Lin v The Queen - [2018] WASC 103

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   LIN -v- THE QUEEN [2018] WASC 103
CORAM:   FIANNACA J
HEARD:   6 MARCH 2018
DELIVERED          :   8 MARCH 2018
PUBLISHED           :   5 APRIL 2018
FILE NO/S:   MBA 7 of 2018
BETWEEN:   XU LIN
Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law - Bail application - Application to vary bail to travel interstate and overseas for business - Country of destination has no extradition treaty

Legislation:

Bail Act 1982 (WA), s 14, s 22, sch 1, pt C, cl 1, cl 3

Result:

Application refused

Category: B

Representation:

Counsel:

Applicant	:	Mr D Grace QC & Mr G C R Yin
Respondent	:	Ms P A Aloi

Solicitors:

Applicant	:	D G Price & Co
Respondent	:	Director of Public Prosecutions (Cth)

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

Aurora v Coburn [2015] WASC 440; (2015) 257 A Crim R 163
Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99

FIANNACA J:

The history of the application

The applicant, Xu Lin, was charged on 20 October 2017 with five counts of dealing with money reasonably suspected to be the proceeds of crime.[1]
[1] Criminal Code Act (Cth) s 400.9 (the Criminal Code).
The charges relate to five transactions on separate days commencing 27 August 2017 and ending on 20 September 2017, in which the applicant is alleged to have deposited large sums of money in cash at the Crown Casino in Burswood, totalling $1,700,000. The deposits ranged from $60,000 on 27 August 2017 to $700,000 on 20 September 2017.
The first count, relating to the deposit on 27 August 2017, is a charge under s 400.9(1A), which concerns dealings with money to the value of less than $100,000. The other charges are under s 400.9(1), which concerns dealings with money to the value of $100,000 or more.
The applicant was released on a bail undertaking. Since 13 December 2017, the conditions of bail have been:
(1)a personal undertaking in the amount of $100,000;
(2)a surety in the amount of $100,000;
(3)a condition that he surrender all passports held by him to WA Police and that he not apply for any further passport;
(4)a condition that he not attend within 100 metres of the Perth International or Domestic Air Terminals, Port or Western Australian state border, other than when travelling interstate as permitted by the bail conditions;
(5)a condition that he report to the Kensington Police Station every Monday, other than when travelling interstate, as permitted by the bail conditions; and
(6)a condition allowing the applicant to travel, provided that at least 48 hours prior to departure he provides a copy of a proposed itinerary to specified officers of the WA Police and the Commonwealth Director of Public Prosecutions.
Obviously, that permissive condition relates to travel within Australia, given that the applicant has had to surrender his passports.
The charges are currently in the Magistrates Court in Perth, adjourned to a committal mention hearing on 23 March 2018.
After an appearance in that court on 24 January 2018, the applicant applied for a variation of his bail to allow him to travel to China for both business and personal reasons. I will refer to the proposed new conditions later, but it is sufficient to say at this stage that the applicant is prepared to have his personal undertaking increased to $1 million and the surety increased to $200,000. He is also prepared to make a cash deposit in the amount of $100,000. At the time that the application to vary bail was heard in the Magistrates Court, the amount of the personal undertaking that the applicant was prepared to provide was $100,000.
The application was heard by the Chief Magistrate on 6 February 2018. The prosecution opposed the application. The Chief Magistrate considered an affidavit sworn by the applicant in support of the application, in which he explained his need to travel to China, firstly to visit his family, in particular his father, and secondly to pursue his business interests, which required him to visit investors in China. His Honour considered the latter to be of greater significance. The affidavit also spoke about the applicant's ties to Australia and the fact that he had travelled to the eastern states and returned since he has been on bail, even though he is aware that he faces a term of immediate imprisonment if he is convicted of the offences with which he is charged.
The prosecution pointed to the fact that there is no formal extradition arrangement with China and that the applicant has substantial assets in China.
The Chief Magistrate considered that the matter was finely balanced, but given the matters raised by the prosecution, he was satisfied that bail should not be varied because of the risk of flight and the difficulty in bringing the applicant back to face the charges if he did not return voluntarily. He was not satisfied that the applicant's family interests and business interests could not adequately be dealt with from within Australia. Accordingly, the application was refused.
The present application is under s 14(2) of the Bail Act 1982 (WA) (the Bail Act). It invokes this court's jurisdiction under s 14(1) by which the court may exercise afresh the power to grant bail or vary the conditions of bail conferred on a Magistrate by s 13 and sch 1, pt A of the Bail Act. It is not an appeal from the Magistrate's decision refusing to vary the applicant's bail.
When the matter was heard in the Magistrates Court, the proposed travel dates were in February 2018. The application now is to vary bail to allow the applicant to travel to China between 24 March 2018 and 10 April 2018, which is the period immediately after his next appearance in the Magistrates Court.
A number of affidavits have been filed on behalf of the applicant. There are two affidavits from the applicant's solicitor, Mr Yin, and three affidavits from the applicant. The information in those affidavits includes the history of the proceedings, information about the applicant's personal circumstances and his family, and information about the applicant's businesses and assets, including reasons why he needs to travel to China to maintain the commercial viability of his businesses.
