New South Wales Crime Commission v Amy Ling Yu Huang - [2002] NSWSC 1194

No judgment structure available for this case.

CITATION: NEW SOUTH WALES CRIME COMMISSION -v- AMY LING YU HUANG [2002] NSWSC 1194 revised - 18/12/2002

FILE NUMBER(S): SC S10870/1999

HEARING DATE(S): 4,5,6 December

JUDGMENT DATE: 16 December 2002

PARTIES :

New South Wales -v- Amy Ling Yu Huang

JUDGMENT OF: Cooper AJ

LOWER COURT
JURISDICTION : Supreme Court

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER :

COUNSEL : I. Temby QC (Plaintiff/Respondant)
G.Farmer (Defendant/Applicant)

SOLICITORS: Gregory J Goold (Plaintiff)
Watsons (Defendant)

CATCHWORDS: Illegally acquired property

LEGISLATION CITED: Sections 25 and 26 of the Criminal Assets Recovery Act

CASES CITED: New South Wales Crime Commission -v- Gardener [2001] NSWSC 350

DECISION: 192 The Court therefore makes the following orders:-; 1. Pursuant to Section 25(4) of the Criminal Assets Recovery Act the Applicant (defendant) is granted leave to apply for an Exclusion Order pursuant to Section 25(1) of the Act excluding her interest in each of the two items of property described in Order 3 hereof from the operation of the assets forfeiture order made on 7 May 2001.; 2. Pursuant to Section 21(1) of the Criminal Assets Recovery Act the interests of the Applicant in each of the two items of property described in Order 3 is excluded from the operation of the Assets Forfeiture Order made on 7 May 2001.; 3. The two items of property referred to in these Orders are:-; (a) The whole of the property comprised in Lot 12 in Strata Plan 51479 also known as Unit 12, 11-15 Goodchap Road, Chatswood in the State of New South Wales registered in the name of Ling-Yu Huang.; (b) 1996 Toyota Sedan registered number ADO 65R registered in the name of Ling-Yu Huang.; 4. It is declared that the nature and extent of the interest in the property comprised in Lot 12 in Strata Plan 51479 also known as Unit 12, 11-15 Goodchap Road, Chatswood to which this Order relates is for an estate in fee simple subject to the existing registered mortgage in favour of Citibank.; 5. It is declared that the nature and extent of interest in the property being the 1996 Toyota Sedan registration number ADO 65R is absolute and unencumbered ownership.; 6. It is ordered that the Crown do vest in the Applicant, Ling-Yu Huang also known as Amy Ling-Yu Huang, the whole of the property described in Order 3(a).; 7. It is further ordered that the Crown do vest in the Applicant, Ling-Yu Huang also known as Amy Ling-Yu Huang, the 1996 Toyota Sedan registered number ADO 65R referred to in order 3(b).; 8. The respondent (plaintiff) is ordered to pay the Applicant's (defendant's) costs of this application.

IN THE SUPREME COURT
OF NEW SOUTH WALES
SYDNEY REGISTRY,
COMMON LAW DIVISION

DECEMBER 2002

S10870/1999

AMY LING YU HUANG
(Applicant/Defendant)
-v-
NEW SOUTH WALES CRIME COMMISSION
(Respondent/Plaintiff)

1 This is an application by Amy Ling Yu Huang (also known as Ling Yu Huang) pursuant to Section 25 and alternatively pursuant to Section 26 of the Criminal Assets Recovery Act for relief from forfeiture of 2 item of property namely

1. The whole of the property comprising Lot 12 in Strata Plan 51479 known as Unit 12, 11-15 Goodchap Road, Chatswood, New South Wales, registered in the name of Ling-Yu Huang; and

2 On 13 April 1999 the Court made a restraining order pursuant to Section 10 of the Act in respect of the above items of property based upon the then suspected serious crime related activities of Duncan Sak Cheung Lam (Duncan Lam).

3 On 7 May 2001 the Court made orders pursuant to Section 22 of the Act forfeiting to and vesting in, the Crown, the above two items of property.

4 The present Application was filed by way of Notice of Motion on 12 October 2001, that is within six months of the making of the forfeiture order.

5 Under Section 25 of the Act a person whose interest in property is affected, or may be affected, by an assets forfeiture order, may apply for an “Exclusion Order” which has the effect of excluding the interest from the operation of the assets forfeiture order. Section 25 (2) provides that the Court must not make an Exclusion Order unless it is proved that it is more probable than not that the interest in property to which the application relates is not “illegally acquired property”; which means in effect that it is not the proceeds of an “illegal activity” or wholly or partly acquired using illegally acquired property. Section 9 defines “illegal activity” as including an act or omission which constitutes an offence (including a Common Law offence) against the Laws of New South Wales or the Commonwealth. Thus the making of an exclusion order under Section 25 will be defeated by illegal activity, the onus being on the Applicant to negative such illegal activity.

6 In Section 4 “proceeds” in relation to an activity is defined as including “any …..advantage or benefit, that is derived or realised, directly or indirectly, as a result of the activity”.

7 Applying these various definitions, it can be seen that an Applicant for an “Exclusion Order” under Section 25 must show on the balance of probabilities that the interest in property to which the application relates is not all or part of any advantage or benefit derived or realised, directly or indirectly, as a result of an act or omission which constituted an offence against the Law of New South Wales or the Commonwealth, and that it was not wholly or partly acquired by using any advantage or benefit derived or realised, directly or indirectly, as a result of such activity. (See New South Wales Crime Commission –v- Gardener 2001 NSWSC 350).

8 It is common ground that a relationship involving intimacy but not cohabitation commenced between the Applicant and Duncan Lam in early 1993 and continued until his arrest on 8 February 1999. A child (Daniella) was born of that relationship on 17 July 1996.

9 The purchase of the home unit at Chatswood was completed on 29 December 1995. It was purchased by the Applicant in part with monies she had in the bank, in part with monies sent to her from Taiwan and in part by a mortgage from Citibank.

10 The Toyota (Lexus) motor car was purchased by the Applicant on about 1 February 1996 and paid for in part by money sent to her from Taiwan and in part with a trade-in on her previous motor vehicle.

11 In order to arrive at a decision it is necessary to examine in some detail the background of Duncan Lam and two of his close associates, the background of the Applicant and the history of their relationship as well as the financial dealings of the Applicant.

THE BACKGROUND OF DUNCAN LAM

12 On 8 February 1999 Duncan Lam was arrested and charged with conspiring with Ting Fong So, Ting Man Ngai, and Kim Loan Nguyen to supply a large commercial quantity of heroin between 24 January 1999 and 9 February 1999 at Sydney.

