Commissioner of Police v Yu

[2024] NZHC 2458

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-457

[2024] NZHC 2458

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

ZIJING YU

First Respondent

AND

SHEZ PROPERTY LTD

Second Respondent

AND

SHEZ TRUSTEE LTD

Third Respondent

AND

HOI YEE LUI

First Interested Party

AND

ANZ BANK NEW ZEALAND LTD

Second Interested Party

AND

ASB BANK LTD

Third Interested Party

AND

WESTPAC NEW ZEALAND LTD

Fourth Interested Party

AND

SOUTHLAND BUILDING SOCIETY

Fifth Interested Party

Hearing:	On the papers
Appearances:	K South and O Welsh for Applicant
Judgment:	29 August 2024

JUDGMENT OF EATON J

COMMISSIONER OF POLICE v YU [2024] NZHC 2458 [29 August 2024]

[1]    By application dated 28 August 2024, the applicant has, on a without notice basis,   applied   for   restraining   orders   under   ss   22   and   25   of   the   Criminal Proceeds (Recovery) Act 2009 (the Act).

[2]    The restraining order is sought on the grounds that the first  respondent, Zijing Yu has unlawfully benefitted from significant criminal activity and has an interest in all of the property proposed to be restrained.

[3]    The relevant requirements for making orders under s 25 of the Act were summarised by Clark J in Commissioner of Police v Smith on the following terms:1

The threshold for making an order under s 25 has been described as “relatively low”. That is because the court is not required to make a finding that the respondent has unlawfully benefited from significant criminal activity. As the Court of Appeal explained in Vincent v Commissioner of Police restraining orders are often sought in situations of urgency. Restraining orders are temporary orders to give the police time to gather further evidence leading to possible forfeiture of property. Restraining orders are made where the court has reasonable grounds for the requisite statutory belief. The onus on the Commissioner is not one of proof but to adduce a sufficient evidential basis to enable the court to be satisfied it has reasonable grounds for the requisite belief. Thus, an application for a restraining order may proceed justifiably on an evidentiary basis that in other contexts would be regarded as non-compliant with requirements of the Evidence Act 2006 as to admissibility.

(footnotes omitted)

[4]    The application is made without notice. A restraining order may be made without notice if the Court is satisfied there is a risk that the proposed restrained property could be destroyed, disposed of, altered, or concealed if notice of the application were given.2

[5]    In support of the application, Ms South on behalf of the Commissioner has filed an affidavit of Sally Faye Pollock running to some 51 pages and annexing    229 pages of exhibits. Ms South has also filed a supporting memorandum.

[6]    Having considered the supporting evidence and memorandum, I am satisfied that a proper basis for the making of the orders is established and that it is appropriate

1      Commissioner of Police v Smith [2017] NZHC 10 at [10].

2      Criminal Proceeds (Recovery) Act 2009, s 22.

to make such an order without notice for the reasons set out in the application. Particularly, I am satisfied there are reasonable grounds to believe that the first respondent has unlawfully benefitted from significant criminal activity relating to the importation and distribution of tobacco products, that criminal activity being reflected in charges laid against Mr Yu in the District Court of:

(a)unlicenced manufacture of tobacco products;3

(b)burglary;4

(c)possession of uncustomed goods;5

(d)interference with goods subject to customs control;6

(e)removal of tobacco from a customs controlled area;7

(f)removal of goods from a customs controlled area;8

(g)defrauding customs revenue;9

(h)defrauding customs revenue;10

(i)importation of prohibited goods;11

3      Customs and Excise Act 2018, ss 68(1) and (3)(a) — maximum penalty: six months’ imprisonment and/or fine not exceeding $20,000.

4      Crimes Act 1961, s 231(1)(a) — maximum penalty: ten years’ imprisonment.

5      Customs and Excise Act, ss 372(1) and (3)(a) — maximum penalty: six months’ imprisonment and/or fine not exceeding $20,000.

6      Customs and Excise Act, ss 359(1) and (2)(a) — maximum penalty: fine not exceeding $5,000.

7      Customs and Excise Act, ss 86(1)(a) and (3)(a) — maximum penalty: six months’ imprisonment and/or fine not exceeding $20,000.

