New South Wales Crime Commission v Ke

[2018] NSWSC 2054

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Ke [2018] NSWSC 2054

Hearing dates:

12 September 2018

Date of orders:

12 September 2018

Decision date:

12 September 2018

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1) Pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW) 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 s 7 of the Act) of Lie Ke (also known as Ivy Ke), including the interest in property in the property specified in Schedule One and Schedule Two.

 

(2)   Pursuant to s 12(1)(b)(i) of the Act Lie Ke (also known as Ivy Ke) shall be examined on oath before a Registrar of the Court concerning her affairs, including the nature and location of any property in which she 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 s 10B(2) of the Act the New South Wales Trustee and Guardian shall take control of all the interest of Lie Ke (also known as Ivy Ke) in the property specified in Schedule Two.

 

(5)   Pursuant to s 12(1)(c1) of the Act Lie Ke (also known as Ivy Ke) shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Lie Ke (also known as Ivy Ke), a statement verified by oath of Lie Ke (also known as Ivy Ke) setting out the particulars sought in Schedule Three.

 

(6)   Liberty is granted to the Plaintiff and Lie Ke (also known as Ivy Ke) to apply on three (3) days’ notice.

 

(7)   The balance of the Summons filed in these proceedings be listed for Mention before the Common Law Duty Registrar at 9am on 4 February 2019.

 

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

 (9)   Pursuant to Rule 36.4(1)(a) of the Act these orders are to take effect as of the date hereof.

Catchwords:

CRIMINAL ASSETS – restraining orders sought and ancillary orders for examination – reasonable suspicion – orders granted

Legislation Cited:

Criminal Assets Recovery Act 1990 (NSW)
Crimes Act 1900 (NSW), ss 93T, 193B

Category:

Procedural and other rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Lie Ke (Aka Ivy Ke) (Defendant)

Representation:

Solicitors:
S Santhikumar (Plaintiff)
Ex Parte (Defendant)

File Number(s):

2018/280283

EX TEMPORE Judgment

1. HIS HONOUR: Before the Court is an application for orders under the Criminal Assets Recovery Act 1990 (NSW) (hereinafter “the Act”). The applicant is the New South Wales Crime Commission (hereinafter “the Commission), which moves on a Summons filed today and applies for a restraining order in respect of all of the interest in property of the Lie Ke also known as Ivy Ke (hereinafter “the defendant”).

2. For the purposes of this application for a restraining order, the Commission relies upon the Affidavit sworn in support of this application on 12 September 2018 by Katie Elaine Bourne. That Affidavit establishes that Ms Bourne is an authorised officer for the purposes of the Act and that she suspects the defendant of having engaged in serious criminal related activity, namely knowingly direct activities of a criminal group contrary to s 93T of the Crimes Act 1900 (NSW); participate in a criminal group contributing to criminal activity contrary to s 93T of the Crimes Act; and recklessly dealing with the proceeds of crime contrary to s 193B of the Crimes Act (hereinafter called collectively “the offences”). The Affidavit also gives the grounds for Ms Bourne’s said suspicions.

3. The facts and circumstances on which the Commission relies in its application for a restraining order are:

1. Ms Bourne suspects the defendant of having engaged in serious crime related activity (namely the offences).

2. Ms Bourne has been provided with and accepts a police facts sheet that describes the suspected serious criminal activity in which Ms Bourne suspects the defendant to have engaged.

3. Ms Bourne has ascertained that the defendant has been charged with the offences described in the facts sheet which include the offences earlier described.

4. There are reasonable grounds for Ms Bourne’s suspicion that the defendant has engaged in serious crime related activity (namely the offences).

4. The Commission, by its Summons, is also seeking in respect of the defendant an assets forfeiture order pursuant to s 22 of the Act and an unexplained wealth order pursuant to s 28A of the Act, although neither of those orders is sought today. Nevertheless it is necessary for the purpose of these proceedings to set out the facts and circumstances upon which the Commission will rely in seeking the said orders under ss 22 and 28A of the Act.

5. The Commission relies, in support of the assets forfeiture order, on the facts and circumstances described in the facts sheet that the property described in Schedule Two to the Summons (“the seized cash”) is an interest in property of the defendant and the defendant has engaged in serious crime related activity (namely the offences) and/or an available inference relating to serious crime use of the property, because the seized cash is an interest in property of the defendant who has engaged in a serious crime related activity, namely, the offences. The defendant’s activities resulted in the seized cash becoming serious crime use property and the seized cash is serious crime use property because it was used in or in connection with serious crime related activities, namely the offences.

6. In respect of the unexplained wealth order, notwithstanding that it is not sought today, the facts and circumstances relied upon are as described in the facts sheet; the results of a pending investigation by the Commission, including the financial analysis of the affairs of the defendant; the evidence obtained pursuant to any examination of the defendant pursuant to s 12 of the Act, which orders will be made today; and the evidence obtained as a result of any statement of affairs provided by the defendant pursuant to orders under s 12 of the Act.

7. In all of the circumstances, and having read the facts sheet and the summary of evidence upon which the facts sheet relates, I, too, am satisfied that there are reasonable grounds for Ms Bourne’s suspicion that the defendant has engaged in serious crime related activity and the other matters to which the Commission refers and upon which they rely.

8. In those circumstances, and subject to the handwritten amendment to the title of the defendant, the Court will make the orders handed up, dated and signed by me.

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Decision last updated: 09 April 2019