Yuan v Huang

1. [1]

   By a Notice of Motion filed on 29 September 2022, the plaintiff seeks a declaration that the first defendant (Mr Huang) be held in contempt of Court by engaging in the conduct set out in the Statement of Charge (SOC) annexed to the Notice of Motion and that he be punished for that contempt. The charges concern alleged breaches of freezing orders made by this Court on 4 June 2021 and his intentional misleading of the Court on 30 June 2021 when those freezing orders were extended until further order, as to the true position of his assets at that time.

2. [2]

   At the hearing, the plaintiff was represented by senior and junior counsel and Mr Huang was represented by a solicitor. Both parties filed and served written opening and closing submissions, as well as supplementary written submissions regarding Exhibits E and F (referred to below) after the hearing concluded.

3. [3]

   The plaintiff relied on one affidavit of Ms Yu Chen and three affidavits of Ms Athena Yu, both of whom are solicitors acting for the plaintiff, and Ms Yu was cross-examined. Mr Huang relied on one affidavit made by him, and he was cross-examined. While it was apparent from Mr Huang’s cross-examination that English is not his first language, he understood English well enough not to require an interpreter and I am satisfied that his understanding of English was sufficient to enable him to understand and respond to the questions he was asked.

4. [4]

   The motion has proceeded on the basis of the usual procedure on a charge of civil contempt that the Court will deal first with the question of guilt and then will conduct a separate hearing on penalty if a finding of guilt is made.

Background facts

1. [5]

   These proceedings were commenced in June 2021. The plaintiff contends that in January 2021 she was induced by the defendants’ misrepresentations to pay the amount of $300,000 to bank accounts nominated by Mr Huang for the purpose of making an investment with Sunwin Investment Pty Ltd (Sunwin). Mr Huang and Ms Yanyu Li, the second defendant, were the directors of Sunwin. The subject matter of the misrepresentations was the investment capacity of Sunwin which went into liquidation on 19 April 2021 and was de-registered on 2 December 2021.

2. [6]

   On 4 June 2021, Ward CJ in Eq (as her Honour then was) made freezing orders against both defendants in the form prescribed in Practice Note SC Gen 14. Those orders were extended by Parker J on 10 June 2021 (until 5:00pm on 30 June 2021) and by Kunc J on 30 June 2021 (until further order) and remain in force. Accordingly, the freezing orders were in force during the period of the alleged contempt, being 30 June 2021 to 26 October 2021.

3. [7]

   Order 6 of the freezing orders made against the first defendant, Mr Huang, imposed an obligation on him not to remove from Australia or in any way dispose of, deal with, or diminish the value of any of his assets in Australia up to the unencumbered value of $300,000. That obligation was only subject to the exceptions set out in order 10. For the purposes of the resolution of this matter, it is only necessary to set out orders 6, 7, 8 and 10 which provide as follows:

4. [8]

   The property referred to in order 7(1)(c) is an apartment in Gordon, a suburb of Sydney (Gordon property). It is not in dispute that the market value of the Gordon property exceeded $300,000 at all relevant times.

5. [9]

   The freezing orders made against the second defendant, Ms Li, were in the same form (including order 7(1)(c)).

6. [10]

   Mr Huang admits that he was served with the freezing orders on 7 June 2021. He was present in Court at the hearings before Parker J and Kunc J on 10 and 30 June 2021 respectively, at which time the orders were extended.

7. [11]

   A sealed copy of the freezing orders, and the orders extending them, were served personally on Mr Huang and also sent to his email address on 7, 10 and 30 June 2021, thereby satisfying the requirement imposed by UCPR r 40.7(1).

