Director of Public Prosecutions (NSW) v Hing

Court of Criminal Appeal (NSW)|2017-11-28|Before: Simpson JA, Wilson JJ, Fagan J

Solicitors: Solicitor for Public Prosecutions (Appellant) Nyman Gibson Miralis (Respondent) File Number(s): 2017/00294576 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Date of Decision: 16 November 2017 Before: Fagan J

Judgment

THE COURT: On 21 November 2017, pursuant to s 50 of the Bail Act 2013 (NSW), the Director of Public Prosecutions (NSW) ("the Director") made an application for the detention of Nathan Peter Hing ("the respondent"). The application was heard by the Court on 28 November 2017.
At the conclusion of the hearing, the Court made orders granting the application, refusing bail and returning the respondent to custody. The Court indicated that its reasons would be published later. Those reasons now follow.
The respondent was arrested on 20 September 2017 and charged with a number of offences, most relating to alleged drug supply and money laundering. Bail was refused from the time of arrest until a release application was granted by Fagan J on 16 November 2017.
The respondent was earlier charged in relation to unrelated traffic offences on 8 September 2017. Bail was dispensed with.

The traffic offences

The Director placed some reliance upon the respondent's conduct giving rise to the alleged traffic offences so it is necessary to explain what they are.
The respondent was charged with Exceed speed over 45 km/h and Drive in a manner dangerous to the public. Those offences are alleged to have occurred on 18 August 2017 after he was detected riding a motorcycle at 133 km/h on the Gore Hill Freeway, Artarmon (80 km/h speed limit zone). Police followed and observed the respondent riding erratically and dangerously to the point where the pursuit was terminated.
A little over an hour later the respondent was again detected riding the same motorcycle. Police activated emergency devices and he rode away at high speed, again in an erratic and dangerous fashion until the police lost sight of him. The respondent was the registered owner of the motorcycle. Police attended his home address but no-one answered the door. A contact card was left.
On 8 September 2017, the respondent attended North Sydney police station with his solicitor. He complied with a statutory demand to disclose the identity of the rider of the motorcycle at the time of the two incidents. He admitted that it was himself. He was issued with Field Court Attendance Notices and his licence was suspended and confiscated.
It could be said that the respondent demonstrated his preparedness to co-operate with authorities by voluntarily attending the police station. However, the Crown placed reliance upon the events giving rise to the offences themselves as demonstrating the respondent's preparedness to behave recklessly in an attempt to avoid police. These events occurred at a time when the respondent, on the Crown case, was actively involved in extensive drug supply and money laundering activities.

Charges laid on 20 September and 27 November 2017

The respondent faces the following charges laid on 20 September 2017 (1 to 8) and on 27 November 2017 (9 to 11): 1 Cause grievous bodily harm with intent to resist arrest on 20 September 2017 (s 33(2)(b) Crimes Act 1900 (NSW) - maximum penalty imprisonment for 25 years). 2 Assault police officer in the execution of the officer's duty on 20 September 2017 (s 60(1) Crimes Act - maximum penalty imprisonment for 5 years). 3 Resist police officer in the execution of the officer's duty on 20 September 2017 (s 58 Crimes Act - maximum penalty imprisonment for 5 years). 4 Knowingly deal with proceeds of crime ($190,000) on 23 August 2017 (s 193B(2) Crimes Act - maximum penalty imprisonment for 15 years). 5 Knowingly deal with proceeds of crime ($100,000) on 26 August 2017 (s 193B(2) Crimes Act - maximum penalty imprisonment for 15 years). 6 Knowingly participate in activities of a criminal group by directing activities of the group on 23 August 2017 (s 93T(4A) Crimes Act - maximum penalty imprisonment for 15 years). 7 Knowingly deal with proceeds of crime ($886,110) between 19 May and 21 September 2017 (s 193B(2) Crimes Act - maximum penalty imprisonment for 15 years). 8 Knowingly take part in supply of cocaine in not less than the large commercial quantity (s 25(2) Drug Misuse and Trafficking Act 1985 (NSW) - maximum penalty imprisonment for life and/or fine of $550,000). 9 Knowingly deal with proceeds of crime ($250,000) on 20 June 2017 (s 193B(2) Crimes Act - maximum penalty imprisonment for 15 years). 10 Knowingly deal with proceeds of crime ($$344,000) on 26 June 2017 (s 193B(2) Crimes Act - maximum penalty imprisonment for 15 years). 11 Knowingly deal with proceeds of crime ($250,000) on 12 July 2017 (s 193B(2) Crimes Act - maximum penalty imprisonment for 15 years).
The charge of knowingly taking part in the supply of cocaine in not less than the large commercial quantity is an offence listed in s 16B(1)(f) of the Bail Act. It is an offence punishable by imprisonment for life so it also falls within s 16(1)(a). Accordingly, pursuant to s 16A(1) of the Bail Act, the Court had to refuse bail unless the respondent showed cause why his detention is not justified. Primarily because of the seriousness of many of the charges the respondent faces (particularly the drug supply charge) and the apparent strength of the case against him, the Court was not satisfied that cause had been shown

