Re Commissioner of Police [2022] NZHC 1451

Re Commissioner of Police [2022] NZHC 1451 [20 June 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-895[2022] NZHC 1451IN THE MATTER OF Criminal Proceeds (Recovery) Act 2009ANDIN THE MATTER OF An application by the COMMISSIONER OFPOLICE for an assets forfeiture orderrelating to specific property.Hearing: 20 June 2022Counsel: C Purdon for Commissioner of PoliceJudgment: 20 June 2022REDACTED JUDGMENT OF HINTON JThis judgment was delivered by me on 20 June 2022 at 4.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Meredith Connell, Auckland[1] On 12 May 2021, the Commissioner filed an on notice application forrestraining order (restraint application) and application for an assets forfeiture order(forfeiture application) under the Criminal Proceeds (Recovery) Act 2009 (the Act),1together with an affidavit of Marius Germishuyzen in support, dated 7 May 2021. Theapplications sought the restraint and forfeiture of $21,000 being the account proceedsof ANZ Bank Limited bank account [ redacted ], held in the name of Jordan Lim,transferred to the Police Trust account on 30 August 2019 (Funds).[2] At the first mention of the applications on 16 June 2021, Woolford J made arestraining order over the Funds as sought by the Commissioner in the restraintapplication.[3] Woolford J also directed the Registry to allocate a date in the duty Judge list inone year and one days' time for the hearing of the forfeiture application (as requiredby the Act given the Funds are not attributed to a respondent).[4] As a consequence, the matter was called before me today.[5] Counsel subsequently noticed that the applications incorrectly record the$21,000 as the proceeds of:(a) ANZ Bank Ltd bank account [redacted], held in the name of JordanLim.[6] The $21,000 is in fact the proceeds of:(a) ANZ Bank Ltd bank account [redacted], held in the name of JordanLin.[7] On 21 July 2021, Woolford J corrected the error in the restraining order inaccordance with r 11.10 of the High Court Rules 20161 Criminal Proceeds (Recovery) Act 2009, ss 37(2)(e) and 50(4).[8] The error, as noted in the preceding paragraphs, remains in the forfeitureapplication.[9] The Commissioner requests that I amend the forfeiture application, prior todetermining it, in accordance with s 47(1)(b) of the Act, by amending the descriptionof the property in respect of which the Commissioner seeks an assets forfeiture orderat paragraph l(a)(i) as follows:(a) $21,000 being the account proceeds of ANZ Bank Ltd bank account[redacted], held in the name of Jordan Lin, transferred to the PoliceTrust account on 30 August 2019 (Funds).[10] The Commissioner also seeks an amendment to include forfeiture of anyinterest earned on that sum since its transfer from Mr Lin on 30 August 2019.[11] The Commissioner has filed an amended forfeiture application, recording thecorrect bank account number and owner, dated 16 June 2022 (amended forfeitureapplication).Forfeiture[12] The following summary is taken from Mr Germishuyzen's affidavit dated7 May 2022.[13] In July 2019, an undercover Police officer arranged to purchasemethamphetamine and MOMA through social media applications from an unidentifiedperson, who would arrange for other people to complete the drug deals.[14] Ziyue Wei (Mr Wei), Hao Wu (Mr Wu) and Jingnan Hu (Mr Hu) wereidentified as people who completed the transactions and in August 2019 they werearrested and later convicted for the supply of methamphetamine and MDMA.[15] On 30 August 2019, Mr Lin transferred a total of $21,000 to the Police Trustaccount, in three sums of $10,000, $10,000 and $1,000. Mr Lin confirmed that theFunds were not his, and that he had no interest in them, but had merely been requestedto hold them on behalf of his associate, Mr Wei.[16] When spoken to, Mr Wei similarly disclaimed an interest in the Funds and toldPolice that they had their origin with the unidentified person, who had requestedMr Wei collect and distribute the Funds. The unidentified person also directed Mr Weito collect $4,700 cash in return for one ounce of methamphetamine on 28 August2019, and for which Mr Wei was arrested and later sentenced to imprisonment.[17] The same unidentified person had also previously arranged for Mr Wu tocomplete a number of drug deals on his or her behalf, including:(a) selling 15 grams of MOMA on 24 July 2019 for $500 cash;(b) selling 30 grams of MOMA on 2 August 2019 for $2,200 cash;(c) selling 1 gram of methamphetamine on 14 August 2019 for $200 cash;and(d) selling 56 grams of MDMA and 84 grams of methamphetamine on20 August 2019 for $17,500 cash.[18] All drug deals were arranged between the unidentified person as seller, and theundercover officer as purchaser.