Commissioner of Police v Zheng

[2024] NZHC 2445

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1070

[2024] NZHC 2445

UNDER

Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

TIANLING ZHENG

First respondent

ZHAOBIN PENG
Second respondent

LEZHANG (JUSTIN) TANG
Third respondent

ZIYANG “RHYS” CHEN

Fourth respondent

Hearing:	On the papers
Counsel:	R M Gibbs and G E Young for applicant P F Wicks KC for fourth respondent
Date of judgment:	29 August 2024

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 29 August 2024 at 3.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

P F Wicks KC, Auckland Meredith Connell, Auckland

COMMISSIONER OF POLICE v ZHENG [2024] NZHC 2445 [29 August 2024]

YICHUAN ZHANG

Fifth respondent

FEI WEI
Sixth respondent

YUYAN FAN
Interested party

XIAORUI YE
Interested party

[1]                 As duty judge, I have counsel’s 27 August 2024 memorandum, seeking approval of the Commissioner’s settlement with the fourth respondent, Ziyang Chen, under s 95 of the Criminal Proceeds (Recovery) Act 2009. Under that section, I must approve the settlement if satisfied the settlement is consistent with the purposes of the Act and the overall interests of justice.

[2]                 On 27 January 2022, Mr Chen pleaded guilty to 11 charges of money laundering in excess of $2.2 million, two charges of importing at least 3.4 kilograms of methamphetamine and one charge each of methamphetamine supply and possession for supply. On 2 September 2022, he was sentenced to eight years and six months’ imprisonment.1

[3]                 After Mr Chen’s arrest in April 2021, police seized his car, which since has been sold under orders ancillary to those restraining the proceeds of the car’s sale and credit funds in his bank accounts.2 The parties are agreed that restrained property now may be forfeited to the Crown. Such otherwise is the consequence of this Court being satisfied on the balance of probabilities that specific property is tainted property,3 subject to any exclusion on grounds of undue hardship.4

1      R v Chen [2022] NZDC 17054.

2      Commissioner of Police v Zheng HC Auckland CIV-2021-404-1070, 21 July 2021 (Minute of Muir J) at [6].

3      Criminal Proceeds (Recovery) Act 2009, s 50(1).

4      Section 51.

[4]                 I am satisfied in the above circumstances the parties’ settlement is consistent with the purposes of the Act and the overall interests of justice, as likely reflecting what would at least have occurred absent their agreement.

[5]I therefore:

(a)approve the parties’ settlement recorded at section 3 of counsel’s joint memorandum dated 27 August 2024;

(b)order in terms of the joint memorandum’s subparas 6.1(a) and (b); and

(c)note the parties’ respective forbearances recorded at the joint memorandum’s subparas 6.2(a) and (b).

—Jagose