Commissioner of Police v Huynh
[2024] NZHC 3813
•13 December 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-941
[2024] NZHC 3813
UNDER the Criminal Proceeds (Recovery) Act 2009 BETWEEN
COMMISSIONER OF POLICE
Applicant
AND
THI LANG HUYNH
Respondent
Hearing: On the papers Counsel:
S Earl and C Hodgson for the Applicant J Hudson for the Respondent
Judgment:
13 December 2024
(REDACTED) JUDGMENT OF GORDON J
This judgment was delivered by me
on 13 December 2024 at 4 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors/Counsel:
Meredith Connell, Auckland J Hudson, Barrister, Auckland
COMMISSIONER OF POLICE v HUYNH [2024] NZHC 3813 [13 December 2024]
[1] The Commissioner of Police (Commissioner) has obtained on notice restraining orders under the Criminal Proceeds (Recovery) Act 2009 (the Act) over
$42,745 cash and various items of jewellery and designer goods valued at approximately $45,465 and $16,250 respectively seized from the home of the respondent, Thi Lang Huynh.
[2] The Commissioner and Ms Huynh now seek the Court’s approval for a settlement under s 95 of the Act.
Background
[3] In 2022 the Auckland region was subject to a large increase in “ram raid” and “smash and grab” type burglaries and robberies. The targets were most commonly jewellery and luxury goods stores.
[4] On 24 August 2022, in the early hours of the morning, the Michael Hill jewellery store in Newmarket was burgled. Five people exited a vehicle parked outside the Michael Hill store and smashed the front door to gain access. The offenders entered the jewellery store, smashed the display cases and removed an unknown amount of jewellery before leaving in the vehicle. The identities of the offenders were not discovered by Police.
[5] On 30 August 2022, in the early hours of the morning, the Michael Hill jewellery store on Queen Street, Auckland, was burgled. Seven people were arrested for that burglary. Ms Huynh was identified by one of the defendants as a person to whom they could sell jewellery and it was said that she had purchased stolen jewellery from them before. A video extracted from one of the defendant’s phones, identified Ms Huynh inspecting stolen jewellery with a diamond tester.
[6] On 25 November 2022 the Police executed a search warrant at Ms Huynh’s home where she lived with her adult daughter ([redacted]) and 15 year old son. There, the Police located and seized $42,275 cash, jewellery and designer goods.
[7] They also located the diamond tester that Ms Huynh had used to test the stolen jewellery, receipts for cash purchases of luxury goods and receipts of cash deposits.
[8] The cash was located in a number of places including in a safe located in Ms Huynh’s daughter’s bedroom. Ms Huynh provided the code to access the safe.
[9] On 8 December 2022 Ms Huynh was arrested and charged with receiving stolen property. She pleaded guilty to a summary of facts that recorded on 25 August 2022 she met with unidentified individuals involved in the burglary of the Michael Hill jewellers store located in Newmarket. The summary further records that Ms Huynh, equipped with a black diamond tester, took possession of and examined items of jewellery stolen from Michael Hill jewellers in Newmarket. The value of the stolen jewellery Ms Huynh took possession of was between $500 and $1,000. The sentencing Judge ordered Ms Huynh to come up for sentence if called upon.
[10] On 19 April 2024 the Commissioner applied for on notice restraining and further orders over the cash, jewellery and designer goods located and seized from Ms Huynh’s home as follows:
(a)cash to the value of $42,745 seized by Police on 25 November 2022 from Ms Huynh’s bedroom and a safe in [redacted] bedroom, and all interest accrued;
(b)jewellery seized by Police on 25 November 2022 from Ms Huynh, her bedroom, and a safe in [redacted] bedroom (Jewellery);
(c)designer goods seized by Police on 25 November 2022 from Ms Huynh’s bedroom and a safe in [redacted] bedroom (Designer Goods).
[11] Ms Huynh consented to the restraining order but opposed the further order (a sale order for the Jewellery and Designer Goods). On 17 May 2024 on notice restraining orders were made over the cash, Jewellery and Designer Goods. A sale order was not made.
[12]The Commissioner has not yet applied for civil forfeiture orders.
