Supreme Court New South Wales Medium Neutral Citation: New South Wales Crime Commission v Xue [2018] NSWSC 1508 Hearing dates: 4 October 2018 Date of orders: 04 October 2018 Decision date: 04 October 2018 Jurisdiction: Common Law Before: Beech-Jones J Decision: Restraining orders made Catchwords: RESTRAINING ORDER – no question of principle Legislation Cited: Crimes Act 1900 (NSW) Criminal Assets Recovery Act 1990 (NSW) Category: Procedural and other rulings Parties: New South Wales Crime Commission (Plaintiff) Juan Xue, aka Evan Sieh (Defendant) Representation: Counsel: R Katrib, solicitor (Plaintiff) Ex parte Solicitors: New South Wales Crime Commission (Plaintiff) File Number(s): 2018/303314 EX TEMPORE Judgment 1. Today, the New South Wales Crime Commission has been granted leave to file in court a summons seeking various forms of relief under the Criminal Assets Recovery Act 1990 (NSW) (the "Act") against Juan Xue, also known as Evan Sieh. 2. Further, at the time of the filing of the summons, the Commission also sought various forms of ex parte relief, principally a restraining order under s 10A of the Act. Given the material disclosed by the Commission I am satisfied that it is appropriate to consider that application ex parte because of the potential for the real property, the subject of the application for restraining order, to be encumbered if notice of the application was given. 3. In support of the ex parte application there was sworn an affidavit of Katie Elaine Bourne, who is an authorised officer within the meaning of s 4(1) of the Act. Ms Bourne identifies a basis for believing that Mr Xue is also known as Mr Sieh and also records her suspicion that Mr Xue was engaged in a serious crime related activity or serious crime related activities, namely, dealing with the proceeds of crime contrary to s 193B(3) of the Crimes Act 1900 (NSW), ie, money laundering. This falls within the definition of "serious criminal offence" within the meaning of s 6(2)(d) of the Act. The basis for that suspicion is an exchange of correspondence that occurred between officers of the Commission and a senior police officer relating to the charging of Mr Xue with an offence under s 193B(3) of the Crimes Act, specifically, dealing with the proceeds of crime in an amount of $2,192,600 between 1 April 2007 and 31 July 2007 as well as a statement of facts prepared by that officer for the Court before which Mr Xue appeared. In short, those facts reveal that the police allege that, over the relevant period, Mr Xue was orchestrating a sophisticated scheme for the collection of very large amounts of cash and then their transfer to an account in his name in mainland China via the use of a foreign exchange company. 4. The circumstances in which the transfers were arranged and the amounts of cash that were transferred certainly give rise to a reasonable basis for suspecting, if not knowing, that the cash was the proceeds of crime. 5. Section 10A(5) of the Act obliges the Court make a restraining order if various conditions are met. The first is the application for the order is supported by an affidavit of an authorised officer. This has clearly been satisfied. The second, is that the authorised officer recounts in an affidavit their suspicion that the person whose interest is the subject of the application has engaged in a serious crime related activity or serious crime related activities (see s 10A(5)(a)(i)). This has been satisfied. 6. Third is that the officer must state in their affidavit the grounds on which that suspicion is based. It follows that that condition has been satisfied. 7. Fourth, that the Court must be satisfied, having regard to the matters contained in the affidavits and any other evidence adduced, there are reasonable grounds for the suspicion. Having read the affidavit and the material annexed to it, I am more than satisfied that there is reasonable grounds for the suspicion that Mr Xue has engaged in a serious crime related activity or serious crime related activities. 8. It should be noted that in this case it is not incumbent upon the Crime Commission to establish that the items of property, the subject of the restraining order, are themselves the proceeds of crime. 9. In that respect, two items of property are sought to be made the subject of the orders being two pieces of real property which are registered in the name of Evan Sieh, which as I have stated appears to be another name for Mr Xue. In those circumstances, the Court is obliged to, and will make an order under s 10A. 10. The Commission also seeks an order under s 12(1)(b) for an order for the examination on oath before a Registrar of the Court of Mr Xue concerning his affairs including the nature and location of the property in which he has an interest. Such orders are in the form of ancillary to a restraining order. In light of the material I have recounted that order should be made. 11. The Commission also seeks a further order under s 12(1)(c1) of the Act that Mr Xue furnish to the Commission within twenty-one days after service of a sealed copy of the orders, a statement verified on oath setting out various particulars concerning his property interests. Again, in light of the material that has been put forward in support of the application that is appropriate. I note that the other orders that are sought by the Commission, which are procedural in nature, enable Mr Xue to apply in three days' notice in the event that compliance of those orders causes some particular prejudice or difficulty. 12. Accordingly for these reasons, I will make the orders set out in the document entitled order which will be initialled by me and entered today. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 October 2018