Commissioner of Police v Nguyen
[2025] NZHC 1760
•30 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-3133
[2025] NZHC 1760
UNDER the Criminal Proceeds (Recovery) Act 2009 BETWEEN
COMMISSIONER OF POLICE
Applicant
AND
TAT THANG NGUYEN
Respondent
Hearing: on the papers Appearances:
M R Harborow and A F Mackenzie for applicant S L McColgan and J E R Dierick for respondent
Judgment:
30 June 2025
JUDGMENT OF JOHNSTONE J
(approval of settlement between Commissioner and respondent)
This judgment was delivered by me on 30 June 2025 at 4 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors: MC, Auckland
COMMISSIONER OF POLICE v NGUYEN [2025] NZHC 1760 [30 June 2025]
[1] By judgment dated 11 April 2025, I declined to approve a settlement entered between the parties in this proceeding: the Commissioner of Police and Tat Thang Nguyen.1 The settlement contemplated that the Court would make a type 1 assets forfeiture, under s 50 of the Criminal Proceeds (Recovery) Act 2009, over the proceeds of a sale of a Mercedes-Benz G-wagon. But in seeking approval of the settlement, the Commissioner submitted that the sale proceeds were not tainted property. I declined to approve the settlement because the Court does not have jurisdiction to make a type 1 assets forfeiture order over untainted property.
[2] The parties now apply for approval of a revised settlement. The revised settlement contemplates a profit forfeiture order, to be met from the entirety of the property restrained in this proceeding: the G-wagon’s sale proceeds, a further sum of
$96,860 which the police found at Mr Nguyen’s home in the form of cash, and all interest earned on those amounts.
Background
[3]The background is set out in my earlier judgment as follows:
[3]Between 6 January 2021 and 5 July 2021, [Mr Nguyen] purchased six residential properties in Auckland. On 9 September 2022, police officers making unrelated enquiries near two of these properties, sited alongside each other in Windsor Park, smelled cannabis. They searched the properties and found sophisticated cannabis cultivations at each.
[4]On 1 December 2022, the police searched other properties associated with Mr Nguyen. Of the other four that Mr Nguyen had bought during January to July 2021, the police found cannabis cultivations in two, sustained by electricity supplied from one of the others. In total, the cultivations were comprised of 617 live plants, 93 harvested plants, and around 4.8 kilograms of cannabis head.
[5]The police also searched the home of Mr Nguyen and his partner, Linh Thuy Bui, finding a total of $96,860 in cash (the Cash), almost exclusively in $50 notes, comprised as follows:
(a)$89,900 found in a box in a bedroom wardrobe (the Wardrobe Cash);
(b)$1,150 found in a black duffel bag; and
(c)$5,810 found in an office.
1 Commissioner of Police v Nguyen [2025] NZHC 893.
[6]Mr Nguyen denied any knowledge of the cannabis cultivations. He was charged with permitting premises to be used for the cultivation of cannabis. On 22 June 2023, those charges were dismissed.
Mr Nguyen s financial position
[7]In the tax years ending 2016 to 2022, Mr Nguyen and Ms Bui declared a joint net income of $614,857.42 - about $87,836 per annum. But they paid around $1,334,000 in deposits for the six properties bought during January to July 2021. The balance of the properties' purchase prices was met by borrowing from trading banks, secured by mortgage. The Commissioner has been able to identify only
$236,874.36 of the $1,334,000 paid in deposits as sourced from the bank accounts of Mr Nguyen and Ms Bui.
[8]At times, Mr Nguyen has been a director and shareholder of three laundromat companies: Speed King Ltd, NSC Ltd and Drop N Go Services Ltd. The bank accounts of Speed King and NSC received regular and substantial cash deposits. In 2021, total cash deposits represented 78 per cent of their total revenue.
