New South Wales Crime Commission v Zhang

[2017] NSWSC 12

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Zhang [2017] NSWSC 12

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 Zheng Hua Zhang, including the interest in property in the property specified in Schedule One and Schedule Two hereto.

  

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

 

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

 

6. Liberty is granted to the Plaintiff and Zheng Hua Zhang 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 $64,700 seized by police on 16 December 2016 from Unit 5106/57-59 Queen Street, Auburn, New South Wales.

 

SCHEDULE TWO

 

2007 Mercedes station wagon with NSW Plate Number Z5899Z registered in the name of Zheng Hua Zhang.

 

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.

 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 (Plaintiff)
Zheng Hua Zhang (Defendant)

Representation:

Counsel:
S Vorreiter – Ex parte (Plaintiff)

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

File Number(s):

2017/27465

Judgment

1. The Applicant seeks a restraining order under s 10A of the Criminal Assets Recovery Act 1990 (NSW) pending the making of an unexplained wealth assessment under s 28A of the Criminal Assets Recovery Act.

2. Section 10A(5) requires the Court to make a restraining order if the application is supported by an affidavit of an authorised officer setting out the matters in subs (5) and stating the ground on which the suspicion referred to therein is based if the Court is satisfied that the suspicion is reasonably held.

3. The present application is supported by an affidavit of Katie Elaine Bourne sworn 18 January 2017 who is an authorised officer of the Plaintiff. She suspects that the Defendant has engaged in serious crime related activity by committing the offence of dealing with property suspected of being proceeds of crime contrary to s 193C(1) of the Crimes Act 1900 (NSW) involving money laundering. The offence against s 193C(1) is an offence that is punishable by imprisonment for five years or more and is therefore a serious criminal offence pursuant to s 6(2)(d) of the Criminal Assets Recovery Act.

4. Ms Bourne bases her suspicion on reading the statement of police facts prepared after the arrest of the Defendant and a co-offender. She sought to ascertain by email from the police officer who prepared those facts that he was the officer who drafted the facts sheets, that to the best of the officer's knowledge and belief the contents of the facts sheet were true, and that the facts sheet had been prepared based on information obtained by police as a result of the investigation described in the facts sheet. The officer who drafted the facts replied in the affirmative to each of those questions.

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

6. The Plaintiff seeks that the order be made without prior notice being given to the Defendant. That application is made on the basis of what Ms Bourne says in paragraph 8 of her affidavit, that she is aware that in the absence of a restraining order it is possible for people to enter into unregistered mortgages of real estate very quickly, that motor vehicles can be disposed of or forms relating to their disposition backdated, and that funds in bank accounts can be disposed of very quickly.

7. I am satisfied, in all the circumstances, that it is appropriate to make the orders without prior notice to the Defendant. The Defendant has the rights available to him under s 10C of the Act to seek a review of the orders.

**********

Decision last updated: 31 January 2017