The Queen v Guo [2006] NZCA 83 (3 May 2006)

Last Updated: 1 June 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA81/06

THE QUEEN



v



XIAO CHEN GUO

Hearing: 3 May 2006

Court: William Young P, Chambers and Panckhurst JJ

Counsel: D G Young for Appellant
S C Holt for Crown

Judgment: 3 May 2006

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by William Young P)

Introduction

[1]	This is a bail appeal.

The background

[2]	The appellant is a Chinese national who has been living in New Zealand since 2000. He faces a number of charges which are associated with the alleged importation (and attempted importation) into New Zealand of the class B controlled drug MDMA (usually known as Ecstasy). He and his co-accused, Man Fu Hui, were to stand trial before Courtney J in the Auckland High Court in February this years. When the case was called, Man Fu Hui did not answer his bail. The case was stood over for two days and the appellant was in the meantime bailed despite his co-offender having absconded. The trial then continued for the appellant and Man Fu Hui with the latter being tried in his absence. During the trial, bail was declined. At the end of the trial the jury found Man Fu Hui guilty on the charges he faced but disagreed as to the appellant. He now faces a retrial which is scheduled to start at the beginning of July.
[3]	The appellant had been on bail from his arrest in September 2004 until the commencement of his trial. He was not allowed bail during the trial and Courtney J declined him bail pending his retrial.
[4]	He now appeals against the decision to decline him bail pending his retrial.

The judgment of Courtney J

[5]	Courtney J did not give reasons when she declined bailed but subsequently provided reasons after this appeal was lodged. They were in these terms:

The major concern I had in considering Mr Guo’s application for bail was the risk of him failing to answer bail in respect of the re-trial of this matter. His co-accused is suspected by the police of having fled New Zealand using false documents. That fact is not relevant to Mr Guo’s application but I mention it because I do not regard the fact that Mr Guo has surrendered his passport (as the co-accused had) as significantly affecting that risk. Mr Guo has few ties to New Zealand. As far as I could ascertain he is not working nor attending any educational institution. He does not own property here. He has no family here. Further, having heard the evidence myself I considered that Mr Guo had some reason for concern at the outcome of his re-trial.
Having considered the risk Mr Guo poses in relation to answering bail coupled with the seriousness of the charges and the evidence that I had heard I could not be satisfied that any conditions imposed would reduce that risk to a satisfactory level. As a result, I declined to grant bail.

Discussion

[6]	Mr Young for the appellant has said everything which could fairly be said on behalf of the appellant, but we are well satisfied that the appeal must be dismissed.
[7]	This is, of course, an appeal against the exercise of a discretion. A particularly significant consideration for us is that Courtney J, who presided over the appellant’s first trial, was far better positioned than we are to form a judgment on the appropriateness of bail.
[8]	The charges against the appellant are serious. If found guilty he will be facing a lengthy prison sentence. Courtney J was well placed to assess the likelihood of conviction. The appellant is, as we have mentioned, a Chinese national. He has comparatively few New Zealand connections. Immediately prior to his remand in custody he was neither employed nor engaged in education. He has no assets of any substance here. While he is not to be punished for the actions of his co-accused in absconding, those actions convincingly demonstrate that bail conditions provide no basis for confidence that the appellant could not abscond if so minded.
[9]	It is true that the appellant complied with his bail conditions for some 17 months and attended court for his trial. And those are considerations which support a grant of bail. But these considerations were allowed for by Courtney J and are not controlling.

Disposition

[10]	Mr Young was unable to demonstrate any error on the part of Courtney J and the appeal is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington