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Yuen Hei Ha [2004] FJHC 10; HAM0039.2004 (24 September 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS CASE NO.: HAM 39 OF 2004

BETWEEN:

YUEN YEI HA
(aka Diane Yuen & Diane Zhong)
Applicant

AND:

STATE
Respondent

Date of Hearing/Ruling: 24 September, 2004

Counsel: Mr. M. Raza – for the Applicant
Mr. B. Solanki – for State

EXTEMPORARY RULING ON BAIL

This is the second formal application made by this applicant for bail. The background of the matter is detailed in my earlier ruling of the 20^th of July 2004.

That earlier ruling was appealed to the Court of Appeal. The appeal was rejected as that court was of the view that it could not consider bail appeals on a judge alone basis but had to have them heard in front of the full court.

I am advised by counsel for the applicant that he has subsequently withdrawn that appeal from the Court of Appeal.

In its place he has filed a fresh application before me.

Changed Circumstances

Successive applications for bail have to be based on changed circumstances. Without a change in the applicant's circumstance the court should not properly re-consider its earlier decisions.

In my earlier decision I detailed the principles relating to bail applications generally and my particular reasons for refusing bail.

A significant reason I refused bail on the last occasion was the casual manner the applicant had towards her instructions to counsel and consequently advice to the court concerning her involvement in this major production of illicit drugs. In summary she was keen to paint herself as a naïve but helpful bystander as opposed to an actual party to the proceedings. Her attitude gave me absolutely no confidence that her bond could be trusted and that therefore she would not answer to bail when called upon or indeed comply with any reasonable conditions imposed.

In terms of her changed circumstances I now have two affidavits before me from her relatives. These affidavits concern her two children Ms. Carena Zhong and Master Jun Zhong. I pause here to immediately note and direct that the names of the children or anything leading to their identification, residence or schooling are permanently suppressed and not to be the subject of publication.

The affidavits expressed concern about the ongoing care of the two children. Mother and father are in jail. There have been practical difficulties in making arrangements for the fulltime care of the children in the absence of their parents. There is a report from a general and child health practitioner from the Suva Private Hospital, Dr. Uluitoga. In this report the doctor is of the opinion that Miss Carena Zhong is emotionally withdrawn and comparatively under developed for a pre-schooler. Although not having similar concerns in respect of Master Jun Zhong nonetheless in summary the doctor is of the opinion that both children exhibit overt and subtle psychological patterns distinctive of children during prolonged separation from parents.

Somewhat predictably the doctor is concerned at the effect of parental separation is having on these vulnerable children especially in terms of their migrant status and exclusively Chinese cultural upbringing. The stress on their extended family care arrangement has the potential of estrangement. The risk is in the children will be further alienated from what might be considered a norm for a six and a four year olds development.

In a professional sense the report is thin on the impact of prolonged separation on the children. However, for present purposes I am prepared to infer that the absence of both parents is a genuine psycho-social and developmental concern of sufficient impact to impress me as a changed circumstance.

The Law

In her decision of Devi v The State, HAM 011 of 2003S, my learned sister Justice Shameem elegantly stated the issues concerning the care of dependants. At page 5 her Honour re-stated the principle that the United Nations International Convention on the Rights of the Child and the body of customary International Human Rights Law concerning the best interests of children was applicable in Fiji. Section 43(2) of the Constitution provides that the Courts "must, if relevant, have regard to public international law applicable to the protection of the rights set out in this chapter" (this includes Section 28). In relation to article 3 it has been said: Minister of State for Immigration v Tech [1995] 69 AL 5 R 423 at 183 by Neumen J and Deane J:

"the concluding words of article 3.1 are "the best interests of the child should be a primary consideration". The article is careful to avoid putting the best interests of the child as a primary consideration; it does not more than give those interests first importance along with such other considerations as may in the circumstances of a given case require equal but not paramount weight".

I find that the best interests of Carena and Jun are of first importance in this new application for bail.

As they did in Devi, State's counsel raises public interest considerations in opposing bail.

Counsel quite rightly points to my earlier decision and says that I must still be left in the position of having absolutely no confidence in this applicant's compliance with any directions of the Court nor honouring her terms of bail. Counsel naturally has concerns about interference with witnesses.

However, those concerns are ameliorated somewhat by this mother's need to ensure that the best interests of her children are promoted. Counsel was unable to provide me evidence that the applicant might interfere with witnesses. It is at best a reasonable suspicion and there is no suggestion that the applicant might re-offend whilst on bail particularly if the conditions surrounding her bail are such that she has a strictly controlled environment.

Counsel concedes the impact of public international law and the best interests of the child are a feature that requires consideration. Counsel would have preferred better and further reporting on the children. He is of the opinion that the clinician's letter does not display children in psychological peril.

However, when considering the best interests of children any indication of comparative under-development or psycho-social effect as a result of estrangement and separation must be sufficient to motivate the court to act. In my view, of necessity, the evidential threshold for assessing the impact on a child's best interests must remain low if the court is to do a proper job in protecting children's best interests.

Conclusion

I do not want this decision to be taken as a precedent for the principle that merely because both parents in a relationship are sent to jail, they can automatically expect to get bail because of their children's care needs. However, I consider that bail should be granted on strict conditions. The children's circumstances have created a sufficient change to motivate me to grant them the best care available at this time. The best care that can come for them at this time is from their mother. Although she must be cautious to ensure that the children are properly prepared for re-separation from her at the commencement of the trial and the extreme likelihood of her incarceration in the event of conviction on any of these offences.

Bail should be granted on strict conditions and these will include:

1. The applicant must report daily to the Namadi Heights Police Post between the hours of 6.00am and 6.00pm.
   
2. The applicant must not interfere with any witnesses, nor have any contact with her co-accused except her husband.
   
3. The applicant must provide one cash surety in the sum of $25,000.00. That sum to be deposited in Court before release.
   
4. The applicant is to reside at 8 Princes Road, Tacirua.
   
5. The applicant is to be under 24 hour curfew at that residence and may not leave the property unless in the presence of any one of Hellena Zhong, Zhong Xian Zhong and Yip Lai Weng and then only for the purposes of travelling by the most direct route to and from her residence for the delivery or uplifting of her children from their school, sporting or social commitments. Visits to her lawyer, medical practitioner or for the purposes of undertaking shopping.
   
6. In that regard the applicant is to maintain a log book describing every such journey by its date, time of departure, destination and time of return. Every such entry is to be countersigned by the surety. The log book is to be available for inspection by any police officer who makes proper enquiry of the applicant about her whereabouts.
   
7. The applicant is not to change her residential address without a formal application to the court being made to vary bail.
   
8. The applicant is not to travel out of the greater Suva district bounded by Nausori Airport East, Lami Township West, Sawani North and the coastal foreshore within those areas.
   
9. The applicant is not to obtain directly or indirectly any travel document documents for herself or her children.
   
10. The applicant is to surrender her passport to the Registrar.
    
11. The applicant is to surrender the passports of her children to the Registrar.
    
12. The passports are not to be released unless by order of the Court.
    
13. Not to go within 50m of any customs or immigration facility. Not to go within 100m of any port, airport or other port of embarkation to or from Fiji. Not to go to Laucala Beach Estate.
    

.....................................
Gerard Winter
JUDGE

At Suva
24^th September, 2004