[9]Mr Nguyen ceased being a shareholder of Speed King on 4 January 2021 and a director on 5 April 2021. However, despite Mr Nguyen no longer being a shareholder, Speed King contributed substantial amounts to the repayment of principal and interest owed under the loans taken so as to buy the six properties: $310,786.37 in interest and
$1,217,904.80 in principal. And one of the remaining shareholders contributed $500,000 to the deposit paid for one of the six properties.
The revised settlement
[4] The contemplated profit forfeiture order amounts in value to around $148,000, comprised of the G-wagon’s sale proceeds of $46,500, the $89,860 of seized cash, and the interest that has been earned on those amounts.
[5]The balance of the settlement contemplates that:
(a)The Commissioner will not seek an assets forfeiture order in respect of property which has previously been restrained in this proceeding.
(b)The settlement does not entail any admission of liability or wrongdoing by Mr Nguyen beyond that inherent in the profit forfeiture order sought. In the latter respect, Mr Nguyen abandons all claims he may have, under the Act or otherwise, to any of the property to be forfeited in accordance with the settlement.
(c)The settlement is full and final, and applies in respect of the question of civil forfeiture of all property as between the Commissioner and Mr Nguyen on the basis of the significant criminal activity evidenced in the affidavits filed, and communications between the Commissioner and Mr Nguyen in this proceeding to date.
(d)Costs lie will where they fall in relation to all matters between the Commissioner and Mr Nguyen.
Approval of settlements under the Act
[6] Parliament has empowered the Commissioner to enter into settlements as to the forfeiture of property under the Act, and it has entrusted the High Court with a supervisory jurisdiction to approve settlements when satisfied they are consistent with the purposes of the Act and the overall interests of justice.2 The Act’s “primary purpose” is closely aligned with the two forms of civil forfeiture orders, providing for the forfeiture of tainted property (assets forfeiture orders) and of property that represents the value of a person’s unlawful benefit (profit forfeiture orders).3
[7] That said, Parliament is likely to have had in mind the significant costs that can be associated with litigation, and the benefits to all parties if litigation can be resolved by consent.4 There is a clear public interest in proceedings under the Act being brought to a prompt conclusion, provided the settlement reflects the likely costs and risks inherent in the determination of a contested application.5
Is the settlement consistent with the purposes of the Act and the overall interests of justice?
[8] The Commissioner observes that, if he were to apply for a profit forfeiture order, he would consider nominating an unlawful benefit figure of $740,400. This figure is based on an estimated yield of 1,851 ounces of cannabis from the 617 plants
2 Criminal Proceeds (Recovery) Act 2009, s 95.
3 Commissioner of Police v Nguyen, above n 1, at [10]–[18] and [26]–[27].
4 See the comments of the Full Court of this Court in Commerce Commission v NZ Milk Corporation Ltd [1994] 2 NZLR 730 (HC), in the analogous area of agreed penalties under the Commerce Act 1986.
5 Commissioner of Police v Cotton [2017] NZHC 21 at [7].
located across the cultivations (based on a single harvest), and assumes their sale at an average price of $400 per ounce.
[9]Such a figure would exceed by some margin the total value of the around
$148,000 of restrained property. However, the Commissioner notes that:
(a)The Commissioner’s tentative unlawful benefit figure is based on the value of the cannabis located and seized. This is because other than the cash located at Mr Nguyen’s home, the Commissioner was unable to identify evidence of sums that might constitute the proceeds of Mr Nguyen’s offending. While the bank accounts of Speed King Limited and NSC Limited received a significant amount of cash deposits, the Commissioner’s analysis was unable to determine whether these amounts were the proceeds of cannabis cultivations or simply the revenue of legitimate laundromat businesses (where payment in cash is accepted as common). In particular, there was not a significant increase in cash deposits following Mr Nguyen’s purchase of the properties at which cannabis was located.