8      Customs and Excise Act, ss 86(1)(a) and (2)(a) — maximum penalty: fine not exceeding $5,000.

9      Customs and Excise Act, ss 371(1)(e) and (4)(a) — maximum penalty: five years; imprisonment and/or fine not exceeding $20,000.

10     Customs and Excise Act, ss 371(1)(e) and (4)(a) — maximum penalty: five years; imprisonment and/or fine not exceeding $20,000.

11     Customs and Excise Act, ss 389(1)(a) and (2)(a) — maximum penalty: six months’ imprisonment or fine not exceeding $20,000 or an amount equal to three times the value of the goods.

(j)erroneous entry of goods.12

[7]    While I am satisfied on the material available that it is appropriate to make a restraining order both in relation to the real estate and to make what has been described as a “global restraining order”, whether the global order is appropriately sustainable or should be subject to exceptions can be dealt with when the on-notice application is considered in the event the respondent or other interested parties raise issues as to the extent of the restraint.

[8]    I make restraining orders under s 25 of the Act in relation to the following property:

(a)Real estate

(i)33 Ansonby Street, Russley, Christchurch with a legal description of Lot 15 Deposited Plan 27263 and title CB9B/1075. The registered owner is Shez Trustee Ltd. There is no mortgage recorded on this title;

(ii)33 Tuckers Road, Redwood, Christchurch with a legal description of Lot 147 Deposited Plan 17711 and title CB31F/273 excluding any interest secured or protected by registered mortgage (numbered 10068514.2) in favour of  ANZ Bank New  Zealand  Ltd.  The  registered  owner  is  Shez Property Ltd;

(iii)10C Leslie Street, Upper Riccarton, Christchurch with a legal description of Lot 2 Deposited Plan 53012, Flat 3 Deposited Plan 60267 and title CB35B/1056 excluding any interest secured or protected by registered mortgage (numbered 10068529.2) in favour of ANZ Bank New Zealand Ltd. The registered owner is Shez Property Ltd;

12     Customs and Excise Act, ss 364(4)(a) and (5)(a) — maximum penalty: six months’ imprisonment or fine not exceeding $10,000 or an amount equal to three times the value of the goods.

(iv)1/35 Juniper Place, Burnside, Christchurch with a legal description of Lot 20 Deposited Plan 38470, Flat 1 Deposited Plan 40598 and title CB18B/152 excluding any interest secured or protected by registered mortgage (numbered 10442960.4) in favour of Southland Building Society. The registered owner is Shez Property Ltd;

(v)6A Auburn Avenue, Upper Riccarton, Christchurch with a legal description of Lot 2 Deposited Plan 20338 Deposited Plan and title CB4D/1008. The registered owner is Shez Property Ltd. There is no mortgage recorded on the title;

(vi)107/8 Lakewood Court, Manukau, Auckland with a legal description of Principal Unit 107 Deposited Plan 47639 and title 658305 excluding any interest secured or protected by registered mortgage (numbered 11826691.4) in favour of Westpac New Zealand Ltd.  The  registered  owner  is Shez Property Ltd;

(vii)E211/28 Torrens Terrace, Mount Cook, Wellington with a legal description of Unit E211 Deposited Plan 425966 and title 502249 excluding any interest secured or protected by registered mortgage (numbered 10442960.3) in favour of Southland  Building  Society.  The registered owner  is Shez Property Ltd;

(viii)209/41 Hopper Street, Mount Cook, Wellington with a legal description of Principal Unit 18 Deposited Plan 503938 and title 757441 excluding any interest secured or protected by registered mortgage (numbered 10802009.4) in favour of  ASB Bank Ltd. The registered owner is Shez Property Ltd.

(ix)311/30 Red Oaks Drive, Frankton, Queenstown with a legal description of Principal Unit 311 and Accessory Unit 10

Deposited Plan 520899 and title 822673 excluding any interest secured or protected by registered mortgage (numbered 11130800.4) in favour of Westpac New Zealand Ltd. The registered owner is Shez Property Ltd.

(b)Global restraining order

(x) All property (wherever located) in respect of which the first, second and third respondents hold any legal, beneficial or equitable interest, whether held alone or jointly, or held on trust for the first, second or third respondents.

...................................................

Eaton J

Solicitors:

Crown Solicitors, Christchurch