13 He was found guilty by a jury of this charge on 7 March 2001 and on 23 March 2001 he was convicted and sentenced to imprisonment for 16 years back-dated to 8 February 1999 with a non parole period of 12 years.

14 The facts relating to the conspiracy are set out in the Remarks On Sentence of Judge Holt (Exhibit 7).

15 The investigation commenced with the obtaining of warrants in late 1998 under the Telecommunications (Interception) Act 1979 in respect of telephone services used by Kim Loan Nguyen and So Ting Fong.

16 A reading of the Remarks on Sentence reveals certain matters of special relevance to this application:-

a. Duncan Lam had been in a relationship with Kim Loan Nguyen since mid 1998.

b. Nowhere is there any suggestion of any involvement on the part of the Applicant in the drug related activities.

c. There is nothing in those facts to suggest that Lam was involved in illegal drug activities as far back as 1995 and early 1996.

d. On 8 February 1999 heroin was seized which was worth in block form about $2.4 million to $3 million and which, when broken down for street sales, was worth about $38 million to $40 million. There is nothing to suggest that this type of money from drug dealings was available to Duncan Lam in 1995 or early 1996.

17 The history of Duncan Lam is described in the Remarks on Sentence at pages 7 and 8 and it is necessary to set out the contents in some detail.

18 He was born in Hong Kong on 21 June 1954. At that stage his mother was alive and living in Hong Kong. In 1976 at the age of 22 he travelled to Australia on a holiday visit and worked in Sydney for approximately 6 months before travelling to Brisbane where he met his first wife. Following his marriage to her he made application for and was granted permanent residency in Australia. Two children were born of that marriage.

19 The facts then continue:-

“The family moved back to Sydney in 1978 whereupon the prisoner obtained work within the restaurant industry, located principally in Chinatown. He also worked at the Palm Beach Golf Club in the mid 1980’s for a period of a year.

In 1986 his marriage to Ms Neilson dissolved and she returned to Brisbane. Mr. Lam thereafter had a de facto relationship from which a third child, a son, was born. Both the son and his mother reside in Hong Kong. After working at the Golf Club at Palm Beach for about a year, Mr Lam took up employment at the Barbecue King Restaurant in Chinatown before moving to the Ming Wah Restaurant, again in Chinatown. Whilst at that establishment he met his second wife, Ms Quinnie Wong. He married Ms Wong in 1990. He is legally separated from her at this time whilst remaining legally married. Two further children were born of that union.

Soon after his marriage with Ms Wong the Golden Kingdom Restaurant in Kensington was jointly purchased by them. The business was a commercial success and generated significant family income. It was whilst conducting that business with his wife that Mr Lam acquired two racehorses, each of which raced successfully until their retirement in mid 1997. Mr Anthony Wildman gave uncontradicted evidence at trial that the racehorses earned a significant purse for Mr Lam and that he had successfully backed them on repeated occasions. There is uncontradicted evidence that Mr Lam had been a successful punter winning significant amounts of money up until the time of his arrest.

There is no evidence to contradict his assertion that he declared his income as a race owner and gambler as part of his taxable income.

The uncontradicted evidence is that Mr Lam has only one prior conviction for driving with a prescribed concentration of alcohol in 1980”.

20 It will, therefore, be seen that at least until the retirement of the racehorses in 1997 Duncan Lam had significant legitimate income from a restaurant as well as from horseracing.

THE ACTIVITIES OF TWO CLOSE ASSOCIATES OF DUNCAN LAM.

21 At this stage it is convenient to look at the criminal activities of Quinnie Mei Mei Wong (the wife of Duncan Lam) and also of her sister, Betty Mei Ling Wong.

22 On 8 January 1999 Quinnie pleaded guilty to an offence under Section 31(1) of the Financial Transaction Reports Act 1988 in that she was a party to sixteen non reportable cash transactions between 5 December 1996 and 19 December 1996 and having regard to the manner and form in which the transactions were conducted it would be reasonable to conclude that she conducted the transactions in that manner for the sole or dominant purpose of ensuring or attempting to ensure that the currency involved in the transactions was transferred in a manner or form that would not give rise to a significant cash transaction.

23 Betty was charged in similar terms in relation to ten transactions between 13 December 1996 and 19 December 1996 and in relation to six transactions between 19 March 1997 and 21 March 1997.

24 They were convicted on 20 April 1999. Quinnie was ordered to perform Community Service Work for 200 hours and fined $2000. Betty was fined a total of $3000.

25 The facts (See Tab 65 of Exhibit M) reveal:

(a) that the money was remitted in false names in amounts of less than $10,000.00 each to accounts in Hong Kong and that $1.2 million had been identified in international transfers to these accounts.

(b) These transactions were initiated in November 1996 when Quinnie travelled to Hong Kong and arranged for the opening of foreign currency accounts in the names of her half brother and half sister.

26 This evidence comfortably satisfies me that these two women were sending overseas money that had been obtained by Duncan Lam as a result of his illegal activities.

THE BACKGROUND OF THE APPLICANT

27 The Applicant was born in Taiwan on 3 March 1966. After secondary schooling she attended a course from July 1985 to January 1987 in Natural Beauty and qualified as an instructor of Natural Beauty Art. She had also been apprenticed in that trade from September 1983 to July 1985.

28 She worked in that trade from July 1985 to September 1990 in Taiwan and then came to Sydney where she remained from September 1990 to July 1991 working as a beautician at Cabramatta and also giving instructions in her trade at a business in Chatswood.

29 In August 1991 she made application for migration to Australia on the basis of Employer Nomination (See Exhibit 1).

30 Mrs May To of “May Leader Hair and Beauty” sponsored the application under the Employer Nominations Scheme for entry as a beautician. The application was granted and the Applicant came to Sydney later in 1991.

31 Initially she was employed by the business at a gross wage of $30,000 per annum. Shortly afterwards she acquired a one fourth share in a business which was known as “Amy Beauty Salon”.

32 On about 14 July 1994 she sold 80% of her interest in that business for $50,000 (see Exhibit K).

33 The remaining 20% of her interest was sold for $30,000 in about December 1998 (See Exhibit L).

34 Her tax return for the year ending 30 June 1994 shows receipt of the total income of $33,446.00. She also sold depreciable assets worth $6,236.00.

35 Her tax return for the year ending 30 June 1995 reveals her taxable income as $2,798 which comprised interest of $2,122 and distribution of share in the business of $1,417 less expenses of $741.

