Shi Jie v State [2001] FJHC 187; HAM005.2001 (3 May 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

MISCELLANEOUS APPLICATION NO. HAM 005 OF 2001

BETWEEN:

SHI JIE
Applicant

AND:

THE STATE
Respondent

G. O'Driscoll for the Applicant
J. Naigulevu, Director of Public Prosecutions for the Respondent

Date of Hearing: 30th April 2001
Date of Ruling: 3rd May 2001

RULING

The Applicant is charged jointly with two other persons Wong Kam Hong and Tak Sang Hao with the importation into Fiji of a dangerous substance contrary to Sections 16, 41(a) and 41(2) of Dangerous Drugs Act Cap. 114. He applies to this Court for bail pending trial by way of Motion and affidavits, three of which have been sworn by himself, one by his wife, Siu Boi Yee and another by Shi Jing a businessman residing in Suva. The application is made under Section 108 of the Criminal Procedure Code. The Applicant and his two co-accused were committed for trial in this Court on the 15th of March 2001 on the following charge:

IMPORTATION OF CERTAIN DANGEROUS SUBSTANCES: Contrary to Sections 16, 41(1) and 41(2) of the Dangerous Drugs Act, Cap. 114.

Particulars of Offence

WONG KAM HONG, TAK SANG HAO also known as BILL HAO and SHI JIE also known as SHI KIT between 19th day of November 1999 and 28th day of October 2000 at Suva in the Central Division, imported into Fiji dangerous substances namely Diacetylmorphine otherwise known as heroin weighing approximately nett 357.1875 kilograms without lawful authority.

No trial date has yet been allocated but I am informed by the Director of Public Prosecutions that this is likely to take place within the next two months.

It is conceded by the State that the case against the Applicant is purely circumstantial but sufficient to raise a very strong presumption of guilt against the Applicant. It claims that the Applicant facilitated the importation of the heroin.

The Court has before it two affidavits of one Bruce Giles, a Federal Agent of the Australian Federal Police, the first of which, sworn on the 13th of March 2001, sets out in paragraphs 39 to 43 a summary of the case against the Applicant, more details of which are given in a copy of the Preliminary Inquiry submission made to the Magistrate's Court at Suva in the committal proceedings and annexed to Mr. Giles' first affidavit.

In his supplementary affidavit sworn on 11th of April 2001 Mr. Giles purports to answer the affidavits filed on behalf of the Applicant.

Essentially the State's case is that the Applicant, whose wife was the sole Director of Prime Success Enterprises Limited Suva which operated from 41 Amy Street, Toorak, was recognised equally as operating the business with her. As such the task of importing the heroin was made easier in that no drug syndicate would take the chance on such a large consignment of heroin being consigned to a business not involved in the illegal importation.

The two containers which it is alleged contained the heroin were shipped from Rangoon, Burma on the 19th of November 1999 and arrived in Suva on the 18th of December 1999. They were consigned to Prime Success Enterprises.

It is alleged that the Applicant's version of events as told to the Police in a record of interview of the 4th of December 2000 is not credible, that he made many false denials in that interview, that he allegedly accepted $16,000.00 in cash and instructions from unknown persons to accept delivery and arrange clearance of the containers.

The primary defence of the Applicant to these allegations is that he did not have the requisite knowledge that the containers held heroin and that his company, Prime Success Enterprises Limited has been used by others for the purposes of effecting their criminal purposes.

Unlike his co-accused Tak Sang Hao who is alleged to have substantial assets overseas, the Applicant says that his only assets are in Fiji.

He emphasises that he has been charged only with importation of heroin which carries a maximum penalty of imprisonment not exceeding eight years and/or a fine not exceeding two thousand dollars.

In addition to the summary of the prosecution case I have given above the Director of Public Prosecutions informs me that further investigations into the Applicant are continuing and the fact that he has no known assets overseas in contrast to Tak Sang Hao is no reason why the Applicant should be granted bail.

Mr. Naigulevu states that the lack of any substantial assets in Fiji would only make it easier for the Applicant to flee the jurisdiction if circumstances warranted it. He also states that the street value of the heroin abroad would be in the vicinity of one billion dollars and that the quantity seized is the highest in this part of the world and probably one of the top ten seizures in the world.

Mr. Naigulevu also submits that because Police investigations into the Applicant are still continuing there is a real risk that if granted bail the Applicant would interfere with witnesses.

The law on grant of bail was considered by Shameem J. in her very useful Ruling on the 26th of April 2001 in Miscellaneous Action No. HAM 003 of 2001S Tak Sang Hao v. The State when she refused bail to Tak Sang Hao. In the Ruling Her Ladyship quoted with approval the factors relevant to a bail application which were summarised by Fatiaki J. in The State v. Adesh Singh (1988) 34 FLR 1 as follows:

1. The presumption of innocence;

2. Whether it is probable the accused will appear to stand trial;

3. Whether bail has been refused previously;

4. The seriousness of the charges;

5. The likelihood of the accused re-offending on bail;

6. Any interference with prosecution witnesses;

7. The accused's character;

8. The accused's right to prepare his defence;

9. The likelihood of further charges;

10. The State's opposition to bail.

In addition Shameem J. very commendably used her own private facility to access the internet and referred to two decisions reported in the European Human Rights Reports, Newmeister v. Austria [1968] ECHR 1; 1 E.H.R.R. 91 and Letellier v. France [1991] ECHR 35; 14 E.H.R.R. 83 which substantially reiterate the principles stated by Fatiaki J. Her Ladyship comments at page 6 of her Ruling that case law on the interpretation of the Human Rights Act 1988 and the European Convention on Human Rights shows a shift towards a more narrow approach to the refusal of bail.

Whether or not such an approach is desirable in Fiji may well become a subject for discussion at some future date but as Her Ladyship says at page 8:

"The fundamental principle has always been, and continues to be, that bail will be granted unless the court believes that the accused may not appear for trial."

Mr. O'Driscoll naturally stressed the presumption of innocence in his submission and of course this is basic to our law but it must never be forgotten that the State, representing the public, also has rights in applications of this nature. The duty of the State is to ensure that persons alleged to be guilty of serious crimes are brought to justice as quickly as possible in the interests of the public good. Whilst Mr. O'Driscoll has argued very persuasively in favour of the Applicant, nevertheless I cannot overlook the fact that here we have a very serious crime charged in which the State alleges that the Applicant played a most important part. Weighing the rights of the Applicant against the matters submitted on behalf of the State I have come to the conclusion that the Applicant should be refused bail. Just as Shameem J. was satisfied that there was substantial risk that if released, Tak Hang Hao might not appear at his trial, so here I am not satisfied on the material that the Applicant would appear at his trial.

Accordingly I refuse the application for bail.

JOHN E. BYRNE
JUDGE