New South Wales Crime Commission v Pham

[2024] NSWSC 110

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Pham [2024] NSWSC 110

Hearing dates:

14 February 2024

Date of orders:

14 February 2024

Decision date:

14 February 2024

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 Jiansong Wen affirmed 13 February 2024, there are reasonable grounds for the suspicion 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 Quy Pham (also known as Quy Van Pham), including the interest in property in the property specified in Schedule One and Schedule Two hereto.

2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Van Quy Pham (also known as Quy Van Pham) 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 Van Quy Pham (also known as Quy Van Pham) in the property specified in Schedule Two hereto.

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

6. Liberty is granted to the Plaintiff and Van Quy Pham (also known as Quy Van Pham) to apply on three (3) days’ notice.

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

8. These proceedings be listed for mention before the Common Law Registrar at 9:00am on 13 May 2024.

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. The whole property described as Lot 2 in Deposited Plan 1053944 at Canley Vale, Local Government Area Fairfield, Parish of St Luke, County of Cumberland, also known as 83A Beckenham Street, Canley Vale NSW 2166 and held in the name of Van Quy Pham as sole owner.

2. The whole property described as Lot 2 in Strata Plan 12928 at Cabramatta, Local Government Area Fairfield, also known as 2/75 Hughes Street, Cabramatta NSW 2166 and registered in the name of Van Quy Pham as sole owner.

SCHEDULE TWO

1. Cash in the approximate amount of $6,485 seized by members of the New South Wales Police Force during the execution of a search warrant at 83A Beckenham Street, Canley Vale NSW 2166 on 10 August 2023.

2. Large gold bracelet weighing approximately 174 grams seized by members of the New South Wales Police Force during the execution of a search warrant at 83A Beckenham Street, Canley Vale NSW 2166 on 10 August 2023.

SCHEDULE THREE

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:

Criminal Assets Recovery Act 1990 (NSW) ss 4, 6, 10A, 10B, 10C, 22, 27, 28A

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Van Quy Pham (also known as Quy Van Pham) (Defendant)

Representation:

Counsel:
S Askew - Ex parte (Plaintiff)

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

File Number(s):

2024/57808

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 forfeiture orders pursuant to s 22 of the Act, proceeds assessment orders pursuant to s 27, and unexplained wealth orders pursuant to s 28A.

2. The summons is supported by an affidavit of Jiansong Wen sworn 13 February 2024. Mr Wen is an authorised officer of the plaintiff as defined in s 4(1) of the Act.

3. 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 that there are reasonable grounds for the suspicion.

4. Mr Wen deposes to having a suspicion that the defendant has engaged in serious crime related activity, namely, supplying an indictable quantity of a prohibited drug being cannabis leaf. That is a drug trafficking offence for the purposes of s 6(2) of the Criminal Assets Recovery Act, and is a serious criminal offence pursuant to the definition in that subsection.

5. Mr Wen deposes to having the suspicion as a result of having received a facts sheet from the NSW Police Force and from information supplied to him in response to inquiries made by him to Senior Constable Matthew Huang. Senior Constable Huang informed Mr Wen that the author of the facts sheet was Senior Constable Pietersma, and to the best of Constable Huang's knowledge, the contents of the facts were true based on information obtained by the police throughout the investigation. Senior Constable Huang also noted that Mr Pham was to be sentenced for the offence on 13 December 2023.

6. I have read the facts sheet annexed to Mr Wen's affidavit, and I am satisfied that Mr Wen's suspicion in relation to the commission of serious crime related activity is reasonably held. Mr Wen also deposes to searches having been carried out by him and other members of the plaintiff to ascertain the ownership of real and personal property of the defendant.

7. The plaintiff asks that the orders sought today be made without prior notice to the defendant, and does so on the basis of Mr Wen's knowledge about the way property may be disposed of at short notice. I am satisfied in the circumstances that it is appropriate that orders should be made without prior notice to the defendant. The defendant has his rights under s 10C of the Act to review those orders.

8. The plaintiff also seeks that the personal property seized at the execution of a search warrant at the defendant's premises, namely, a large gold bracelet and cash in the amount of $6,485 be forwarded to the NSW Trustee and Guardian for him to take control of those items of personal property. That is because the cash will earn interest when invested by the NSW Trustee and Guardian, and the plaintiff is not in a position to store other valuable personal property. In my opinion, it is appropriate that an ancillary order pursuant to s 10B(2) of the Act should be made in that regard.

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Decision last updated: 15 February 2024