Lin v Police [2012] TOSC 37; AM 26 of 2012 (16 August 2012)

IN THE SUPREME COURT OF TONGA
APPEALLANT JURISDICTION
NUKU'ALOFA REGISTRY

AM 26 of 2012

SHIQING LIN

-v-

POLICE

BEFORE THE HON. JUSTICE CATO

JUDGMENT

This matter commenced by way of an appeal against a decision of a Magistrate to vary the terms of bail to allow the Appellant who was facing serious charges under the Illicit Drugs Control Act, CAP 10.15 to travel to China for the purpose of seeing his mother who was terminally ill. A medical certificate had been presented to the Magistrate.

He was however required to deposit a bond of $10,000 (maximum jurisdiction of the Magistrates Court). He lodged an appeal against this amount.

The Crown who had opposed the orders in the lower court and indeed bail for the Appellant to travel overseas. The Crown renewed the opposition to his being allowed to travel overseas on this Appeal.

Initially, Mr Kefu appeared for the Crown, and for the Appellant Mr 'Etika appeared in chambers. It was late in the afternoon and I indicated to Mr Kefu that in the circumstances of the case as he outlined them to me, there seemed to be an important issue of bail involved in this case, aside from the issue of the quantum of the bond, and because of this, I should adjourn the matter for a full hearing in open court. Mr. Kefu agreed with me.

The following day, Mr Sisifa appeared for the Crown. He had appeared in the Magistrate's Court and had carriage of the prosecution. He presented me with a fulsome memorandum which I have found most useful outlining the nature of the case, the evidence and matters of principle. He renewed the Crown's opposition to bail being varied to allow the appellant to travel overseas at all.

There are a number of cases that consider bail for the purpose of overseas travel, including Jonesse v R [2010] Tonga LR 19 where bail was declined. For a case, however, where the evidence was considered weak and accordingly a foreign defendant had his passport returned to him Cater v R [1999] Tonga LR 6. Every case will depend on its particular circumstances, however having heard both counsel, I consider this case raises important issues relating to overseas travel and bail by a person facing serious charges. For reasons which I advance below, I have no doubt that the appellant should not have his bail extended to travel overseas. This was a case where, in my view, bail should not have been varied to allow the appellant to travel overseas for any reason prior to his trial.

The case against the appellant, as advanced by Mr Sisifa was a substantial case involving the appellant and number of confederates charged with importation of pseudoephedrine. Whilst it is a common ingredient of cold mixtures and as a cure for colds pseudoephedrine is also an essential ingredient or precursor of the prohibited drug methamphetamine. AS pseudoephedrine becomes more difficult to obtain locally in countries such as New Zealand where the supply of pseudoephedrine products in chemist shops is now tightly controlled, alternative sources of it are sought by drug manufacturers and that can come in a pseudoephedrine tablet form and is often imported.

I was informed a New Zealand police Detective Beale will be called for the Crown. He is a well known New Zealand police expert in the drug methamphetamine. Without pseudoephedrine, methamphetamine cannot be manufactured. Methamphetamine is a drug which is very addictive and can be extremely injurious for persons who consume it. It is a very dangerous drug and in New Zealand is a class A drug and its manufacture carries heavy penalties. In Tonga, as in other countries methamphetamine and the precursor, pseudoephedrines are prohibited or controlled substances.

In Tonga any person who without lawful excuse (the proof of which shall lie upon him) imports, exports, possesses, manufactures or supplies any controlled chemical;

(a) knowing that the chemical or equipment is to be used in or, for the commission of an offence against section 4; or

(b) being reckless as to whether that chemical or equipment is to be used in or for the commission of an offence against section 4

commits an offence and shall be liable upon conviction to a fine not exceeding $750,000 or imprisonment for a term not exceeding 25 years or both.

The appellant, together with 4 other Chinese nationals and a Tongan police officer, were charged with attempted importation of controlled chemicals, importation of controlled chemicals and possession of controlled chemicals. It was alleged that the controlled chemical pseudoephedrine was imported in large quantities (about 7 kilograms) for the purpose of manufacturing methamphetamine in Tonga. On at least one of the two importations the services of an allegedly corrupt Tongan policeman was allegedly involved and he had been recruited to assist with the importation. These allegations are very serious and if proven constitute aggravating feature of the offending.

Mr Sisifa outlined the nature of the evidence on the various charges which had involved the consignment of concealed pseudoephedrine through New Zealand on two different occasions. In the first attempted importation, the drug had been deposited in a water boiler machine, removed by New Zealand authorities, replaced with a placebo substance and allowed to proceed to its intended destination in Tonga.

The appellant's fingerprints together with a co- accused's were found on various parts of the water boiler. This formed the basis of the charge of attempted importing.

On the second occasion, the drug was tracked after passage from New Zealand where it also had been intercepted, and the appellant and other accused were found together with others in circumstances which amounted to possession of the box containing the secreted chemical. One of the accused, who also found in possession of the box, was a police officer.

I have only briefly outlined the nature of the evidence which includes I am told the location of small amounts of pseudoephedrine at the appellants' residence.

Suffice it to say the case against the appellant is substantial, the allegations are very serious, and the evidence appears cogent. It is also plain the appellant, if found guilty of the charges of importation, will face a substantial period of imprisonment.

In these circumstances, it is my view the Magistrate was very plainly wrong to entertain the application for a variation of bail to allow the accused to travel to China to visit his ill and possibly terminally ill mother.

