Zhong v State [2012] FJHC 1407; HAM200.2012 (2 November 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM 200 of 2012

BEFORE: Hon. Mr. Justice Paul K. Madigan

BETWEEN:

JASON ZHONG
Applicant

AND:

THE STATE
Respondent

Counsel : Mr. G. O'Driscoll for the Applicant
Ms S. Puamau for the State

Date of hearing : 31 October 2012
Date of ruling : 2 November 2012

RULING

1. The applicant applies for bail pending trial in this Court on one count of rape and three counts of sexual servitude. The State has indicated that it will be later applying to consolidate the applicant's case with those of three other accused also before this Court charged with offences of trafficking in persons and of debt bondage.

2. The State objects to the application on the grounds that the offences are grave, the evidence is strong and that he has brought suspicion upon himself in respect of this case whilst on bail from the Magistrate's Court for a case of debt bondage. They also say (but provide no evidence of the fact) that he is a member of an organized crime syndicate and that he has a previous conviction for manufacturing a large amount of methamphetamine which they say was also a crime involving international organized crime.

3. Most unfortunately the State has not seen fit to respond in writing to the applicant's affidavit accompanying the notice of motion, Counsel saying that she has been "far too busy and unwell during the weekend." This counsel is not the only officer in the office of the Director of Public Prosecutions and it would have been very useful for the Court to have seen a copy of the criminal records and evidence by affidavit attesting to the breach of bail from the Magistrate's Court and to the involvement of the applicant in organized crime.

4. The applicant is 39 years old, married with four children, three in school and one infant. He has extensive agricultural and property investments in Fiji and he employs up to 20 people at a time for ginger farming. He submits that although the evidence appears to be strong, it is not proved and he was only present with those said to be in servitude as an interpreter. On hearing of the suspicion of his involvement in this case, he gave himself up for questioning and did not wait to be "taken in." He is willing to abide by any and strict conditions.

5. It is a factor in this application that the applicant has agreed to give evidence in the case of murder against several Chinese nationals whom the State alleges are part of an organized crime syndicate. The applicant submits that because of this he is in mortal danger if kept in custody with those accused and as a result he is being held in Police cell custody. The State says that this is a reason not to give him bail because his safety cannot be guaranteed.

6. I am of course aware of the presumption in favour of bail as well as the rebutting factors of likelihood of flight and likelihood of re-offending and protection of the community.

7. If it were provided by affidavit or otherwise that the accused has a previous record for a very serious crime and that he had breached an earlier term of bail, then those facts would go a long way to rebutting the presumption in favour of bail; but there being no evidence before me of those factors apart from "evidence" from the bar table, I cannot consider them.

8. There might also have been evidence placed before me of involvement in organized crime but there is none such.

9. Seriousness of the offence and "strong evidence" are not factors to be considered. There are many charged with murder sitting around the tanoas of Fiji and it is not for me to delve into the evidence. Nor is it for the Court to guarantee the safety of an accused at large.

10. The applicant is granted bail on the following strict terms:

(i) Cash bail in the sum of $10,000.

(ii) Two sureties of $5,000 cash each.

(iii) To live at a fixed address and not to move without leave of this Court (Judge or Registrar) until the end of his trial.

(iv) To surrender his passport (if not done already) to the Registry of this Court.

(v) Not to leave Viti Levu until the end of the trial.

(vi) To report once a week to Samabula Police Station every Monday & Thursday between 6am and 8pm.

(vii) To be subject to a curfew between 8pm and 6am daily.

(viii) Not to approach any potential prosecution witnesses.

Paul K. Madigan
JUDGE

At Suva
2 November 2012