Song v Commissioner for Fair Trading, NSW Office of Fair Trading [2006] NSWADT 218

CITATION: Song v Commissioner for Fair Trading, NSW Office of Fair Trading [2006] NSWADT 218

DIVISION: General Division

APPLICANT PARTIES: Roger Weijin Song RESPONDENT Commissioner for Fair Trading, NSW Office of Fair Trading

FILE NUMBER: 053160

HEARING DATES: 7/04/2006

SUBMISSIONS CLOSED: 05/12/2006

DATE OF DECISION: 08/01/2006

BEFORE: Molony P - Judicial Member

CATCHWORDS: Property, Stock and Business Agents Act - Salesperson - licence or certificate of registration - grant - Salesperson - licence or certificate of registration - grant

MATTER FOR DECISION: Principal matter

Crimes Act 1900 LEGISLATION CITED : Licensing and Registration (Uniform Procedures) Act 2002 Property, Stock and Business Agents Act 2002

Joyce v Commissioner of Police, NSW Police Service [2000] NSWADT 17 CASES CITED: Joyce v Commissioner of Police, NSW Police Service [2000] NSWADTAP 17 Purdon v Dittmar [1972] 1 NSWLR 94

APPLICANT J Davis, solicitor REPRESENTATION: RESPONDENT E Alyward-Dyne, solicitor

ORDERS: The decision of the Commissioner to refuse Mr Song's application for a certificate of registration as a salesperson under the Property Stock and Business Agents Act 2002 is affirmed

