Commissioner of Police v Le

[2025] NZHC 1591

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-001833 [2025] NZHC 1591

UNDER  the Criminal Proceeds (Recovery) Act 2009

BETWEEN  COMMISSIONER OF POLICE

Applicant

AND  UT DON LE

First Respondent

HAI THI THU LE
Second Respondent

Hearing:                   (On the papers)

Counsel:A McClintock, D Houghton and M Djurich for Applicant D Stevens for Respondents

Judgment:                16 June 2025

JUDGMENT OF VENNING J

This judgment was delivered by me on 16 June 2025 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Meredith Connell, Auckland Counsel:           D Stevens, Auckland

COMMISSIONER OF POLICE v LE [2025] NZHC 1591 [16 June 2025]

[1]                 The Commissioner of Police (Commissioner), Ut Don Le (Mr Le), and Hai Thi Thu Le (Ms Le) seek this Court’s approval under s 95(2) of the Criminal Proceeds (Recovery) Act 2009 (the Act) to their proposed settlement in this proceeding.

[2]                 The Court is required to approve the settlement if satisfied that it is consistent with the purposes of the Act and the overall interests of justice.1

Background

[3]                 Between 2016 and 2022 Mr Le was linked to a number of cannabis cultivations in the South Auckland area. Detective Constable Zongling Qi’s evidence is that:

(a)Mr Le's fingerprints were located at two commercial cannabis cultivations located by Police in December 2016.

(b)Police located approximately 100 cannabis plants at one of the addresses and a total of 446 cannabis plants across three properties that were the subject of a Police operation. Mr Le’s fingerprints were located on the bulb brackets of two lampshades of grow lights at the first address and on two electrical transformers at another address.

(c)Mr Le's car was also present at the address of a third commercial cannabis cultivation when the cultivation was discovered by Police in May 2022. At that address Police located 138 cannabis plants, 36 cannabis seedlings, $1,120 in cash and equipment for the purpose of aiding cannabis cultivation. That cultivation was 350 m from Mr and Ms Le's home. The day after Mr Le was spoken by the Police about his car being at the address, the registered owner of the vehicle was changed from Mr Le to another person.

[4]                 Further, Mr and Ms Le have close associations with individuals involved in the cultivations. Ms Trinh is Mr and Ms Le’s friend. Mr Trinh was arrested and pleaded guilty to a representative charge of cultivating cannabis. Her property was forfeited

1      Criminal Proceeds (Recovery) Act 2009, s 95.

under the Act. When Ms Le was spoken to in December 2019, she provided Ms Trinh’s details as her own. Ms Le’s 2020 mortgage application for the purchase of  33 Titchmarsh Crescent was supported by a letter from Ms Trinh.

[5]                 Mr Huu Nguyen was located by Police at one of the cannabis cultivations. Mr Nguyen was found guilty of cultivation of cannabis at trial. During the process Mr Nguyen applied for bail to 33 Titchmarsh Crescent, listing Ms Le as a friend.

[6]                 Despite the above evidence and links, neither Mr Le nor Ms Le was charged in relation to the three cannabis cultivations.

[7]                 However, over the same general period of time as the alleged offending took place, Mr and Ms Le’s bank accounts received cash deposits or unexplained transfers which significantly exceeded their declared income. Mr Le’s net declared income over the seven-year period from September 2015 to September 2022 was just over $77,000, and Ms Le’s was just under $170,000. By contrast Mr and Ms Le received over

$1.1 million in unexplained deposits and transfers over that same period, none of which was declared to Inland Revenue. Coincidentally, following the commencement of the restraint and forfeiture proceedings, the quantum of cash deposits and unexplained transfers significantly decreased.

[8]                 Finally, Mr and Ms Le’s declared income has links to persons involved in the cannabis-related offending. Ms Le has earned income from SNK Beauty Limited and KS Nail Limited. Ms Nga Phan is the sole director of both businesses. Ms Phan has been charged with and pleaded guilty to permitting a premises to be used for the cultivation of cannabis. Further, in a 2021 loan application, Mr Le reported having worked for a company called Auckland Flooring. The sole director and shareholder of that company is Tuan Nguyen. In April 2022, Mr Nguyen was sentenced to a period of home detention for cultivating cannabis.

[9]                 Having first obtained restraining and ancillary orders, the Commissioner then sought and obtained orders for restraint and related orders in relation to the following property:

(a)33 Titchmarsh Crescent, (excluding the interest of Westpac Banking Corporation Limited as mortgagee);

(b)the proceeds of sale of a 2020 Mercedes Benz GLE300 motor vehicle;

(c)the proceeds of sale of a Sea-Doo PWC Wake Pro 230 jet ski; and

(d)the proceeds of sale of a trailer.

[10]The orders are due to expire on 2 November 2025 unless further extended.

[11]              In November 2024, the Commissioner filed an application for civil forfeiture orders seeking a profit forfeiture order with a nominated unlawful benefit of

$1,199,240.01, and type 1 assets forfeiture orders over the above property (to the extent that not all of the property is made the subject of a profit forfeiture order, or not all of the property is disposed of to discharge the profit forfeiture order).

