Commissioner of Police v Yang

[2023] NZHC 1412

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002713

[2023] NZHC 1412

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

DEAN TIANDA YANG

First Respondent

JIEYAN YIN

Second Respondent

Hearing:

[On the Papers]

Appearances:

S M Earl and J T Lowyim for Applicant

D T Yang (Self-represented First Respondent)

K E Hogan for Second Respondent and Interested Party, F Chen S N B Wimsett for Interested Parties, D Yang (Senior) and V Ann

Judgment:

7 June 2023

JUDGMENT OF EDWARDS J

[redacted version]

This judgment was delivered by me on 7 June 2023 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Meredith Connell (Office of the Crown Solicitor), Auckland K E Hogan, Auckland

S N B Wimsett, Auckland

COMMISSIONER OF POLICE v YANG [2023] NZHC 1412 [7 June 2023]

[1]    The Commissioner’s application for forfeiture orders under the Criminal Proceeds (Recovery) Act 2009 (Act) was set down for a five-day hearing commencing 29 May 2023. After an adjournment on the first day, the remaining parties to the proceeding reached a settlement. They now seek approval of that settlement pursuant to s 95 of the Act.

Background

[2]    Mr Yang pleaded guilty to four charges of money laundering and was convicted and sentenced to three years’ imprisonment on 21 June 2019. The money laundering activities were  for  two  men  convicted  of  importing  cocaine  into  New Zealand.

[3]    The Commissioner contends that both Mr Yang and his partner, Ms Yin, unlawfully benefited from significant criminal activity (namely money laundering), and they were both involved in a joint enterprise to launder that money.

[4]    Restraining orders were made on 11 May 2018. The property restrained included all interests in a property at 24 Park Hill Road, Birkenhead, Auckland (the Property); funds in bank accounts held at the BNZ and ASB; the proceeds of sale of a 2007 Agusta motorcycle; and the sum of $8,805 cash located at the Property.

[5]    Mr Yang Senior is the registered owner of the Property and the named account holder of the  BNZ  bank  account.  The  ASB  bank  account  is  in  the  name  of  Mr Yang Senior and Ms Ann.

[6]    Mr Yang Senior and Ms Ann contend that the Property and the funds in their bank accounts belong to them. Mr Yang Senior’s position is that the Property was funded by cash deposits ultimately derived from another of his bank accounts.

[7]    The Commissioner acknowledges that there is some evidence to support that position but nevertheless considers that the bank account used to fund the Property was itself funded by remittances sent by Mr Yang and Ms Yin.

[8]    The Commissioner’s case against Ms Yin, and an interested party, Ms Chen, was separately resolved.   The hearing of this proceeding was only in relation to     Mr Yang and his parents, Mr Yang Senior and Ms Ann, who were named as interested parties.

Proposed settlement

[9]The proposed settlement is on the following terms:

(a)Mr Yang Senior and Ms Ann will pay a settlement sum of $175,000 to the Commissioner.

(b)Payment of the settlement sum is to be made by way of assets forfeiture orders over the restrained funds in the bank accounts, and the sale proceeds from the Agusta motorcycle. The outstanding amount will be paid by Mr Yang Senior and Ms Ann from a verified source to the satisfaction of the Commissioner.

(c)An asset forfeiture order will be made over the $8,805 cash.

(d)Upon payment of the settlement fund, the Property is to be released from restraint.

(e)If the settlement is not paid within three months of the date of the approval of settlement, the Official Assignee will sell the Property and obtain the outstanding amount from the sale proceeds, with the balance being returned to an  account  nominated  by  Mr Yang Senior  and  Ms Ann.

(f)The Commissioner will not seek a  profit  forfeiture  order  against  Mr Yang.

(g)The settlement does not entail any admission of liability or wrongdoing by Mr Yang Senior or Ms Ann.

(h)The settlement is in full and final settlement of the proceeding.

(i)Costs will lie where they fall.

[10]   Under the terms of the settlement, the approximate value of the property being forfeited is $183,805. The approximate value of the relevant property currently subject to restraining orders, but which will not be forfeited, is $224,592.94.

Should the settlement be approved?

[11]   Under s 95(3) of the Act, the High Court must approve a settlement if satisfied that it is consistent with the purposes of the Act and the overall interests of justice.

[12]   The primary purpose of the Act is contained in s 3(1). That section provides that the Act establishes a regime for forfeiture of property that has been derived directly or indirectly from significant criminal activity or that represents the value of a person’s unlawfully derived income. Ancillary purposes are to “eliminate the chance” for persons to profit from undertaking or being associated with significant criminal activity,1 and “to deter” significant criminal activity.2

[13]   The background to the proceeding, the positions of each party, and the rationale underpinning the settlement reached, are comprehensively set out in a joint memorandum of counsel dated 1 June 2023. On the basis of the matters canvassed in that joint memorandum, I am satisfied that the proposed settlement is consistent with the purposes of the Act and the overall interests of justice. I say that for the following reasons.

[14]   First, I am satisfied that there will be a saving of time and cost if the matter is resolved by consent without the need for a hearing. Court resources may be used for other proceedings, which is a factor weighing in the public interest.

