Police v Li [2017] WSSC 84 (23 June 2017)

THE SUPREME COURT OF SAMOA

Police v LI [2017] WSSC 84

Case name:	Police v Li
Citation:	[2017] WSSC 84
Ruling date:	23 June 2017
Parties:	POLICE (Prosecution) v KEIJI LI male of Lotopa and China Accused
Hearing date(s):	21 June 2017
File number(s):
Jurisdiction:	Criminal
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Clarke
On appeal from:
Order:	The charges against the accused are very serious charges. In all the circumstances, the factors for the grant of variation of his bail conditions are far outweighed by those against the grant of the variation of his bail conditions. The application to vary bail conditions is accordingly dismissed. The accused is remanded on the same bail conditions to re-appear for hearing week commencing 17 July 2017.
Representation:	L. Sio for Prosecution TH Schuster for defendant
Catchwords:
Words and phrases:	motor vehicular manslaughter and negligent driving causing the death
Legislation cited:	Section 111 of the Criminal Procedure Act 2016, sub-section (3), Section 106 of the CPA
Cases cited:	Papu v Police [2006] WSSC 39 (10 July 2006) Sapolu CJ, In Bogong Zheng v R [2013] NZCA 423, the New Zealand Court of Appeal, Bian v New Zealand Police
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

KEIJI LI male of Lotopa and China
Accused

Counsel:
L. Sio for Prosecution
TH Schuster for Accused

Ruling: 23 June 2017

R U L I N G ON APPLICATION TO VARY BAIL CONDITIONS

1. The accused is said to be 38 years of age. According to his affidavit dated 15^th June 2017, he is a citizen of the Peoples Republic of China (“PRC”) and holds a PRC passport. He is a mobile telecommunications engineer. He came to Samoa to work for the Fiji registered telecommunications company Huawei engaged by Bluesky Company Limited to build and launch its 4G mobile phone network. He has been in Samoa since February 2017.
2. The accused is charged with motor vehicular manslaughter and in the alternative, negligent driving causing the death of Tanielu Venasio Pati. He is also charged with a further three charges of negligent driving causing bodily injury allegedly suffered by three others individuals as well as driving whilst unlicensed. These charges arise out of an alleged motor vehicle accident on the West Coast Road at Puipa’a on the 11^th March 2017.
3. The charges against the accused are scheduled to be heard in the Supreme Court on the 17^th July 2017.

The Application:

4. This is an application by the accused for an order to vary his bail conditions to grant him “leave to leave the jurisdiction”. The accused seeks to leave the jurisdiction as “he desires to return temporarily to and B2302 Junheng Li Building, Long Hua District, Shenzhen, Guang Dong Province, People’s Republic of China to provide support and witness the birth of his second child expected anytime in the last week of June or first week of July 2017.” Annexed to his affidavit are copies of documents (not being originals) with certified translations. The translated documents indicate that his wife is due to give birth between June 30 and 6 July 2017. The medical reports show that the fetus is “healthy (normal)” and “everything is normal”.
5. The accused offers a $10,000.00 bail bond to secure his return.
6. Counsel for the accused and prosecution confirmed their understanding that Samoa does not have an extradition treaty with the PRC.
7. The application by the accused is strongly opposed by the prosecution on the grounds that:
   • (a) There is a very high likelihood of the accused not returning to Samoa to attend the hearing;
   • (b) The accused is charged with serious offences;
   • (c) The accused’s livelihood and family are in China and as such, the likelihood of him returning to answer the charge is very low; and
   • (d) There is strong prosecution evidence against the accused and as such, the real likelihood of a conviction is high.

Relevant Law:

8. Unlike the judgment of His Honour Sapolu CJ in Papu v Police [2006] WSSC 39 (10 July 2006) referred to by Prosecution counsel, this application is not one for the grant of bail as the accused is already on bail but is an application by the accused to vary his bail conditions. Section 111 of the Criminal Procedure Act 2016 (“CPA”) states:

“111. Variation of conditions of bail - (1) If the defendant has been granted bail, the Court may, on the application of the defendant or the informant, make an order varying or revoking any condition of bail or substituting or imposing any other condition of bail.”

