ZHOU v COMMISSIONER OF POLICE [2023] NZCA 137

ZHOU v COMMISSIONER OF POLICE [2023] NZCA 137 [2 May 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA198/2022[2023] NZCA 137BETWEEN SIU JUN ZHOUFirst AppellantLEVONZ INVESTMENT LIMITEDSecond AppellantAND COMMISSIONER OF POLICERespondentHearing: 27 March 2023Court: Collins, Venning and Gendall JJCounsel: S N B Wimsett and Y Y Mortimer-Wang for AppellantsK South and C C White for RespondentJudgment: 2 May 2023 at 9.30 amJUDGMENT OF THE COURTA The appeal is dismissed.B The respondent is entitled to costs for a standard appeal on a Band A basis,together with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr Zhou and his investment company Levonz Investment Ltd (LIL) appeal adecision of Doogue J, in which the Judge made profit forfeiture orders against MrZhou and LIL.1 The profit forfeiture orders were made under s 55 of the CriminalProceeds (Recovery) Act 2009 (the Act). We shall summarise the key relevantprovisions of the Act at [12]–[22].[2] The value of the unlawful benefit obtained by Mr Zhou was determinedpursuant to s 53 of the Act to be $2,214,000 and the maximum amount theCommissioner of Police (the Commissioner) was entitled to recover under the Act wasalso set at $2,214,000. The Judge rejected Mr Zhou's application under s 56 of theAct for relief based upon undue hardship.[3] Three grounds of appeal are advanced. It is argued:(a) The Judge erred when she concluded Mr Zhou had failed to rebut thepresumption in relation to the value of the unlawful benefit specifiedby the Commissioner.(b) The Judge erred by not considering that the Commissioner'scalculations of the unlawful benefit involved "double recovery" fromMr Zhou and his co-offender, Ms He.(c) The Judge erred when she declined Mr Zhou's undue hardshipapplication.Background[4] The Psychoactive Substances Act 2013, which came into force on 18 July2013, made it unlawful for unlicenced persons to sell non-approved psychoactivesubstances, including synthetic cannabis.2[5] Prior to the Psychoactive Substances Act coming into force, Ms He soldsynthetic cannabis from a dairy that she owned in Christchurch. Mr Zhou worked inMs He's dairy at this time from where he also sold synthetic cannabis.1 Commissioner of Police v He [2022] NZHC 533 [High Court judgment].2 Psychoactive Substances Act 2013, ss 70(1)(a) and 70(2).[6] In October 2014, Christchurch police commenced an investigation into the saleof synthetic cannabis by Ms He, Mr Zhou and other suspects. On 5 April 2015, policefound 63.1 grams of synthetic cannabis in Mr Zhou's possession. He pleaded guiltyto a charge of possessing a psychoactive substance for the purposes of sale or supply.3[7] The police investigation concluded on 11 May 2016. At that time173 kilograms of synthetic cannabis was found in the possession of Mr Zhou and otheroffenders. He and the other offenders were charged in relation to their respective rolesin the illegal synthetic cannabis operation.[8] On 13 June 2019, Mr Zhou pleaded guilty to one charge of selling or supplyingnon-approved psychoactive substances and two charges for possession of supply ofnon-approved psychoactive substances.4 The amount of the psychoactive substancesinvolved in Mr Zhou's offending was the 173 kilograms seized on 11 May 2016. Thatwas by far the largest quantity of unlawful psychoactive substance seized inNew Zealand. The second largest seizure involved just 2.5 kilograms. Mr Zhou alsopleaded guilty to unlawful possession of a restricted weapon (a taser gun), unlawfulpossession of a weapon and unlawful possession of ammunition.5[9] Mr Zhou was sentenced by Judge O'Driscoll in the Christchurch District Courton 28 November 2019 to 26 months' imprisonment in relation to the drugs charges.Concurrent sentences of one year imprisonment were imposed in relation to thefirearms and ammunition charges.6[10] The Crown case in the District Court was that Ms He was the principal offenderwhile Mr Zhou was her "right-hand man or lieutenant in the selling and distributionof the synthetic cannabis".7[11] Mr Zhou was a very active dealer of synthetic cannabis. He obtained largequantities of synthetic cannabis from Ms He and from a Mr Zhen and a Mr Miao and3 Psychoactive Substances Act, subs 70(1)(a) and 70(1)(c).4 Sections s 70(1)(c)5 Arms Act 1983, s 45(1)(b).6 R v He [2019] NZDC 24130 at [52] [District Court sentencing notes].7 At [18].then sold that product to a long list of customers. Doogue J said Mr Zhou provided asynthetic cannabis "delivery service seven days per week, meeting many customerseach day."8 The Crown's position at Mr Zhou's sentencing was that he sold syntheticcannabis worth between $27,000 and $45,000 each week between 26 October 2014and 11 May 2016 and that the direct profit he obtained was between $442,000 and$885,000.Key relevant provisions of the ActProfit forfeiture orders[12] The primary focus of the appeal is upon the profit forfeiture orders made underthe Act by Doogue J. Section 52 governs the contents of a profit forfeiture applicationwhich may be made against a person who has unlawfully benefited from significantcriminal activity. The Act defines "significant criminal activity" as:9(1) unless the context otherwise requires, significant criminalactivity means an activity engaged in by a person that if proceededagainst as a criminal offence would amount to offending—(a) that consists of, or includes, 1 or more offences punishable bya maximum term of imprisonment of 5 years or more; or(b) from which property, proceeds, or benefits of a value of$30,000 or more have, directly or indirectly, been acquired orderived.[13] An application for a profit forfeiture order must, amongst other things, describethe significant criminal activity from which the respondent is alleged to haveunlawfully benefited and state the value of that benefit.10[14] Under s 53(1) of the Act, if the Commissioner proves, on the balance ofprobabilities, that the respondent has, in the relevant period of criminal activity,unlawfully benefited from significant criminal activity, the value of that benefit ispresumed to be the value stated in the application.118 High Court judgment, above n 1, at [54(f)].9 Criminal Proceeds (Recovery) Act 2009, s 6.10 Section 52(b) and (d).11 Section 53(1)(a).[15] Section 53(2) provides that the presumption of the value of the benefit may berebutted by the respondent on the balance of probabilities.[16] Section 54 of the Act provides that, before making a profit forfeiture order, theHigh Court is required to determine the maximum recoverable amount under a profitforfeiture order. The maximum recoverable is calculated by deducting from the valueof the benefit, the value of any property forfeited to the Crown as a result of any assetforfeiture order made in relation to the same significant criminal activity to which theprofit forfeiture order relates.12[17] Section 55 provides for the making of a profit forfeiture order when theHigh Court is satisfied on the balance of probabilities that the respondent hasunlawfully benefitted from significant criminal activity and the respondent hasinterests in property.13 A profit forfeiture order must specify what property is to berealised pursuant to the order.14[18] Section 56 confers a discretion on the Court to exclude certain property frombeing realised under a profit forfeiture order "if it considers that, having regard to allof the circumstances, undue hardship is reasonably likely to be caused to therespondent if the property were realised."15 The circumstances the Court may haveregard to when considering an undue hardship application include:16(a) the use that is ordinarily made, or was intended to be made, of theproperty that is, or is proposed to be, the subject of the profit forfeitureorder; and(b) the nature and extent of the respondent's interest in the property; and(c) the circumstances of the significant criminal activity to which theprofit forfeiture order relates.Asset forfeiture orders[19] The appeal only partially engages asset forfeiture orders.12 Section 54(1).13 Section 55(1).14 Section 55(2).15 Section 56(1).16 Section 56(2).[20] Sections 50 and 51 of the Act provide that an asset forfeiture order may bemade by the Court if it is satisfied on the balance of probabilities that specific propertyis tainted property. The Act defines "tainted property":17tainted property—(a) means any property that has, wholly or in part, been—(i) acquired as a result of significant criminal activity; or(ii) directly or indirectly derived from significant criminalactivity; and(b) includes any property that has been acquired as a result of, or directlyor indirectly derived from, more than 1 activity if at least 1 of thoseactivities is a significant criminal activity.[21] The Court can exclude certain property from an asset forfeiture order onhardship grounds.18 The criteria concerning hardship applications in relation to assetforfeiture orders is the same as the hardship criteria that govern profit forfeitureorders.19Effective control over property[22] Section 58(1) of the Act is also relevant to the appeal. That section provides:58 Court may treat effective control over property as interest inproperty(1) If the High Court is satisfied that a respondent has effective controlover property, the Court may, on an application made by theCommissioner, order that the property is to be treated as though therespondent had an interest in the property specified by the Court.High Court judgment[23] Doogue J granted the Commissioner's application for a profit forfeiture orderunder s 55 of the Act.20 The Judge found that Mr Zhou had committed significantcriminal activity and unlawfully benefited from that activity.17 Section 5.18 Section 51(1).19 Section 51(2).20 High Court judgment, above n 1, at [144].