New South Wales Crime Commission v Hung

[2018] NSWSC 955

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Hung [2018] NSWSC 955

Hearing dates:

22 June 2018

Date of orders:

22 June 2018

Decision date:

22 June 2018

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 20 June 2018, 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 Ka Hung Hung, including the interest in property in the property specified in Schedule One hereto.

 

2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Ka Hung Hung shall be examined on oath before a Registrar of the Court concerning his affairs, including the nature and location of any property in which he has an interest.

 

3.   Leave is granted to the Plaintiff to obtain from the Registry dates for the examination ordered in Order 2 above.

 

4. 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 Ka Hung Hung in the property specified in Schedule One hereto.

 

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

 

6.   The balance of the summons be listed for directions before the Common Law Registrar at 9.00am on Monday 17 September 2018.

 

7.   Liberty is granted to the Plaintiff and Ka Hung Hung to apply on three (3) days’ notice.

 

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

 

9. 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.   Cash in the amount of approximately $38,200 seized by police during the execution of a search warrant on premises at 303/425 Liverpool Road, Ashfield New South Wales 2131 on 28 May 2018.

 

2.   Cash in the amount of approximately $190,000 seized by police during the execution of a search warrant on premises at 303/425 Liverpool Road, Ashfield New South Wales 2131 on 28 May 2018.

 

3.   Cash in the amount of approximately $200,000 seized by police during a search oh vehicle with New South Wales registration CI31VA on 28 May 2018.

 

SCHEDULE TWO

 

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)
Drug Misuse and Trafficking Act 1985 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural and other rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Ka Hung Hung (Defendant)

Representation:

Counsel:
S Vorreiter – Ex parte (Plaintiff)

  Solicitors:
Legal Unit, New South Wales Crime Commission (Plaintiff)

File Number(s):

2018/193514

Publication restriction:

Nil

Judgment

1. The plaintiff seeks a restraining order under s 10A of the Criminal (Assets Recovery) Act 1990 (NSW) pending the making of an assessment in relation to an unexplained wealth order under s 28A of that Act.

2. Section 10A(5) of the Act says that the Court must make a restraining order if the application is supported by an affidavit of an authorised officer, stating that the officer suspects that the person whose interest in property is sought to be restrained, has engaged in serious crime related activity, stating the grounds on which the suspicion referred to therein is based, and the Court considers that there are reasonable grounds for the suspicion.

3. The application is supported by an affidavit of Katie Elaine Bourne sworn 20 June 2018. Ms Bourne, who is an authorised officer, deposes to a suspicion that the defendant has engaged in serious crime relates activity or activities, being the offences of dealing with property suspected as being the proceeds of crime contrary to s 193C(1) of the Crimes Act 1900 (NSW), and supplying not less than the commercial quantity of a prohibited drug namely methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). Both of these offences fall within the definition of serious criminal offence pursuant to para 6(2)(d) of the Criminal (Assets Recovery) Act.

4. Ms Bourne deposes to the fact that her suspicion is held principally by reading the facts sheet prepared by the police officer after the arrest of the defendant. Ms Bourne subsequently had a conversation with Detective Funnel who, she believed, had prepared the facts sheet. In that conversation Detective Funnel confirmed that he drafted the facts sheet, that it was true and correct based on the police investigation, and that the defendant had been arrested and that his charges were before the Court. Ms Bourne also deposed to having conducted a search of the COPs database and noted that on 28 May 2018 the defendant was charged with the offences set out in the facts sheet.

5. I have read the facts sheet and I am satisfied that Ms Bourne's suspicion that the offences have been committed is reasonably held.

6. The plaintiff seeks that the orders be made without prior notice to the defendant. It does so based on what Ms Bourne says in paragraph 7 of her affidavit that, through her experience with the plaintiff, she is aware that in the absence of a restraining order it is possible for people to attempt to dispose of property quickly in an attempt to defeat the operation of the Act. I am satisfied that the orders should be made without prior notice to the defendant. The defendant has rights under s 10A of the Act to seek a review of these orders.

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Decision last updated: 22 June 2018