New South Wales Crime Commission v Tong

[2018] NSWSC 8

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Tong [2018] NSWSC 8

Hearing dates:

12 January 2018

Date of orders:

12 January 2018

Decision date:

12 January 2018

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 Jonathan Lee Spark sworn 9 January 2018, 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 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 Duy Thien Tong, 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 Duy Thien Tong 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 12(1)(c1) of the Criminal Assets Recovery Act 1990 Duy Thien Tong shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Duy Thien Tong, a statement verified by oath of Duy Thien Tong setting out the particulars sought in Schedule Two hereto.

 

5. Liberty is granted to the Plaintiff and Duy Thien Tong to apply on three (3) days’ notice.

 

6. The balance of the summons be listed for directions before the Common Law Registrar on Monday 9 April 2018 at 9.00am.

 

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

 

8. 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 1 in Deposited Plan 262752, Local Government Area of Hornsby, Parish of South Colah, County of Cumberland, also known as 16 Northview Place, Mount Colah, New South Wales, 2079 and registered in the name of Duy Thien Tong as sole owner.

 

2. 1994 Toyota panel van with NSW plate number AF98AS and registered in the name of Duy Thien Tong.

 

3. 50 of 100 fully paid ordinary shares in TTHD Investments Pty Limited held in the name of Duy Thien Tong.

 

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.

Non publication order in respect of the whole of the proceedings pursuant to s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) until close of business on 26 January 2018.

Catchwords:

CRIMINAL LAW – proceeds of crime – restraining orders

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)
Criminal Assets Recovery Act 1990 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Electricity Supply Act 1995 (NSW).
Uniform Civil Procedure Rules 2005

Category:

Procedural and other rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Duy Thien Tong (Defendant)

Representation:

Counsel:
S Santhikumar (Plaintiff - ex parte)

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

File Number(s):

2018/10679

Judgment

1. The plaintiff seeks a restraining order under section 10A of the Criminal Assets Recovery Act 1990 (NSW) pending the making of an assessment in relation to an unexplained wealth order under section 28A of that Act. Section 10A(5) of the Act says that the Court must make a restraining order if the application is supported by an affidavit of an authorised officer, stating that the officer suspects that the person whose interest in the property is sought to be restrained has engaged in serious crime-related activity, stating the grounds on which the suspicion referred to therein is based, and the Court considers that there are reasonable grounds for the suspicion.

2. The application is supported by an affidavit of Jonathan Lee Spark sworn 9 January 2018. Mr Spark, who is an authorised officer, deposes to a suspicion that the defendant engaged in serious crime-related activity or activities, being the commission of the offences of cultivating by enhanced indoor means a prohibited plant for a commercial purpose contrary to s 23(1)(a) of the Drug Misuse and Trafficking Act 1985 (NSW), supplying a prohibited drug being contrary to s 25(1) of the Drug Act, and abstracting, consuming, causing to be wasted or diverting electricity without authority contrary to s 64(1) of the Electricity Supply Act 1995 (NSW). All of these offences are serious criminal offences within the meaning of s 6(2)(b) and 6(2)(d) of the Criminal Assets Recovery Act.

3. Mr Spark deposes to the fact that his suspicion is held principally by reading the fact sheet prepared by the police from examining Commission records concerning examination of the COPS database, the RMS database, the ASIC database and the records of the LPI and SAI Global databases. Mr Spark sought confirmation from the officer whom he believed prepared the fact sheet the fact that the officer had done so, that the fact sheet was true to the best of his knowledge and belief, and that the fact sheet was prepared on information obtained by the police as a result of the investigation. The officer replied in the affirmative to those inquiries.

4. I have read the fact sheet and I am satisfied that Mr Spark's suspicion that those offences have been committed is reasonably held.

5. The plaintiff seeks that the orders be made without prior notice to the defendant. It does so by what Mr Sparks says in paragraph 8 of his affidavit that through his long experience with the plaintiff he is aware that in the absence of a restraining order it is possible for people to attempt to enter into unregistered mortgages of real estate very quickly and dispose of motor vehicles very quickly in an attempt to defeat the operation of the Act.

6. I am satisfied that the orders should be made without prior notice to the defendant. The defendant has rights under section 10C of the Act to seek a review of those orders.

7. The plaintiff also seeks a non-publication order in respect of the proceedings under the Court Suppression and Non-Publication Orders Act 2010 (NSW) to enable the plaintiff's officers to lodge any caveats and make other notifications on databases concerning property identified as being held by the defendant. I consider that such an order should be made.

8. On the usual undertaking as to damages being given by the solicitor for the plaintiff, I make orders in terms of paragraphs 1 to 8 of the draft order provided to me. In addition, I make a non-publication order with respect to the proceedings generally, pursuant to section 8(1)(a) of the Court Suppression and Non-Publication Orders Act until the close of business on 26 January 2018.

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Decision last updated: 29 January 2018