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Dickson v State [2012] PGNC 14; N4581 (20 January 2012)

N4581

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No1189 of 2012

BETWEEN:

XUE ZHUFU DICKSON
Applicant

AND:

THE STATE
Respondent

Waigani: Kangwia, AJ
2012: 18 & 20 January

CRIMINAL LAW- PRACTICE AND PROCEDURE – Application for variation to bail condition – Permission to leave the country to visit family in china – Pledge of K20, 000: 00 and 20% of shares in Soho Entertainment Ltd. – No urgency in application – No reason to return -Application refused.

Cases cited:

Francis Sia v The State (1987) N631

Counsel

Mr. M. Wilson & Mr. Koara, for the Applicant
Ms Ganaii, for the State

20 January, 2012

1. KANGWIA AJ; The applicant applied for a temporary variation to his bail condition to give him permission to leave the country for China. Application was made pursuant to s. 23 of the Bail Act. His sole reason to seek permission of the Court was to go and visit his wife and children in China and return.

2. He was charged with one count of Attempted Murder which is currently awaiting a trial date. He is said to be the Operations Manager for Soho Entertainment Ltd.

3. In support of his application he relies on his affidavit with annexure relative to his family and his medical condition which reports of him having hypertension.

4. On his behalf Mr. Wilson and later Mr. Koara of counsels for the Applicant submitted the following information to support his application:

1. His willingness to deposit K20, 000: 00 into the National Court Registry as security on top of his K5, 000: 00 presently attached to the bail condition. A bank cheque No. 029313 and payable to the National Court Registry was produced in court to demonstrate the genuineness in the pledge. That money was to be owed to the State should he fail to appear.
   
2. A declaration to surrender to the State twenty per cent (20%) shareholding in Soho Entertainment Ltd to be forfeited should he fail to return to the country. This is on top of the K20, 000: 00 cash proposal and the K5, 000: 00 already tied in to the bail condition.
   
3. He has a current foreigner's work permit which expires in 2013. With this permit he is employed as the operations manager.
   
4. He also submitted a police character reference which showed that he had no criminal conviction in this country or in China.
   
5. His itinerary is fixed for forty (40) days. He proposed to depart on 25 January 2012 and return on 15 March 2012. The condition sought to be varied is for the 40 days he proposed to be overseas which will affect his reporting condition at the National Court Registry.
   

5. Given those supporting information and pledges, the court was asked to exercise its discretion to give him permission to leave the country.

6. Ms Ganaii of counsel for the State objected to the application and made the following observations:

1. There was no evidence of money to be forfeited to the State. There was no evidence of the 20 % shareholding he purports to hold in Soho Entertainment Ltd.
   
2. He was only on a foreigners work permit and it can be revoked at any time as it is valid up to 2013.
   
3. Interpol provides no reporting services and tracing him would be difficult.

4. His hypertension effects may be out of other reasons than the suggestion of missing his family.
   
5. His case is to be tried in the middle of this year and application is near to the trial period.
   

7. The State also relied on the affidavit of Sgt. Robert Volo to object the application. In that affidavit Robert Volo deposed that a firearms charge against the applicant was pending at the Boroko District Court also.
Having made those observations it was conceded for the State that it was still the Courts discretion to grant or refuse permission.

8. The Bail Act under s.23 provides the legal framework for an accused person to seek permission from the court if he or she wished to leave the country and return later. The relevant parts of s. 23 are;

(1) Where for urgent personal reasons or by reason of his occupation, a person granted bail to a proceeding wishes to leave the country for a temporary period before the commencement or conclusion of the proceedings he may after reasonable notice to the other party apply to the National Court or Supreme Court for permission to do so.

(2) Permission shall not be granted under sub section (1) unless the court is satisfied that the person will return to Papua New Guinea for the proceedings.

(3) A permission granted under this section may be subject to conditions.

9. The applicant faces a daunting task of satisfying the court that he will return for the proceedings. The court must be satisfied that the applicant will return for the proceedings before it exercises its discretion to grant the application. The onus of satisfying the court rests with the applicant on the balance of probabilities.

10. Before an application for permission to leave the country is mounted an applicant must satisfy the criteria under s. 23 (1) and they seem to be these:

First, the applicant must show that his reasons for permission to travel are urgent reasons either personal or related to his occupation. Second, he must give notice to the other party in the proceedings. Third, there must be a pending matter in court that involves the applicant.

