Commissioner of Police v Zhao

[2019] NZHC 3261

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2456

[2019] NZHC 3261

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

JIANQI ZHAO

Respondent

Hearing:

11 December 2019

Appearances:

C Stubbington for Applicant

No appearance for Respondent (no steps taken)

Judgment:

11 December 2019

JUDGMENT OF LANG J

[on application for civil forfeiture orders]

This judgment was delivered by me on 11 December 2019 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

COMMISSIONER OF POLICE v ZHAO [2019] NZHC 3261 [11 December 2019]

[1]        In this proceeding the Commissioner of Police (the Commissioner) seeks civil forfeiture orders under the Criminal Proceeds (Recovery) Act 2009 (the Act) against the respondent, Mr Zhao. The orders are sought in relation to two quantities of cash found at addresses with which Mr Zhao has a close connection.

[2]        Mr Zhao is a 32 year old Chinese citizen who arrived in New Zealand on     28 November 2014 from Australia. He entered New Zealand on a visitor visa that was valid for one month. He failed to leave by 28 December 2014 and has therefore been in New Zealand unlawfully since that date. The police have been unable to locate any records relating to his employment, declared income or bank accounts in New Zealand.

[3]        Mr Zhao is currently in custody awaiting trial in the District Court on several drugs-related charges. The proceeding has been served on him, but he has taken no steps to defend it. His latest advice to a process server who visited him on 4 December 2019 is that he does not wish to take any further part in this proceeding. He also told the process server he believed the cash in question had already been forfeited.

Background

[4]        The proceeding has its genesis in a police investigation into suspected methamphetamine offending in the Auckland area by an organised criminal syndicate. Intercepted communications led the police to believe that Mr Zhao was a leading member of the group.

[5]        On 17 January 2018, the police located two clandestine methamphetamine laboratories at residential addresses in Mt Roskill and Mt Eden. Three members of the group were arrested at that time, but Mr Zhao was not present. A warrant was subsequently issued for his arrest.

[6]        On 12 April 2018, the police searched the address occupied by Ms Yanxi Mo, Mr Zhao’s girlfriend. During the search the police located a firearm and a total of

$38,025 in cash. Ms Mo  told the police that  the  cash had  been given  to her  by  Mr Zhao. Mr Zhao subsequently confirmed to the police that the cash belonged to him.

[7]        On 15 November 2018, the police located Mr Zhao at a motel and arrested him. On searching the motel unit, they located cash totalling $16,205. They also found a firearm, approximately 66 grams of methamphetamine, 13.8 grams of cannabis, a set of scales and various other items indicative of drug dealing activity. When the police searched Mr Zhao’s home address in Blockhouse Bay later the same day, they found a further 5.7 grams of methamphetamine, together with scales and ammunition.

Decision

[8]        I am satisfied that the evidence adduced by the Commissioner discloses that Mr Zhao has been involved in significant criminal activity for the purposes of the Act. This takes the form of activity associated with the manufacture and distribution of the Class A drug methamphetamine and the supply of the Class C drug cannabis.1 It is highly likely in my view that the cash found at both addresses represents the proceeds of past sales of drugs. As a result, it is tainted property in terms of the Act because it was acquired directly or indirectly from significant criminal activity.2

[9]        I therefore make an assets forfeiture order under s 50 of the Act in relation to both quantities of cash. That property vests in the Crown absolutely and is in the custody and control of the Official Assignee.

Lang J

Solicitors:

Crown Solicitor, Auckland

1      Both activities are offences that carry maximum sentences greater than five years imprisonment and therefore constitute “significant criminal activity” in terms of the definition contained in s 6 of the Act.

2      Criminal Proceeds (recovery) Act 2009, s 5.