New South Wales Crime Commission v Hoang - [2019] NSWSC 674

Supreme Court

New South Wales

Medium Neutral Citation: New South Wales Crime Commission v Hoang [2019] NSWSC 674
Hearing dates: 6 June 2019
Date of orders: 06 June 2019
Decision date: 06 June 2019
Jurisdiction: Common Law
Before: Davies J
Decision:
Upon the Plaintiff giving the usual undertaking as to damages (the giving of which by its solicitor being noted) and

Considering that, having had regard to the matters contained in the affidavit of Katie Elaine Bourne sworn 6 June 2019, there are reasonable grounds for the suspicions stated therein

The Court orders:

1. Pursuant to section 10A of the Criminal Assets Recovery Act 1990 no person (other than any registered mortgagee dealing with its right to do so under the registered mortgage) is to dispose of, or attempt to dispose of, or otherwise deal with or attempt to otherwise deal with any interest in property (within the meaning of “interest in property” as defined in section 7 of the Criminal Assets Recovery Act 1990) of Van Dien Hoang, including the interests in property in the property specified in Schedules One and Three hereto.

2. Pursuant to section 10A of the Criminal Assets Recovery Act 1990 no person (other than any registered mortgagee dealing with its right to do so under the registered mortgage) is to dispose of, or attempt to dispose of, or otherwise deal with or attempt to otherwise deal with any interest in property (within the meaning of “interest in property” as defined in section 7 of the Criminal Assets Recovery Act 1990) of Hong Dung Nguyen, including the interests in property in the property specified in Schedules Two and Three hereto.

3. Pursuant to section 12(1)(b)(i) and 12(1)(b1) of the Criminal Assets Recovery Act 1990 Van Dien Hoang shall be examined on oath before a Registrar of the Court concerning the affairs of Van Dien Hoang, including the nature and location of any property in which Van Dien Hoang or Hong Dung Nguyen has an interest.

4. Pursuant to section 12(1)(b)(i) and 12(1)(b1) of the Criminal Assets Recovery Act 1990 Hong Dung Nguyen shall be examined on oath before a Registrar of the Court concerning the affairs of Hong Dung Nguyen, including the nature and location of any property in which Hong Dung Nguyen or Van Dien Hoang has an interest.

5.   Leave is granted to the Plaintiff to obtain from the Registry dates for the examinations ordered in Orders 3 and 4 above.

6. Pursuant to section 12(1)(e) of the Criminal Assets Recovery Act 1990 Members of the New South Wales Police Force are authorised to seize and take possession of the property specified in Item 1 of Schedule Two hereto.

7. Pursuant to section 10B(2) of the Criminal Assets Recovery Act 1990 the New South Wales Trustee and Guardian shall take control of all the interests of Hong Dung Nguyen in the property specified in Item 1 of Schedule Two hereto and Schedule Three hereto.

8. Pursuant to section 10B(2) of the Criminal Assets Recovery Act 1990 the New South Wales Trustee and Guardian shall take control of all the interest of Van Dien Hoang in the property specified in Schedule Three hereto.

9. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Hong Dung Nguyen shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Hong Dung Nguyen, a statement verified by oath of Hong Dung Nguyen setting out the particulars sought in Schedule Four hereto.

10. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Van Dien Hoang shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Van Dien Hoang, a statement verified by oath of Van Dien Hoang setting out the particulars sought in Schedule Four hereto.

11.   Liberty is granted to the Plaintiff, Hong Dung Nguyen and Van Dien Hoang to apply on three (3) days’ notice.

12.   The costs of obtaining these orders shall be costs in the cause.

13.   These proceedings be listed for mention before the Common Law Registrar at 9:00am on Monday, 9 September 2019.

14. Pursuant to Rule 36.4(1)(a) of the Uniform Civil Procedure Rules 2005 these orders are to take effect as of the date hereof.

SCHEDULE ONE

1.   The whole of the property described as Lot 141 in Deposited Plan 224165 at Moorebank, Local Government Area of Liverpool, Parish of Holsworthy, County of Cumberland, also known as 3 Selway Avenue, Moorebank, New South Wales 2170 and registered in the name of Van Dien Hoang as sole owner.

2.   2007 Nissan Elgrand motor vehicle with New South Wales registration number CE65GA and registered in the name of Van Dien Hoang.

SCHEDULE TWO

1.   2018 Porsche Cayenne 3 motor vehicle with New South Wales registration number DZK92G and registered in the name of Hong Dung Nguyen.

2.   2005 Nissan Elgrand motor vehicle with New South Wales registration number CM92WM and registered in the name of Hong Dung Nguyen.

SCHEDULE THREE

Cash in the amount of approximately $500,000 seized by New South Wales Police on 13 December 2018 during the execution of a search warrant at the Star Casino, 80 Pyrmont St, Pyrmont, New South Wales 2009.

