Commissioner of Police v Paetmuangjan

[2025] NZHC 2979

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2025-485-215

[2025] NZHC 2979

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

THE COMMISSIONER, THE NEW ZEALAND POLICE

Applicant

AND

PIYAPORN PAETMUANGJAN

Respondent

Hearing:	On the papers
Counsel:	FF Nizam for Respondent
Judgment:	8 October 2025

JUDGMENT OF CULL J

[On-notice application for restraining and forfeiture orders]

[1]    The Commissioner applies on-notice for restraining and forfeiture orders in respect of $20,000 cash (the Cash) seized from the respondent’s former home address in June 2007. The Commissioner’s on-notice application and affidavit dated 10 April 2025 were served on the respondent by email on 30 April 2025 and were later personally served on her in Thailand on 12 June 2025.

[2]    On 15 July 2025, the Commissioner filed an affidavit received from the respondent confirming she has no interest in the Cash, she has no objection to the restraint or forfeiture of the Cash, and she would like to be removed from any future proceedings in relation to the Cash.

THE COMMISSIONER, NEW ZEALAND POLICE v PAETMUANGJAN [2025] NZHC 2979 [8 October 2025]

[3]    The Commissioner now seeks restraining and forfeiture orders over the Cash, which is currently held in the New Zealand Police trust account.

[4]    On 4 August 2025, the Commissioner was directed to file a memorandum setting out the factual and legal basis on which the orders are sought, which are set out below.

Factual background

[5]    The factual background to this  application  is  set  out  in  an  affidavit  of  Ms Williams filed in support of the Commissioner’s on-notice application. This provides the evidence for the belief that the respondent has unlawfully benefited from significant criminal activity, namely in relation to the importation of methamphetamine, and/or that the Cash is tainted, because the respondent acquired it or derived it from the proceeds of methamphetamine importation.

[6]    In 2007, Porirua Police launched an investigation into the importation of methamphetamine into New Zealand from Thailand. The investigation was named Operation Earle.

[7]    On 5 June 2007, police executed a search warrant at an address in Wellington, as part of Operation Earle. This was the home address of the respondent at the time.

[8]    While searching the property, police located $20,000 in cash, documentation relating to Western Union money transfers, cell phones and sim cards. No controlled drugs were located.

[9]    At the time of the search, the respondent was at the address and was arrested by police for the importation of methamphetamine. Following her arrest and upon returning to the Porirua Police Station, she agreed to be interviewed by police.

[10]   The respondent stated that her involvement in the importation of methamphetamine from Thailand was to obtain money from New Zealand-based clients for the purchase of drugs. The money was then forwarded by either the respondent or her associates by Western Union money transfers to her supplier and associates in Thailand. The respondent referred to the item she was importing as “ice”,

and stated she had never seen it and did not know what it was. She said it was different to methamphetamine, which is known in Thailand as “Mad drug”.

[11]   During the interview, the respondent accepted ownership of the Cash found at her address, and stated this money was her personal gain from sending money to Thailand for the purchase of drugs. She also confirmed that she did not work and did not receive any other monetary benefit.

[12]   The respondent was charged with eleven counts of importing methamphetamine. She pleaded guilty to these charges and was convicted and sentenced to six years’ imprisonment on 28 September 2007. Due to an oversight, the funds were not the subject of forfeiture in the criminal proceedings. The funds have inadvertently been sitting in the New Zealand police trust account ever since.

Restraining order

[13]The Commissioner seeks a restraining order over the Cash on the basis that:

(a)The Cash is tainted property; and/or

(b)The respondent has unlawfully benefited from significant criminal activity.

[14]There is no opposition to the application for a restraining order.

Principles

[15]   This application for a restraining order is brought under ss 24 and 25 of the Criminal Proceeds (Recovery) Act 2009 (the Act). Under s 24 of the Act, the Court may issue a restraining order if it has “reasonable grounds to believe” that property is tainted property.1

1      Criminal Proceeds (Recovery) Act 2009 (the Act), s 24(1).

Tainted property

[16]   “Tainted property” is defined as any property that has “wholly or in part” been acquired as a result of significant criminal activity, or directly or indirectly derived from significant criminal activity.2 It is the source, rather than the ownership of the specific property, that is the determining feature.3 An order made under s 24 is therefore predicated on the unlawful source of all or part of the property concerned.

No particular connection between the property and a respondent is required.4

[17]   Alternatively, under s 25 of the Act, the Court may issue a restraining order over property if it has “reasonable grounds to believe” that the respondent has unlawfully benefited from significant criminal activity.5 “Significant criminal activity” refers to offending in New Zealand that is punishable by a maximum sentence of more than five years or results in the acquisition of benefits of $30,000 or more.6

[18]   The meaning of “unlawfully benefited from significant criminal activity” is defined in s 7 of the Act as follows:

7    Meaning of unlawfully benefited from significant criminal activity

In this Act, unless the context otherwise requires, a person has unlawfully benefited from significant criminal activity if the person has knowingly, directly or indirectly, derived a benefit from significant criminal activity (whether or not that person undertook or was  involved  in  the significant criminal activity).