8. [12]

   It is relevant to note that on 10 June 2021, Parker J specifically directed Mr Huang (who was self-represented) to the obligations imposed upon him by the freezing orders and the consequences if he breached them (including imprisonment). The following exchange occurred between Mr Huang and Parker J (CB170–171):

9. [13]

   In this passage, Parker J refers to Mr Huang having said that he had no money. This is a reference to an earlier exchange recorded in the transcript (CB162) as follows (emphasis added):

10. [14]

    As indicated by this exchange, Mr Huang was told by Parker J that he needed to file an affidavit to comply with order 8 notwithstanding that he maintained that he had no assets. Parker J stood the matter over to a later date for hearing before Kunc J to determine whether the freezing orders should be extended, with Mr Huang being allowed further time to file an affidavit complying with order 8.

11. [15]

    On 22 June 2021, Mr Huang filed an affidavit dated 21 June 2021 expressed to be made by him but unsigned, which stated relevantly (emphasis added):

12. [16]

    When the matter came before Kunc J on 30 June 2021, his Honour heard submissions from the plaintiff and Mr Huang (who was again self-represented) as to whether the freezing orders should be extended, and decided to extend the freezing orders against both defendants until further order. Mr Condon SC, who appeared for the plaintiff, then requested Kunc J to make an order directing Mr Huang to file an affidavit complying with order 8(a) because it had not been complied with. Kunc J raised this with Mr Huang and the following exchange occurred (CB195–196) (emphasis added):

Alleged contempts

1. [17]

   The alleged contempts fall into two categories:

   1. (1)

      breaches of order 6(a) of the freezing orders as a result of:

   2. (2)

      misleading the Court (Kunc J) on 30 June 2021 as to the correct position as to the balance of his ANZ bank account on that date: SOC, [103]–[108].

2. [18]

   I will deal with each of these categories in turn.

Relevant principles

1. [19]

   It was not in dispute that the elements which the plaintiff must prove to establish a civil contempt arising from the breach of a court order are as follows, adopting the summary by Gillard J in National Australia Bank Ltd v Juric [2001] VSC 375 at [37]:

2. [20]

   In relation to the fourth element, it is sufficient that the alleged contemnor knew the substance of the prohibition in the court order or had knowledge at a level that would induce an honest, reasonable and responsible person to check the precise terms of the order: Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32 at [53]; Huang v Liao [2022] NSWSC 347 at [33]–[37]. Further, it is not necessary for the plaintiff to establish that the alleged contemnor understood the true meaning of the terms of the order or that he or she was aware that his or her conduct constituted a breach of the order, although the construction placed by the alleged contemnor upon the order may be relevant to the question of penalty: Huang v Liao [2022] NSWSC 347 at [40].

3. [21]

   In relation to the fifth element, it is not necessary for the plaintiff to establish that the alleged contemnor intended to deliberately breach the order. Rather it is sufficient that the alleged contemnor deliberately committed an act or omitted to do some act which had the effect of breaching the order. As Black J observed in Huang v Liao [2022] NSWSC 347 at [32]:

4. [22]

   Although proceedings for breach of a court order are a civil proceeding, each of the five elements identified in [16] needs to be proved beyond reasonable doubt: Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 at 534; NHB Enterprises Pty Ltd v Corry (No 7) [2021] NSWSC 741 at [194]–[195].

5. [23]

   As to the meaning of a reasonable doubt in this context, I have approached the matter in the same way as Delany J in Zhang v Shi (No 5) [2021] VSC 695 where his Honour said at [18], by reference to Green v The Queen [1971] HCA 55; (1971) 126 CLR 28 at 32–33:

Proper construction of the freezing orders

1. [24]

   It is necessary to deal first with two submissions by Mr Huang applicable to all of the category 1 transactions in support of the contention that there had been no breach of order 6(a) of the freezing orders.

2. [25]

   First, Mr Huang contended that orders 6 and 7 were ambiguous in that the Gordon property was included in the definition of “your assets”, which gave rise to uncertainty about the scope of the orders and what they required of him. It was submitted that this ambiguity in order 7 carried the real risk of misleading Mr Huang because it clearly identified his assets as including the Gordon property, and this was evident from the fact that Mr Huang had understood the definition of his assets as including the Gordon property which had a value of around $800,000.

