COMMISSIONER OF POLICE v LAU [2019] NZHC 3343

COMMISSIONER OF POLICE v LAU [2019] NZHC 3343 [17 December 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2014-404-003295[2019] NZHC 3343UNDER the Criminal Proceeds (Recovery) Act 2009BETWEEN COMMISSIONER OF POLICEApplicantAND YAT MING LAUFirst RespondentSHUO CHANGSecond RespondentHearing: 29-30 October 2019Counsel: MR Harborow and HE Macdonald for ApplicantMN Pecotic for Second RespondentJudgment: 17 December 2019JUDGMENT OF DOWNS JThis judgment was delivered by me on Tuesday, 17 December 2019 at 11 ampursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:Meredith Connell, Auckland.MN Pecotic, Auckland.The case[1] Yat Ming Lau imported pseudoephedrine to New Zealand. He was charged,convicted and imprisoned. The Commissioner of Police sought related profit and assetforfeiture orders against him. The Commissioner and Mr Lau have since settled; theyseek approval of that under the Criminal Proceeds (Recovery) Act 2009.1 Shuo Changwas in a relationship with Mr Lau. The Commissioner seeks profit and asset forfeitureorders against Ms Chang on the basis she too benefitted from Mr Lau's significantcriminal activity. Ms Chang denies this.Background[2] ContacNT is rich in pseudoephedrine, a Class B controlled drug. In 2013, aNew Zealand Customs operation revealed Mr Lau and others were importingContacNT. Between July and October that year, Customs intercepted eight packagescontaining 11.4 kilograms of ContacNT. Customs did not intercept 14 relatedpackages.[3] Mr Lau was arrested October 2013. He was charged with nine importationoffences: one for each intercepted package; and a representative charge for the 14un-intercepted packages. Mr Lau was found guilty of five charges: the representativecharge and four specific package charges.[4] Judge Sinclair sentenced Mr Lau to seven years' imprisonment.2 The Judgeconcluded the representative charge concerned 1.45 kilograms of ContacNT—theaverage weight of the intercepted packages.3 The Judge found Mr Lau imported atleast 5.5 kilograms of ContacNT.[5] The Commissioner seeks a profit forfeiture order of $2,115,000. This is thelikely value of the pseudoephedrine across all 22 packages, which are believed to havecontained 31 kilograms of that substance. The Commissioner relies on financial1 The Act.2 R v Lau [2015] NZDC 24480 at [50].3 At [36].evidence not available to the criminal court, and the civil, non-conviction-basedregime created by the Act.[6] The financial evidence is this. Between December 2007 and May 2014, morethan $1.3 million was deposited to the bank accounts of Mr Lau and Ms Chang.4 Muchwas cash. $679,316.81 went to Ms Chang's bank accounts. Again, much was cash:$442,659.31. Another $194,976.50 came into Ms Chang's bank accounts from financecompanies and money remitters. In the same period, Mr Lau and Ms Chang spent$293,285.17 on jewellery and luxury items. Ms Chang's credit card was used to payfor $191,216.92 of these purchases. Mr Lau's declared annual income was less than$50,000. Ms Chang's was less than $40,000.[7] The Commissioner contends Ms Chang actively assisted Mr Lau's criminalactivity. Alternatively, the Commissioner argues these sums are so large Ms Changmust have known what Mr Lau was doing.The property[8] Four pieces of property are implicated.[9] First, restrained funds following the sale of realty at Richard Farrell Avenue,Remuera. This property was owned by the Mings Trust of which Mr Lau was settlor;a trustee (with his parents); a discretionary beneficiary; and final beneficiary.Richard Farrell Avenue's purchase was funded by Ms Tam, Mr Lau's mother. OnDecember 2012, the property was refinanced with two loans. The Commissionercontends $72,920 from significant criminal activity was used to service both.[10] Second, a property at Rukutai Street, Orakei.5 Ms Chang is its registeredowner. Ms Chang bought Rukutai Street from Mr Lau and his family in March 2012.Ms Chang paid $490,000, including $151,533 by bank cheque. The Commissionercontends this cheque involved the transfer of $150,000 from Mr Lau to Ms Changthrough an intermediary, Mr Han. Ms Chang denies this.4 Criminal Proceeds (Recovery) Act 2009, s 5, defines "relevant period of criminal activity" as theseven-year period prior to an application being made.5 Rukutai Street.[11] Third, a BMW car. The BMW is registered to Ms Chang. In April and May2014, Ms Chang made two payments totalling $25,000 to Mega Trade (AKL) Ltd, acompany owned by Mr Lau.6 Ms Chang made both using funds from overseas. On13 June 2014, Mega Trade transferred the BMW to Ms Chang. The Commissionerargues this constitutes an attempt by Mr Lau and Ms Chang to put the BMW beyondthe Crown's reach. Ms Chang denies this. And, she says she bought the BMW usingmoney from her parents in China.[12] Fourth, cash found at Mr Lau's business premises: NZ$4,000 and US$3,500.Settlement with Mr Lau[13] The proposed settlement entails:(a) An assets forfeiture order in relation to:(i) The restrained funds arising from the sale ofRichard Farrell Avenue and related interest, less $100,000.This sum is to be returned to Ms Tam.(ii) Both sums of cash and related interest.(b) Mr Lau's consent to forfeiture of any interests he has in Rukutai Streetand the BMW (if the Commissioner establishes he has such interests).(c) Costs to lie where they fall.[14] Section 95 of the Act provides the High Court must approve settlement ifsatisfied it is consistent with the purposes of the Act, and the overall interests ofjustice.7 Muir J summarised the approach the Courts have taken to s 95 inCommissioner of Police v Wellington:8[11] In enacting s 95, Parliament expressly empowered the Commissionerto enter into settlements with respondents (and interested parties) relating to6 Mega Trade.7 Criminal Proceeds (Recovery) Act, s 95(3).8 Commissioner of Police v Wellington [2018] NZHC 2502 at [11]–[16].the forfeiture of assets. I accept the proposition in the parties' jointmemorandum that Parliament is likely to have had in mind the significantcosts associated with a civil litigation and the benefits to all parties if suchproceedings could be resolved in a timely and just way. There is a strongpublic interest in litigation of this nature being brought to a prompt conclusionprovided the settlement reflects the likely costs and risks inherent in theunderlying litigation. Parliament has entrusted the Court with supervisoryjurisdiction aimed at ensuring any settlements reached are consistent with itsintent in enacting the legislation and with the overall interests of justice.[12] Section 95(3) directs the Court to consideration of the purposes of theAct and the overall interests of justice.[13] The primary purpose of the Act is contained in s 3(1). That is theestablishment of a regime for forfeiture of property that has been deriveddirectly or indirectly from significant criminal activity or that represents thevalue of a person's unlawfully derived income. Ancillary purposes are to"eliminate the chance" for persons to profit from undertaking or beingassociated with significant criminal activity (s 3(2)(a)) and to "deter"significant criminal activity (s 3(2)(b)).[14] The overall interests of justice requirement predicates a broad inquiry.As this Court has previously said, although it is proper that it should have asupervisory jurisdiction, it is "equally important that the Court carry out abroad inquiry and acknowledge, where appropriate, that settlements can be inthe interests of justice, bearing in mind the savings of time and cost and thelitigation risks to the parties".[15] The Court has recognised that decisions to settle proceedings under theAct may be made on economic and pragmatic grounds and often reflect "acommon-sense compromise" between the parties.[16] If the Court is satisfied in respect of the two matters identified in s 95(3)then it must approve the settlement.[15] I am satisfied settlement should be approved.