New South Wales Crime Commission v Wenping He
[2013] NSWSC 1855
•11 December 2013
Supreme Court
New South Wales
Medium Neutral Citation: New South Wales Crime Commission v Wenping He [2013] NSWSC 1855 Hearing dates: 11 December 2013 Decision date: 11 December 2013 Jurisdiction: Common Law Before: Davies J Decision: 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 Wenping He (also known as William He), including the interest in property in the property specified in Schedules One and Two hereto.
2. 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 Wenping He (also known as William He) in the property specified in Schedule One hereto.
3. 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 Li Jing Yu, including the interest in property in the property specified in Schedule Three hereto.
4. Pursuant to section 10A of the Criminal Assets Recovery Act 1990 no person is to dispose of, or attempt to dispose of, or otherwise deal with or attempt to otherwise deal with the interest in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990) of Yi Lin He in the property specified in Schedule Four hereto.
5. Pursuant to section 10A of the Criminal Assets Recovery Act 1990 no person is to dispose of, or attempt to dispose of, or otherwise deal with or attempt to otherwise deal with the interest in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990) of Qiu Zi He (also known as Qui Zi He) in the property specified in Schedule Five hereto.
6. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Wenping He (also known as William He) 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.
7. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Li Jing Yu 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.
8. Leave is granted to the Plaintiff to obtain from the Registry dates for the examinations ordered in Orders 6 and 7 above.
9. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Wenping He (also known as William He) shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Wenping He (also known as William He), a statement verified by oath of Wenping He (also known as William He) setting out the particulars sought in Schedule Six hereto.
10. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Li Jing Yu shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Li Jing Yu, a statement verified by oath Li Jing Yu setting out the particulars sought in Schedule Six hereto.
11. Liberty is granted to the Plaintiff, Wenping He (also known as William He), Li Jing He, YLLin He and Qiu Zi He (also known as Qui Zi He) to apply on three (3) days' notice.
12. The costs of obtaining these orders shall be costs in the cause.
13. 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.
Catchwords: CRIMINAL LAW - confiscation of the proceeds of crime - restraining orders Legislation Cited: Criminal Assets Recovery Act 1990
Drug Misuse and Trafficking Act 1985
Uniform Civil Procedure Rules 2005Category: Interlocutory applications Parties: New South Wales Crime Commission (Plaintiff)
Wenping He (also known as William He) (Defendant)Representation: Counsel:
R Katrib (Plaintiff)
No appearance (Defendant)
Solicitors:
New South Wales Crime Commission (Plaintiff)
No appearance (Defendant)
File Number(s): 2013/372633
Judgment
This is an application for orders under the Criminal Assets Recovery Act 1990. Section 10A enables an application to be made by a party for a restraining order which remains in force whilst, as here, there is an application pending for an unexplained wealth order under s 28A of the Act.
The application is supported by an affidavit of Jonathan Lee Spark sworn 6 December 2013. 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 Defendants have engaged in a serious crime related activity or serious crime related activities, being the supply of or being involved in the supply of a large commercial quantity of prohibited drugs contrary to s 25 Drug Misuse and Trafficking Act 1985. These are serious criminal offences as defined in s 6(2)(b) of the Act.
The grounds on which Mr Spark holds this suspicion are set out in paragraphs 4, 9 and 12 of his affidavit. In short, he has read facts sheets obtained from the New South Wales Police, which he has annexed to his affidavit. Mr Spark enquired of each of the officers who prepared the facts sheets, if they had prepared it, whether the officer believed it was true and if the information was obtained by police as a result of investigations described in the facts sheets. The officers concerned confirmed the matters asked of them.
Section 10A(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 material in the facts sheets regarding each of the Defendants. The matters in those facts sheets, if true, are sufficient to show that the Defendants have been involved in the offences alleged. The matters plainly afford reasonable grounds for the suspicions deposed to by Mr Spark.
Having regard to the source of information Mr Spark had and the terms of the emails with the officers who prepared the facts sheets, I am satisfied that it was reasonable for him to form his suspicion on the assumption that the contents of the facts sheets were true.
I am further satisfied as s 10A(3) requires from the material annexed to Mr Spark's affidavits that the Defendants are domiciled in New South Wales and that the property in respect of which the restraining orders are sought are situated in New South Wales.
Section 10A(4) enables notice to be given to the Defendants before the order is made if the Court thinks fit. In the light of Mr Spark's evidence concerning the manner and speed with which property can be disposed of or transferred, I do not consider that the Defendants should be given notice of this application before an order is made. I have regard to Mr Spark's long experience in this area that justifies his opinion in relation to the ability to dispose of assets quickly.
The Defendants have the ability to make application under s 10C once being apprised of the orders.
In those circumstances I make orders in terms of paragraphs 1 to 7, 9, 10, 12 and 13 of the draft order provided to me. I grant the leave and liberty contained in paragraphs 8 and 11 of that order.
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Decision last updated: 18 December 2013
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