3. [26]

   A person cannot be committed for contempt of court for breach of a court order the terms of which are ambiguous because it cannot be said what it was that required compliance: Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [52], [57]. However, it is necessary to distinguish between the situation where an order is ambiguous and the situation where there are difficulties in determining the meaning of the order which can be resolved by construction of the order, bearing in mind that the contemnor’s lack of understanding of the true meaning of the order does not mean that the contemnor cannot be found guilty of contempt: Pang at [53].

4. [27]

   In Pang at [54]–[56], Beazley JA (with whom McColl JA and Lindgren AJA agreed) approved the following observations of Campbell J (as his Honour then was) in Kirkpatrick v Kotis (2004) 62 NSWLR 567; [2004] NSWSC 1265 at [55]:

5. [28]

   The freezing orders take the form of a long-standing precedent (being that set out in Practice Note SC Gen 14). Order 6(a) imposes an obligation on Mr Huang not to remove from Australia or in any way dispose of, deal with, or diminish the value of any of his assets in Australia up to the unencumbered value of $300,000, subject to two qualifications.

6. [29]

   The first is order 6(b) is where the unencumbered value of his Australian assets exceeds $300,000, in which case he may remove those assets from Australia, or dispose of or deal with them or diminish their value so long as the total unencumbered value of his Australian assets still exceeds $300,000.

7. [30]

   The second is in order 6(c), which is where the unencumbered value of his Australian assets is less than $300,000, but he has assets outside Australia in which case the order deals with the extent to which he can dispose of those ex-Australian assets (which is not presently relevant).

8. [31]

   Each of the paragraphs of order 6 directs attention to the identification of “your assets” and their “value”. Each of those terms is defined in order 7.

9. [32]

   Under order 7(1), the term “your assets” is defined in inclusive terms and extends to assets in which Mr Huang has an interest less than full ownership. Order 7(2) then states the meaning of the expression “the value of your assets” which is “the value of the interest [Mr Huang] has in your assets”. This is necessary given that the restraints in order 6 are identified by reference to a monetary amount representing a particular value, in this case $300,000.

10. [33]

    Hence, while the inclusive definition of “your assets” in order 7(1) includes the Gordon property as one of “your assets”, this has no relevance to the restraints in order 6 unless the value of his interest in the Gordon property is greater than nil.

11. [34]

    As the plaintiff submitted, the definitions in order 7(1) and (2) need to be read together when determining if any of the restraints in order 6 have been breached. The construction advanced by Mr Huang would produce the absurd result that, where an asset failing within 7(1) is one which has a value in excess of $300,000 but Mr Huang’s interest in it is small or zero, the prohibition in order 6 would have no operation.

12. [35]

    I note that on the same day the freezing orders were made against Mr Huang, orders in the same form were made against his former wife, Yanyu Li. The Gordon property is also included in the corresponding order 7(1)(c) of the freezing orders made against Ms Li. It can be inferred that the inclusion of the Gordon property in the definition of “your assets” for both Mr Huang and Ms Li was designed to ensure that each of them was restrained from dealing with the interest, if any, in which either of them still had in the property. However, where Mr Huang has no interest, the Gordon property has no relevance to the operation of order 6.

13. [36]

    For these reasons, I reject the submission that orders 6 and 7 are ambiguous.

Value of Mr Huang’s assets

1. [37]

   Second, Mr Huang submitted in closing submissions that the plaintiff had not discharged her burden of proving beyond reasonable doubt that the category 1(a) and (b) transactions had the result that the unencumbered value of Mr Huang’s assets fell below $300,000 because, as noted above, it was not in dispute that the value of the Gordon property at all relevant times exceeded $300,000.

