R v Hing

Decision of the Court of Criminal Appeal

1. The Court of Criminal Appeal noted that the offence of knowingly take part in the supply of cocaine in not less than a large commercial quantity is an offence listed in s 16B(1)(f) of the Bail Act 2013. As it is an offence punishable by life imprisonment, it falls within s 16(1)(a) of the Bail Act and, accordingly, a court is obliged to refuse bail unless an applicant showed cause why his detention is not justified. The Court then said this at [11]: "Primarily because of the seriousness of many of the charges the respondent faces (particularly the drug supply charge) and the apparent strength of the case against him, the Court is not satisfied that cause has been shown."
2. The judgment of the Court of Criminal Appeal included the following summary of the Facts which related to the charge of knowingly take part in the supply of a large commercial quantity of cocaine. The Court of Criminal Appeal said this: "31 A search warrant was executed at the World Towers apartment following the respondent's arrest. What the police found included: ● 33 individual items of packaging consistent with the importation of one kilogram blocks of cocaine. Presumptive testing on residue inside these packages indicated the presence of cocaine. ● Numerous heat sealed bags containing a white residue, each being labelled with figures believed to be indicative of weight. ● In total, there were hundreds of bags believed to have once contained prohibited drugs and numerous bags that are believed to have once contained cash. ● A locked suitcase, which was opened with a key found in the respondent's possession when he was arrested, containing timber press plates with stencils to imprint 'XXX' and '8S' onto powder. ● A mechanical press of a type commonly used in conjunction with the press plates to compress powdered cocaine into individual blocks for supply. (It is asserted in the written submissions to Fagan J that this, and the previously mentioned items, have not been found to have traces of cocaine on them.) ● Two more locked suitcases; one containing cash (see Charge 7 below) and the other containing items believed to be linked to the block press. ● Numerous heat sealable bags and a heat sealing device; scales; a money counting machine; two sets of breathing apparatus; and numerous disposable gloves. ● Seven mobile phones. ● A camera connected to a mobile internet device. 32 … 33 Police also found the remnants of two UPS packages (boxes) in the name of Kenneth Taylor and Harold Farley with 'Mountain House Food' labelling on them. Also found in the apartment were a large number of Mountain House Food boxes and hundreds of pouches containing what appeared to be long-life dehydrated food products. In amongst these packages were numerous small plastic bags with numbers such as '60' and '90' written on them with white powder residue inside. In the Letter it is said that 'further resealable packaging containing white powder residue was located' and 'forensic analysis has confirmed this powder to be … cocaine'. 34 A shredding machine was found which contained shredded plastic packaging, consistent with the Mountain House Food packaging. Police believe there had been an attempt to destroy evidence relating to the suspected importation of cocaine from the United States. 35 Police have identified 22 UPS consignments sent to either 'Harold Farley (c/o SSIC)' at an address in Macquarie Place, Sydney or 'Kenneth Taylor (C/O Nichemetrics)' at an address in Barangaroo between 14 October 2016 and 27 June 2017. Of these consignments, 19 purported to contain some form of 'Mountain House emergency food supplies' and weighed between 5 kg and 11.61 kg. 36 The premises at Macquarie Place and at Barangaroo are 'virtual offices' run by a company called Servcorp. The records of Servcorp indicate that a virtual office of SSIC was opened by a person purporting to be Harold Farley and a virtual office of Nichemetrics was opened by a person purporting to be Kenneth Taylor. On both occasions, American identification was provided (passport and driver's licence). Inquiries with the Federal Bureau of Investigation confirmed the identification documents were false. Police suspect that both Farley and Taylor were victims of identity fraud in order to conceal the identity of the person sending the packages from the United States of America. 37 The records of Servcorp also revealed that on seven occasions between 19 May and 29 June 2017 a person who usually signed as 'Gary Tan' collected packages purporting to contain Mountain House products from the Macquarie Place or Barangaroo addresses. CCTV footage from World Towers shows the respondent carrying a box or a bag in the hallway leading to the apartment on each of these days. When the apartment was later searched by police, two boxes were found with labels correlating with boxes that had been collected from Macquarie Place and Barangaroo. 38 The Letter provides details of the occasions when Tan collected packages and when the respondent was seen taking a box to the World Towers apartment. 39 On the basis of the foregoing evidence, police 'strongly suspect' that the Mountain House Food imports were used to conceal cocaine. It is alleged that the World Towers apartment was used solely for the purpose of deconstructing a large quantity of cocaine which was then re-processed, pressed into block form and sold. Police estimate that no less than the large commercial quantity of cocaine was involved. 40 As at the time the statement of facts was drafted, 26 bags that police believed had once contained cocaine had been examined by the Forensic and Analytical Science Service. It was found that 25 of the bags were positive for cocaine. The residue scraped of the bags equated to 6.2 grams of cocaine."
3. It is also convenient to set out the summary of Facts described in the Court of Criminal Appeal judgment with respect to one charge of knowingly deal with the proceeds of crime, involving the largest amount of cash, namely $886,110. The Court of Criminal Appeal said: "41 Another suitcase found in the World Towers apartment was locked but was opened with a key found in the respondent's possession. It contained $886,110 in cash, mainly comprised of $50 and $100 notes in $10,000 bundles. Some of the bundles were sealed within vacuum sealed bags and some were loose within the suitcase. It is alleged that this money was derived from the sale of no less than a large commercial quantity of cocaine and was to be taken by the respondent and Tan to various persons throughout Sydney in an attempt to launder it."
4. Of the strength Crown case, the Court of Criminal Appeal said this: "57. … nevertheless, it appears that the prosecution have a reasonably strong circumstantial case as to the respondent's involvement in the receipt and distribution of relatively quantities of imported cocaine. The finding of the various items in the World Towers apartment that were clearly associated with drug supply amply support that inference. The fact that the respondent had a key and the only electronic swipe card providing access to the apartment is a matter of considerable significance, notwithstanding the apparent attendance at that apartment by others. It is significant that there is no suggestion of others attending in the absence of the respondent. 58. Another matter of significance in support of the prosecution's contention in relation to the drug supply activity and the money laundering charges is the fact that the respondent had in his possession upon his arrest a key that unlocked a suitcase found within the apartment that contained $866,110. The $200,000 found in a safety deposit box that was under the respondent's control is also a significant item of circumstantial evidence. So too is the fact that the proceeds of crime charges concern an amount exceeding $2M."
5. The nature of the Crown case is such that if the applicant is convicted of the drug charge, or any of the money laundering charges, he would be confronting a significant term of imprisonment.
6. The Court of Criminal Appeal considered the delay, which it anticipated to be in order of 18 months to 2 years, as being most concerning. The Court went on to note that that was a matter which needed to be balanced against all other circumstances of the case.

