New Zealand Customs Service v Jeon

[2021] NZHC 612

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000480

[2021] NZHC 612

BETWEEN

NEW ZEALAND CUSTOMS SERVICE

Appellant

AND

DOHYUN JEON

Respondent

Hearing:	16 March 2021
Appearances:	A R Burns for Appellant H N Kim for Respondent
Judgment:	24 March 2021

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 24 March 2021 at 3.30 pm

Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:

Crown Solicitors, Manukau H N Kim, Manukau

NEW ZEALAND CUSTOMS SERVICE v JEON [2021] NZHC 612 [24 March 2021]

Introduction

[1]        On 29 July 2020 the respondent, Dohyun Jeon, pleaded guilty to the following charges:

(a)knowingly attempting to export undeclared cash contrary to s 389(1)(b) of the Customs and Excise Act 2018 and s 72 of the Crimes Act 1961;

(b)without reasonable excuse, making a cash report knowing it was false or misleading in a material respect contrary to s 110 of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009; and

(c)without reasonable excuse, attempting to fail to make, or cause to be made, a cash report concerning cash intended to be moved out of New Zealand contrary to s 106 of the Anti-Money Laundering and Countering Financing of Terrorism Act and s 72 of the Crimes Act.

[2]        Mr Jeon appeared before Judge Recordon in the District Court at Manukau on 13 October 2020 for sentence. The Judge discharged him without conviction pursuant to s 106 of the Sentencing Act 2002.1 The Judge granted an application made by Mr Jeon under s 188 of the Customs and Excise Act and restored to him the cash which he had sought to take out of New Zealand, except for $3,000 which the Judge ordered should be forfeited to the Crown.

Leave to Appeal

[3]        The appellant, the New Zealand Customs Service, seeks leave to appeal the decision pursuant to s 296 of the Criminal Procedure Act 2011 on the following questions of law:

(a)did the Judge overlook relevant considerations or take into account irrelevant considerations when considering the gravity of Mr Jeon’s offending?;

1      New Zealand Customs Service v Jeon [2020] NZDC 20860.

(b)did the Judge correctly assess the consequences of conviction and was there sufficient evidence before him on which he could make that assessment?;

(c)did the Judge correctly undertake the balancing exercise required by s 107 of the Sentencing Act?; and

(d)did the Judge apply the correct legal test for restoration?

[4]        Section 296 provides that a prosecutor (or a defendant) can, with the leave of the Court, appeal on a question of law against a ruling that arises in proceedings that relate to or follow the determination of a charge or in the determination of a charge. A decision to discharge a defendant without conviction is a ruling made in the determination of a charge2 and an order for the restoration of forfeited goods follows from the determination of a charge.3

[5]        Ms Kim, on behalf of Mr Jeon, did not oppose the grant of leave. Rather, she sought to uphold the Judge’s decisions – both to discharge Mr Jeon without conviction and to order that the majority of the funds seized be restored to him.

[6]        Appeals against decisions granting discharges without conviction are relatively commonplace and the law in this regard is well settled. Appeals against decisions allowing the restoration of forfeited goods are less common. There does not seem to have been an appeal under the new provisions introduced by the Customs and Excise Act in 2018 and the issue is one of some general importance. I am satisfied that it is appropriate to grant leave in respect of all four questions of law and I order accordingly.

Factual background

[7]        Any person who moves cash in a sum equal to or exceeding NZ $10,000 out of New Zealand must make or cause to be made a border cash report.4 Auckland

2      R v Smyth [2017] NZCA 530 at [7].

3      Wong v New Zealand Customs Service [1999] NZAR 1 (HC).

4      Anti-Money Laundering and Countering Financing of Terrorism Act 2009, s 68.

International Airport displays a number of signs reminding outgoing passengers that they are obliged to declare movements of cash above this threshold.

[8]        On 13 September 2019, Mr Jeon was at Auckland International Airport. He checked in to take a flight to Sydney, Australia. He did not complete a border cash report or declare to Customs that he was carrying over $10,000 when he went through immigration controls. Rather, he proceeded to aviation security so that his baggage could be processed. His baggage was unable to be examined by x-ray imaging and it was instead examined by aviation security staff. They found a large amount of undeclared cash in Mr Jeon’s baggage. Mr Jeon stated that the cash totalled $11,000. Aviation security staff referred Mr Jeon to Customs officers.

