R v Chen

[2022] NSWSC 113

Supreme Court

New South Wales

Medium Neutral Citation:

R v Chen [2022] NSWSC 113

Hearing dates:

14 February 2022

Date of orders:

15 February 2022

Decision date:

15 February 2022

Jurisdiction:

Common Law

Before:

Harrison J

Decision:

Bail granted

Catchwords:

BAIL – show cause offence – where risk of flight – where Crown’s bail concerns mitigated by appropriate conditions – bail granted

Legislation Cited:

Bail Act 2013 (NSW), s 16B(1)

Criminal Code (Cth), s 307.1(1)

Category:

Principal judgment

Parties:

Zhilin Chen (Applicant)
Crown (Respondent)

Representation:

Counsel:
C Davenport SC (Applicant)

Solicitors:
Broaden Legal (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2022/14841

Publication restriction:

Nil

Judgment

1. HIS HONOUR: Zhilin Chen applies for bail. Mr Chen has been in custody bail refused since 22 December 2021 charged with a show cause offence, namely, importing a commercial quantity of the border-controlled substance methylamphetamine, contrary to s 307.1(1) of the Criminal Code (Cth). Mr Chen is required to show cause as the maximum penalty for this offence is life imprisonment.

2. The alleged facts can for present purposes be briefly stated. On 11 December 2021, the police intercepted a consignment from South Africa containing goods described as “surface expension” [sic]. Mr Chen was the consignee. The item was found to contain 1.8 kilograms of methylamphetamine. On 22 December 2021, the police executed a search warrant at Mr Chen’s address. Mr Chen is alleged on this occasion to have had knowledge of the consignment which he said he was waiting to collect for a third party. Mr Chen maintained that he did not know what was inside the package but did not believe it was a prohibited drug. He is alleged to have admitted to the police that the consignment was “something not good” and became increasingly concerned.

3. Mr Chen is 31 years of age. He is a Chinese citizen who is presently in Australia on a valid student visa which expires on 15 March 2022. Prior to his arrest, he was enrolled at university and had part-time work as a food delivery driver. Mr Chen does not have a criminal history and other than by reference to the current charge, does not appear to have criminal associations.

4. The Crown opposed bail upon the basis that Mr Chen had no community ties and that the seriousness of the charge combined to inform a significant incentive to leave the jurisdiction. That concern was also influenced by the strength of the Crown case which the Crown contended made a conviction highly likely.

5. Mr Chen submitted that there was a real risk that he would not come to trial for a considerable period and that he was able to offer an appropriate surety to secure his attendance at court. As will already be apparent, Mr Chen has not previously spent any time in custody and his family all reside in China. The hardship likely to be experienced by him over an extended period on remand was considerable. Mr Chen was steadfast in his denial of any knowledge of the contents of the package. He emphasised the strength of his denials of any knowledge of the presence of drugs was assisted by his previous good character.

6. Although the Crown maintained that Mr Chen presented with a risk of commission of a serious offence and of endangering the community if granted bail, I do not accept that submission. In contrast, I accept that there exists a tangible incentive for Mr Chen to leave the jurisdiction having regard to the likely consequences of a conviction for this offence.

Show cause

7. Pursuant to s 16B(1)(a) and (g) of the Bail Act 2013, Mr Chen is required to show cause why his detention is not justified. I am satisfied that Mr Chen has shown cause why his continued detention is not justified. He does not appear to have connections with sophisticated criminal operatives. In the nature of things, he is unlikely to come to trial before some time in 2023. There exist not merely fanciful prospects that he could successfully meet the Crown case with credible denials. Mr Chen has already been in custody for almost two months. It is never possible to be dogmatic about the significance of delays in coming to trial or the predictions about what the delays may ultimately be. I also accept that views may legitimately differ in the context of considering whether an applicant for bail will have shown cause relying on this factor.

Bail concerns

8. The only realistic concern, in my opinion, consists in the assessment of the risk that Mr Chen might flee the jurisdiction. I acknowledge the uncontroversial proposition that such risk, alike with many such risks, cannot wholly be discounted. The scheme of the Bail Act proceeds upon the basis that unless the risk is unacceptable, it must be considered against the availability of conditions that might possibly ameliorate its effect. Having regard to the conditions that I intend to impose, I consider that the identified risk can be adequately mitigated in the circumstances of this case.

Decision

9. The applicant Zhilin Chen is granted bail on the following conditions:

Behaviour:    

1. He is to be of good behaviour.

Residence:   

2. He is to reside at xx xxxxxxx Street, Lidcombe NSW 2141.

3. He is not to be absent from the residence except for the following reasons:

1. To attend court;

2. To attend medical appointments (including any psychological/psychiatric appointments);

3. To report to police;

4. To attend any pre-booked legal conference with his solicitors; and

5. To attend University or work.

Reporting:   

4. He is to report to Auburn Police Station daily between the hours of 8am and 8pm.

Appearance:    

5. He is to appear at Central Local Court on 16 February 2022 and thereafter as required.

Curfew:    

6. Other than for a reason specified in condition 3 above, he is to comply with a curfew and is not to be absent from the address at which he is required to live between the hours of 8pm to 8am.

Travel:    

7. He is not to approach within 5 kilometres from any international point of departure and not to leave the State of New South Wales.

Passports:

8. He is to surrender his original Chinese passport (no. xxxxxxx) to Court within 24 hours of the applicant’s release.

9. He is not to apply for any new passport or travel document.

Phones:

10. He is to have use of and access to only one mobile phone, the number of which is to be provided to the officer in charge within 24 hours of the applicant’s release. He is not to use or possess any other phone.

Security requirements

11. One acceptable person is to deposit $50,000 and agree to forfeit that sum if the applicant fails to appear before court in accordance with the bail acknowledgment.

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Decision last updated: 15 February 2022