[16] Most of the assets attributed to Mr Lau are to be forfeited. $625,705 will go tothe Crown, including 86 per cent of the funds from the sale of Richard Farrell Avenue.Settlement gives effect to the statutory purpose of eliminating opportunity for profitfrom significant criminal activity. Settlement is in the interests of justice because itrecognises Ms Tam's potential claim. As will be recalled, Ms Tam—Mr Lau'smother—funded the purchase of Richard Farrell Avenue. And, settlementsignificantly reduces the time and cost otherwise needed to resolve this limb of thecase. As Muir J noted in Wellington, there is a strong public interest in litigation ofthis nature being resolved promptly and efficiently.Ms Chang[17] The Commissioner seeks a profit forfeiture order against Ms Chang;alternatively, asset forfeiture orders.Profit forfeiture orders[18] Section 55 of the Act states:55 Making profit forfeiture order(1) The High Court must make a profit forfeiture order if it is satisfied on thebalance of probabilities that—(a) the respondent has unlawfully benefited from significant criminalactivity within the relevant period of criminal activity; and(b) the respondent has interests in property.(2) The order must specify—(a) the value of the benefit determined in accordance with section 53;and(b) the maximum recoverable amount determined in accordance withsection 54; and(c) the property that is to be disposed of in accordance withsection 83(1), being property in which the respondent has, or istreated as having, interests.(3) Subsections (1) and (2) are subject to section 56.(4) A profit forfeiture order is enforceable as an order made as a result ofcivil proceedings instituted by the Crown against the person to recover adebt due to it, and the maximum recoverable amount is recoverable fromthe respondent by the Official Assignee on behalf of the Crown as a debtdue to the Crown.[19] The phrase "relevant period of criminal activity" creates a seven-year windowfrom the date of the application for the profit forfeiture order, here 12 December 2007until 26 May 2014.9[20] The section requires the Court to determine:9 Or earlier restraining order application; see s 5(1).(a) On the balance of probabilities, whether Ms Chang unlawfullybenefitted from significant criminal activity during the relevant period.(b) The value of that benefit (in accordance with s 53).(c) The maximum recoverable amount (in accordance with s 54).(d) What property should be realised to meet the order; and whetherproperty should be excluded due to undue hardship.Unlawful benefit?[21] Section 7 of the Act provides:In this Act, unless the context otherwise requires, a person has unlawfullybenefited from significant criminal activity if the person has knowingly,directly or indirectly, derived a benefit from significant criminal activity(whether or not that person undertook or was involved in the significantcriminal activity).[22] As will be apparent, the Commissioner does not need to prove Ms Chang hasparticipated in the significant criminal activity, only she knowingly benefitted fromit.10[23] The Commissioner places weight on the dissonance between the declaredincomes of Mr Lau and Ms Chang, and funds entering their bank accounts. Between2008 and 2014, Mr Lau's average, annual taxable income was $44,933. Between 2008and 2013, Ms Chang's average, annual taxable income was $38,341. However,between December 2007 and May 2014, Mr Lau and Ms Chang received$1,328,567.88 in unexplained funds. $679,316.81 entered Ms Chang's accounts. Asobserved, $442,659.31 of this comprised cash.[24] The Commissioner also places weight on the amount spent by Mr Lau andMs Chang on jewellery and luxury items. As noted earlier, the pair spent $293,285.17this way between December 2007 and May 2014. Ms Chang's credit card was used10 Wilful blindness is enough: Commissioner of Police v Wong [2015] NZHC 158 at [77], citingVincent v Commissioner of Police [2013] NZCA 412.to pay for approximately two-thirds. The Commissioner says this spending isirreconcilable with declared income. Luxury spending stopped shortly after Mr Lau'sarrest in October 2013. The Commissioner says this is no coincidence.[25] Ms Chang testified. Ms Chang said she and Mr Lau were still in the earlystages of their relationship when he was arrested, and she did not know he wasimporting drugs. Ms Chang said the deposits to her bank accounts reflected five lawfulsources:(a) She would buy her friends luxury items, and they would reimburse herby depositing cash.