[9]        While his bag was being searched, Mr Jeon completed a border cash report, declaring that he had $13,700 in cash that he was intending to take out of New Zealand. When he was spoken to by Customs officers, he said that $5,000 was from casino winnings and that $8,700 had been given to him by his parents for his personal use. He said that he was not aware that he needed to declare the cash on departure and that he intended to declare it on his arrival in Sydney.

[10]Customs officers counted the cash found in Mr Jeon’s luggage. There was

$12,900 in $50 note denominations. A further $935 was found in Mr Jeon’s wallet. The total cash located at this point was $13,835. Mr Jeon amended his border cash report accordingly. He told the officers that he did not have any more cash on him.

[11]      A few minutes later, a Customs officer expressly asked Mr Jeon whether he had any more cash on his person. Mr Jeon repeated that he had no more cash on him. However, a search of the jacket that Mr Jeon was wearing discovered a white envelope in one of his pockets. The white envelope contained a further $11,000 in cash. When Mr Jeon was asked why he had not declared this additional sum, he said that he was “waiting for an opportunity to come forward about the extra he had on him”. He stated that the $11,000 had come from the sale of a watch.

[12]      The total amount of undeclared cash that Mr Jeon was seeking to take out of New Zealand without providing a border cash report was $24,835.

District Court decision

[13]      Judge Recordon recorded the relevant statutory provisions. He stated that this was:5

… interesting case because of what the Anti-Money Laundering and Countering Finance (sic) and Terrorism Act passed in 2009 … was designed for. It is not designed specifically for people like Mr Jeon, as long as he can satisfy the Court that he is not a money launderer, or he is not financing terrorism.

[14]      The Judge recorded submissions made by counsel for Mr Jeon that the money had been sourced from his employment and from the sale of a watch. The Judge noted that Mr Jeon was working with a company, with a goal to become involved in apartment construction and the establishment of a development company. He noted that Mr Jeon has convictions for driving-related offending, but noted that he was remorseful and concerned that convictions, especially for anything which involved a suggestion of terrorism or money laundering, were going to stay with him and inhibit his ability to work in his chosen field.

[15]      The Judge noted that Mr Jeon hid the money, but that he was intending to declare it in Australia. There was a question in the Judge’s mind as to whether he would in fact have done so, but the Judge acknowledged that this was speculation. He noted that the money had been confiscated and that it had not moved across the border. He also noted that Mr Jeon had recently married, that he has a child and that he had received gifts from the wedding. It was noted that there was no suggestion by the prosecutor that Mr Jeon was involved in any form of terrorism or in financing terrorism. The Judge considered that the amount involved backed this up.

[16]      Judge Recordon considered that the gravity of the offending was at the lower end. He noted that the prosecutor queried the adverse effects that a conviction would have on Mr Jeon. The Judge recorded that the stated purpose of the Act is to detect and deter the laundering of money and the financing of terrorism.6 The Judge considered it was important to keep this purpose in mind. He acknowledged that

5      New Zealand Customs Service v Jeon, above n 1, at [3].

6      By reference to Huang v New Zealand Customs Service [2013] NZHC 3277.

Mr Jeon had broken the law but “at very much the lower end of the scale”.7 The Judge went on to refer to submissions made by Mr Jeon’s counsel that Mr Jeon’s life would change if he had convictions and he accepted that convictions would potentially adversely affect his future. The Judge considered that the amount involved was “certainly nowhere near the level that would make one wonder what he was going to do with the money”.8 He held that the balance had to come down in favour of Mr Jeon. He considered that Mr Jeon had learnt a lesson and that he should be given a chance in life. Accordingly, he granted him discharges without conviction under s 106 of the Sentencing Act.

[17]      The Judge went on to note that the money was Mr Jeon’s and that it was “hard earned”. 9 He did not consider that the New Zealand taxpayer should benefit from what had happened. Accordingly, he ruled that $3,000 was to be forfeited to the Crown, but that the balance was to be returned to Mr Jeon.

