Commissioner of Police v Song

[2018] NZHC 460

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2014-485-9648

[2018] NZHC 460

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER

of an application pursuant to sections 22, 24 and 25

BETWEEN

THE COMMISSIONER, THE NEW ZEALAND POLICE

Applicant

AND

XIAOYUN SONG

First Respondent

SHAOYAN MA
Second Respondent

WESTPAC NEW ZEALAND LIMITED

Interested Party

Hearing:

9 March 2018 (Teleconference)

Counsel:

E M Light for Applicant

A R Davie for Respondents

Final Judgment:

20 March 2018

FINAL JUDGMENT OF NICHOLAS DAVIDSON J

[1]Interim judgment was delivered on 31 August 2017.1

1      The Commissioner, The New Zealand Police v Song & Ma [2017] NZHC 2104.

THE COMMISSIONER, THE NEW ZEALAND POLICE v SONG & MA [2018] NZHC 460 [20 March 2018]

[2]                 The interim judgment left open the quantum of the profit forfeiture order which should be made, and a mechanism for the sale of property to which the assets forfeiture order and profit forfeiture order would apply in their different ways.

[3]                 The Court issued further  Minutes of 31 October 2017, 2 November  2017,  15 November 2017 and 7 February 2018.

[4]                 Mr Tunley’s supplementary affidavit of 22 December 2017 addressed a residual issue which may have altered the quantum of the profit forfeiture order, if the unlawful benefit obtained by the respondents was recalculated downwards. Having read Mr Tunley’s supplementary affidavit, and Mr Davie on behalf of Mr Ma having nothing to say about that, and without instructions from Ms Song, I am satisfied that the profit forfeiture order as sought by the Commissioner is correct in the sum of

$272,145.80.

[5]                 At a teleconference with counsel on Friday 9 March 2018, Mr Davie did not consent to, but made no further submissions, with regard to the profit forfeiture sought.

[6]                 I had also left open the question of undue hardship in case, following the interim judgment, anything had arisen which might warrant an application in that regard. Mr Davie made no further application.

[7]                 I was advised that Ms Song is in China. I was told that Mr Chiu of counsel may be representing her, but at the teleconference on 9 March 2018, I was advised by Mr Davie that he had received an email from Mr Chiu to say that he had no instructions. No appearance was entered on behalf of Ms Song through Mr Chiu, and Mr Davie has no instructions from her.

Disposition

[8]                 The final judgment of the Court is thus that a profit forfeiture order is made in the sum of $272,145.80, made up of $162,109.91 from unlawful seafood sales, and benefit overpayments in the sum of $110,035.89. This final judgment stands with the interim judgment of 31 August 2017 as to the assets forfeiture order made in that interim judgment.

[9]                 It is likely that ancillary orders may be required, and there remains the question of costs. Ms Light was requested to file a draft order, after discussion with Mr Davie. That is to hand and reflects the interim and final judgment. It is convenient therefore to reach final judgment in terms of the draft order attached and I so order.

[10]              I reserve leave for a costs application and any other application necessary to effect the interim and/or final judgment.

……………………………………..

Nicholas Davidson J

Solicitors:

Crown Solicitor, Wellington,SJ Burston Treadwells, Wellington

DRAFT ORDER

To the Commissioner, the New Zealand Police And to Xiaoyun Song, the first respondent And to Shaoyan Ma, the second respondent

And to Westpac New Zealand Limited, the interested party

And to the Official Assignee

1.The applications for assets and profit forfeiture orders made by the Commissioner on 2 May 2016 were determined by the Honourable Justice Davidson on 31 August 2017 and 19 March 2018, respectively.

2.The determination was made following a hearing on 10, 11, 12 May 2016 and 18 July 2016 at which the following persons appeared: E M Light for the applicant and A Davie for the first and second respondents.

3.As a result of the determination, the High Court made the following orders:

Assets forfeiture order

4.The property to which this order applies –

(a)vests in the Crown absolutely; and

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

5.This order applies to the following property, namely:

(a)the residential property located at 42F Apu Crescent, Lyall Bay, Wellington, described under certificate of title WN38B/574, registered in the name of Xiaoyun Song, other than the rights, title and interest of Westpac New Zealand Limited under the registered mortgage number 9175681.2 (Apu Crescent).

6.The court made the following declarations or directions: That Apu Crescent is tainted property, owned by the first and second respondents, and thus, aside from the debt to Westpac, it is forfeit to the Crown in the sum of $162,109.91.

Profit forfeiture order

7.As a result of the determination, the High Court made the following order:

(a)the value of the benefit determined in accordance with section 53 of the Act is, as the case requires, $272,145.80 minus the value of the property listed at paragraph 5(a);

(b)the maximum recoverable amount is $272,145.80 minus the value of the property listed at paragraph 5(a) and the direction in paragraph 6 above in which the respondents have interests and which the Court orders are forfeit pursuant to the assets forfeiture application above; and

(c)the following property is to be realised:

(i)the remainder of the item of property listed in paragraph 5(a) above in which the respondents have interests and which are not forfeit pursuant to the assets forfeiture order above; and

(ii)a 2004 Toyota Landcruiser, registration number HJY826, including ignition keys, registered in the name of Shaoyan Ma.

8.The issue of costs is reserved.

Date:

Signature:

Deputy Registrar