New South Wales Crime Commission v Nghiem

[2016] NSWSC 663

Supreme Court

New South Wales

Medium Neutral Citation:	New South Wales Crime Commission v Nghiem [2016] NSWSC 663
Hearing dates:	On the papers
Date of orders:	04 May 2016
Decision date:	24 May 2016
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	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 Tien Cuong Nghiem, including the interest in property in the property specified in Schedule One hereto but excluding the interest in property in the property specified in Schedule Two hereto. 2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Tien Cuong Nghiem 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 12(1)(c1) of the Criminal Assets Recovery Act 1990 Tien Cuong Nghiem shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Tien Cuong Nghiem, a statement verified by oath of Tien Cuong Nghiem setting out the particulars sought in Schedule Three hereto. 5. Liberty is granted to the Plaintiff and Tien Cuong Nghiem to apply on three (3) days' notice. 6. The costs of obtaining these orders shall be costs in the cause. 7. 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.
Catchwords:	PROCEDURE – civil – Criminal Assets Recovery Act 1990 – restraining order
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Assets Recovery Act 1900 (NSW) Drugs Misuse and Trafficking Act 1985 (NSW)
Category:	Procedural and other rulings
Parties:	NSW Crime Commission (Plaintiff) Tien Cuong Nghiem (Defendant)
Representation:	Ms E Goh (NSW Crime Commission) Ex parte
File Number(s):	2016/ 136798
Publication restriction:	None

Judgment

1. By summons filed in the Registry of the Supreme Court of NSW on 4 May 2016 the NSW Crime Commission, the plaintiff, seeks orders pursuant to s 10A of the Criminal Assets Recovery Act 1900 (NSW) (“the Act”) against the defendant, Tien Cuong Nghiem. The orders sought are for a restraining order in respect of any interests in property of the defendant, including property set out in Schedule One, but excluding the property outlined in Schedule Two of the Summons.

2. Section 10A of the Act provides for applications of this nature to be heard ex parte, and this application proceeded on that basis.

3. In support of the application for a restraining order, the plaintiff relies upon the affidavit of Jonathan Lee Spark, filed 4 May 2016. Mr Spark is employed by the plaintiff as a Director of Financial Investigations and his affidavit sets out that he is an authorised officer as defined in s 4(1) of the Act. He is a person authorised in writing by the plaintiff generally to act as an authorised officer for the purposes of s 10A and Part 4 of the Act.

4. As a result of his employment with the plaintiff, Mr Spark has had access to records held by the New South Wales Police Force on its Computerised Operational Policing System, and records held by Land and Property Information New South Wales, being a unit of the Department of Finance, Services and Innovation. He has also seen, on a number of occasions, records held by the New South Wales Roads and Maritime Services and is familiar with the nature and appearance of such information.

5. Mr Spark suspects that the defendant has engaged in the following serious crime related activities as defined in s 6(1) of the Act, being acts which are offences falling within the definition of “serious criminal offence”, pursuant to s 6(2)(b) and 6(2)(d) of the Act:

1. Cultivate by enhanced indoor means prohibited plants (cannabis), contrary to s 23(1A) of the Drugs Misuse and Trafficking Act 1985 (NSW) (“DMTA”); and

2. Knowingly take part in the cultivation of prohibited plants (cannabis) which was not less than the commercial quantity applicable to the prohibited plant, contrary to s 23(2)(a) of the DMTA.

3. Recklessly deal with the proceeds of crime (in excess of $200,000), contrary to s 193B(3) of the Crimes Act 1900 (NSW) being an offence punishable by imprisonment for 5 years or more and involving money laundering.

6. Mr Sparks relies upon a police Fact Sheet which outlines the suspected serious criminal activity outlined above. The defendant was charged with the offences specified in the Fact Sheet on 23 March 2016.

7. The Fact Sheet outlines that in February 2016 the State Crime Command Drug Squad established a strike force to investigate the cultivation of cannabis. During the course of the investigation, a number of premises were identified as of interest to the police. The premises included addresses in Baulkham Hills, West Pennant Hills and two addresses in Greenacre. Police conducted physical surveillance of the premises and observed the defendant attending the addresses in Baulkham Hills and West Pennant Hills

8. Search warrants were executed on both of the premises which the defendant was seen attending in March 2016. Both premises were secured and an elaborate indoor hydroponic cannabis cultivation was found to be active in several rooms at each location. It was later detected that the mains electricity supply for both premises had been illegally bypassed to support the cultivation systems. At one address, 89 cannabis plants were found, and at the other 85 cannabis plants were located.

9. The police have evidence to establish that the defendant is responsible for the care and supervision of the cannabis cultivations. The estimated street value of the plants seized is $525,000.

10. The defendant was arrested on 23 March 2016 after he arrived at one of the Greenacre addresses, and charged with the offences outlined above. Following his arrest, police executed two further search warrants on the Greenacre residences and sums of $200,000 AUD and $860,000 AUD were discovered. The police allege that the sums of money are proceeds from the cultivation of cannabis. The police have located documents in the name of the defendant linking him to the Baulkham Hills address.

11. Having considered the material tendered by the NSW Crime Commission, including the affidavit of Mr Spark, I am satisfied that there are reasonable grounds for the suspicion held by Mr Spark. In accordance with s 10A(5), I make the restraining order sought, and the further orders requested by the plaintiff.

ORDERS

1. Upon the Plaintiff giving the usual undertaking as to damages (the giving of which by its solicitor is noted) and considering that, having had regard to the matters contained in the affidavit of Jonathan Lee Spark sworn 3 May 2016, there are reasonable grounds for the suspicion stated therein the Court orders:

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 Tien Cuong Nghiem, including the interest in property in the property specified in Schedule One hereto but excluding the interest in property in the property specified in Schedule Two hereto.

3. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Tien Cuong Nghiem 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.

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

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

6. Liberty is granted to the Plaintiff and Tien Cuong Nghiem to apply on three (3) days' notice.

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

8. 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.

9. SCHEDULE ONE

10. The whole of the property described as Lot 6 in Deposited Plan 234673 located in the Hills Shire, Parish of Castle Hill, County of Cumberland also known as 455 Windsor Road, Baulkham Hills, New South Wales 2153 and registered in the name of Tien Cuong Nghiem.

11. 2002 Toyota K440 panel van with registration number AI62SK and registered in the name of Tien Cuong Nghiem.

12. SCHEDULE TWO

13. Cash in the amount of approximately $221,770 seized by the New South Wales Police Force on 23 March 2016 from 15 Bromlwy Avenue, Greenacre in New South Wales and 127 Hillcrest Avenue, Greenacre in New South Wales.

14. Two Rolex watches with receipts.

15. Numerous pieces of gold jewellery including bracelets, necklaces and fourteen rings.

16. SCHEDULE THREE

17. 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:

1. 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;

18. (b) the location of the interest;

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

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

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

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

23. (a) a full description of the liability including the nature of that liability and the amount of that liability;

24. (b) the name of the person or institution to which the liability is owed.

25. Provide full particulars of the source of the monies specified in Item 1 of Schedule Two herein.

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Decision last updated: 25 May 2016