Commissioner of Police

[2022] NZHC 1451

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-895

[2022] NZHC 1451

IN THE MATTER OF

Criminal Proceeds (Recovery) Act 2009

AND

IN THE MATTER OF

An application by the COMMISSIONER OF POLICE for an assets forfeiture order

relating to specific property.

Hearing:	20 June 2022
Counsel:	C Purdon for Commissioner of Police
Judgment:	20 June 2022

REDACTED JUDGMENT OF HINTON J

This judgment was delivered by me on 20 June 2022 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Meredith Connell, Auckland

Re Commissioner of Police [2022] NZHC 1451 [20 June 2022]

[1]    On 12 May 2021, the Commissioner filed an on notice application for restraining order (restraint application) and application for an assets forfeiture order (forfeiture application) under the Criminal Proceeds (Recovery) Act 2009 (the Act),1 together with an affidavit of Marius Germishuyzen in support, dated 7 May 2021. The applications sought the restraint and forfeiture of $21,000 being the account proceeds of ANZ Bank Limited bank account [ redacted ], held in the name of Jordan Lim, transferred to the Police Trust account on 30 August 2019 (Funds).

[2]    At the first mention of the applications on 16 June 2021, Woolford J made a restraining order over the Funds as sought by the Commissioner in the restraint application.

[3]    Woolford J also directed the Registry to allocate a date in the duty Judge list in one year and one days' time for the hearing of the forfeiture application (as required by the Act given the Funds are not attributed to a respondent).

[4]As a consequence, the matter was called before me today.

[5]Counsel subsequently noticed that the applications incorrectly record the

$21,000 as the proceeds of:

(a)ANZ Bank Ltd bank account [redacted], held in the name of Jordan Lim.

[6]The $21,000 is in fact the proceeds of:

(a)ANZ Bank Ltd bank account [redacted], held in the name of Jordan Lin.

[7]    On 21 July 2021, Woolford J corrected the error in the restraining order in accordance with r 11.10 of the High Court Rules 2016

1      Criminal Proceeds (Recovery) Act 2009, ss 37(2)(e) and 50(4).

[8]    The error, as noted in the preceding paragraphs, remains in the forfeiture application.

[9]    The Commissioner requests that I amend the forfeiture application, prior to determining it, in accordance with s 47(1)(b) of the Act, by amending the description of the property in respect of which the Commissioner seeks an assets forfeiture order at paragraph l(a)(i) as follows:

(a)$21,000 being the account proceeds of ANZ Bank Ltd bank account [redacted], held in the name of Jordan Lin, transferred to the Police Trust account on 30 August 2019 (Funds).

[10]   The Commissioner also seeks an amendment to include forfeiture of any interest earned on that sum since its transfer from Mr Lin on 30 August 2019.

[11]   The Commissioner has filed an amended forfeiture application, recording the correct bank account number and owner, dated 16 June 2022 (amended forfeiture application).

Forfeiture

[12]   The following summary is  taken from Mr Germishuyzen’s affidavit dated    7 May 2022.

[13]   In July 2019, an undercover Police officer arranged to purchase methamphetamine and MOMA through social media applications from an unidentified person, who would arrange for other people to complete the drug deals.

[14]   Ziyue Wei (Mr Wei), Hao Wu (Mr Wu) and Jingnan Hu (Mr Hu) were identified as people who completed the transactions and in August 2019 they were arrested and later convicted for the supply of methamphetamine and MDMA.

[15]   On 30 August 2019, Mr Lin transferred a total of $21,000 to the Police Trust account, in three sums of $10,000, $10,000 and $1,000. Mr Lin confirmed that the

Funds were not his, and that he had no interest in them, but had merely been requested to hold them on behalf of his associate, Mr Wei.

[16]   When spoken to, Mr Wei similarly disclaimed an interest in the Funds and told Police that they had their origin with the  unidentified  person, who had requested  Mr Wei collect and distribute the Funds. The unidentified person also directed Mr Wei to collect $4,700 cash in return for one ounce of methamphetamine on 28 August 2019, and for which Mr Wei was arrested and later sentenced to imprisonment.

[17]   The same unidentified person had also previously arranged for Mr Wu to complete a number of drug deals on his or her behalf, including:

(a)selling 15 grams of MOMA on 24 July 2019 for $500 cash;

(b)selling 30 grams of MOMA on 2 August 2019 for $2,200 cash;

(c)selling 1 gram of methamphetamine on 14 August 2019 for $200 cash; and

(d)selling 56 grams of MDMA and 84 grams of methamphetamine on   20 August 2019 for $17,500 cash.

[18]   All drug deals were arranged between the unidentified person as seller, and the undercover officer as purchaser.

