COMMISSIONER OF POLICE v WONG [2022] NZHC 1337

COMMISSIONER OF POLICE v WONG [2022] NZHC 1337 [8 June 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-726[2022] NZHC 1337UNDER the Criminal Proceeds (Recovery) Act 2009IN THE MATTER of applications under sections 21, 24, 52 and55BETWEEN THE COMMISSIONER, THE NEWZEALAND POLICEApplicantAND HENRY BARRY ARTHUR WONGRespondentHearing: 7 June 2022Counsel: A W M Britton and V M Rea for ApplicantNo appearance for RespondentJudgment: 8 June 2022JUDGMENT OF SIMON FRANCE J[1] This application for restraint and civil forfeiture orders proceeded by way offormal proof. At issue is $24,000 cash seized from Mr Wong when he was arrested ondrugs charges.[2] Mr Wong initially indicated he would oppose this application. He spoke ofretaining counsel but the relevant counsel has confirmed he has no instructions.Mr Wong spoke to police offices at various times indicating he intended to oppose andgiving explanations. These explanations have been explored by the Commissioner tothe extent possible.[3] At one point a person claiming to be helping Mr Wong contacted CrownCounsel. A collection of documents was emailed. Within the documents was a letterfrom Mr Wong to his intended lawyer setting out explanations. I am satisfied theproviding of the letter constitutes waiver of privilege. The explanations provided inthe letter have also been explored by the Police, and evidence provided whichundermines them as a source of the funds.[4] I am satisfied on the evidence Mr Wong was aware of the application and itsscope. And of the hearing.Facts[5] Police were at Mr Wong's address on an unrelated matter. Cannabis was smeltand a search conducted. Located in a backpack were:(a) seven grams of methamphetamine;(b) electronic scales;(c) snap lock bags; and(d) cash ($24,000).[6] Mr Wong subsequently admitted they were his. He was charged with dealingoffences, but ultimately pleaded to possession simpliciter. The Commissionermaintains that notwithstanding the change in charging, on the balance of probabilitiesit can be shown that the money was the product of significant criminal activity, namelydrug dealing.Analysis[7] Mr Wong is a beneficiary so does not have a recognised source of income toexplain the money.[8] The money was located in a context consistent with drug dealing, namely adealing quantity of drugs, scales and snap lock bags. It can be noted, however, thebulk of the drug was in a single rock which needed altering to smaller quantities to beusable. The scales and bags can be explained by this.[9] The police located two cell phones belonging to Mr Wong. Text messagingwas located which is consistent with dealing and less consistent with possession giventhe quantities and the fact that some callers believe Mr Wong could be a source ofsupply. In another text an unknown but plainly close contact inquires after Mr Wong'shealth. Mr Wong says he is OK, but that some people had just put a gun to his headand taken $30,000. If true, it is consistent with robbery or most likely a form of taxing.It also shows the $24,000 in present dispute does not represent all the unexplainedcash connected to Mr Wong.[10] Various explanations concerning trading in vehicles have emerged. All havebeen followed up on. In an uncontested proceeding, I do not consider it necessary todetail all the inquiries. I am satisfied by the evidence that trading in vehicles does notexplain the money. There has been limited sales but the timing is not capable ofexplaining the existence of this cash.[11] I am satisfied on the balance of probabilities the cash is the product ofsignificant criminal activity, namely drug dealing. It is a conclusion based on thecircumstances in which the cash was found, text messaging consistent with dealing,text messaging consistent with dealing on a scale much larger than that represented bythe sum of $24,000, and the absence of any credible explanation for a person relianton benefit income possessing such a sum of money.[12] The requirements on the Commissioner with an application such as this wasdetailed in Pulman v Commissioner of Police which I adopt.1 The first requirement isto satisfy the Court as to the existence of significant criminal activity linked to themoney. I am satisfied as to that for the reasons given.[13] The second step is to determine the maximum recoverable amount. There hasbeen no prior forfeiture. I do not know the scale of the offending but am satisfied this$24,000 is all a product of it.1 Pulman v Commissioner of Police HC Auckland CIV-2010-404-5666, 27 May 2011 at [10]–[13].[14] The third step is to consider whether forfeiture of the whole amount wouldcause hardship. None is claimed by Mr Wong. No other person lays claim to anyentitlement. The one person suggested, namely Mr Wong's brother, expresslydisclaims any entitlement.[15] The fourth step is to determine Mr Wong has an interest in the money. It wasfound in his possession, and he says it is his. I am satisfied that is so.Orders[16] The Commissioner's application dated 29 November 2021 for a restrainingorder and a profit forfeiture order in relation to the $24,000 cash found in Mr Wong'spossession are made.___________________Simon France JSolicitors:Crown Solicitor, Wellington for Applicant