1      Criminal Proceeds (Recovery) Act 2009, s 3(2)(a)

2      Criminal Proceeds (Recovery) Act 2009, s 3(2)(b).

[15]   Second, the agreed settlement will afford the parties certainty and control as to the outcome. The litigation risk to both parties will be resolved which is for the benefit of the parties.

[16]   Third, the settlement means that a significant part of the restrained property will be realised for the benefit of the Crown. This is consistent with the purposes of the Act, but it also recognises litigation risk associated with the proceeding, particularly with respect to the question of the interest in the Property and bank funds.

[17]   Fourth, as the Commissioner acknowledges, Mr Yang is unlikely to have sufficient assets, bank accounts or income in New Zealand to satisfy any residual debt he would owe to the Crown. In those circumstances, there is little purpose in pursuing a profit forfeiture order against Mr Yang.

[18]   Balancing the respective considerations in a broad and pragmatic way, I am satisfied that the settlement is consistent with the purpose of the Act and is in the overall interest of justice. The settlement is accordingly approved.

[19]   The parties seek consequential orders in respect of the settlement. Those orders are made by consent as set out below.

[20]   In addition, and at the parties’ request, the following terms of the agreed settlement are noted:

(a)Mr Yang, Mr Yang Senior and Ms Ann abandon all claims they may have, under the Act or otherwise, to any of the property to be forfeited or any of the other restrained property in this proceeding;

(b)the Commissioner will not pursue his application for a profit forfeiture order against Mr Yang on the basis of the significant criminal activity evidenced in the affidavits filed in this proceeding to date;

(c)the settlement does not entail any admission of liability or wrongdoing by Mr Yang Senior or Ms Ann;

(d)the settlement is in full and final settlement of the current proceedings under  the  Act  as   between   the   Commissioner   and   Mr Yang,   Mr Yang Senior and Ms Ann, and the Commissioner will close his file and not take any further steps in that regard.

Result

[21]   By consent, I approve the proposed settlement between the Commissioner, Mr Yang, Mr Yang Senior, and Ms Ann pursuant to s 95(3) of the Act.

[22]   I make orders in accordance with paragraph 6.1 of the joint memorandum of counsel so as to give effect to the settlement. The terms of those orders are set out in Annexure A to this judgment.

Edwards J

Annexure A

(a)Assets forfeiture orders under s 50(1) of the Act: the following property vests in the Crown absolutely and is in the Official Assignee’s custody and control:

(i)all funds previously held in the BNZ bank account [redacted], being $24,273.94, in the name of Mr Yang Senior, and any accrued interest;

(ii)all funds previously held in ASB Bank Limited bank account [redacted], being $14,162.44, in the names of Mr Yang Senior and Ms Ann, and any accrued interest; and

(iii)$8,256.56, being the proceeds of sale of a 2007 Agusta motorcycle, registration number A5TGS, formerly registered to Mr Yang, and any accrued interest;

(iv)a further settlement sum, being $175,000 less the total of the property at paragraphs (i) to (iii) (Settlement Sum) being met in either of the following ways:

(A)a payment by Mr Yang Senior and Ms Ann from a verified source to the satisfaction of the Commissioner by 5.00 pm on the date falling three months from the approval of this settlement (Due Date); or

(B)the amount held by the Official Assignee in accordance with paragraph (b)(ii)(C) below, if Mr Yang Senior and Ms Ann fail to pay the Settlement Sum by the Due Date;

and

(v)$8,805 cash located at 24 Park Hill Road on 8 November 2017.

(b)Additional orders necessary and convenient for giving effect to the assets forfeiture order made in respect of the Settlement Sum under s 59 of the Act:

(i)the restraining order over 24 Park Hill Road is varied to allow Mr Yang Senior and Ms Ann to further borrow against the property for the exclusive purpose of enabling them to raise the Settlement Sum;

(ii)upon the Official Assignee providing written confirmation that the Settlement Sum has been paid, the restraining order over 24 Park Hill Road is lifted and the Official Assignee must then immediately arrange for the restraining order to be removed from the record of title of 24 Park Hill Road;

(iii)in the event that payment in accordance with paragraph (a)(iv) above is not made by the Due Date, the Official Assignee shall, as soon as is reasonably practicable, sell 24 Park Hill Road at its fair market value and deal with the proceeds of sale in the following way:

(A)first, deduct the Official Assignee's actual costs in effecting the sale;

(B)second, repay any borrowings secured against the property;

(C)third, hold an amount equal to the Settlement Sum and effect forfeiture of that amount in accordance with paragraph (a)(iv)(B) above;

(D)finally, return the balance of the sale proceeds to a bank account nominated by Mr Yang Senior and Ms Ann.

(iv)For the purpose of effecting a sale of the property,  the  Official Assignee, including a person delegated his functions and powers under the Act, has the power to execute any deed or instrument in the name of the registered proprietor(s), and to do anything necessary to give validity and operation to the deed or instrument.

(c)Costs: costs lie where they fall in relation to all matters between the Commissioner and Mr Yang, Mr Yang Senior and Ms Ann.