S4(1) (1) (a) of the Bail Act, expressly provides that a Court may decline bail if there are substantial reasons to believe that if released on bail (whether or not subject to conditions) he will fail to surrender to custody.

When considering whether bail should be granted, a Court is directed to have regard to all the relevant circumstances and in particular the nature or the seriousness of the offence (and the probable method of dealing with the defendant for it) (section 4 (2) (a) ); the character, antecedents, associations and community ties of the defendant (section 4 (2) (b)), and his record in surrendering into custody at the trial or on other occasions. (Section 3 (c) ).

I was informed that the Magistrate had been concerned at the fact that when the application was made for the appellant to travel overseas there had been a delay in bringing the case to a committal hearing. The appellant was charged on the 1st July 2011. The application to travel overseas was made by the appellant on the 17th July 2012. The committal hearing was held on the 14-15th August, 2012.

Plainly, there was a delay but the reason for this given Mr Sisifa was that the case involved co-ordination of police in both New Zealand and Tonga and is complex. Plainly this is so and to the extent that this weighed with the Magistrate it is my view he failed to give sufficient weight to the international aspect of the importation and difficulties encountered in co-ordinating an investigation of a multi- national kind. As against the plainly serious nature of the offending, this factor could carry little if any weight.

The important aspects of this case which he appeared to give little weight to what was a very serious attempt to impugn Tonga's border control, or to the illicit Drugs Control Act provisions and penalties, and the Bail Act provisions applicable in this kind of application

It is of fundamental importance for the Kingdom that those who break the penal laws of Tonga are brought to justice. Where the appellant has no relatives living in Tonga or material ties that could be expected to compel him to return for trial, there is a plain and indeed overwhelming risk that he will abscond. In my view, once able to secure the deposit there is likelihood he would not return.

Mr Sisifa informed me that in this case a lesser implicated confederate had also been granted bail to travel overseas on a $5,000 security, and had not returned to this country. Another even less culpable offender, however, had returned having been granted a variation to travel overseas. I was informed the Magistrate was aware that one of the accused had failed to return to the Kingdom when he came to consider the appellant's application. In these circumstances, this should have sounded as a real warning to him that there was every possibility that this appellant would also abscond. He thought, however, that an increase in the amount of the deposit to $10,000 would mean he would return. Whilst that obviously provided an impediment for the appellant travelling (hence his appeal to have the amount reduced), in my view the deposit of $10,000 was no realistic guarantee at all that he would return from overseas if he were able deposit security. In my view, he is a plain flight risk.

Whilst I agree with Mr 'Etika that the presumption of innocence is important in criminal cases that must be considered along with all the other circumstances of the case; its strength, the likely level of penalty and the relevant provisions of the Bail Act.

I also consider that only in very exceptional circumstances should Magistrates grant bail to allow defendants to travel overseas pending a determination of their case for whatever reason. When they have no ties in this country as here and nothing to guarantee their return other than a monetary penalty, then they should not be permitted to travel overseas. They are simply too great a flight risk whatever assurance they might give about return.

In every case, great care should be taken to ensure that flight risk factors are absent before bail is varied to allow an alleged offender to travel overseas for whatever purpose when a criminal prosecution is still pending. If there is any possibility that a defendant will not return to Tonga either because he has no ties here or his ties are much stronger elsewhere than in Tonga, permission to travel should not be granted. Paramount is the orderly enforcement of Tongan penal law including Tonga's drug laws.

Traffickers and others who risk violating the drugs and penal laws of this country should know they will be detained in Tonga until proceedings have been finalised, no matter how long that may take, or whatever their personal circumstances or hardship might be.

It is one thing to be granted bail on conditions on a serious charge to remain in Tonga as the appellant is at present. It is another thing altogether to be permitted a variation of that bail to travel beyond the jurisdiction of the Kingdom and beyond the jurisdiction of Tongan Courts. Where, as here, the Crown opposed the application for very sound reasons, the most obvious consideration is flight risk and the seriousness of the case. In this case, the Magistrate granted permission before committal proceedings had been undertaken so he could only have had a limited understanding of the case. In a case of this seriousness, he should have adjourned the application at least until the proceedings in the Magistrate's Court had taken place and a proper evaluation of the strength of the Crown case could be undertaken in this Court. In my view, bonds to the level that may be issued by magistrates, a maximum of $10,000, provide no assurance whatsoever that those offenders who have been granted permission to leave the kingdom on serious charges, will return.

In exceptional circumstances, however bail may be granted to allow an offender to leave Tonga before trial. However, that can only be in cases where the charges do not fall into the serious category, a serious penalty is unlikely, and where the offender has a very significant link with Tonga so that he is very unlikely to abscond. A very careful analysis of the relevant issues must be undertaken before a person facing criminal charges is allowed bail to travel overseas.

Accordingly, I dismiss the appeal in so far as the appellant's request to have the security reduced is concerned. However on the Crown's application to have the issue of variation of bail considered de novo on this appeal, I make the following orders under sections 80-81 Magistrate's Court Act;

1. The order of the Magistrate allowing the appellant to travel to China on deposit of $10,000 security is quashed.

2. The appellant is not granted an extension of bail to travel outside Tonga.

If the Crown wishes to alter any of the existing terms of bail pending trial then they can seek variations when the matter comes before this Court now that the committal proceedings have been resolved.

DATED: 16 AUGUST 2012

JUDGE