[19] Mr Wei told Police he was instructed by the unidentified person to pay $5,000to Mr Wu's co-defendant, Mr Hu, who had assisted in the drug deal on 20 August 2019,and that the money was for his legal fees. Mr Wei says he was also instructed to pay$2,000 to an unknown person, again at the instruction of the unidentified person.[20] Mr Wei then transferred the Funds into Mr Lin's bank account.[21] The Commissioner submits and I accept that Mr Germishuyzen's affidavitprovides the Court with sufficient evidence to conclude that on the balance ofprobabilities the Funds are tainted property.[22] Section 50 of the Act, provides:50 Making assets forfeiture order(1) If, on an application for an assets forfeiture order, the High Court issatisfied on the balance of probabilities that specific property istainted property, the Court must make an assets forfeiture order inrespect of that specific property.[23] Tainted property is defined in s 5(1) of the Act, as:tainted 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[24] Significant criminal activity, in turn, is defined in s 6 of the Act as:6 Meaning of significant criminal activity(1) In this Act, 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.[25] The significant criminal activity underlying the Commissioner's forfeitureapplication is the supply of class A and B controlled drugs, as identified inMr Germishuyzen's affidavit.[26] The Funds have their origin with the unidentified person, who orchestratedthose drug deals with an undercover officer, while arranging for persons lower downthe food chain to complete the transactions. The evidence invites the inference thatthe unidentified person was involved in drug dealing on a commercial scale, and withpersons other than the undercover police officer.[27] The Commissioner submits and I accept that, given the evidence of provendrug offending by the unidentified person and the likelihood the unidentified personwas involved in further drug dealing offending, and given the Funds find their sourcewith the unidentified person, the Court can be satisfied that on the balance ofprobabilities the Funds are tainted property, being the proceeds of drug offending.[28] Accordingly, it is appropriate to make an asset forfeiture order in respect of theFunds.[29] The Commissioner has not identified any person who might possess an interestin the Funds, and therefore this proceeding identifies no respondent.[30] Sections 19(b) and 46(b) of the Act and rule 19.9(2) of the High Court Rules2016 recognise that no respondent is required for an originating application broughtunder the Act.[31] The Commissioner, being only required to serve an application for a civilforfeiture order on persons who to the Commissioner's knowledge have an interest inthe proposed forfeited property (including, if applicable, a respondent), has not servedthe forfeiture application on any person.[32] I accept that is appropriate. There is no identifiable person who has an interestin the Funds. Both Messrs Wei and Lin have disclaimed interests in the funds. Noother person who might possess an interest in the Funds is able to be identified. In afurther affidavit sworn on 17 June 2022, Mr Germishuyzen confirms he has still notidentified any such person.[33] Section 37(2)(e) of the Act provides that a restraining order that relates toproperty in which no person has claimed an interest expires on the date that therelevant application for a forfeiture order, which includes an application for an assetsforfeiture order, is determined. That provision also provides that the application for aforfeiture order cannot be determined earlier than one year after the making of therestraining order.[34] Section 50(4) of the Act provides that the Court may not make an assetsforfeiture order in relation to property that no person has claimed an interest in, unlessthe Court is satisfied that a restraining order was earlier made in relation to the sameproperty, the restraining order has been in place for a period of at least one year andthat the Commissioner has contacted or made all reasonable efforts to contact anyperson the Commissioner believes may have an interest in the property.[35] As a year has passed since the making of the restraining order, there is noidentifiable respondent or interested party, and on the basis otherwise set out above, itis appropriate to now make orders with regard to the forfeiture application and theapplication to amend the forfeiture application.Orders[36] Accordingly, I make the following orders:(a) amendment of the application for assets forfeiture order, dated 12 May2021, so as to correctly describe the property to be forfeited at l(a)(i),and to include any interest in that forfeiture, as follows:(i) $21,000 being the account proceeds of ANZ Bank Ltd bankaccount [redacted], held in the name of Jordan Lin, transferredto the Police Trust account on 30 August 2019, and any interestearned thereon; and(ii) an assets forfeiture order as per the amended forfeitureapplication dated 16 June 2022.___________________Hinton J