Commissioner of Police v Le

[2021] NZHC 2085

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-1941

[2021] NZHC 2085

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

VU NGOC HOANG LE

First Respondent

SUPAVADEE MUSIKUL
Second Respondent

UYEN NGOC LE
Third Respondent

…/cont

Hearing:

On the papers

Counsel:

M Harborow and S Cann for the applicant

M Pecotic for first, third, fourth and fifth respondents

Judgment:

12 August 2021

JUDGMENT OF HARLAND J

This judgment was delivered by me on 12 August 2021, at 11:00 am Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar  Date:………………………….

Counsel/Solicitors:

M Harborow/S Cann, Meredith Connell, Auckland

M Pecotic, Barrister, Auckland

COMMISSIONER OF POLICE v LE [2021] NZHC 2085 [12 August 2021]

TAM THI PHAM

Fourth Respondent

LONG NGOC HOANG LE
Fifth Respondent

SUPHUMMA PIAMTHONG
Sixth Respondent

ERI SAKATA
Seventh Respondent

[1]This matter was placed before me as Duty Judge.

[2]        Counsel for the Commissioner and counsel for the first, third, fourth and fifth respondents have filed a joint memorandum seeking the Court’s approval of a proposed settlement they have reached under s 95 of the Criminal Proceeds (Recovery) Act 2009 ( the Act). In addition, and separately, the Commissioner invites the Court to make orders as sought in his amended application for civil forfeiture orders dated 23 August 2019 (the amended application) in respect of the second, sixth and seventh respondents. These orders are not opposed.

[3]        I have read the joint memorandum, the amended application, the opposition to the application for civil forfeiture orders and I have also considered the proposed settlement and the submissions outlined in respect of it contained in the joint memorandum.

[4]        I refer to s 95(3) of the Act requiring the Court to approve the settlement if it is satisfied that the settlement is consistent with the purposes of the Act and the overall interests of justice.

[5]        I am satisfied for the reasons outlined in paragraph 5 of the joint memorandum that the proposed settlement is consistent with these requirements.

[6]The following orders are made:

(a)Extension of restraining orders under s 41(2) of the Act: the restraining order over 58 Fairburn Road, Otahuhu, Auckland (Fairburn Road) made by Edwards J on 10 September 2015 is extended for a further period of one year from 10 September 2021 to 10 September 2022.

(b)Further order associated with restraining orders under ss 33, 34 and 35 of the Act: the Official Assignee must, as soon as practicable, sell Fairburn Road for its fair market value. The Official Assignee has sole discretion to determine the fair market value of the property, but may take into account any information provided to him by Mr Uyen Le,

Ms Pham and Mr Thach. The Official Assignee must deal with the proceeds of sale in the following way:

(i)first, deduct the Official Assignee's actual costs in effecting the sale (including any outstanding utilities, real estate agent’s commission, legal fees etc);

(ii)second, repay the loan secured against the property;

(iii)third, apply $500,000 (the settlement sum) in satisfaction of the assets forfeiture order at paragraph (c)(x) below;

(iv)finally, return the balance to Mr  Uyen  Le,  Ms  Pham  and  Mr Thach to a bank account nominated by them.

(c)Assets forfeiture orders under s 50(1) of the Act: the following property is to vest in the Crown absolutely and remain in the Official Assignee’s custody and control:

Mr Vu Le

(i)the proceeds of sale of a 2006 BMW M6 registration KOD999, formerly registered to Mr Long Le, including any accrued interest;

(ii)the proceeds of sale of a 2005 Audi A6 registration JAQ578, formerly registered to Mr Uyen Le, including any accrued interest;

(iii)NZD $10,800, USD $300 and THB $120 cash seized by Police from Mr Vu Le on 22 July 2015, including any accrued interest;

(iv)NZD $51,008.50 cash seized by Police from the master bedroom at 12 Strundeen Close, Flat Bush, Auckland on 23 July 2015, including any accrued interest;

Mr Uyen Le and Ms Pham

(v)the proceeds of sale of a 2009 Honda CRV registration HYR638, formerly registered to Mr Uyen Le, including any accrued interest;

(vi)the former credit balance of ANZ bank account xx-xxxx- xxxxxxx-xx held in the name of Mr Uyen Le, including any accrued interest;

(vii)the former credit balance of ANZ bank account xx-xxxx- xxxxxxx-xx held in the name of Mr Uyen Le, including any accrued interest;

(viii)the former credit balance of ASB bank account xx-xxxx- xxxxxxx-xx held in the name of Ms Pham, including any accrued interest;

