New South Wales Crime Commission v Yu Hai Li
[2014] NSWSC 926
•10 July 2014
Supreme Court
New South Wales
Medium Neutral Citation: New South Wales Crime Commission v Yu Hai Li [2014] NSWSC 926 Hearing dates: 10 July 2014 Decision date: 10 July 2014 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 Yu Hai Li (also known as Li Yu), 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 Yu Hai Li (also known as Li 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.
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 Yu Hai Li (also known as Li Yu) in the property specified in Item 5 and Item 6 of Schedule One hereto.
5. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Yu Hai Li (also known as Li Yu) shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Yu Hai Li (also known as Li Yu), a statement verified by oath of Yu Hai Li (also known as Li Yu) setting out the particulars sought in Schedule Two hereto.
6. Liberty is granted to the Plaintiff and Yu Hai Li (also known as Li Yu) to apply on three (3) days' notice.
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 67 of Section 2 in Deposited Plan 975670 at Auburn, Parish of Liberty Plains, County of Cumberland also known as 7 Edgar Street, Auburn, New South Wales 2144 and registered in the name of Li Yu.
2. 25 ordinary shares in IV Trading Pty Ltd held in the name of Li Yu.
3. Funds in Commonwealth Bank of Australia account number 219010315408 held in the names of Toshimi Saito and Li Yu.
4. Funds in National Australia Bank Limited account number 082121 549641104 held in the name of Li Yu and Toshimi Saito.
5. Cash in the amount of approximately $63,000 seized by the New South Wales Police Force from 2601/118 Church Street, Parramatta in New South Wales on 3 July 2014.
6. 60 designer handbags seized by the New South Wales Police Force from 2601/118 Church Street, Parramatta in New South Wales on 3 July 2014.
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.
3. Provide full particulars of the source of the monies specified in Item 5 of Schedule One herein.
Catchwords: CRIMINAL LAW - proceeds of crime - proceeds assessment order - restraining orders Legislation Cited: Criminal Assets Recovery Act 1990 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Category: Interlocutory applications Parties: New South Wales Crime Commission (Plaintiff)
Yu Hai Li (also known as Li Yu) (Defendant)Representation: Counsel:
E Goh (Plaintiff)
No appearance (Defendant)
Solicitors:
New South Wales Crime Commission (Plaintiff)
No appearance (Defendant)
File Number(s): 2014/204304
Judgment
This is an application for orders under the Criminal Assets Recovery Act 1990 (NSW). Section 10A enables an application to be made ex parte for a restraining order which remains in force while there is an application pending for a proceeds assessment order under s 27 of the Act.
The application is supported by an affidavit of Jonathan Lee Spark sworn 8 July 2014. In that affidavit, Mr Spark, who is an authorised officer within the meaning of s 4(1) of the Act, deposes to his suspicion that the Defendant has engaged in a serious crime related activity or serious crime related activities, namely, supplying a prohibited drug contrary to s 25(1) and (2) of the Drug Misuse and Trafficking Act 1985 (NSW). Both of those offences are serious criminal offences pursuant to s 6(2)(b) of the Criminal Assets Recovery Act.
Mr Spark bases his suspicion on his having read a statement of facts prepared by the police when the Defendant was arrested and brought before the Local Court. Mr Spark deposes to a conversation and email exchange with the police officer responsible for the preparation of those facts who confirmed that he prepared the facts in conjunction with another police officer, that the contents of the facts sheet were true, and the information contained in the facts sheet was obtained as a result of the investigation described in the facts sheet.
I have also read the facts sheet and I am satisfied that the suspicion that Mr Spark deposes to is held on reasonable grounds. In those circumstances, under s 10A(5) of the Act, the Court must make a restraining order.
The application is made ex parte. I have read what Mr Spark says, based on his long experience, of the ability of persons to dispose of and transfer property very quickly. I am satisfied that it is appropriate that the application should be made without notice to the Defendant. The Defendant, in any event, has rights under s 10C to apply to the Court in respect of the orders that have been made.
I note that the Plaintiff gives the usual undertaking as to damages and upon that undertaking, I make the orders contained in paragraphs 1 to 8 of the draft order.
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Decision last updated: 15 July 2014
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