Commissioner of Police v Dam
[2025] NZHC 204
•18 February 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-504 [2025] NZHC 204
UNDER the Criminal Proceeds (Recovery) Act 2009 BETWEEN
COMMISSIONER OF POLICE
Applicant
AND
LE VAN ANH DAM
Respondent
Hearing: On the papers Counsel:
K Karpik and N Walker for Applicant
H Smith and R Mansfield KC for Respondent
Judgment:
18 February 2025
JUDGMENT OF WILKINSON-SMITH J
This judgment was delivered by me on 18/02/2025 at pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors:
Kayes Fletcher Walker, Auckland Ron Mansfield KC, Auckland
COMMISSIONER OF POLICE v DAM [2025] NZHC 204 [18 February 2025]
Introduction
[1] The Commissioner of Police (Commissioner) and the respondent, Le Van Anh Dam, seek approval of a proposed settlement pursuant to s 95(3) of the Criminal Proceeds (Recovery) Act 2009 (the Act).
[2] The Commissioner has filed an application for assets and profit forfeiture orders under the Act in respect of the following property:
(a)all of the respondent’s interests in the proceeds of the sale of 4C Sheriff Place, Randwick Park (Lot 8, Deposited Plan 164618, comprised in Certificate of Title NA99B/50), namely $329,749.31.
[3] Under the terms of the proposed settlement, the respondent consents to a type 1 assets forfeiture order over $286,749.31 of this property
[4] The remaining $43,000, being the value of gifts Ms Dam states are from her family overseas, would be released from restraint and returned to Ms Dam.
[5] The Commissioner would discontinue his application for profit forfeiture orders. Costs would lie where they fall.
Legal Principles
[6] 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,1 but that settlement does not bind the parties unless approved by the High Court.2
[7]The High Court must approve the settlement if satisfied it is consistent with:3
(a)the purposes of the Act;4 and
1 Section 95(1).
2 Section 95(2).
3 Section 95(3).
4 See s 3.
(b)the overall interests of justice.
[8] In Commissioner of Police v Cherrington, Toogood J set out the following relevant principles:5
(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;
(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
[9] On 5 December 2020, police located a sophisticated commercial-scale cannabis cultivation at 4C Sheriff Place, Randwick Park. A total of 193 cannabis plants were found growing throughout the lounge area, two bedrooms, garage and kitchen.
[10] Mr Manh Tinh Pham was later identified parked outside the property. He possessed keys to 4C Sheriff Place and to a vehicle parked on the property that also contained cannabis. Mr Pham was charged with cultivating cannabis,6 and possession of cannabis for supply.7
5 Commissioner of Police v Cherrington [2022] NZHC 1396 at [20].
6 Misuse of Drugs Act 1975, s 9(1).
7 Misuse of Drugs Act, s 6(1)(f).
[11] Ms Dam agreed to purchase the property at 4C Sheriff Place in August 2019 for $720,000. In doing so, she made payments of $166,922.54. She claimed that
$100,000 was gifted to her by her parents. Police investigations revealed that at least
$102,667 of the amount paid by Ms Dam was sourced from third parties who are not Ms Dam’s parents. A further $31,730.94 was sourced from cash deposits. Police did not accept Ms Dam’s explanation as to the source of the funds because of the nature of the deposits into Ms Dam’s account; specifically, these comprised multiple cash deposits with several deposits often made on the same day via ATM.
[12] Throughout the period that Ms Dam owned but rented out 4C Sheriff Place, she received what appeared to be rent payments into one of her Westpac accounts. The payments were inconsistent in terms of their frequency and amount — sometimes a single payment of $1,200 was made, whereas other times, smaller payments were spread across a two-week period, ultimately totalling $1,200. On other occasions, a large payment was made to compensate for an absence of payments over several weeks. Police believe that almost all the payments were made by Mr Pham and that, given that he had no declared income and was in New Zealand without a valid visa, the money was sourced from involvement in cannabis cultivation and sale.
[13] The Commissioner’s assets forfeiture application is based on a contention that, on the balance of probabilities, the property at 4C Sheriff Place was wholly or in part acquired as a result of, and/or derived from, significant criminal activity (specifically, cultivating cannabis, possession of cannabis for sale and permitting premises).
[14] The Commissioner considers that he has a strong case but acknowledges a contested hearing carries a level of risk. While the respondent disputes the strength of the Commissioner’s application, she acknowledges that a contested hearing also carries a level of risk to her.
[15] Under the proposed agreement, the majority of the property would be forfeited. The $43,000 to be released from restraint and returned to Ms Dam relates to funds from an overseas account, the owner of which the Commissioner has been unable to establish, but which Ms Dam asserts was a gift from family overseas.
[16] As well as the assets forfeiture application, there is a current application for a profit forfeiture order with a presently identified unlawful benefit figure of
$481,452.24. This figure includes $160,265.94 of unexplained cash deposits likely used to purchase 4C Sheriff Place. Any profits forfeiture order would need to account for profit forfeited under a related assets forfeiture order. Most of the proceeds of the sale of 4C Sheriff Place would be forfeited under the proposed settlement.
[17] I accept the Commissioner’s position that there is a good case to show that the property which is subject to the proposed assets forfeiture order is tainted property. The proposed settlement would diminish the profit obtained by Ms Dam from the criminal activity, although it is not reflective of the entire benefit obtained as a result of that activity. It is unclear, however, how much of the larger benefit Ms Dam personally obtained.
[18] The $43,000 which would be released from restraint and returned to Ms Dam is a relatively modest amount compared with the amount which would be forfeited. The Commissioner accepts that money was provided to Ms Dam from an overseas source. There seems to be considerable uncertainty as to the provenance of that money. It is far from established that the Commissioner could prove to the requisite standard that the $43,000 was not legitimately obtained.
[19] I am satisfied that the proposed settlement arrangement is consistent with the purposes of the Act and the overall interests of justice.
Orders
[20]I make the following orders by consent:
(a)The settlement arrangement is approved by the Court pursuant to s 95(3) of the Act.
(b)The following property vests in the Crown absolutely and is to be in the Official Assignee’s custody and control:
(i)cash in the amount of $286,749.31 being part of the proceeds of the sale of 4C Sheriff Place, Randwick Park (Lot 8, Deposited Plan 164618, comprised in Certificate of Title NA99B/50).
(c)The remaining $43,000, being the value of gifts Ms Dam states are from her family overseas, is released from restraint and is to be returned to Ms Dam.
(d)The application for profit forfeiture orders is withdrawn by leave.
(e)Costs lie where they fall in relation to all matters between the Commissioner and Ms Dam.
Wilkinson-Smith J
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