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Yuen Yei Ha v The State [2004] FJHC 228; HAM0039.2004 (20 July 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS CASE NO.: HAM0039 OF 2004

BETWEEN:

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

AND:

STATE
Respondent

Counsel: Mr. M. Raza – for the Applicant
Mr. G. Allan – for State

EX TEMPORE RULING
(Decision Suppressed until completion of trial)

The applicant is one of six accused in this matter who were arrested on the 9th of June, 2004 following a police operation targeting a group of persons associated with warehouse premises at Lot 56 Nasinu Road and Lot 3 Buli Road, Laucala Beach Estate. The warehouse at Bulei Road was being used to manufacture the illicit drug methylamphetamine.

The applicant has been in custody since arrest and made this application for bail through the good offices of her counsel Mr. Raza. There have been a number of appearances before me. Affidavits were filed by her deposing her family needs, claim of innocent association with the co-accused, lack of previous convictions, finance and sureties and strong ties to Fiji.

The case involves a consideration of the principles behind the Bail Act. Before proceeding to my substantive decision and consideration of the facts of this case these general matters require some comment.

Someone who has pleaded not guilty must be presumed to be innocent of the charge until proven guilty according to law. Such a person also enjoys the benefit of Section 3 of the Bail Act which requires in effect that there be just cause for continued detention as there is a rebuttable presumption in favour of granting bail.

In this case the prime consideration is the seriousness of the charge. The seriousness of the charge faced will not in itself provide a justification for refusal of bail. Refusal can be justifiable only when the prosecution demonstrates not merely that the charge is a serious one but also that there is something additional which favours detention of the accused in the public interest. It must be demonstrated by the prosecution that the public interest cannot be met under the Bail Act by the granting of bail upon terms as to residence, reporting, curfew, non association, travel restrictions and the like. Having noted that the charges faced are serious the Court then needs to be satisfied concerning the strength of the prosecution case for it would be wrong in principle to cause an accused to be held in custody pending trial if the case appears weak.

Matters which will provide grounds for not granting bail when the accused faces an apparently strong case are:

(1) The likelihood that the accused will offend while on bail. That is normally indicated by past criminal history including any previous breach of bail. This ground is not applicable here; or

(2) The likelihood the accused will abscond or otherwise fail to answer bail at trial or when earlier required to make a further appearance; or

(3) Public interest matters for example that the accused will deliberately or accidentally seek to interfere with witnesses in the case with a view to deterring them from giving evidence or in some other way perhaps influence their testimony.

The seriousness of the charge faced is particularly relevant to the possibility of the failure to answer bail. This is for the reason that the more serious the charge the heavier the potential penalty hanging over the accused, the greater is the incentive for the accused to try to abscond particularly when facing a strong case and having associations with an overseas country. Experience suggests that certain crimes, such as drug importing or drug manufacture being the most obvious, present a high risk of such behaviour. The administration of justice can be made to look foolish in the eyes of the public and correspondingly devalued when absconding occurs after bail is granted.

Another important consideration is the likely length of the detention before trial. Where it is unlikely to occur within a few months the delay will be a factor favouring the granting of bail but is not in itself determinative. For the purposes of this application I note that the trial will be listed before me as a priority and it will be heard in the month of February next year.

In my view the Court should have regard also to the need of an accused to have access to defence counsel in order to prepare for trial and any apparent difficulty of doing so from the prison in a particular case. They must in effect constitutionally have a right to adequate time and facilities to prepare a defence. However, in respect of this case, I find that the availability to prepare a case such as this following a comprehensive surveillance operation is enhanced because there is such a strong documentary trail that preparation is a matter of sifting through that documentary trail to look for or develop prime defences. Remaining in custody will not effect that process.

At the end of the day the task of the Judge hearing a bail application is to balance these various factors giving due weight of course not only to the constitutional rights and guarantees but also the statutory rights enshrined in the Bail Act and then to form a judgment upon whether bail should be granted and if so the conditions to be attached to it.

