Director of Public Prosecutions (NSW) v Zhang

Legislation Cited: Confiscation of Proceeds Crime Act 1989 (NSW), ss 4, 7, 13, 24, 25
Crimes Act 1900 (NSW), ss 193B, 193E
Criminal Assets Recovery Act 1990 (NSW), ss 10A, 28A

Category: Principal judgment

Parties: Director of Public Prosecutions (NSW) (Plaintiff)
Xiao Jie Zhang (Defendant)

Representation: Counsel:
A Norrie (Plaintiff)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Plaintiff)
Defendant (self-represented)

File Number(s): 2025/00067399

REASONS FOR JUDGMENT

Introduction

1. By a summons filed on 19 February 2025, the Director of Public Prosecutions (NSW) (the ‘Director’) applies for a pecuniary penalty order against Xiao Jie Zhang, the defendant (‘Mr Zhang’), under s 24(1) of the Confiscation of Proceeds Crime Act 1989 (NSW) (‘the Act’) in the sum of $530,926.21.

2. The Director’s standing to apply for a pecuniary penalty order is sourced in s 13(1)(b) of the Act, with the Director falling within the statutory definition of an ‘appropriate officer’ (as that expression appears in s 4(1) of the Act) entitled to apply for that particular form of relief.

3. The Court’s essential task under s 24(1) is to assess the value of the benefits which Mr Zhang derived because of his commission of the offences. That valuation exercise is to be carried out in accordance with various prescriptions in s 25 of the Act, which, amongst other things, sets out a list of relevant considerations (in s 25(2)). The quantum of the penalty to be imposed reflects that assessment of the value.

Factual background to the Director’s application

4. On 10 February 2023 Mr Zhang pleaded guilty to three offences on an indictment under ss 193B and 193E of the Crimes Act 1900 (NSW). This occurred after a criminal proceeding was commenced in the Local Court on 27 February 2020. Mr Zhang was committed to District Court on arraignment on 21 January 2021.

5. On 23 August 2024, he was sentenced by a Judge of this Court (Harris DCJ) to a term of imprisonment for a period of three years, to be served by an order for intensive correction. This Court thereby qualifies as an ‘appropriate court’ under s 4(1) of the Act. Further, since the Director’s application was made within 6 months after the date of sentence (i.e. the application being filed before the end of the ‘relevant period’, as defined in s 4(1)), the time limitation to apply for a pecuniary penalty order in s 13(3) is also complied with.

6. The three offences all involved monetary sums:

7. One count of obtaining a financial advantage ($404,581.10);

8. One count of knowingly dealing in and intending to conceal proceeds of crime ($114,227.20); and

9. A final count of knowingly dealing in the proceeds of crime ($126,345.11).

10. As all of the charges were prosecuted on an indictment, they constituted ‘serious offences’ under s 7 of the Act. Also, there is no controversy that within the meaning of s 5, Mr Zhang was ‘convicted’ of these serious offences.

11. As Counsel for the Director explained, the quantum of the penalty was primarily calculated by the aggregate sum of the two amounts of money reflected in Counts 1 and 3 on the indictment. The amount of money in Count 2 was excluded from the Director’s calculation of the penalty as it concerned Mr Zhang’s use of funds he obtained which were the subject of count 1.

12. The nature of count 1 concerned Mr Zhang’s unauthorised use of an American Express account on 70 occasions to credit an account in his mother’s name with a card held in his name in the period 20 December 2015 to 18 April 2017. The particulars of the conduct are set out in Agreed Facts 30–47 (incl.) in a statement that Mr Zhang had signed on 10 February 2023. This statement of agreed facts appears as Annexure ‘B’ to the affidavit of Bonan Xia, a solicitor employed by the ODPP, affirmed 19 February 2025.

13. The nature of count 3 concerned his spending on nine Amex credit cards fraudulently registered by him. The proceeds of crime were the available credits on those cards. The detailed particulars concerning the transactions appear at paragraphs 65–82 (incl.) of the same agreed statement of facts.

14. The overall period over which the offences on these counts occurred was identified by Counsel for the Director as being between September 2015 and September 2018.

15. On the Director’s case, for the purposes of s 25(2)(a) of the Act, the value of the benefits that Mr Zhang derived simply represents the money that came into his possession or control (or another person at his request or direction) because he committed the offences.

16. In the circumstances of this case, the Director argued that it is unnecessary for the Court to consider any other consideration in s 25(2) beyond that which appears in s 25(2)(a) of the Act. For example, this was not a case where Mr Zhang alluded to difficulties in his capacity to pay any pecuniary penalty (ss 25(2)(d) or (e)) nor was there any forfeiture order made that might lead to an adjustment of the amount of pecuniary penalty under s 24(2) of the Act.

17. Subject to Mr Zhang’s defence, I accept that the Director has made out her case on the assessment of quantum of the pecuniary penalty order.

Mr Zhang’s defence

15. Mr Zhang, who appeared for himself at the hearing, prepared an affidavit in somewhat irregular form (Exhibit 1). He attested to its truth when he gave evidence.

16. The gist of his defence is that he had previously paid the New South Wales Crime Commission the sum of $450,000 in settlement of ‘asset-related claims linked to this matter’, a sum of money, he deposed, which he financed through the sale of his real properties. Having paid this sum, Mr Zhang asserted, all criminal matters concerning him had been prosecuted, sentencing was completed, and he bore no further liability to the State.

