Application by the New South Wales Crime Commission

[2020] NSWSC 1524

Supreme Court

New South Wales

Medium Neutral Citation:

Application by the New South Wales Crime Commission [2020] NSWSC 1524

Hearing dates:

10 June 2020

Date of orders:

10 June 2020

Decision date:

10 June 2020

Jurisdiction:

Common Law

Before:

Walton J

Decision:

In all the circumstances, I make the orders proposed as filed in court today.

Catchwords:

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – production order – ex parte – orders made

Legislation Cited:

Crime Commission Act 2012 (NSW)

Crimes Act 1900 (NSW)

Criminal Assets Recovery Act 1990 (NSW)

Category:

Principal judgment

Parties:

New South Wales Crime Commission (Plaintiff)

Representation:

Solicitors:
New South Wales Crime Commission (Plaintiff)

File Number(s):

2020/172099

extempore Judgment

1. HIS HONOUR: The summons before the Court seeks that the Court deals with an application under the Criminal Assets Recovery Act 1990 (NSW) (“the Act”) and that the proceedings come before the Court instanter.

2. The application is an application pursuant to s 33(2) of that Act whereby the NSW Crime Commission (“the Commission”) applies for a production order in respect of all documents described in Sch 4 to the summons relevant to:

1. identifying, locating or quantifying any interest in property (within the meaning of "interest in property" as defined in s 7 of the Act) of Ms Wei Song; and

2. identifying or locating any document necessary for the transfer of an interest in property (within the meaning of "interest in property" as defined in s 7 of the Act) of Ms Song.

3. Having regard to the contents of the affidavit of Ms Min Huang affirmed 9 June 2020, I consider that this is an appropriate matter to be heard and determined ex parte.

4. The affidavit of Ms Huang establishes that she is an authorised officer for the purposes of the Act and that she holds suspicions that Ms Song has engaged in a serious crime related activity, namely, dishonestly obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) to wit – dishonestly obtaining a loan from Westpac on the basis of having provided dishonest information, including information regarding her employment and income in support of a loan application, being an offence punishable by imprisonment for 5 years, involving fraud and thus falling within the definition of "serious criminal offence" pursuant to s 6(2)(d) of the Act.

5. Ms Huang gives grounds for his suspicions, which appear at para 4 of her affidavit:

(1) I have had regard to an affidavit sworn by Jonathan Lee Spark on 12 May 2020 and filed 15 May 2020 in proceedings 2020/142238 in support of an application by the Commission pursuant to section 1 OA of the Act for a restraining order in respect of all interests in property (within the meaning of the "interests in property" as defined in section 7 of the Act) of Song ("the Spark affidavit"). A copy of the Spark affidavit is under Tab 1.

(2) On 15 May 2020 the Honourable Justice Rothman made an order pursuant to section 1 OA of the Act that no person is to dispose or, or attempt to dispose of, or otherwise deal with or attempt to otherwise deal with any interest in property (within the meaning of the interest in property" as defined in section 7 of the Act) A copy of the restraining order is under Tab 2.

(3) The restraining order is still in force.

6. On 15 May 2020, the Commission applied to the Court, by way of summons filed in proceedings 2020/142238 ("the confiscation proceedings”), seeking an unexplained wealth order pursuant to s 28A of the Act in respect of Ms Song.

7. In my view, having regard to the contents of the affidavit of Ms Huang, there are reasonable grounds for Mr Huang’s suspicion that Ms Song has engaged in serious crime related activity.

8. Ms Huang further deposed that he held a suspicion that Mr Jian Hong Lin has possession or control of a property tracking document, or property tracking documents (within the meaning of "property tracking document" as defined in s 4(1) of the Act) in respect of Ms Song.

9. The grounds for that suspicion appear at para 7 and include, inter alia, reference to following:

1. an earlier affidavit of Mr Spark sworn on 12 May 2020;

2. inspection of Commission records and ascertained that a Notice to Attend and Produce dated 17 July 2019 was issued pursuant to s 29 of the Crime Commission Act 2012 (NSW) upon Lin ("the Notice") seeking production of documents related to the loan applications in relation to the Alexandria property and the Epping property; and

3. an email from Mr Paul Blake, a solicitor retained by Mr Lin, stating that his client intended on objecting to the production of documents required by the Notice.

10. Although the Notice was subsequently withdrawn, Mr Huang continues to suspect that Mr Lin holds property tracking documents in relation to Ms Song and those documents are, or may be, relevant to the Commission's proceedings under the Act against her.

11. Having regard to the statement of facts and circumstances dated 9 June 2020 and the affidavit in support of Ms Huang (I note the affidavit in support relies upon a bundle of materials, including the affidavit of Mr Jonathan Lee Spark sworn on 12 May 2020), I grant the application pursuant to s 33 of the Act.

12. In all the circumstances, I make the orders proposed as filed in court today.

13. I have executed the order under seal and I provide a copy of the sealed order to the Commission.

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Decision last updated: 30 October 2020