Facts

A statement of facts tendered by the Director summarises evidence that is available to the Crown in support of the various charges. The allegations contained in the statement are set out below. A letter by the police officer in charge of the case ("the Letter") that was tendered before Fagan J includes that the respondent and his co-accused, Gary Tan, were the subject of a police investigation between June and September 2017. The investigation included the use of electronic and physical surveillance and the interception of telecommunications.
It is noted that in the respondent's written submissions to Fagan J it was asserted that there was no evidence of the respondent engaging in any drug supply activity during the months during which he was under comprehensive physical and electronic surveillance and the occupier's notice accompanying a search warrant executed upon his arrest referred only to suspicion of money laundering, not drug supply.
The respondent is an Australian national who was living at an address in Longueville but he is alleged to have had exclusive control of an apartment in the World Towers building on Liverpool Street, Sydney.
The co-accused Tan is a Canadian national who arrived in Australia on a holiday visa on 2 May 2017.

Charges 9 to 11 - Knowingly deal with proceeds of crime (total of $844,000)

On 20 June 2017, the respondent made contact by telephone with a "known female" and arranged to meet her at her home in Yagoona. He was later seen to attend an address she had provided by text message. He was carrying a backpack and entered the premises. He left a matter of minutes later.
There were similar meetings with the "known female" on 26 June and 12 July 2017. The co-accused, Mr Tan, drove the respondent to the latter meeting.
On 21 September 2017, police executed a search warrant at the home of the "known female" and found a ledger which indicated that the respondent had delivered cash to her on the three occasions in amounts of $250,000, $344,000 and $250,000; a total of $844,000.

Charge 4 - Knowingly deal with proceeds of crime ($190,000)

On 23 August 2017 the respondent was picked up by Tan and driven to Chullora. He had a backpack which he concealed in the rear boot section of the car where the spare tyre would usually be housed. On arrival at Chullora he removed the backpack and met with "a male witness". He removed a re-usable shopping bag from the backpack and gave it to the "male witness". He was driven back to the city by Tan where he was seen to attend World Towers on Liverpool Street. Police inquiries revealed he rented a studio apartment in that building.
The "male witness" was stopped by police after the meeting. He was found to be in possession of the shopping bag which contained $190,000 in cash. The "male witness" sold or transferred to the respondent, or an associate of the respondent, 35 Bitcoins. The "male witness" also told police he had sold Bitcoins to the respondent in exchange for cash on at least five previous occasions for amounts between $10,000 and $60,000.
In the respondent's written submissions to Fagan J it was said that the "male witness" is a person named Daniel Misztal who has made a police statement. He is described as operating a legitimate Bitcoin business and has not been charged for his involvement in this transaction. He has told police that the Bitcoin was not transferred to the respondent but to a person identified as "Eric". These circumstances, together with the fact that the transaction took place in a public place, were said to counter the allegation that this was an act of money laundering.
To the contrary, we consider that an exchange of such a large amount of cash for an alternative form of currency that may be readily transferred anywhere in the world, seemingly without AUSTRAC notification, is consistent with how a person might seek to deal with the proceeds of crime. The fact that the exchange occurred away from any legitimate business premises and the transfer was to a person only identified as "Eric" further supports that inference.

Charge 5 - Knowingly deal with proceeds of crime ($100,000)

On 26 August 2017 the co-accused Tan drove the respondent to Birrong where he removed a bag from the car and met with two females. On the journey back to the city, the respondent was recorded in a conversation with Tan saying that he had given "him" $100,000. (The recipient is not identified in the statement of facts.)