2. [38]

   The plaintiff submitted that this submission should be rejected for a number of reasons. First, at no stage until final closing submissions had it been suggested by Mr Huang that he had any interest in the Gordon property. Mr Condon SC said that if he had known that Mr Huang put in issue whether he had an interest in the Gordon property, the plaintiff’s case would have conducted differently (in particular, Mr Huang would have been cross-examined on that topic but was not). Second, the evidence before the Court establishes that Ms Li acquired title to the Gordon property by transfer from a third party on 30 January 2017 which is prior to the date on which she married Mr Huang. There is no evidence to suggest that he ever acquired an interest in the Gordon property before or after that date (noting here that they were divorced in February 2020). Third, Mr Huang made statements to both Parker J and Kunc J in the earlier interlocutory hearings that he had no assets apart from the two bank accounts and made a statement to the same effect in his affidavit of 21 June 2021.

3. [39]

   Further, in his affidavit affirmed on 27 October 2022 read in this proceeding, he made a statement to the same effect, as follows:

4. [40]

   I accept the plaintiff’s submission. In particular, the statements made by Mr Huang referred to above are admissions by Mr Huang that he had no interest in the Gordon property. Further, whether he had an interest in the Gordon property at the time the category 1(a) and (b) transactions occurred was a matter on which only he could give direct evidence, and his failure to do so means, at the very least, that no inferences can be drawn in his favour on that topic: Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418–419. For these reasons, I am satisfied that while the Gordon property is included in “your assets” for the purposes of order 6, the value of his interest is nil and accordingly it has no relevance to the application of order 6 to the category 1(a) and (b) transactions.

Mr Huang’s knowledge of the terms of the freezing orders

1. [41]

   In closing submissions it was not submitted by Mr Huang that he did not have knowledge of the terms of the freezing orders. I am satisfied beyond reasonable doubt that he did know the substance of the prohibition contained in orders 6, 7 and 10, as indicated both by his affidavit of 27 October 2022 (paragraphs 7-8) and his evidence in cross-examination (T121.19-46).

Category 1(a): 26 payments for gambling

1. [42]

   During the relevant period, Mr Huang made 26 payments to entities engaged in gambling, being Ladbrokes, Neds, Playup, Unibet, Bet365, Sportsbet and Pointsbet. He admits all these payments were made and asserts that they were “arbitrage” investments.

2. [43]

   In closing submissions, Mr Huang relied upon order 10(c), contending that all the transactions were payments in the ordinary and proper course of his business of arbitrage investments. Mr Huang’s evidence as to the nature of the arbitrage he was engaged in was opaque, but in essence it appeared to be that he would make two bets on the same event (usually a sporting event) and asserted that this enabled him to generate a small profit on each bet (T134.14).

3. [44]

   Mr Huang bears the onus of establishing that any of the exclusions in order 10 applies: ASIC v Sigalla (No 3) [2010] NSWSC 1076 at [46]–[47]; CC Containers Pty Ltd v Lee [2015] VSC 477 at [42]–[43]. I am not satisfied that Mr Huang was conducting a business in relation to the so-called arbitrage investments during the relevant period for the following reasons.

4. [45]

   There is a well-recognised distinction between gambling and the conduct of a business: see eg. Brajkovich v Federal Commissioner of Taxation [1989] FCA 683; (1989) 89 ALR 408 at 414. However, there is no reason in principle why gambling activities cannot constitute a business if the gambling activity satisfies the requirements for characterisation as a business. This was recognised by Hill J in Babka v Federal Commissioner of Taxation [1989] FCA 560; (1989) 89 ALR 373 where his Honour said at 380:

5. [46]

   In Woods v Deputy Commissioner of Taxation (1999) 43 ATR 491; [1999] FCA 1589, Sackville J made the following observations on what must be established in order for a particular activity to be properly regarded as constituting a business:

6. [47]

   The problem for Mr Huang in the present case is that he has advanced no evidence (beyond mere assertion) to show that, by application of the established criteria set out above, he was conducting a business in relation to his gambling activities.

