New South Wales Crime Commission v Phung

[2023] NSWSC 1440

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Phung [2023] NSWSC 1440

Hearing dates:

24 November 2023

Date of orders:

24 November 2023

Decision date:

24 November 2023

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 Mr Jiansong Wen sworn 24 November 2023 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 Laura Phung, 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 Laura Phung 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 examinations 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 Laura Phung in the property specified in Schedule Two hereto.

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

6. Liberty is granted to the Plaintiff and Laura Phung 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 26 February 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. Funds in National Australia Bank Limited account number 574432849 held in the Name of Laura Kim Ngan Ngoc Phung.

2. Funds in National Australia Bank Limited account number 299062176 held in the name of Laura Kim Ngan Ngoc Phung.

3. Funds in National Australia Bank Limited account number 299158768 held in the name of Laura Kim Ngan Ngoc Phung.

SCHEDULE TWO

Cash in the approximate amount of $33,340 seized by members of the New South Wales Police Force during the execution of a search warrant at 1811/8 Kingsborough Way, Zetland NSW, being the residence of Laura Phung.

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)

Drug Misuse and Trafficking Act 1985 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Laura Phung (Defendant)

Representation:

Counsel:
G Akle - Ex parte (Plaintiff)

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

File Number(s):

2023/426194

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 a forfeiture order under s 22 of the Act, a proceeds assessment order under s 27 of the Act, and an unexplained wealth order pursuant to s 28A of the Act. The summons is supported by an affidavit of Jiansong Wen sworn 24 November 2023.

2. Mr Wen is an authorised officer of the plaintiff as defined in 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 suspicion referred to therein is based, and the Court considers that there are reasonable grounds for the suspicion.

3. Mr Wen deposes to having the suspicion and belief that the defendant has engaged in serious crime related activity, namely,

(a) supplying prohibited drugs on an ongoing basis contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW); that offence is a serious criminal offence falling within s 6(2)(b) of the Criminal Assets Recovery Act, and

(b) supplying a prohibited drug in not less than the commercial quantity contrary to s 25(1) of the Drug Misuse and Trafficking Act; that offence also amounts to a serious criminal offence within s 6(2)(b) of the Criminal Assets Recovery Act.

4. Mr Wen bases his suspicion principally on reading a facts sheet prepared by police involved in the investigation of the defendant. Mr Wen sent an email to Detective Sergeant Mark Carter who Mr Wen understood was the officer in charge of the investigation into the defendant.

5. Mr Wen asked Sergeant Carter if he was the officer that had drafted the facts sheet or if he was aware of the contents of the facts sheet, whether to the best of Sergeant Carter's knowledge and belief the contents of the facts sheet were true, and if the facts sheet was prepared based on information obtained by the police as a result of the investigation described in the facts sheet. Sergeant Carter responded in the affirmative to each of those questions.

6. I have read the facts sheet attached to Mr Wen's affidavit, and I am satisfied that the suspicion held by Mr Wen that the defendant has engaged in serious crime related activity is reasonably held.

7. The plaintiff asks that the orders be made without prior notice to the defendant, and does so on the basis of Mr Wen's knowledge and experience in his employment with the plaintiff. Mr Wen gives evidence that in the absence of a restraining order, it is possible for people to attempt to dispose of funds held in bank accounts very quickly, thereby attempting to defeat the operation of the Act.

8. I am satisfied in the circumstances that it is appropriate that orders should be made without prior notice to the defendant. The defendant has her rights under s 10C of the Act to review those orders.

9. The plaintiff also seeks an order pursuant to s 10B(2) of the Act that the NSW Trustee and Guardian should take control of the defendant's interest in the property specified in sch 2 to the summons. Given that that property consists of cash seized during the execution of a search warrant, I consider it is appropriate that the NSW Trustee and Guardian should take control of that property.

10. On the plaintiff, through its solicitor, giving the usual undertaking as to damages, I make the orders in paras 1, 2, 4, 5, 7 and 9 of the draft order signed by me and dated today. I grant the leave and liberty in paras 3 and 6 of the order. The proceedings are listed for mention before the Common Law registrar at 9am on 26 February 2024.

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Decision last updated: 27 November 2023