Submissions

[18]Mr Burns, for the appellant, submitted as follows:

(a)in assessing the gravity of the offending, the Judge overlooked the degree of and the deliberation involved in Mr Jeon’s offending. It was argued that had the Judge considered matters in the round, he would not have found that Mr Jeon was not a person who intentionally breaks the law;

(b)evidence was required to substantiate the consequences of convictions asserted by Mr Jeon (although Mr Burns did not strongly advance this argument);

(c)the Judge erred in his approach to exercising the s 107 test. He applied an “on balance” test as opposed to an “out of all proportion” test; and

7      New Zealand Customs Service v Jeon, above n 1, at [10].

8 At [11].

9 At [12].

(d)the Judge erred when he held that the offending was not intended to be captured by the Anti-Money Laundering and Countering Financing of Terrorism Act, that the approach adopted by him was contrary to existing authorities on restoration and that it weakened the effectiveness of the legislation.

[19]      Ms Kim argued that the Judge did not err. She submitted that he had considered all aggravating and mitigating features of the offending before undertaking the balancing exercise required. She further submitted that the Judge correctly concluded that there was a real and appreciable risk that Mr Jeon’s future employment prospects would be jeopardised were he to have convictions against his name and this would have an impact not only on him and his family but also on his employees. It was submitted that the Judge properly balanced all relevant issues and that he was entitled to conclude that the effects of entering convictions were out of all proportion to the gravity of the offending. She also submitted that the Judge did not err in ordering that the majority of the funds be remitted to Mr Jeon. She submitted that prior authorities decided under the Customs and Excise Act 1996 are no longer directly applicable, and that there is a difference between s 236 of the now repealed 1996 Act and s 188 of the new 2018 legislation. In the alternative, she argued that even under the old legislation, the Court could consider various matters such as disproportionate hardship to the offender and take into account the purpose of the Anti-Money Laundering and Countering Financing of Terrorism Act. She argued that the Judge was entitled to order restoration, and that it was properly open to him to conclude that the circumstances in Mr Jeon’s case called for a partial restoration order.

Analysis

[20]      The first three questions of law posed by the appellant deal with ss 106 and 107 of the Sentencing Act 2002. Relevantly, those sections provide as follows:

106  Discharge without conviction

(1)If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.

(2)A discharge under this section is deemed to be an acquittal.

(3)A court discharging an offender under this section may—

(a)make an order for payment of costs or the restitution of any property; or

…

107Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[21]      It is settled law that a Court considering a discharge without conviction should:10

(a)examine the gravity of the offending in issue taking into account all aggravating and mitigating factors of the offending and the offender;

(b)identify the direct and indirect consequences of conviction; and

(c)consider whether those consequences are “out of all proportion” to the gravity of the offending.

Only then does the Court move on to consider the residual discretion under s 106.

Did the Judge overlook relevant considerations or take into account irrelevant considerations when considering the gravity of Mr Jeon’s offending?

[22]      The Judge considered that Mr Jeon’s offending was at the lower end of seriousness for offending of its kind.

[23]      It was submitted for the appellant that the Judge failed to take into account that after Mr Jeon omitted to declare the cash and once aviation security staff and Customs officers had found the first two bundles of cash (amounting in total to $13,835), Mr Jeon lied to the authorities by declaring that this was all of the monies he was intending to take out of New Zealand. It was then discovered that Mr Jeon had an envelope containing an additional $11,000 in his jacket. It was submitted that the Judge wrongly

10     Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]; R v Taulapapa [2018] NZCA

414 at [22].

focused on the amount of cash involved rather than on Mr Jeon’s intention, overlooking that Mr Jeon deliberately sought to mislead security and Customs officers, even after he was confronted with his offending. It was argued that this was a significant aggravating factor, which should have been taken into account.

[24]      The Judge did not expressly refer to Mr Jeon’s ongoing dishonesty although he did note that Mr Jeon had hidden the money. I am not however persuaded that, even had he done so, it would have made any great difference to the conclusion that      Mr Jeon’s offending was relatively low level offending of its kind. The Judge noted that the Anti-Money Laundering and Countering Financing of Terrorism Act is aimed at money launderers and those financing terrorism, and that there was no suggestion by counsel appearing for the appellant that Mr Jeon was involved in terrorism. The Judge considered that the total amount involved – $24,835 – supported that acknowledgement. He also noted that the prosecutor accepted that the gravity of the offending was at the lower end.

[25]      I am not persuaded that the Judge, who was dealing with the matter in a busy list in the District Court, erred in his assessment of the gravity of the offending. He could have been a little more fulsome in detailing the offending but that does not mean that he failed to take into account relevant matters or that he took into account irrelevant matters. The Judge was sentencing Mr Jeon for the admitted offending. Two of the charges – those under the Anti-Money Laundering and Countering Financing of Terrorism Act – related to Mr Jeon’s dishonesty. The Judge cannot have been unaware of it. The amount involved is relevant, not because it negates the charge, but because it supports Mr Jeon’s contention that he was not a money launderer or a financier of terrorism. I do not consider that the Judge erred as alleged. Nor was his decision that the offending was not particularly serious patently wrong.