7. [48]

   Further, his affidavits of 18 February and 27 October 2022 stated that his occupation was “unemployed”. Mr Huang gave the following evidence on this topic in cross examination (T111–112):

8. [49]

   Earlier, Mr Huang had accepted that he was still gambling in February 2022 T111.11). I accept the plaintiff’s submission that had he truly thought he was engaged in a business (as an arbitrage investor) at that time, he would have said so in his affidavits (as he accepted in the passage set out in the previous paragraph). When that was put to him, he asserted that he had not got any legal advice, which I cannot accept as an explanation because he had retained his present solicitor by February 2022.

9. [50]

   For the above reasons, in my opinion, Mr Huang has not discharged his onus of establishing that any of the category 1(a) transactions were excluded by order 10(c), and no other exclusion in order 10 was relied on.

Category 1(b): payments to Ms Luo and Ms Zhu

1. [51]

   Mr Huang made payments totalling $38,900 between 2 and 21 July 2021 to Ms Luo and Ms Zhu. He did not deny making the payments but asserted that they were made on account of repayment of a loan provided to him by Ms Luo. Mr Huang bears the onus of proof of demonstrating that the asserted justification for the payments falls within one of the exclusions in order 10.

2. [52]

   The first problem with Mr Huang’s contention is that loan repayments do not come within any of the exclusions in order 10, except potentially order 10(d). That exclusion would apply if the payments constituted the discharge of obligations bona fide and properly incurred under a contract predating the making of the freezing orders, provided that Mr Huang gave written notice of the particulars of the obligation pursuant to order 10(d) before making the payment. He did not do so.

3. [53]

   A second problem with Mr Huang’s contention is that the evidence before the Court does not establish that the payments to Ms Luo or Ms Zhu were repayments of a loan. The alleged lender, Ms Luo was not called to give evidence, despite making an affidavit. No explanation was given for her absence and a Jones v Dunkel inference can be drawn that her evidence would not have assisted Mr Huang’s case. It was open for Mr Huang to compel Ms Luo’s attendance by subpoena, particularly when what she had to say had been set out in the affidavit she had previously sworn, which had been served on the plaintiff: J D Heydon, Cross on Evidence (LexisNexis, 13th ed, 2021) at [1215].

4. [54]

   There was no evidence before the Court as to the amount or terms of the alleged loan. Mr Huang’s evidence on this topic was unreliable. He said in cross-examination that the rate of interest was roughly 7% per month, but it is not possible to identify — by reference to the date of the alleged loans — any transaction that represents payment of interest at that rate. Mr Huang pointed to the payment on 27 July 2021 of $3,340, but this sum is greater than what would be payable on any loan monies that were then advanced ($30,000 as per the bank statement in CB 272) at the rate asserted (T79.13–80.38). Further, he could not recall, initially, exactly when the first loan was advanced by Ms Luo (T79.3). He initially contended that Ms Luo lent $10,000 - $15,000 between October 2020 and June/July 2021 (T81.35) but that later changed to mid July 2021 (T82–83).

5. [55]

   Ultimately, there was no evidence to support the proposition that there was a loan (or an obligation on Ms Luo to make a loan) before the freezing orders were made on 4 June 2021 and hence none of the exclusions in order 10 are made out.

6. [56]

   For the above reasons Mr Huang has not discharged his onus of establishing that the category 1(b) transactions were excluded by order 10.

Conclusion on Category 1

1. [57]

   I am satisfied beyond reasonable doubt that each of the matters set out at [19] above has been established for each of the payments the subject of the category 1(a) and (b) transactions.

Category 2: Misleading the Court on 30 June 2021

1. [58]

   There will be a contempt of court where words used, or conduct engaged in, in the face of the Court or in the course of proceedings, are such as would interfere, or tend to interfere, with the course of justice: Lewis v Ogden [1984] HCA 26; (1984) 153 CLR 682 at 688. An intentional misleading of the Court is conduct which may interfere with the administration of justice because the effective administration of justice relies on litigants telling the truth to the Court as to what has happened of relevance to the proceedings before the Court: Mahaffy v Mahaffy [2013] NSWSC 245 at [130].