Charges 1 to 3 - assaulting and resisting police

On 20 September 2017 police entered the studio apartment at World Towers in order to install a surveillance device. As they entered the room they identified an internet connected motion sensing camera pointing to the front door. The officers withdrew from the room. However, the camera was of a type that sent a short video and audio recording to a nominated mobile phone.
Within minutes, police conducting physical surveillance of the respondent saw him leave his home in Longueville with his girlfriend. As a marked police car drove past he was seen to hide behind some bushes. He and his girlfriend then travelled in a taxi to Chatswood from where they caught a train to Artarmon. At Artarmon the respondent was approached by police and told that he was under arrest. He resisted the attempt to arrest him by "thrashing his body around and attempting to pull away from the officers". In the course of the scuffle that ensued, a detective fell to the ground and sustained serious injury. Despite her screams of pain the respondent continued to resist until another officer brought him under control. Other officers arrived and he was handcuffed. The injured officer was taken to hospital and required surgery for a broken leg and seriously damaged ankle ligaments and tendons.
The Letter includes that the injured officer had still not returned to work as at 9 November 2017.
The written submissions to Fagan J include the assertion that the injury was caused by the respondent falling on top of the officer. Further, the respondent asserts that the officers did not show any police identification. There was no assertion that the respondent did not otherwise resist or assault police officers.

Items found on arrest

The respondent was found to be in possession of: ● His passport. ● Four mobile phones. ● An electronic swipe card and a set of metal keys to the studio apartment at World Towers. ● Documents relating to the rental of a number of safety deposit boxes and keys to the same. ● Bank cards and letters in other persons' names. The Letter includes that police have confirmed that at least one of these persons are the victim of identity theft.
The respondent declined to be interviewed. That was his right, of course, but what this means is that at present there is no alternative version of events to be balanced against the allegations made by the prosecution.

The studio apartment at World Towers

According to the statement of facts, the respondent has been observed by physical surveillance and CCTV attending the studio apartment at World Towers on a large number of occasions from 19 May 2017 onwards. It was rented in his name and he had the only electronic swipe card for it. The CCTV footage had not been completely reviewed by police. In the Letter it is indicated that police are still reviewing over 15,000 video files of CCTV recordings. What had been assessed at the time the statement of facts was prepared "shows that [the respondent] on nearly every occasion attends this unit alone" but the Letter includes that he attended "on occasion with other unknown persons".