36 In addition she received a tax refund of $4,520.

37 Her tax return for the year ending 30 June 1996 showed a net income of $6,429.

38 These taxation returns showed only part of her sources of support and money.

39 The Applicant’s evidence was that when she visited her family in Taiwan she would obtain money in Taiwanese currency, convert it there to Australian currency in cash and bring that cash back to Australia with her. She did not necessarily bank it upon her return and used much of it for living expenses. In her examination before the Deputy Registrar on 22 July 1999 (Exhibit F) she gave evidence that she had had an earlier boyfriend named Ho Quen Yo for about 6 or 7 years when she first arrived in Australia in 1991 and that he had provided her with substantial amounts of money. Her father, who by then was a retired farmer, had also given her substantial sums of money. She also gave evidence that there was real estate in her name in Taiwan which she described as really belonging to her family.

40 Her evidence was that the exchange of Taiwanese currency into Australian currency was done at a jewellery shop where she received a better exchange rate into Australian dollars. She brought to Australia the Australian currency in amounts of less than $10,000 at a time.

41 She agreed under cross examination that the Court had no evidence other than her word of the availability to her of such funds from Taiwan.

42 This, quite naturally, led to the submission that the Applicant was not a credible witness. In support of this submission reliance was placed upon her evidence appearing at page 25:-

“Q. Is it not the case that after you became close to Duncan Lam, you started working less often than you had previously?

A. That’s not true.

43 Senior Counsel for the Commission strongly submitted that this shows totally inconsistent answers within a matter of a few second demonstrating that she is the type of witness who will say whatever comes to her mind as possibly helping her case.

44 In fact the witnesses’ answers demonstrate her complete honesty. After becoming close to Duncan Lam she continued working as hard as she had done beforehand for a period of over a year until she sold eighty percent of her interest in the business in about July 1994. It was only after that sale that she worked a lot less.

THE RELATIONSHIP BETWEEN THE APPLICANT AND DUNCAN LAM

45 The Applicant and Lam met in early 1993 and thereafter developed an intimate relationship which continued until his arrest on 9 February 1999.

46 They never actually lived together. He had a wife name Quinnie and another paramour called Kim. Quinnie, as already mentioned, was involved in breaches of the Financial Transactions Reports Act and Kim was a co-conspirator referred to in the charge against Duncan Lam of conspiracy to supply a large commercial quantity of heroin of which he was convicted.

47 The Applicant and Duncan Lam went overseas together departing on 25 February 1993 and returning on 27 March 1993. Their next trip together overseas was not until 3 February 1994 when they returned on 21 February 1994.

48 The Applicant freely conceded that the two of them made many trips together around Australia and overseas particularly after she had sold the 80% share of her interest in the business in July 1994.

49 The Applicant denied that she and Lam were living in the Chatswood flat when he was arrested in February 1999. She did concede that he spent a night at the apartment about once a fortnight and sometimes four times a month. He did not keep his clothes there.

50 She conceded that when they went out for meals together he generally paid but otherwise she supported herself. The only other money she received from Lam was after the birth of their child when he would give her money for the child on irregular occasions in varying amounts, sometimes $200, sometimes $300 or $500.

51 At page 16 of the Transcript the following exchange is recorded:-

52 She agreed that after Duncan Lam was arrested she asked her family to lend her money to help pay his legal expenses. She explained (page 19):-

53 And later:-

54 Her evidence was that the only furniture he bought for her for the Chatswood unit was a present of a cupboard.

55 She agreed that after she sold the 80% interest in her business she did not have to work as hard and she had time to travel back to Taiwan and was earning less money. She denied that Lam met the cost of the overseas trips and that he was meeting all or most of her living expenses.

56 Her evidence was that she has no criminal convictions either in Australia or in Taiwan nor has she ever been arrested or charged by any police officer anywhere in the world.

57 When questioned about her overseas trips she said (page 36):-

58 The Applicant also gave evidence that when she first met Lam she was not aware that he was married but learnt that this was the case some five or six months later. He had told her he was a restaurant proprietor and the owner of racehorses and that he bet on horses.

THE PURCHASE OF UNIT 12, 11-15 GOODCHAP ROAD, CHATSWOOD

59 In April 1995 the Applicant decided to purchase the subject home unit.

60 As at April 1995 she had the following bank accounts:-

Citibank, approximately $5,000.00

Advance Bank, approximately $11,000.00

ANZ Term Deposit $30,000.00

ANZ Access Savings account $44,000.00

Total approximately $90,000.00

61 The records exhibited to the affidavit of Mr Seagrave also include an account at the ANZ bank at Glenferrie in Victoria. Although the name on this account is identical with the name of the Applicant it does not appear to be her money or her account. I therefore leave it out of consideration.

62 The records also show that the Applicant had had a cash deposit with Advanced bank of $44,900.00 from 20 July 1992 to 21 April 1994 and of $11,880 from 6 September 1995 to 2 October 1996.

63 This shows that the Applicant had in July 1992 (some 6 months before the commencement of the relationship with Duncan Lam) $44,900. She received $50,000 from the sale of 80% of her share in the business. Thus as at April 1995 she had approximately $90,000 which was unrelated to her relationship with Duncan Lam.

64 The purchase cost comprise the following:-

Stamp Duty 11,523.00

386.00

Total $369,711.00

65 This was funded by:-

Portion of money sent from Taiwan $191,270.00

Loan from Citibank on Mortgage $131,000.00

From her own savings 37,441.00

Total $369,711.00

66 On behalf of the Crime Commission it is submitted that the Applicant has not proved that it is more probable than not that her interest in the home unit was not illegally acquired property in that the funds used to acquire it were all, or in part, the proceeds of illegal activity.

67 In relation to the $37,441.00 which the Applicant claims to have come from her own savings, Mr Seagrave, the Chief Financial Investigator of the Commission in his affidavit of 4 April 2002 states that he has examined each portion of the monies paid and where he cannot trace the source by records he refers to it as “source unknown”.

68 The Commission then submits that the onus is upon the Applicant to prove that the source was not the proceeds of an illegal activity and, as the Applicant cannot attribute each and every dollar comprised in a particular expenditure to a particular source, her claim must fail.

69 The answer to this submission is that the extent to which the Applicant must attribute every dollar of a particular expenditure to a particular source in order to discharge the onus upon her under Section 25 will depend upon the circumstances of each case.

70 In some cases the evidence of continuing association with the person conducting the illegal activity will be so strong and the evidence of alternative sources of income so lacking that the Respondent’s submission may well be applicable.

71 However, the circumstances of this case are quite different. Here, there is some hint of illegal activity on the part of Lam from some time late in 1996, but none in 1995 and early 1996. This is not a case where Lam was living with the Applicant on a permanent basis. He was a casual, albeit an intimate, visitor. He did not have any of his clothes at her home.

72 In addition, he had a wife and two children and another lover called Kim. It was his wife and her sister who set up and executed the transmission of Duncan Lam’s illegally acquired money to Hong Kong from December 1996. It was Kim who was a co-conspirator in the charge which led to his incarceration.

