Soon v The King
[2025] NZCA 350
•23 July 2025 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA809/2024 |
| BETWEEN | CHIN KOK SOON |
| AND | THE KING |
| Hearing: | 17 June 2025 |
Court: | Ellis, Peters and Walker JJ |
Counsel: | M T Lennard and N A Mitskevitch for Appellant |
Judgment: | 23 July 2025 at 11.00 am |
JUDGMENT OF THE COURT
AThe application for leave to adduce further evidence on the appeal is granted.
B The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellis J)
Mr Soon (also known as Mr William) pleaded guilty to the following charges:
(a)twenty representative charges of receiving property exceeding $1,000 in value;[1]
(b)one non-representative charge of receiving property exceeding $1,000 in value; and
(c)one charge of failing to carry out obligations in relation to a computer search.[2]
[1]Crimes Act 1961, ss 246, 247(a) and 66(1) (maximum penalty of seven years’ imprisonment).
[2]Search and Surveillance Act 2021, s 178 (maximum penalty of three months’ imprisonment).
We will return to the facts underlying these charges, shortly.
On 14 November 2024, Mr Soon was sentenced by Radich J to three years and ten months’ imprisonment.[3] The Judge arrived at this sentence by:
(a)adopting a starting point of six years and six months’ imprisonment;[4] and
(b)reducing that starting point by:
(i)25 per cent for guilty pleas;[5]
(ii)10 per cent for previous good character;[6] and
(iii)five per cent for physical and psychological medical factors.[7]
[3]R v Soon [2024] NZHC 3393 [judgment under appeal] at [88].
[4]At [40].
[5]At [43].
[6]At [53].
[7]At [73].
Mr Soon now appeals that sentence on the basis that the Judge erred in not allowing a further discount for the punitive effect of restraint orders made under the Criminal Proceeds (Recovery) Act 2009 (the CPRA) over a number of properties owned by Mr Soon, Ms Eng (Mr Soon’s wife) and/or their company, Synergy Investments Limited (in liquidation).[8] He says this Court’s earlier refusal to entertain such an argument in Henderson v R was wrong or, alternatively, that Mr Soon’s is an exceptional case not ruled out by the broader Henderson dicta.[9]
Further evidence
[8]Synergy was put into liquidation on 27 June 2023.
[9]Henderson v R [2017] NZCA 605.
Mr Soon seeks leave to adduce evidence on his appeal, relating to the restraint orders and their impact on the value of his properties. The evidence is in the form of an affidavit from Mr Lynskey, a solicitor acting for Mr Soon and his wife in relation to the CPRA proceedings. Radich J declined to consider such material,[10] and leave to adduce it on appeal was opposed by the Crown. In our view, however, consideration of that evidence is necessary to fairly understand Mr Soon’s principal position on appeal and we grant leave for that reason, accordingly.
The offending
[10]R v Soon HC Wellington CRI-2022-085-2285, 9 September 2024 (sentence indication of Radich J) at [55].
Radich J summarised Mr Soon’s offending in the course of his sentencing remarks. As regards the 20 representative receiving charges, he said:[11]
[2] … from 25 January to 6 October 2022. The charges arise from a police operation called “Operation Trump Card”, carried in 2022 to target a large-scale receiving operation. Six defendants were charged. You were the primary instigator and operator of the enterprise. You ran an extensive operation which involved you receiving stolen items and selling them for a profit — or planning to do so. You would be contacted by others offering stolen goods for sale and would either make arrangements to sell them or to put them into storage. You would, in addition, contact suppliers of stolen goods with lists of goods that you wished to receive. You did this on the basis that the suppliers would steal or shoplift those items to order, from business premises or from people’s homes.
[3] You have received items from a wide group of people. You had connections throughout the Wellington district and you did not limit yourself to receiving stolen goods from any one group. Two of the most significant providers of property to you are the subject of proceedings before this Court themselves. You enlisted the help, also, of two of your tenants and of a painter who worked on properties in which you had an interest. Of the people who provided stolen goods to you, several were tenants of your properties, often unemployed. Some were gang members. As a group, they were regarded as being vulnerable to exploitation and easily tempted by quick cash.
[4] Once items had been stolen, you would arrange to pick them up yourself or to have them dropped to one of your properties or storage units. Typically, you would meet the suppliers of the items at the arranged drop-off point. The number of representative charges against you reflect the number of different properties from which the police recovered stolen items. The amount of the property received was so large that you felt the need to hire 16 storage units to store it in. In addition, you used space within other properties you had an interest in, including your own home, and in a shipping container. To dispose of the stolen property for a profit, you would pass them on to associates to sell through online marketplaces such as TradeMe and Facebook marketplace. However, by the time police brought charges against you, a good portion of the stolen property you received had not been sold.
