New South Wales Crime Commission v Shen

[2015] NSWSC 947

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Shen [2015] NSWSC 947

Hearing dates:

15 July 2015

Date of orders:

15 July 2015

Decision date:

15 July 2015

Jurisdiction:

Common Law

Before:

Davies J

Decision:

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 15 July 2015 there are reasonable grounds for the suspicions stated therein

 

The Court orders:

 

1. Pursuant to section 10A of the Criminal Assets Recovery Act 1990, (except as provided in Orders 2, 3 and 4 below), 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 otherwise to 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 Li Ming Shen, including his interest in the property specified in Schedule One hereto (“the restraining order”).

 

2. Pursuant to subsection 12 (1) of the Criminal Assets Recovery Act 1990 the restraining order be varied to allow Li Ming Shen or any other person (“the vendor”) to deal with the interest of Li Ming Shen in the property specified in Schedule One hereto (“the Parramatta property”) for the purpose either of completing the sale of the Parramatta property or of selling the Parramatta property at a price agreed in writing by the Plaintiff (“the sale of the Parramatta property”).

 

3. Pursuant to subsection 12 (1) of the Criminal Assets Recovery Act 1990 the proceeds received from the sale of the Parramatta property may be applied to pay the following:

 

(a) the amount necessary to discharge any registered mortgage secured over the Parramatta property;

 

(b) reasonable legal and conveyancing costs on the sale of the Parramatta property;

 

(c) any reasonable agent’s commission on the sale of the Parramatta property;

 

(d) any reasonable fee payable to a registered valuer for a valuation of the Parramatta property;

 

(e) any rates or other adjustments or monies reasonably payable under any Agreement for Sale; and

 

(f) any other expenses incurred with the consent in writing of the Plaintiff, the giving of such consent to be in the absolute discretion of the Plaintiff.

 

4. Pursuant to subsection 10B (2) of the Criminal Assets Recovery Act 1990, the net proceeds of the sale of the Parramatta property (after the payment of monies mentioned in Prayer 3 above) shall be paid, by bank cheque, to the NSW Trustee and Guardian, to be held by it until further order.

 

5. Pursuant to subparagraph 12 (1) (b) (i) of the Criminal Assets Recovery Act 1990 Li Ming Shen 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.

 

6. Pursuant to paragraph 12 (1) (b1) of the Criminal Assets Recovery Act 1990 Yan Yuan shall be examined on oath before a Registrar of the Court concerning the affairs of Yan Yuan, including the nature and location of any property in which Yan Yuan or Li Ming Shen has an interest.
7. Leave is granted to the Plaintiff to obtain from the Registry dates for the examinations ordered in Orders 5 and 6 above.

 

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

 

9. Liberty is granted to the Plaintiff and Li Ming Shen to apply on three (3) days’ notice.

 

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

 

11. 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

 

The whole of the property described as Lot 1 in Strata plan 4749 at Parramatta, Local Government Area Parramatta, also known as Unit 1, 167 George Street, Parramatta, New South Wales and registered in the names of Li Ming Shen and Yan Yuan as joint tenants.

 

SCHEDULE TWO

 

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 date or approximate date of acquisition of the interest; and

 

(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 whom or to which the liability is owed.

 Orders to be entered forthwith

Catchwords:

CRIMINAL LAW – proceeds of crime – restraining orders

Legislation Cited:

Criminal Assets Recovery Act 1990 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW),

Category:

Procedural and other rulings

Parties:

New South Wales Crime Commission
Li Ming Shen (Defendant)

Representation:

Counsel:
R Katrib (Plaintiff)
No appearance (Defendant)

  Solicitors:
New South Wales Crime Commission (Plaintiff)
No appearance (Defendant)

File Number(s):

2015/207183

Judgment

1. This is an application for orders under the Criminal Assets Recovery Act 1990 (NSW). Section 10A enables an application to be made ex-parte for a restraining order which remains in force whilst there is an application under section 27 of the Act.

2. The application is supported by an affidavit of Jonathan Lee Spark sworn 15 July 2015. In that affidavit Mr Spark swears to his suspicion that the Defendant has engaged in a serious crime related activity or activities as defined in s 6 of the Act, namely taking part in the manufacture or production of a prohibited drug, being MDMA, contrary to s 24(1) of the Drug Misuse and Trafficking Act 1985 (NSW), and supply of a prohibited drug, being MDMA, contrary to s 25(2) of that Act. Both of those offences are serious criminal offences as defined in s 6(2)(b) of the Criminal Assets Recovery Act.

3. Mr Spark's suspicion is held on the basis of information contained in a facts sheet obtained by him from the investigating officer. Mr Spark deposes to the fact that he forwarded an email to that officer asking him if he drafted the facts sheet, if to the best of the officer's knowledge and belief the contents of the facts sheet were true, and if the facts sheet was prepared on information obtained by the police as a result of the investigation described in the facts sheet. The officer answered in the affirmative to all of those questions.

4. Having read the material contained in the facts sheet I am satisfied that Mr Spark's suspicion of the Defendant engaging in serious crime related activity is held on reasonable grounds.

5. I am also satisfied pursuant to s 10A(3) of the Act that the Defendant is domiciled in New South Wales and that the property sought to be restrained is in New South Wales.

6. Section 10A(4) of the Act enables notice to be given to the Defendant before the order is made if the Court thinks fit. Mr Spark gives evidence, based on his long experience in his position, of the manner and speed with which property can be disposed of or transferred. In those circumstances I do not consider it is necessary or appropriate that notice should be given to the Defendant before this order is made. In any event, the Defendant has the rights accorded to him for review under s 10C of the Act.

7. I note also that the Plaintiff claims an order under s 12 of the Act varying the interests in the property to which the restraining order relates. Such order is sought to permit the Defendant to sell the property but nevertheless for the net proceeds of sale after payment of the various amounts specified in paragraph 3 of the summons to be restrained.

8. I note the usual undertaking as to damages is given. Accordingly, I make orders in terms of paragraphs 1 to 6, 8, 10 and 11 of the draft order. I grant the leave in paragraph 7 and the liberty in paragraph 9 of that order.

**********

Decision last updated: 16 July 2015