New South Wales Crime Commission v Ying [2023] NSWSC 1439 (24 November 2023)

Last Updated: 27 November 2023

Supreme Court New South Wales

Case Name:	New South Wales Crime Commission v Ying
Medium Neutral Citation:	[2023] NSWSC 1439
Hearing Date(s):	24 November 2023
Date of Orders:	24 November 2023
Decision Date:	24 November 2023
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 Jiansong Wen affirmed 24 November 2023, there are reasonable grounds for the suspicions stated therein The Court orders: 1. Pursuant to section 10A of the Criminal Assets Recovery Act 1990, except as provided in Orders 2, 3 and 4 below, 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 Di Ying, including the interest in property in the property specified in Schedule One, Schedule Two and Schedule Three hereto (“the restraining order”). 2. Pursuant to section 12(1) of the Criminal Assets Recovery Act 1990 the restraining order be varied to allow Di Ying or any other person (“the vendor”) to deal with the interest of Di Ying in the property specified in Schedule One hereto (“the North Sydney property”) for the purpose either of completing the sale of the North Sydney property or of selling the North Sydney property at a price agreed in writing by the Plaintiff (“the sale of the North Sydney property”). 3. Pursuant to section 12(1) of the Criminal Assets Recovery Act 1990 the proceeds received from the sale of the North Sydney property may be applied to pay the following: (a) the amount necessary to discharge any registered mortgage secured over the North Sydney property; (b) reasonable legal and conveyancing costs on the sale of the North Sydney property; (c) any reasonable agent’s commission on the sale of the North Sydney property; (d) any fee payable to a registered valuer for a valuation of the North Sydney property; (e) any rates or other adjustments or monies reasonably payable under any Agreement for Sale; and (f) any other expenses incurred with the consent in writing of the Plaintiff, the giving of such consent to be in the absolute discretion of the Plaintiff. 4. Pursuant to section 10B(2) of the Criminal Assets Recovery Act 1990, that the net proceeds of the sale of the North Sydney property (after the payment of monies mentioned in Prayer 3 above) shall be paid to the NSW Trustee and Guardian by Bank Cheque or Electronic Funds Transfer to an account nominated by the Plaintiff, to be held by the NSW Trustee and Guardian until further order. 5. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Di Ying 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. 6. Leave is granted to the Plaintiff to obtain from the Registry dates for the examination ordered in Order 5 above. 7. 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 Di Ying in the property specified in Schedule Three hereto. 8. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Di Ying shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Di Ying, a statement verified by oath of Di Ying setting out the particulars sought in Schedule Four hereto. 9. Liberty is granted to the Plaintiff and Di Ying to apply on three (3) days’ notice. 10. The costs of obtaining these orders shall be costs in the cause. 11. These proceedings be listed for mention before the Common Law Registrar at 9:00am on 11 March 2024. 12. 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 The whole of the property described as Lot 225 in Strata Plan 93874, at North Sydney, Local Government Area North Sydney, also known as 1911/211 Pacific Highway, North Sydney NSW 2060 and registered in the name of Di Ying as sole owner. SCHEDULE TWO 1. The whole of the property described as Lot 111 in Strata Plan 103272, at Castle Hill, Local Government Area The Hills Shire, also known as 1007/9 Gay Street, Castle Hill NSW 2154 and registered in the name of Di Ying. 2. 2023 Porsche Sedan with New South Wales registration number FBD79X and registered in the name of Di Ying. 3. 2022 Porsche Wagon with New South Wales registration number EZJ67A and registered in the name of Di Ying. SCHEDULE THREE Cash in the approximate amount of $190,000 seized by New South Wales Police Force on 4 October 2023 during the execution of a search warrant at 5 Beaumont Crescent, Bayview NSW 2104. SCHEDULE FOUR 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 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	New South Wales Crime Commission (Plaintiff) Di Ying (Defendant)
Representation:	Counsel: G Akle - Ex parte (Plaintiff) Solicitors: Legal Unit, New South Wales Crime Commission (Plaintiff)
File Number(s):	2023/426156
Publication Restriction:	Nil

JUDGMENT

1. The plaintiff seeks a restraining order under s 10A of the Criminal Assets Recovery Act 1990 (NSW) appending the making of a forfeiture order under s 22 of the Act, a proceeds assessment order under s 27 of the Act, and an unexplained wealth order under s 28A of the Act.
2. The summons is supported by an affidavit of Jiansong Wen sworn 24 November 2023. Mr Wen is an authorised officer of the plaintiff as defined in s 4(1) of the Act. 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 subsection and stating the grounds on which the suspicion referred to therein is based, and the Court considers that there are reasonable grounds for the suspicion.
3. Mr Wen deposes to having a suspicion and belief that the defendant has engaged in serious crime related activity, namely,

(a) knowingly taking part in the manufacture or production of a prohibited drug being methylamphetamine which is not less than the commercial quantity contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW); this is a serious criminal offence pursuant to s 6(2)(b) of the Criminal Assets Recovery Act, and

(b) dealing with property suspected of being proceeds of crime contrary to s 193C(1) of the Crimes Act 1900 (NSW), being an offence involving money laundering, and punishable by imprisonment for five years; This is a serious criminal offence within s 6(2)(d) of the Criminal Assets Recovery Act.

4. Mr Wen bases his suspicion principally on reading a facts sheet prepared by the police involved in the investigation of the defendant. Mr Wen sent an email to Detective Senior Constable Sansom who was an officer involved in the investigation into the defendant. Mr Wen asked Senior Constable Sansom if he drafted the facts sheet or if he was aware of the contents of the facts sheet, whether the contents of the facts sheet were true, and if the facts sheet was prepared based on information obtained by the police as a result of the investigation described in the facts sheet. Senior Constable Sansom replied to Mr Wen affirmatively answering those questions.
5. I have read the facts sheet annexed to Mr Wen's affidavit, and as a result, I am satisfied that the suspicion held by Mr Wen that the offences have been committed is a reasonably held belief.
6. The plaintiff asks that the present orders be made without prior notice to the defendant, and does so on the basis of Mr Wen's experience in his employment with the Crime Commission. Mr Wen has given evidence that he is aware that in the absence of a restraining order, it is possible for people to attempt to enter into unregistered mortgages very quickly and to dispose of a motor vehicle or backdate forms notifying Transport for NSW of the disposal of the vehicle in an attempt to defeat the operation of the Act.
7. I am satisfied in the circumstances that it is appropriate that orders should be made without prior notice to the defendant. The defendant has rights under s 10C of the Act to review those orders.
8. The plaintiff also seeks an order pursuant to s10B(2) of the Act that the NSW Trustee and Guardian should take control of the interests of the defendant in the property referred to in sch 3 of the summons, and also, should take control of the balance of the proceeds of sale referred to more particularly in pars 2 and 3 of the summons.
9. Given that the property so described in both cases is cash, I consider it is appropriate that such an order should be made for the reasons given by Mr Wen in his affidavit.
10. I note the plaintiff, through its solicitor, gives the usual undertaking as to damages. I make orders in accordance with paras 1 and 5, 7, 8, 10 and 12 of the draft order signed and dated by me. I grant the leave and liberty in paras 6 and 9 of that order. The proceedings are stood over for mention before the Common Law Registrar at 9am on 11 March 2024.

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