There is also a letter from the applicant's father explaining why he cannot travel to Australia to visit the applicant. I have also received a medical certificate in relation to his father.
The applicant has also filed an affidavit from his surety, indicating he is prepared to increase the surety amount to $500,000, and attaching documentation to support his capacity to meet forfeiture of that sum if called upon.
The respondent, Detective Senior Constable Macadoo, the officer who issued the prosecution notice, has also filed two affidavits sworn by him. The first of those affidavits attaches the statements of material facts alleged by the prosecution in respect of the charges, witnesses' statements and a log of the video record of interview conducted with the applicant. A disc containing the video record of interview was also filed with the affidavit. I have not viewed the recording, being content to rely on the log of the interview, which the parties seemed to consider was sufficient to indicate the gist of what the applicant had said.
The second affidavit filed by the respondent attaches information concerning the transfer of money by the applicant from a bank account in China from 20 December 2017 to 12 February 2018 inclusive.
I will refer to relevant aspects of those affidavits when I deal with the merits of the application shortly.
The legal principles applicable on an application of this kind were set out in Milenkovski v The State of Western Australia.[2] It is not necessary for me to refer to them in detail. It is sufficient to say that the application is governed by the provisions of the Bail Act, which is intended to be a comprehensive code on the subject of bail in this State. In particular, the application in this case is governed by cl 1 of pt C of sch 1 of the Bail Act, as affected by cl 3 of that schedule.
[2] Milenkovski v The State of Western Australia [2011] WASCA 99; (2011) 42 WAR 99 [31].
Clause 1 provides that the grant or refusal of bail is in the judicial officer's discretion. It requires that the discretion be exercised having regard to questions posed by paragraphs (a) to (g) of that clause, as well as to any others which the judicial officer considers to be relevant. Those paragraphs are concerned with the possible consequences if the applicant is not kept in custody (paragraphs (a) to (d)) and whether there are conditions which could reasonably be imposed which would reasonably remove the possible consequences in each case (paragraphs (e)). The questions address issues that are relevant to whether bail should be granted.
At the stage of proceedings when one is considering a variation of the conditions of bail that has been granted, the question is no longer whether there are reasons why the applicant should not be kept in custody, but the possible consequences identified in paragraphs (a) to (d) continue to inform the question of what conditions are required. For the purposes of this application, the only consequence that the respondent has identified that is relevant is that referred to in paragraphs (a) of cl 1, namely, that the applicant would fail to appear in court in accordance with his bail undertaking. In considering whether the applicant would do that, the court is required to have regard to cl 3 of sch 1, pt C, which provides a number of factors that must be taken into account when answering the questions in paragraphs (a) to (d) of cl 1.
In my opinion, by their nature, the factors in cl 3 are also relevant to the question of what conditions would suffice to remove the possibility under any of paragraphs (a) to (d) of cl 1, if it exists. The factors, in summary, concern:
(a)the nature and seriousness of the offences and the probable method of dealing with the applicant for them if he is convicted;
(b)the applicant's character and antecedents and current personal circumstances, which relevantly in this case include his financial position;
(c)the history of any previous grants of bail to him; and
(d)the strength of the evidence against him.
The respondent submits that there is a real possibility that the applicant would fail to appear in accordance with this bail undertaking because of the strength of the case against him and the likelihood that he would receive a term of immediate imprisonment if he is convicted of the offences charged. The respondent submits that the bail conditions as currently formulated are reasonable to remove that possibility. However, if the applicant is allowed to travel to China, then, notwithstanding the proposed increases in the undertakings and the proposed cash deposit, the conditions would no longer be sufficient to reasonably remove the possibility that the applicant would fail to appear.
As President McLure indicated in Milenkovski, once the questions posed in paragraphs (a) to (d) of cl 1 have been answered, they go to inform the exercise of discretion, which is a process of weighing or balancing competing factors. At that stage, when the court is considering whether to grant bail, there is no presumption either for or against bail. It seems to me that the same reasoning necessarily applies when the question is whether a condition of bail should be varied.
The issue on this application is not whether bail is appropriate. Bail has been granted to the applicant and it was appropriate to do so, having regard to all the relevant factors. The issue is what conditions are required to ensure his attendance at trial ‑ specifically, whether the conditions should be varied to allow his travel to China. That falls squarely within the exercise of discretion. There is no presumption that an accused should be allowed to travel outside the jurisdiction, even if that was a regular aspect of his occupational or social life before he was charged.
It is necessary to weigh the applicant's personal circumstances, including his reasons for travelling, the impact on his business and personal interests if he be denied the opportunity to travel to China, against the risk that he will not return for his trial and that the administration of justice will be impeded, if not defeated.
I turn to consider the factors under cl 3, and will then return to matters in relation to cl 1.

