R v Ong

[2024] NSWSC 235

Supreme Court

New South Wales

Medium Neutral Citation:

R v Ong [2024] NSWSC 235

Hearing dates:

08 March 2024

Date of orders:

13 March 2024

Decision date:

13 March 2024

Jurisdiction:

Common Law

Before:

Harrison CJ at CL

Decision:

Bail granted

Catchwords:

CRIME – bail – show cause – strength of the prosecution case for serious drug charges – first time offending – delay until trial – medical evidence demonstrating a more onerous experience in custody – cause shown

CRIME – bail – bail concerns – where Crown raises all bail concerns in s 17(2) Bail Act 2013 (NSW) – where bail conditions can adequately ameliorate bail concerns – bail granted

Legislation Cited:

Bail Act 2013 (NSW), s 17

Criminal Code 1995 (Cth), ss s 11.1(1) & 307.5(1)

Drug Misuse and Trafficking Act 1985 (NSW), s 10

Category:

Principal judgment

Parties:

Jimmy Ong (Applicant)
Crown (Respondent)

Representation:

Counsel:
E Ozen SC (Applicant)

Solicitors:
Krayem & Co Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2024/48296

Publication restriction:

Nil

JUDGMENT

1. HIS HONOUR: Jimmy Ong applies for bail. He is charged that between 6 January 2024 and 31 January 2024 he possessed a prohibited drug, namely methamphetamine contrary to s 10 of the Drug Misuse and Trafficking Act 1985 and further that he attempted to possess a commercial quantity of an unlawfully imported border controlled drug contrary to s 11.1(1) and s 307.5(1) of the Criminal Code 1995. Mr Ong was arrested on 31 January 2024 and has remained in custody bail refused since then.

2. Mr Ong is 24 years of age. He has no criminal history, either of convictions or arrest, and has never previously been held in custody. By reason of the fact that one of his alleged offences carries a maximum penalty of life imprisonment, Mr Ong is required to show cause why his continued detention is not justified.

3. In support of the show cause requirement, Mr Ong points to his young age, his prior good character, as evidenced by the complete lack of any recorded interaction with police or Corrective Services and having regard to the fact that his trial has little or no prospect of coming on for hearing in the District Court before the second half of 2025. Mr Ozen of Senior Counsel, who appears for Mr Ong, also contends that the medical evidence suggesting that Mr Ong suffers from PTSD and depression means that his time in custody is likely to be more onerous than might otherwise be the case.

4. These factors must necessarily be balanced against the apparent strength of the Crown case. In short compass, Mr Ong was present at his home address when a coffee grinder, previously intercepted by police and found to contain 91kg of the drug, was being opened using an angle grinder in the presence of Mr Ong and his co-accused. The drugs had been removed by the police before this occurred and 286 blocks of an inert substance substituted for them. A listening device was also attached to the coffee grinder and recorded conversations at the point of this activity, including conversations to which Mr Ong was a party, that now form part of the evidence upon which the Crown relies.

5. The physical and electronic evidence against Mr Ong would appear to constitute a strong case. The precise nature of the Crown’s allegations concerning Mr Ong’s level of involvement with respect to such things as his position in the hierarchy of the group that imported the drugs, his actual knowledge of the quantity of the drugs and the financial or other reward that he expected to receive for his involvement in the operation all remain unspecified.

6. I am satisfied that Mr Ong has shown cause why his continued detention is not justified. In that respect I have had particular regard to his youth and the associated fact that he has never offended in any way before. It is also his first time in custody, and the prospect is that he will not face a trial for 18 months or more. Having regard to the absence of any evidence that clarifies his role, if any, in the importation and the absence of any information that specifies what the Crown will allege to have been his knowledge and understanding of the quantity of the drug concerned, it seems to me to follow that cause has been shown.

7. The Crown identifies all of the bail concerns referred to in s 17(2) of the Bail Act 2013. It is contended that Mr Ong is a flight risk because he was born in Vietnam or may have family still in that country who could assist him if he managed to leave the jurisdiction. I note that submission. However, it does not in my view seem likely that a young man who appears to be somewhat naïve and relatively unsophisticated presents as a realistic prospect of departing for a country with which he has limited connection when his extended family all live and work in Australia.

8. The Crown also contends that Mr Ong presents a risk of reoffending. I take that submission to mean that the Crown is concerned that he will somehow involve himself in the type of activity with which his charges are concerned. That would in my limited experience be highly unlikely having what I expect will have been the salutary influence of his detection in the present case and the associated unpleasant circumstances of incarceration in an adult gaol for the first time.

9. The Crown is also concerned that Mr Ong will in some fashion attempt to interfere with witnesses or evidence. That risk also seems to me to be slight, basically for the reasons relating to his prospects of reoffending.

10. To the extent that the Crown’s bail concerns have any potential merit, they are in my opinion able to be ameliorated by the imposition of suitable conditions attaching to a grant of bail.

11. I propose to grant bail, subject to the following conditions:

[REDACTED].

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