R v Choi

[2019] NSWSC 1731

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Choi [2019] NSWSC 1731
Hearing dates:	20 December 2019
Date of orders:	20 December 2019
Decision date:	20 December 2019
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	(1)   I refuse the application for a release order. (2)   I note that the order made by Lonergan J on 29 October 2019 extending her earlier suppression order made on 18 October 2019 remains in force. (3)   I grant liberty to Mr Choi if so advised to apply on 48 hours’ notice no earlier than 2 January 2020.
Catchwords:	BAIL - whether applicant poses an unacceptable risk – bail refused
Legislation Cited:	Bail Act 2013 (NSW), s 74(1) Crimes Act 1900 (NSW), s 4B(2) Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (Cth), s 11
Cases Cited:	R v Choi [2019] NSWSC 1422
Category:	Principal judgment
Parties:	Chan Han Choi (Applicant) Crown (Respondent)
Representation:	Counsel: P Lange (Applicant) T Epstein (Respondent)   Solicitors: Just Law (Applicant) Director of Public Prosecutions (Respondent)
File Number(s):	2017/380546; 2019/307702
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Chan Han Choi applies for bail. This is his second application following a previous refusal by Lonergan J to grant bail on 18 October 2019: see R v Choi [2019] NSWSC 1422. Having regard to the urgency of this application and the need to determine it without delay, I respectfully adopt her Honour’s recitation of the factual matters that formed the basis for her decision. They remain relevant for present purposes and are not in dispute.

2. Since Mr Choi’s last application, some attempts have been made to obtain the services of interpreters in the Korean language who have received an appropriate security clearance from New South Wales Corrective Services. It would seem that, having regard to the charges faced by Mr Choi, a somewhat more restrictive regime applies to anyone, including lawyers and interpreters, wishing to have access to him, including even for the legitimate purposes of preparing his case for trial, than is usually the case.

3. At present the position would appear to be that there is currently no Korean interpreter who has been given the necessary security clearance. There is some suggestion that this may change in the coming week, but I have no material upon the basis of which it is possible to assess the reliability of any prediction about that. It goes without saying that if Mr Choi is unable to secure the services of an interpreter so as to facilitate communication with his lawyers for the purposes of giving instructions and receiving advice, it will not be possible for him to receive a fair trial.

4. This issue was foreshadowed before Lonergan J in the original application: see R v Choi at [27] and [28]. In my view, the fact that it is now still no closer to resolution supports the existence of grounds for making a further release application, so that the hurdle created by s 74(1) of the Bail Act 2013 is overcome. It has not been possible yet to identify a suitably qualified Korean interpreter who has been authorised to attend upon Mr Choi in custody.

5. The Crown case against Mr Choi is strong. That is not only my assessment but is properly conceded to be so by counsel for Mr Choi for the limited purposes of this application. The prospect of a custodial sentence is reasonable although by no means inevitable. Mr Choi has so far spent 2 years and 4 days on remand for what are essentially offences related to the performance or attempted performance of economic activity in breach of trade sanctions imposed upon the Democratic People’s Republic of Korea. Mr Choi has no criminal record. The offence against s 11 of the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 relates to services that Mr Choi believes or suspects on reasonable grounds will or may assist a Weapons of Mass Destruction program without authorisation. Although the maximum penalty for such an offence is imprisonment for not more than 8 years, subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment.

6. The Crown contends that Mr Choi is a flight risk because of his connections with North Korea and the prospect that he faces a custodial penalty. In this last respect I note that the incentive to flee the jurisdiction may in fact be much less having regard to the fact that he has already served 2 years on remand and that there is a possibility of a fine as a complete substitute for the s 11 offences, if he were convicted or pleaded guilty. The same position applies to the other offences with which he is charged.

7. Mr Choi’s trial is scheduled to commence in February 2020. There is a prospect that he will obtain the services of an interpreter later this month. I am presently unable to conclude that the risk that Mr Choi might be inclined to leave the jurisdiction is different to the risk identified by Lonergan J in her decision refusing his application for release. Although I am not entirely satisfied that Mr Choi poses an unacceptable risk of leaving the jurisdiction, that prospect cannot be completely discounted. The offer of $10,000 by way of surety is in the particular circumstances of this case wholly inadequate. It would not in my opinion provide me with confidence that Mr Choi would remain in Australia if he were otherwise inclined to leave.

8. I am, however, particularly concerned that the continuing absence of suitable arrangements for a reliable and effective regime in accordance with which Mr Choi can be assisted by an interpreter operates unfairly to him, and potentially subverts the possibility that he will be able to receive a fair trial, if that problem is not resolved soon. By soon I intend to indicate by no later than 31 December 2019. In the event that by then the problem created by Mr Choi’s lack of access to a suitable interpreter had not completely resolved, I would consider that the risk that Mr Choi might flee the jurisdiction would have become outweighed by the risk of substantial injustice to him, in being effectively denied access to legal representation in his chosen language. Although it would be necessary to hear further submissions about it if required, a reagitation of a release application in such circumstances would arguably be difficult to resist.

9. As presently advised, I consider that the risk that Mr Choi might leave the jurisdiction remains unacceptable and cannot be mitigated by the imposition of suitable conditions.

10. I therefore make the following orders:

1. I refuse the application for a release order.

2. I note that the order made by Lonergan J on 29 October 2019 extending her earlier suppression order made on 18 October 2019 remains in force.

3. I grant liberty to Mr Choi if so advised to apply on 48 hours’ notice no earlier than 2 January 2020.

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Amendments

15 December 2021 - Publication restriction removed.

Decision last updated: 15 December 2021