(b)The Commissioner acknowledges that an unlawful benefit figure based on the value of cannabis located, rather than harvested, is not without risk:
(i)In Commissioner of Police v Bartlett, van Bohemen J did not consider that cannabis plants that had not been harvested could constitute a benefit “derived from” significant criminal activity, on the basis that the plants themselves were the criminal activity and only had a commercial value if and when they were sold.6 If the Court hearing any future forfeiture application accepted this proposition, the Commissioner would be limited to relying
6Commissioner of Police v Bartlett [2019] NZHC 1449 at [113]–[124].
on cannabis he could prove was harvested from the addresses, and on sold.
(ii)Similarly, in the recent decision of Commissioner of Police v McMillan, while Boldt J rejected the submission that possession for supply does not, by definition, generate an unlawful benefit, the Judge considered that “every case must be determined on its own facts”.7
(c)If the Commissioner nominated an unlawful benefit figure based only on the value of harvested plants, depending on the yield of those harvests and the value of the cannabis sold, that figure would be between $37,200 and $298,000.
(d)In any event, the only property belonging to Mr Nguyen not currently subject to restraining orders the Commissioner’s extensive investigation uncovered was the real estate. With the exception of Mr Nguyen’s family home in Te Atatū, Auckland (addressed below), the Commissioner considered insufficient equity existed to seek restraining orders over these properties:
(e)Mr Nguyen and Ms Bui appear to have over $1 million in equity in the Te Atatū home. However, assuming the Commissioner relied on the value of plants harvested, his unlawful benefit figure would be at most
$298,000, meaning that after forfeiting the restrained property, about
$150,000 would remain outstanding. The Commissioner apprehends a risk that the Court may decline to make a forfeiture order requiring the sale of a property worth over $1 million, so that the sum of $150,000 is recovered, particularly since Ms Bui owns half of what is a family home. While not strictly relevant to any profit forfeiture order application, the Commissioner notes for completeness the property was
7Commissioner of Police v McMillan [2025] NZHC 147 at [81].
purchased years before the Commissioner alleges Mr Nguyen was involved in cannabis offending, and there is no evidence the property is tainted.
(f)Mr Nguyen has displayed a co-operative approach to these proceedings. Mr Nguyen proactively sought to settle this litigation before the Commissioner’s formal civil forfeiture application had been prepared and filed (something the Commissioner considers ought to be encouraged). This mirrored Mr Nguyen’s approach in the criminal proceedings, where he was co-operative with Police and forthcoming with information about his affairs.
[10] Accordingly, the Commissioner considers that despite some disparity between the total value of the property proposed to be forfeited via this settlement and the unlawful benefit figure he could nominate, the settlement appropriately reflects the risks he may face if this matter were to proceed to a contested hearing.
[11] Mr Nguyen’s stated position remains that he has not unlawfully benefited from significant criminal activity, and that the restrained property is not tainted. However, he also accepts he faces risk if this matter proceeds to a hearing, and is prepared to accept, for the purposes of settlement only, that he has unlawfully benefited to the stated quantum.
[12] In these circumstances, I accept that the parties’ revised settlement is consistent with the Act’s purposes and the overall interests of justice. It reflects the likely costs and risks inherent in the determination of a contested application, and the public interest in proceedings under the Act being brought to a prompt conclusion. And Mr Nguyen’s concession, made for the purpose of settlement, provides a sufficient foundation for the Court’s exercise of its jurisdiction to make a profit forfeiture order.
Result
[13]For the above reasons, I approve the parties’ revised settlement.
[14]I make the following orders:
(a)A profit forfeiture order against Tat Thang Nguyen under s 55(1) of the Act:
(i)The value of the benefit determined in accordance with s 53 of the Act is $143,360 (plus all interest accrued up to and including the date the Official Assignee discharges the order).
(ii)The maximum recoverable amount is $143,360 (plus all interest described above).
(iii)The property to be disposed of in accordance with s 83(1) of the Act is: the proceeds of the $96,860 in cash seized at Mr Nguyen’s home on 1 December 2022; the proceeds of the sale of a Mercedes-Benz G-wagon that had been registered in his name, and all interest accrued up to and including the date the Official Assignee discharges the order).
(b)Costs are to lie where they fall.
Johnstone J
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