Commissioner of Police v Wong

[2022] NZHC 1337

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-726

[2022] NZHC 1337

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER

of applications under sections 21, 24, 52 and

55

BETWEEN

THE COMMISSIONER, THE NEW ZEALAND POLICE

Applicant

AND

HENRY BARRY ARTHUR WONG

Respondent

Hearing:	7 June 2022
Counsel:	A W M Britton and V M Rea for Applicant No appearance for Respondent
Judgment:	8 June 2022

JUDGMENT OF SIMON FRANCE J

[1]    This application for restraint and civil forfeiture orders proceeded by way of formal proof. At issue is $24,000 cash seized from Mr Wong when he was arrested on drugs charges.

[2]    Mr Wong initially indicated he would oppose this application. He spoke of retaining counsel but the relevant counsel has confirmed he has no instructions.     Mr Wong spoke to police offices at various times indicating he intended to oppose and giving explanations. These explanations have been explored by the Commissioner to the extent possible.

COMMISSIONER OF POLICE v WONG [2022] NZHC 1337 [8 June 2022]

[3]    At one point a person claiming to be helping Mr Wong contacted Crown Counsel. A collection of documents was emailed. Within the documents was a letter from Mr Wong to his intended lawyer setting out explanations. I am satisfied the providing of the letter constitutes waiver of privilege. The explanations provided in the letter have also been explored by the Police, and evidence provided which undermines them as a source of the funds.

[4]    I am satisfied on the evidence Mr Wong was aware of the application and its scope. And of the hearing.

Facts

[5]    Police were at Mr Wong’s address on an unrelated matter. Cannabis was smelt and a search conducted. Located in a backpack were:

(a)seven grams of methamphetamine;

(b)electronic scales;

(c)snap lock bags; and

(d)      cash ($24,000).

[6]    Mr Wong subsequently admitted they were his. He was charged with dealing offences, but ultimately pleaded to possession simpliciter. The Commissioner maintains that notwithstanding the change in charging, on the balance of probabilities it can be shown that the money was the product of significant criminal activity, namely drug dealing.

Analysis

[7]    Mr Wong is a beneficiary so does not have a recognised source of income to explain the money.

[8]    The money was located in a context consistent with drug dealing, namely a dealing quantity of drugs, scales and snap lock bags. It can be noted, however, the

bulk of the drug was in a single rock which needed altering to smaller quantities to be usable. The scales and bags can be explained by this.

[9]    The police located two cell phones belonging to Mr Wong. Text messaging was located which is consistent with dealing and less consistent with possession given the quantities and the fact that some callers believe Mr Wong could be a source of supply. In another text an unknown but plainly close contact inquires after Mr Wong’s health. Mr Wong says he is OK, but that some people had just put a gun to his head and taken $30,000. If true, it is consistent with robbery or most likely a form of taxing. It also shows the $24,000 in present dispute does not represent all the unexplained cash connected to Mr Wong.

[10]   Various explanations concerning trading in vehicles have emerged. All have been followed up on. In an uncontested proceeding, I do not consider it necessary to detail all the inquiries. I am satisfied by the evidence that trading in vehicles does not explain the money. There has been limited sales but the timing is not capable of explaining the existence of this cash.

[11]   I am satisfied on the balance of probabilities the cash is the product of significant criminal activity, namely drug dealing. It is a conclusion based on the circumstances in which the cash was found, text messaging consistent with dealing, text messaging consistent with dealing on a scale much larger than that represented by the sum of $24,000, and the absence of any credible explanation for a person reliant on benefit income possessing such a sum of money.

[12]   The requirements on the Commissioner with an application such as this was detailed in Pulman v Commissioner of Police which I adopt.1 The first requirement is to satisfy the Court as to the existence of significant criminal activity linked to the money. I am satisfied as to that for the reasons given.

[13]   The second step is to determine the maximum recoverable amount. There has been no prior forfeiture. I do not know the scale of the offending but am satisfied this

$24,000 is all a product of it.

1      Pulman v Commissioner of Police HC Auckland CIV-2010-404-5666, 27 May 2011 at [10]–[13].

[14]   The third step is to consider whether forfeiture of the whole amount would cause hardship. None is claimed by Mr Wong. No other person lays claim to any entitlement. The one person suggested, namely Mr Wong’s brother, expressly disclaims any entitlement.

[15]   The fourth step is to determine Mr Wong has an interest in the money. It was found in his possession, and he says it is his. I am satisfied that is so.

Orders

[16]   The Commissioner’s application dated 29 November 2021 for a restraining order and a profit forfeiture order in relation to the $24,000 cash found in Mr Wong’s possession are made.

Simon France J

Solicitors:

Crown Solicitor, Wellington for Applicant