In many cases of bail relating to serious matters the police version of events are material. Sometimes they are in dispute and it may be necessary for the Court to receive some form of testimony either orally or in written form from the responsible officers in charge of the case with knowledge of the matters before a Court can be appropriately satisfied as to the strength of the prosecution case. Such was the case here. In some instances evidence may be required concerning other relevant circumstances and that is also the case here.

I do note that affidavits from eye witnesses are not strictly required. I adopt the principles expressed by the New Zealand Court of Appeal in the Queen and Tonihi [1994] 12 CR NZ 259 at page 261 where it was observed by that court that these bail hearings should not be turned into mini trials. They are usually brief and judges must in the end rely on their experience in weighing the relevant factors and make an overall assessment and then exercise the discretion accordingly.

These foregoing remarks are subject to the special provisions governing the granting of bail contained in the Bail Act 2002. I have given each and every section of that act my consideration. I seek only to emphasize the more important factors in this decision.

This Case

The heart of the prosecution lies in the surveillance of suspects and in particular the surveillance of a warehouse where the drug was being manufactured. That surveillance was undertaken by way of video recording where a video camera was set up so that the centre of the picture showed more or less the large doors providing access to the building itself.

During the course of this application at an earlier appearance as part of her plea that she knew nothing about what was going on inside that warehouse and in support of her claim to a certain naïvete concerning the entire drug operation it was said, on her behalf by counsel, that when she visited the factory she rarely went inside it and that mostly she stayed in her van. This was not the recollection of counsel appearing for the prosecution and he sought leave to have an additional affidavit introduced for the Court’s consideration.

This affidavit by one Detective Sergeant Henry Brown (attached to the Transnational Crime Unit in the Fijian Police Force) set out a “tape” log format of the observations of the warehouse and detailed a number of occasions when the applicant went to the factory. It appears both from what he says in his affidavit and from several accompanying photographs that the applicant not only went to the warehouse in the van but got out of the van and went inside the warehouse and disappeared from view for a number of minutes and on some occasions was inside for what must only be considered a lengthy period of time.

The point of this evidence is that it was tendered in sharp contra distinction to the plea made by counsel on his client’s behalf that she knew nothing of this operation, that she was in effect a naïve but helpful bystander who did not go inside the warehouse. The applicant then replied to this surveillance affidavit and in her reply she seeks to explain the various times that she went to the factory and then says at paragraph 5 of that affidavit dated the 16th of July:

“that when I said I went to 3 Buli Street warehouse only once on the 8th of June 2004, I humbly apologize to this honourable Court for the error. I did not have any intention to mislead the Court but due to my present condition and in anxiety I made a genuine mistake as this is the first time I am facing such problems.”

I find that this evidence gives me absolutely no confidence in the explanations offered variously by this applicant concerning her knowledge of what occurred in and about this warehouse and in and about the five other accused. For bail purposes how can her bond be trusted if she is so casual about the truth on such a fundamental issue.

When assessing the strength of this case for bail purposes I find against the applicant. She visited the warehouse on the day before the police terminated the operation on in no less than 4 occasions. She went either on foot or by a white van (the same vehicle used to transport the other accused to and from the factory). These circumstances when taken in combination with the fact that some US$140,000.00 was moved through her related bank accounts for the benefit of the drug manufacturing operation make out a strong case. Further her various explanations given to different authorities about materials and equipment she obtained for the drug cartel were inconsistent; that can only tell against her credibility.

This is not a mini trial. This is an assessment of the strength of the case for bail purposes. Its also an assessment of the reliability of the applicant because if granted bail one of the things I have to consider is the likelihood that she may because of the seriousness of the matter abscond.

The State have satisfied me that the prosecution case against the applicant is strong. Even though the applicant has ties to Fiji I am also satisfied that because of the circumstances and nature of the case there is a flight risk.

I have absolutely no confidence in the applicant’s promises that she will appear in Court when required. These are sufficient reasons for me to accept that the State have successfully rebutted the presumption in favour of bail. I find that it is in the public interest particularly the public interest in the due administration of justice that she be kept in custody until February when her trial can proceed and for these reasons the application is refused.

Gerard Winter
JUDGE

At Suva
20th July, 2004