9. Section 106 of the CPA deals with conditions of bail and provides at sub-section (3):
   

“(3) Whether or not the Court or remand officer imposes a condition under subsection (2), the Court or remand officer may impose any other condition that the Court or remand officer considers reasonably necessary to ensure that the defendant:
(a) appears in Court on the date to which the defendant has been remanded;”

10. In Bogong Zheng v R [2013] NZCA 423, the New Zealand Court of Appeal dealt with an appeal of a High Court judgment refusing an accused’s application to vary his bail conditions to permit his return to the PRC for his wedding. The appeal was dismissed. Relevantly however, the New Zealand Court of Appeal dealt with matters including the role of a surety and extradition treaties and stated:

“[21] The Judge referred to a decision he had made some days previously, Bian v New Zealand Police. In Bian v New Zealand Police, the Judge commented that the purpose of a surety was to fund extradition proceedings should an accused decide not to return, having been permitted to leave the jurisdiction on payment of a surety. The Judge adopted that comment in the present case as well. It was argued that this misstated the principal purpose of the surety which is to provide an incentive for the person who has been permitted to leave the jurisdiction to return as required by the terms of his or her bail, thus reducing the risk of the failure of return to a level which satisfies the Court that the permission to leave the jurisdiction should be given.

[22] We accept that the purpose of using a forfeited surety to fund extradition proceedings is very much a secondary consideration, but we do not see this as having been a significant component of the decision made by the Judge in the present case. The important point is that travel to a country with which there is no extradition treaty involves an additional risk for the New Zealand authorities that, in the event the person who has been permitted to leave the jurisdiction fails to return, it may not be possible to enforce their return through the use of extradition or similar processes. We agree with the Judge that this is a relevant consideration though it is not a controlling one.

[23] As we mentioned earlier, we see cases such as the present as being fact-specific. What is required is a careful balancing of the factors for and against the application...”

Discussion:

11. The key matter at issue in respect of the application by the accused to vary his bail conditions is the accused risk of flight and his failing to appear at the hearing scheduled for week commencing 17 July 2017 if this application is granted. The importance of this factor in respect of bail is contained in the CPA (see for example: sub-sections 99(a), 106(3)(a)).
12. The accused entered Samoa in February 2017 as a visitor on behalf of Huawei to carry out work for BlueSky. This was to assist with the build and launch of the BlueSky 4G network. He has no family connections to Samoa, no ongoing employment here nor any assets or property in the jurisdiction. But for these proceedings, I expect the accused would have by now departed Samoa.
13. According to his counsel, the accused wishes to return to the PRC on ‘humanitarian grounds’ to witness the birth of his second child. His counsel however acknowledged that the likelihood of the accused not appearing for hearing is “strong” but that his risk of flight was nevertheless in the ‘realm of possibilities’.
14. Based on the material before the Court, I assess the risk of the accused failing to return to Samoa to face trial to be high. Counsel for the accused himself acknowledged that risk as “strong”. Clearly, the accused’s desire to be with his wife for the birth of their second child is a strong desire. It is for that reason he has made this application. Given his strong desire to be with his wife and family for the birth of their second child, there is a material risk that on returning to the PRC and being there with them for the birth of that child, he may also then have a strong desire to remain there following the birth and not appear for his trial. This risk is exacerbated by the fact that if he returns and if he is convicted of the charges before the Court, he may face an imprisonment term that would separate him from his family for a period of time.
15. The substantive trial is scheduled for the week of 17 July 2017, approximately 2 weeks following the expected birth of their second child. The medical reports show that the fetus is “healthy” and “everything is normal”. There is therefore no present known risk to the unborn child. Whilst the desire of a father to be present to witness the birth of a child is understandable, should he be found not guilty following trial, he will be able to be reunited with his family within weeks of the expected birth.
16. As the New Zealand Court of Appeal in Bogong Zheng v R (supra) rightly noted, the fact that Samoa does not have an extradition treaty with the PRC is an additional risk for the Samoan authorities that “in the event the person who has been permitted to leave the jurisdiction fails to return, it may not be possible to enforce their return through the use of extradition or similar processes.”
17. The bail bond of $10,000.00 put forward by the accused falls well short of satisfying me that the bail bond would sufficiently reduce the risk of the accused failing to return.

Result:

18. The charges against the accused are very serious charges. In all the circumstances, the factors for the grant of variation of his bail conditions are far outweighed by those against the grant of the variation of his bail conditions. The application to vary bail conditions is accordingly dismissed.
    
19. The accused is remanded on the same bail conditions to re-appear for hearing week commencing 17 July 2017.

JUSTICE LEIATAUALESA DARYL CLARKE