Soon v The King
[2025] NZSC 174
•21 November 2025
| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI O AOTEAROA |
| SC 89/2025 [2025] NZSC 174 |
| BETWEEN | CHIN KOK SOON |
| AND | THE KING |
| Court: | Glazebrook, Ellen France and Miller JJ |
Counsel: | M T Lennard and N A Mitskevitch for Applicant |
Judgment: | 21 November 2025 |
JUDGMENT OF THE COURT
The application for leave to appeal is dismissed.
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REASONS
Mr Soon seeks leave to appeal his sentence of three years and 10 months’ imprisonment for his leadership role in a large-scale receiving enterprise which dealt in stolen property.[1] He was sentenced on 21 charges of receiving stolen property valued at roughly $3 million and one of failing to carry out obligations in relation to a computer search. Twenty of the receiving charges were representative.
[1]See R v Soon [2024] NZHC 3393 (Radich J); and Soon v R [2025] NZCA 350 (Ellis, Peters and Walker JJ) [CA judgment].
Mr Soon was given no credit at sentencing for what he says are the financial consequences of civil restraining orders made, on the application of the Commissioner of Police, over 15 properties in which he has an interest.[2] He seeks leave to argue that the Court of Appeal was wrong to hold, following its decision in Henderson v R, that civil forfeiture orders are possibly relevant at sentencing only in exceptional circumstances.[3] His properties have not (yet) been forfeited to the Crown but he maintains that the restraining orders have caused loss in the interim. He says the properties have been mismanaged by the Official Assignee and 10 of them have been sold, mostly by the mortgagee. He contends that the resulting loss in value of his property portfolio dwarfs his illicit gains of some “tens of thousands of dollars” from the offending and ought to have been taken into account at sentencing.
[2]See Commissioner of Police v William [2024] NZHC 1140.
[3]CA judgment, above n 1, at [30]–[32] citing Henderson v R [2017] NZCA 605 at [42]–[43].
The Court of Appeal reasoned that civil forfeiture orders made against assets or profits under the Criminal Proceeds (Recovery) Act 2009 are normally irrelevant at sentencing because they seek to deprive offenders of the fruits of their criminal activity.[4] That distinguishes them from instrument forfeiture orders made under the Sentencing Act 2002, which permit forfeiture of property which was lawfully obtained but then used for criminal purposes.[5] Section 10B of that Act expressly requires that such orders made, or to be made, in respect of property used to commit or facilitate the commission of a qualifying offence must be taken into account at sentencing. It does not provide that civil forfeiture orders, still less restraining orders made in anticipation of forfeiture orders, must be taken into account.
[4]At [31].
[5]See Sentencing Act 2002, s 142N.
The Court left open whether the Official Assignee might owe Mr Soon a duty in connection with the properties.[6] However, it recognised there was an evidential basis which supported Mr Soon’s allegations that, at least in part because of the Official Assignee’s conduct, a portfolio worth about $18 million will have been reduced to about $11 million and his equity will have been wiped out. But the Court found that it was not clear how the breach of such duty might play out at sentencing. It could not yet be known how much of the property was tainted or what was the extent of Mr Soon’s unlawful gains (which are not necessarily limited to gains from the offences for which he was convicted).[7] The Commissioner alleged when seeking the restraining orders that Mr Soon’s unlawful gains amounted to a little more than $2.5 million.[8] The Court pointed to the difficulty of quantifying economic loss from the effects of ongoing restraining orders that have yet to result in forfeiture and may not do so for some time.[9] It noted that there has been litigation about the restraining orders, including an application for an order that the Commissioner provide an undertaking as to damages.[10] An appeal from the High Court has been heard in the Court of Appeal.
[6]CA judgment, above n 1, at [36].
[7]See at [35].
[8]Commissioner of Police v William, above n 2, at [10].
[9]See CA judgment, above n 1, at [35] and [37].
[10]At [38].
The Crown accepts that the relevance of proceedings under the 2009 Act at sentencing may be an issue of public or general importance, but it maintains that Mr Soon’s appeal has insufficient prospects of success to warrant a further appeal to this Court. It says further that this case is an unsuitable vehicle because Mr Soon does not explain how the High Court might at sentencing resolve the complex legal and factual issues that underpin his complaints about the restraining orders.
We recognise that the question whether Henderson was entirely correct may be one of general or public importance, meriting revisiting by the Court of Appeal or by this Court in an appropriate case.[11] It is arguable that the omission of civil forfeiture orders from s 10B of the Sentencing Act does not compel the conclusion that such orders are invariably irrelevant at sentencing.[12]
[11]Senior Courts Act 2016, s 74(2)(a).
[12]We say “invariably irrelevant” because the Court of Appeal in Henderson indicated, without deciding, that the enactment of s 10B supported the conclusion that not even exceptional circumstances could make civil forfeiture orders relevant: Henderson, above n 3, at [43].
However, we accept the Crown’s submission that Mr Soon does not adequately explain how restraining orders that have not yet resulted in civil forfeiture orders, and might not do so, may be taken into account at sentencing, as a legal and practical matter. We observe that it seems some of his alleged illicit gains stem from offending other than that for which he was being sentenced. It would be necessary to decide whether the orders were too broad in scope, and whether a restraining order had caused the loss of assets or profits that were not the proceeds of crime. These issues can be resolved in civil proceedings. Further, such proceedings are likely to take some time to resolve and it is unlikely that the sentencing court would find it appropriate to delay sentencing in the meantime. That being so, the offender might well encounter difficulty under s 24 of the Sentencing Act, initially in persuading the court that the alleged mitigating facts were material for sentencing purposes, and then in proving those facts on the balance of probabilities.
For these reasons, we accept the Crown’s submission that the proposed appeal has insufficient prospects of success to justify leave.[13]
[13]See Senior Courts Act, s 74(1).
The application for leave to appeal is dismissed.
Solicitors:
Izard Weston, Wellington for Applicant
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
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