Clause 3(a) - The nature and seriousness of the offences and probable method of dealing with the accused if convicted

I deal first with the nature and seriousness of the offences and the probable method of dealing with the accused if convicted.

The alleged facts

The facts alleged in respect of the offences are set out in the statements of material facts.
The applicant is alleged to have attended the Pearl Room at the Crown Casino in Burswood on 27 and 29 August 2017, and on 6, 8 and 20 September 2017, taking cash with him on each occasion in a variety of containers, from an envelope to a backpack, and depositing the cash with the cashier, being $60,000, $145,000, $200,000, $595,000 and $700,000 respectively.
A counterfeit $50 note was located on 6 September 2017, but that does not appear to be a significant factor. It is certainly not something that I place any weight on in this application.
The accused was arrested at the casino on 20 September 2017. It appears that was in the vicinity of the cashier's booth. He was interviewed the same day by police. An audio‑visual recording was made of the interview. At this stage, no issue is taken with the admissibility of the interview. It does not bind the applicant to any particular course at trial, but it means I can have regard to the contents for the purposes of these proceedings.
The applicant admitted making the deposits and gave explanations as to where the cash had come from.
For the first three deposits, he said the money was accumulated cash from various sources, including withdrawals from his bank accounts, cash proceeds from his business, BDFG Holdings, which was engaged in the export of baby formula, and cash‑outs from his winnings at Star Casino in Sydney and Crown Casino in Burswood.
In relation to the deposit of $595,000, he said that two associates who were visiting from China gave him the cash to gamble with. It seems that was to be on their behalf, as they had decided not to gamble themselves, because they did not like the feel of the casino and did not feel lucky.
In relation to the deposit of $700,000, he said he had asked his business partner, who I will refer to as J, who is the applicant's co‑accused and who was in China at the time, if he could use some cash to play at the casino. He said he requested $700,000 because, when he had finished gambling with it, he planned to purchase a property in Sydney for approximately $1,500,000.
The Crown alleges that some of the applicant's explanations are inherently implausible, and that there is other evidence that is inconsistent with the explanation, in particular in relation to the deposit of $700,000.
As to the money which the accused claims was given to him by his two associates, he said they had brought the cash into Australia with them. Investigations show that those associates had not declared bringing any currency over the sum of $10,000 when they travelled to Australia, and there is no evidence of them having withdrawn any cash from financial institutions registered in Australia with the Australian Transaction Reports and Analysis Centre (AUSTRAC), while in Australia. They left Australia on 8 September 2017, the same day the money was deposited by the applicant.
The Crown will also rely on WeChat messages between the applicant and J, referring to J giving the applicant $200,000 in a cardboard box that appears to be connected with a money‑counting machine. The context of the conversation suggests the applicant had concealed from someone the fact that the box belonged to J.
The Crown also intends to rely on messages extracted from the applicant's mobile telephone concerning the $700,000, which suggests that J first approached the applicant about the cash, asking him if he could 'deal with it'.
That is sufficient to give an indication of the prosecution case as disclosed in the bail hearing.
The accused intends to maintain a plea of not guilty, and to proceed to trial in respect of all of the charges. They will in due course be dealt with in the District Court of Western Australia.
I have been informed by the parties that a trial is not likely to take place before December of 2018.
The offences are serious. The maximum penalty for the s 400.9(1) offences is three years imprisonment, or a $30,600 fine, or both. A consideration of the authorities in respect of sentencing under that provision reveals that the likely sentence, if the applicant is convicted, will be a term of immediate imprisonment. The applicant acknowledges that is very likely.
In Arora v Coburn[3] Mitchell J reviewed a number of cases involving sentencing for offences under s 400.9(1). The range of sentences was between six months and four years and nine months' imprisonment, with periods of six months to two years and seven months to be served before release on recognisance or parole. Of course, as his Honour indicated, that does not set boundaries within which a judicial officer must impose a sentence, or indeed is in any way required to consider as an appropriate sentence.
[3] Aurora v Coburn [2015] WASC 440; (2015) 257 A Crim R 163 [82] ‑ [91].

