New South Wales Crime Commission v Sie Chun Chan

[2015] NSWSC 7

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Sie Chun Chan [2015] NSWSC 7

Hearing dates:

22 January 2015

Date of orders:

22 January 2015

Decision date:

22 January 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 19 January 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 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 Sie Chun Chan (also known as Sie Chun Anthony Chan), including his interest in the property specified in Schedule One hereto.
2.Pursuant to subparagraph 12 (1) (b) (i) of the Criminal Assets Recovery Act 1990 Sie Chun Chan (also known as Sie Chun Anthony Chan) 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 paragraph 12 (1) (e) of the Criminal Assets Recovery Act 1990 officers of the New South Wales Police Force are authorised to seize and take possession of the property specified in Schedule One hereto.
5.Pursuant to subsection 10B (2) of the Criminal Assets Recovery Act 1990 the New South Wales Trustee and Guardian shall take control of all the interest of Sie Chun Chan (also known as Sie Chun Anthony Chan) in the property specified in Schedule One hereto.
6.Pursuant to paragraph 12 (1) (d) of the Criminal Assets Recovery Act 1990 Sie Chun Chan (also known as Sie Chun Anthony Chan) shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Sie Chun Chan (also known as Sie Chun Anthony Chan), a statement verified by oath or affirmation of Sie Chun Chan (also known as Sie Chun Anthony Chan) setting out the particulars sought in Schedule Two hereto.
7.Liberty is granted to the Plaintiff and Sie Chun Chan (also known as Sie Chun Anthony Chan) to apply on three (3) days' notice.
8.The costs of obtaining these orders shall be costs in the cause.
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

2012 Nissan R35 GTR sedan with registration number SEEYOU and registered in the name of Sie Chun Anthony Chan.

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 (Plaintiff)
Sie Chun Chan (also known as Sie Chun Anthony Chan (Defendant)

Representation:

Counsel:
E Goh (Plaintiff)
No appearance (Defendant)

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

File Number(s):

2015/21167

Judgment

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

2. The application is supported by an affidavit of Jonathan Lee Spark sworn 19 January 2015. In that affidavit Mr Spark, who is an authorised officer as defined in s 4(1) of the Act, deposes to his suspicion that the defendant has engaged in serious crime-related activity, being the supply of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). That offence is a serious criminal offence as defined in s 6(2)(b) of the Criminal Assets Recovery Act.

3. The grounds upon which Mr Spark holds his suspicion are set out in para 5 of his affidavit. Mr Spark says that he has read a fact sheet apparently prepared by an officer of the New South Wales Police. He forwarded an email to the police officer concerned to ask him if he had prepared the fact sheet, whether the material contained in it was to the best of his knowledge and belief true, and if it was prepared based on information obtained by the police as a result of the investigation described in the fact sheet. He received affirmative answers to those questions.

4. Other evidence discloses the ownership by the defendant of the property described, namely, the motor vehicle.

5. Mr Spark also annexed evidence that demonstrates that the defendant has been charged with the offence referred to, in addition to some other offences associated with the same matter.

6. Section 10(5) requires an order to be made if the Court is satisfied that there are reasonable grounds for Mr Spark's suspicion. I have read the fact sheet and the other documents annexed to his affidavit and I am satisfied that Mr Spark's suspicion is reasonably held.

7. I am further satisfied, as s 10A(3) requires, that the defendant is domiciled in New South Wales and that the property in respect of which the restraining order is sought is situated in New South Wales.

8. Section 10A(4) enables notice to be given to the defendant before the order is made if the Court thinks fit. Mr Spark gives evidence in his affidavit of his awareness of how easy it is for people to attempt to dispose of motor vehicles in an attempt to defeat the operation of the Act. I am satisfied that Mr Spark has the necessary knowledge and experience to express that opinion and I do not consider, in the light of that evidence, that the defendant should be given notice of this application before the order is made. The defendant has his rights under s 10C of the Act.

9. Leave to file in court the summons, the affidavit of Jonathan Lee Spark sworn 19 January 2015, together with the statement of facts and circumstances.

10. I note the usual undertaking as to damages is given by the solicitor for the plaintiff.

11. I make orders in terms of paragraphs 1, 2, 4, 5, 6, 8 and 9 of the draft order.

12. I grant the leave and liberty in paragraphs 3 and 7.

13. These orders may be entered forthwith.

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Decision last updated: 17 February 2015