(b) She received money from her parents, who live in China.(c) She frequently purchased items for the BB Club, Mr Lau's business,because she was a manager. She would be reimbursed by cheque orcash.(d) Investments.(e) Loan repayments from Mr Lau's brother, Yat Fin Lau, of $190,000.[26] On behalf of Ms Chang, Ms Pecotic places weight on travel records. Theseshow Ms Chang was out of the country for long periods during Mr Lau's offending(including a 10-month trip to China from November 2012). Ms Pecotic submitsMs Chang's travel was consistent, and she continued to travel after Mr Lau's arrest.Nothing suggests a spike in travel which might indicate a sudden influx of money dueto significant criminal activity.[27] I find it (much) more likely than not Ms Chang unlawfully benefitted fromsignificant criminal activity. I find Ms Chang knew Mr Lau was repeatedly importingpseudoephedrine to New Zealand, and helped conceal his likely interests in property.I reject Ms Chang's contrary testimony.[28] First, the dissonance between declared income and bank deposits is striking,especially as much was cash.[29] Second, Ms Chang's expenditure on jewellery and luxury items isirreconcilable with her declared income. This spending stopped shortly after Mr Lau'sarrest.11 The significance of this is self-evident.[30] Third, Ms Chang's explanations do not withstand scrutiny. Her claims shereceived reimbursements for luxury purchases for others, and BB Clubreimbursements, do not explain how so much money came into her accounts.Mr Houng Lee, a financial analyst with Police, assessed both aspects. Mr Lee said$51,530 of deposits may be attributable to luxury good reimbursements, and$62,035.94 potentially attributable to BB Club reimbursements. This leaves $566,750unaccounted for. No serious challenge was made to this evidence. Indeed, incross-examination, Ms Chang accepted the $51,530 figure accounted for all significantspending on behalf of others. Moreover, a friend of Ms Chang's gave evidence thatwhile Ms Chang did buy some luxury goods for friends, Ms Chang also bought manyfor herself.[31] Ms Chang's claim she received funds from her parents lacks support.Ms Chang provided the Commissioner documents from finance companies showingfunds sent to her from China. However, all involve transactions after Mr Lau's arrest.In any event, these documents do not show who sent the money.[32] Ms Chang's parents did not testify. Ms Chang said she did not wish to troublethem with this case, and she had given the Commissioner their contact details. Thelatter is inaccurate. Ms Chang provided the Commissioner their identification details,not more. The Commissioner's attempts to contact them were unsuccessful. IfMs Chang's parents were a material source of her wealth, it is odd they did not say so.Absence of related documentary evidence is also odd.[33] Ms Chang's claim she had large investments also lacks support. Ms Changproduced a document showing the existence of a term deposit in 2003 for $160,000.11 The last purchase was on 31 December 2013.However, in cross-examination, Ms Chang accepted this money had been spent by2007 (May of that year is the beginning of the relevant period).[34] Ms Chang's claim she loaned $190,000 to Mr Lau's brother, including$150,000 in one sum, emerged in cross-examination. Ms Chang did not assert this ineither of her two affidavits.12 Ms Chang said a handwritten agreement existed inrelation to the $150,000 loan, but she no longer had this. Ms Chang acknowledgedshe did not specify the term of this loan or say what interest was payable. Mr Leefound some evidence to support a possible 2012 loan by Ms Chang to Mr Lau'sbrother, but this was confined to $35,000.[35] Ms Chang said the money she loaned Mr Lau's brother came from her parents.This proposition enjoys no support either.