Clause 3(d) ‑ Strength of the evidence against the applicant

I turn to cl 3(d), which deals with the strength of the evidence against the applicant.
A bail hearing is not an occasion for the court to be making any findings about facts that will be in dispute in the trial, nor to predict the likelihood of conviction or acquittal. Nevertheless, the Bail Act requires the court to consider the strength of the evidence against the applicant. That needs to be considered in this case in the context of provisions in the Criminal Code that aid in the proof of the offence.
By s 400.9(1)(b), the Crown must prove that it is reasonable to suspect that the money is proceeds of crime. Section 400.9(2)(aa) relevantly provides that s 400.9(1)(b) is taken to be satisfied if the conduct involves a number of transactions that are structured or arranged to avoid the reporting requirements of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 (Cth) that would otherwise apply to the transactions. That is what is alleged in this case. If that is satisfied, then s 400.9(5) of the Criminal Code provides for a defence as follows:
This Section does not apply if the defendant proves that he or she had no reasonable grounds for suspecting that the money or property was derived or realised, directly or indirectly, from some form of unlawful activity.
In the context of this case, the Crown submitted that such proof by the applicant would require proof of the legitimate source of the cash. The applicant did not submit to the contrary. His case is that it may be accepted, at this stage, that there is a prima facie case against him of sufficient strength to engage the provisions of s 400.9(5).
It certainly cannot be said, in light of all the material before me, that the case against the applicant is weak.

Clause 3(b) - Character and antecedents

I turn to cl 3B, which deals with character and antecedents.
Mr Lin is a 31‑year‑old Chinese citizen who moved to Perth to study in 2007. He has lived in Perth since then and, in that time, has completed a Bachelor of Commerce degree and a Masters of International Business degree.
In 2014, Mr Lin married Ms Ting Fang, also a Chinese citizen and a permanent resident of Australia. Mr Lin has stated that he and Ms Fang intend to obtain Australian citizenship in due course. All the indications in his affidavits are that he intends to make Australia his home. It is his home at this stage. However, he has continued to travel frequently to China, where, it would seem, most if not all of his family reside.

Mr Lin has ties to this jurisdiction, besides being married to Ms Fang. He and his wife own two properties, one in Perth and the other in Sydney, and Mr Lin has an export business that operates between Australia and China, in the sense that the baby formula is exported to China. It seems, from what he said in his interview with the police, that people will actually come to Australia to buy the formula. He also claimed in the interview that they will often pay in substantial amounts of cash. It would seem, from the information that he has now provided on affidavit, without going into the detail of it, that the business is a large or significant business, and profitable.
The applicant also has other businesses. It is in relation to the other businesses that he seeks the variation to travel to China; I will come to those in a moment.
In terms of his ties to Australia, Mr Lin also places emphasis on the fact that he owns two dogs, to which he says he is very attached.
Mr Lin has no criminal history. I proceed on the basis that he comes before the court as someone who has good antecedents.

