Commissioner of Police v Nguyen

[2022] NZHC 3008

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-2169

[2022] NZHC 3008

UNDER

the Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

TUNG HOANG NGUYEN

First respondent

ANH TUAN NGUYEN
Second respondent

LY ANH DO
Third respondent

LINH THI THUY NGUYEN

Fourth respondent

Hearing:	On the papers
Counsel:	R E Budd and A F Mackenzie for applicant
Date of judgment:	17 November 2022

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 17 November 2022 at 12.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:

Meredith Connell, Auckland

COMMISSIONER OF POLICE v NGUYEN [2022] NZHC 3008 [17 November 2022]

[1]                 As duty judge this week, I have the Commissioner’s without notice application for restraining and further orders dated 15 November 2022, seeking to place real estate at various addresses in the greater Auckland area and two Mercedes-Benz vehicles into the hands of the Official Assignee.1

[2]                 The application is supported by 15 November affidavits affirmed by each     a police officer and a forensic accountant, contending the subject assets — owned directly or indirectly by the respondents — to be derived from the cultivation and sale of cannabis, money laundering and receiving.2

Law

[3]                 I may determine an application can properly be dealt with without notice only if I am satisfied, here, requiring the Commissioner to proceed on notice would cause undue delay or prejudice to him, an enactment expressly permits the application to be made without serving notice of the application, or the interests of justice require the application to be determined without serving notice of it. Otherwise I must give directions for service and adjourn the application, or dismiss it.3

[4]                 If then I am satisfied I have reasonable grounds to believe the property is “tainted property” – that is, wholly or partly acquired as a result of, or directly or indirectly derived from, significant criminal activity – or the respondents have in any event  “unlawfully  benefited  from  significant  criminal  activity”,  I  may  make     a restraining order in respect of that property. By the order, the property is not to be disposed of, or dealt with, other than is provided for in the restraining order, and is under the Official Assignee’s custody and control.4

Discussion

[5]                 ‘Restraining orders’ are “a holding measure”, to preserve property if to be forfeited to the Crown as derived from significant criminal activity.5 ‘Significant

1      Criminal Proceeds (Recovery) Act 2009, ss 24 and 25.

2      Misuse of Drugs Act 1975, ss 6 and 9 (maximum penalty, 7 years’ imprisonment); Crimes Act 1961, ss 243 and 246 (maximum penalties, 7 years’ imprisonment).

3      High Court Rules 2016, r 7.46(3) and (5).

4      Criminal Proceeds (Recovery) Act, s 50.

5      Yan v Commissioner of Police [2015] NZCA 576, [2016] 2 NZLR 593 at [7].

criminal activity’ is offending punishable by a maximum term of imprisonment of    5 years or more, or offending obtaining property with a value exceeding $30,000.6

[6]                 Section 22 of the Criminal Proceeds (Recovery) Act 2009 entitles me to consider the application without notice if I am satisfied there is a risk of the proposed restrained property being destroyed, disposed of, altered, or concealed if notice were given.

[7]I am satisfied:

(a)notice of the application for restraining orders would put the property at relevant risk, at least in ‘altering’ (by dissipating) the sum of equity presently available in the real estate, notwithstanding such ‘conversion’ is not effective to escape restraint,7 and the vehicles’ ready fungibility; and

(b)on the basis of the police officer’s and forensic accountant’s affidavits, I have reasonable grounds to believe both:

(i)the real estate and vehicles are tainted property, as acquired or derived in connection with significant criminal activity of drug and financial offending, or in any event as obtained property with a value exceeding $30,000; and

(ii)the respondents have — by making payments in respect of the acquisition of the real estate, seemingly from revenues obtained by drug and financial offending — unlawfully benefited from such significant criminal activity.

[8]                 I see no reason not to exercise my residual discretion, precisely to preserve property if to be forfeited to the Crown, to make the restraining and further orders sought.

6      Criminal Proceeds (Recovery) Act, s 6(1).

7      Section 12.

Result

[9]                 I order in terms of subparas (a)–(c) of paragraph 1 of the Commissioner’s   15 November 2022 application.

—Jagose J