DPP v Tat Sang Loo - [2002] VSC 231

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 1436 of 1999

IN THE MATTER of the Confiscation Act 1997

And

IN THE MATTER of the defendant TAT SANG LOO

DIRECTOR OF PUBLIC PROSECUTIONS (VICTORIA)	Applicant
v
TAT SANG LOO and BOW YE INVESTMENTS PTY LTD (In Liquidation) A.C.N 077 188 160	Respondents

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 February, 12 March 2002
DATE OF JUDGMENT:	18 June 2002
CASE MAY BE CITED AS:	D.P.P v Tat Sang Loo and Anor
MEDIUM NEUTRAL CITATION:	[2002] VSC 231

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Confiscation of property – pecuniary penalty order – whether defendant in “effective control” of property on date when restraining order made – property in ownership of company as trustee – company in liquidation – commencement of liquidation before pecuniary penalty order made – whether provisions of Confiscation Act 1997 capable of concurrent operation with provisions of Chapter 5 of Corporations Act 2001 (Cth) – direct inconsistency – operation of Part 1.1A, Corporations Act.
Confiscation Act 1997 ss. 70, 72; Corporations Act 2001 (Cth) ss. 5E, 5G.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D. Parsons, SC later, Ms P. Tate	Solicitor for Public Prosecutions
For Tat Sang Loo	Dr J. Bleechmore	Law Offices of Ellinghaus & Lindner
For Bow Ye Investments Pty Ltd	Mr G. T. Bigmore, QC	Brand Partners

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HIS HONOUR:

The Application

Before me is an application filed 6 March 2001 brought against Tat Sang Loo and Bow Ye Investments Pty Ltd (in liquidation) ("Bow Ye") for a declaration under s. 70 of Confiscation Act 1997 (“the Act”) that the whole or a specified part of property at 26 Calembeena Avenue, Oakleigh[1] and at 181 Exhibition Street, Melbourne[2] is available to satisfy a pecuniary penalty order.
[1]Certificate of Title Vol. 4789 Folio 683.
[2]Certificate of Title Vol 10292 Folio 032, Vol 10292, Folio 164.

The Sequence of Events

The property is the subject of a restraining order made by Judge F.B. Lewis in the County Court on 19 January 1998.

The restraining order stated the purpose for which the restraint was imposed[3]. In respect of the particular property it was for the purpose of satisfying any pecuniary penalty order that might be made under Part 8 of the Act.[4]
[3]See s. 15(3)(a) of the Act.
[4]See s. 15(1)(d).

The judge could not have made the order unless he considered that there were reasonable grounds for making it.[5] That meant in the particular case that he must have considered that there were reasonable grounds to conclude that the property was property in which the defendant had an interest.
[5]See s. 18(c).

The term “Property in which the defendant has an interest” is inclusively defined by s. 10. The concept of “effective control” to which reference is there made takes the reader to s. 9.

The first respondent was charged in September 1998 with offences against the Fisheries Act 1995. The offences related to fishing for and dealings with abalone.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] VSC 231
Decision Date: 18 June 2002

CaseChat Overview and Summary

The Director of Public Prosecutions (DPP) sought an order for the confiscation of property under the Confiscation Act 1997, against Tat Sang Loo. The property in question was held by a company, which was a trustee, and the company had been in liquidation at the time the confiscation order was made. The central issue before the court was whether Tat Sang Loo was in effective control of the property on the date when the restraining order was made, and if the provisions of the Confiscation Act could operate concurrently with the provisions of Chapter 5 of the Corporations Act 2001. This question arose due to a direct inconsistency between the two statutes and the operation of Part 1.1A of the Corporations Act.

The court considered the provisions of the Confiscation Act, particularly sections 70 and 72, which deal with the confiscation of property and the application of restraining orders. The court also examined the Corporations Act, focusing on sections 5E and 5G, which address the appointment of liquidators and the powers of liquidators in the context of a company in liquidation. The court needed to determine whether Tat Sang Loo could be considered in effective control of the property given that the company, as trustee, was in liquidation before the confiscation order was made. The court concluded that there was a direct inconsistency between the two statutes, and thus, the provisions of the Confiscation Act could not operate concurrently with the Corporations Act.

The court found that Tat Sang Loo was not in effective control of the property on the date when the restraining order was made, as the company, which held the property, was already in liquidation. The court held that the provisions of the Confiscation Act could not operate concurrently with the provisions of the Corporations Act in this instance. Therefore, the confiscation order was not applicable to the property held by the company in liquidation. The court's reasoning was grounded in the principle that a direct inconsistency between two statutes may result in one statute prevailing over the other, depending on the specific circumstances of the case.

Orders