Ho v The Queen

[2019] NZHC 670

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2019-404-000075

[2019] NZHC 670

MICHAEL HO

v

THE QUEEN

Hearing:	2 April 2019
Appearances:	A Ives for Appellant E Smith for Crown
Judgment:	2 April 2019

JUDGMENT OF VAN BOHEMEN J

Solicitors/Counsel:

A Ives, Auckland

Meredith Connell, Auckland

HO v R [2019] NZHC 670 [2 April 2019]

Introduction

[1]    Mr Michael Francis Ho appeals a decision of Judge Gibson in the District Court refusing to vary Mr Ho’s bail conditions to allow him to travel to Fiji to attend to his business interests.

Alleged Offending

[2]    Mr Ho faces three charges of possessing a class B substance, namely pseudoephedrine, for the purposes of supply.1 The alleged offending took place between January and October 2017. It is alleged that Mr Ho and two associates, one in New Zealand and one in Fiji, organised the importation of Actifed, a cold and flu medicine which contains pseudoephedrine.

[3]    The importation is alleged to have occurred as follows. The associate in Fiji would order the Actifed to be delivered to Fiji. The shipment would travel through New Zealand and be kept in a Customs Controlled Area. The associate in New Zealand would access the Controlled Area and remove and replace the Actifed with other medication. The New Zealand associate would store the Actifed until Mr Ho was ready to make a purchase. Mr Ho would then make the purchase and on sell this to persons involved in the manufacture of methamphetamine. It is alleged that three separate shipments were arranged and that from these shipments Mr Ho purchased some 30 kilograms of pseudoephedrine using substantial amounts of cash.

[4]    No pseudoephedrine was found on Mr Ho. The primary evidence for the charges against Mr Ho is that of a witness who has pleaded guilty to importing over 40 kilograms of pseudoephedrine.

[5]    A case review hearing has been set down for 16 May 2019. However, a trial for these charges is yet to be scheduled and is not likely to take place this year.

1      Misuse of Drugs Act 1975 s6(1)(f). Maximum penalty 14 years’ imprisonment.

[6]    Mr Ho has been remanded on bail. As a condition of that bail, he has been required to hand over his passports to prevent him from leaving the country and is prevented from applying for travel documentation.

The District Court Hearing

[7]    Mr Ho’s application for a variation of bail conditions was heard in the District Court on 13 March 2019. He sought the return of his New Zealand passport and the removal of the bail condition preventing him from applying for travel documents and subsequently travelling overseas, while allowing the Court to retain his Fijian passport.

[8]    Mr Ho’s reasons were that the likely delay until trial was significant and that since being arrested on 22 January 2019 he had been unable to return to Fiji to look after his business interests. The income from these businesses constituted almost all of his family’s income and without a trip to Fiji Mr Ho feared that his family’s and his employee’s livelihoods would suffer. Mr Ho did not state any specific business matters that needed attending. The only evidence of the importance of these matters given to the District Court came from an affidavit sworn by Mr Ho himself.

[9]    Judge Gibson refused to vary Mr Ho’s bail conditions and allow him to travel to Fiji because the Judge regarded Mr Ho as posing a substantial flight risk, and that this factor trumped all other considerations.2

[10]   Judge Gibson also expressed concern that Mr Ho had not provided evidence to show that there were legitimate business matters to which he was required to attend in Fiji and he was not prepared to grant the variation on a single affidavit sworn by    Mr Ho.

Appellant’s submissions

[11]   Mr Ho appeals Judge Gibson’s refusal to vary bail on the grounds that the Judge erred by overstating the risk of flight and failing to take into account Mr Ho’s

2      R v Ho [2019] NZDC 4595.

strong family ties to New Zealand. Counsel for Mr Ho submits that the only risk Mr Ho poses is a flight risk, and that his strong family ties mitigate this risk. In addition, counsel argues that Judge Gibson failed to consider how the proposed bail conditions put forth by Mr Ho, including that he only travel on his New Zealand passport, that he travel on a return ticket and that he notify the Police in advance of travel, further mitigated any flight risk.

[12]   Counsel for Mr Ho submits that the public interest in allowing the appellant to support his family, in addition to the significant amount of time until the trial, and the lack of evidence against Mr Ho, render it appropriate that he be allowed to travel on terms set down by this Court.

[13]   Mr Ho has also said that if necessary he is willing to provide a surety. His counsel has indicated that this could be in the order of $50,000.

Respondent’s submissions

[14]   The Crown submits that Judge Gibson did not err in refusing to grant the bail variation as the appellant poses a significant flight risk and if he did fail to return from Fiji it would be difficult to repatriate him. The Crown says the evidence against Mr Ho is strong and the potential prison sentence he faces if convicted is substantial, disincentivising return. In addition, the necessity for Mr Ho’s travel to Fiji remains unclear.

[15]   The Crown further submits that this case is similar to that of Zhang v R where the provision of a surety was unable to sufficiently ameliorate the appellant’s risk of absconding because of the extent of the criminal charges and the significant overseas links.3 I note counsel for Mr Ho has sought to distinguish that case from these particular circumstances.