2. [59]

   [103]–[108] of the SOC (omitting the particulars) are as follows:

3. [60]

   This charge in each of the alternative forms set out at [107] and [108], is capable of constituting a contempt of court.

4. [61]

   The relevant part of the transcript of the hearing before Kunc J on 30 June 2021 is set out at [16] above. The evidence establishes, and it was not in dispute, that: (1) at the time Mr Huang responded to Kunc J’s questions, he held an account with the ANZ Bank which he had opened on 23 June 2021 and which at the start of 30 June had a balance of at least $8,034.97 following a deposit made to the account on 29 June 2021 of $8,000; (2) he made a cash deposit of a further $2,750 to the account on 30 June 2021 at the Campsie branch of the ANZ Bank (which Mr Huang said was made using funds given to him by his aunt after the hearing before Kunc J); and (3) during the course of 30 June 2021 (which Mr Huang said was after the hearing before Kunc J) he withdrew $500 from the ANZ Bank at 242 Pitt Street, Sydney and made a transfer of $10,000 to his account at Ladbrokes for the purpose of betting.

5. [62]

   Initially Mr Huang’s evidence in cross-examination was that in responding to Kunc J’s questions he was merely restating what he had said in his unsigned affidavit of 21 June 2021 set out at [15] above (T93.29–96.18), which was apparently true at the time he prepared it. I accept the plaintiff’s submission that even accepting that Mr Huang is not fluent in English, it would have been obvious to him that Kunc J was speaking of the position as at the time of the hearing on 30 June 2021. It is apparent from the transcript that Kunc J was plainly talking about the need to file a fresh affidavit to comply with Order 8 of the freezing orders made on 4 June 2021 because the unsigned affidavit of 21 June 2021 did not comply with Order 8 (CB 194) and the focus of his Honour’s enquiries was the position at that time. This is evident from his question as to whether Mr Huang was saying that the only thing he effectively owned was the 2 bank accounts. Mr Huang was, consistently with that, speaking in the present tense and did not qualify his answers by reference to his earlier affidavit. Both the words used and the context (including the foreshadowed further affidavit as to assets) would have left Mr Huang in no doubt that his Honour was speaking about the position on that day.

6. [63]

   Mr Huang denied that he did not tell Kunc J of this bank account because he wanted to use it for his betting activities (T98.27). Mr Huang was cross-examined on this at length, during the course of which he gave the following evidence in answer to questions from me (T102.35):

7. [64]

   In my opinion it is clear from this evidence that Mr Huang deliberately refrained from mentioning his ANZ account to Kunc J because he wanted to prevent it from being included in the freezing orders. I am satisfied beyond reasonable doubt that Mr Huang knew there was money standing to the credit of this account when he responded to Kunc J’s questions.

8. [65]

   There is a dispute as to whether Mr Huang knew at the time he responded to Kunc J’s questions during the morning of 30 June 2021 that the amount standing to the credit of the ANZ account included the deposit of $8,000 which had been made on 29 June 2021 or whether he only became aware of this later on 30 June 2021.

9. [66]

   There were a number of significant inconsistencies in Mr Huang’s evidence on this topic. The first area of inconsistency is that Mr Huang stated in paragraphs 25 and 26 of his affidavit of 27 October 2022 that his mother had a conversation on 25 June 2021 with Ms Li (the second defendant) about his mother borrowing the amount of $8,000 from Ms Li to enable his mother to meet her medical expenses, and that his mother asked him for his bank account details because his mother did not have “any bank accounts”.

10. [67]

    That evidence was false in two respects. First, there is no evidence that any part of the amount of $8,000 was used for the purpose of paying the medical costs of Mr Huang’s mother. The only reasonable inference from the evidence in the ANZ bank statement (CB 271) is that he used that amount for the purpose of his gambling given that the amount of $10,000 was transferred to his Ladbroke’s account on 30 June 2021 leaving the balance of the ANZ account at $284.97 at the end of that day. Given the proximity between its receipt and disbursement, I infer that this was the purpose for which he received it.

