New South Wales Crime Commission v Tan

[2017] NSWSC 15

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Tan [2017] NSWSC 15

Hearing dates:

27 January 2017

Date of orders:

27 January 2017

Decision date:

27 January 2017

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 Katie Elaine Bourne sworn 18 January 2017, 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 Chun Kit Tan, including the interest in property in the property specified in Schedule One hereto.

 

2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Chun Kit Tan 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 Chun Kit Tan in the property specified in Schedule One hereto.

 

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

 

6. Liberty is granted to the Plaintiff and Chun Kit Tan to apply on three (3) days’ notice.

 

7. The balance of the summons be listed for mention before the Common Law Duty Registrar at 9am, on Monday 3 April 2017.

 

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

 

1. Cash in the amount of approximately $450,000 seized by police on 16 December 2016 from a blue backpack carried by Chun Kit Tan.

 

2. Cash in the amount of approximately $50,000 seized by police on 16 December 2016 from vehicle Z5899Z.

 

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 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.

 Orders to be entered forthwith.

Catchwords:

CRIMINAL LAW – proceeds of crime – restraining orders

Legislation Cited:

Crimes Act 1900 (NSW)
Criminal Assets Recovery Act 1990 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural and other rulings

Parties:

New South Wales Crime Commission

Representation:

Counsel:
S Vorreiter – Ex parte (Plaintiff)

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

File Number(s):

2017/27385

Judgment

1. The Plaintiff seeks a restraining order under s 10A of the Criminal Assets Recovery Act 1990 (NSW) pending the making of an unexplained wealth order under s 28A of that Act. The summons is supported by an affidavit of Katie Elaine Bourne sworn 18 January 2017. She is an authorised officer of the Plaintiff.

2. 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. Ms Bourne deposes to a suspicion and belief that the Defendant has engaged in a serious crime related activity, being the offence of dealing with property suspected of being the proceeds of crime contrary to s 193C(1) of the Crimes Act 1900 (NSW) involving money laundering. That offence is a serious criminal offence as defined in s 6(2)(b) of the Criminal Assets Recovery Act.

4. Ms Bourne principally bases her suspicion on a reading of the facts sheet prepared by the NSW police after the arrest of the Defendant and a co-accused. Ms Bourne sent an email to the officer she believed who prepared the facts sheet asking him if he had done so, if the contents of the facts sheet were true to the best of his knowledge and belief, and if the facts sheet was prepared on information obtained by the police as a result of the investigation described in the facts sheet. She received affirmative answers to those questions.

5. I have read the facts sheet and I am satisfied that the suspicion held by Ms Bourne that the offence has been committed is reasonably held.

6. The Plaintiff asks that orders be made without prior notice to the Defendant. That is based on paragraph 7 of Ms Bourne's affidavit. Ms Bourne deposes to the fact that she is aware that in the absence of a restraining order it is possible for people to enter into an unregistered mortgage in relation to real estate very quickly, to dispose of funds held in bank accounts very quickly and dispose of motor vehicles or backdate forms notifying the RMS of the disposal of the motor vehicle.

7. 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.

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Decision last updated: 31 January 2017