[5] The stolen items you received that the police recovered included electronics, power tools, building materials, whiteware and bicycles. Many items were identified as having been taken in burglaries from homes around Wellington. The total amount of property recovered by the police in the course of the operation is valued at $2,972,934.69.
[6] In the course of the operation, police collected around 76,000 lines of telecommunications data from you. A good part of the communications was between you and associates and centred on stolen items that people had in their possession for sale. Other messages showed that you were using your position as a landlord at properties with which you were associated to leverage money owed for stolen property received against the rent. Some messages received indicate that you were using particular associates to target the theft of property.
[11]Judgment under appeal, above n 3.
The Judge explained that the non-representative receiving charge related to specific stolen property: a caravan valued at $30,000 which had been stolen and offered to Mr Soon. The Judge said:
[7] … Your actions in dealing with the caravan are illustrative of the proactive role you took in your offending. You arranged for the registration of the caravan to be changed into your name. Then, when you were contacted and threatened by people claiming to be the owners of the caravan, you contacted the police about it. Later, you arranged for a co-offender to re-register and repaint the caravan as well as have the chassis number removed. All this was done to disguise the identity of the caravan and make it more difficult for it to be recovered. The caravan has not been recovered.
The charge of failing to carry out obligations in relation to a computer search stemmed from Mr Soon’s refusal to unlock phones said to have been used to plan and coordinate the offending.[12]
The CPRA proceedings
The relevant statutory provisions
[12]At [8].
The CPRA establishes a regime for the forfeiture of property that has been acquired or derived — directly or indirectly — from significant criminal activity, or that represents the value of the person’s unlawfully derived income. The purpose of the regime is to eliminate the chance of profiting from crime.[13]
[13]Criminal Proceeds (Recovery) Act 2009 [CPRA], s 3(2).
Restraining orders prohibit the disposal of, or dealing with, the property specified in the order other than as provided for. Restraining orders are intended to be of limited duration and are used to preserve property pending an application for forfeiture, which involves a separate (but related) process under the CPRA.[14]
[14]Once an on-notice restraining order is made, s 37 of the CPRA provides that it remains in force for one year (unless a forfeiture order is either made or declined). In the event any forfeiture proceedings are not resolved in one year, the Commissioner can apply under s 41 to extend the duration of the restraining order. An extension is for 12 months only, but more than one extension may be granted.
Applications for restraining orders can be made under either ss 24 and 25 of the CPRA or both:[15]
(a)Under s 24, the Court may make an order if it has “reasonable grounds to believe” that the subject property is “tainted” because it has — wholly or in part — been acquired as a result of, or directly or indirectly derived from, “significant criminal activity”.
(b)Under s 25, the Court may order restraint of a respondent’s property where it has “reasonable grounds to believe” that the respondent “unlawfully benefitted from significant criminal activity”.
[15]Restraining orders can also be made under s 24A or (in relation to instruments of crime) under s 26.
Property may be tainted even though it has only partly been acquired as a result of significant criminal activity. For example, an entire property will be tainted where funds derived from such activity are used to service a mortgage over a property, or to fund home improvements, regardless of whether those funds comprise a small part of the value of the property.
Similarly, forfeiture orders (if and when they are made) may take the form of either an assets forfeiture order or a profit forfeiture order, or both.[16] Assets forfeiture orders are focused on tainted property and profit forfeiture orders are focused on profits.
[16]CPRA, ss 50 and 55.
As well, on the passage of the CPRA, amendments were made to the Sentencing Act 2002. These provided that a sentencing court may, on the application of the prosecutor (and subject to compliance with the specified statutory processes), make an instrument forfeiture order.[17] An instrument forfeiture order is made where the property concerned has been used by an offender in furtherance of qualifying criminal activity. It is not necessary to show either that the relevant property is, itself, tainted or that the respondent has profited from the relevant criminal activity. Section 10B of the Sentencing Act specifically requires an instrument forfeiture order to be taken into account at sentencing.
The restraint orders here
[17]Sentencing Act 2002, s 142N.
The following narrative is largely taken from a judgment of Grau J in the restraint proceedings, dated 9 May 2024.[18]
[18]Commissioner of Police v William [2024] NZHC 1140.
At around the time Mr Soon and Ms Eng were arrested, police executed multiple search warrants at addresses linked to them. They recovered almost three thousand items of stolen property with an estimated total value of between $1–2 million.[19] A preliminary analysis of relevant bank accounts also identified an estimated $1,530,849.20 in COVID-19 wage subsidy payments to Mr Soon and/or Ms Eng and/or their company (Synergy) from the Ministry of Social Development (MSD). They also received payments from MSD as private accommodation suppliers. Although it is alleged that these payments were obtained by deception, no charges in relation to the MSD matters have, however, yet been laid.[20]
[19]At [9].
[20]At [10].