73 Furthermore the evidence is that in the period from 1993 to 1996 Lam had a successful and legitimate business the details of which have already been set out.

74 On top of this, as has already been pointed out, the Applicant had had her own cash of $44,900.00 since July 1992 (before the commencement of the relationship) and $50,000.00 from the sale of part of her share of the business. These sums far exceed the sum of $37,441.00 which she contributed towards the cost of the purchase of the home unit.

75 Accordingly, the Applicant has proved that it is more probable than not that no part of the $37,441.00 was in whole or in part the proceeds of an illegal activity.

76 I now pass to the portion of the purchase price which was received from Taiwan namely $191,270.00.

77 It is common ground that the Applicant’s brother sent by telegraphic transfer from Taiwan to the Applicant’s bank $192,299.69 in Australian currency on 31 August 1995 and that this was the source of the $191,270.00.

78 In his affidavit of 21 December 2001 Ching Hsing Huang, the brother of the Applicant, who lives in Taiwan says:-

4. “I am aware that it is the custom of the country in which I live and of which I am a citizen that families regularly pool financial resources to assist members of that family. Our family is no different. As each of the children of my parents’ family have married contributions have been made by other members of the family to assist with the purchase of a home and the assets they require to set up that home.

5. I am aware that contributions from savings (particularly savings mutual accounts) have been provided to my older brother and sister for the purchase of homes for them. This process has also been undertaken by my family to assist me in the purchase of real estate.”

79 He continues that he is aware that members of his family, including himself, have made contributions by way of family allowances to the Applicant. He has personally transferred or arranged transfers to the Applicant of various sums of money including the $192,299.69 on 31 August 1995. He annexed to his affidavit the banking documents covering the transactions.

80 To his affidavit of 3 December 2002 he exhibits copies of his and his brothers’ bank passbooks.

81 In that affidavit he also explains the nature of what he refers to as a “Phoe”. On the probabilities a “Phoe” is the same as the “savings mutual accounts” referred to in paragraph 5 of his earlier affidavit.

82 He says in this affidavit:-

“4. Monies deposited into these accounts [that is his own personal accounts which are Exhibit CHH3 to his affidavit] came from members of my family and from funds known as “Phoe”, existing between up to 55 members, including family and friends. I was a member of a number of funds.

5. Phoe is an ancient system of people banking in some Asian countries. It is made up of a group of people (member of “Phoe”) with one of them as the leader (Head). They meet on a regular basis (weekly, fortnightly, monthly etc) with the purpose of obtaining a loan by nominating to pay an amount of dollars in interest to other members of the group. The process is done by closed vote with the highest bidder getting the loan. The “Head” is responsible for collecting the money from the other members. In return the “Head” receives the first instalment interest free.

6. To illustrate how it works, let us say we have a “Phoe” of $10,000 with 20 members (including the “Head”) operating on a fortnightly basis. On the first meeting, the “Head” will get $10,000 from each member (no bidding required) which is $190,000. A fortnight later, every member, except “Head” will make a bid of the amount they wish to pay as interest. The fund money will go to the highest interest bidder. Assuming that the highest bidder was $1000.00, the bidder will receive $9,000.00 from the remaining 18 members plus $10,000.00 from the Head, a total of $172,000.00. This will be repeated every fortnight. Once a member is successful in a bid, he/she will not be eligible to make another bid and he/she will not be paid any interest for the whole period of the “Phoe”. This means that he/she will have to pay the full $10,000.00 every time. The last member will get $10,000.00 from every member at the last meeting. His/her earnings from Phoe will be the interest he/she received during the course of the procedure.”

83 He goes on to say that his brothers, Yuen-Chen Huang and Lung-Chou Huang are also members of these funds and he exhibits a total of 13 passbooks belonging to them. Yuen-Chen Huang is self employed as an Engineer in the construction industry and Lung-Chou Huang is a manager of a Mitsubishi Dealership in Taiwan.

84 He also testifies that prior to sending money to the Applicant the money was collected from family members deposited into his account and then transferred and that most of the money came from his parents.

85 In paragraph 19 he says:-

“To my knowledge, the monies in these accounts, the monies forwarded to my sister Amy Ling Yu Huang and the monies forwarded to Mr Goold were not illegally obtained.”

86 Briefly, the submissions of the Crime Commission are:-

a. The Applicant has not proved that it is more probable than not that the money or any part thereof was not illegally obtained, and

b. Ching Sing Huang has merely sent to his sister money which he had been holding on behalf of Duncan Lam.

87 In evidence Mr Huang categorically denied that he had received any money from Duncan Lam and that any part of the funds remitted to his sister had come from him. He freely conceded that he had met Lam on occasions in Taiwan and also on the one occasion he visited his sister in Sydney but he denied receiving any money from him.

88 He was cross examined on the statement in his first affidavit that as each of the children of his parents family have married, contributions have been made by other members of the family to a assist with a purchase of a home and the assets required to set up that home, as follows (page 42):-

89 On behalf of the Commission it was submitted that these answers cast doubt upon Mr Huang’s credibility because the reference in the affidavit to what happens on marriage can have no relevance to his sister’s situation unless Mr Huang regarded them as, in effect married, which he denied.

90 The fallacy of this submission is that is misunderstands the point of Mr Huang’s evidence. He was pointing out that family members helped each other financially to a considerable extent. Although his sister was then not married the family regarded her as on her own in a foreign country and so wanted to help her. To my mind his answer has the ring of sincerity and truth in it.

91 But the cross examination went further (page 43):-

92 This, submits the Commission, is clear evidence of the lack of credibility of Mr Huang and the appellant. She had testified that the family agreed to give her almost $200,000.00 in Australian currency in mid 1995. She did not become pregnant until about October 1995. Her daughter was born on 17 July 1996. Yet, at the same time Mr Huang is saying that the motivation for the gift is her pregnancy. Consequently they are both deliberately lying.

93 The obvious answer to this submission is that Mr Huang in fact sent the money on 30 August 1995 which is before the start of his sister’s pregnancy. This supports her evidence. On the other hand, he, with the ravages that time imposes upon the accuracy of memory has positioned his knowledge of her pregnancy in the wrong location in time.

94 But this is not the only answer to the Commission’s submission.

95 It is to be noted that a considerable amount of money was remitted by the family from Taiwan to the Applicant after she became pregnant and after the birth of her child. The last question set out above starts off by referring to an agreement to help buy the unit because she was pregnant. However that part of the question was abandoned and the question actually put to the witness through the interpreter merely refers to money being provided by the family because it was known that Amy was pregnant. There is no doubt that a considerable amount of money was provided by the family after she became pregnant and after she had the child.

