The Director of Public Prosecutions (WA) v Ng
[2017] WASC 365
•8 NOVEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: THE DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- NG [2017] WASC 365
CORAM: PRITCHARD J
HEARD: 8 NOVEMBER 2017
DELIVERED : 8 NOVEMBER 2017
FILE NO/S: CPCA 26 of 2017
BETWEEN: THE DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Plaintiff
AND
YIK TO NG
Defendant
Catchwords:
Criminal law - Criminal Property Confiscation Act 2000 (WA) - Declaration that property has been confiscated - Turns on own facts
Legislation:
Criminal Property Confiscation Act 2000 (WA), s 8, s 30, s 156
Misuse of Drugs Act 1981 (WA), s 32A(1)
Result:
Declaration made
Category: B
Representation:
Counsel:
Plaintiff: Mr V J Pelligra
Defendant: In person
Solicitors:
Plaintiff: Director of Public Prosecutions (WA)
Defendant: In person
Cases referred to in judgment:
Bennett & Co (a firm) v Director of Public Prosecutions (WA) [2005] WASCA 141
Hendricks v The State of Western Australia [2002] WASC 86
Re Smith; Ex parte Director of Public Prosecutions (WA) [No 3] [2004] WASC 157
PRITCHARD J:
(These reasons were delivered extemporaneously on 8 November 2017 and have been edited from the transcript.)
This is an application brought by the Director of Public Prosecutions for Western Australia, by a notice of originating motion dated 2 June 2017, for a declaration of confiscation, pursuant to s 30 of the Criminal Property Confiscation Act 2000 (WA) (the Act), read in conjunction with s 8 of the Act (the Application).
The DPP seeks a declaration, pursuant to s 30 of the Act, that property owned or effectively controlled by Yik To Ng at the time he was declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 (WA) on 2 March 2017, or gave away at any time before that date, has been confiscated to the State of Western Australia, namely cash in the sum of $5,000 taken from Mr Ng on 8 September 2015, together with any interest thereon (the Property).
The application is supported by the affidavit of Morgan Charlotte Paling affirmed 31 May 2017 and the affidavit of Zaklina Majoski‑Kosteski sworn 27 October 2017. It is also supported by affidavits of service sworn by two police officers. According to the affidavit of Ms Paling, Mr Ng was convicted of one count of possession of a prohibited drug, namely methylamphetamine, and one count of possession of stolen or unlawfully obtained property, both confiscation offences for the purposes of the Act.
At the time of his sentencing for those offences on 2 March 2017, he was declared to be a drug trafficker, pursuant to s 32A(1) of the Misuse of Drugs Act. The consequence of s 8 of the Act is that, upon a declaration that a person is a drug trafficker under s 32A(1) of the Misuse of Drugs Act, property is confiscated. That property is all the property that the person owns or effectively controls at the time the declaration is made, and all property that the person gave away at any time before the declaration was made, whether the gift was made before or after the commencement of the Act.
According to the transcript of Mr Ng's trial, an extract of which was attached to the affidavit of Ms Majoski‑Kosteski, the cash component of the property which is the subject of the notice of originating motion was seized from premises in Canning Vale where Mr Ng and a Mr Cheung resided. The Property was located in a backpack in Mr Ng's bedroom at the home. The only other person residing at the home was Mr Cheung. The evidence before the Court in the trial extract indicates that Mr Cheung had a separate bedroom at the home.
I note that a very large amount of other cash was seized at the same premises and that has previously been the subject of an order of this Court confiscating that cash to the State.
The Property was made subject to a freezing notice in September 2015. According to the affidavits of service which are before the Court, a copy of that freezing notice was served on Mr Ng, together with the notice of originating motion and the supporting documentation. Similarly, according to the affidavit of service before the Court, copies of the same documents were also served on Mr Cheung in June of this year.
According to the affidavit material before the Court, there has been no objection lodged under the Act in respect of the freezing notice. In short, no claim has been made by any other person that the Property is owned by them or is under their control. Mr Ng has previously made it clear to the Court that he does not wish to be heard in respect of the present application.
The question for the Court today is whether the Court is satisfied that the Property was property owned or effectively controlled by Mr Ng at the time that the drug trafficking declaration was made. There was no direct evidence as to the ownership of the Property, but the evidence before the Court that the Property was found in Mr Ng's bedroom in a backpack supports the conclusion that it is more likely than not that the Property was owned or effectively controlled by him at the date that the drug trafficking declaration was made. That same evidence supports the conclusion that Mr Ng had physical custody of the Property and, thus, effective control of it, as that term is explained in s 156 of the Act.
Accordingly, I find that the Property has been confiscated pursuant to s 8 of the Act. The effect of s 30 of the Act is that, if the Court finds that the property described in the application has been confiscated under s 8, the Court must make a declaration to that effect. That has been confirmed in a number of authorities in the Court, including Hendricks,[1] Bennett,[2] and Re Smith.[3] Accordingly, I will make the declaration sought in par 1 of the notice of originating motion.
[1] Hendricks v The State of Western Australia [2002] WASC 86.
[2] Bennett & Co (a firm) v Director of Public Prosecutions (WA) [2005] WASCA 141.
[3] Re Smith; Ex parte Director of Public Prosecutions (WA) [No 3] [2004] WASC 157.
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