County Court of Victoria commenced deliberation on 11 December 2023 and returned a guilty verdict on 19 December 2023.

Sentencing

On 29 February Mr Duong was sentenced to 2 years and 9 months’ imprisonment, to be released on a Recognisance Release Order after serving 12 months. 

His Honour Justice Maidment of the County Court said Mr Duong “deliberately selected Minister Tudge as a target of the future foreign influence offence precisely because of Minister Tudge’s political power as a Minister in the Australian Federal Government, and because you believed that he could potentially be persuaded to influence Australian Government policy in a manner favourable to the Chinese Communist Party.”

Further material

The Guardian Sunny Duong, accused of having links to Beijing, vows to fight foreign interference charge

ABC Chinese-Australian businessman Sunny Duong found guilty of seeking to influence former minister Alan Tudge

ABC Chinese-Australian businessman jailed over attempt to influence federal MP

The New York Times Was He Secretly Working for China? This Is What He Told Us.

County Court of Victoria Sentencing remarks