17. It became evident that the payment to the NSW Crime Commission (the ‘Crime Commission’), which Mr Zhang referred to in his affidavit, concerned orders made in a proceeding commenced by the Crime Commission against Mr Zhang in the Supreme Court of New South Wales (proceeding number 2019/37801) which subsisted in the period January to August 2019, when it was finalised on 21 August 2019. [1] The Crime Commission commenced that proceeding on 31 January 2019 in order to confiscate assets owned by Mr Zhang after a charge had been laid against him for recklessly dealing with the proceeds of crime on 10 March 2009. The Crime Commission obtained an injunction [2] to restrain Mr Zhang’s dealings in all of his interests in property on 31 January 2019. That charge of recklessly dealing with the proceeds of crime was also dealt with in the District Court in a proceeding that commenced in 2010. Mr Zhang was convicted of that offence on 21 June 2012 after pleading guilty to it.

18. A copy of the orders of the District Court on 21 June 2012 (made by Jeffreys DCJ) and an agreed statement of facts signed by Mr Zhang on 10 February 2012 were in evidence. In summary, the charge concerned the sale of an array of electrical and electronic goods and gift vouchers on eBay that were suspected of having been illegally obtained.

19. In this hearing, Mr Zhang was cross-examined and it was squarely put to him that his defence amounted to a lie; a proposition which Mr Zhang refuted.

20. In oral argument, Mr Zhang had nothing to add beyond that which appeared in his affidavit. In so doing, he effectively indicated that there was no other matter in s 25(2) of the Act which required the Court’s consideration and pointed to no other defence. Nor was there any suggestion of any forfeiture order having been made which might affect the quantum of a pecuniary order, as required by ss 24(2)–(3).

The Director’s reply to Mr Zhang’s defence

21. In her evidence in reply, the Director principally relied upon and read the affidavit of Jiansong Wen affirmed 14 July 2025. Mr Wen is a senior forensic accountant within the New South Wales Crime Commission.

22. Some of that evidence, at it concerns the Supreme Court proceeding commenced by the Crime Commission, has already been referred to.

23. Mr Wen deposed to the resolution of the Crime Commission’s proceeding on 21 August 2019 when orders were made by consent. At Annexure E to Mr Wen’s affidavit is a copy of the consent orders executed, among others, by Mr Zhang, on 15 August 2019 as well as his then solicitor.

24. On the face of the consent orders, Mr Zhang agreed to pay a sum of $375,000 (the settlement sum) as an ‘unexplained wealth order’, for the purposes of s 28A of the Criminal Assets Recovery Act 1990 (NSW).

25. Mr Wen deposed that, acting in the capacity, as he did, of being its forensic accountant, he recommended to the Crime Commission that it accept that settlement sum. Further, he deposed that in doing so, he had no regard to any criminal conduct by Mr Zhang in the District Court proceeding culminating in the sentence that was imposed by Judge Harris on 23 August 2024 relating to what might be referred to as the ‘Amex fraud charges’. Indeed, he deposed that he was unaware of Mr Zhang’s conduct constituting those charges during the pendency of the Crime Commission’s proceeding in the Supreme Court. To recall, the Supreme Court proceeding was finalised on 21 August 2019. The criminal proceeding concerning the Amex-related charges commenced in 2020. So far as Mr Wen was concerned, the Crime Commission’s proceeding that was completed in 2019 did not relate to the criminal proceeding instituted in the District Court in 2020.

Consideration

26. Counsel for the Director supplied the Court with a brief outline of submissions (MFI 1). Mr Zhang substantially relied upon his affidavit and what he said in his evidence without any meaningful supplementary argument at the hearing.

27. I do not accept Mr Zhang’s central contention that as part of a settlement with the Crime Commission entered into in 2019, which ostensibly arose from charges of ‘eBay’ frauds from about 2007 to 2009, he became discharged or released from any further liability, by way of exposure to a pecuniary penalty to the State, arising from his 'Amex’ frauds committed between September 2015 and September 2018.

28. Mr Zhang’s contention amounts to bare assertion. That, as Counsel for the Director fairly submitted, is problematic for a man who is a convicted fraudster (and for that matter, a repeat offender in that regard). Moreover, his evidence is barely admissible, amounting only to a statement of his subjective understanding of his rights when it is beyond argument that the rights of parties under contracts or agreements are objectively ascertained.

29. The inherent and objective probabilities point against it. In particular, if any settlement with the Crime Commission was intended to encompass prospective liabilities for penalties for other charges beyond the eBay frauds, it would have been expected to have been the subject of some written record. That would be vital for Mr Zhang’s own protection should an enforcement action later be brought against him.

30. It cannot be said that in his negotiations with the Crime Commission to settle the Supreme Court proceeding, Mr Zhang was on his own or did not know what he was doing. He was legally represented as part of that settlement arrangement, as indicated by Mr Hardin’s signature on the consent orders, and Mr Zhang’s reference, in section 3 of his affidavit, to the representation of Mr Greg Jones of Counsel. But in the very place where it might have been expected that some such provision for a release or discharge provision might be located – the consent orders finalising the Supreme Court proceeding – there is missing any such provisions. Also missing is any other notation about the intended parameters of the settlement arrangement as commonly intended by the Crime Commission and Mr Zhang. I note that Mr Zhang did not call Mr Hardin or Mr Jones to give corroborative evidence of his beliefs in this proceeding.

31. Mr Zhang’s defence is therefore rejected.

32. There being no other relevant consideration in s 25(2) that is material for the Court’s consideration (nor any other forfeiture order having been made), for the purposes of s 24(1) of the Confiscation of Proceeds of Crime Act*,* the Court assesses that the value of the benefits derived by Mr Zhang because of his having the committed the offences is $530,926.21.

Order

33. For these reasons, the Court orders:

34. The defendant is to pay to the State of New South Wales a pecuniary penalty of $530,926.21.

35. The defendant is to pay the Director’s costs of the proceeding, as agreed or assessed.

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Endnotes

Consent orders were made by Ierace J on 21 August 2019.

This was made pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW).