Ho v Director of Public Prosecutions

[1996] QCA 23

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 859 of 1996
Brisbane
Before	Macrossan C.J. Fitzgerald P. Davies J.A.

[Ho v. Queensland Director of Public Prosecutions)

BETWEEN:

TRUNG NHA HO Appellant

AND:

DIRECTOR OF PUBLIC PROSECUTIONS Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 01/03/1996

This is an appeal from an order made by a Chamber Judge on 11 January 1996 refusing the

appellant’s application for bail. The appellant had been arrested on 21 December 1995 on a

warrant issued on 12 May 1995 and charged with eight offences against the Drugs Misuse Act

1986; six counts of supply of a dangerous drug (heroin), one count of possession of a thing used

in connection with a crime, and one count of trafficking in heroin. The trafficking charge is

based upon the six supply counts, each of which involved the sale of heroin to a covert police

operative. All six sales occurred in a period of slightly more than one month, and the total sale

price of the heroin supplied was about $7,000-$8,000. After others alleged to have been involved

in the offences had been arrested, the appellant was located and taken into custody by police at

the Sydney International Airport on 20 December 1995 shortly prior to his departure for Vietnam,

his country of origin. At the time, he was travelling under his own name and using his own
passport.

The applicant, who is aged 22 years, has resided in Australia since he was 16 years old, and has

generally resided with his mother in Sydney and, until his parents separated, with his father. He

has a reasonable level of education and work record, and employment and accommodation with

his mother are available to him if he is released on bail. He has no prior convictions for any

offence. Further, his passport has been confiscated and his elder brother, who came to Australia

with their father prior to the appellant and his mother arriving, has offered a surety of $10,000

which is said to represent the “totality of the savings of the entire family”. According to the

appellant, he was not departing for Vietnam to evade arrest, but to visit a sister who continues

to reside there.

The appellant has four brothers and three sisters, all of whom have migrated to Australia except

for the sister who remains in Vietnam. There is no suggestion that any member of the family

other than the appellant is not an exemplary citizen, and the appellant’s brother, who is prepared

to provide the surety, is married with a child and in full-time employment. Apart from one of

the appellant’s sisters in Australia who is unemployed, all of his siblings are either employed or

students.

Various conditions of bail were offered by the applicant and the prosecution did not ask for

further conditions, although an opportunity for that to be done would be provided if bail were to

be granted. It is likely that the parties could agree on appropriate conditions. The prosecution’s

position is that the Chamber Judge was correct to refuse bail, although it does not seek to support

his reasons and agrees that it is necessary for this Court to make a fresh determination.
On the prosecution version of events, two covert police operatives made contact with a group of

Asian persons residing in Sydney in the course of a covert drug operation conducted in the Gold

Coast and Brisbane areas, codenamed Senate. Some of the five members in the group have

already been dealt with in the Brisbane District Court, and some participants have received

substantial terms of imprisonment. Broadly speaking, the covert police operatives made

purchases of heroin from a number of persons in the group, including the appellant, after contact

was made with them through a number of mobile telephone numbers, including one for which

the appellant was the subscriber. Hire cars were used for delivery purposes, with the heroin

located near where the money was arranged to be paid. The appellant was deeply involved and

participated on all occasions in the initial contacts and on most occasions in the delivery of

heroin and receipt of payment. The quantities of heroin varied from two to five grams at a price

of $500-$600 per gram, with a total of 16 grams of heroin at purities between 40% and 60%

involved. Such heroin has been described by the prosecution as “... a real risk to the user”.

Objections to bail raised by the prosecution are the possibility that extradition proceedings from

some other State might be necessary and that the pecuniary penalty order to be sought in respect

of the amount received for the heroin supplied might not be able to be enforced. Further,

according to an affidavit sworn by a Queensland police officer:

“the Defendant is likely to reoffend. Intelligence suggests that it is highly likely that the Defendant will continue to sell heroin on a regular basis if released on bail.”

The basis for that assertion is given.

The police officer has also expressed the opinion that, if the appellant is released on bail:

“... it is highly likely he will return to Syndey as he has no ties whatsoever in
Qld. All the defendants family and work is in Sydney.
... Due to the serious nature of the charges against the accused and the strong
likelyhood of the accused upon being convicted and receiving a custodial
sentence it is firmly believed that if released the accused would fail to appear and
travel interstate and emerge within in Asian communities in the southern States
where his identity would be easily hidden and his detection difficult.”

In summary, the prosecution’s opposition to the appellant’s request for bail is based on the

seriousness of the charges, the strength of the prosecution case and the lack of connection

between the appellant and Queensland, or even Australia, with the attendant risk that he might

not answer bail, and that it might be difficult to recapture him. At one point, the prosecution

considered that a material factor in relation to recapture if the need arose was that “... police,

because of a lack of training, generally have less capacity to identify and distinguish between

persons of Vietnamese origin than their capacity to identify and distinguish between persons of

Caucasian origin”. However, that assertion is no longer made.