96 Mr Huang conceded that he had been made aware of his sister’s pregnancy at an early stage. The Immigration Department’s records show that the Applicant and Lam left for overseas on 28 November 1995. He returned on 16 December 1995, left again on 19 December and returned on 27 December. She also returned on 27 December 1995. Their next overseas trip together was not until 16 December 1996 and they returned on 15 January 1997.

97 Mr Huang was also cross examined about the fact that he had sent three parcels of money totalling $100,000.00 to the solicitors acting for Duncan Lam on his trial. He conceded that these sums were sent as a result of a call from the Applicant for money as a loan to her.

98 He also conceded that at that stage he knew that Lam was in goal awaiting trial and that his sister’s prospects of repaying the loan were poor and that if Lam had any money he would have been paying for his lawyer himself. He also conceded that he thought there was a real risk that he would never get the money back.

99 Notwithstanding this he maintained his denial that he felt obliged to help Lam because Lam had given him money in the past. He further maintained his denial that he was facilitating the return to Lam of money which Lam had sent to Taiwan over previous years. The Commission submits that these denials are quite unbelievable, arguing, why would Mr Huang make a loan totalling $100,000.00 when there was a real risk of never being repaid. The submission continues that it is obvious that he was merely returning money which had already belonged to Lam and furthermore that all of the money he sent from Taiwan to his sister was money belonging to Lam.

100 If one applies the tenets of commercial economic rationalism this submission would have much force.

101 But this is not a commercial situation. This is a family situation where the youngest sister is in Australia and the family want to ease her obvious distress. There seems to me to be the ring of truth and sincerity in his evidence at page 51:-

102 The evidence of Mr Huang establishes that as at the year 2000 his sister was probably still fond of Duncan Lam. Duncan Lam was using her as a source of funds. Her family in Taiwan were also concerned to help her in any way that her protestations may convince them would make her happy.

103 A further attack upon the credibility of Mr Huang was based upon an apparent inconsistency in his evidence.

104 Mr Huang had testified that he collected the money from family members and deposited it in his account and when he had sufficient he would purchase Australian dollars and transfer it through the bank to his sister’s account in Sydney.

105 He testified that when the monies were deposited into his account the deposits were made in cash by him. (See page 48 line 10)

106 Later, after the lunch break, Mr Huang was cross-examined upon the contents of his bank passbook. He was taken to deposits of $1.6 million (Taiwanese) on 19 August 1995 and of $4 million (Taiwanese) on 21 August, 1995. He agreed that the Chinese characters beside the entry of the deposit on 19 August 1995 mean “transferred” and therefore this sum had not been deposited in cash by him. He said it had come from his elder sister who had obtained it from his parents and brothers. He also agreed that the Chinese characters beside the entry of the deposit of $1.6 million (Taiwanese) on 19 August 1995 indicated that it was deposited by Li Li May who, he said, was a member of a “Phoe”.

107 There is no doubt that these two pieces of evidence cannot stand together. But does this inconsistency diminish the credibility of Mr Huang? If the inconsistent descriptions related to events which had occurred recently then it may. But these events took place over 7 years ago. This was but one of many transfers of funds to the Applicant organised by him. It may well establish that the memory of Mr Huang as to such details was in error but it falls far short of destroying his credibility.

108 The next attack is based upon the lack of evidence as to the source of the funds collected by Mr Huang and then remitted to the Applicant. He describes them as coming in part from his parents, in part from siblings, and in part from himself. Some of the money of these sources comes from one or more Phoes. It is submitted that there is no evidence that no part of the money provided by those persons was not obtained as a result of an illegal activity. Hence, it is submitted, the appellant has not discharged the onus upon her.

109 In paragraph 19 of his affidavit of 3 December 2002, Exhibit D, Mr Huang says:-

“To my knowledge, the monies in these accounts, the monies forwarded to my sister Amy Ling Yu Huang and the monies forwarded to Mr Goold were not illegally obtained.”

110 The evidence is that at least half came from the Applicant’s parents. They are retired although the father died earlier this year. They own a farm and other property in Taiwan. There is no suggestion of illegality in the source of their funds.

111 Other sources are Mr Huang and his siblings. All are either in business on their own account or in regular employment in positions of responsibility. There is no suggestion of any illegality in the money contributed by them.

112 Evidence was also given that some of the funds had been borrowed from Phoes. The Commission submits that there is no evidence that the money contributed to the Phoes was not illegally obtained funds either in whole or in part.

113 Undoubtedly, there is no evidence that each and every dollar contributed to a Phoe was not illegally acquired.

114 Having regard to the description of a Phoe which is set out earlier it can accurately be described (as did Mr Huang in paragraph 5 of his affidavit of 21 December 2001) as a “savings mutual account”. To my mind, a Phoe has many of the attributes of what is commonly known in this State as a Credit Union.

115 In so far as people borrow money from a Phoe they give consideration for that loan in the form of a payment of interest.

116 Section 9(5) of the Act states:-

117 The evidence here is that consideration for a loan from a Phoe is the amount of interest derived from a system of bidding with the loan going to the highest bidder. This would amount to sufficient consideration. The evidence is that the persons borrowing the money did not know that any of the funds were illegally acquired. Furthermore, the system of Phoes is well established and it is not uncommon for people to participate either as lender or borrower or both in a Phoe. Accordingly I am satisfied that in so far as money was borrowed from a Phoe it was borrowed in circumstances that would not arouse a reasonable submission that the money so borrowed or any part of it was illegally acquired property.

118 Accordingly the Applicant has satisfied me on the balance of probabilities that in so far as funds were obtained by way of loan from a Phoe it is not illegally acquired property.

119 In short, I find Mr Huang to be a credible witness who was doing his best to tell the truth. He did not exaggerate and conceded matters which may have tendered to go against the interests of himself and of his sister.

120 Accordingly the Applicant has proved that it is more probable than not that no part of the sum of $192,299.69 remitted by Mr Huang from Taiwan to his sister was in whole or in part the proceeds of an illegal activity.

THE LOAN OF $131,000 FROM CITIBANK

121 The contention of the Commission here is that this loan was obtained as a result of an illegal activity, namely a breach of Section 177BB of the Crimes Act which provides:-

“Whosoever, within intent to obtain for himself or herself or another person any money or valuable thing or any financial advantage of any kind whatsoever, makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) which he or she knows to be false or misleading in a material particular or which is false or misleading in a material particular and is made with reckless disregard as to whether it is true or is false or misleading in a material particular shall be liable to imprisonment for 5 years.”

122 The allegation is that with intent to obtain the loan the Applicant published statements which she knew to be false or misleading in material particular.

