Commonwealth Director of Public Prosecutions v Alex Chan AKA Ngoo Chan [2001] NSWSC 251

New South Wales Supreme Court

CITATION : Commonwealth Director of Public Prosecutions v Alex Chan AKA Ngoo Chan [2001] NSWSC 251 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12088/98 HEARING DATE(S) : 28/03/01;29/03/01 JUDGMENT DATE : 29 March 2001

PARTIES : Commonwealth Director of Public Prosecutions v Alex Chan AKA Ngoo Chan JUDGMENT OF : O'Keefe J

COUNSEL : Plaintiff: D J Fagan SC Defendant: C Steirn SC/G Jones SOLICITORS : Plaintiff: Commonwealth Director of Public Prosecutions Defendant: W Chan & Co CATCHWORDS : Proceeds of crime - forfeiture - extension of waiting period - declaration under s 48 notwithstanding proposed appeal against extension LEGISLATION CITED : Proceeds of Crime Act 1987 (ss.30, 43, 48) CASES CITED : Brauer (1989) 45 A.Crim R 109 DECISION : That the restraining order made on 25 August 1998 and varied on 3 September 1998 and 4 February 1999 to the extent that it relates to the Western Australian property and the amount of $50,000 lodged with the Supreme Court as bail surety, shall be disregarded for the purpose of s 30 of the Proceeds of Crime Act 1987; DPP to pay the costs of the proceedings as on a one day hearing basis, in addition to the costs previously reserved; Stay refused.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

O'KEEFE J

THURSDAY 29 MARCH 2001

12088/98 - COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v ALEX CHAN AKA NGOO CHAN JUDGMENT

1 HIS HONOUR: Mr Alex Chan (Mr Chan) was arrested and charged with knowingly being associated with the importation of a prohibited drug, namely heroin. As a consequence of his being so charged a restraining order was made under the Proceeds of Crime Act 1987 (the Act) in respect of property of a kind referred to in s 43(1)(c), (d) and (e), all of which property is property of the person described in the section as the defendant, in this case Mr Chan. 2 The property the subject of the restraining order made under s 43 of the Act included real estate at Langford in Western Australia described in the restraining order as the Western Australian property. In addition, an amount of $50,000 which was paid into the Supreme Court Registry as surety for bail was the subject of such order. 3 On 11 August 2000 Mr Chan was convicted of the offence with which he was charged and as a consequence the time limited by the Act for the forfeiture of the property the subject of the restraining order began to run. 4 There has been dispute between the Director of Public Prosecutions and Mr Chan as to whether or not such restraining order has been effectively extended by an order of Greg James J made on 13 March 2001 and such order is presently the subject of a proposed appeal by the Director of Public Prosecutions. No notice of appeal has yet been filed. 5 The application which is presently before the Court is one pursuant to which Mr Chan seeks a declaration that the Western Australian property and the amount of $50,000 should be disregarded for the purposes of s 30 of the Act. 6 Section 48(4) of the Act provides, that where a person has been convicted of or has been charged with a serious offence and a Court in reliance on that conviction or charging has made a restraining order against property in which the defendant has an interest, such person may apply to the Court for a declaration in relation to his or her interest and provided two conditions are fulfilled the Court may declare that the restraining order is to be disregarded for the purposes of s 30 of the Act. 7 Those conditions are that the Court must be satisfied that: