COMMISSIONER OF POLICE AND BAMBOO TTHAEDON
[2024] NZHC 3054
•18 October 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-635
[2024] NZHC 3054
BETWEEN COMMISSIONER OF POLICE
Applicant
AND
BAMBOO TTHAEDON
Respondent
Hearing: On the papers Counsel:
K T O’Halloran and G E Young for Applicant
R M Mansfield KC and H Smith for Respondent
C S Fredric for Interested Parties Liang Wang and Jing LiJudgment:
18 October 2024
JUDGMENT OF WILKINSON-SMITH J
This judgment was delivered by me on 18/10/2024 at 2.30 pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Meredith Connell, Auckland R Mansfield, Auckland
C S Fredric
COMMISSIONER OF POLICE v TTHAEDON [2024] NZHC 3054 [18 October 2024]
Introduction
[1] On 23 May 2023, the Commissioner of Police obtained restraining orders in respect of the following property (the restrained property):
(a)Bank funds:
(i)all credit funds held in the ASB Bank Ltd bank account 12‑3126‑0682821‑00 in the name of Mr Tthaedon, and all interest earned thereon;
(ii)all credit funds held in the ASB Bank Ltd bank account 12‑3126‑0682821‑50 in the name of Mr Tthaedon, and all interest earned thereon; and
(iii)all credit funds held in the ASB Bank Ltd bank account 12‑3637‑0790488‑00 in the name of Mr Tthaedon, and all interest earned thereon.
(b)Cash:
(i)$93,900 cash seized by police on 15 November 2022 from 226 Onewa Road, Birkenhead, Auckland and any accrued interest; and
(ii)$90,000 cash seized by police on 16 November 2022 from safe deposit box 3092 at Commonwealth Vault, 6 Albert Street, Central Auckland and any accrued interest.
(c)Cryptocurrency:
(i)12.314 of Bitcoin seized by police from a cryptocurrency wallet (lAlRP3rXqdpBrnTi4JHePYgQ3BdtbbRUbc) on 17 November 2022; and
(ii)12.3413 Bitcoin cash seized by police from a cryptocurrency wallet (lAlRP3rXqdpBrnTi4JHePYgQ3BdtbbRUbc) on
17 November 2022.
(d)Shareholdings:
(i)15,422 Cannasouth Ltd shares, registered in the name of Mr Tthaedon and held under the common shareholder number (CSN) 336167311, and any dividends paid thereon;
(iii)84 Ryman Healthcare Ltd shares, registered in the name of Mr Tthaedon and held under the CSN 336167311, and any dividends paid thereon;
(iv)730 Smartshares ETF Aggregate Bond shares, registered in the name of Mr Tthaedon and held under the CSN 336167311, and any dividends paid thereon; and
(v)395 Smartshares NZ Government Bond shares, registered in the name of Mr Tthaedon and held under the CSN 336167311, and any dividends paid thereon.
(d)Jewellery:
(i)18ct yellow and white gold with round brilliant cut diamonds men’s ring valued at $7,600, as recorded in a certificate of purchase issued by David Keefe dated 6 September 2020;
(ii)18ct yellow gold and round brilliant cut diamond men’s ring valued at $13,990, as recorded in a certificate of purchase issued by David Keefe dated 22 December 2020;
(iii)18ct yellow gold men’s Cuban link bracelet valued at $36,100, as recorded in a certificate of purchase issued by David Keefe dated 24 December 2021; and
(iv)18ct yellow gold baguette and round brilliant cut diamond dress ring valued at $15,700, as recorded in a certificate of authenticity issued by Partridge Jewellers dated 6 August 2022.
[2] There were two additional pieces of jewellery included in the restraining orders:
(a) pair of 18ct yellow gold and square princess cut diamond ear studs valued at $9,200, as recorded in a Walker and Hall valuation dated 10 March 2022; and
(b) pair of 18ct yellow gold princess and brilliant cut diamond cluster ear studs valued at $11,900, as recorded in a Walker and Hall valuation dated 24 March 2022.
[3] Those two items of jewellery were not located and were not included in the subsequent application for civil forfeiture orders filed on 10 May 2024. They did not feature in the proposed settlement. The restraining orders in respect of that jewellery will expire on 23 May 2025.
[4] On 4 August 2023, a further restraining order was granted in respect of all interests in the property at 8 Kokotea Road, Massey, Auckland, registered owner Jing Li, record of title unique identifier 977379 (Kokotea Road), excluding the interest of Westpac New Zealand Ltd as mortgagee under registered mortgage 12491067.2.
[5] On 10 May 2024, the Commissioner filed an application for civil forfeiture orders seeking, among other orders, a profit forfeiture order against Mr Tthaedon under s 55 of the Criminal Proceeds (Recovery) Act 2009 (the Act) in the sum of
$1,365,847.
[6] The significant criminal activity which underpins the applications for restraining orders and profit forfeiture orders concerns Mr Tthaedon’s involvement in commercial drug dealing offences. On 22 March 2023, he pleaded guilty to possession of methamphetamine for supply; and unlawfully carrying a firearm. On 22 November 2023, in the Auckland District Court Mr Tthaedon was sentenced to eight years’ imprisonment. His conviction on the charge of possession of methamphetamine for supply was his eighth conviction for drug offending.
[7] The Commissioner and Mr Tthaedon have now agreed to settle the question of forfeiture of assets subject to the Court’s approval under s 95 of the Act.
[8]The proposed settlement is on the following terms:
(a)A type 1 assets forfeiture order is made, by consent, under s 50(1) of the Act over the restrained property and Kokotea Road.
(b)Mr Tthaedon is to abandon all claims he may have, under the Act or otherwise, to any of the property to be forfeited or to any of the other restrained property.
(c)The Commissioner will not pursue his application for a profit forfeiture order against Mr Tthaedon.
(d)The settlement is in full and final settlement of the current proceedings brought by the Commissioner against Mr Tthaedon under the Act.
(e)Costs as between the Commissioner and Mr Tthaedon in this proceeding lie where they fall.
[9] As to Kokoetea Road, the Commissioner says Mr Tthaedon has an equitable interest of $350,000 based on the document recording an agreement between him and Liang Wang, an interested party. The registered owner is Jing Li, an interested party, who is in a relationship with Mr Wang. The current value of the property, without a certificate of code compliance, is approximately $750,000. The debt owing on the property to Westpac, which is excluded from restraint, has a balance as at
14 October 2024, of $429,496.10. Equity in the property available for forfeiture is therefore no more than $320,503.90. The expenses connected from the sale will first be deducted from this amount.
[10] The equity is insufficient to discharge all of Mr Tthaedon’s equitable interest. In consequence, the entirety of the property can be forfeited on the basis that it is tainted. If Ms Li and Mr Wang do have any interest in the property, there is insufficient equity to satisfy their interest and, in any event, they consent to forfeiture.
[11]The approximate value of the property being forfeited is $1,133,285.19.
[12] The Commissioner and Mr Tthaedon seek approval of the settlement arrangements pursuant to s 95 of the Act.
Legal principles
[13] Section 95 of the Act provides that the Commissioner may enter into a settlement with any person as to the property or any sum of money to be forfeited to the Crown, but that settlement does not bind the parties unless approved by the High Court.
[14]The High Court must approve the settlement if satisfied it is consistent with:1
(a)the purposes of the Act; and
(b)the overall interests of justice.
[15] In Commissioner of Police v Cherrington Toogood J set out the principles to be applied as follows:2
(a)civil litigation incurs substantial costs for the parties, a significant portion of which would not usually be recoverable under the rules of Court relating to payments of costs;
(b)it is in the public interest to avoid the burden on the Court of complex and lengthy civil litigation;
1 Criminal Proceeds (Recovery) Act 2009, s 95(3).
2 Commissioner of Police v Cherrington [2022] NZHC 1396 at [20].
(c)there is also strong public interest in litigation of this nature being brought to a prompt conclusion, so long as the settlement reflects the likely costs and risks inherent in the determination of a contested application;
(d)approval of any settlement by the Court acting in its supervisory jurisdiction requires consideration of the legislative intent and the overall interests of justice and is not a rubber-stamping exercise; and
(e)a broad inquiry is required, recognising that the decision to settle proceedings under the Act may be made on economic and pragmatic grounds and often reflects a “common sense compromise” between the parties.
(footnotes omitted)
Discussion
[16] The parties submit that the proposed settlement is consistent with the purpose of the Act and the overall interests of justice for the following reasons:
(a)There will be a saving of time and cost if the matter can be resolved by consent without the need for a hearing.
(b)There is risk inherent in a contested hearing, and settlement will allow the parties to have certainty and control as to the outcome.
(c)The restrained assets will be realised for the benefit of the Crown, with the entirety of the restrained property and the remaining equity in Kokotea Road being forfeited. That is appropriate in this case given the large scale of Mr Tthaedon’s underlying criminal offending.
(d)The Commissioner considers he has a good case to show that the restrained property is tainted property (so as to support an assets forfeiture order) as well as that Mr Tthaedon has unlawfully benefited from significant criminal activity (so as to support profit forfeiture orders). Mr Tthaedon has pleaded guilty to the supply of a significant quantity of the Class A controlled drug methamphetamine. An iPhone found at the property where he lived alone contains extensive evidence of supply activities. Mr Tthaedon has previous convictions for drug offending. The property for forfeiture was accumulated over a
relatively short period after he was released from custody and at a time when his legitimate declared income was modest.
(e)In respect of the application for a profit forfeiture order, the Commissioner acknowledges the practical difficulties of pursuing a civil debt under ss 55(4) and 83(4) of the Act. Mr Tthaedon will be serving a lengthy period of imprisonment and has no other identifiable assets, bank accounts or income in New Zealand to satisfy any residual debt he would owe to the Crown. The absence of a profit forfeiture order against Mr Tthaedon will relieve him of any significant residual debt in the future.
