Commissioner of Police v Ho

[2022] NZHC 829

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-464

[2022] NZHC 829

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

FRANCIS MICHAEL HO

Respondent

Hearing:	On the papers
Appearances:	S Earl / J Barclay for Commissioner Respondent in person
Judgment:	27 April 2022

JUDGMENT OF LANG J

[on approval of settlement]

This judgment was delivered by me on 27 April 2022 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:
Crown Solicitor, Auckland

COMMISSIONER OF POLICE v FRANCIS MICHAEL HO [2022] NZHC 829 [27 April 2022]

[1]                  This proceeding is currently listed for mention in the Duty Judge List on Thursday 28 April 2021 at 10 am. I have now received a joint memorandum signed by Mr Ho and counsel for the Commissioner seeking approval to a proposed settlement of the proceeding.

Background

[2]                  The police obtained information suggesting that during 2016 and 2017 Mr Ho and two associates were importing a cold and flu medicine known as Actifed into New Zealand. This contains pseudoephedrine that can be extracted and used in the manufacture of methamphetamine. Mr Ho then sold this product to third parties who acquired it for that purpose. The Commissioner believes this activity resulted in Mr Ho being in possession of a total of 34.92 kilograms of pseudoephedrine for which he paid approximately $1.2 million.

[3]                  The Commissioner of Police obtained restraining orders under the Criminal Proceeds (Recovery) Act 2009 (the Act) in relation to cash in New Zealand and Fijian currency that customs officers found in Mr Ho’s possession. This was seized at Auckland International Airport shortly before he was due to leave New Zealand on 2 November 2017 and 22 January 2019. The police seized a total sum of approximately NZD $85,000 and FJD $3,500. The first seizure led to Mr Ho being charged with, and convicted of, exporting prohibited goods under s 56(3)(a) of the Customs and Excise Act 1996 (CEA) and s 142 of the Anti-Money Laundering and Counter Financing of Terrorism Act 2009. The Customs authorities retained the cash under s 116 of the CEA.

[4]                  When the customs officials seized the first tranche of cash on 20 November 2017 there was no evidence to suggest Mr Ho was involved in any criminal activity. He was therefore able to obtain an order under s 236 of the CEA requiring the first tranche of funds to be returned to him in full. Thereafter, however, the police became aware of his involvement in the importation and distribution of pseudoephedrine. His arrest on 22 January 2019 led to him being charged with being in possession of pseudoephedrine for supply.

[5]                  On 14 December 2021 Mr Ho was convicted and sentenced on 12 charges of being in possession of pseudoephedrine for the purpose of supply.

[6]                  The Commissioner has yet to file a civil forfeiture application in respect of the funds found in Mr Ho’s possession. However, the Commissioner has now reached agreement with Mr Ho as to how the proceeding can be resolved without the need for such an application to be filed. They seek the Court’s approval under s 95 of the Criminal Procedure (Recovery) Act 1009 to the proposed settlement of the litigation between them.

The proposed settlement

[7]The proposed settlement is on the following terms:

(a)Assets forfeiture orders under s 50 of the Act are to be made by consent in relation to the sums of NZD $84,824.84 and FJD $909. These reflect:

(i)NZD $76,337.64 (originally NZD $74,730 and FJD $2,638)  seized by the New Zealand Customs Service from Mr Ho’s luggage at Auckland International Airport on 2 November 2017 inclusive of accrued interest; and

(ii) NZD $8,487.20 and FJD $909 seized by police from Mr Ho’s person and carry-on luggage at Auckland International Airport on 22 January 2019 inclusive of accrued interest.

(b)Mr Ho is to abandon all claims he may have, under the Act or otherwise, to any of the cash to be forfeited;

(c)the Commissioner will not pursue a profit forfeiture application against Mr Ho personally based on the criminal activity alleged in this proceeding;

(d)the settlement is in full and final settlement of the current proceeding brought by the Commissioner against Mr Ho under the Act; and

(e)costs will lie where they fall.

[8]                  The proposed settlement will result in all the property that has been restrained being forfeited to the Crown. From the Commissioner’s perspective the settlement reflects the reality that the Commissioner is unlikely to be able to enforce payment of any further monies by Mr Ho. From Mr Ho’s perspective the benefit in the proposed settlement is that this proceeding will be resolved and he will have no residual liability to the Commissioner.

Decision

[9]                  Police enquiries with the Inland Revenue Department revealed that Mr Ho received a total gross income of just $43,501 between the tax years ended 31 March 2013 and 31 March 2018. This is an average annual income of just $7,250. The fact that Mr Ho was found with such large sums of cash in his possession on two separate occasions in 2017 and 2019 is a strong indicator that those sums were likely to have been derived from significant criminal activity in the form of dealing in drugs.

[10]              I am therefore satisfied that the forfeiture of the restrained cash meets the primary purpose of the Act, which is to provide for the forfeiture of property derived directly or indirectly from significant criminal activity or property representing the value of a person’s unlawfully derived income.

[11]              Furthermore, the proposed settlement will allow the parties to have certainty and control as to the outcome of the proceeding. In addition, there will be savings of both institutional time and cost if the matter can be resolved by consent without the need for a hearing.

Result

[12]              I make an order under s 95 of the Act approving the proposed settlement. I make orders as sought in paragraph 6.1 of the joint memorandum signed by Mr Ho and counsel for the Commissioner on 20 April 2022.

[13]As requested, I also note that the parties have agreed as follows:

(a)Mr Ho is to abandon all claims he may have under the Act or otherwise to any of the cash to be forfeited;

(b)The Commissioner will not bring an application for a profit forfeiture order against Mr Ho in relation to the criminal activity alleged in the proceeding to date; and

(c)The proposed settlement is in full and final settlement of this proceeding.

(d)The costs of the proceeding are to lie where they fall.

[14]              The proceeding is to be removed from the Duty Judge List on Thursday 28 April 2022 and attendances on that date are excused.

Lang J