Charge 8 - Knowingly take part in supply of large commercial quantity of cocaine

A search warrant was executed at the World Towers apartment following the respondent's arrest. What the police found included: ● 33 individual items of packaging consistent with the importation of one kilogram blocks of cocaine. Presumptive testing on residue inside these packages indicated the presence of cocaine. ● Numerous heat sealed bags containing a white residue, each being labelled with figures believed to be indicative of weight. ● In total, there were hundreds of bags believed to have once contained prohibited drugs and numerous bags that are believed to have once contained cash. ● A locked suitcase, which was opened with a key found in the respondent's possession when he was arrested, containing timber press plates with stencils to imprint "XXX" and "8S" onto powder. ● A mechanical press of a type commonly used in conjunction with the press plates to compress powdered cocaine into individual blocks for supply. (It is asserted in the written submissions to Fagan J that this, and the previously mentioned items, have not been found to have traces of cocaine on them.) ● Two more locked suitcases; one containing cash (see Charge 7 below) and the other containing items believed to be linked to the block press. ● Numerous heat sealable bags and a heat sealing device; scales; a money counting machine; two sets of breathing apparatus; and numerous disposable gloves. ● Seven mobile phones. ● A camera connected to a mobile internet device.
The written submissions to Fagan J included an assertion that the analyst certificate now served on the respondent's solicitors indicates that no fingerprints have been retrieved from items found in the apartment that are said to be associated with drug supply.
Police also found the remnants of two UPS packages (boxes) in the name of Kenneth Taylor and Harold Farley with "Mountain House Food" labelling on them. Also found in the apartment were a large number of Mountain House Food boxes and hundreds of pouches containing what appeared to be long-life dehydrated food products. In amongst these packages were numerous small plastic bags with numbers such as "60" and "90" written on them with white powder residue inside. In the Letter it is said that "further resealable packaging containing white powder residue was located" and "forensic analysis has confirmed this powder to be … cocaine".
A shredding machine was found which contained shredded plastic packaging, consistent with the Mountain House Food packaging. Police believe there had been an attempt to destroy evidence relating to the suspected importation of cocaine from the United States.
Police have identified 22 UPS consignments sent to either "Harold Farley (c/o SSIC)" at an address in Macquarie Place, Sydney or "Kenneth Taylor (C/O Nichemetrics)" at an address in Barangaroo between 14 October 2016 and 27 June 2017. Of these consignments, 19 purported to contain some form of "Mountain House emergency food supplies" and weighed between 5 kg and 11.61 kg.
The premises at Macquarie Place and at Barangaroo are "virtual offices" run by a company called Servcorp. The records of Servcorp indicate that a virtual office of SSIC was opened by a person purporting to be Harold Farley and a virtual office of Nichemetrics was opened by a person purporting to be Kenneth Taylor. On both occasions, American identification was provided (passport and driver's licence). Inquiries with the Federal Bureau of Investigation confirmed the identification documents were false. Police suspect that both Farley and Taylor were victims of identity fraud in order to conceal the identity of the person sending the packages from the United States of America.
The records of Servcorp also revealed that on seven occasions between 19 May and 29 June 2017 a person who usually signed as "Gary Tan" collected packages purporting to contain Mountain House products from the Macquarie Place or Barangaroo addresses. CCTV footage from World Towers shows the respondent carrying a box or a bag in the hallway leading to the apartment on each of these days. When the apartment was later searched by police, two boxes were found with labels correlating with boxes that had been collected from Macquarie Place and Barangaroo.
The Letter provides details of the occasions when Tan collected packages and when the respondent was seen taking a box to the World Towers apartment.
On the basis of the foregoing evidence, police "strongly suspect" that the Mountain House Food imports were used to conceal cocaine. It is alleged that the World Towers apartment was used solely for the purpose of deconstructing a large quantity of cocaine which was then re-processed, pressed into block form and sold. Police estimate that no less than the large commercial quantity of cocaine was involved.
As at the time the statement of facts was drafted, 26 bags that police believed had once contained cocaine had been examined by the Forensic and Analytical Science Service. It was found that 25 of the bags were positive for cocaine. The residue scraped of the bags equated to 6.2 grams of cocaine.

Charge 7 - knowingly deal with the proceeds of crime ($886,110)

Another suitcase found in the World Towers apartment was locked but was opened with a key found in the respondent's possession. It contained $886,110 in cash, mainly comprised of $50 and $100 notes in $10,000 bundles. Some of the bundles were sealed within vacuum sealed bags and some were loose within the suitcase. It is alleged that this money was derived from the sale of no less than a large commercial quantity of cocaine and was to be taken by the respondent and Tan to various persons throughout Sydney in an attempt to launder it.

Safety deposit box

Police identified and examined one of the safety deposit boxes suspected of being under the control of the respondent. $200,000 in cash was found within it. At the hearing of the detention application, the Crown Prosecutor informed the Court that the police investigation in relation to this is ongoing but further charges are expected to be laid.

Search at the respondent's home

Police searched the home occupied by the respondent and his parents. Among the items found were a driver licence in the respondent's name but with the photograph cut out and removed and a FedEx international package addressed to the respondent received from America on 18 September 2017. These items are the subject of ongoing investigation.

Charge 6 - Knowingly direct activities of a criminal group

Numerous conversations between the respondent and Tan have been covertly recorded pursuant to warrants issued under the Surveillance Devices Act 2007 (NSW). It is said that "these recorded conversations makes it clear that Hing has been actively directing the activities of their criminal group". The respondent has been recorded "giving Tan directions as to locations to drive to and the like". In one such conversation he was recorded instructing Tan on anti-surveillance techniques, such as how to tell if they are being followed and directing Tan to leave his personal phone at home. An extract from that conversation is provided in the statement of facts. It includes the respondent saying to Tan, "Just never bring the private phone to any drop or buys".
Mr Turnbull SC drew the Court's attention to the definition of a "criminal group" in s 93S(1) of the Crimes Act which includes the requirement that it be a group of three or more people. It is not apparent who apart from Tan is suggested by the prosecution as comprising this "group".

At a glance

Court

Decision date

Before

Source

Judgment (27 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (9)

Cited By (6)