[36] Fourth, Ms Chang has had a long and close association with Mr Lauirrespective of their later, intimate relationship. The two met 2002 and quicklybecame, on Ms Chang's evidence, "good friends". From about 2003, Ms Chang livedat Richard Farrell Avenue (excluding periods she spent in China). Contrary toMs Chang's evidence, Mr Lee's financial analysis implies Ms Chang did not payMr Lau rent. In 2004, Ms Chang went to China with Mr Lau. In 2006, a MercuryEnergy power account described Ms Chang as Mr Lau's "wife". From 2007,Ms Chang worked at the BB Club, Mr Lau's business. In 2011, the two formed acompany. Between October 2009 and April 2014, $187,000 was transferred betweenthe bank accounts of Ms Chang and Mr Lau. Consequently, the precisecommencement of Ms Chang's and Mr Lau's intimate relationship is not important,still less indicative of when Ms Chang knew about Mr Lau's offending.[37] Put another way, even if Ms Chang is correct the intimate relationship did notbegin much before Mr Lau's arrest (October 2013)—a proposition of dubiousveracity—Ms Chang has long been Mr Lau's close friend. This provides support forMs Chang's knowledge of Mr Lau's significant criminal activity.12 Each is sparse.[38] Fifth, Ms Chang helped Mr Lau conceal likely interests in both Rukutai Streetand the BMW. Ms Chang bought Rukutai Street from Mr Lau and his family on30 March 2012. She partially funded the purchase using a bank cheque for $151,533.$150,000 entered Ms Chang's bank account that same day. The balance had beenmodest: $502.85. Le Han deposited these funds. On 5 April 2012, Mr Lau bought abank cheque for $150,000 payable to Mr Han.[39] Ms Chang said Mr Lau contributed no money to the purchase. Rather, she hadearlier loaned Mr Lau "roughly" $150,000, and he repaid this by repaying Mr Han the$150,000 Mr Han had deposited to Ms Chang's account. However, Mr Han did nottestify; no record exists of Ms Chang's alleged loan(s) to Mr Lau; and, the first banktransfer of funds from Ms Chang to Mr Lau was in June 2012—after Rukutai Street'spurchase.[40] Ms Chang bought the BMW on 13 June 2014, so, well after Mr Lau's arrest.In April and May that year, Ms Chang made two payments totalling $25,000 to acompany owned by Mr Lau.13 Bank narrations refer to the BMW. Ms Chang madeboth using funds from overseas. Though Ms Chang says the money came from herparents, there is no evidence to support this, documentary or otherwise. Ms Changinsured the BMW and another car. She listed Mr Lau as the driver for the BMW, butlisted herself and Mr Lau as the other car's drivers.[41] Sixth—and contrary to Ms Pecotic's submission—Ms Chang's travel patternshave changed since 2013. Ms Chang's long China trips stopped. Indeed, Ms Changdid not travel in 2015 or 2016. These changes support the conclusions Ms Chang'sspending has been funded by Mr Lau's significant criminal activity, and Ms Changhad knowledge of that.[42] The Commissioner also contended Ms Chang helped Mr Lau importpseudoephedrine. Ms Chang was in China when the packages of ContacNT wereimported here. All came from China. Fourteen SIM cards were found in Mr Lau'sand Ms Chang's bedroom, including three inside a Louis Vuitton purse and another in13 Mega Trade.a Louis Vuitton handbag. In September 2013, Ms Chang received a $10,000 depositfrom one of Mr Lau's co-offenders, Jia Sun.[43] It is possible Ms Chang helped Mr Lau to import pseudoephedrine. However,the evidence does not establish it is more likely than not Ms Chang did so.14[44] I summarise. I find Ms Chang unlawfully benefitted from Mr Lau's significantcriminal activity, as she knew of it; benefitted from it; and helped conceal Mr Lau'slikely interests in property. But, I do not accept Ms Chang helped importpseudoephedrine.Value of the unlawful benefit?[45] Because the Commissioner has proved Ms Chang has unlawfully benefittedfrom significant criminal activity, that benefit is presumed to be the figure stated bythe Commissioner in his application: $2,115,000.15 The presumption is rebuttable onthe balance of probabilities.[46] Ms Chang emphasises the criminal court found Mr Lau imported at least5.5 kilograms of ContacNT, a much lower quantity than the 31 kilograms on whichthe Commissioner's figure is based. True, but this does not help. The criminal courtdid not have the benefit of the financial evidence. And as observed, the Act creates acivil, non-conviction-based regime. Consequently, Ms Chang must disprove theCommissioner's figure. Her submission does not engage such proof.