COMMISSIONER OF POLICE AND GIRISH CHANDRA RAMEET PRASAD

[2024] NZHC 3062

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-2550

[2024] NZHC 3062

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

GIRISH CHANDRA

First respondent

RAMEET PRASAD

Second respondent

Hearing:	On the papers
Appearances:	EHK Rangamuwa and AJH Wilson for applicant
Date of judgment:	18 October 2024

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 18 October 2024 at 4.30pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:

Meredith Connell, Auckland

COMMISSIONER OF POLICE v CHANDRA [2024] NZHC 3062 [18 October 2024]

[1]                 As duty judge, I have the Commissioner’s without notice application for restraining and further orders dated 17 October 2024, seeking to place land and bank funds into the hands of the Official Assignee.1

[2]                 The application is supported by 4, 15 and 16 October 2024 affidavits respectively sworn by a police officer, forensic accountant and investigator for the Ministry of Social Development, contending the property is tainted as having been obtained from significant criminal activity in theft and deception,2 and/or that of the respondents who have unlawfully benefited from such significant criminal activity. The Commissioner alleges the respondents’ operation of a scheme by which they misapplied payments made to a related company by the Ministry for provision of essential household furniture to social welfare beneficiaries, deriving unlawful benefit of at least $2 million over the period from 1 September 2017 to 31 March 2023.

Law

[3]                 I may determine an application can properly be dealt with without notice only if I am satisfied, here, requiring the Commissioner to proceed on notice would cause undue delay or prejudice to him, an enactment expressly permits the application to be made without serving notice of the application, or the interests of justice require the application to be determined without serving notice of it. Otherwise I must give directions for service and adjourn the application, or dismiss it.3

[4]                 If then I am satisfied I have reasonable grounds to believe the property is “tainted property” — that is, wholly or partly acquired as a result of, or directly or indirectly derived from, significant criminal activity — or the respondents have in any event  “unlawfully  benefited  from  significant  criminal  activity”,  I  may  make     a restraining order in respect of that property. By the order, the property is not to be disposed of, or dealt with, other than is provided for in the restraining order, and is under the Official Assignee’s custody and control.4

1      Criminal Proceeds (Recovery) Act 2009, ss 24 and 25.

2      Crimes Act 1961, ss 220 and 240. Maximum penalty, seven years’ imprisonment: ss 223(a) and 241.

3      High Court Rules 2016, r 7.46(3) and (5).

4      Criminal Proceeds (Recovery) Act, s 50.

Discussion

[5]                 ‘Restraining orders’ are “a holding measure”, to preserve property if to be forfeited to the Crown as derived from significant criminal activity.5 ‘Significant criminal activity’ is offending punishable by a maximum term of imprisonment of    5 years or more, or offending obtaining property with a value exceeding $30,000.6

[6]                 Section 22 of the Criminal Proceeds (Recovery) Act 2009 entitles me to consider the application without notice if I am satisfied there is a risk of the proposed restrained property being destroyed, disposed of, altered, or concealed if notice were given.

[7]I am satisfied:

(a)notice of the application for restraining orders would put the property at relevant risk, given their ready disposition, fungibility or pledge, prejudicing the Commissioner in obtaining its forfeit to the Crown; and

(b)on the basis of the affidavits, I have reasonable grounds to believe both:

(i)the property is tainted property, as acquired or derived in connection with significant criminal activity, or in any event as obtained property with a value exceeding $30,000; and

(ii)by their control over the company’s finances, the respondents have unlawfully benefited from such significant criminal activity.

[8]                 The respondents’ equity in the land may only be half the $3.24 million equity in the land shared with their spouses, and the bank funds exceed $500,000. But, given likely recognition of other claims to the land for forfeiture, I am satisfied the value of the property sought to be restrained is not disproportionate to the scale of the alleged offending.7

5      Yan v Commissioner of Police [2015] NZCA 576, [2016] 2 NZLR 593 at [7].

6      Criminal Proceeds (Recovery) Act, s 6(1).

7      Hunt v Commissioner of Police [2021] NZCA 644, [2023] 2 NZLR 1 at [63].

[9]                 I see no reason not to exercise my residual discretion, precisely to preserve property if to be forfeited to the Crown, to make the restraining and further orders sought.

Result

[10]              I order in terms of subparas 1(a)–(c) of the Commissioner’s 17 October 2024 application.

—Jagose J