THE COMMISSIONER, THE NEW ZEALAND POLICE v SONG & MA [2018] NZHC 460

THE COMMISSIONER, THE NEW ZEALAND POLICE v SONG & MA [2018] NZHC 460 [20 March 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV-2014-485-9648[2018] NZHC 460UNDER the Criminal Proceeds (Recovery)Act 2009IN THE MATTER of an application pursuant to sections 22,24 and 25BETWEEN THE COMMISSIONER, THE NEWZEALAND POLICEApplicantAND XIAOYUN SONGFirst RespondentSHAOYAN MASecond RespondentWESTPAC NEW ZEALAND LIMITEDInterested PartyHearing: 9 March 2018 (Teleconference)Counsel: E M Light for ApplicantA R Davie for RespondentsFinal Judgment: 20 March 2018FINAL JUDGMENT OF NICHOLAS DAVIDSON J[1] Interim judgment was delivered on 31 August 2017.11 The Commissioner, The New Zealand Police v Song & Ma [2017] NZHC 2104.[2] The interim judgment left open the quantum of the profit forfeiture order whichshould be made, and a mechanism for the sale of property to which the assets forfeitureorder and profit forfeiture order would apply in their different ways.[3] The Court issued further Minutes of 31 October 2017, 2 November 2017,15 November 2017 and 7 February 2018.[4] Mr Tunley's supplementary affidavit of 22 December 2017 addressed aresidual issue which may have altered the quantum of the profit forfeiture order, if theunlawful benefit obtained by the respondents was recalculated downwards. Havingread Mr Tunley's supplementary affidavit, and Mr Davie on behalf of Mr Ma havingnothing to say about that, and without instructions from Ms Song, I am satisfied thatthe profit forfeiture order as sought by the Commissioner is correct in the sum of$272,145.80.[5] At a teleconference with counsel on Friday 9 March 2018, Mr Davie did notconsent to, but made no further submissions, with regard to the profit forfeiture sought.[6] I had also left open the question of undue hardship in case, following theinterim judgment, anything had arisen which might warrant an application in thatregard. Mr Davie made no further application.[7] I was advised that Ms Song is in China. I was told that Mr Chiu of counselmay be representing her, but at the teleconference on 9 March 2018, I was advised byMr Davie that he had received an email from Mr Chiu to say that he had noinstructions. No appearance was entered on behalf of Ms Song through Mr Chiu, andMr Davie has no instructions from her.Disposition[8] The final judgment of the Court is thus that a profit forfeiture order is made inthe sum of $272,145.80, made up of $162,109.91 from unlawful seafood sales, andbenefit overpayments in the sum of $110,035.89. This final judgment stands with theinterim judgment of 31 August 2017 as to the assets forfeiture order made in thatinterim judgment.[9] It is likely that ancillary orders may be required, and there remains the questionof costs. Ms Light was requested to file a draft order, after discussion with Mr Davie.That is to hand and reflects the interim and final judgment. It is convenient thereforeto reach final judgment in terms of the draft order attached and I so order.[10] I reserve leave for a costs application and any other application necessary toeffect the interim and/or final judgment...Nicholas Davidson JSolicitors:Crown Solicitor, Wellington,SJ BurstonTreadwells, WellingtonDRAFT ORDERTo the Commissioner, the New Zealand PoliceAnd to Xiaoyun Song, the first respondentAnd to Shaoyan Ma, the second respondentAnd to Westpac New Zealand Limited, the interested partyAnd to the Official Assignee1. The applications for assets and profit forfeiture orders made by theCommissioner on 2 May 2016 were determined by the Honourable JusticeDavidson on 31 August 2017 and 19 March 2018, respectively.2. The determination was made following a hearing on 10, 11, 12 May 2016 and18 July 2016 at which the following persons appeared: E M Light for theapplicant and A Davie for the first and second respondents.3. As a result of the determination, the High Court made the following orders:Assets forfeiture order4. The property to which this order applies –(a) vests in the Crown absolutely; and(b) is to be under the Official Assignee's custody and control.5. This order applies to the following property, namely:(a) the residential property located at 42F Apu Crescent, Lyall Bay,Wellington, described under certificate of title WN38B/574, registeredin the name of Xiaoyun Song, other than the rights, title and interest ofWestpac New Zealand Limited under the registered mortgage number9175681.2 (Apu Crescent).6. The court made the following declarations or directions: That Apu Crescent istainted property, owned by the first and second respondents, and thus, asidefrom the debt to Westpac, it is forfeit to the Crown in the sum of $162,109.91.Profit forfeiture order7. As a result of the determination, the High Court made the following order:(a) the value of the benefit determined in accordance with section 53 of theAct is, as the case requires, $272,145.80 minus the value of the propertylisted at paragraph 5(a);(b) the maximum recoverable amount is $272,145.80 minus the value ofthe property listed at paragraph 5(a) and the direction in paragraph 6above in which the respondents have interests and which the Courtorders are forfeit pursuant to the assets forfeiture application above; and(c) the following property is to be realised:(i) the remainder of the item of property listed in paragraph 5(a)above in which the respondents have interests and which are notforfeit pursuant to the assets forfeiture order above; and(ii) a 2004 Toyota Landcruiser, registration number HJY826,including ignition keys, registered in the name of Shaoyan Ma.8. The issue of costs is reserved.Date:Signature:Deputy Registrar