123 On 28 April 1995 the Applicant attended at Citibank. She freely conceded that she went with Duncan Lam so that he could translate and explain things to her.

124 She signed a mortgage loan application form in the presence of Mr Lam and the Bank Manager, Mr Keith Ngui. The writing in the body of the application (Exhibit 3) is not hers.

125 She sought a loan of $175,000 repayable over 25 years and offered as security for the loan a first mortgage over the subject home unit.

126 Section E of the application for loan notes the estimated value of the unit as $363,000 with an actual value of $340,000 and the maximum amount to be lent as being $131,000.

127 Section F is headed “Income (Proof to be attached)”. Exhibit 3 contains no attachment although in Section K there are ticks against “2 years financial information is enclosed” and “Citibank is authorised to contact my accountant”.

128 It is clear, therefore, that Exhibit 3 is not complete. In this regard it should be noted that Exhibit 3 was not produced to the Court by Citibank. It was produced to the Court by the Commission and said to be amongst the documents produced to it by Citibank. What has happened to the enclosures and attachment is unknown. Consequently it is necessary to exercise caution in drawing inferences from the form and contents of this document.

129 Against “Gross salary/wage” is written $1701 per month. Once the Applicant disposed of 80% of her share in the business in July 1994 there was a drop in her salary/wage.

130 As at 28 April 1995 the last tax return available to her would have been that for the year ending 30 June 1994 with an income, excluding Capital Gains Tax, of $23,131 or $1,760 per month. Her tax return for the year ending 30 June 1995 shows a total net earnings of $2,798 or $233 per month.

131 Where the figure of $1,701 came from is unclear. It may have come from the Applicant or it may have come from documents referred to as being with the application but not produced to the Court.

132 Against the entry “Rental Income” was written $350 per week. This related to property owned by the Applicant in Taiwan and was therefore not included in her Australian Tax Return. However, the figure $350 is crossed out and replaced with $370. On a monthly basis this is recorded as $1,950 which is crossed out and replaced by $1,282 and again, in a different hand-writing, replaced with $1,603.

133 All of these alterations in at least two different hand-writings tend to throw doubt upon the source of the $1,701 per month salary/wage. I am far from being satisfied on the balance of probabilities that it was from the Applicant. It may well have come from the additional material that was furnished at the time but not produced to this Court or it may have been an honest estimate from the Applicant.

134 In Section G under the heading “Assets and Liabilities” against the word “Furniture” is written “$25,000”.

135 The Applicant gave evidence that this may not have been accurate and that it may have been an overvaluation. However, there is no evidence as to the extent to which it was an over valuation. There is no evidence to show that the amount by which it exceeded the real value of the furniture was significant having regard to her total financial situation.

136 Against the entry “Rental Property?” she does not include the value of property which she rented to tenants in Taiwan. This is quite consistent with her evidence that this property really belonged to her family.

137 She discloses as other assets:-

138 These are all quite accurately stated.

139 Accordingly the evidence falls far short of satisfying the Court on the balance of probabilities:-

a. that the statement of monthly income of $1,701 was made by the Applicant

b. if it was made by her that at the time she knew it to be false or misleading.

c. even if she did know it to be false or misleading or acted with reckless disregard as to whether it was true or false or misleading it was not in a material particular because it must have been supported by proof attached to the original application or by her accountant in documents neither of which have been produced by the Court.

140 Furthermore the statement that her furniture was worth $25,000, whilst made by the Applicant, was not false in a material particular in that there is no evidence of the extent to which that amount exceeds the true value of the furniture and in any event it is only less than 10% of the overall assets disclosed by her quite truthfully.

141 The next allegation of a wilfully false statement arises out of a letter Exhibit 8. This purports to be a letter from the Applicant’s brother (who gave evidence) Mr Ching Sing Huang.

142 It is dated 8 May 1995 and is said to come from him at an address in Park Street Burwood where he has never lived. It is addressed to Citibank for the attention of Mr Keith Ngui (Loan Department).

143 The letter continues:-

“Dear Mr Ngui,

I (Mr Ching Sing Huang) a blood brother of Ms Ling Yu Huang hereby declare and confirm that I will remit a sum of AUD$200,000.00 currency by T/T from Taiwan direct into my sister’s bank account in Sydney.

The remittance is to support my sister (Ling Yu Huang) to purchase a home unit in Sydney and we the family from Taiwan will give away the money to Ms Huang as a gift.

My sister is not liable for any repayment and interest incurred.

Thank you for your kind attention.”

144 Something needs to be said about the circumstances under which this letter came before the Court. It did not come from the custody of Citibank. It does not bear any stamp upon it indicating that the Bank ever received it. This is in contrast to the Loan Application Exhibit 3 which bears such a stamp dated 7 May 1995.

145 At page 56 the following exchange is recorded as taking place during the course of the Examination in Reply of Mr Huang:-

146 The transcript notes that the Citibank file was called for and produced. After a short adjournment the following took place:-

147 That document is now Exhibit 8. It should be interpolated here that the signature on the letter does not look like the signatures on Mr Huang’s affidavits.

148 Thus Mr Huang does say that something was sent from Taiwan to the bank or to someone else in relation to the family’s undertaking to give the Applicant money for the home unit. Whatever it was has not been produced and Exhibit 8 was not that document.

149 Mr Huang speaks little or no English. Any letter he wrote would have been in the Chinese language. Whether this document was written as a result of an authority given by him in the Chinese language is not clear. But of even greater significance is the fact that this document does not appear on the face of it to have formed part of the material relied upon by the bank in the granting of the loan. It is dated almost 2 weeks after the Applicant attended at the bank and one day after the date on the bank’s date stamp on the front of the loan application form. It does not bear any stamp indicating that it has ever been received by Citibank.

150 Exhibit 8 may have been a translation of a letter received from Mr Huang or it may have been written for a purpose which is not known. However the evidence satisfies me on the balance probabilities that it was not a statement which was made to the bank with intent to obtain the loan by the Applicant or with her knowledge and/or consent.

151 For all of these reasons the Applicant has proved on the balance of probabilities that no part of the loan of $131,000.00 from Citibank was obtained by her as a consequence of a breach by her, or by anyone else with her knowledge and consent, of Section 178BB or any other section of the Crimes Act.

152 For all of the foregoing reasons the Court is satisfied that the Applicant has proved that it is more probable than not that her interest in the home unit to which the application relates is not illegally acquired property.

153 The affidavit of Mr Seagrave, the Chief Financial Investigator of the Commission, sworn 4 April 2002, shows that between 29 January 1996 and 13 April 1999 mortgage repayments were made by automatic transfers from the Applicant’s Citibank account totalling $85,230.00. To this there was one exception namely a repayment of $1,141.00 on 28 January 1997.