Clause 3(c) ‑ The history of any previous grants of bail

I turn next to cl 3(c), concerning the history of any previous grants of bail.
Mr Lin has been compliant with the bail conditions that have applied so far. He has been allowed to travel to the eastern states for business. He has done so on numerous occasions, and on each occasion he has provided an itinerary to the authorities and has returned. It was submitted on his behalf that he can be trusted to leave the jurisdiction and return.

Clause 1(a)(i) ‑ Whether, if not kept in custody, the applicant may fail to appear in accordance with his bail undertaking

I now turn to the questions that need to be considered under cl 1(a)(i), in particular, whether, the applicant may fail to appear in accordance with his bail undertaking.
The applicant has pointed out that, after he was interviewed by police on 20 September 2017, he was released. When he told the investigating officer that he needed to travel to Sydney, at that stage over the weekend, the officer said he did not think the applicant was a flight risk and said he would like to interview the applicant again the following week. The applicant points out that he travelled to Sydney over the weekend and then presented for another interview on 26 September 2017. He was not charged until 20 October 2017. He was allowed to retain his passport until then. He says he could have left the country during that period, but chose not to, because Australia is his home, and he intends to defend the charges.
I do not place any weight on the investigating officer's assessment of the applicant's flight risk on 20 September 2017. The comment appears to have been made in the context of the applicant wanting to travel only within Australia. In any event, at that stage the applicant had not been charged, so that the assessment needs to be considered in the context of a suspect who has not been given an indication that he would be charged.
It was submitted on behalf of the applicant that the police asked a number of probing questions on 20 September 2017 that might have given the impression they did not believe him, the argument being that perhaps there was a basis upon which the applicant might have considered that he would be charged, and, if he was intending to abscond, he had the opportunity at that time to do so, as he still had his passport. However, there is no evidence from the applicant that he formed any such impression from the questioning on that day. My reading of the interview suggests that, at least at times, the applicant seemed to think that his account would be accepted. Until the applicant was charged, there was no basis for the police to have him surrender his passport. So, in my view, that is not a factor that carries any significant weight.

Reasons for travel

It is necessary, then, to consider the applicant's reasons for wanting to travel. They were briefly stated ‑ and sufficiently for present purposes in his affidavit of 1 March 2018, where he referred to the fact that he is a director and 75% shareholder of an Australian company called Sino United. He stated that it does 'pre‑IPO consulting'. Essentially what it does is to assist Chinese companies to become listed on the ASX or NSX.
The applicant stated that he is responsible for meeting with clients in China, and that there is no one else in the company who would do that. Although it would seem rather remarkable that the success of the company would depend entirely on his ability to do this, and that no one else would be able to step up if necessary, I accept, for the purposes of this hearing, that that is the situation.
The applicant says that he travelled regularly to China between June and September of 2017 to meet with investors. He said that the company has not traded since his arrest. The respondent points out there seems to be an inconsistency between that statement and what was said before the Chief Magistrate, which was that the applicant's Australian businesses were ongoing and very lucrative. Whether that statement was intended to exclude Sino United is not clear, but, in any event, there is no indication of any financial detriment at this stage that is flowing from his inability to travel to China.
The applicant's explanation is that the company has not traded because he is unable to attend China to meet with investors. He said in his affidavit that while in China he would regularly organise road shows for prospective investors to attend, so that he could explain to them the benefits of getting listed in Australia and how to go about that. He referred to this as the 'advertising' part of the business.
He has said that an investor usually needs to meet with him in person in China before they make a decision to come to Australia and invest, and that he has currently two large investors who want to meet him before making the decision about whether to invest in Australia. He said that it is not appropriate for those discussions to be on Skype or online; they need to be face to face.
When I questioned counsel about that, he said that I should accept that this is a cultural matter. There is no evidence about that from the applicant or from anyone else. It may be accepted that there are cultural differences in the way in which business is done in China from the way that it might be done in Australia, and it might be thought that even in Australia sometimes investors would prefer to meet face to face, if not most of the time. In my view, that does not overcome the question of why other arrangements could not be made for these investors to come to Australia. The suggestion seemed to be that they needed to be persuaded in China by a process of some roadshow before they would come to Australia, and then take further steps in Australia. Why they would not be prepared to come to Australia and be informed here face to face is not clear, if they were so interested in investment, already having some information, it would seem, to express the interest that the applicant has spoken about.
The applicant goes on to say that he has spent a lot of his own money, approximately $1 million Australian dollars, including loans to try and get the company going, but says that he has done very little work since his arrest, due to the bail conditions preventing him from travelling overseas. He says that the company has a potential to be extremely lucrative, but that is dependent on securing Chinese investors and developing relationships with them. As I have said, that still begs the question of why that could not be done in some other way, and I must say that, at this stage, there has not been an adequate explanation of that.
In his affidavit, the applicant also went on to say that he is the fundraiser for a private equity fund in China which holds some RMB $10 million. He said that the value has dropped by 10% this year, on account of a downturn in the Chinese stock exchange. He said that he needed to travel to China to shore up the existing investors and also to try to recruit new investors. Again, he said that he is the person responsible for that and that the other people in the business deal with their own roles, such as stock trading, risk management control, and so on. Once again, as I said, it seems rather unusual that there would not be anyone else in that particular business who could step in, but I accept what the applicant has to say about that. It still begs the question why other processes could not be used, other that is than him travelling to China, to enable those things to be done.
The last thing that the applicant relied upon is the fact that he wants to visit his family, in particular his father, who has had a problem with his neck and his back and has said he is unable to travel to Australia. The medical evidence that has been provided confirms that the applicant's father does have a medical problem of that kind, and I am prepared to accept that it precludes him from travelling to Australia, but I agree, with respect, with the view that was expressed by the Chief Magistrate, that that of itself would not be a sufficient reason to put at risk the administration of justice in this jurisdiction by allowing Mr Lin to travel to China, where there is a prospect that if he decided not to return, it would not be possible to bring him back.