Did the Judge correctly assess the consequences of convictions and was there sufficient evidence before him on which he could make that assessment?

[26]      A Court considering an application for a discharge without conviction does not need to be satisfied that the alleged consequences will inevitably occur. All that is

required is that there is a real and appreciable risk that the consequences will ensue.11 This standard recognises that the court is assessing the likelihood of something that may happen in the future.12 The offender should ordinarily put before the court information to provide a factual basis for a decision that the test has been satisfied. There is no legal onus on an offender to do so however, and the standard of proof in s 107 is simply that the Judge be satisfied that the requirements of the section are met.13

[27]      In the present case, Mr Jeon filed an affidavit. He expressed remorse for what had happened and stated that the whole incident had affected him and his family. He deposed that he owns a company called On Point Construction Ltd and that he works for that company as a project manager. He stated that the company subcontracts both residential and commercial building work. He said that some head contractors require that all workers on a site obtain police clearance, and that if a worker has a criminal record that concerns the head contractor, the project will not go ahead. He said that this applies to him in his capacity as a project manager and that it is crucial for him to be able to enter work sites in order to fulfil his duties. He stated that he is the sole provider for the family and that he has to continue providing for his wife and child. He also stated that he established his company on 30 August 2019 and that the company employs three workers. He stated that, in his capacity as project manager, he was in charge of three projects, which he set out. He expressed concern that he would not be able to achieve his long term goal of becoming involved in apartment construction and establishing a development company if he were to receive convictions for the charges, and that any convictions would affect him for a long time.

[28]      The appellant submitted that the Judge did not have sufficient material before him to substantiate the asserted consequences. It was noted that the Judge observed that Mr Jeon was employed by the company, when in fact he is an owner/director of the company. It was argued that there was no evidence before the Court that Mr Jeon’s ownership of the company would be jeopardised by the entry of convictions, and that there was nothing to suggest that the convictions would impact upon Mr Jeon’s ability

11     DC (CA47/13) v R [2013] NZCA 255 at [43].

12     R v Taulapapa, above n 10, at [22].

13     R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [49] and [53]; DC(CA47/2013) v R, above

n 11, at [43]; R v Taulapapa, above n 10, at [23].

to be involved in the construction of apartments or in establishing development companies. It was submitted that there was nothing to support Mr Jeon’s assertions.

[29]      I do not accept these submissions. As I have noted, there was evidence before the Judge and he was entitled to take this evidence into account. There was no contrary evidence from the appellant. Mr Burns in his oral submission did not push particularly hard on this issue. Indeed, he accepted that the consequences of the offending carried their own obvious difficulties. In my view, this was an appropriate acknowledgement.

[30]      I do not accept the appellant’s submissions. In my view, the Judge did have sufficient material before him on which to make an assessment. His acceptance of Mr Jeon’s evidence cannot be criticised and his decision is not plainly wrong.

Did the Judge correctly undertake the balancing exercise required by s 107?

[31]The Judge stated as follows:14

The Crown has acknowledged the offending is not the most serious kind of offending, but submits … that the offending is not insignificant. I think in the balancing act process that it is not insignificant, but it is certainly nowhere near the level that would make one wonder what [Mr Jeon] was going to do with the money. I think it is a difficult situation for Customs and the Police to consider, but I think the balance must come in favour of Mr Jeon. …

[32]      It was argued that the Judge applied an incorrect test, and that there was only jurisdiction to grant a discharge without conviction if the requirements of s 107 were met.

[33]      Before a Court can discharge an offender without conviction, it must find that the consequences of a conviction are out of all proportion to the gravity of the offending.15 Significant disproportion is required.16 The decision as to whether the test has been met does not call for the exercise of a discretion – rather it is a matter of fact requiring judicial assessment.17

14     New Zealand Customs Service v Jeon, above n 1, at [11].

15     Sentencing Act 2002, s 107.

16     NI v New Zealand Police [2013] NZHC 2925 at [17].

17     R v Hughes, above n 14, at [8].

[34]      The wording used by the Judge was unfortunate. He does not refer to the “out of all proportion” test put in place by s 107. Nevertheless, it is important to read the decision as a whole. Inter alia, the Judge said as follows:18

It is clear that [Mr Jeon] has broken the law, but at very much the lower end of the scale. It is a case of looking at how it will affect him and I think … without doubt … that his life will change if he has a conviction for this. It will be potentially adversely affected to the extent that he will not be able to look after his family.