154 Of the repayments, $45,854.00 came from transfers from the Applicant’s family in Taiwan. For reasons already given I am satisfied on the balance of probabilities that this source is not tainted by any illegality.

155 $30,000.00 was received by way of cheque from Amy Beauty Salon. This was the price received by the Applicant for the sale of 20% of her share in that business.

156 $2,235.00 came from interest earned. There is no suggestion that this is any way tainted.

157 $6,000.00 came by way of cash and $1,141.00 came from an unknown source. An examination of the bank records shows that the Applicant had sufficient cash on hand to pay these amounts from her own resources.

158 For reasons already given I am comfortably satisfied that she has established that it is more probable than not that no part of these monies was illegally obtained.

AS TO THE MOTOR VEHICLE

159 The Applicant purchased a Toyota Lexus Sedan registration number ADO65R in her own name on about 1 February 1996 for $86,920.00.

160 The purchase money was paid as follows:-

$400 cash on 17 January 1996

$52,000.00 by cheque on Citibank account which was sourced to money she had received from her family in Taiwan.

$34,520.00 trade-in on her 1993 Honda Prelude ABG 71L.

161 By early February 1996 the Applicant had $4,826.00 left over from the $192,299.00 sent to her by her Taiwan family on 31 August 1995. In addition she had $59,990.00 which had been sent to her by her family in Taiwan on 29 January 1996.

162 For reasons already given the Applicant has satisfied me that it is more probable than not that no part of the money received from her family in Taiwan was illegally obtained. Having regard to her bank accounts I am further satisfied that no part of the $400.00 paid on 17 January 1996 was illegally obtained.

163 It is however necessary to trace the car used as a trade in for which she was credited with $34,520.00.

164 On about 5 May 1993 she purchased in her own name a 1993 Honda Prelude registered ABG 71L for $47,000.00.

165 She paid a total of $5,000.00 in cash in early May, was credited with a trade in of $20,000.00 on a 1988 Honda Prelude registered number OYB 860 which she then owed and borrowed $22,000.00 from AGC Finance.

166 The records from AGC at Tab 25 to the Exhibits to Mr Seagrave’s affidavits show that that the Applicant paid monthly instalments of $646.25 although on a number of occasions she incurred default charges probably because of late payment. The contract was paid out on 13 February 1996 with a final payment of $9,377.00. This was a withdrawal from her Citibank Account which in turn was obtained from the money transferred to her from Taiwan on 29 January 1996. For reasons already given in relation to the income and assets of the Applicant and her relationship with Duncan Lam she has satisfied me that it is more probable than not that no part of these payments to AGC were illegally obtained.

167 The same finding applies to the cash deposit paid by her totalling $5,000.00 on about 3rd and 5th May 1993.

168 The 1988 Honda Prelude registration number OYB 860 was purchased by her in her name on about 5 January 1993 for $23,000.00. The records at Tab 25 from the RTA show that she acquired that vehicle on 5 January 1993. The notice of sale gives the price at which it was sold as $23,000.00. There is nothing to show how this was financed.

169 However, as at this date the relationship between the applicant and Mr Lam had either not yet commenced or only just commenced and having regard to all of the evidence as to the background of Mr Lam and his business, the Applicant has satisfied me that it is more probable than not that no part of the purchase price of this vehicle was illegally obtained.

170 Having considered the component parts of the consideration for the purchase of the Lexus car I am satisfied that it is more probable than not that it was not illegally acquired property.

The Credibility of the Applicant and Mr Huang

171 Throughout this case I have been conscious that the essential question is: do I believe the Applicant and Mr Huang? This is particularly important because in many significant respects their evidence is not corroborated by records. One such respect is the evidence of the Applicant that she brought into Australia money from Taiwan prior to August 1995 which she used, in part, for living expenses.

172 I have come to the conclusion that they are both honest and reliable witnesses who have been doing their best to tell the Court the truth.

173 The Court has been greatly assisted by the skilful cross-examination of these witnesses. There is no doubt that the techniques of cross-examination in the hands of a skilful practitioner can catch out the lying witness. But, at the same time, they can also point out the honest one. These two witnesses, to my mind, have been prepared to give answers which a dishonest witness would consider against his/her interests. Their evidence is internally consistent as well as being consistent with evidence from other sources.

174 In addition, there is the evidence that Duncan Lam had successful legitimate business interests at least up to late 1996. The facts that he entrusted the transmission of illegally obtained funds overseas to his wife and sister-in-law and that his other paramour, Kim, was a co-conspirator in the crime which led to his conviction give rise to the probability that he quarantined the Applicant from his illegal activities.

175 The evidence that has caused me concern is the number of apparent overseas trips together made by the Applicant and Duncan Lam. But this concern was abated by a close consideration of the evidence relating to these trips.

176 They both left Sydney on 25 February 1993 and returned on 28 March 1993. They both left on 3rd and returned on 21st February 1994. The Applicant left on 3 July 1994 and returned on 6 August 1994 but Lam left on 23 July and returned on 6 August. Both of them left on 27 August 1994 but Lam returned on 5 September whilst the Applicant did not return until 9 November 1994. Both left on 8 January 1995 but Lam returned on 18 January whilst the Applicant did not arrive back until 9 February. Both left on 26 September 1995. Lam returned on 3 October and the Applicant on 21 October 1995. The two of them departed Sydney on 28 November but he returned on 16 December and she on 27 December 1995. This was in the early stage of her pregnancy. Their last travel together was after the birth of their daughter when they both departed on 16 December 1996 and returned on 15 January 1997.

177 It should also be noted that the records merely show that the departing flights from Sydney went to Hong Kong. Hong Kong was where Duncan Lam’s family was located. Hong Kong was the location to which his wife and sister-in-law had sent the funds comprised in the criminal charges of which they were later convicted. It is from Hong Kong that one catches a flight to Taiwan. These facts, plus the details of arrivals and departures set out above support the evidence of the Applicant that on their overseas trips they did not spend the whole time away together and also are quite consistent with the evidence of the Applicant and Mr Huang that Duncan Lam did not send money to Taiwan.

The Interests of Daniella Lam

178 At the commencement of the hearing there was an appearance by Counsel for Daniella Lam, the 6 year old daughter of the Applicant and Duncan Lam. Leave was then sought to file a Notice of Motion seeking orders that she, through her tutor, Woon Hing Lam, be added as a plaintiff in this application so that she can apply for an order that provision be made out of the estate of Duncan Lam to her to prevent her hardship. At the same time the Commission sought leave to file an application for determination of a preliminary point of law relating to the proposed application on behalf of the child.