[24] The Judge upheld the Commissioner's assessment of the unlawful benefit asbeing $2,214,000.21 In doing so, the Judge rejected Mr Zhou's argument that he soldonly 65.5 kilograms of synthetic cannabis and that the Commissioner's calculationswere flawed. In rejecting these arguments, Doogue J:(a) Found that the evidence put forward by Mr Zhou to support hisassertion he had sold only 65.5 kilograms of synthetic cannabis was notcredible.22(b) Found that "the Commissioner [had] given an informed range forconsideration by the Court" in relation to the assessment of theunlawful benefit.23 The Judge noted "[i]t is not sufficient for Mr Zhouto simply attempt to find deficits in the Commissioner's calculations."Rather, "the onus [was] on Mr Zhou to prove the calculations to beincorrect with reference to evidence."24[25] The Judge also rejected Mr Zhou's application to exclude some property fromthe forfeiture order on the basis of undue hardship. Doogue J noted "a remarkablepaucity of evidence in support of Mr Zhou's [hardship] application."25 The Judgeconsidered the use that the property was ordinarily put to and concluded that no unduehardship would arise from forfeiture.[26] The Judge also found that two assets, which were legally owned by otherpeople were to be treated as though Mr Zhou had an interest in the property and thusable to be subject to a profit forfeiture order:(a) A 2007 Subaru Legacy motor vehicle registered to Ms Gill. She"disavowed any proprietary interest in the property" and Doogue Jtherefore found the vehicle was "controlled, used and otherwise treatedby Mr Zhou as his own."2621 At [103].22 At [63]–[82].23 At [85].24 At [92].25 At [105].26 At [22].(b) A Westpac bank account in the name of Caiqiong Huang, who is themother of Mr Zhou. The Judge found that the bank account was "infact used and controlled by Mr Zhou for the purposes of laundering theproceeds of his acknowledged significant criminal activity".27[27] The Judge ordered the following property was to be realised under the profitforfeiture order:[147] Residential properties(a) 34 Amuri Street, Hei Hei, Christchurch, ;(b) 1 Longspur Avenue, Halswell, Christchurch, ;(c) Unit 3/107 Wrights Road, Christchurch ; andCash proceeds from sale of restrained motor vehicles[148] The sale proceeds of $78,807 plus any accrued interest realised fromthe sale of the following motor vehicles:(a) Land Rover 2007 registration number FYC38, registeredto [Mr] Zhou;(b) Subaru Legacy 2007, registration number JUF105, registeredto Natasha Nicolle Gill;(c) Mercedes-Benz 2013, registration number HGZ94,registered to [Mr] Zhou; and(d) Dodge 2014, registration number HSS558; andOther property[149] The funds attributed to Westpac Bank New Zealand Limited accountnumber 03-0823-0021574-00 in the name of the second interested party,Caiqiong Huang, with a balance of $18,961.35, plus any interest accrued.[150] $25,760.00 cash found by police on 11 May 2016 when policeterminated their criminal investigation in respect of [Mr Zhou], plus interestaccrued.[151] 45A Hei Hei Road, Hei Hei, Christchurch – is to be returned to [MrZhou], plus the balance of proceeds after satisfying the profit forfeiture order.27 At [23].First ground of appeal: was the presumption in s 53 rebutted?[28] Mr Wimsett, senior counsel for Mr Zhou, submitted that Doogue J erred whenshe concluded Mr Zhou had failed to rebut the presumption of the value of theunlawful benefit he received alleged by the Commissioner, namely $2,214,000.[29] Five arguments were advanced before us as part of Mr Zhou's challenge to thevalue of the unlawful benefit he was presumed to have received:(a) The figure of $2,214,000 was calculated on the basis that the syntheticcannabis in question was valued at $9.00 per gram without properjustification.(b) The Judge did not account for the impact of wholesale customers whenassessing the average price per gram of the synthetic cannabis.(c) Doogue J erred when she said that even if $9.00 per gram was high, thiswas offset by the fact the quantities used when calculating the value ofthe unlawful benefit were conservative.(d) It was argued the Commissioner erroneously relied on text datamessages over a five-month period and extrapolated the evidence of theunlawful benefit during that five-month period to cover the total periodof the offending. Mr Zhou says more accurate evidence could beobtained from WeChat messages which he says were a complete recordof the unlawful activity.(e) Some of the profit in the Commissioner's analysis was derived fromthe sale of a legal substance called Damiana in conjunction withsynthetic cannabis.[30] We will address each of the arguments in the same sequence that we have setout at [29]. Before doing so, we iterate the observations of this Court inCheah v Commissioner of Police,28 in which it was explained that the statutorypresumption in s 53(1) of the Act means that once the Commissioner has assessed theunlawful benefit obtained by an offender, the onus switches to the offender to provethe actual benefit. This will normally require much more than a critique of theCommissioner's methodology. Genuine evidence concerning the actual benefitobtained needs to be put forward by the offender if he or she is to rebut thepresumption.[31] Mr Zhou swore an affidavit for the High Court proceeding. He maintained thathe sold just 65.5 kilograms of synthetic cannabis and that the benefit he obtained was,at most, $196,500. That assertion was firmly rejected by Doogue J. She concludedMr Zhou lacked credibility. This was because his explanations shifted over the courseof his evidence and during the course of his statement to the police on 10 October2019. For example, Mr Zhou gave evidence that he thought he was selling "Damianaor grass". That explanation is impossible to reconcile with the fact Mr Zhou pleadedguilty to the charges we have summarised at [8].Nine dollars per gram[32] There are three reasons why Doogue J was entitled to accept theCommissioner's calculations based on Mr Zhou selling synthetic cannabis at $9.00per gram.[33] First, when he pleaded guilty in the District Court Mr Zhou accepted the policesummary of facts. That summary of facts specified that the average price of thesynthetic cannabis he sold ranged from $8.33 to $10.00 per gram.[34] Second, Detective Scott calculated Mr Zhou's unlawful benefit. The detectiveexplained the price at which Mr Zhou sold synthetic cannabis ranged from $8.33 pergram for wholesale purchases (such as the Mongrel Mob) and $10.00 per gram for"street customers". This evidence demonstrates the reasonableness of theCommissioner's decision to adopt a midpoint of $9.00 per gram when calculatingMr Zhou's unlawful benefit.28 Cheah v Commissioner of Police [2020] NZCA 253.[35] Third, as we have noted Mr Zhou claimed that he supplied only 65.5 kilogramsof synthetic cannabis and that he benefited to the sum of no more than $196,500. Thatequates to $9.00 per gram.[36] The Judge was therefore entitled to accept the Commissioner's midpoint figureof $9.00 per gram.Built-in tolerances[37] We will address the points summarised at [29(b) and (c)] under the heading of"Built-in tolerances".[38] Detective Scott concluded Mr Zhou was selling between three to fivekilograms of synthetic cannabis per week but, that three kilograms per week was likelyan underestimate of the amount of synthetic cannabis Mr Zhou was actually selling.Nevertheless, the police opted to use three kilograms per week when calculatingMr Zhou's unlawful benefit.[39] Detective Scott described the basis of his calculations of Mr Zhou's unlawfulbenefit by confining his calculations to an 82-week period from 26 October 2014 to11 May 2016. The date of 26 October 2014 was the date from which the police wereable to extract data from one of Mr Zhou's phones. That data related to him dealingin synthetic cannabis. In all likelihood however, Mr Zhou had been trading insynthetic cannabis from 8 May 2014 (when synthetic cannabis became an unlawfulpsychoactive substance) to 26 October 2014.[40] The calculations made by the police involved them placing to one side thefive and a half-month period Mr Zhou was probably actively dealing in syntheticcannabis. He therefore obtained a significant benefit when the police placed to oneside the five and a half-month period of likely offending that preceded26 October 2014.[41] Using the figure of $9.00 per kilogram, Mr Scott calculated over the82-week period that Mr Zhou's unlawful benefit was between $2,214,000 and$3,690,000. By adopting the lowest of these figures, the police accommodated theimpact of wholesale purchases.[42] Furthermore, by adopting the lowest calculation of $2,214,000, the police alsoaccommodated tolerances for any other factors in a way that benefited Mr Zhou.