[35]      Looking at the Judge’s decision in the round, I do not consider that he applied the wrong test. It would have been preferable if he had used the wording contained in s 107, but viewed broadly it seems to me to be clear that he was alive to the “out of all proportion” requirement.

Did the Judge apply the correct legal test for restoration?

[36]      Mr Jeon had sought that the forfeited goods (i.e. the cash) be restored to him pursuant to s 188(2) of the Customs and Excise Act. Relevantly, s 188 provides as follows:

Goods forfeit on commission of offence

(1)This section applies if—

(a)goods are forfeit on the commission of any offence, being—

(i)goods in respect of which the offence was committed; or

…

(b)the goods have not been—

(i)restored to the person from whom they were seized; or

…

(2)If any person is convicted of the offence, the court may on sentencing, if it thinks fit (and subject to any conditions it thinks fit), order the forfeited goods be restored to the person from whom the goods were seized.

18     New Zealand Customs Service v Jeon, above n 1, at [10].

(3)If the court does not make an order under subsection (2), the goods are condemned to the Crown on the conviction of the person for the offence.

[37]      This provision is from the Customs and Excise Act 2018, which repealed the Customs and Excise Act 1996.19 It applies because, pursuant to s 114(2) of the Anti- Money Laundering and Countering Financing of Terrorism Act, the Customs and Excise Act applies to, inter alia, the exportation of a prohibited good and the money which Mr Jeon was intending to take out of New Zealand was a prohibited good. Pursuant to s 176(1)(c) and (d)(ix) of the Customs and Excise Act, the money was forfeited to the Crown on the commission of the offence.

[38]      The discretion to order restoration under s 188(2) applies if a person is convicted of an offence. Mr Jeon was not convicted. Rather, he was discharged without conviction. Nevertheless, it is clear that the Court can order restoration without entering a conviction.20 Further, it can order partial restoration.21

[39]The Judge dealt with restoration only relatively briefly. He stated as follows:22

As far as forfeiture is concerned the money is his, hard-earned, and I am not sure of the source of the valuable watch which was sold, but it is his money and I do not believe that the New Zealand taxpayer should benefit from what happened at the airport. I am going to make a ruling, given the discretion, that there will be $3,000 forfeited and the balance be returned to Mr Jeon.

[40]      Counsel were unable to refer me to any cases dealing with restoration under the 2018 Act. Under s 236 of the now repealed Customs and Excise Act 1996, the Court had a discretion to allow for the partial or full restoration of goods forfeited. The leading decision regarding restoration was New Zealand Customs v Brereton.23 In this case, Wild J noted as follows:

[50]The s 236(2) discretion to restore goods is a qualification on the default position that goods in respect of which an offence has been committed should be condemned. The default position provides the

19 Customs and Excise Act 2018, s 442.

20 Sentencing Act 2002, s 106(3)(a); Wong v New Zealand Customs Service HC Auckland, Ap320/97, 6 May 1998(the issue was not raised before Court of Appeal in New Zealand Customs Service v Wong CA217/98, 1 October 1998).

21     New Zealand Customs Service v Wang HC Auckland CRI-2009-404-000365, 18 December 2009 at [30]-[40].

22 New Zealand Customs Service v Jeon, above 1, at [12].

23 New Zealand Customs v Brereton HC Nelson CRI-2006-442-18, 23 November 2007.

conceptual starting point for the exercise of the discretion. The factors marshalled in support of the restoration of the goods must be sufficient to overcome the default position. The Judge ordering restoration of goods must be satisfied that the circumstances or factors favouring restoration outweigh the legislative policy that conviction for an offence should result in the condemnation of the related goods.

[51]It follows that the “just and equitable” test adopted by the Judge is liable to mislead the Court in the exercise of its discretion. It suggests the Court’s role is to weigh all the factors equally and order a result equitable in the circumstances. But the proper approach is surely to measure the sufficiency of the factors favouring restoration against the policy favouring condemnation. The nature of the discretion is such that there is a presumption in favour of the condemnation of goods seized in connection with criminal offending, a presumption not lightly to be disturbed.