(ix)five bottles of Hennessy Cognac seized by Police on23 July 2015 from Fairburn Road;

(x)the Settlement Sum (in accordance with paragraph (b)(iii) above);

Mr Long Le

(xi)the former credit balance of ANZ bank account xx-xxxx- xxxxxxx-xx held in the name of Mr Long Le, including any accrued interest;

(xii)the former credit balance of ASB bank account xx-xxxx- xxxxxxx-xx held in the name of Mr Long Le, including any accrued interest;

(xiii)the former credit balance of ASB bank account xx-xxxx- xxxxxxx-xx held in the name of Mr Long Le, including any accrued interest;

(xiv)the proceeds of sale of four snowboards seized by Police on  23 July 2015 from Fairburn Road, including any accrued interest; and

(d)Costs lie are to where they fall in relation to all matters between the Commissioner and Mr Vu Le, Mr Uyen Le, Ms Pham, Mr Long Le and Mr Thach.

[7]The further terms of the agreed settlement are noted:

(a)Mr Vu Le, Mr Uyen Le, Ms Pham, Mr Long Le and Mr Thach abandon all claims they may have, under the Act or otherwise, to any of the property to be forfeited;

(b)the Commissioner will not pursue his application for profit forfeiture orders against Mr Vu Le, Mr Uyen Le, Ms Pham and Mr Long Le; and

(c)the settlement is in full and final settlement of the amended application for civil forfeiture orders (dated 23 August 2019) brought by the Commissioner against Mr Vu Le, Mr Uyen Le, Ms Pham, Mr Long Le and Mr Thach under the Act.

[8]        The Commissioner has also requested that the Court make orders as sought in his amended application in respect of the second, sixth and seventh respondents.

[9]        The second respondent was a party the opposition filed by the first to fifth respondents but did not file any evidence in support of her opposition and has not otherwise taken part in the proceedings. In the joint memorandum, counsel for the Commissioner notes that on 1 March 2019, the second respondent spoke with Detective Corke and gave a formal statement in which she stated that she did not oppose forfeiture of property associated with her.

[10]      The sixth and seventh respondents have not taken part in the proceeding and therefore have not opposed the Commissioner’s amended application. Counsel advised that the sixth respondent is currently a sentenced prisoner and the seventh respondent left New Zealand on 22 July 2015 and has not returned.

[11]      I have read and considered counsel for the Commissioner’s submissions in relation to the property sought to be forfeited.

[12]      I am satisfied on the balance of probabilities having read the amended application and documents filed in support of it, that the property attributed to the second, sixth and seventh respondents is tainted property and that they have unlawfully benefited from significant criminal activities.

[13]I am satisfied that it is appropriate to make the orders sought.

[14]      I make the following orders in respect of the property associated with the second, sixth and seventh respondent:

(a)Assets forfeiture orders under s 50(1) of the Act: the following property is to vest in the Crown absolutely and is in the Official Assignee’s custody and control:

Ms Musikul

(i)the proceeds of sale ($13,999.41) of a 2008 Audi A4 registration HHG223, formerly registered to Ms Musikul, including any interest accrued;

(ii)NZD $948.50, USD $100 and THB $140 cash (approximately

$1,094.65 total after conversion of USD and THB to NZD) seized  by  Police  from  Ms  Musikul’s  wallet  located   at   12 Strundeen Close, Flat Bush, Auckland on 23 July 2015, including any accrued interest;

Mr Piamthong and Ms Sakata

(iii)the former credit balance ($3,881.82) of ANZ bank account xx- xxxx-xxxxxxx-xx held in the name of Ms Sakata, including any accrued interest;

(iv)the former credit balance ($4,591.62) of ANZ bank account xx- xxxx-xxxxxxx-xx held in the name of Ms Sakata, including any accrued interest;

(v)the former credit balance ($28,821.74) of ANZ bank account xx-xxxx-xxxxxxx-xx held in the names of Mr Piamthong and Ms Sakata, including any accrued interest;

(vi)NZD $14,800 cash seized by Police on 23 July 2015 from     18 Ballydonegan Rise, Flat Bush, Auckland, including any accrued interest; and

(vii)NZD $610 cash seized by Police from Mr Piamthong’s wallet on 22 July 2015.

[15]      I note that the approximate value of the property the Commissioner proposes be forfeited in respect of Ms Musikul, Mr Piamthong and Ms Sakata is $67,000. If assets forfeiture orders are made as sought, the Commissioner does not wish to pursue his profit forfeiture orders against these three

Harland J