DPP v Alex Chan [2001] NSWCA 249

Reported Decision : [2001] ACL Rep 385 NSW 5 52 NSWLR 56

New South Wales Court of Appeal

CITATION : DPP v Alex Chan [2001] NSWCA 249 revised - 16/08/2001 FILE NUMBER(S) : CA 40225/01 HEARING DATE(S) : 26/07/01 JUDGMENT DATE : 26 July 2001

Director of Public Prosecutions PARTIES : v Alex Chan aka Ngoo Chan JUDGMENT OF : Meagher JA at 1, 17; Powell JA at 15; Heydon JA at 16

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT 12088/97 FILE NUMBER(S) : LOWER COURT Greg James J JUDICIAL OFFICER :

COUNSEL : A: D Fagan SC R: C Steirn SC/G Jones SOLICITORS : A: Commonwealth Director of Public Prosecutions R: William Chan & Co CATCHWORDS : Statutory Interpretation - restraining order under Proceeds of Crime Act 1987 - application for extension of waiting period - where application made within 6 month waiting period but not heard within that time - whether extension can still be granted - power to extend waiting period operates until application is determined - appeal dismissed. LEGISLATION CITED : Proceeds of Crime Act 1987 DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40225/01

MEAGHER JA POWELL JA HEYDON JA

Thursday, 26 July 2001 DIRECTOR OF PUBLIC PROSECUTIONS v ALEX CHAN aka NGOO CHAN JUDGMENT

1 MEAGHER JA: Mr Alex Chan, otherwise known as Mr Ngoo Chan, being about to be charged with an indictable offence, was on 25 August 1997 the subject of a restraining order made by Adams J under the provisions of the Proceeds of Crime Act 1987 in respect of all his property with one small exception. That order was made under s 43 of the Act. It was extended on 3 September 1998 until 4 February 1999. It was extended again on 4 February 1999 until further order. 2 On 11 August 2000 a jury returned a verdict of guilty in respect of his trial for the offence in question. On 6 October 2000 he was sentenced. 3 In the normal course of things, if a restraining order is made, as it was in the present case, in respect of some property of the accused and that restraining order is still in existence six months after the date of the conviction, the property in question is forfeited to the Crown. This is what s 30(1)(d) of the Act says. 4 Section 30A was introduced into the Act in April 1997 in order to enable that six month period to be extended. Subsection (3) of the Act says so. Section 30A says that the person, that is the defendant, may apply to the court for an order extending the waiting period in relation to the defendant's conviction. 5 Section 30A contains a subsection, subsection (3), which says an application under this section must be made before the end of the waiting period concerned. The waiting period is defined as in effect being the six month period. 6 The need for s 30A is clear enough. Without it, unjust results could occur, because without it there is no power in any court to extend the six month period in any circumstances. This would be unjust to many people against whom an order had been made. It would also be difficult for the courts who might not be able to process the volume of applications under the Act with which they have to deal before the six month period expired. 7 In the present case, the question is how does the Act apply when one has an application, such as that made by Mr Chan, during the course of the six month period on 15 September 2000 but which did not come on for hearing ultimately until 13 March 2001 before Greg James J at a time when the six month period had expired? 8 The orders Mr Chan were seeking were these: (1) An order under s 43(3) of the Proceeds of Crime Act varying and restraining the property to allow a mortgage to be obtained over Longford property, the proceeds to pay the respondent's reasonable legal expenses. The legal expenses presumably being the legal expenses involved in the criminal matter of which he has been convicted and any appeal therefrom. (2) Under s 43(3) a release of $50,000 lodged as surety with the Supreme Court Bail Registry to pay his legal expenses. (3) Under s 48(4) an order that the restraining order over the Longford property and the $50,000 and shares in a certain company be disregarded for the purposes of s 30 of the Proceeds of Crime Act and, more importantly for the present purposes, an order 4 under s 30A of the Act extending the waiting period under s 30 Proceeds of Crime Act for another nine months. 9 Restricting oneself to the fourth order sought, that is an order extending the waiting period, on the face of the statute it would seem to be without hope. The Court has no option in the matter. It would have to dismiss the application. As far as the statute goes, on its plain words, at the end of six months period, if a restraining order exists, a forfeiture must occur. The statute does not deal in terms with the question of the effect of s 30A(3) on that situation. Thus, on the face of the statute, while an application for an extension can be made within the six month period, no order on that application can be made after the six month period, because by that time the forfeiture would have occurred. This is a view for which the DPP contends in the present case. 10 Mr Chan on the other hand contends that the purpose of s 30A is clear enough, it is there for the convenience of the court in processing the voluminous number of applications made under the Act and is there for the purpose of according justice to various persons against whom orders are made. For both of those purposes, a power to extend the six month period is necessary for a period and that period must mean the period to determine the applications as well as a period to make them. 11 Mr Steirn on behalf of the respondent, Mr Chan, has put the position thus, that when an application pursuant to s 30A of the Proceeds of Crime Act is filed in the Supreme Court without undue delay, within six months of conviction and is then diligently prosecuted pursuant to subs (5) but the court has not determined that application, the property should not be forfeited automatically by operation of the statute and a power to extend the period must still subsist. 12 That view in my opinion is correct and in my opinion Greg James J has come to the correct conclusion. The order that his Honour made was that pursuant to 30A of the Act the waiting period in relation to the defendant's conviction be extended for a period of nine months beyond the end of the existing waiting period. In my view, Mr Chan was entitled to that order. 13 Basically, in my view the question is not a case of ambiguity, although his Honour seemed to think it might be. The question is really one of reasonableness. If the view contended for by the DPP is correct, one would have most unreasonable and unjust results flowing from it. For those reasons, the section should be, in my opinion, construed in the way suggested by Mr Steirn and by his Honour. Parliament cannot in my view reasonably have meant to sanction the tree but not the fruit. 14 For these reasons, in my view the appeal should be dismissed with costs. 15 POWELL JA: I agree. If, as Meagher JA has said, and I agree, the real question is one as to the interpretation of the statute, it is not necessary to invoke the Court's inherent power to make the orders nunc pro tunc, because, on its proper construction, the statute authorised the making of the order which Greg James J made. I agree with the orders proposed by Meagher JA. 16 HEYDON JA: I agree with Meagher JA and with Powell JA. 17 MEAGHER JA: The order of the Court therefore is the appeal is dismissed with costs. ******