[19]   The focus under s 25 of the Act is thus different from s 24. It requires both an existence of a relationship between the relevant property and the respondent, and that the respondent has “unlawfully benefited from significant criminal activity”.7 It is sufficient for the respondent to  have an “interest” in  the property which  includes  “a right, power or privilege in connection with the property”.8

2      Section 5.

3      Commissioner of Police v Briggs [2012] NZHC 2324 at [35].

4 At [19].

5      Section 25 of the Act.

6      Section 6(1).

7      Briggs, above n 3, at [20].

8      Section 5 of the Act; see also Commissioner of Police v Smith [2017] NZHC 10 at [11].

[20]   Restraining orders are intended as a “holding measure” to allow the Commissioner further time to gather evidence for an ongoing investigation, and which may lead to forfeiture but only on completion of further processes.9 They are issued on the basis of “reasonable grounds to believe rather than proof” that the respondent has unlawfully benefited from significant criminal activity or that the property is tainted property.10

[21]   In Commissioner of Police v Smith, the Court summarised these principles as follows:11

The threshold for making an order under s 25 has been described as “relatively low”. That is because the court is not required to make a finding that the respondent has unlawfully benefited from significant criminal activity. As the Court of Appeal explained in Vincent v Commissioner of Police restraining orders are often sought in situations of urgency. Restraining orders are temporary orders to give the police time to gather further evidence leading to possible forfeiture of property. Restraining orders are made where the court has reasonable grounds for the requisite statutory belief. The onus on the Commissioner is not one of proof but to adduce a sufficient evidential basis to enable the court to be satisfied it has reasonable grounds for the requisite belief. Thus, an application for a restraining order may proceed justifiably on an evidentiary basis that in other contexts would be regarded as non-compliant with requirements of the Evidence Act 2006 as to admissibility.

Significant criminal activity

[22]   In the alternative, the Commissioner submits that the evidence set out in     Ms Williams’ affidavit filed in support of the application gives rise to reasonable grounds to believe that the respondent was involved in significant criminal activity. The respondent pleaded guilty to 11 charges of importing methamphetamine and was sentenced to six years’ imprisonment.

[23]   The summary of facts for these charges  refers  to the respondent  arranging 11 deliveries containing approximately 980 grams of methamphetamine, with an estimated street value of $980,000, from Thailand to New Zealand.12 The summary also refers to the Cash found at the respondent’s address and other material relating to her offending.13

9      Yan v Commissioner of Police [2015] NZCA 576, [2016] 2 NZLR 593 at [7].

10     Vincent v Commissioner of Police [2013] NZCA 412 at [47].

11     Commissioner of Police v Smith, above n 8, at [10].

12 As referred to in the Sentencing Notes of Clifford J, dated 28 September 2007, at [11].

13 At [14].

[24]   The Commissioner submits there are reasonable grounds to believe the Cash is tainted. As set out above, the respondent had no form of income and the Cash was the payment she received for her role in importing drugs into New Zealand.

[25]   The Cash located in the respondent’s possession represents the importation of approximately 20 grams of methamphetamine, which was only a small proportion of the total amount imported by the respondent and her associates between 20 March and 29 May 2007.

[26]   Despite the respondent claiming no interest in the Cash in her affidavit,14 the Commissioner submits that the respondent is the owner of the Cash. When she was interviewed about it in 2007, she confirmed that it was money she received as payment for her part in the drug operation and was located at her home address.

[27]   I am satisfied that a restraining order should issue, as there are reasonable grounds to believe the Cash is tainted property and, in the alternative, that the respondent has unlawfully benefited from criminal activity.

Asset forfeiture order

[28]   The Commissioner is also seeking an asset forfeiture order over the Cash. The Commissioner submits that the Cash is “tainted property” such that an asset forfeiture order should be made over it for the purposes of s 50(1) of the Act.

[29]   Under s 50 of the Act, the Court “must” make an asset forfeiture order in respect of specific property if it is satisfied that, on the balance of probabilities, the property is tainted.

[30]   In the case of Commissioner of Police v Law, the Court of Appeal made comments on the inferences which could be drawn from a failure of a respondent to oppose an application for forfeiture orders. The Court found:15

14     It is submitted that the respondent’s reference to “hav[ing] no interest in this cash” at [2.3] of her affidavit is a reference to not wanting the cash returned.

15     Commissioner of Police v Law [2021] NZA 517 at [30]–[31].

(a)It was significant that the respondent chose not to oppose the application.

(b)The failure of a party in a civil proceeding to call a witness may, in itself, justify an adverse inference against that party. That principle is more pronounced when a party chooses to call no evidence at all, and even greater when a defendant takes no steps to defend the claim against him or her.

[31]   For the same reasons I found that a restraining order should issue, I am satisfied from Ms Williams’ affidavit evidence that the respondent acquired the Cash from the proceeds of the importation of methamphetamine. It is accordingly “tainted property” for the purposes of the Act, having been derived from the respondent’s significant criminal activity, which she acknowledged. Further, I accept the Commissioner’s submission that the respondent is the owner of the Cash. The respondent clearly states in her affidavit that she wants “nothing to do with any of the items that I acquired through my part in the importation of Methamphetamine into New Zealand”.

[32]   I am satisfied that the evidence discloses, on the balance of probabilities, that the Cash is tainted property for the purposes of s 50(1) of the Act and that an asset forfeiture order should be made over it accordingly.

Result

[33]   The applications for restraining and asset forfeiture orders are granted accordingly.

[34]The $20,000 cash, to which these orders apply:

(a)vests in the Crown absolutely; and

(b)is to be in the Official Assignee’s custody and control.

Cull J

Solicitors:
Luke Cunningham Clere, Wellington for Applicant