New South Wales Crime Commission v Ngo

[2020] NSWSC 1521

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Ngo [2020] NSWSC 1521

Hearing dates:

10 June 2020

Date of orders:

10 June 2020

Decision date:

10 June 2020

Jurisdiction:

Common Law

Before:

Walton J

Decision:

In all the circumstances, I make the orders proposed as filed in court today.

Catchwords:

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – restraining order – ex parte – orders made

Legislation Cited:

Criminal Assets Recovery Act 1990 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Category:

Principal judgment

Parties:

New South Wales Crime Commission (Plaintiff)
Nien Ngo (Defendant)

Representation:

Solicitors:
New South Wales Crime Commission (Plaintiff)

File Number(s):

2020/172084

extempore Judgment

1. HIS HONOUR: The summons before the Court seeks that the Court partially deals with an application under the Criminal Assets Recovery Act 1990 (NSW) (“the Act”) and that the proceedings come before the Court instanter.

2. The application is an application pursuant to s 10A of that Act whereby the NSW Crime Commission applies for a restraining order in respect of all interests in property of Nien Ngo.

3. Having regard to the contents of the affidavit of Mr Jonathan Lee Spark sworn 9 June 2020, which was read in the proceedings today, I consider that this is an appropriate matter to be heard and determined ex parte.

4. The affidavit of Mr Spark establishes that he is an authorised officer for the purposes of the Act and that he holds suspicions that Mr Ngo has engaged in a serious crime related activity, namely, supply prohibited drug (heroin) not less than commercial quantity, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“the DMT Act”), being an offence falling within the definition of "serious criminal offence" pursuant to section 6(2)(b) of the Act.

5. Mr Spark gives grounds for his suspicions. The facts and circumstances upon which he relies are set out in his affidavit. He has had regard in that respect and accepts a police facts statement that describes the suspected serious criminal activity with respect to which Mr Bourne suspects that Mr Ngo has been engaged.

6. In my view, having regard to the contents of the affidavit of Mr Spark and the police facts sheet, there are reasonable grounds for Mr Spark’s suspicion that Mr Ngo has engaged in serious crime-related activity.

7. I note further that the Commission by its summons also seeks in respect to Mr Ngo an assets forfeiture order pursuant to s 22 of the Act and a proceeds assessment order and an unexplained wealth order pursuant to ss 27 and 28A, respectively. The facts and circumstances underpinning those orders are set out in paras 6 and 7 of the facts statement.

8. 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 his belief by the evidence deposed in his affidavit, which set out the circumstances in which the aforementioned seized cash was seized by members of the NSW police. He also noted, the seized cash is presently being held by the police.

9. On the evidence before the Court, the Commission has established that a restraining order should be made under ss 10A and 10B, and ancillary orders be made under s 12 of the Act. I note that the Commission also seeks assets forfeiture, proceeds assessment and unexplained wealth orders under Pt 3 of the Act but that is not presently pressed today.

10. In all the circumstances, I make the orders proposed as filed in Court today.

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Decision last updated: 30 October 2020