Second Release Application in this Court

1. Because the applicant has previously made a release application in this Court, he accepted that he is confronted with the threshold contained in s 74 of the Bail Act.
2. Section 74 is in the following terms: "74 Multiple release or detention applications to same court not permitted (1) A court that refuses bail for an offence, or that affirms a decision to refuse bail for an offence, after hearing a release application is to refuse to hear another release application made by the accused person for the same offence, unless there are grounds for a further release application. (2) … (3) For the purposes of this section, the grounds for a further release application are: (a) the person was not legally represented when the previous application was dealt with and the person now has legal representation, or (b) material information relevant to the grant of bail is to be presented in the application that was not presented to the court in the previous application, or (c) circumstances relevant to the grant of bail have changed since the previous application was made, or (d) the person is a child and the previous application was made on a first appearance for the offence. (4) … (5) In this section, court does not include an authorised justice."
3. The applicant relies on s 74(3)(b) and s 74(3)(c) to permit this further release application to be heard and determined. He relies upon: 1. additional material which was not available at the previous two bail applications which highlight evidentiary difficulties and deficiencies in the Crown case; 2. an expert opinion of Professor Hibbert concerning the drug supply offence; 3. the unexpected and explained delay in the applicant receiving a full Brief of Evidence resulting in an increased period of time that he will be obliged to spend in custody awaiting trial; and 4. increased surety in an amount not previously offered to the Court.

Increased Surety

1. The increase of the surety now offered is from $1.2M to $1.5M. The sum which is being offered is being offered by the applicant's father. It is supported by security by way of his ownership of two apartments in Sydney, both of which are unencumbered and in neither of which he lives. Whilst the sum of the surety is increased, the security is the same as previously offered.
2. It is undoubted that the sum offered is a significant one. However, I do not regard the increase as representing a relevant change in circumstances for the purposes of s 74 of the Bail Act. Any condition of bail which requires the deposit of security by a surety in a sum which is relevant here is directed to ensuring that the applicant attends court when required to do so. In my view, whether the sum offered by way of surety is $1.2M or $1.5M, having regard to the very large sums of money here in issue in the offences and the quantity of drugs which it is alleged the applicant was concerned in the supply of, the additional sum by way of surety is not material, and does not amount to a relevant change in circumstances.
3. There is nothing compelling about the additional sum being offered by way of surety which would make any difference to the assessment of the risk of the applicant failing to appear in Court when required.
4. It does not satisfy me that it is grounds for a further release application being heard by the Court in accordance with s 74 of the Bail Act.

