Supreme Court New South Wales Medium Neutral Citation: New South Wales Crime Commission v Nguyen [2019] NSWSC 1498 Hearing dates: 16 August 2019 Date of orders: 16 August 2019 Decision date: 16 August 2019 Jurisdiction: Common Law Before: Walton J Decision: In all the circumstances, I make the orders provided with the summons for relief. Catchwords: CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – restraining order – ex parte – orders made Legislation Cited: Crimes Act 1900 (NSW) Criminal Assets Recovery Act 1990 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Principal judgment Parties: New South Wales Crime Commission (Plaintiff) Hoang Minh Hien Nguyen (Defendant) Representation: Solicitors: New South Wales Crime Commission (Plaintiff) File Number(s): 2019/255562 ex tempore Judgment 1. HIS HONOUR: The Court has before it a summons which seeks a hearing instanter and ex parte in order to partially deal with the matters in question, with the balance to be listed before this Court at another time. 2. The relief claimed appears under the heading "Relief Claimed" in the summons, which corresponds to the draft orders provided to the Court in support of the application. The application is supported by the affidavit of Ms Katie Elaine Bourne, sworn 13 August 2019. The application is also supported by a statement of facts and circumstances, as required on an application for a restraining order, pursuant to r 1.26 of the Uniform Civil Procedure Rules 2005 (NSW). 3. Pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW) ("the Act"), the NSW Crime Commission may apply for a restraining order in respect of the interests in question, in this case interest in property of Hoang Minh Hien Nguyen. Section 12 of the Act permits the Court, when making a restraining order, to make any ancillary orders that the Court considers appropriate. 4. The affidavit of Ms Bourne discloses that she is an authorised officer for the purposes of the Act and suspects Mr Nguyen of having engaged in serious crime related activity, namely, deal with property suspected of being proceeds of crime, contrary to s 193C(1) of the Crimes Act 1900 (NSW), involving money laundering. 5. I note, further, that Ms Bourne gives the grounds upon which the suspicion is held, that is a suspicion of Mr Nguyen having engaged in serious crime related activity. In that respect, I further observe that Ms Bourne was provided with and accepted a police facts statement that describes the suspected serious criminal activity in which Ms Bourne suspects Mr Nguyen to have engaged in. 6. It was also noted in the fact sheet that Ms Bourne has ascertained that Mr Nguyen has been charged with the offences described in the fact sheet. 7. In my view, there are reasonable grounds for Ms Bourne's suspicion that Mr Nguyen has engaged in serious crime related activity. 8. By s 10B(2) of the Act , the Court may, when making a restraining order, if it considers that the circumstances so require, order the NSW Trustee and Guardian to take control of some or all of the interests in property that are interests to which the restraining order applies. Ms Bourne deposed that the circumstances so require and supported this belief with regard to the evidence set out in her affidavit and the police facts statement, which set out the circumstances in which the aforementioned seized cash was seized by members of the police. She also noted, the seized cash is presently being held by the police. 9. The Commission, by its summons, is also seeking, in respect of Mr Nguyen, an assets forfeiture order pursuant to s 22 of the Act, a proceeds assessment order under s 27 and an unexplained wealth order pursuant to s 28A of the Act. I do not repeat, for the purposes of this judgment, the facts and circumstances in particular relied upon by Ms Bourne with respect to the assets forfeiture order, proceeds assessment order and the unexplained wealth order, but note that I consider that there is sufficient basis for the making of the order, having regard to that which is disclosed in para 6 of the facts statement. 10. Finally, before disposing of the matter in its entirety, I should note that in my view, upon the circumstances outlined in the affidavit of Ms Bourne as to this particular matter, there was a proper basis upon which the matter may have proceeded as it has ex parte. 11. In all the circumstances, I make the orders provided with the summons for relief. 12. I executed the order under seal as part of its making and I provide a copy of that to the Commission. ********** 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: 01 November 2019