Ian Yan Zhang v Fortune Holding Group Pty Ltd(ACN 141 953 773) , Fortune Holding Developments Pty Ltd(ACN 142 122 852) , Fortune Homes Pty Ltd(ACN 143 589 388) and Yi Jun Quan
[2018] VSCA 46
•2 March 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0028
| IAN YAN ZHANG | Applicant |
| v | |
| FORTUNE HOLDING GROUP PTY LTD (ACN 141 953 773) | First Respondent |
| FORTUNE HOLDING DEVELOPMENTS PTY LTD (ACN 142 122 852) | Second Respondent |
| FORTUNE HOMES PTY LTD (ACN 143 589 388) | Third Respondent |
| YI JUN QUAN | Fourth Respondent |
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| JUDGE: | BEACH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 2 March 2018 |
| DATE OF JUDGMENT: | 2 March 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 46 |
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CRIMINAL LAW – Bail – Bail pending application for leave to appeal against sentence – Applicant sentenced to imprisonment for 4 weeks on 21 charges of contempt – Sentence will be fully served before application for leave to appeal heard – Proposed appeal would be rendered nugatory if bail not granted – Exceptional circumstances – Bail granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J McLoughlin | Victoria Legal Aid |
| For the Respondent | No appearance | HWL Ebsworth |
BEACH JA:
On 11 December 2017, a judge of the Trial Division found the applicant guilty of 21 charges of contempt.[1] On 13 February 2018, the judge sentenced the applicant to four weeks’ imprisonment. In sentencing the applicant, the judge pronounced the following order:
The defendant, Ian Yan Zhang, is adjudged guilty of contempt of court in that, in breach of the order of Macaulay J on 18 September 2013 (as varied) he withdrew $24,857.34 in 18 separate withdrawals, made between 26 September 2013 and 4 June 2014, from eight bank accounts; and Ian Yan Zhang is convicted and sentenced to four weeks’ imprisonment which expires Tuesday 13 March 2018.
[1]Fortune Holding Group Pty Ltd v Zhang [No 2] [2017] VSC 378.
The applicant wishes to appeal against the sentence imposed. His proposed grounds of appeal are that the sentence was manifestly excessive; the judge erred in receiving submissions from the respondents about the appropriate length of a sentence of imprisonment; and the judge erred in failing to consider discretely whether the sentence should be suspended.
This morning, the applicant made an application for bail. In applying for bail, the applicant submitted that exceptional circumstances were demonstrated in his case. In making that submission, the applicant relied principally upon the fact that, if bail is not granted, he will have served the entirety of the judge’s sentence before his application for leave to appeal can be heard and determined. If bail is not granted, any appeal would thus be rendered nugatory. In further support of his application, the applicant relied upon the fact that he had never previously served a term of imprisonment, and he has a wife and two children to support. It was also submitted that ‘there is a real prospect that the sentence appeal might be determined in the applicant’s favour’.
This is not the occasion on which to consider the merits of the applicant’s proposed appeal. It is sufficient to say that the circumstances relied upon by the applicant this morning are sufficiently exceptional[2] to justify a grant of bail being made on appropriate terms. Specifically, the fact that the applicant’s proposed appeal would be rendered nugatory if bail is not granted tells strongly in favour of bail being granted to an applicant who has never previously served a term of imprisonment.
[2]See Re Zoudi (2006) 14 VR 580; Ash v The Queen [2010] VSCA 117; Toganivalu v The Queen [2014] VSCA 141.
The applicant lives in Sydney. In the course of the hearing before the judge, the applicant gave evidence that he ‘was about to secure employment with a new investment bank in Melbourne’. This morning I was told, however, that the applicant wishes to reside in his home with his family in Sydney at an established address. While I have some concern about permitting the applicant to reside outside Victoria, the risk this course entails may be satisfactorily managed by the provision of an appropriate surety or other conditions.
Mr McLoughlin, on behalf of the applicant, submitted this morning that no surety was necessary in this case. In support of that submission, Mr McLoughlin noted that the applicant had attended before the primary judge on each day of his contempt proceeding — and even after he was warned that imprisonment was a potential outcome of that proceeding. However, having regard to the established breaches of court orders by the applicant, in my view, bail should only be granted upon the provision of an appropriate surety to secure the applicant’s attendance upon the hearing of his application for leave to appeal. An appropriate surety in this case would be $25,000. The provision of such a surety will make the risk of the applicant failing to answer his bail not unacceptable.[3]
[3]See s 4(2)(d)(i) of the Bail Act 1977.
Accordingly, bail will be granted with a surety of $25,000 and upon terms that the applicant reside at his specified address in Sydney.
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