Additional Delay

1. Fagan J concluded that it was likely that the applicant would be in custody for at least 18 months, and possibly 2 years, before any trial would occur with respect to the charges upon which the applicant had been refused bail.
2. The Court of Criminal Appeal took the view that, having regard to the matters described to them by the applicant's counsel, it seemed to be a reasonable assessment that the applicant's trial would not take place in the District Court until 2019. The Court of Criminal Appeal remarked that it was not out of the ordinary for serious criminal charges in both the District Court and the Supreme Court to take up to 18 months or 2 years from arrest until finalisation. They noted that such a prospective delay was most concerning. The Court also noted that it was a matter that was required to be balanced against all the other circumstances of the case.
3. On 11 January 2018, the applicant's lawyer was given an itemised table about standing brief material by the DPP with an indicated timeframe.
4. Whilst most of the outstanding material was said to likely be available in a period between six to 12 weeks from that date, the preparation of some proposed expert witness reports or statements was suggested to be likely to take in the order of six months. One such statement was from a "drug expert" who had already been engaged in the matter but who was awaiting further forensic tests before expressing any expert opinion. The second proposed expert witness was one who could deal with Bitcoin. Such an expert had not been located. The third and fourth items reflected enquiries that had been made by the prosecution with the FBI in the United States. The most directly relevant of these enquiries was an attempt to obtain through the assistance of the FBI, statements from two identified individuals, Mr Kenneth Taylor and Mr Harold Farley, deposing to the fact that they were the victims of identity fraud.
5. If the Police brief was not to be considered as complete, and the whole of the Local Court proceedings were to await the production of these four items of evidence, then there may be an argument that a prospective delay was likely to be longer, and significantly so, than that predicted before the Court of Criminal Appeal, or on the release application before Fagan J.
6. The difficulty for the applicant with this argument is that the Crown has already been ordered to serve the remainder of its brief by February 2018 and that the proceedings presently stand adjourned to 10 April 2018 for mention. The Court was informed by the Crown that on that date the Crown will seek that a period be fixed for negotiation in accordance with the Local Court's ordinary practice.
7. Even if the Crown were permitted to obtain the material (the delay for which is estimated to be six months) there is no basis for a conclusion that this would hold up the proceedings in the Local Court which are currently moving along a path that accords with the time estimate that was before the Court of Criminal Appeal.
8. I am wholly unpersuaded that the applicant has demonstrated that there is any further significant delay to be occasioned in this case at the moment, which is capable of being regarded as a relevant change in circumstances.

New Expert Material

1. The third matter relied upon as a change of circumstances or, alternatively, as new material now available, is the content of two expert reports obtained from Professor David Hibbert, who is an Emeritus Professor of Analytical Chemistry at the University of NSW.
2. Professor Hibbert expressed two relevant opinions upon which the applicant relies. The first opinion is contained in a report dated 8 November 2017. Professor Hibbert approached his opinion from the perspective of his expertise as a chemist. This is both correct and unsurprising. From that perspective, in this report, he said: "I am of the opinion that because (1) presumptive tests do not establish the unique identity of a drug, nor the weight of a pure drug, and (2) presumptive tests for cocaine were only conducted on single samples of traces of powder from two heat sealed plastic bags, and (3) the totality of white power in evidence is 6.2g, it has not been established by the evidence made available to me that there was more than 1kg of cocaine at the premises …"
3. The applicant tendered a second report from Professor Hibbert dated 5 March 2018. In that report, Professor Hibbert expressed the following opinion: "In my opinion there is no chemical or scientific reasoning that would allow the inference that there was more than one kg of cocaine in the Unit given the evidence shown to me. [A description of various analyses follows]. As the purity of the cocaine in the items tested is not known, all that can be said is that between 0.3g and 12.49g of cocaine were present in the samples in evidence. In the absence of other evidence as to the quantity of cocaine present, chemistry cannot say whether there was more or less than 1kg of cocaine present in the unit."
4. For the purposes of this application, it is appropriate to accept the opinions expressed by Professor Hibbert. The issue, though, is whether those opinions affect the strength of the Crown case. It is to be noted with respect to the drug supply charge that the Crown case, to which I have referred at [11] above, is an entirely multi-factorial one. It does not depend on any inference drawn from a chemical perspective or analysis, as to the quantity of cocaine which was being supplied from the unit. The relevance of the chemical analysis was to demonstrate that cocaine was the drug being dealt with, and its presence in microscopic quantities on a variety of objects and items found in the unit indicated not the quantity of the cocaine but rather that, on the probabilities, there was a drug supply enterprise.
5. The quantity of cocaine comes from inferences drawn from the packaging which the Crown contends the cocaine was delivered in, and the nature and size of the operation, including the extent of funds noted as being proceeds of crime. It is this combination of events which give the Crown case its strength. I note in particular that I wholeheartedly agree with, and with respect am prepared to adopt as my own, the conclusions expressed by the Court of Criminal Appeal as to the strength of the Crown case at [57], [58] and [61] of its judgment.
6. The production of these two expert reports does nothing to diminish the strength of the Crown case, and does not constitute relevant new material information which was not before the Court on a previous occasion.