The Judge then commented as follows:

[57]For the future, I summarise what I consider to be the correct approach:

(a)There is a presumption that goods in respect of which an offence has been committed should be forfeited and condemned. That presumption exists, in part, to deter evasion of Customs and Excise duty and assist in the enforcement of the Customs legislation.

(b)Before ordering restoration, the Judge must be satisfied that the circumstances or factors favouring restoration outweigh the presumption that a conviction should result in the condemnation of the goods in question. This means the counter-considerations must be compelling to justify restoration.

(c)Without attempting exhaustively to list them, the circumstances or factors that may support restoration include disproportionate hardship to the offender and/or harm to innocent third parties. Depending on the circumstances of the case and the nature of the forfeiture, it may also be possible to argue that the goods in question were only of limited or indirect significance to the offending, or that the offender had a legitimate purpose for part of the goods.

(d)The issue of forfeiture and restoration should not be allowed to skew the sentencing exercise. The scheme of the Act expressly contemplates both the imposition of penalties and the forfeiture and condemnation of goods.

[41]      Despite Ms Kim’s submissions to the contrary, it does not seem to me that there is any material difference between s 236 and s 188, and in my judgment, the approach taken in Brereton still applies. The default position remains that goods (including

cash) in respect of which an offence has been committed should be forfeited to the Crown. This is the starting point and restoration is the exception rather than the rule.24 The Court is given a discretion. In exercising that discretion, it must consider the factors marshalled in support of restoration and see whether they are sufficient to overcome the default position. To justify restoration, these factors must be compelling.

[42]      In the present case, the Judge did not acknowledge that forfeiture was the default provision. Further, the only reason he advanced for restoring the majority of the cash to Mr Jeon was that the money was his. He commented that the New Zealand taxpayer should not benefit from what happened at the airport but, with respect, this is a conclusory observation, not a reason justifying restoration.

[43]      In my view, the Judge applied the wrong approach to the issue of restoration. He should have acknowledged the presumption arising from the acknowledged offending. He should then have gone on to consider the factors (if any) favouring restoration. I accept that one of those factors may have been that the money belonged to Mr Jeon. The evidence of this however seems to have been slender. It appears to have come from what Mr Jeon said at the airport when he was apprehended by security and Customs’ officers. In any event, that the money belonged to Mr Jeon cannot of itself result in restoration. Forfeited goods will always belong to someone – often the offender but on occasion a third party. If the goods are forfeited that may create hardship for an innocent third party. If the goods belong to the offender, there might be hardship, but here there was no evidence suggesting that Mr Jeon would suffer hardship let alone disproportionate hardship if the monies were not restored to him. It could not be argued that the money was of limited or no significance to the offending; it was at the heart of it.

[44]      The Judge’s approach to restoration seems to have been coloured by his view that the Anti-Money Laundering and Countering Financing of Terrorism Act was not designed specifically for people like Mr Jeon. With respect to the Judge, Mr Jeon’s offending fell squarely within the provisions of the Act. The provisions breached by

24     Shakib v New Zealand Customs Service [2017] NZHC 1513 at [42].

Mr Jeon target persons who move more than $10,000 across New Zealand’s borders. Under s 114(3) of Anti-Money Laundering and Countering Financing of Terrorism Act, it is the duty of every Customs officer to prevent the movement of cash that is in breach of any requirement of the Act. The offence provisions seek to prevent money laundering and the financing of terrorism. They create strict liability offences. Forfeiture is automatic upon conviction, and the prosecution is not required to prove that the cash was from an illegitimate source or intended for an illegal purpose. The presumption in favour of forfeiture has long been in force, and the tenor of the 2018 Act does not suggest that the legislature intended to amend the application of the established law relating to restoration.

[45]      In my view, the Judge erred in his decision in regard to restoration. Accordingly, I set aside the Judge’s decision restoring all but $3,000 of the forfeited monies to Mr Jeon.

[46]      Pursuant to s 300(1)(e) of the Criminal Procedure Act, I remit the matter to the District Court so that it can reconsider the issue of restoration in accordance with the views I have set out in this judgment. I have taken this step, rather than dealing with the matter myself, to preserve Mr Jeon’s appeal rights.

[47]      To this limited extent the appeal is allowed. In all other respects, it is dismissed.

Wylie J