REASONS FOR DECISION Background 1 Mr Song is a 24 year old man who on 19 July 2004 applied to the Commissioner of Fair Trading for a certificate of registration as a salesperson under the Property Stock and Business Agents Act 2002. His application was refused on 20 December 2004, on the ground that Mr Song was a disqualified person under s.16 of the Act and was therefore ineligible for a certificate. Mr Song sought an internal review of that decision, which resulted in the original decision being affirmed by a review officer on 2 February 2005. 2 Mr Song appealed that decision by an application for review lodged with this Tribunal on 6 May 2005. The President granted to him leave to file the review out of time by 19 July 2005. The hearing of the appeal took place on 7 April 2006, when evidence was heard and directions were made in relation to the filing of further submissions. 3 The threshold issue for consideration, which is the principal subject of those submissions, is whether Mr Song is a disqualified person as found by the Commissioner. Central to that finding is the fact that on 26 August 2004 Mr Song was convicted in the Local Court at Parramatta of "Goods in personal custody suspected of being stolen" contrary to s.527C(1)(a) of the Crimes Act 1900 and fined $550.00, with $63.00 court costs. He pleaded guilty to that charge. The "goods" in question was a credit card. The Commissioner maintains that as a result of that conviction Mr Song is disqualified from being granted a certificate of registration as a salesperson under the Property Stock and Business Agents Act 2002. Mr Song disputes this. 4 There are secondary issues, if Mr Song is successful on the threshold issue, going to whether he is a fit and proper person to hold a certificate of registration as a salesperson under the Act. The Legislation 5 Section 14 of the Property Stock and Business Agents Act 2002 is concerned with eligibility to hold a licence or certificate under the Act. Insofar as it relates to individuals it provides: (3) A person is eligible to hold a certificate of registration only if the Director-General is satisfied that the person: (a) is an individual who is at least 16 years of age, and (b) is a fit and proper person to hold a certificate of registration, and (c) has the qualifications required for the issue of a certificate of registration of the class concerned, and (d) is not a disqualified person. 6 Section 16 sets out the circumstances in which a person is a disqualified person. Relevantly it provides: (1) A person is a disqualified person for the purposes of this Act if the person: (a) has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded in the last 10 years, unless the Director-General has determined under subsection (2) that the offence should be ignored, or (b) … (2) The Director-General may determine that an offence committed by a person should be ignored for the purposes of this section because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence. 7 Section 17 empowers the Commissioner to issue certificates of registration as a sales person, and applies the provisions of Part 2 of the Licensing and Registration (Uniform Procedures) Act 2002 to applications for certificates. Section 19 provides that: An application must not be granted unless the applicant is eligible to be granted the licence or certificate of registration concerned (as provided by section 14). Section 27 provides that a person whose application for a certificate is refused may seek a review of that decision in this Tribunal. The Threshold Issue 8 Section 572C(1)(a) of the Crimes Act 1900 provides: (1) Any person who: (a) has any thing in his or her custody, … which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, is liable on conviction before a Local Court: (a) if the thing is a motor vehicle or a motor vehicle part, to imprisonment for 1 year, or to a fine of 10 penalty units, or both, or (b) in the case of any other thing, to imprisonment for 6 months, or to a fine of 5 penalty units, or both. … (2) It is a sufficient defence to a prosecution for an offence under subsection (1) if the defendant satisfies the court that he or she had no reasonable grounds for suspecting that the thing referred to in the charge was stolen or otherwise unlawfully obtained. … 9 The Commissioner submits that Mr Song's conviction for having goods in custody is an offence involving dishonesty which was committed in the last 10 years. As a result the Commissioner says that Mr Song is a disqualified person in accordance with s.16(1)(a) of the Property Stock and Business Agents Act 2002. It is the Commissioner's view that the offence was not trivial and that insufficient time has passed since the conviction to enable it to be ignored. 10 Mr Song's solicitor submitted that the offence of goods in custody is not an offence involving dishonesty, and that, as a consequence, Mr Song is not a disqualified person. The central thrust of this submission is that it is not necessary, to secure a conviction for goods in custody, for there to be an element of dishonesty alleged or proved. 11 The Applicant relied on decision of the Court of Appeal in Purdon v Dittmar [1972] 1 NSWLR 94, which was an appeal by way of case stated against a Magistrate's decision to dismiss a charge of goods in custody (then found in the Summary Offences Act) on the basis that the evidence disclosed that the goods in custody, money, was suspected of being the proceeds of sale of LSD contrary to the Poisons Act. The relevant provision of the Summary Offences Act had recently been amended by inserting the word "otherwise" into the words "reasonably suspected of being stolen or otherwise unlawfully obtained." Earlier decisions had determined that the words, "being stolen or unlawfully obtained" should be read ejusdem generis so that, "in its context it refers to things the obtaining of which was unlawful because it took a form analogous to theft, such, for example, as embezzlement, obtaining property by false pretence with intent to defraud, or taking for the purpose of unlawfully using." (per Jordan CJ in Aldridge v Marks (1943) 44 SR (NSW) 69 at 70). Sugerman P, with whom Holmes JA and Taylor AJA agreed, considered that the insertion by the legislature of the word "otherwise" was clearly intended to overcome the application of the ejusdem generis doctrine to the construction of the section. He concluded (at 99): 'What meaning should be given to the words "unlawfully obtained", read, because of the interposition of the word "otherwise" as expanding the meaning of s. 40? Without professing to attempt an exhaustive definition of those words, I do agree with Mr. Porter's submission that they at least extend to and cover a case in which the receipt of money is part of or involved in the commission of a criminal offence in the sense that, the sale of some object being prohibited by law and itself made a crime, the money is received as consideration for that sale. Once divorced from "stolen" the character of the "obtaining" of the "thing" referred to in s.40—whether it was lawful or "unlawful"—becomes, in my opinion associated with the character of the transaction—whether lawful or unlawful in the sense of criminal—in the course of which it was obtained.' 12 In Joyce v Commissioner of Police, NSW Police Service [2000] NSWADT 17 Deputy President Hennessy considered the issue of whether a conviction for goods in custody was an offence involving "fraud, dishonesty or stealing", thereby making the Applicant before her ineligible for a licence under the Security Industry Act 1997. She concluded: 17 … fraud, dishonesty or stealing are not legal requirements or elements of an offence under s 527C. Are they nevertheless "involved" in the offence? In my view stealing is not "involved" in s 527C because the stealing does not relate to the person charged. Even if a person does have reasonable grounds for suspecting that goods in his or her custody were stolen, that person is not necessarily implicated in the stealing of them. Just because an offence contains the word "stealing" does not necessarily mean that it is an offence involving stealing. It cannot have been parliament's intention to deny a security licence to a person convicted of an offence "involving stealing" unless the stealing relates to that person. 