[47] Ms Chang notes drug importers sometimes conduct dummy or "dry-runs", inwhich no drugs are sent in the test package. Mr Jamieson, a customs officer, agreed.But, this does not help Ms Chang either. This does no more than establish thepossibility of a dummy run; it does not make it more likely than not a dummy runoccurred in this case. The onus is on Ms Chang to prove, and to the civil standard.14 I place no weight on a photograph adduced by the Commissioner from a memory card found atRichard Farrell Avenue. The photograph shows pseudoephedrine concealed in a hollowed-outbook, replete with an apparently female finger. The photograph is dated 21 June 2011. TheCommissioner says the finger must be Ms Chang's, because Mr Lau's then partner was not in thecountry. I disagree. The finger could be Ms Chang's—or that of any other female.15 Criminal Proceeds (Recovery) Act, s 53.[48] Finally, Ms Chang contends the use of an average weight from the caughtpackages across the uncaught ones is speculative. This submission may have purchasein a criminal case, in which the prosecution must prove the charge beyond reasonabledoubt. However, the submission does not address the onus on Ms Chang to disprovethe Commissioner's figure. Katz J captured the point well in Commissioner ofPolice v Tang:16 The figure of $360,000 is presumed to be the correct benefit amount unlessand until Mr Tang proves otherwise. Mr Tang cannot do this by simply"critiquing" aspects of the Commissioner's methodology as, ultimately,precisely how the Commissioner calculated his benefit figure is irrelevant.Mr Tang must adduce his own evidence to establish, on the balance ofprobabilities, that the true benefit figure was less than $360,000.[49] The value of the unlawful benefit remains $2,115,000.Maximum recoverable amount?[50] Section 54 provides the maximum amount recoverable in a profit forfeitureorder is the value of the unlawful benefit, less "the value of any property forfeited tothe Crown as a result of an assets forfeiture order made in relation to the samesignificant criminal activity to which the profit forfeiture order relates."17 This isdesigned to prevent double recovery on the Commissioner's part.18[51] The settlement with Mr Lau involves asset forfeiture orders of $625,705.66.His case concerns "the same significant criminal activity" to which Ms Chang's "profitforfeiture order relates".19 So, the statute implies the "maximum amount recoverable"is "the value of the unlawful benefit"—$2,115,000—less $625,705.66.[52] The Commissioner contends the value of Mr Lau's asset forfeiture ordersshould not be deducted, a submission supported by observations of Nation J inCommissioner of Police v Musson.20 Nation J accepted s 54(1) "was designed to avoid16 Commissioner of Police v Tang [2013] NZHC 1750 at [39].17 Criminal Proceeds (Recovery) Act, s 54(1)(b).18 Simon France (ed) Adams on Criminal Law – Sentencing (online looseleaf ed, Thomson Reuters)at [CP54.01].19 Criminal Proceeds (Recovery) Act, s 54(1)(b).20 Commissioner of Police v Musson [2016] NZHC 43 at [35].double counting in the determination of a profit forfeiture order".21 However, theJudge was troubled at the prospect one offender might retain the benefits of crimethrough deduction of the value of co-offender's asset forfeiture order:22 There should be implied into s 54(1)(b) the words required to ensure that aperson who has benefited from significant criminal activity is not able to retainsome or all of the value of those benefits through deduction of the value ofproperty which the Commissioner is recovering through an assets forfeitureorder against another person who also, albeit separately, benefited from thesignificant criminal activity.The legislation should not be applied in a way that allows a number ofrespondents to bring into account against the value of what they might haveto forfeit to the Commissioner, the amount which the Commissioner isrecovering from one person in relation to the benefits that person obtained andthe property which that person owns. Section 54(1)(b) should thus be appliedas if it reads:Deducting from that the value of any property forfeited to the Crown asa result of an assets forfeiture order made in relation to property ownedby the respondent and in relation to the same significant criminalactivity to which the profit forfeiture order relates.