New South Wales Crime Commissioner v Quang Le

[2018] NSWSC 1778

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commissioner v Quang Le [2018] NSWSC 1778

Hearing dates:

21 September 2018

Date of orders:

21 September 2018

Decision date:

21 September 2018

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1) Pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW) 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 s 7 of the Criminal Assets Recovery Act) of Quang Le, including the interest in property in the property specified in Schedule One hereto.

 

(2) Pursuant to s 12(1)(b)(i) of the Criminal Assets Recovery Act Quang Le 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) Pursuant to s 12(1)(b1) of the Criminal Assets Recovery Act Nhat Mai shall be examined on oath before a Registrar of the Court concerning the affairs of Nhat Mai, including the nature and location of any property in which Nhat Mai or Quang Le has an interest.

 

(4)   Leave is granted to the Plaintiff to obtain from the Registry dates for the examinations ordered in Order 2 and 3 above.

 

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

 

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

 

(7)   The balance of the Summons filed in these proceedings be listed for mention before the Common Law Duty Registrar at 9am on 11 February 2019.

 

(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.

Catchwords:

CRIMINAL ASSETS – suspicion of serious crime related activities, namely cultivation of cannabis – suspicion of authorised officer is reasonably based – defendant charged with index offences – interim restraining order sought – Court granted orders sought

Legislation Cited:

Criminal Assets Recovery Act 1990, ss 10A, 12, 20A, 22, 28A
Drug Misuse and Trafficking Act 1985, s 23(2)(a)

Category:

Consequential orders (other than Costs)

Parties:

New South Wales Crime Commission (Plaintiff)
Quang Le (Defendant)

Representation:

Solicitors:
S Santhikumar (Plaintiff)
Ex Parte (Defendant)

File Number(s):

2018/00288734

Ex Tempore Judgment

1. HIS HONOUR: Before the Court is an application, by way of Summons, for orders under s 20A of the Criminal Assets Recovery Act 1990 (NSW) (hereinafter "the Act") under which the New South Wales Crime Commission (hereinafter "the Commission") applies for a restraining order in respect of all of the interests in property of Quang Le, the defendant.

2. For the purposes of its application for a restraining order, the Commission relies upon the Affidavit sworn in support of the application by Jonathan Lee Spark sworn 20 September 2018 and filed in Court. The Affidavit establishes that Mr Spark is an authorised officer for the purposes of the Act and that he suspects the defendant of having engaged in serious crime-related activity, namely the cultivation of a prohibited plant, being cannabis, in a quantity not less than a large commercial quantity contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) (hereinafter "the offence").

3. The Affidavit also gives the grounds for Mr Spark's said suspicion. The Court has read the Affidavit, including the annexures, and carefully read the facts sheet supplied by the relevant police officers.

4. The facts and circumstances on which the Commission relies in its application for a restraining order are that:

1. Mr Spark suspects the defendant of having engaged in serious crime related activity, namely the offence;

2. Mr Spark has been provided with and accepts the police facts sheet (hereinafter “the facts sheet”) that describes the suspected serious criminal activity in which Mr Spark suspects the defendant to have engaged;

3. Mr Spark has ascertained that the defendant has been charged with the offence described in the facts sheet and the relevant commencement notices are attached to the affidavit in question; and

4. There are reasonable grounds for Mr Spark's suspicion that the defendant has engaged in serious crime-related activity, namely the offence.

5. The Court has read, as earlier stated, the affidavit of Mr Spark; the facts sheet; and the commencement of the charges against the defendant, and the Court is satisfied that there are reasonable grounds for Mr Spark's suspicion that the defendant has engaged in serious crime-related activity, namely the offence.

6. The Commission by its Summons is also seeking, in respect of the defendant, an assets forfeiture order pursuant to s 22 of the Act and an unexplained wealth order pursuant to s 28A of the Act.

7. The facts and circumstances upon which the Commission will rely in seeking the assets forfeiture order are:

1. The facts and circumstances described in the facts sheet;

2. The property described in Schedule 1 to the Summons (hereinafter "the Chisolm property") is an interest in property of the defendant and the defendant has engaged in a serious crime-related activity, namely the offence;

3. The Chisolm property is an interest in property of the defendant who has engaged in a serious crime-related activity, namely the offence and is an available interest relating to serious crime use property as a result; and

4. The defendant's activities resulted in the Chisolm property becoming serious crime use property and the Chisolm property is serious crime use property because it was used in or in connection with serious crime-related activities, namely the offence.

8. Further, the facts and circumstances upon which the Commission will rely in seeking the orders under s 28A, being the unexplained wealth order, are:

1. The facts and circumstances described in the facts sheet;

2. The results of pending investigations by the Commission, including a financial analysis of the affairs of the defendant;

3. The evidence obtained pursuant to any examination of the defendant and his spouse Nhat Mai pursuant to s 12 of the Act;

4. The evidence obtained as a result of any statement of affairs provided by the defendant pursuant to s 12 of the Act;

9. It is unnecessary for me to consider the issues associated with s 22 or s 28A of the Act at this stage, simply because those orders are not being sought. That said, I need to, and do understand the nature of the final relief sought in the Summons. For the reasons aforesaid, the Court makes the orders under s 10A of the Criminal Assets Recovery Act and the ancillary or complementary orders under s 12 of the Criminal Assets Recovery Act contained in the order handed to the Court and in the form dated and signed and/or initialled by me today.

10. Those orders may be entered forthwith.

**********

Decision last updated: 20 November 2018