11. [68]

    Second, the evidence was false because, to his knowledge, his mother had an account with the Bank of China in Chinatown, into which her fortnightly pension was received. Mr Huang gave the following evidence on this topic in cross-examination (T89):

12. [69]

    The second area of inconsistency is that Mr Huang stated in paragraph 26 of his affidavit of 27 October 2022 that his mother did not tell him when the amount of $8,000 would be transferred to his ANZ Bank account. However, he said in cross-examination that she told him that it would be transferred to his ANZ Bank account “between one to two weeks” (T101.2). I infer that this change was designed to assist his case that he did not know when responding to Kunc J’s questions on 30 June 2021 that the amount had already been received.

13. [70]

    These inconsistencies in Mr Huang’s evidence regarding the circumstances surrounding the transfer of the amount of $8,000 to his ANZ Bank account indicate that his denial that he knew that the transfer had been made at the time he responded to Kunc J’s questions on 30 June 2021 is unreliable. I accept the plaintiff’s submission that when regard is had to the contemporaneous records of the events which occurred on 29 and 30 June 2021, it is likely that Mr Huang did have this knowledge at the time he responded to the questions asked by Kunc J at the hearing on 30 June 2021. In particular:

14. [71]

    In addition, I take into account that I found Mr Huang to be an unsatisfactory witness. In addition to the inconsistencies in his evidence referred to above, he frequently provided non-responsive answers to questions in his cross-examination (eg. T137) and was an argumentative witness prone to making speeches (eg. T134) when asked questions which irritated him.

15. [72]

    Ultimately nothing turns on whether Mr Huang knew when he responded to Kunc J’s questions that the deposit of $8,000 had been made to his ANZ Bank account. I am satisfied beyond reasonable doubt that, at the very least, he knew at that time that the amount of $8,000 would be transferred to the account in the very near future and intended to use that account for gambling purposes, because the gambling transactions, or arbitrage investments as he described them in his evidence, were the way he proposed to make a living and he did not disclose the ANZ account to Kunc J in order to avoid that account also being frozen (T109.35 and 114.29).

16. [73]

    For these reasons I am satisfied beyond reasonable doubt that Mr Huang misled Kunc J on 30 June 2021 as to the assets he owned on that date in the manner identified in the SOC at [103]–[107] and accordingly that charge is made out.

Exhibits E and F

1. [74]

   On the second day of hearing, an exchange took place between me and Mr Huang as follows (T125):

2. [75]

   This exchange occurred after it became apparent that Mr Huang had in the witness box some handwritten notes he had prepared, which Mr Condon called for and became Exhibit E. On the third day of the hearing, Mr Huang admitted in cross-examination that he had a folder with him in the witness box on the earlier occasion as well as Exhibit E, and this folder became Exhibit F. He gave an explanation in re-examination for his failure to mention that he had the white folder with him when he answered my questions recorded above, including in the following exchange between me and Mr Huang (T178):

3. [76]

   Mr Huang’s response is not entirely clear, reflecting his poor English, but I understand his evidence to be that he did not look at the material in the white folder during the course of giving his evidence because the white folder was being used by him for the purposes of his submissions in the matter and he understood my questions to be directed to whether there was any other material in the witness box which he was referring to in giving his evidence apart from Exhibit E. On balance, I accept his explanation and that he was not deliberately intending to mislead the Court.

Conclusion

1. [77]

   For the above reasons I am satisfied beyond reasonable doubt that each of the charges in the SOC has been made out. I will invite the parties to bring in short minutes setting out the form of the declaratory relief to reflect this decision and will set the matter down for a directions hearing to establish a timetable for the hearing on penalty and for the determination of costs of the motion.