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Zhong v The State [2004] FJHC 271; HAM0068.2004 (15 December 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO.: HAM0068 OF 2004

BETWEEN:

JASON ZHONG
Applicant

AND:

STATE
Respondent

Counsel: Mr. M. Raza – for Applicant
Mr. P. Bulamainaivalu – for State
Mr. A.K. Singh/Mr. D. Prasad – for other Applicants
Mr. U. Ratuvili – for Human Rights Commission
Ms Rakuita – Attorney General

Hearing: 7th December, 2004
Judgment: 15th December, 2004

BAIL APPLICATION BY JASON ZHONG, SHING SUM FOK
HON KEUNG LUM, YUK SANG LUI & CHARN MING CHAN

This is an application by Mr. Jason Zhong and his co-accused for bail pending trial.

Mr. Zhong was represented by Mr. Raza. The remaining accused were represented either directly or on instructions by Mr. Singh.

The Zhong Application

This application was supported by several affidavits variously filed from the 20th of October to the 3rd of December.

Those affidavit and counsel’s submissions focussed on two issues:

1. The provisions of the Bail Act and Constitution, concerning the rebuttable presumption for bail.
   
2. The standard of remand prisoner conditions at the Korovou Prison.
   

Counsel emphasized the scheme of the Constitution, the Act and in particular the rebuttable presumption for bail to accused awaiting trial.

He emphasized and I accept that the burden of rebutting that presumption rests with the State. Nonetheless counsel addressed the salient issue of the likelihood of his client turning up for trial if he was granted bail.

He emphasized Mr. Zhong’s close ties to Fiji commencing with his citizenship, his home, his wife and his children.

Counsel submitted the case against his client was not strong and built merely around suspicion of his involvement in the group enterprise to manufacture the illicit drug methamphetamine. His client denies any involvement at all with the set up or operation of the subject laboratory. Counsel sought to emphasize this aspect to address an anticipated argument about the serious nature of the charges leading to an inference that the applicant may “jump” bail if it was granted to him.

As to the second ground of the application reference was made to the affidavits where the applicant described his conditions including overcrowding, lack of adequate ablution facilities, lack of proper dining facilities, poor and sparse sleeping conditions, poor medical attention and safety from assault.

Applications by Shing Sum Fok, Hon Keung Lum, Yuk Sang Lui and Charn Ming Chan

Mr. Singh appeared on behalf of the 3rd and 6th accused and on instructions from Mr. Prasad in respect of the 4th and 5th.

Translated letters were received from two applicants complaining about the conditions in Korovou Prison and the SACAU dormitory. Counsel emphasized in addition to that factual material the right the applicants have to the presumption of innocence and the presumption of bail. Counsel did rely heavily on the case and submissions by senior counsel presented for the applicant Mr. Zhong.

The Director of Public Prosecutions meets the Bail Act submissions by reliance on the affidavit of his prime witness Dt. Luke Navela assessing the strength of the case in particular paragraphs 9, 10, 11, 12 and 13. It was submitted and I accept that the applicant suspects were under surveillance for a considerable period of time. Tape logs of that visual surveillance demonstrate the applicants were frequently seen in each others company. The surveillance found the applicants went to and from the premises where the illicit drugs laboratory and manufacturing plant were located.

Counsel highlighted that this offending occurred at a time when the applicant Zhong was on bail in respect of two matters before the western Magistrates Courts involving conspiracy to defraud and illegal foreign currency dealing charges. Counsel emphasized that all the applicants were a flight risk. That they had only been in custody since the 9th of June and the trial was set to start on the 1st of February. Accordingly it was in the public interest to secure a trial on these charges. This demanded that the applicants be held in custody pending the hearing of the matter.

Counsel then deferred to the Attorney General for an answer to the remand conditions at the Korovou Prison.

Counsel for the Attorney General relied on the affidavits provided by two members of the prison service indicating that the remand prisoner conditions at Korovou had changed. Prisoners are no longer kept in the previously criticized remand cell complex but housed in the SACAU dormitory. Counsel further submitted that the report from the Human Rights Commissioner declared that this dormitory substantially complied with the UN standard minimum rules for the treatment of prisoners. Accordingly, there were no constitutional breaches requiring the remedy of bail release.

Decision

In the Ladpeter case my sister Justice Shameem detailed the two step approach to these applications. First a consideration of the Bail Act and second the impact, if any, of an attack on the applicants’ constitutional rights.

Regarding Mr. Zhong the issue is whether or not he will answer to his bail. Is he a flight risk?

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

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 is an applicable ground here. These allegations arose while the accused was on bail for offences currently before the Western Magistrates Court.
   
2. The likelihood that the accused will abscond or otherwise fail to answer bail at trial or when earlier required to make a further appearance. This too is applicable because of the serious nature of the charge.
   
3. Public interest matters for example that the accused will deliberately or extensively seek to interfere with witnesses in the case with a view to deterring them from giving evidence in some other way perhaps influencing their testimony. This principle has little relevance to Mr. Zhong.
   

The seriousness of the charges 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 or having associations with an overseas country.

As I earlier observed, in my first bail decision in respect of the applicant’s wife Diane, experience suggests that certain crimes such as drug manufacture present a high risk of such behaviour. In my view 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.

I find that the case against this applicant is strong. I am prepared to accept for the purposes of this bail application that the tape log of the video surveillance indicates that the applicant was frequently in the company of his co-accused and visited the illicit drug laboratory on numerous occasions. This hard evidence does not easily square with his bare denials of involvement. In balancing the public interest I also take into account that the likely length of detention before trial is now short. The trial will start on the 1st of February 2005.

As for the second limb of the application in my view this is met by the report from the Human Rights Commissioner where he confirms that the SACAU dormitory complies with the bare minimum requirements of the UN standard rules for the treatment of prisoners.

In that regard the decision in my sister Justice Shameem in Nainoca v The State, HAM 72/2004S is relevant. Her honour was similarly satisfied that the facility met the “UN standard minimum rules for the treatment of prisoners”.

This applicant is unhappy with the dormitory. In Nainoca there was complaint about the smallness of the dining table, the inconvenience of overcrowded sleeping conditions and ablution facilities.

I prefer the independent report of the Courts amicus. The applicants complaints while not addressed in that report are not sufficient for a conclusion that the dormitory conditions have reached a level of seriousness or humiliation to qualify as a breach of section 25 of the Constitution.

Accordingly, the application is refused. The accused will be remanded in custody until his trial.

The Remaining Applicants

I find as a fact that these applicants pose a greater flight risk than Mr. Zhong. They are not citizens of Fiji. They have no permanent ties to the country. They are at present only here on temporary resident permits.

In terms of any attacks on their constitutional rights because of remand conditions I prefer the advice given to the Court by the Human Rights Commissioner. I am satisfied that this SACAU dormitory in which they are housed complies with the UN standard minimum rules for the treatment of prisoners.

Accordingly, their application for bail is refused and they will be remanded in custody until their trial.

Conclusion Summary

For the reasons expressed in this judgment each of the applications fails. The accused are similarly remanded in custody until trial on the 1st of February 2005. I order their production on that day.

Gerard Winter
JUDGE

At Suva
15th December, 2004