New South Wales Crime Commission v Chan
[2017] NSWSC 1837
•07 December 2017
Supreme Court
New South Wales
Medium Neutral Citation: New South Wales Crime Commission v Chan [2017] NSWSC 1837 Hearing dates: 07 December 2017 Date of orders: 07 December 2017 Decision date: 07 December 2017 Jurisdiction: Common Law Before: Walton J Decision: On the evidence before the Court, the Commission has established that a restraining order should be made under s 10A and ancillary orders under s 10B(2) of the Act.
Catchwords: CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime – restraining orders – ancillary orders – ex parte – orders made Legislation Cited: Crimes Act 1900 (NSW)
Criminal Assets Recovery Act 1990 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: New South Wales Crime Commission v Dinh [2017] NSWSC 1305 Category: Principal judgment Parties: New South Wales Crime Commission (Plaintiff)
San Sang Chan (Defendant)Representation: Solicitors:
New South Wales Crime Commission (Plaintiff)
File Number(s): 2014/192802
ex tempore Judgment
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HIS HONOUR: This matter concerns an application for further orders by the New South Wales Crime Commission (“the Commission”) pursuant to ss 10A and 10B(2) of the Criminal Assets Recovery Act 1990 (NSW) ("the Act").
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Section 10A of the Act enables an application to be made ex parte for a restraining order. Section 10B(2) of the Act enables this Court when making a restraining order, if it considers that the circumstances so require, order the NSW Trustee and Guardian to take control of some or all of the interests in property that are interests to which the restraining order applies.
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The application is supported by a statement of facts and circumstances pursuant to r 1.26 of the Uniform Civil Procedure Rules2005 (NSW) and an affidavit of Jonathan Lee Spark sworn on 6 December 2017. Mr Spark, who is an Executive Director (Financial Investigations) of and a financial investigator with the Commission, deposed that he is an “authorised officer” as defined in s 4(1) of the Act and that he suspected that the defendant, Mr San Sang Chan, had engaged in a serious crime related activity or serious crime related activities (within the meaning of “serious crime related activity” as defined in s 6 of the Act), namely:
supplying a prohibited drug in an amount not less than the commercial quantity applicable to that drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“the DMT Act”); and
supplying a prohibited drug in an amount not less than the large commercial quantity applicable to that drug contrary to s 25(2) of the DMT Act.
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It was deposed, and I accept, that the offences so described constitute serious criminal offences pursuant to s 6(2)(d) of the Act: New South Wales Crime Commission v Dinh [2017] NSWSC 1305.
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The grounds upon which Mr Spark held his suspicion are set out in his affidavit. In particular, he was provided with the records of the Commission, which included the records of “the COPS database” and accepted that Mr Chan has been convicted and sentenced in relation to serious crime related activity, namely, drug supply offences.
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It follows that the first two requirements of s 10A(5) of the Act are met in the present matter. The relevant authorised officer suspected that the defendant whose interest was the subject of the application has engaged in a serious crime related activity and his affidavit stated the grounds upon which the suspicion was based.
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There are three further requirements of the provisions of s 10A of the Act which require attention before an order may be made.
First, the Court is required to be satisfied pursuant to s 10A(3) of the Act that the defendant is domiciled in New South Wales and that the property in respect of which the restraining order is sought is situated in New South Wales. On the affidavit of Mr Spark, I am satisfied that this criteria has been met in the present case.
Secondly, s 10A(4) of the Act enables notice to be given the defendant, if the Court thinks fit to, before an order is made. In light of Mr Spark’s evidence, I do not consider such notice should be given, particularly in the light of the serious nature of the criminal activity in which Mr Chan has been involved, which resulted in the seizure of cash from two of Mr Chan’s properties, and the circumstances surrounding two outstanding charges, pursuant to ss 93T(1A) and 193B(2) (“the charges”), listed before the District Court of NSW on 8 December 2017. Turning to the relevance of the listing, Mr Spark deposed:
at the direction of the Director of Public Prosecutions there will be no further criminal proceedings in the District Court of NSW in relation to the charges. That direction is to be conveyed to the District Court on 8 December 2017; and
if the seized cash is no longer subject to the s 193B offence, the seized cash may be returned to Mr Chan, which is contrary to the restraining order sought.
The final requirement is the Court must be satisfied that there are reasonable grounds for the suspicion held by the authorised officer. In that respect, I have considered the evidence of Mr Spark, which included, inter alia, COPS records, the earlier affidavit of Mr Spark sworn on 25 June 2014 and the email correspondence of Mr Will Sit. I am satisfied there are reasonable grounds for the suspicion deposed by Mr Spark.
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As earlier mentioned, by s 10B(2) of the Act, the Court may, when making a restraining order, if it considers that the circumstances so require, order the NSW Trustee and Guardian to take control of some or all of the interests in property that are interests to which the restraining order applies. Mr Spark deposed that the circumstances so require and supported this belief with regard to the evidence deposed in his earlier affidavit, which set out the circumstances in which the aforementioned seized cash was seized by members of the police. He also noted the seized cash is presently being held by the police.
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On the evidence before the Court, the Commission has established that a restraining order should be made under s 10A and ancillary orders be made under s 10B(2) of the Act. I order accordingly.
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Decision last updated: 07 February 2018
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