18 My conclusions are different in relation to whether the offence involves "dishonesty." "Dishonesty" is defined in the Concise Oxford Dictionary (7th edition, Oxford at the Clarendon Press 1982) as "lack of honesty; deceitfulness, fraud." A person would be acting dishonestly or deceitfully where that person fails to disclose to police that goods have come into his or her custody in circumstances where that person has reasonable grounds for suspecting that the goods have been stolen or otherwise unlawfully obtained. The ordinary meaning of dishonesty does not require that the person engage in some positive act. It can include a situation where a person fails to act. 19 It does not make any difference to this conclusion whether the goods in the person's custody have been stolen or obtained by some other unlawful means. The person has still acted dishonestly or deceitfully by failing to take any action which would bring the situation to the attention of police. 13 That reasoning was considered and upheld by the Appeal Panel in Joyce v Commissioner of Police, NSW Police Service [2000] NSWADTAP 17, which also considered the impact of the decision of the Court of Appeal in Purdon v Dittmar [1972] 1 NSWLR 94 on the issue. The Appeal Panel said: 20 In this case the argument is that because the modern construction of s 527C allows for possession of a thing to be the subject of prosecution when the thing was derived from a transaction, admittedly unlawful but free of any dishonesty (or fraud or stealing), then s 527C could not be characterised as in all circumstances being one `involving fraud, dishonesty or stealing.' 21 In our view this submission is flawed in that it seeks to shift the focus away from the object of s 527C to the prior transaction from which the thing now in the possession of a defendant has emanated. 22 The judgments in R v Chan (1992) 28 NSWLR 421 (Court of Appeal, Mahoney JA, Hunt CJ at CL and Abadee J) are, as the Tribunal noted, helpful. That case dealt what the issue of what is required to be proven before a thing can be `reasonably suspected' to be stolen or otherwise unlawfully obtained. 23 The defendant was charged with the offence of goods in custody. Over 21,000 Australian bank notes totalling $621,000 were found in the possession of an unemployed defendant in a cupboard in his home unit. The Police led no evidence as to what prior transaction might have given rise to the defendant having this amount of cash in his possession. The Court ruled that there was no error in the course adopted by the Police. The Court emphasised that the essential focus of the offence was on the defendant's explanation. Moreover the trial court was not required to form the view that the most likely explanation was that the thing was stolen, merely that such a possibility could be reasonably entertained in the circumstances: see, for example, per Mahoney JA at 424. The central task before the trial court was to assess the plausibility of the explanation of the defendant as to how or she came into possession of the thing: see, for example, per Hunt CJ at CL at 426. 24 So the focus of the offence is on the candour, honesty and plausibility of the defendant's explanation. 25 The offence also needs to be seen in its wider social context. The core object of the goods in custody offence (s 527C) is to curtail unlawful activity by placing an impediment in the way of a secondary trade in the product of unlawful activity. In that way honest transactions and dealing are upheld. 26 For these reasons it is, in our view, appropriate as the Commissioner has done and as the Tribunal did in the decision under appeal, to treat the offence of goods in custody as one `involving dishonesty' within the meaning of cl 11 of the Regulation. 14 While the decision of the Appeal Panel in Joyce related to a provision of the Security Industry Regulation 1988, the issue determined was the same as that argued on Mr Song's behalf: i.e. whether a conviction for goods in custody in an offence involving dishonesty. The conclusion reached by the Appeal Panel the offence of goods in custody as one involving dishonesty is one which I consider I am bound to follow. 15 Mr Song has been convicted within the last 10 years of an offence involving dishonesty. He is therefore a disqualified person, and ineligible to apply for a certificate of registration as a salesperson under the Property Stock and Business Agents Act 2002. 16 The only issues which remain for consideration is whether the correct and preferable decision is to ignore the conviction under s.16(2) because "of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence." 17 Less than two years has passed since the conviction was recorded. The conviction was recorded and the events giving rise to it arose after he had made his application for a certificate. I do not consider that sufficient time has passed since the conviction to allow it to be ignored because of the passing of time. 18 Similarly, I am of the view that the circumstances surrounding the offence cannot be regarded as trivial. 19 Put simply, Mr Song was found by Police in possession of a fraudulent credit card in the name of Michael Chen. This was found in his wallet. When intercepted by Police Mr Song was outside The Good Guys store in Castle Hill. 20 Police had been called to the store earlier that day, 10 August 2004, when store staff discovered that attempted purchases of electrical goods (to a value of $5,643.00), the day before, by a man who had used the name Huan Chen, had been made with the use of a stolen credit card. Huan Chen had attended the store with another man, and had produced three credit cards in his attempts to make the purchase, all of which had been declined. One card was later found to be stolen. 21 After Police attended, the two men returned to the store and produced a St George Visa card in the name of Michael Chen with which they purchased the goods. The Police were called. They identified the two men as Po Xing and Bing Shen. Xing had identified himself to store staff as Huan Chen. The credit card transaction went through. Outside the store Police intercepted Mr Song and found a fraudulent credit card in the name of Michael Chen in his wallet. According to the Police fact sheet: 'Song was interviewed. He declined to say how he came to be in possession of the card, but stated that he knew it was in his wallet. He stated that he did not know Po Xing who had just produced a card in the same name. He couldn't explain how this coincidence occurred.' 22 In his statement to the Tribunal Mr Song explained: 'In respect of the goods in custody offence I met the co-offender at star city casino. I only knew him couple of months or less. My financial position at that time was very stable and I was living at home. During that day I remembered the co-offender asked to come for a drive with him to Castle Hill to buy something. He never told me what it was. I remembered one of his credit cards fell onto the passenger's seat so as a friend I decided to hold it for him. I went across the road to use the public toilet in the petrol station and as I was going back into the car, the police surrounded me and asked me what I was doing here. They then body searched me. I felt confused and I didn't know what was going on. I seriously thought the police made a big mistake until they brought me up stairs together with the co-offenders. It was then that I realised everything. The main reason why I didn't declare this offence in the paper work is because I was simply too embarrassed to state that and at the same time I never realised how significant this matter was considered to the Office of Fair Trading.' 23 Mr Song was not only found in possession of a fraudulent credit card in highly suspicious circumstances, but on his own evidence lied to the Police about his knowledge of Po Xing. He pleaded guilty to the charge of goods in custody. He did not advance a reasonable explanation for having the credit card in his possession to either the Police of the Local Court. He was convicted and fined $550.00. I do not consider the acts or omissions giving rise to the offence to be trivial. 24 I agree with the Commissioner's assessment that the offence should not be ignored under s.16(2). Mr Song is therefore a disqualified person and ineligible to hold a certificate of registration. Conclusion 25 As a result, it is my view that the Commissioner made the correct and preferable when refusing Mr Song's application for a certificate of registration as a salesperson under the Property Stock and Business Agents Act 2002. Order The decision of the Commissioner to refuse Mr Song's application for a certificate of registration as a salesperson under the Property Stock and Business Agents Act 2002 is affirmed.