Proposed settlement
[13]The proposed settlement is on the following terms:
(a)a type 1 assets forfeiture order under s 50 of the Act to be made by consent over the following property:
(i)cash to the value of $39,975, and all interest accrued on that sum (Cash);
(b)the following restrained property is to be released from restraint and returned to Ms Huynh:
(i)cash to the value of $2,770, and any interest accrued on that sum;
(ii)the Jewellery; and
(iii)the Designer Goods;
(c)Ms Huynh is to abandon all claims she may have, under the Act or otherwise, to any of the property to be forfeited;
(d)the Commissioner will not bring an application for a profit forfeiture order against Ms Huynh seeking forfeiture of the restrained property on the basis of the significant criminal activity evidenced in the affidavit filed in this proceeding;
(e)the settlement is in full and final settlement of the question of civil forfeiture on the basis of the significant criminal activity evidenced in the affidavit filed in this proceeding; and
(f)costs will lie where they fall.
The parties’ respective positions
The Cash
[14] The Commissioner has since carried out further investigations into Ms Huynh’s finances and her acquisition of the restrained property. The Commissioner’s position is that Ms Huynh has a clear connection to the individuals associated with recent “ram raids”. Her phone number was stored on the phone of one of the individuals involved in the second Michael Hill jewellers robbery. She inspected jewellery stolen in the first robbery just one day after it occurred. Her guilty knowledge with respect to possession of an item or items from that robbery is established by her conviction. Further, one of the defendants in the second robbery referred to this not being the first occasion Ms Huynh had taken jewellery from his associates.
[15] Accordingly, the Commissioner’s position is that it can be inferred that the Cash is derived from the sale of similarly received items of jewellery.
[16] Ms Huynh accepts that a type 1 assets forfeiture order should be made over the Cash (less the sum of $2,770).
[17] With respect to that latter amount, Ms Huynh’s position is that this cash, located in a tin, was savings for her son’s 16th birthday and that family members would regularly contribute funds to this tin to save up money for him. The evidence is that when counted, that money consisted of 200 $10 notes, 110 $5 notes, six $20 notes and two $50 notes. The tin was located in Ms Huynh’s bedroom.
[18] The Commissioner acknowledges that by comparison to the cash in the tin, the cash proposed to be forfeited largely consists of $100 and $50 notes.
Jewellery and Designer Goods
[19] The subsequent Police investigation suggests that the Jewellery and Designer Goods1 are not stolen property. The Jewellery consists of a large number of lower
1 Individually valued at $1,500; $2,800; $4,500; $2,500; $2,500; and $2,450.
value items.2 Where serial numbers could be identified, the Commissioner has checked those with Michael Hill jewellers and have not been able to identify any of the pieces as being stolen jewellery.
[20] Ms Huynh has given an explanation (in an unsworn affidavit) regarding the sources of the Jewellery and Designer Goods. The Commissioner does not necessarily accept Ms Huynh’s untested explanation but there is no additional evidence available to the Commissioner at this stage to establish that those items of Jewellery and Designer Goods were derived either directly or indirectly from similar “ram raids”.
[21] That property cannot therefore be said to be tainted property. But it would be otherwise available to meet a profit forfeiture order based on an unlawful benefit. However, the Commissioner acknowledges that there is litigation risk in establishing any unlawful benefit beyond the value of the Cash.
[22] The preliminary financial analysis of Ms Huynh’s bank account indicates cash deposits, third party deposits and unknown credit card deposits over the seven year analysis period. However, the Commissioner accepts the evidence supporting Ms Huynh’s conviction may not be sufficient to establish that the funds derived over the seven year period were from prior instances of receiving stolen property.
Commissioner’s end position
[23] Given Ms Huynh’s concession with respect to the Cash, the Commissioner is willing not to pursue civil forfeiture orders seeking forfeiture of the Jewellery and Designer Goods. The Commissioner, therefore, seeks an order rescinding the orders restraining the Jewellery and the Designer Goods.
[24] Settling the proceedings in this way will bring the litigation to a prompt conclusion. It manages the litigation risk for both parties and will save the
2 The items of Jewellery range in estimated values from $100 to $7,400. Only nine items are valued over $1,000. The Jewellery and Designer Goods in total have been valued at around $60,000 by second-hand dealers, but the Commissioner notes that a large number of the items are low-value and may not achieve the indicated price.
Commissioner from having to conduct further investigation, including potentially examining Ms Huynh and her family members.
Approval of settlement: statutory provision
[25]Section 95 of the Act, which governs settlement, provides:
95High Court must approve settlement between Commissioner and other party
(1)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.