Mr Soon and Ms Eng and Synergy then had a property portfolio comprising 15 properties, said to be worth $18 million.[21] Development plans were in place for four of these properties; one was the family home, and most of the rest were rented out.[22] But shortly after police had executed the search warrants and had conducted formal interviews of Mr Soon and Ms Eng, the couple started making arrangements to put 12 of their properties on the market.[23]
[21]At [14].
[22]At [14].
[23]At [15]. They also changed the registration of vehicles they owned or controlled.
The Commissioner then applied for and obtained restraining orders over all 15 properties. The Court also — and by consent — made orders that 12 of the restrained properties could be sold, to preserve their value. The parties also agreed that the proceeds of any sale should either be applied to the debt facilities relating to any of the 15 restrained properties or be held by the Official Assignee until the determination of any subsequent forfeiture application.[24]
[24]At [16]. The Commissioner had also sought sale orders for two other restrained properties but the parties reached an agreement whereby the Commissioner no longer sought a sale order for St Michael’s Crescent property and the respondents no longer opposed the sale of the Newlands Road property: see at [7].
For the purposes of the restraining order application, the Commissioner alleged that, as at 23 November 2022, Mr Soon, Ms Eng and Synergy had received an unlawful benefit amounting to $2,526,252.59.[25] This included the MSD payments.
[25]At [10].
The CPRA proceedings were then put on hold pending Mr Soon’s and Ms Eng’s criminal trial. Eventually, both pleaded guilty before trial.
As explained by Grau J in 2024, the sale process in relation to the restrained properties did not go particularly well. She said:[26]
[2] … The sale order was made with the agreement of the respondents, but only four properties have since been sold. Two properties sold by way of mortgagee sales. Sales of other properties have been hindered by tenancies. Nine of the 15 restrained properties were owned by the first interested party, Synergy Investments Ltd (Synergy), a company said to have been operated by the respondents which has now been put into liquidation. The most valuable property owned by Synergy has been substantially damaged since the sale order was made. The sale order also coincided with a declining property market. Thus, the process of selling the restrained properties has not been straightforward.
[26]Footnote omitted.
In her judgment, Grau J:[27]
(a)made a sale order in respect of one further property, by consent;
(b)ordered that the existing restraining orders in relation to two unsold properties were to continue;
(c)declined to include as a condition on the sale orders to enable the proceeds from any property sold to be used to pay debts in relation to other restrained properties, saying that if and when the issue arose, the parties should try and reach agreement (failing which, a further application could be made);
(d)declined to include as a condition on the sale orders to enable payment of the legal costs of Synergy’s liquidators, again on the basis that the parties should try and reach agreement about that; and
(e)declined to require the Commissioner to give an undertaking as to damages under s 29 of the CPRA.
[27]At [83]–[88].
It is relevant to observe that the application for an undertaking had been made because Mr Soon, Ms Eng and Synergy said that the restrained assets had lost and were continuing to lose value, and sale had not been vigorously pursued. It was said that an undertaking would incentivise the Commissioner and/or the Official Assignee to act more proactively and commercially. The Commissioner’s response was that he has a relatively robust case for restraint and subsequent forfeiture, the complaints about mismanagement of the restrained assets could only relate to the Official Assignee, and the allegations of negligence are not made out in any event.
An appeal against Grau J’s decision is pending and will be heard in September 2025.
The impact of restraint
Mr Soon’s present concerns should largely be evident from the narrative above. But to complete the picture, there is Mr Lynskey’s affidavit, the gist of which may be summarised as follows:
(a)on execution of the on-notice restraining orders, Mr Soon’s family’s property portfolio was estimated by police to be worth $17,980,000;
(b)secured loans on those 15 properties totalled $7,761,910, leaving an estimated equity of $10,218,000;
(c)since then, ten of the 15 properties have been sold, at prices that have seen all other proceeds of sale absorbed by the mortgagees;
(d)the value placed by police on those ten properties in November 2022 was $14,535,000, but the mortgagee sale price received totalled only $8,326,500; and
(e)the remaining five properties are, together, now worth an estimated $3,450,000, but even if they all sell for the valued amount (which seems unlikely), there are other mortgages outstanding and other creditors (owed at least $180,000).
Mr Lynskey has also deposed (with supporting documents annexed to his affidavit) that prior to sale there was substantial physical damage done to the (previously) most valuable property, 83 Hatton Street. Two of the properties had both previously been tenanted, enabling the obligations to the mortgagee to be met, but this ceased to be the case after the Official Assignee obtained custody and control of them.
Overall, therefore, a property portfolio worth approximately $18 million in 2022 has been (or will be) realised for (at most) around $11 million and the equity of Mr Soon and his family will have reduced effectively to zero, with no gain at all to the Commissioner or the Crown.