[17] Having regard to the matters on which Mr Tthaedon has now been convicted, and the fact that he is serving a lengthy sentence of imprisonment, I am satisfied that the proposed settlement arrangement is consistent with the purpose of the Act and the overall interests of justice.
[18] I accept the Commissioner’s position that there is a good case to show that the restrained property is tainted property. The proposed settlement diminishes the profit obtained by Mr Tthaedon from the criminal activity and has the potential to deter significant criminal activities in the future. Although I note that Mr Tthaedon has previously been subject to such orders without any apparent deterrent effect.
[19] I agree that the proposed settlement is in the interests of justice as it provides for prompt forfeiture of the relevant property without the need for further proceedings. It reflects the practical difficulties of pursuing a civil debt against a respondent who is serving a lengthy period of imprisonment and has no other identifiable assets to satisfy any residual debt they would owe to the Crown.
[20] Given the length of sentence Mr Tthaedon is serving, there is an interest in bringing some finality to this matter.
Orders
[21] The settlement arrangement outlined in para 3.2 of the joint memorandum, dated 16 October 2024, is approved by the Court pursuant to s 95 of the Act.
[22]I make the following orders by consent:
(a)Assets forfeiture orders under s 50(1) of the Act — the following property vests in the Crown absolutely and is in the Official Assignee’s custody and control:
(i)Real Estate:
a.all interests in the property at 8 Kokotea Road, Massey, Auckland, registered owner Jing Li, record of title unique identifier 977379 excluding the interest of Westpac New Zealand Ltd as mortgagee under registered mortgage 12491067.2.
(ii)Bank funds:
a.all credit funds held in the ASB Bank Ltd bank account 12-3126-0682821-00 in the name of Mr Tthaedon, and all interest earned thereon;
b.all credit funds held in the ASB Bank Ltd bank account 12-3126-0682821-50 in the name of Mr Tthaedon, and all interest earned thereon; and
c.all credit funds held in the ASB Bank Ltd bank account 12-3637-0790488-00 in the name of Mr Tthaedon, and all interest earned thereon.
(iii)Cash:
a.a. $93,900 cash seized by police on 15 November 2022 from 226 Onewa Road, Birkenhead, Auckland and any accrued interest; and
b.$90,000 cash seized by police on 16 November 2022 from safe deposit box 3092 at Commonwealth Vault, 6 Albert Street, Central Auckland and any accrued interest.
(iv)Cryptocurrency:
a.$482,920.01 being the proceeds of sale of 12.314 Bitcoins seized by police from a cryptocurrency wallet with the public address of lAlRP3rXqdpBrnTi4JHePYgQ3BdtbbRUbc on 17 November 2022, and all interest earned thereon; and
b.$3,785.61 being the proceeds of sale of 12.3413 Bitcoin cash seized by police from a cryptocurrency wallet with the public address of lAlRP3rXqdpBrnTi4JHePYgQ3BdtbbRUbc on 17 November 2022, and all interest earned thereon.
(v)Shareholdings:
a.15,422 Cannasouth Ltd shares, registered in the name of Mr Tthaedon and held under the common shareholder number (CSN) 336167311;
b.84 Ryman Healthcare Ltd shares, registered in the name of Mr Tthaedon and held under the CSN 336167311;
c.730 Smartshares ETF Aggregate Bond shares, registered in the name of Mr Tthaedon and held under the CSN 336167311; and
d.395 Smartshares NZ Government Bond shares, registered in the name of Mr Tthaedon and held under the CSN 336167311;
(vi)Jewellery:
a.18ct yellow and white gold with round brilliant cut diamonds men’s ring valued at $7,600, as recorded in a certificate of purchase issued by David Keefe dated 6 September 2020;
b.18ct yellow gold and round brilliant cut diamond men’s ring valued at $13,990, as recorded in a certificate of purchase issued by David Keefe dated 22 December 2020;
c.18ct yellow gold men’s Cuban link bracelet valued at
$36,100, as recorded in a certificate of purchase issued by David Keefe dated 24 December 2021; and
d.18ct yellow gold baguette and round brilliant cut diamond dress ring valued at $15,700, as recorded in a certificate of authenticity issued by Partridge Jewellers dated 6 August 2022.
(b)Costs — costs lie where they fall in relation to all matters between the Commissioner and Mr Tthaedon.
[23]I note the further terms of the agreed settlement:
(a)Mr Tthaedon abandons all claims he may have, under the Act or otherwise, to any of the property to be forfeited or any of the other restrained property;
(b)the Commissioner will not pursue his application for a profit forfeiture order against Mr Tthaedon; and
(c)the settlement is in full and final settlement of the current proceedings brought by the Commissioner against Mr Tthaedon under the Act.
[24] I vacate the mention set down for 18 October 2024. Counsel for the Commissioner and Mr Tthaedon are excused from attending.
Wilkinson-Smith J
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