Cheng v Commissioner of Police

[2023] NZHC 340

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-002191

[2023] NZHC 340

UNDER

the Judicial Review Procedure Act 2016 and the New Zealand Bill of Rights Act 1990

IN THE MATTER OF

an application for judicial review

BETWEEN

THOMAS CHENG
Applicant

AND

COMMISSIONER OF POLICE

Respondent

Hearing:

27 February 2023

Appearances:

Applicant in person (via AVL)

SLK Shaw and HT Reid for Respondent (via AVL)

Judgment:

1 March 2023

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 1 March 2023 at 12 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Meredith Connell, Wellington. Copy to: Applicant.

CHENG v COMMISSIONER OF POLICE [2023] NZHC 340 [1 March 2023]

The case

[1]                 Thomas Cheng seeks judicial review of the compensation paid to him by Police after they lost his mobile phones. All three were seized in connection with Mr Cheng’s arrest for importing methamphetamine.

Background

[2]                 Mr Cheng was arrested 1 April 2016 for importing methamphetamine  to New Zealand. He was interviewed by Detective Sergeant Philip Sayers the same day. The Detective Sergeant seized three phones from Mr Cheng: two iPhones and a Samsung S4. He gave the phones to a colleague, presumably so they could be examined and secured.

[3]                 Mr Cheng later pleaded guilty to representative charges of importing and supplying methamphetamine. On 22 February 2018, he received a 10-year, nine-month term of imprisonment.1

[4]                 Mr Cheng later asked Police to return his phones. In March or April 2019, he complained to the Independent Police Complaints Authority they had not been returned.2

[5]                 The phones were never found. When or how they went missing remains unclear.

[6]                 Detective Senior Sergeant Brent Murray decided Police should compensate Mr Cheng for the loss of his phones:3

To calculate the amount of compensation Mr Cheng should receive for the three cellphones (two iPhone 6 plusses and a Samsung), in early April 2020 I looked up the value of second-hand phones online.

I was not aware of any receipts being supplied from Mr Cheng to show how much they had cost him, and as far as I knew the phones were not brand new. I thought the fairest outcome was to research the cost of second hand

1      R v Cheng [2018] NZDC 3344.

2      Mr Cheng’s statement of claim says he complained to the Independent Police Complaints Authority in March 2019; his affidavit in support of the claim says April 2019.

3      Affidavit of Brent Andrew Murray, 22 December 2022, paras 16–25.

cellphones. I do recall that I checked the price of new cellphones of those models, but could not find any as they were no longer sold new.

I calculated the total compensation amount of $869.97. That amount was calculated using the following process:

(a)There were no phones of the make and model of the three cellphones on TradeMe at the time;

(b)On ViberStore, an iPhone 6 plus was listed for sale for between $189.99 (for 16GB) and $369.99 (for 128GB);

(c)I was unsure of the memory size of Mr Cheng’s cellphones, so I erred towards the memory size with the highest price point;

(d)On ViberStore, a used Samsung 4 was $99.99 and a used Samsung 5 was $129.99.

(e)It was unclear whether the Samsung phone was a Samsung 4 or 5, so I erred towards the Samsung 5 with the higher price point;

(f)Adding two iPhone plus valued at $369.99 to one Samsung 5, value of

$129.99, the total amount for compensation was $869.97.

As part of our role within Asset Recovery we consider the value of an asset when determining if restraint or forfeiture will be pursued. When making that decision we defer to the second-hand value of the asset. There are some assets that appreciate in value over time and we do consider that, however most assets devalue and we need to be realistic about what potential outcome we will achieve when assets are forfeit. Hence we calculate the value of those assets by looking up the market value of a used asset on TradeMe or another online marketplace. I therefore used this same process when calculating the amount of compensation Mr Cheng should receive for the cellphones as I am not aware of any cellphones appreciating in value over time.

We do consider the sentimental impact of assets when considering the value of an asset. Generally when we think about sentimentality we consider items such as jewellery, art, cars, and things that are considered heirlooms.

I did not think that cellphones would be of sentimental value. These were the cellphones seized from Mr Cheng when he was arrested for drug dealing. I am very much aware that drug dealers are often found with multiple phones to facilitate their criminal offending and often have phones referred to as burner phones, which are phones that are used solely for criminal reasons and often have little to no identifying link to the user to minimalise attributing of the incriminating evidence to a person. I believed there was a reasonable belief that some or all of the phones were for such purpose.

As to the point raised about sentimental reasons involving the cellphone due to photos contained, that consideration did enter my thinking. I did not have any evidence at all to support the fact there may have been any sort of sentimental family photo type situation.

Mr Cheng was having his laptop returned and I thought there was the reasonable potential that if any photographs existed they could be contained on his laptop or remotely accessed from that device.

Therefore I did not place much importance at all in regards to any sentimental value of the 3 cellphones as I did not know what was contained within them.

As a result, and in line with other matters where I have been involved in the compensation of lost property for people, I deferred to calculating an amount payable to Mr Cheng based on replacement cost.

[7]In the week of 7 September 2020, Police paid Mr Cheng compensation of

$869.97.

Mr Cheng’s case

[8]                 Mr Cheng contends the compensation is inadequate. He says the phones contained videos and photographs of family members who have since died, and such imagery is “akin to that of a Taonga”.

[9]                 Mr Cheng also says the phones should not have been valued as at April 2020, but at the date they went missing, which may be as early as April 2016. Mr Cheng says each iPhone was then worth $1,200, and the Samsung, $200, a total of $2,600.

[10]             In seeking $2,600 (rather than the $869.97 he received), Mr Cheng argues Police owed him a duty of care as a bailee of the goods.

Analysis

[11]I make four points.

[12]             First, the contention Police were a bailee is of little consequence in this setting: an action in public rather than private law, for judicial review. Second, this is not a case about unreasonable search and seizure.4 It is common ground Police were entitled to seize and retain the phones, at least until they were no longer required for evidential purposes.5 Third, the decision to compensate Mr Cheng was not the exercise of a statutory power as no statutory provisions exist regarding compensation for items

4      New Zealand Bill of Rights Act 1990, s 21.

5      Search and Surveillance Act 2021, s 150(1).

misplaced by Police.6 Fourth, presupposing the decision is amenable to review, I am far from persuaded Police acted unfairly, unlawfully, or unreasonably.

[13]             Detective Senior Sergeant Murray applied principles from an asset recovery context in determining the phones’ value. That, unremarkably, led him to conclude he should identify their second-hand value. It was open to the officer to consider the phones were unlikely to have contained sentimental imagery given their apparent connection to the importation of methamphetamine. Furthermore, his valuation of the phones as at April 2020 rather than an earlier date cannot be impeached according to some legal standard, principle, or norm for the simple reason Mr Cheng offers none.

[14]             In any event, to intervene in a case such as this risks trivialising the supervisory jurisdiction of the High Court and encouraging wasteful litigation.

Result

[15]The application is dismissed.7

Costs

[16]Mr Cheng must pay the respondent 2B costs.

……………………………..

Downs J

6      Judicial Review Procedure Act 2016, s 3(1)(a).

7      So too the other aspects of Mr Cheng’s claim which, at the hearing, he accepted he was not pursuing.