Clause 1(c) ‑ Whether the prosecutor has put forward grounds for opposing the grant of bail

That brings me to the matters on which the Crown relies in opposition to the application.
The first matter that the Crown relies on is that the applicant remains a Chinese citizen and that is his country of birth. It is accepted that he may intend to make Australia his home, but the question in these proceedings is whether he might be prepared to risk or forego that on the basis that he would wish to avoid the consequences of a conviction.
The second matter is that his family, with whom he says he is very close, according to what the applicant has said in his affidavit, live in China.
Thirdly, the applicant has indicated that he has significant financial and business links to China. He has very significant assets in China. In his interview with the police, he seemed to suggest that, in fact, his assets in China dwarfed his assets in Australia. I do not need to go into the details of that. The information that he has now provided about his assets in China confirms that they are very substantial. It does not necessarily suggest that they are any greater than his assets in Australia, but, nevertheless, it indicates that he would certainly have the means to maintain a lifestyle in China.
The Crown noted that, while the applicant had provided a list of the assets he holds in Australia, he had not done so in relation to the assets that he has overseas. However, he has now provided information in that regard in his latest affidavit.
The most significant matter is that there is no extradition treaty with China. Further, the Crown says that monitoring the applicant's travel and his whereabouts in China would be problematic. There is no ready means by which that would be able to be done, and the resources that would need to be expended for that to be done would be significant; there is no guarantee that the use of such resources would be approved, given the nature of this case.
The Crown submitted that the applicant's ties with this jurisdiction are largely business ties, rather than social ties. Of course, he is married to his wife who has permanent residency, but she is not an Australian citizen, and it seems she remains a citizen of China. Apart from that, in any event, the Crown says there is no indication of any significant social ties to Australia.
Of course, this all turns on the question of whether there is a risk of flight. It was submitted on behalf of the applicant that I should consider the risk to be relatively small. In my view, it is not possible to make any judgment about that. The fact is that the existence of a risk of flight has obviously been recognised, because bail was granted on fairly strict conditions, including a fairly substantial monetary sum and surety. Therefore, it is not really a question of assessing whether there is any risk of flight; it is a question of whether the conditions that will apply to bail, if I vary it as applied for by the applicant, would be sufficient to ensure that he would attend court to face the charges against him.