[43] The Judge was entitled to accept that the Commissioner's calculation wasreasonable. She was also entitled to conclude that Mr Zhou's attempts to argue thathe sold only 65.5 kilograms of synthetic cannabis was grossly misleading.Extrapolation[44] The submission that Mr Zhou's WeChat messages provided a more completerecord of his unlawful activity is in itself fundamentally flawed because the WeChatmessages were also incomplete.[45] The police obtained more than 140,000 lines of text data from Mr Zhou's phonefor the five-month period commencing 26 October 2014. The majority of that datareferred to him meeting people at pre-arranged locations in Christchurch.[46] The police were fully entitled to rely on that text data and extrapolate theinformation obtained from that data over the 82-week period that the police reliedupon when calculating Mr Zhou's unlawful benefit.Damiana[47] The argument advanced before us that Mr Zhou was profiting from the sale ofDamiana is very difficult to accept because:(a) it is totally inconsistent with Mr Zhou having pleaded guilty to havingsupplied hundreds of purchases with synthetic cannabis; and(b) the likely response of customers if in fact Mr Zhou was only sellingDamiana and not synthetic cannabis. It is striking that there was noevidence of text messages to show that customers were only receivingDamiana from Mr Zhou.[48] Notwithstanding Mr Zhou's attempts to critique the Commissioner'smethodology, he has failed to demonstrate that Doogue J erred when she concludedMr Zhou had failed to rebut the presumption in s 53 of the Act.[49] It is also striking that Mr Zhou's accumulated property during the period of hisalleged offending was significant. The total value of tainted property at the time ofthe hearing in the High Court as $1,842,355.74. That evidence is generally consistentwith the Commissioner's calculation of Mr Zhou's unlawful benefit from the sale ofsynthetic cannabis.[50] Mr Zhou has failed by a considerable margin to show that the High Court Judgeerred when she concluded he had not rebutted the presumption set out in s 53(2) of theAct.Second ground of appeal: double recovery[51] The second ground of appeal contends the Commissioner has unreasonablyrecovered twice from the benefit received by both Mr Zhou and Ms He. The profitforfeiture order made in relation to Ms He was $3,510,000.[52] Mr Wimsett relied on four cases from the House of Lords and theUnited Kingdom Supreme Court when he submitted that recovery under theNew Zealand Act should proceed on the basis that joint offenders are jointly andseverally liable.29[53] In R v Ahmad the United Kingdom Supreme Court explained that confiscationorders against joint beneficiaries of criminal offenders should be assessed under theProceeds of Crime Act 2002 (UK) on a joint and several basis.30[54] There is, however, a critical distinction between the Act with which we areconcerned and the United Kingdom's Proceeds of Crime Act. Under the latter statute,courts must undertake the assessment of the value of the benefit received by an29 R v May [2008] UKHL 28, [2008] 1 AC 1028 (HL); R v Ahmad; R v Fields [2014] UKSC 36,[2015] AC 299; R v Waya [2012] UKSC 51, [2013] 1 AC 294; and R v Harvey (Jack) [2015]UKSC 73, [2017] AC 105.30 R v Ahmad; R v Fields, above n 29, at [44] and [50].offender.31 In contrast, as we have emphasised, under the Act, Parliament has providedfor a statutory presumption as to the unlawful benefit obtained by those who areengaged in significant criminal activity.32[55] The distinction between the United Kingdom legislation and the regime set outin the Act was examined by Katz J in Commissioner of Police v Tang.33 The Judgeexplained under the Act, when an offender seeks to argue that they should be liable fora specific portion of the overall proceeds of a criminal enterprise, they are required toprove on the balance of probabilities:[30] (a) that the overall benefits derived from the significant criminalactivity were not received either solely by him or jointly byhim and one or more co-offenders (if they were, each co-offender will be liable for the full amount of such benefit);and(b) that he did not benefit at all or only benefitted to a specificamount (in which case he will only be liable for that amount).[56] Thus, unlike the position in the United Kingdom, if an offender in New Zealandfails to rebut the presumption in s 53 of the Act:34 then a Court would not be entitled to simply divide the benefit equallybetween the conspirators. That is because, in the absence of credible evidencefrom a respondent rebutting the statutory presumption, the benefit amount tobe included in the profit forfeiture order must be that stated in theCommissioner's application.