[53] I acknowledge the Judge's concern. One of the Act's purposes is to "eliminatethe chance for persons to profit from significant criminal activity".23 Another isthe deterrence of significant criminal activity.24 The Act clearly contemplates jointand several liability, not an accounting-style approach.[54] On the other hand, s 54 does envisage the deduction of the value of anyproperty forfeited to the Crown "in relation to the same significant criminal activity towhich the profit forfeiture order relates". Ms Chang benefitted from Mr Lau'ssignificant criminal activity, not her own. And, there is little prospect Ms Chang willretain the benefit of significant criminal activity because the figure chosen by theCommissioner is the value of all pseudoephedrine imported, and the net figure($1,489,294.34) is appreciably more than the sum deposited to the bank accounts ofMr Lau and Ms Chang in the relevant period ($1,328,567.88).[55] I deduct $625,705.66. The maximum recoverable amount is $1,489,294.34.21 Commissioner of Police v Musson, above n 20, at [33].22 At [34]–[35].23 Criminal Proceeds (Recovery) Act, s 3(2)(a) (emphasis added).24 Section 3(2)(b).Which property should be realised?[56] It is common ground Ms Chang is the registered owner of Rukutai Street andthe BMW. Mr Lau's likely interest in both is addressed by his consent to forfeiture.This leaves undue hardship. Section 56 provides:56 Exclusion of respondent's property from profit forfeiture orderbecause of undue hardship(1) The High Court may, on an application made by the respondent before aprofit forfeiture order is made, exclude certain property from being ableto be realised under section 55(2)(c) if it considers that, having regard toall of the circumstances, undue hardship is reasonably likely to be causedto the respondent if the property were realised.(2) The circumstances the Court may have regard to under subsection (1)include, without limitation,—(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 profitforfeiture order; 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.(3) After a profit forfeiture order is made, nothing in this section prohibits arespondent from realising the property that was excluded from being ableto be realised under section 55(2)(c) if—(a) after realising other property under that section there is still a debtowed to the Crown under section 55(4); and(b) the respondent agrees to realise the excluded property in order to payall or part of that debt.[57] Ms Chang contends she will suffer significant hardship, especially in relationto Rukutai Street. She purchased it as an investment and will lose the opportunity ofsignificant capital gain in the event of forfeiture.[58] I do not consider loss of an investment property amounts to undue hardship.Undue hardship requires hardship going beyond that which would ordinarily be causedto a respondent from forfeiture. Even forfeiture of a family home does not necessarilysuffice.25 Mr Lau partially funded Rukutai Street's purchase, and Ms Chang happily25 See, for example, Commissioner of Police v de Wys [2018] NZHC 609 at [60]–[61].enjoyed the benefits of his significant criminal activity. Forfeiture is entirelyconsistent with the Act's purposes. So too forfeiture of the BMW. Any otherconclusion would be pusillanimous.Asset forfeiture order?[59] My conclusions imply Rukutai Street and the BMW are tainted property.However, it is unnecessary to address the Commissioner's application for assetforfeiture orders as it was advanced as an alternative to the application for a profitforfeiture order.Orders[60] I approve settlement through orders at [13].[61] I make a profit forfeiture order against Ms Chang:(a) The value of the benefit of the significant criminal activity is$2,115,000.(b) The maximum recoverable amount is $1,489,294.34.(c) Rukutai Street and the BMW vehicle may be disposed of in accordancewith s 83(1) to satisfy the profit forfeiture order...Downs J