[12]              Currently the application is set for a three day fixture commencing 4 August 2025.

[13]              The Commissioner relies on the circumstantial evidence of the connection between Mr and Ms Le with the properties and persons involved in dealing in cannabis and also particularly the unexplained cash deposits and transfers made to Mr and Ms Le’s bank accounts. In the alternative the Commissioner also says there is evidence that the property at 33 Titchmarsh Crescent and the Mercedes are tainted.

[14]              The Commissioner acknowledges that the unlawful benefit nominated in the forfeiture application is higher than Mr and Ms Le’s equity in the property. If a type 1 assets forfeiture order was made the maximum recoverable amount bearing in mind Westpac’s interest would be approximately $745,000.

[15]              Mr and Ms Le have suggested that at least part of the cash deposits can be explained. Mr Le says he has received cash of approximately $40,000 from painting, plastering, art and gambling, and Ms Le says she has earned additional income from

selling items online, and from gambling. I note here that the additional income has not been declared to the Inland Revenue Department.

[16]              Mr and Ms Le also suggested that part of the purchase price of the Mercedes was funded by gambling winnings while the jet ski was purchased initially on behalf of a friend who later paid Mr Le back in cash. Ms Le says the property at 33 Titchmarsh Crescent was funded through gifts or loans from family members or associates of approximately $230,000.

[17]              Notwithstanding the above, the parties have proposed to settle the issue on the basis that:

(a)A type 1 assets forfeiture order be made over the property described in [9]. Mr and Ms Le would abandon all claims they may have under the Act or otherwise to the property.

(b)The Commissioner will not pursue an application for a profit forfeiture order in respect of the significant criminal activity evidenced in the affidavits filed in support of the application.

(c)The above will be a full and final settlement with costs to lie where they fall.

[18]              As noted, the Commissioner’s application is supported by the affidavits of Detective Constable Qi and also Ashna Achari, the forensic accountant employed by New Zealand Police. While Mr and Ms Le have not faced charges in relation to their alleged involvement in the cannabis cultivation, the evidence taken as a whole, particularly when considered with the unexplained deposits and transfers to their bank accounts supports the conclusion that Mr and Ms Le were involved in significant criminal activity. Further, the onus is on Mr and Ms Le to disprove the Commissioner’s asserted quantum under the profit forfeiture order.

[19]              I accept that the proposed settlement is consistent with the purposes of the Act and the overall interests of justice for the reasons set out in counsels’ joint memo, namely:

(a)There will be a saving of time and cost to both parties with the resolution.

(b)There is a risk to both parties in a contested hearing. The settlement provides certainty.

(c)As noted, while the Commissioner has a good case to show Mr and Ms Le were involved in serious offending and the property is tainted property, Mr and Ms Le have not been charged and have arguments they could raise in opposition at least in part to the profit forfeiture order.

[20]              There is no other property which the Commissioner has been able to identify associated with Mr and Ms Le that will be available to satisfy any profit forfeiture order. The property will in its totality be forfeited and in exchange, the Commissioner will not pursue the profit forfeiture order.

[21]              Mr and Ms Le wish to have certainty and to bring to an end their involvement in these proceedings. While 33 Titchmarsh Crescent is their home and the Mercedes their principal car, any application for relief would be considered in light of the circumstances of the asserted significant criminal activity and the evidence of the unlawful benefit in particular.

[22]              For the above reasons I agree that the proposed settlement is appropriate. It balances the parties’ rights and interests and is in accordance with the purpose of the Act.

[23]Accordingly, I make the following orders to give effect to the settlement:

(a)Type 1 assets forfeiture order 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:

Real estate

(i)all interests in the property at 33 Titchmarsh Crescent, Flat Bush, Auckland, being Lot 290, Deposited Plan 205317, comprised in Record of Title NA133D/388, excluding the interest of Westpac Banking Corporation Limited as mortgagee as at the date of these orders;

Vehicles

(ii)the proceeds of sale of a 2020 Mercedes Benz GLE300 motor vehicle, registration NBJ912, registered to Ms Le on 18 September 2020, and any accrued interest;

(iii)the proceeds of sale of a Sea-Doo PWC Wake Pro 230 jet ski, engine identification number MN463548, purchased by Mr Le on 30 November 2020, and any accrued interest; and

(iv)the proceeds of sale of a trailer, registration 71B60, registered to Mr Le, and any accrued interest.

(b)Costs: costs lie where they fall in relation to all matters between the Commissioner and Mr and Ms Le.

[24]              In addition, the parties ask the Court to note the following further terms of the agreed settlement:

(a)Mr and Ms Le will abandon all claims they may have, under the Act or otherwise, to the Property;

(b)the Commissioner will not pursue his application for a profit forfeiture order against Mr and Ms Le in respect of the significant criminal activity evidenced in the affidavits filed in support of the Application; and

(c)the agreement is in full and final settlement of the question of civil forfeiture of the Property as between the Commissioner and Mr and Ms Le on the basis of the significant criminal activity evidenced in the affidavits filed in the proceeding to date.

[25]Given the above the fixture scheduled for 4 August 2025 is vacated.

Venning J