(2)A settlement does not bind the parties unless the High Court approves it.
(3)The High Court must approve the settlement if it is satisfied that it is consistent with—
(a)the purposes of this Act; and
(b)the overall interests of justice.
[26] First, as to the purposes of the Act: the primary purpose in s 3(1) is to establish a regime for the forfeiture of property that has been derived directly or indirectly from significant criminal activity or that represents the value of a person’s unlawfully derived income. The ancillary purposes in s 3(2) include to eliminate the chance for persons to profit from undertaking or being associated with significant criminal activity and to deter significant criminal activity.
[27] The words “overall interests of justice” in s 95(3) require a broad inquiry.3 Relevant factors include the saving of time and cost and the litigation risk of a hearing to the Commissioner and a respondent.4 The Courts have recognised that a decision to settle proceedings under the Act will often reflect a “pragmatic” arrangement or solution, a “common sense compromise” or a “sensible resolution” that will meet the purposes of the Act and the overall interests of justice.5 This Court has recently
3 Commissioner of Police v Li [2018] NZHC 1566 at [32].
4 Commissioner of Police v Kree [2013] NZHC 2972 at [11]; Commissioner of Police v Zhang
[2016] NZHC 930 at [8].
Commissioner of Police v Marsh [2022] NZHC 1032 at [5]; Commissioner of Police v Douglas
[2015] NZHC 1293 at [6]; and Commissioner of Police v Cherrington [2022] NZHC 1396 at [20].
reiterated that there is a strong public interest in litigation under the Act being brought to a prompt conclusion.6
The present case
[28] For the reasons advanced by counsel for the parties I am satisfied that the settlement proposed is consistent with the purposes of the Act and the overall interests of justice. Those reasons are as follows:
(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)An agreed settlement will allow the parties to have certainty and control as to the outcome.
(c)The majority of the restrained cash will be forfeited to the Crown, with
$39,975 out of $42,745 being forfeited.
(d)In light of Ms Huynh’s connection to individuals associated with “ram raid” burglaries and her own concession that the Cash should be forfeited, the Court can be satisfied that the portion of cash to be forfeited by consent is tainted property (so as to support an assets forfeiture order).
(e)Ms Huynh recognises the civil standard of proof, and the risk that she faces in taking the matter to a contested hearing.
(f)The Commissioner’s request for the remaining restraining orders to be rescinded recognises that further investigation has identified that the Jewellery and Designer Goods are not able to be established as tainted property.
6 Commissioner of Police v Feleti [2024] NZHC 3526 at [21].
(g)Regarding a profit forfeiture order, the Commissioner acknowledges the difficulty in extrapolating any unlawful benefit derived by Ms Huynh for the receipt and sale of stolen property beyond the value of the Cash at this time.
Result
[29] Given I am satisfied as to the two matters in s 95(3), under s 95 I must approve the settlement. I make the following orders so as to give effect to the settlement:
(a)Further orders under ss 33–35 of the Act:
(i)the restraining order over $2,770 of the Cash is rescinded and the Official Assignee is directed to pay this sum and any accrued interest on this sum into a bank account nominated by Thi Lang Huynh;
(ii)the restraining order over jewellery seized by Police on 25 November 2022 from Ms Huynh and her bedroom, and a safe in [redacted] bedroom at [redacted] (Jewellery) is rescinded; and
(iii)the restraining order over designer goods seized by Police on 25 November 2022 from Ms Huynh’s bedroom and a safe in [redacted] bedroom at [redacted] (Designer Goods) is rescinded.
(b)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)Cash to the value of $39,975 seized by Police on 25 November 2022 from [redacted], and all interest accrued on that sum.
(c)Costs: costs lie where they fall in relation to all matters between the Commissioner and Ms Huynh.
[30]As requested by the parties, I note the further terms of the agreed settlement:
(a)Ms Huynh abandons all claims she 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 bring an application for a profit forfeiture order against Ms Huynh seeking forfeiture of the restrained property on the basis of the significant criminal activity evidenced in the affidavit filed in this proceeding; and
(c)the settlement is in full and final settlement of the question of civil forfeiture on the basis of the significant criminal activity evidenced in the affidavit filed in this proceeding.
[31] For completeness I record that once the orders are sealed, the proceeding will be at an end.
Gordon J
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