The decision in Henderson
In Henderson, there were civil assets forfeiture and profit forfeiture applications against the appellant at the time of his sentence, including an application for the forfeiture of the appellant’s interest in a house.[28] Judge Tuohy had declined to grant a discount in relation to this on the basis that he considered “it would be premature to do so in light of the fact the forfeiture proceedings were still unresolved”.[29]
[28]Henderson v R, above n 9, at [27].
[29]At [31].
On appeal, this Court held that that there was another impediment to Mr Henderson’s position. Section 10B of the Sentencing Act is concerned only with forfeiture pursuant to an instrument forfeiture order; civil forfeiture orders under the CPRA do not warrant discounts in sentencing.[30] Referring to the conceptual distinction noted by the High Court in Commissioner of Police v Skinner, the Court observed that the confiscation of the proceeds of crime “involves the confiscation of something the defendant should not have obtained in the first place”.[31] The Court went on to say:
[40] … The order forces the defendant to disgorge ill-gotten gains which logically renders it of little or no relevance to sentencing. It is not punitive and the giving of a discount would mean a windfall. …
[30]At [32].
[31]At [40], citing Commissioner of Police v Skinner [2013] NZHC 2956 at [37(e)].
The Court concluded that, as a “general rule”, civil forfeiture orders do not warrant a credit in sentencing.[32] It indicated (without conclusively holding) that the “exceptional circumstances” exception to that rule referred to in decisions made under the predecessor to the CPRA should no longer apply,[33] given that the Sentencing Act had since been amended specifically to provide for instrument forfeiture orders.[34]
Could and should the restraint orders have been taken into account at sentencing?
[32]Henderson v R, above n 9, at [42].
[33]Proceeds of Crime Act 1991. See in particular R v Brough [1995] 1 NZLR 419 (CA).
[34]Henderson v R, above n 9, at [43].
Putting to one side any question about whether it would be appropriate for a division of this Court to differ from the decision of another division of this Court, we are in no doubt that Henderson was, with respect, right. The fundamental point — that civil forfeiture orders seek to deprive offenders of the fruits of their criminal activity rather than to punish — necessarily means that they should be irrelevant to sentencing. The distinctive point about an instrument forfeiture order is that it does operate punitively: what is forfeit is property that otherwise legitimately belongs to the offender.
Be that as it may, however, (and like the Henderson Court) we would prefer to leave open the (small) possibility that there may be some kind of exceptional circumstances that requires a departure from the general rule. We are therefore prepared to consider whether it might be said that Mr Soon’s circumstances could be of such an exceptional kind.
Unpacking Mr Soon’s position a little more, then, it seems to us he is contending that:
(a)the Commissioner has “overreached” by restraining more property than could ever legitimately be forfeit (either as tainted property or to meet a profit forfeiture order);
(b)the Official Assignee owes a duty to take reasonable steps not to cause economic loss to the owners of restrained property that is in his custody or control, and it has breached that duty;[35] and
(c)given both (a) and (b), the restraint here has had a punitive effect that should be taken into account at sentencing.
[35]See, for example, Williams v Attorney-General [1990] 1 NZLR 646 (HC).
We do not necessarily dismiss any of those contentions as unarguable. There are, however, several difficulties that prevent us making anything of them in the present context.
First, no applications for forfeiture have yet been made by the Commissioner. So we do not know what his position will be in relation to any forfeiture application; in particular, we do not know what property he will say was tainted (and in what way or to what extent) and we do not know what the quantum of any deemed unlawful benefit might be. By and of itself that makes it impossible to assess whether there has, in fact, been any significant overreach by the Commissioner.
Secondly, we accept that the evidence before us does suggest that some of the restrained properties have been permitted to deteriorate, and that (as noted by Grau J) delays in the sale processes may have contributed to this deterioration. But whether or not the Official Assignee might owe some kind of a duty to Mr Soon is a complex question. It was not argued before us and we are far from being in a position to answer it. Moreover, how any breach of any such duty might play out in a sentencing context is also far from clear.
Thirdly, the performance of the Wellington property market since 2022 is also likely to have been a factor, in terms of the values realised and reasonably achievable. A sentencing court would not usually be in a position to make any kind of assessment about that, and nor is this Court, in this appeal.
Fourthly, Mr Soon’s appeal against Grau J’s 2024 decision is pending. It may be (without expressing any concluded view) that that appeal will afford Mr Soon a further and more appropriate opportunity to ventilate his concerns.
The short point is that there is no basis on which we can presently conclude that restraint has in fact been punitive here. Even accepting that there remains room to take account of CPRA matters at sentencing, there is no basis upon which we (or the High Court Judge) could do so here.
Result
The application for leave to adduce further evidence on appeal is granted.
The appeal is dismissed.
Solicitors:
Crown Solicitor, Wellington for Respondent
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