179 It was then indicated by Counsel for Daniella that her application would not be pursued if her mother’s application under Section 25 were successful.

180 After hearing argument I declined to allow Daniella’s Notice of Motion and the Commission’s application to be filed at that stage and indicated that both applications could be renewed after I had dealt with the present matter.

181 In the light of the foregoing and the Orders made in this matter the applications of Daniella and the Commission are unnecessary and are not accepted.

CONSEQUENTIAL ORDERS

182 As mentioned earlier, on 7 May 2001 the Court made orders pursuant to Section 22 of the Act forfeiting to and vesting in the Crown the interests of the Applicant in the subject home unit and motor vehicle.

183 The Public Trustee has refrained from dealing with these two items of forfeited property pending the outcome of the present application.

184 For reasons already given the Applicant has proved that it is more probable than not that the interests in the two items of property to which her application relate is not illegally acquired property.

185 She is therefore entitled to an Exclusion Order pursuant to Section 25 of the Act excluding her interest as owner from the operation of the Assets Forfeiture Order made on 7 May 2001.

186 Section 25(4) provides:-

“After an assets forfeiture order has been made, an application for an exclusion order may not be made by a person:

(a) if the person was given notice of the proceedings that led to the relevant restraining order or assets forfeiture order – unless it is made within 6 months after the assets forfeiture order took effect and leave to apply has been granted by the Supreme Court.

187 The application for an Exclusion Order was made within 6 months after the assets forfeiture order was made.

188 The Applicant has established to the satisfaction of the Court her entitlement to an Exclusion Order in respect of each item of property.

189 It was indicated by Senior Counsel for the Crime Commission that in such event there would be no objection to the granting of leave. In any event I consider it an appropriate case for leave to be granted.

190 As the Applicant has succeeded in her application under Section 25 it is not necessary to consider her alternative application under Section 26.

191 It will be clear from a reading of this judgment that the Crime Commission strongly opposed this application. The Applicant has been successful and, therefore, she is entitled to an order for costs of this application.

192 The Court therefore makes the following orders:-

1. Pursuant to Section 25(4) of the Criminal Assets Recovery Act the Applicant (defendant) is granted leave to apply for an Exclusion Order pursuant to Section 25(1) of the Act excluding her interest in each of the two items of property described in Order 3 hereof from the operation of the assets forfeiture order made on 7 May 2001.

2. Pursuant to Section 21(1) of the Criminal Assets Recovery Act the interests of the Applicant in each of the two items of property described in Order 3 is excluded from the operation of the Assets Forfeiture Order made on 7 May 2001.

3. The two items of property referred to in these Orders are:-

(a) The whole of the property comprised in Lot 12 in Strata Plan 51479 also known as Unit 12, 11-15 Goodchap Road, Chatswood in the State of New South Wales registered in the name of Ling-Yu Huang.

(b) 1996 Toyota Sedan registered number ADO 65R registered in the name of Ling-Yu Huang.

4. It is declared that the nature and extent of the interest in the property comprised in Lot 12 in Strata Plan 51479 also known as Unit 12, 11-15 Goodchap Road, Chatswood to which this Order relates is for an estate in fee simple subject to the existing registered mortgage in favour of Citibank.

5. It is declared that the nature and extent of interest in the property being the 1996 Toyota Sedan registration number ADO 65R is absolute and unencumbered ownership.

6. It is ordered that the Crown do vest in the Applicant, Ling-Yu Huang also known as Amy Ling-Yu Huang, the whole of the property described in Order 3(a).

7. It is further ordered that the Crown do vest in the Applicant, Ling-Yu Huang also known as Amy Ling-Yu Huang, the 1996 Toyota Sedan registered number ADO 65R referred to in order 3(b).

8. The respondent (plaintiff) is ordered to pay the Applicant’s (defendant’s) costs of this application.

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Last Modified: 12/18/2002

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Citations

New South Wales Crime Commission v Amy Ling Yu Huang [2002] NSWSC 1194

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New South Wales Crime Commission v Gardiner [2001] NSWSC 350

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :

CITATION:	NEW SOUTH WALES CRIME COMMISSION -v- AMY LING YU HUANG [2002] NSWSC 1194 revised - 18/12/2002
FILE NUMBER(S):	SC S10870/1999
HEARING DATE(S):	4,5,6 December
JUDGMENT DATE:	16 December 2002
PARTIES :	New South Wales -v- Amy Ling Yu Huang
JUDGMENT OF:	Cooper AJ

COUNSEL :	I. Temby QC (Plaintiff/Respondant) G.Farmer (Defendant/Applicant)
SOLICITORS:	Gregory J Goold (Plaintiff) Watsons (Defendant)
CATCHWORDS:	Illegally acquired property
LEGISLATION CITED:	Sections 25 and 26 of the Criminal Assets Recovery Act
CASES CITED:	New South Wales Crime Commission -v- Gardener [2001] NSWSC 350
DECISION:	192 The Court therefore makes the following orders:-; 1. Pursuant to Section 25(4) of the Criminal Assets Recovery Act the Applicant (defendant) is granted leave to apply for an Exclusion Order pursuant to Section 25(1) of the Act excluding her interest in each of the two items of property described in Order 3 hereof from the operation of the assets forfeiture order made on 7 May 2001.; 2. Pursuant to Section 21(1) of the Criminal Assets Recovery Act the interests of the Applicant in each of the two items of property described in Order 3 is excluded from the operation of the Assets Forfeiture Order made on 7 May 2001.; 3. The two items of property referred to in these Orders are:-; (a) The whole of the property comprised in Lot 12 in Strata Plan 51479 also known as Unit 12, 11-15 Goodchap Road, Chatswood in the State of New South Wales registered in the name of Ling-Yu Huang.; (b) 1996 Toyota Sedan registered number ADO 65R registered in the name of Ling-Yu Huang.; 4. It is declared that the nature and extent of the interest in the property comprised in Lot 12 in Strata Plan 51479 also known as Unit 12, 11-15 Goodchap Road, Chatswood to which this Order relates is for an estate in fee simple subject to the existing registered mortgage in favour of Citibank.; 5. It is declared that the nature and extent of interest in the property being the 1996 Toyota Sedan registration number ADO 65R is absolute and unencumbered ownership.; 6. It is ordered that the Crown do vest in the Applicant, Ling-Yu Huang also known as Amy Ling-Yu Huang, the whole of the property described in Order 3(a).; 7. It is further ordered that the Crown do vest in the Applicant, Ling-Yu Huang also known as Amy Ling-Yu Huang, the 1996 Toyota Sedan registered number ADO 65R referred to in order 3(b).; 8. The respondent (plaintiff) is ordered to pay the Applicant's (defendant's) costs of this application.