The Crown has been ordered by the Lord Chief Justice to return more than $10,000 in cash to a local Chinese business. The cash was forfeited when he was charged for false declaration, at Fua'amotu International Airport in 2018.

Mr Xi Yun Qian of Longolongo, the plaintiff, sought an order for the return of the cash, which included NZD$9,490, USD$54,275, AUD$10,050, FJD$1,700 and TOP$2,015 together with interest and compensation in the sum of $50,000.

The Crown opposed the claim on the ground that the cash was forfeited to the Crown by operation of s.19G (5) of the Money Laundering and Proceeds of Crime Act (the Act).

Conviction

The Court heard on May 15, 2018, the plaintiff had completed a passenger departure card at the airport, declaring he was not carrying more that $10,000 cash, or its equivalent in foreign currency.

However, after further questioning by Customs, he gradually revealed the cash secreted in various places on his body. He was arrested and the cash forfeited.

In March, 2019 the plaintiff appeared before a Supreme Court judge and was convicted on the false declaration count. He was fined $15,000 pa’anga, which has been paid.

The plaintiff, however, pleaded not guilty to two other charges of money laundering and bribery.

He was discharged on these two, after the judge found there was no prima facie case.

Return money

Lord Chief Justice Whitten, said for reasons stated on (30 pages judgment) and on the balance of probabilities, that at the time of its seizure and detention since, there were no reasonable grounds for suspecting that the cash was: - recoverable cash, intended by any person for use in unlawful conduct; or undeclared cash intended for use in unlawful conduct, as required by s.19C and D of the Act.

He said, consequently, as the cash was not seized under s.19C and l9D, and not withstanding that no notice of appeal was received by either the seizing authority or the Court within the period of 30 days from the time of seizure, the cash was not automatically forfeited under s.19G (5) of the Act and it is to be returned to the plaintiff.

“I recommend that in the future, where an accused pleads guilty to a count which attracts the operation of the Act, in terms of potential forfeiture or confiscation of cash or other property related to the charge, any issue of actual forfeiture or confiscation should be decided on evidence at a preliminary hearing prior to the determination of any sentence,” he said.

He also ordered that if this cash had been held in an interest-bearing account in accordance with s.19E of the Act, any interest accruing on it is to be added to it.

Alternatively, if the cash had not been held in an interest-bearing account in accordance with s.19E of the Act, then by way of compensation pursuant to s.19J (3) of the Act, interest is to be added to the cash at the rate of 5% per annum on the Tongan pa'anga equivalent of the cash, as at May 15, 2018, from that date to the date of payment.