New South Wales Crime Commission v Thi Le Quyen Nguyen

[2023] NSWSC 129

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Thi Le Quyen Nguyen [2023] NSWSC 129

Hearing dates:

22 February 2023

Date of orders:

22 February 2023

Decision date:

22 February 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 Jiansong Wen affirmed 22 February 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, except as provided in Orders 2, 3 and 4 below, (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 Thi Le Quyen Nguyen, including the interest in property in the property specified in Schedule One and Schedule Two hereto (“the restraining order”).

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

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

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

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

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

(d)   any fee payable to a registered valuer for a valuation of the Fifield 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 section 10B(2) of the Criminal Assets Recovery Act 1990, that the net proceeds of the sale of the Fifield property (after the payment of monies mentioned in Order 3 above) shall be paid to the NSW Trustee and Guardian by Bank Cheque or Electronic Funds Transfer to an account nominated by the Plaintiff, to be held by the NSW Trustee and Guardian until further order.

5. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Thi Le Quyen Nguyen 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.

6.   Leave is granted to the Plaintiff to obtain from the Registry dates for the examination ordered in Order 5 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 Thi Le Quyen Nguyen in the property specified in Schedule Two hereto.

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

9.   Liberty is granted to the Plaintiff and Thi Le Quyen Nguyen 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 29 May 2023.

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.   The whole of the property described as Lot 16 in Deposited Plan 752086, Local Government Area Lachlan, Parish of Ellerslie, County of Cunningham (formerly known as Portion 16), also known as Cavan, Carlisle Road, Fifield NSW 2875 and 2111 Carlisle Road, Fifield NSW and registered in the name of Thi Le Quyen Nguyen as sole owner.

2.   2014 Hyundai IX35 with New South Wales registration number CWP94J and registered in the name of Thi Le Quyen Nguyen.

SCHEDULE TWO

1.   Cash in the approximate amount of $26,800 seized by members of the NSW Police Force during the execution of a search warrant on 13 November 2022 at 811/13-15 Cross Street, Bankstown NSW 2200 being the residential address of Thi Le Quyen Nguyen.

2. Gold bullion in the approximate amount of 27.5 grams seized by members of the NSW Police Force during the execution of a search warrant on 13 November 2022 at 811/13-15 Cross Street, Bankstown NSW 2200 being the residential address of Thi Le Quyen Nguyen.

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 193B

Criminal Assets Recovery Act 1990 (NSW) ss 4, 6, 10A, 10B, 10C, 22, 27, 28A

Drug Misuse and Trafficking Act 1985 (NSW) s 25

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Thi Le Quyen Nguyen (Defendant)

Representation:

Counsel:
S Askew - Ex parte (Plaintiff)

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

File Number(s):

2023/60319

Publication restriction:

Nil

Judgment

1. The plaintiff seeks a restraining order under section 10A of the Criminal Assets Recovery Act 1990 (NSW) pending the making of forfeiture orders, proceeds assessment orders and unexplained wealth orders pursuant to sections 22, 27 and 28A of the Act respectively.

2. The summons is supported by an affidavit of Jian Song Wen sworn 22 February 2023. Mr Wen is an authorised officer of the plaintiff as defined in section 4(1) of the Act.

3. 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 that there are reasonable grounds for the suspicion.

4. Mr Wen deposes to having a suspicion and belief that the defendant has engaged in serious crime-related activity, namely, supplying not less than a large commercial quantity of MDMA and supplying not less than a commercial quantity of cocaine, both offences contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), and also to knowingly deal with the proceeds of crime contrary to section 193B(2) of the Crimes Act 1900 (NSW), that being an offence punishable by imprisonment of five years and involving money laundering.

5. All of these offences fall within the definition of serious criminal offence in section 6(2) of the Act.

6. Mr Wen bases his suspicion principally on reading the facts sheet prepared by the police in connection with the arrest and charging of the defendant.

7. Mr Wen sent an email to Constable Robert Stallard asking if he was the officer who had drafted the facts sheet or if he was aware of its contents, whether to the best of Constable Stallard's knowledge and belief the contents of the facts sheet were true, and if the facts sheet was prepared based on information obtained by police as a result of the investigation described in the facts sheet. Constable Stallard answered in the affirmative to all of those questions. He also informed Mr Wen that the defendant had been charged with those three offences and others, and that the matters were next before the court on 8 March at Burwood Local Court.

8. Mr Wen also deposes to searches having been carried out by him and other members of the plaintiff to ascertain the ownership of real and personal property by the defendant.

9. I have read the facts sheet annexed to Mr Wen's affidavit and as a result I am satisfied that the suspicion held by him that the offences have been committed is a reasonably held belief.

10. The plaintiff asks that the orders be made today without prior notice to the defendant and does so on the basis of Mr Wen's knowledge about the way property may be disposed of at short notice. 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 section 10C of the Act to review those orders.

11. Part of the property seized by the Police Force during the execution of a search warrant was an amount of cash and an amount of gold bullion. The plaintiff also seeks today an order pursuant to section 10B(2) of the Act that the New South Wales Trustee and Guardian should take control of the interests of the defendant in those two items of property. He does so for two reasons; the first is that cash will earn interest when held by the Trustee and Guardian and, secondly, if the gold is returned to the defendant it may be disposed of to defeat the restraining order.

12. I consider it appropriate in the circumstances that such an order should be made.

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Decision last updated: 23 February 2023