[57] We adopt the reasons of Katz J in Tang. The rebuttable presumptions in s 53reflects Parliament's assessment that because offenders are usually the ones whopossess information relating to their profit sharing arrangements, they are required toshoulder the onus of disproving the Commissioner's assessment of their unlawfulbenefit.[58] There are two fundamental reasons why the second ground of appeal fails togain any traction.31 Proceeds of Crime Act 2002 (UK), s 6(5)(a).32 See Criminal Proceeds (Recovery) Act, s 53(1).33 Commissioner of Police v Tang [2013] NZHC 1750.34 At [31].[59] First, Mr Zhou has not proven he and Ms He were jointly benefiting from theoffending. On the contrary, the Commissioner's case firmly established that Ms Hewas supplying synthetic cannabis to Mr Zhou at $6.00 per gram. Mr Zhou was asupplier in a chain that included Ms He, and those who purchased from Mr Zhou,including wholesale purchasers such as members of the Mongrel Mob.[60] Second, there was no error involved when the Commissioner calculatedMr Zhou's benefit by focusing on the gross revenue he received. This is because, theNew Zealand statutory regime has been deliberately cast as a penal scheme designedto reduce the opportunity for a criminal to benefit from significant criminal offendingand to deter others from engaging in similar offending.[61] This last point was made by Winkelmann J in Solicitor-General ofNew Zealand v Rhodes,35 a case that was decided under the Proceeds of CrimesAct 1991, the legislation that preceded the Act. The Judge was required to decide if apecuniary penalty order could be reduced to reflect pecuniary penalty orderspreviously made in relation to Mr Rhodes' co-offenders. The Judge said the Courtshould not be "required to undertake an inquiry into profit sharing arrangements ofoffenders as if they were engaged in a legitimate commercial enterprise".36Winkelmann J also said she did not:[41] consider that the possibility of over-recovery is a reason to reducethe amount of the penalty order. As has been noted on numerous occasions,the Act is a penal statute. The scheme of the legislation is such that the penaltyimposed will often exceed any profit retained by the respondent. That that isso is made clear by the prohibition of a deduction of any expenses oroutgoings, and the inclusion in the calculation of benefit of any property ormoney that comes into the control of the defendant, whether or not thedefendant is entitled to a share of that property or money.[62] The analysis of the principles underpinning pecuniary penalty orders under the1991 Act applies with equal, if not greater force to the assessment of an offender'sbenefit from significant criminal offending under the Act.35 Solicitor-General of New Zealand v Rhodes HC Auckland CIV-2007-404-3773, 16 February 2010.36 At [40].Third ground of appeal: undue hardship[63] The third ground of appeal claims Doogue J failed to properly assessMr Zhou's claim under s 56 of the Act that he would suffer undue hardship unless allof his real estate property was excluded from being realised.[64] In Doorman v Commissioner, New Zealand Police37 and Duncan vCommissioner of Police,38 this Court affirmed that undue hardship under s 56 of theAct must entail more than hardship inherent in forfeiture.[65] In her judgment Doogue J observed there was "a remarkable paucity ofevidence in support of Mr Zhou's [hardship] application".39 Rather, the evidenceshowed his offending was highly premeditated and cynical.[66] Four properties were found to be tainted. Also tainted was the cash value ofthe cars and the cash found on termination of the police operation.[67] Mr Zhou did not raise any matters which went beyond the hardship that mostpeople would suffer if they had their property confiscated under the Act.[68] Mr Zhou also attempted to argue that the realisation orders would result indisproportionate consequences. That is not correct because, as we have found, theforfeiture orders were properly made and no undue hardship was demonstrated byMr Zhou in relation to the realisation orders.Result[69] The appeal is dismissed.37 Doorman v Commissioner, New Zealand Police [2013] NZCA 476, [2014] NZLR 173 at [70]citing Commissioner of Police v Doorman HC Nelson CIV-2010-442-000169, 15 December 2011at [49].38 Commissioner of Police v Duncan HC Tauranga CIV-2010-470-933, 11 October 2011 at [156],approved in Duncan v Commissioner of Police [2013] NZCA 477, (2013) 26 CRNZ 796 at [60].39 High Court judgment, above n 1, at [105].[70] The respondent is entitled to costs for a standard appeal on a Band A basis,together with usual disbursements.Solicitors:Rice Speir, Auckland for AppellantsCrown Solicitor, Christchurch for Respondent