Commissioner of Police v Hu

[2021] NZHC 233

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-2130

[2021] NZHC 233

UNDER

The Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

DANIEL HU

First Respondent

PING WANG
Second Respondent

CONTINUED OVERLEAF

On the papers:	At Auckland
Judgment:	22 February 2021

JUDGMENT OF POWELL J

[Settlement of claims against Tenth and Eleventh respondents]

This judgment was delivered by me on 22 February 2021 at 4.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

COMMISSIONER OF POLICE v HU [2021] NZHC 233 [22 February 2021]

AND              MUSABAYOUFU FUATI

Third Respondent

AND              TAYIER SULIYA

Fourth Respondent

AND              CHUNZHI MAO

Fifth Respondent

AND              WENJIAN WANG

Sixth Respondent

AND              MEI ZHOU

Seventh Respondent

AND              ALIKENJIANG AMIERDING

Eighth Respondent

AND              ABUDUXIKEER XIAYDIYE

Ninth Respondent

AND              YILI YIERFAN

Tenth Respondent

AND              ARSLAN ALIM

Eleventh Respondent

[1]    On 9 November 2020 and as part of wider proceedings against a total of 11 respondents, restraining orders were made under the Criminal Proceeds (Recovery) Act 2009 in respect of a 2010 Porsche Cayenne, registration A0991, a vehicle in which the tenth and eleventh respondents, Yili Yierfan (also known as Erpan Eli) and Arslan Alim (also known as Eric Ibrahim), acknowledged an interest.

[2]    The proceedings, including the specific issues pertaining to the tenth and eleventh respondents, were scheduled to come before me as Duty Judge on 18 February 2021. In the event the parties were able to reach a proposed settlement prior to the hearing with regard to the issues surrounding the Porsche Cayenne and, by way of a joint memorandum dated 17 February 2021, sought approval of the settlement pursuant to s 95 of the Act.

[3]    As a preliminary matter I note that while there is no formal application for civil forfeiture orders presently before the Court, I accept the submissions of the parties that I can and should treat the joint memorandum as a joint application for a profit forfeiture order under s 55 of the Act.

[4]    On this basis, and having read the contents of the joint memorandum, earlier memoranda filed by the parties as they relate to the Porsche Cayenne, and the relevant parts of affidavits filed by Matthew Tapurau and Benjamin McLaughlin, I am satisfied that the proposed settlement is appropriate in terms of s 95(3) of the Act.

[5]I therefore make the following orders by consent:

(a)the value of the benefit is $20,000;

(b)the maximum recoverable amount is $20,000;

(c)the following property is to be disposed of under s 83(1) of the Act: A sum of $20,000 which Mr Yierfan and/or Mr Alim must

pay to the Official Assignee, in full, within three months of the date of these orders.

[6]In addition, the following terms of the agreed settlement are noted:

(a)Mr Yierfan and Mr Alim undertake not to make any claim, under the Act or otherwise, to any of the other property restrained in this matter;

(b)the Commissioner will not pursue an application for an assets forfeiture order over the Porsche A0991 and will not pursue a profit forfeiture order (beyond that sought by consent in accordance with the terms of the present settlement) against Mr Yierfan or Mr Alim for the significant criminal activity evidenced in the current proceeding; and

(c)the settlement is in full and final settlement of the current proceedings brought by the Commissioner against Mr Yierfan and Mr Alim under the Act.

Powell J