New Evidentiary Material

1. Finally, the applicant relied upon additional material that was not available at the previous bail applications. This new material was said to highlight evidentiary and other difficulties and deficiencies in the Crown case. The first matter upon which the application relied is CCTV footage of people accessing the unit in Liverpool Street, which shows the applicant arriving "on occasion with other unknown persons". The applicant submitted that that footage thereby demonstrated that he did not have exclusive access to the unit. The applicant submitted that this new evidence was significant because it cannot be said that the applicant had exclusive dominion or control over what was alleged by the prosecution to be a safe-house for a highly organised criminal syndicate to distribute and otherwise deal with large quantities of cocaine.
2. I reject this argument. I do not regard this information as material. After all, the prosecution case has always been that the applicant was engaged in these offences with the co-accused. Whilst it is true that the original facts asserted that the applicant was the only person who attended at the unit, the new material demonstrates that if anyone else attended the unit, they did so in the company of the applicant. This does not weaken the case against the applicant. It demonstrates, if anything, that the applicant did have control over who entered the unit and who did not. I do not regard this information as being material to the consideration of any bail concern or the assessment of the Crown case.
3. The second matter upon which the applicant relied as new information was information with respect to the UPS consignments and the "virtual office". The plaintiff's written and oral submissions do not clearly articulate which information is new with respect to this category. A letter from the Officer in Charge dated 13 March 2018 has been put before this Court. It was not available to either Fagan J or the Court of Criminal Appeal. With respect to that part of the investigation relating to the UPS packages, that letter noted that forensic examination of some of the UPS package remnants had been completed. It went on to say: "A mixed DNA profile was recovered from under the sticker at one of these boxes. The major contributor to this mixed DNA profile matches Hing. Further examination and testing is continuing on the other package remnants."
4. The letter went on to note that investigators had identified a total of 22 UPS consignments that had been delivered and dealt with in the same way.
5. An annexure to the letter of the Officer in Charge provides information which strongly suggested that the applicant was associated with one of the importations of the UPS box on 25 May 2017. In dealing with a package weighing 9.97kg, the letter said this: "CCTV footage obtained from 95 Liverpool Street Sydney indicates that 4.22pm on 25 May 2017, [the applicant] has, using an upright hand trolley, transport [sic] a large brown cardboard box with a white label on one side towards [the unit]. Search warrants conducted at [the unit] on 20 September 2017 and 25 October 2017, identified the remnants of this cardboard box. The UPS label (with the consignee details and the UPS tracking number) was still attached to the cardboard box, however a large white sticker had been placed over this label." (emphasis added)
6. Similar observations are made with respect to the applicant for deliveries made on 26 May 2017, 19 June 2017, 22 June 2017, 26 June 2017 and 29 June 2017.
7. Far from this material demonstrating that the information weakened the Crown case, in my assessment it positively strengthens the Crown case against the applicant.
8. The applicant's submission that, with respect to these consignments, the case against him could not be considered strong, does not withstand scrutiny. In particular, the fact that the applicant's DNA is the major contributor found in respect of one of the UPS boxes and the fact that CCTV footage exists of the applicant wheeling a trolley upon which one of the boxes found in the unit in the course of the execution of the search warrant, combine to demonstrate that this is a strong Crown case.
9. Finally, the applicant submitted that in the comprehensive police surveillance material which has now been made available to him, which covers a period of several months prior his arrest, there was no direct evidence demonstrating that the applicant was involved in the commercial supply of cocaine.
10. This is a factor which has always existed. It was taken into account at the time of the decisions of Fagan J and the Court of Criminal Appeal. It does not amount to new material information relevant to the grant of bail.

Conclusion

1. As these reasons demonstrate, I am unpersuaded that the applicant has demonstrated that there is any new material information which would constitute a ground for the hearing of a further application for release under the Bail Act. As well, the applicant has failed to persuade me that there are any circumstances relevant to the grant of bail that have changed since the previous application.
2. In those circumstances, I am obliged by the legislation to refuse to hear this release application.

Amendments 15 August 2024 - Publication restriction lifted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 August 2024