Commissioner of Police v Khan

[2024] NZHC 462

JUDGMENT FOR PUBLICATION

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2024-419-000008

[2024] NZHC 462

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

THE COMMISSIONER OF POLICE

Applicant

AND

ROYCE KHAN

Respondent

Hearing:	6 March 2024
Appearances:	R Guthrie for Applicant
Judgment:	6 March 2024

JUDGMENT OF ANDERSON J

[Redacted version]

This judgment was delivered by me on 6 March 2024 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules 2016.

.………………………….. Registrar/Deputy Registrar

Solicitors:

Hamilton Legal, Hamilton

THE COMMISSIONER OF POLICE v KHAN [2024] NZHC 462 [6 March 2024]

[1]                 The Commissioner of Police has applied for restraining orders over cash in the sum of $57,572.60 and intends to apply for a Type 1 asset forfeiture order in respect to that property.

[2]                 Personal service of the application and affidavit in support has not yet been effected. An affidavit of Warren Jonson outlines difficulties he has had in effecting personal service on the respondent and that he has provided the documents for service to the respondent’s brother, [redacted] on 30 January 2024 at the address the respondent is understood to be living.

[3]                 The Commissioner seeks an order for substituted service in light of those difficulties and to proceed today for a restraining order as sought in the application.

[4]                 I made orders today for substituted service and for a restraining order in the terms sought. I now briefly give my reasons.

Substituted service

[5]                 I am satisfied that an order for substituted service is justified having regard to the efforts taken by Mr Jonson to personally serve Mr Khan involving a number of visits to an address where Mr Khan is understood to be living, and confirmation from his brother [redacted] that Mr Khan resides there.

[6]The orders for substituted service are that:

(a)the documents (as defined in the application) be treated as served on the respondent on the date they were provided to [redacted] at [redacted] on 30 January 2024 at 10.55 am as outlined in Mr Jonson’s affidavit;

(b)that any notices to be given by the Registrar be sent to the respondent at [redacted].

Restraining order

[7]                 The application for a restraining order specifically relates to the following funds, which were seized in police searches pursuant to search warrants as stated below:

(a)$43,328.80 seized during a police search of a vehicle used by the respondent on 11 April 2020;

(b)$9,463,80 seized during a police search at the respondent’s home, [redacted] on 11 April 2020; and

(c)$4,780 seized during a police search at [redacted] on 24 April 2020.

[8]These amounts total $57,572.60 in cash.

[9]                 I am satisfied on the material filed in support of the application that there are reasonable grounds to believe the cash obtained pursuant to the searches identified above is tainted property within the statutory definition in s 5 of the Criminal Proceeds (Recovery) Act 2009. There are reasonable grounds to believe that it is property acquired as a result of significant criminal activity or directly or indirectly derived from it, in particular because:

(a)Possession of cannabis for supply is significant criminal activity and is an offence against the Misuse of Drugs Act 1975 and punishable by eight years imprisonment.

(b)In the police searches referred to in paragraph [7], police recovered in total in excess of 84 ounces of cannabis with the cash (51.6 ounces in the vehicle, 72.8 ounces at [redacted] on 11 April 2020, and a further

11.5 ounces from that address on 24 April).

(c)The respondent accepted in a  communication  with  Mr  Jonson  on 11 March 2020 the cash was the proceeds from the sale of cannabis and

said that he did not have any interest in it. No other person has claimed an interest in it.

(d)Arising out of these events, the respondent pleaded guilty to possession of cannabis for supply (x3) on 4 December 2020 and was sentenced in the Hamilton District Court to nine months’ home detention.

(e)Investigations undertaken by Police and an analysis of Mr Khan’s average declared income support that the cash the subject of the application is the proceeds of the respondent’s commercial sale or supply of cannabis.

[10]              Accordingly, I made the restraining order in the terms as sought in the Commissioner’s application.

Anderson J