COMMISSIONER OF POLICE v ZHAO [2019] NZHC 3261

COMMISSIONER OF POLICE v ZHAO [2019] NZHC 3261 [11 December 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-2456[2019] NZHC 3261BETWEEN COMMISSIONER OF POLICEApplicantAND JIANQI ZHAORespondentHearing: 11 December 2019Appearances: C Stubbington for ApplicantNo appearance for Respondent (no steps taken)Judgment: 11 December 2019JUDGMENT OF LANG J[on application for civil forfeiture orders]This judgment was delivered by me on 11 December 2019 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] In this proceeding the Commissioner of Police (the Commissioner) seeks civilforfeiture orders under the Criminal Proceeds (Recovery) Act 2009 (the Act) againstthe respondent, Mr Zhao. The orders are sought in relation to two quantities of cashfound at addresses with which Mr Zhao has a close connection.[2] Mr Zhao is a 32 year old Chinese citizen who arrived in New Zealand on28 November 2014 from Australia. He entered New Zealand on a visitor visa that wasvalid for one month. He failed to leave by 28 December 2014 and has therefore beenin New Zealand unlawfully since that date. The police have been unable to locate anyrecords relating to his employment, declared income or bank accounts in NewZealand.[3] Mr Zhao is currently in custody awaiting trial in the District Court on severaldrugs-related charges. The proceeding has been served on him, but he has taken nosteps to defend it. His latest advice to a process server who visited him on 4 December2019 is that he does not wish to take any further part in this proceeding. He also toldthe process server he believed the cash in question had already been forfeited.Background[4] The proceeding has its genesis in a police investigation into suspectedmethamphetamine offending in the Auckland area by an organised criminal syndicate.Intercepted communications led the police to believe that Mr Zhao was a leadingmember of the group.[5] On 17 January 2018, the police located two clandestine methamphetaminelaboratories at residential addresses in Mt Roskill and Mt Eden. Three members ofthe group were arrested at that time, but Mr Zhao was not present. A warrant wassubsequently issued for his arrest.[6] On 12 April 2018, the police searched the address occupied by Ms Yanxi Mo,Mr Zhao's girlfriend. During the search the police located a firearm and a total of$38,025 in cash. Ms Mo told the police that the cash had been given to her byMr Zhao. Mr Zhao subsequently confirmed to the police that the cash belonged tohim.[7] On 15 November 2018, the police located Mr Zhao at a motel and arrested him.On searching the motel unit, they located cash totalling $16,205. They also found afirearm, approximately 66 grams of methamphetamine, 13.8 grams of cannabis, a setof scales and various other items indicative of drug dealing activity. When the policesearched Mr Zhao's home address in Blockhouse Bay later the same day, they founda further 5.7 grams of methamphetamine, together with scales and ammunition.Decision[8] I am satisfied that the evidence adduced by the Commissioner discloses thatMr Zhao has been involved in significant criminal activity for the purposes of the Act.This takes the form of activity associated with the manufacture and distribution of theClass A drug methamphetamine and the supply of the Class C drug cannabis.1 It ishighly likely in my view that the cash found at both addresses represents the proceedsof past sales of drugs. As a result, it is tainted property in terms of the Act because itwas acquired directly or indirectly from significant criminal activity.2[9] I therefore make an assets forfeiture order under s 50 of the Act in relation toboth quantities of cash. That property vests in the Crown absolutely and is in thecustody and control of the Official Assignee.Lang JSolicitors:Crown Solicitor, Auckland1 Both activities are offences that carry maximum sentences greater than five years imprisonmentand therefore constitute "significant criminal activity" in terms of the definition contained in s 6of the Act.2 Criminal Proceeds (recovery) Act 2009, s 5.