Commissioner of Police v Tang

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2009-404-008478 [2013] NZHC 2595

BETWEEN THE COMMISSIONER OF POLICE Applicant
ANDZHONG JIE TANG Respondent

Hearing: On the papers

Counsel: D Johnstone for Applicant
P Kaye for Respondent

Judgment: 4 October 2013

JUDGMENT OF KATZ J (Costs)

This judgment was delivered by me on 4 October 2013 at 4:30 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Meredith Connell, Auckland
Stephen Rodney Anderson, Auckland

Counsel: Peter Kaye, Auckland

THE COMMISSIONER OF POLICE v ZHONG JIE TANG [2013] NZHC 2595 [4 October 2013]

[1] Mr Tang was convicted of a number of methamphetamine offences and is currently serving a lengthy term of imprisonment as a result.

[2] The Commissioner of Police (“Commissioner”) filed these proceedings seeking a profit forfeiture order against Mr Tang in the sum of $360,000, pursuant to s 55 of the Criminal Proceeds (Recovery) Act 2009.

[3] Mr Tang accepted he had been involved in significant criminal activity, but challenged the statutory presumption that the amount of any benefit received from his criminal activities was the sum specified in the Commissioner’s application. Mr Tang submitted that the benefit he received was only $20,000. Mr Tang was however, unsuccessful in rebutting the statutory presumption. In a Judgment dated
11 July 2013 (“Judgment”) I made a profit forfeiture order for $360,000.1

Paragraphs [58] and [59] of that Judgment stated that:

[58] The Commissioner is entitled to costs, together with disbursements as fixed by the Registrar. In my view, costs should be fixed on a category
2B basis.

[59] I encourage counsel to reach agreement on costs. If costs cannot be agreed, and the Commissioner wishes to pursue recovery of costs, then any memorandum from the Commissioner is to be filed and served within 15 working days of this judgment. Any memorandum that Mr Tang wishes to file is to be filed within a further 10 working days. I then propose to deal with the issue of costs on the papers.

[4] After failing to reach agreement on costs the Commissioner has (somewhat belatedly) filed a costs memorandum. No memorandum has been filed in response, and counsel for Mr Tang has advised the Registry that he has no instructions from
Mr Tang on costs issues.

1 Commissioner of Police v Tang [2013] NZHC 1750.

[5] The Commissioner seeks costs on a 2B basis, itemised as follows:

Daily rate $1,990.00

Item Particulars Days Amount

37 Filing forfeiture application and affidavits 2 $3,980.00

11 Preparation for first case management conference 0.4 $ 796.00

12 Appearance at first mention on 28 November 2012 0.2 $ 398.00

11 & Preparation for and appearance at teleconference
12 13 February 2013 0.6 $1,194.00

40 Preparation of written submissions 1.5 $2,985.00

42 Appearance at substantive hearing 0.5 $ 995.00

[6] The total sum sought is $10,348 (5.2 days).

[7] As the successful party the Commissioner is clearly entitled to costs. As indicated at the time of the Judgment, in my view costs on a category 2B basis are appropriate. I have checked the Commissioner’s costs calculations, which are correct and in accordance with the High Court Rules.

[8] I accordingly award costs in the amount of $10,348.00 in favour of the

Commissioner. I note that the Commissioner does not seek disbursements.

Katz J

This case involved proceedings brought by the Commissioner of Police against Mr Zhong Jie Tang, seeking a profit forfeiture order under the Criminal Proceeds (Recovery) Act 2009. Mr Tang had been convicted of methamphetamine offences and was serving a lengthy prison term. The Commissioner sought a forfeiture order for $360,000, which Mr Tang contested, arguing that the actual benefit he received from his criminal activities was only $20,000. The court had previously ruled in favour of the Commissioner, ordering a forfeiture of $360,000.

The primary legal issue before the court was whether the Commissioner, as the successful party in the forfeiture proceedings, was entitled to costs on a category 2B basis as indicated in the previous judgment. The court was also required to determine the appropriate amount of costs to be awarded, based on the Commissioner’s detailed itemisation of costs incurred in the proceedings. The Commissioner had filed a costs memorandum seeking a total of $10,348, comprising costs for filing the application, preparing for case management conferences and hearings, and other related legal work. Mr Tang did not file a response or provide any instructions to his counsel regarding the costs.

The court found that the Commissioner was entitled to costs as the successful party and that the appropriate basis for awarding costs was category 2B, as previously indicated. The court reviewed the Commissioner’s costs calculations and found them to be correct and in line with the High Court Rules. The Commissioner’s itemised costs were also deemed reasonable and justified. Therefore, the court awarded the Commissioner costs in the amount of $10,348. The Commissioner did not seek any disbursements.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established