Nonetheless, it was a factor which influenced the Chamber Judge. His Honour considered the

$10,000 surety insufficient to give him confidence that the applicant will answer his bail.

Although noting in the appellant's favour that he is young, has no previous convictions, has

connections with Australia and that the seriousness of the offences are not high on the overall

scale, he considered the balance lay in favour of not granting bail because of the matters which

we have referred to as relied upon by the prosecution. The final factor which his Honour took

into account in not granting bail was the difficulty in recapturing him if he failed to answer his

bail; in particular the difficulty of Australian Police in locating the applicant. His Honour was

aware of the submission that this amounted albeit at least indirectly, to discrimination on the

basis of ethnic origin. He did not think it did. He said it was simply a fact of life that Police in

this country because of a lack of training, have less capacity to identify and distinguish between Vietnamese than between Caucasians. Although it was pointed out to him that Vietnamese

police officers work in the Cabramatta area, his Honour said that he had to take into account that

those police officers would have duties to perform and pursue and that an interstate warrant

would not be to them of high priority.

Before this Court, the prosecution conceded that, in the paragraph last quoted, his Honour had

taken an irrelevant factor into account. In the circumstances, it is unnecessary to discuss the

point in detail. However, it should be made clear that there is no justification for refusing bail

to a person of Asian origin and appearance where, in similar circumstances, it would be granted

to another person with a different background and appearance.

The question remains whether bail should be granted; that depends on the Bail Act 1980, which

was discussed and criticised by the Full Court in R. v. Hughes [1983] 1 Qd.R. 92. At p. 98,

Connolly J., with whom Kelly and Macrossan JJ. agreed, pointed out that, subject to the Act,

there is an obligation to grant bail, but that, by s. 16, bail must be refused in certain

circumstances. The issue which is presently material is whether there is an unacceptable risk

that, if released on bail, the accused would fail to appear and surrender into custody (sub-s.

16(1)(a). Sub-section 16(2) provides:

“In assessing whether there is an unacceptable risk with respect to any event specified in subsection (1)(a) the court or police officer shall have regard to all matters appearing to be relevant and in particular, without in any way limiting the generality of this provision, to such of the following considerations as appear to be relevant -

(a)         the nature and seriousness of the offence;

(b)        the character, antecedents, associations, home environment, employment and background of the defendant;

(c)         the history of any previous grants of bail to the defendant;

(d)        the strength of the evidence against the defendant.”

Of the four matters mentioned, paragraphs (a) and (d) of sub-s. 16(2) favour the refusal of bail,

paragraph (b) favours its grant and paragraph (c) is immaterial. Another material factor in favour

of the grant of bail is the surety offered which, although not a large amount viewed objectively,

is of great significance to the appellant’s family, with whom he seems closely associated. On the

other hand, he was apprehended seeking to leave Australia and intends to leave Queensland.

Leaving aside entirely any matter related to his Vietnamese background and appearance, as a

young person who, (on the prosecution case) has engaged in relatively sophisticated serious

crime, there is a real risk that he might not answer bail, in which event he would quite likely not

be easily located and recaptured. Like any other young offender in similar circumstances, he

could be expected to move about and obtain refuge with persons of similar proclivities or groups

of young persons pursuing unorthodox and often itinerant lifestyles and activities.

Taking all those matters into account, we are of opinion that there is an unacceptable risk that if

the appellant were released on bail he would fail to appear and surrender into custody.

Accordingly, we refuse bail. In the circumstances, the only order necessary is that the appeal be

dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 859 of 1996
Brisbane
[Ho v. Queensland Director of Public Prosecutions]
BETWEEN:

TRUNG NHA HO Appellant

AND:

DIRECTOR OF PUBLIC PROSECUTIONS Respondent

MACROSSAN C.J.
FITZGERALD P.

DAVIES J.A.

Judgment delivered 01/03/1996

REASONS FOR JUDGMENT - THE COURT

Appeal against refusal of application for bail dismissed.

CATCHWORDS:	Appeal against order refusing appellant’s application for bail - appellant charged with eight offences against the Drug Misuse Act 1986 - appellant of Vietnamese origin - $10,000 surety offered by family - appellant apprehended whilst seeking to leave Australia and intends to leave Queensland - whether a real risk exists that the appellant might not answer bail.
Bail Act 1980, s. 16 R. v. Hughes [1983] 1 Qd.R. 92
Counsel:	T. Martin for the Appellant M. Byrne Q.C. for the Respondent
Solicitors:	Boe & Callaghan for the Appellant Queensland Director of Public Prosecutions for the Respondent
Date(s) of Hearing:	8 February 1996