New South Wales Crime Commission v Zhuang

[2021] NSWSC 328

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Zhuang [2021] NSWSC 328

Hearing dates:

1 April 2021

Date of orders:

1 April 2021

Decision date:

01 April 2021

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 31 March 2021, 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 Shelley Zhuang, including the interest in property in the property specified in Schedule One hereto and Schedule Two hereto.

2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Shelley Zhuang 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 Shelley Zhuang in the property specified in Schedule Two hereto.

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

6.   Liberty is granted to the Plaintiff and Shelley Zhuang to apply on three (3) days’ notice.

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

8.   These proceedings be listed for mention before the Common Law Registrar at 9:00am on 26 July 2021.

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.   2015 Hyundai i30 with New South Wales registration number EGT31F registered in the name of Shelly Zhuang.

2.   2011 Mazda CX7 with New South Wales registration number LOU097 registered in the name of Shelly Zhuang.

SCHEDULE TWO

Cash in the amount of approximately $165,345 seized by NSW Police Force on 3 December 2020 during the execution of a search warrant at 1/268-270 Railway Terrace, Guildford NSW 2161.

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)

Criminal Assets Recovery Act 1990 (NSW)

Drug (Misuse and Trafficking) Act 1985

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Shelley Zhuang (Defendant)

Representation:

Counsel:
S Santhikumar - Ex parte (Plaintiff)

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

File Number(s):

2021/91409

Publication restriction:

Nil

Judgment

1. The plaintiff seeks a restraining order under s10A of the Criminal Assets Recovery Act 1990 (NSW) pending the making of a forfeiture order and an unexplained wealth order pursuant to ss22 and 28A respectively of the Act.

2. The summons is supported by an affidavit of Jonathan Lee Spark, sworn 31 March 2021. Mr Spark is an authorised officer of the plaintiff.    

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 sub section and stating the grounds on which the suspicion referred to therein is based, and the court considers there are reasonable grounds for the suspicion.

4. Mr Spark deposes to a suspicion that the defendant has engaged in serious crime related activity, being dealing with property suspected of being the proceeds of crime contrary to s193C (1) of the Crimes Act 1900 (NSW), which is an offence punishable by imprisonment for five years and involving money laundering and, therefore, falling within the definition of a serious criminal offence under paragraph 6(2)(d) of the Criminal Recovery Assets Act, and supplying a prohibited drug contrary to s25(1) of the Drug (Misuse and Trafficking) Act 1985 (NSW), which is also an offence constituting a serious criminal offence under s6(2) (b) of the Criminal Assets Recovery Act.

5. Mr Spark bases his suspicion principally on reading the fact sheet prepared by the police in preparation for the appearance in court of the defendant. Mr Spark sent an email to Detective Sergeant Mark Wakeham asking him if he was the officer that drafted the fact sheet or if he was aware of the contents of the fact with sheet, whether the contents were true, and if the fact sheet was prepared on information obtained police as a result of the investigation described in the fact sheet. To each of those questions Sergeant Wakeham answered in the affirmative. He also informed Mr Spark that the defendant had been charged with the offences described in the fact sheet and the matter was currently before the court awaiting a plea.

6. I have read the fact sheet and the other documents attached to Mr Spark's affidavit. I am satisfied that the suspicion held by him that the offences have been committed is reasonably held.

7. Some of the property sought to be restrained is cash, in an amount exceeding $165,000 seized by the police during the execution of a search warrant. The plaintiff seeks an order that the NSW Trustee and Guardian take control of that cash, and he does so for the reasons set out in paragraph 7 of his affidavit.

8. The plaintiff also seeks that the orders be made without prior notice to the defendant. It does so based on Mr Spark's experience at the Commission of the ease with which the operation of Act may be defeated by the speedy transfer of motor vehicles or the backdating of documents associated with their transfer.

9. I am satisfied, in the circumstances, that it is appropriate that orders should be made without prior notice to the defendant. The defendant has his rights under s10C of the Act to review the orders.

10. Upon the plaintiff giving the usual undertaking as to damages, I make the following orders; orders in terms of paragraphs 1, 2, 4, 5, 7 and 9 of the orders signed by me. I grant the leave and liberty in paragraphs 3 and 6.

11. These proceedings are stood over before the Common Law Registrar on 26 July 2021.

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Decision last updated: 07 April 2021