The applicant's submissions

The applicant submits that the bail conditions that he has proposed would sufficiently remove the possibility that he would fail to appear, and, essentially, that he would fail to return from China, in accordance with his bail undertaking.
As I said earlier, the applicant is prepared to give an undertaking in the sum of $1 million. A question was raised by the Crown as to whether he has sufficient equity in his properties to be able to meet that sum if he was required to forfeit it. The affidavit that he has provided contains a great deal of information about his financial circumstances, some of which is not entirely clear, as the Crown submitted this afternoon. Nevertheless, I am prepared to accept that he has does have the means to meet the proposed undertaking. I also accept that his surety has the means to increase his commitment to $500,000.
There is a difficulty, however, with the surety, and that is that he will not necessarily be where the applicant is. I understand that part of the purpose of a surety, and a substantial sum for a surety, is to place added pressure on an applicant (or perhaps, more correctly, added incentive) to comply with his bail undertaking, and to appear as required, because he would be morally responsible for the loss of that sum by his surety if he did not appear.
Nevertheless, a significant reason for having a surety is to have someone who indicates that they are prepared to undertake the responsibility for ensuring that an accused will appear when required. In this case there is no indication that, once the applicant were to leave Australia, the surety would be in any position to ensure that he did attend court.
I note that, in relation to the applicant's intended travel, it is for only a short period of time. As I stated earlier, it is between 24 March and 10 April 2018, so about two and a half weeks. That, itself, begs the question why it would be so important. The argument made on behalf of the applicant is that it is because of the need to meet with the investors in China. The question I raised with his counsel is why that would not then become a recurring requirement. I was told that, at this stage, it is only these investors who need to be brought 'on board' in order for the company to continue to trade profitably.
The itinerary that was previously provided for the proposed travel in February 2018 indicated that the applicant intended to travel to Shanghai, and then to Beijing/Shandong in China. One of the investors, who was in Beijing, was then going to travel to Australia two days later. The indication seemed to be that he was going to be travelling for a pre‑investment meeting. I raise this simply because it suggests a situation in which someone who is going to be coming to Australia in any event, it seems, is someone whom the applicant needed to meet in China in order to persuade him to come to Australia. There seems to be an inconsistency in that regard.
In any event, the point is that what the applicant has referred to is a business practice for which, in my view, he has not provided justification, in terms of the need to adhere to it in order for him to be able to conduct his business. It is a weighing exercise, as I said earlier, and I am not persuaded that the weight I should place on that matter, in the end, overcomes the concerns that have been raised about being able to bring the applicant back if he were to travel to China, and if he did not voluntarily return.
In summary then, the applicant submits that he has strong ties to Australia and is not likely to abscond. He says that he would rather spend several years in an Australian prison than give up his personal undertaking, his assets, his friends, his dogs, and the ability ever to return to Australia.
I do not consider that the proposed conditions would sufficiently remove the possibility that the applicant would not appear to answer his bail.
It is an unusually high figure that the applicant is prepared to offer to forfeit, as is the sum that his surety is offering to forfeit. On top of that, the applicant has proposed that he would deposit $100,000 in cash. While I am satisfied that the applicant has strong business ties to Australia and may have intended to make Australia his home, and while I am satisfied that he would stand to lose a great deal if he gave the undertaking that he is proposing, he continues to have significant ties to China, including the fact that his family is there and he has very substantial assets there, and it seems to me that the ties to China are necessarily a significant counterweight to the ties that he submits he has to Australia.
Most importantly, the potential difficulties with monitoring the applicant's travel and his whereabouts in China, the lack of extradition arrangements between Australia and China, and the uncertainty of any process being approved to bring him back if he were not to return voluntarily, in my view, militate very strongly against the variation of bail that has been sought. Such reasoning does not rely on any presumption that he would abscond; the court is only concerned with risk. The risk exists, and it has been recognised to date by the strict conditions that have attached to his bail.
I am inclined to agree with the statement of the Chief Magistrate that it is a finely balanced matter, but, ultimately, it seems to me that the need to safeguard the court processes in this instance militate against the variation of bail requested by the applicant.
For the reasons I have given, I am not satisfied that a variation of the applicant's bail to enable him to travel to China would be appropriate in this case.
The application is refused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BC
RESEARCH ASSOCIATE/ORDERLY TO FIANNACA J
9 APRIL 2018