[19]   Mr Wei told Police he was instructed by the unidentified person to pay $5,000 to Mr Wu's co-defendant, Mr Hu, who had assisted in the drug deal on 20 August 2019, and that the money was for his legal fees.  Mr Wei says he was also instructed to pay

$2,000 to an unknown person, again at the instruction of the unidentified person.

[20]Mr Wei then transferred the Funds into Mr Lin's bank account.

[21]   The Commissioner submits and I accept that Mr Germishuyzen’s affidavit provides the Court with sufficient evidence to conclude that on the balance of probabilities the Funds are tainted property.

[22]Section 50 of the Act, provides:

50       Making assets forfeiture order

(1) If, on an application for an assets forfeiture order, the High Court is satisfied on the balance of probabilities that specific property is tainted property, the Court must make an assets forfeiture order in respect of that specific property.

…

[23]Tainted property is defined in s 5(1) of the Act, as:

tainted property-

(a)means any property that has, wholly or in part, been-

(i)acquired as a result of significant criminal activity; or

(ii)directly or indirectly derived from significant criminal activity; and

(b)includes any property that has been acquired as a result of, or directly or indirectly derived from, more than 1 activity if at least 1 of those activities is a significant criminal activity

[24]Significant criminal activity, in turn, is defined in s 6 of the Act as:

6        Meaning of significant criminal activity

(1)In this Act, unless the context otherwise requires, significant criminal activity means an activity engaged in by a person that if proceeded against as a criminal offence would amount to offending-

(a)that consists of, or includes, 1 or more offences punishable by a maximum term of imprisonment of 5 years or more; or

(b)from which property, proceeds, or benefits of a value of

$30,000 or more have, directly or indirectly, been acquired or derived.

[25]   The significant criminal activity underlying the Commissioner’s forfeiture application is the  supply  of  class  A  and  B  controlled  drugs,  as  identified  in  Mr Germishuyzen’s affidavit.

[26]   The Funds have their origin with the unidentified person, who orchestrated those drug deals with an undercover officer, while arranging for persons lower down the food chain to complete the transactions. The evidence invites the inference that

the unidentified person was involved in drug dealing on a commercial scale, and with persons other than the undercover police officer.

[27]   The Commissioner submits and I accept that, given the evidence of proven drug offending by the unidentified person and the likelihood the unidentified person was involved in further drug dealing offending, and given the Funds find their source with the unidentified person, the Court can be satisfied that on the balance of probabilities the Funds are tainted property, being the proceeds of drug offending.

[28]   Accordingly, it is appropriate to make an asset forfeiture order in respect of the Funds.

[29]   The Commissioner has not identified any person who might possess an interest in the Funds, and therefore this proceeding identifies no respondent.

[30]   Sections 19(b) and 46(b) of the Act and rule 19.9(2) of the High Court Rules 2016 recognise that no respondent is required for an originating application brought under the Act.

[31]   The Commissioner, being only required to serve an application for a civil forfeiture order on persons who to the Commissioner's knowledge have an interest in the proposed forfeited property (including, if applicable, a respondent), has not served the forfeiture application on any person.

[32]   I accept that is appropriate. There is no identifiable person who has an interest in the Funds. Both Messrs Wei and Lin have disclaimed interests in the funds. No other person who might possess an interest in the Funds is able to be identified. In a further affidavit sworn on 17 June 2022, Mr Germishuyzen confirms he has still not identified any such person.

[33]   Section 37(2)(e) of the Act provides that a restraining order that relates to property in which no person has claimed an interest expires on the date that the relevant application for a forfeiture order, which includes an application for an assets forfeiture order, is determined. That provision also provides that the application for a

forfeiture order cannot be determined earlier than one year after the making of the restraining order.

[34]   Section 50(4) of the Act provides that the Court may not make an assets forfeiture order in relation to property that no person has claimed an interest in, unless the Court is satisfied that a restraining order was earlier made in relation to the same property, the restraining order has been in place for a period of at least one year and that the Commissioner has contacted or made all reasonable efforts to contact any person the Commissioner believes may have an interest in the property.

[35]   As a year has passed since the making of the restraining order, there is no identifiable respondent or interested party, and on the basis otherwise set out above, it is appropriate to now make orders with regard to the forfeiture application and the application to amend the forfeiture application.

Orders

[36]Accordingly, I make the following orders:

(a)amendment of the application for assets forfeiture order, dated 12 May 2021, so as to correctly describe the property to be forfeited at l(a)(i), and to include any interest in that forfeiture, as follows:

(i)$21,000 being the account proceeds of ANZ Bank Ltd bank account [redacted], held in the name of Jordan Lin, transferred to the Police Trust account on 30 August 2019, and any interest earned thereon; and

(ii)an assets forfeiture order as per the amended forfeiture application dated 16 June 2022.

Hinton J