Commissioner of Police v Yim

[2016] NZHC 708

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-518 [2016] NZHC 708

UNDER

Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE Applicant

AND

KA KIT YIM First Respondent

CHIEN-HUI WU Second Respondent

Hearing:	18 April 2016
Appearances:	K Eastwood for Applicant S R Lack for Respondent
Judgment:	18 April 2016

ORAL JUDGMENT OF FOGARTY J

Solicitors:

Crown Solicitor, Auckland

R M Mansfield, Auckland (S R Lack)

COMMISSIONER OF POLICE v YIM [2016] NZHC 708 [18 April 2016]

[1]      On  21  March  last,  in  this  Court  Davison  J  made  restraining  orders  in accordance with the application under the Criminal Proceeds (Recovery) Act 2009 over various properties associated with the first and second respondents, including a residential property in Auckland, 12 motor vehicles and approximately $1.86 million cash.

[2]      At the time Davison J directed the respondents file any notice of opposition by 13 April.

[3]      The police have subsequently identified further property being approximately

$167,000 worth of funds held in CMC markets in each of their names.  These funds have been seized pursuant to a warrant granted under s 102 of the Act and on 11

April the commissioner has filed a further application for restraining orders over those funds and this is for first mention today.

[4]      The  respondent  have  filed  a  notice  of  opposition  in  respect  of  both applications for restraining orders, dated 14 April.  Technically that is one day late, but that technicality is waived.

[5]      It is advanced on the grounds that the opposition is to both applications for restraining, dated 17 March and 11 April on the grounds that the property is not tainted property, that the first and second respondents have not unlawfully benefited from significant criminal activity and on further grounds to be set out in affidavits to be filed.

[6]      I now grant the restraining orders sought by the Crown to be made over the CMC market funds, the Court having reasonable grounds to believe that the CMC market funds are tainted property and/or that the respondents have unlawfully benefited from significant criminal activity (including drug offending) and have an interest in the funds.  However, these restraining orders are made without prejudice to the respondents’ ability to challenge their continued operation in the future.

[7]      The timetable forward is as follows:

(a)       Both respondents are to file and serve evidence in opposition to their applications for restraining orders by 16 May 2016.

(b)      The Commissioner is to file any evidence in reply by 13 June 2016.

(c)       A further mention is to be scheduled for the week of 13 June 2016 to progress the matters for a hearing.

[8]      I have discussed with counsel estimates of time and a preferred fixture date. (a)       The estimate of time for the hearing is a half a day.

(b)Counsel are able to accept a fixture in July and hope a fixture date would be available in that month.