Commissioner of Police v Shakib

[2022] NZHC 1983

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1331

[2022] NZHC 1983

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

AMAR RAOUF SHAKIB

Respondent

Hearing:	On the papers
Counsel:	R E Budd and F Wu for applicant
Date of judgment:	11 August 2022

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 11 August 2022 at 3.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:

Meredith Connell, Auckland

COMMISSIONER OF POLICE v SHAKIB [2022] NZHC 1983 [11 August 2022]

[1]                  As duty judge this week, I have the Commissioner’s without notice application for restraining and further orders dated 5 August 2022, seeking to place real estate at Auckland’s St Johns, a Mercedes-Benz car and bank funds into the hands of the Official Assignee.1

[2]                  The application is supported by 5 August 2022 affidavits from each police and customs officers and a forensic accountant, contending the subject assets — owned directly or indirectly by Mr Shakib — to be derived from the illicit import and sale of tobacco.2 Mr Shakib has left New Zealand. The whereabouts of the car is unknown and the bank funds are less than $1,500, but there is some $1.2 million uncharged equity in the St Johns property.

Law

[3]                  I may determine an application can properly be dealt with without notice only if I am satisfied, here, requiring the Commissioner to proceed on notice would cause undue delay or prejudice to him, an enactment expressly permits the application to be made without serving notice of the application, or the interests of justice require the application to be determined without serving notice of it. Otherwise I must give directions for service and adjourn the application, or dismiss it.3

[4]                  If I then am satisfied I have reasonable ground to believe the property is “tainted property” – that is, wholly or partly acquired as a result of, or directly or indirectly derived from, significant criminal activity – or Mr Shakib has in any event “unlawfully benefited from significant criminal activity”, I may make a restraining order in respect of that property. By the order, the property is not to be disposed of, or dealt with, other than is provided for in the restraining order, and is under the Official Assignee’s custody and control.4

1      Criminal Proceeds (Recovery) Act 2009, ss 24 and 25.

2      Customs and Excise Act 2018, ss 371 (maximum individual penalty: five years’ imprisonment) and 373 (maximum individual penalty: six months’ imprisonment).

3      High Court Rules 2016, r 7.46(3) and (5).

4      Criminal Proceeds (Recovery) Act, s 50.

Discussion

[5]                  ‘Restraining orders’ are “a holding measure”, to preserve property if to be forfeited to the Crown as derived from significant criminal activity.5 ‘Significant criminal activity’ is offending punishable by a maximum term of imprisonment of    5 years or more, or offending obtaining property with a value exceeding $30,000.6

[6]                  Section 22 of the Criminal Proceeds (Recovery) Act 2009 entitles me to consider the application without notice if I am satisfied there is a risk of the proposed restrained property being destroyed, disposed of, altered, or concealed if notice were given.

[7]I am satisfied:

(a)notice of the application for restraining orders would put the property at relevant risk, at least in ‘altering’ (by dissipating) the sum of equity presently available in the St Johns property, notwithstanding such ‘conversion’ is not effective to escape restraint;7

(b)notice of the application for further orders would unduly prejudice the Commissioner, as showing his hand on the restraining orders; and

(c)on the basis of the police and customs officers’ and forensic accountant’s affidavits, I have reasonable grounds to believe both:

(i)the St Johns property and bank funds are tainted property, as acquired or derived in connection with significant criminal activity of defrauding Customs revenue, or in any event as obtained property with a value exceeding $30,000;8 and

(ii)Mr Shakib has — by making payments against liability secured by the St Johns property in annual amounts far exceeding his declared income, seemingly from revenues obtained by

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

6      Criminal Proceeds (Recovery) Act, s 6(1).

7      Section 12.

8      The forensic accountant identifies over $2 million of unexplained deposits being received into Mr Shakib’s bank accounts.

unlawful tobacco importation and sale — unlawfully benefited from such significant criminal activity.

[8]                  I see no reason not to exercise my residual discretion, precisely to preserve property if to be forfeited to the Crown, to make the restraining and further orders sought.

Result

[9]                  I order in terms of subparas (a)–(c) of paragraph 1 of the Commissioner’s     5 August 2022 application.

—Jagose J