SCHEDULE FOUR

1. Provide full particulars of the nature and extent of all your interests in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990), including in relation to each item of property:

(a)   a full description of your interest in the property, including the nature of that interest and, where possible, the estimated value, or in the case of bank accounts or deposits - the estimated balance, of that interest;

(b)   the location of the interest;

(c)   the name of the person or institution in whose custody title documents in respect of the interest are believed to be;

(d)   the approximate date of acquisition of the interest;

(e)   the source of funds used to acquire the interest.

2.   Provide full particulars of your liabilities on both a capital and recurring basis, including, in relation to each liability:

(a)   a full description of the liability including the nature of that liability and the amount of that liability;
(b)   the name of the person or institution to which the liability is owed.
Catchwords: CRIMINAL LAW – proceeds of crime – restraining orders
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Assets Recovery Act 1990 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Category: Procedural and other rulings
Parties: New South Wales Crime Commission (Plaintiff)
Van Dien Hoang (First Defendant)
Hong Dung Nguyen (Second Defendant)
Representation:
Counsel:
P Donnelly – Ex parte (Plaintiff)
Solicitors:
Legal Unit, New South Wales Crime Commission (Plaintiff)

File Number(s): 2019/177154

Judgment

The plaintiff seeks a restraining order under s 10A of the Criminal Assets Recovery Act 1990 (NSW) pending the making of a forfeiture order under s 22 of the Act and an unexplained wealth order under s 28A of the Act.
The summons is supported by an affidavit of Katie Elaine Bourne sworn 6 June 2019. Ms Bourne is an authorised officer of the plaintiff. Section 10A(5) of the Act requires the Court to make an order if the application is supported by an affidavit of an authorised officer setting out the matters contained in that subsection and stating the grounds on which the suspicion referred to therein is based and the Court considers there are reasonable grounds for the suspicion.
Ms Bourne deposes to a suspicion and belief that the defendants have engaged in serious crime-related activity, in each case dealing with property suspected of being the proceeds of crime contrary to s 193C(1) of the Crimes Act 1900 (NSW). That is an offence punishable by imprisonment for five years involving money laundering and, thereby, falls within the definition of a serious criminal offence pursuant to paragraph 6(2)(d) of the Criminal Assets Recovery Act.
Ms Bourne bases her suspicion, principally, on reading the facts sheets in relation to each of the defendants and by ascertaining from Detective Senior Constable Amy Nilon that she had been involved in the preparation of the facts sheets and the investigation; that, to the best of her knowledge and belief, the facts sheets were true; and that they were prepared based on information obtained by the police and the plaintiff during the investigation into the offending. The evidence in Ms Bourne’s affidavit discloses, further, that each of the defendants has been charged with multiple counts of the same offence arising out of the investigation.
I have read the facts sheets and I am satisfied that the suspicion held by Ms Bourne, that the offences have been committed, is reasonably held.
The plaintiff asks that the members of the NSW Police Force be authorised to seize and take possession of the property specified in item 1 of Schedule 2 to Ms Bourne’s affidavit. That item is constituted by a 2018 Porsche Cayenne 3 motor vehicle. The plaintiff also asks that the NSW Trustee & Guardian take control of all of the interests of the defendants in the property specified in Schedule 3, which is the amount of $500,000 seized by the police during the execution of a search warrant.
I consider it is appropriate that that motor vehicle be seized and that the cash be given to the NSW Trustee & Guardian for holding by the Trustee & Guardian.
The plaintiff also asks that the present restraining orders be made without prior notice to the defendants. It does so based on what Ms Bourne sets out in paragraph 13 of her affidavit, namely, her experience through her employment with the Commission of the ability that persons have to defeat the operation of the Act by entering into unregistered mortgages of real estate very quickly and disposing of motor vehicles or backdating forms notifying the RMS of the disposal of the motor vehicles.
I am satisfied, in the circumstances, that it is appropriate that orders should be made without prior notice to the defendants. The defendants have their rights under s 10C of the Act to review these orders.
On the undertaking for the plaintiff giving the usual undertaking as to damages, that undertaking being noted, I make orders in terms of paragraphs 1, 2, 3, 4, 6, 7, 8, 9, 10, 12 and 14 of the orders signed by me.
I grant leave and liberty, referred to in paragraphs 5 and 11 of the proceedings, and it will be listed for mention before the Common Law Registrar at 9:00am on Monday 9 September 2019.

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Decision last updated: 07 June 2019

