Gan v The Queen

[2010] WASC 26

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   GAN -v- THE QUEEN [2010] WASC 26

CORAM:   McKECHNIE J

HEARD:   10 FEBRUARY 2010

DELIVERED          :   19 FEBRUARY 2010

FILE NO/S:   MCS 3 of 2010

BETWEEN:   TAO GAN

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Bail - Foreign national - Whether bail granted to allow return to country of origin - Risk of non-return

Legislation:

Nil

Result:

Bail variation refused

Category:    B

Representation:

Counsel:

Applicant:     Mr D P A Moen

Respondent:     Ms P A Aloi

Solicitors:

Applicant:     Gunning Barristers & Solicitors

Respondent:     Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

Lijo v The Commonwealth DPP [2003] WASCA 4

Ribot‑Cabrera v The Queen [2004] WASCA 101

McKECHNIE J: 

What is the issue in these proceedings?

1. Mr Gan is a Chinese mining executive who regularly travels to Australia for meetings connected with his work.  On 29 January 2010 he was selected for a baggage search on arrival in Perth.  Two DVDs allegedly containing child pornography were located and he has been charged with bringing them into Australia.  The magistrate gave him bail on conditions that require him to remain in Australia until his trial is over.  He wants to go back to his family and business in China returning for court as necessary.  Does the risk of non‑return outweigh the likelihood that Mr Gan will appear in court?  The answer is yes.

2. The prosecution will proceed on indictment.  The case is objectively strong.  If convicted, the likely penalty is imprisonment.  Mr Gan intends to plead not guilty.  Although the trial will be short and the prosecution will co‑operate to bring it on quickly (enquiries have indicated a possibility of May 2010) it is safer to work on the basis that there will be a delay of some months before trial.

3. Mr Gan has no particular connection with Australia apart from his frequent visits representing his company.  His wife and children live in Guangdong with him.  All his assets are in China.

4. A witness gave evidence as to the significant contact that he has had with Mr Gan in relation to the commercial affairs of Guangdong Rising Mining Company Limited, Mr Gan's employer.  That relationship seems likely to continue in 2010 as the company is engaged in negotiations with other Australian mining companies.  The CEO of Guangdong Rising Mining is a director of an Australian ASX listed company and travels to Australia from time to time to attend board meetings accompanied by Mr Gan who is the major English speaker in his company and therefore very important.  Meetings also occur in China where Mr Gan's presence is pivotal.

5. The ultimate purpose of bail is to secure a person's attendance in court.  Mr Gan has deposed that a requirement to stay in Western Australia 'would very likely see my job terminated as I would not be able to fulfil my commitments to the board if I remain in Western Australia'.

6. Mr Gan has a wife and child to support together with his family including his elderly parents.

7. The confinement to Australia until trial is economic incarceration if not social incarceration:  Lijo v The Commonwealth DPP [2003] WASCA 4; Ribot‑Cabrera v The Queen [2004] WASCA 101. This should be avoided unless there is a strong risk to the administration of justice.

8. There is an undoubted and real risk that Mr Gan will not appear in answer to a charge which, if conviction follows, will likely land him in prison far away from his family and friends.  Moreover, he is proposing to lodge a cash security but will not be advancing the money himself.  It will come from a friend in Sydney and his employer.

9. Australia has no extradition treaty with China so if Mr Gan fails to appear the prospects of his involuntary return are slim.  On the other hand, if he fails to appear effectively he could never come to Australia on business again.

10. Although there are disincentives for Mr Gan to return to Australia there are also incentives.  The cash deposit is an incentive to the company to ensure Mr Gan's attendance.  Moreover, its negotiations and further business prospects in Australia will be imperilled if Mr Gan does not return.  Of course, if he is convicted and sent to gaol the company will lose his services. 

11. The balance is between the interests of the Commonwealth in a trial and the interests of a person presumed to be innocent of that offence, who faces separation from his family and possible termination of his employment if not allowed to return home.

Conclusion

1. Variation of bail is refused.  The following factors are decisive:

   •No extradition treaty with China.

   •No ties with Australia apart from his employer's business.

   •The amount of cash proposed is insufficient to guarantee his return.

   •Mr Gan is putting up no security himself.

   •The likelihood of gaol if convicted.

2. These factors substantially outweigh the factors in favour of a variation, notwithstanding the result is a form of economic and social incarceration.