New South Wales Crime Commission v Phan

[2022] NSWSC 1047

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Phan [2022] NSWSC 1047

Hearing dates:

5 August 2022

Date of orders:

5 August 2022

Decision date:

05 August 2022

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 Ryan Bull sworn [Date], 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 Martin Phan, including the interest in property in the property specified in Schedule One hereto and Schedule Two hereto.

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

4. Pursuant to section 12(1)(b1) of the Criminal Assets Recovery Act 1990 Maria Van Anh Bui shall be examined on oath before a Registrar of the Court concerning the affairs of Maria Van Anh Bui, including the nature and location of any property in which Maria Van Anh Bui or Martin Phan has an interest.

5.   Leave is granted to the Plaintiff to obtain from the Registry dates for the examinations ordered in Orders 2, 3 and 4 above.

7. 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 Martin Phan in the property specified in Schedule One hereto and Schedule Two hereto.

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

9.   Liberty is granted to the Plaintiff and Martin Phan to apply on three (3) days’ notice.

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

11.   These proceedings be listed for mention before the Common Law Registrar at 9:00am on Monday 7 November 2022.

12. 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 approximate amount of $100,950 seized by members of the New South Wales Police Force during the execution of a search warrant at 46/512 Burwood Road, Belmore NSW on 15 April 2020.

2.   Richard Mile brand watch seized by members of the New South Wales Police Force during the execution of a search warrant at 46/512 Burwood Road, Belmore NSW on 15 April 2020.

3.   Five (5) Rolex branded watches seized by members of the New South Wales Police Force during the execution of a search warrant at 46/512 Burwood Road, Belmore NSW on 15 April 2020.

4.   One (1) Audemars Piguet watch seized by members of the New South Wales Police Force during the execution of a search warrant at 46/512 Burwood Road, Belmore NSW on 15 April 2020.

SCHEDULE TWO

1.   Cash in the approximate amount of $21,000 seized by members of the New South Wales Police Force during the execution of a search warrant at 46/512 Burwood Road, Belmore NSW on 15 April 2020.

2.   Cash in the approximate amount of $60,000 seized by members of the New South Wales Police Force during the execution of a search warrant at 46/512 Burwood Road, Belmore NSW on 15 April 2020.

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:

Crimes Act 1990 (NSW) s 193C

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

Evidence Act 1995 (NSW) s 177

Uniform Civil Procedure Rules 2005 (NSW) r 36.4

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Martin Phan (Defendant)

Representation:

Counsel:
M Tam - Ex parte (Plaintiff)

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

File Number(s):

2022/230843

Publication restriction:

Nil

Judgment

1. The plaintiff seeks a restraining order under s 10A of the Criminal Assets Recovery Act 1990 (NSW) (the Act) pending the making of a forfeiture order under s 22 of the Act, and/or a proceeds assessment order under s 27 of the Act, and/or an unexplained wealth order under s 28A of the Act.

2. The summons is supported by an affidavit of Ryan James Bull sworn 3 August 2022. Mr Bull is an authorised officer of the plaintiff within the meaning of s 4(1) of the Act. 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 there are reasonable grounds for the suspicion.

3. Mr Bull deposes to having a suspicion and belief that the defendant has engaged in serious crime related activity, being the dealing with property suspected of being proceeds of crime, contrary to s 193C(1) of the Crimes Act 1900 (NSW), being an offence punishable by imprisonment for five years involving money laundering. The offence in those circumstances is a serious criminal offence, pursuant to s 6(2)(d) of the Act.

4. Mr Bull bases his suspicion principally on reading the fact sheet, an expert certificate under s 177 of the Evidence Act 1995 (NSW) in relation to the valuation of property specified in schedule 2 to the summons, and other financial documents inspected by him.

5. The suspicion is also based on the answers Mr Bull received to questions he asked of Detective Senior Constable Tim Jones of the New South Wales Police force. Mr Bull asked SC Jones if he was the officer who had drafted the fact sheet, or if he was aware of the contents of that fact sheet, if to the best of the officer's knowledge and belief the contents of the fact sheet were true, and if the fact sheet was prepared based on information obtained by police as a result of the investigation described in the fact sheet. SC Jones replied in the affirmative to all of those questions. He also informed Mr Bull that the defendant had been charged with a number of offences of dealing with property the proceeds of crime where the value of the property was more than $100,000.

6. I have read the fact sheet and all of the other documents, including the expert certificate and the financial documents referred to by Mr Bull. I am satisfied that the suspicion held by Mr Bull is a reasonably held suspicion.

7. The plaintiff asks that the orders be made today without prior notice to the defendant. That request is based on what is set out in paragraph 8 of Mr Bull's affidavit, namely, Mr Bull's experience and awareness that in the absence of a restraining order it is possible for people to attempt to deal with interests in property very quickly, thereby attempting to defeat the operation of the Act. In the circumstances I am satisfied 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 these orders.

8. The plaintiff also seeks orders that the defendant and another person, Maria van Anh Bui, be examined on oath before a registrar of the Court in relation to the affairs of the defendant. I consider it appropriate that such an order should be made.

9. The plaintiff also seeks an ancillary order that the New South Wales Trustee and Guardian should take control of the property specified in schedules 1 and 2 of the summons, being the cash seized by the police and a number of watches. I consider it also appropriate that such ancillary orders should be made.

10. I note the usual undertaking as to damages given on behalf of the plaintiff. I make orders in terms of paragraphs 1, 2, 3, 4, 7, 8, 10 and 12 of the draft order. I grant the leave and liberty in paragraphs 5 and 9.

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Decision last updated: 05 August 2022