Medium Neutral Citation:	New South Wales Crime Commission v Hoang [2019] NSWSC 674
Hearing dates:	6 June 2019
Date of orders:	06 June 2019
Decision date:	06 June 2019
Jurisdiction:	Common Law
Before:	Davies J
Decision:	Upon the Plaintiff giving the usual undertaking as to damages (the giving of which by its solicitor being noted) and Considering that, having had regard to the matters contained in the affidavit of Katie Elaine Bourne sworn 6 June 2019, there are reasonable grounds for the suspicions stated therein The Court orders: 1. Pursuant to section 10A of the Criminal Assets Recovery Act 1990 no person (other than any registered mortgagee dealing with its right to do so under the registered mortgage) is to dispose of, or attempt to dispose of, or otherwise deal with or attempt to otherwise deal with any interest in property (within the meaning of “interest in property” as defined in section 7 of the Criminal Assets Recovery Act 1990) of Van Dien Hoang, including the interests in property in the property specified in Schedules One and Three hereto. 2. Pursuant to section 10A of the Criminal Assets Recovery Act 1990 no person (other than any registered mortgagee dealing with its right to do so under the registered mortgage) is to dispose of, or attempt to dispose of, or otherwise deal with or attempt to otherwise deal with any interest in property (within the meaning of “interest in property” as defined in section 7 of the Criminal Assets Recovery Act 1990) of Hong Dung Nguyen, including the interests in property in the property specified in Schedules Two and Three hereto. 3. Pursuant to section 12(1)(b)(i) and 12(1)(b1) of the Criminal Assets Recovery Act 1990 Van Dien Hoang shall be examined on oath before a Registrar of the Court concerning the affairs of Van Dien Hoang, including the nature and location of any property in which Van Dien Hoang or Hong Dung Nguyen has an interest. 4. Pursuant to section 12(1)(b)(i) and 12(1)(b1) of the Criminal Assets Recovery Act 1990 Hong Dung Nguyen shall be examined on oath before a Registrar of the Court concerning the affairs of Hong Dung Nguyen, including the nature and location of any property in which Hong Dung Nguyen or Van Dien Hoang has an interest. 5. Leave is granted to the Plaintiff to obtain from the Registry dates for the examinations ordered in Orders 3 and 4 above. 6. Pursuant to section 12(1)(e) of the Criminal Assets Recovery Act 1990 Members of the New South Wales Police Force are authorised to seize and take possession of the property specified in Item 1 of Schedule Two hereto. 7. Pursuant to section 10B(2) of the Criminal Assets Recovery Act 1990 the New South Wales Trustee and Guardian shall take control of all the interests of Hong Dung Nguyen in the property specified in Item 1 of Schedule Two hereto and Schedule Three hereto. 8. Pursuant to section 10B(2) of the Criminal Assets Recovery Act 1990 the New South Wales Trustee and Guardian shall take control of all the interest of Van Dien Hoang in the property specified in Schedule Three hereto. 9. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Hong Dung Nguyen shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Hong Dung Nguyen, a statement verified by oath of Hong Dung Nguyen setting out the particulars sought in Schedule Four hereto. 10. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Van Dien Hoang shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Van Dien Hoang, a statement verified by oath of Van Dien Hoang setting out the particulars sought in Schedule Four hereto. 11. Liberty is granted to the Plaintiff, Hong Dung Nguyen and Van Dien Hoang to apply on three (3) days’ notice. 12. The costs of obtaining these orders shall be costs in the cause. 13. These proceedings be listed for mention before the Common Law Registrar at 9:00am on Monday, 9 September 2019. 14. Pursuant to Rule 36.4(1)(a) of the Uniform Civil Procedure Rules 2005 these orders are to take effect as of the date hereof. SCHEDULE ONE 1. The whole of the property described as Lot 141 in Deposited Plan 224165 at Moorebank, Local Government Area of Liverpool, Parish of Holsworthy, County of Cumberland, also known as 3 Selway Avenue, Moorebank, New South Wales 2170 and registered in the name of Van Dien Hoang as sole owner. 2. 2007 Nissan Elgrand motor vehicle with New South Wales registration number CE65GA and registered in the name of Van Dien Hoang. SCHEDULE TWO 1. 2018 Porsche Cayenne 3 motor vehicle with New South Wales registration number DZK92G and registered in the name of Hong Dung Nguyen. 2. 2005 Nissan Elgrand motor vehicle with New South Wales registration number CM92WM and registered in the name of Hong Dung Nguyen. SCHEDULE THREE Cash in the amount of approximately $500,000 seized by New South Wales Police on 13 December 2018 during the execution of a search warrant at the Star Casino, 80 Pyrmont St, Pyrmont, New South Wales 2009. SCHEDULE FOUR 1. Provide full particulars of the nature and extent of all your interests in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990), including in relation to each item of property: (a) a full description of your interest in the property, including the nature of that interest and, where possible, the estimated value, or in the case of bank accounts or deposits - the estimated balance, of that interest; (b) the location of the interest; (c) the name of the person or institution in whose custody title documents in respect of the interest are believed to be; (d) the approximate date of acquisition of the interest; (e) the source of funds used to acquire the interest. 2. Provide full particulars of your liabilities on both a capital and recurring basis, including, in relation to each liability: (a) a full description of the liability including the nature of that liability and the amount of that liability; (b) the name of the person or institution to which the liability is owed.
Catchwords:	CRIMINAL LAW – proceeds of crime – restraining orders
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Assets Recovery Act 1990 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	New South Wales Crime Commission (Plaintiff) Van Dien Hoang (First Defendant) Hong Dung Nguyen (Second Defendant)
Representation:	Counsel: P Donnelly – Ex parte (Plaintiff) Solicitors: Legal Unit, New South Wales Crime Commission (Plaintiff)
File Number(s):	2019/177154