11. These three criteria are prerequisites to an application for permission from the court. After meeting the prerequisites, the applicant must then satisfy the court with the requirement under s. 23 (2) that he will return to the country for the proceeding.

12. In the present case the applicant has adequately met the prerequisites of giving reasonable notice to the other party and that he has a pending matter in court.

13. As to the prerequisite of showing that he has an urgent personal reason he deposed that he wanted to visit his wife and children. He deposed to not having seen his family for two years which he stated was the basis for his application.

14. The question that arises is, would his reason fall into the category of satisfying the prerequisite of an urgent family reason to warrant the launch of an application? In my view I would not answer it in the affirmative. He has deposed nothing in his affidavit about the welfare of his family apart from one of the child being sick. He has failed to demonstrate that an urgency existed that warranted the application in the first place.

15. Urgent personal reasons may be many and varied but in my view the need to obtain life threatening medical treatment not available in this country or to attend the funeral of a family member would fall into the category of urgent personal reasons. Even then it may not adequately satisfy the court that an applicant would return.

16. In Francis Sia v The State (1987) N631 the court refused an application to leave PNG where the applicant sought to go overseas to undergo abdominal surgery for the removal of stones in his gall bladder. The applicant wanted to take his wife and child with him. Despite deposing to own a company which employed a substantial workforce and owning substantial and valuable heavy machinery and equipment the court held:

"It is also obvious that he has every incentive to leave this country and never return, and that his plans if given effect to would give him the opportunity to do that in the company with his whole family."

17. In that case although the reasons given were urgent personal reasons the court refused the application in the exercise of its discretion. In the present case the applicant has not demonstrated that an urgent family reason was present that warranted the application.

18. The final and most important question is whether the applicant has satisfied the court that he will return to the country for the proceedings.

19. Apart from his itinerary showing his return date as 15 March 2012 he has also proposed to deposit K20, 000: 00 into the National Court Registry on top of the K5, 000: 00 already paid as condition of bail.

20. He also made a declaration to surrender 20 percent of his shares. Although the declaration to surrender the shares blends a strong display of the genuine intent in his application, a declaration on its own is insufficient without evidence of his actual shareholding in the named company. There is no document from the Investment Promotion Authority which would identify his shareholding component in the company. There is no evidence of how much the 20 percent would translate to if the state were to assume its rights to recover under his declaration.

21. It would go a long way in favour of the applicant if the other shareholders would depose to the applicant's shareholding and their willingness to part with his shareholding component in the event that he fails to return to the country. These are matters crucial to his proposed declaration. Without them the declaration is of no consequence for the purposes of this application.

22. He has a valid work permit which gives him authority and legitimacy to work in this country. It does not confer a right that is so precious with far reaching consequences that would compel him to return. It can expire through time lapse or revoked at the pleasure of the enabling Department. It therefore is no guarantee that he will return.

23. Was it any coincidence that this application was made near to the projected trial date? He was released on bail on 17 February 2010. It is nearly two years now that he has been on bail. It seems that it never occurred to him of the need to visit his family for nearly two years. It leaves open room for speculation or inferences to be drawn. The obvious one is the inference that the application may have been made deliberately to avoid prosecution on a very serious offence.

24. The offence he was charged with carries a maximum prescribed penalty of life imprisonment.

25. The applicant's tangible bond (both confirmed and proposed) that is recoverable by the State if he did not return totals K25, 000: 00. When comparing K25, 000: 00 to a possible number of years in prison, it exposes the possibility that expending K25, 000: 00 to avoid a number of years in prison would be a more favourable option to take, by a person in the position of the applicant. In my view this seems to be the position of the applicant. It is doubtful if he will return for the K25, 000: 00.

26. The bottom line as I see it in the present circumstances together with the applicant's proposals is that they heavily blend towards an attempt to purchase immunity from prosecution and possible conviction. There is nothing in evidence which goes to show, that will make the applicant want to return to the country. There is no reason at all for the applicant to return if he chose not to return. The shares he purportedly holds can be easily sold and the money remitted to him overseas. That would be the most preferred option than to return to the country for the 20 percent interest in a company whose profile is unknown.

27. In the final analysis the applicant has failed to satisfy the prerequisites under s. 23 (1) of the Bail Act when he could not provide a reason that would amount to an 'urgent personal reason' to mount the application.
He has also failed to satisfy me enough that he will return to complete the proceeding in court. Permission is therefore refused.
____________________________________________

Warner Shand Lawyers: Lawyers for the Applicant
Public Prosecutor: Lawyers for the State