3      Zhang v R [2014] NZCA 387 at [20]-[21].

Approach to appeal

[16]   If a District Court Judge refuses to vary a defendant’s bail conditions, the defendant may appeal to the High Court against that refusal. Such an appeal is by way of re-hearing.4 The Court of Appeal has confirmed that bail decisions are not an exercise of discretion but are an evaluative exercise.5 On appeal, the appellant bears the onus of persuading the court that the judgment under appeal is in error.6 The appellate court must come to its own conclusion based on the facts and evidence before the lower court, and any new evidence adduced on appeal.7

[17]   Section 8(1) of the Bail Act 2000 provides that in considering whether there is just cause for continued detention, the Court must take into account whether there is a risk that:

(a)Mr Ho may fail to appear in Court on the date to which he has been remanded,

(b)Mr Ho may interfere with witnesses or evidence;

(c)Mr Ho may offend while on bail.

[18]   The Court must also take into account any matter that would make it unjust to detain Mr Ho.

Analysis

[19]   The primary determinant of Judge Gibson’s decision was the overriding risk that Mr Ho would abscond. This risk was stated to trump all other considerations. The judgment did not refer to Mr Ho’s familial ties in New Zealand or the proposed conditions put forth by counsel to mitigate the risk of absconding, presumably because these considerations were regarded as inadequate to mitigate the flight risk Mr Ho poses.

4      Bail Act 2000, s 42(3) and 42(6).

5      Taipeti v R [2018] NZCA 56 at [52].

6      Taipeti v R [2018] NZCA 56, at [63].

7 At [52].

[20]   There appears to be no concern that Mr Ho is at risk of re-offending; he has no prior convictions and no history of offending while on bail. Similarly, there appears to be no concern that Mr Ho may interfere with witnesses. The primary consideration is whether Mr Ho poses a flight risk that cannot be mitigated by reasonable bail conditions.

[21]   Mr Ho’s flight risk derives from the seriousness of the charges against him. Mr Ho faces three charges under the Misuse of Drugs Act 1975. Each carries a maximum sentence of 14 years’ imprisonment. In my view, this necessarily means that Mr Ho is a flight risk and may be disincentivised to return to New Zealand if allowed to travel to Fiji, a place where he has both historical and continuing family and business connections. Unless this risk can be sufficiently mitigated by the imposition of reasonable bail conditions, variation of bail cannot reasonably be contemplated.

[22]   Counsel for Mr Ho proposes a number of conditions which he says could reduce this risk. These include the retention of Mr Ho’s Fijian passport, a requirement that Mr Ho travel only on a return ticket, a requirement that Mr Ho inform the Police prior to his travel, and a requirement that Mr Ho give a surety to the Court.

[23]   None of these conditions, however, provides me with any confidence that   Mr Ho would return to New Zealand given the substantial term of imprisonment he would face if convicted. Mr Ho could easily apply for a new passport in Fiji. He could choose not to travel on the return leg. He might be happy to forfeit any surety in favour of avoiding possible imprisonment in New Zealand. There is little the police could do if he failed to inform them of his movements.

[24]   Mr Ho has sworn a second affidavit to which is annexed evidence of his company’s name, the number of individuals he employs, the structure of the company, and a request from a lawyer that he appear in Fiji on 9 April 2019 to execute documents. This additional information does not adequately address the concerns expressed by Judge Gibson regarding the lack of evidence of why Mr Ho needs to return to Fiji to deal with his businesses. Nor does it explain why any documents that need to be signed by Mr Ho cannot be transmitted to New Zealand for signature here.

[25]   I recognise that Mr Ho has lived in New Zealand since 2004 and obtained New Zealand citizenship in 2016. He has three children from his first marriage, all of whom are New Zealand citizens and, with the exception of holidays, have spent their whole lives in New Zealand. Mr Ho remarried in 2012 and his current wife possesses permanent residency in New Zealand and intends to apply for citizenship later this year. Mr Ho and his second wife have two young children who have also lived in New Zealand their whole lives. I accept, therefore, that Mr Ho has a life in New Zealand and a strong familial connection and incentive to return. However, given the seriousness of the charges Mr Ho faces, it is quite possible that he may choose to live apart from his family or the family could decide to rejoin him in Fiji. I recognise that there is no single rule that people who have interests off shore should not be allowed to travel, but I am not satisfied this is a case to allow the removal of conditions put in place to ensure the defendant appears in court.

[26]   Accordingly, I do not consider that Judge Gibson erred in his decision to refuse the variation to Mr Ho’s bail conditions. As stated by Judge Gibson, the overriding consideration is the flight risk that Mr Ho poses. That risk is not adequately mitigated by Mr Ho’s family circumstances or the conditions that Mr Ho invites the Court to impose. In addition, Mr Ho has not provided a convincing explanation as to why he has to return to Fiji.

Result

[27]Mr Ho’s appeal is dismissed.

G J van Bohemen J