R v Chen [2022] NSWSC 113

Supreme Court New South Wales

Medium Neutral Citation: R v Chen [2022] NSWSC 113 Hearing dates: 14 February 2022 Date of orders: 15 February 2022 Decision date: 15 February 2022 Jurisdiction: Common Law Before: Harrison J Decision: Bail granted Catchwords: BAIL – show cause offence – where risk of flight – where Crown's bail concerns mitigated by appropriate conditions – bail granted Legislation Cited: Bail Act 2013 (NSW), s 16B(1) Criminal Code (Cth), s 307.1(1) Category: Principal judgment Parties: Zhilin Chen (Applicant) Crown (Respondent) Representation: Counsel: C Davenport SC (Applicant)

Solicitors: Broaden Legal (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2022/14841 Publication restriction: Nil

Judgment 1. HIS HONOUR: Zhilin Chen applies for bail. Mr Chen has been in custody bail refused since 22 December 2021 charged with a show cause offence, namely, importing a commercial quantity of the border-controlled substance methylamphetamine, contrary to s 307.1(1) of the Criminal Code (Cth). Mr Chen is required to show cause as the maximum penalty for this offence is life imprisonment. 2. The alleged facts can for present purposes be briefly stated. On 11 December 2021, the police intercepted a consignment from South Africa containing goods described as "surface expension" [sic]. Mr Chen was the consignee. The item was found to contain 1.8 kilograms of methylamphetamine. On 22 December 2021, the police executed a search warrant at Mr Chen's address. Mr Chen is alleged on this occasion to have had knowledge of the consignment which he said he was waiting to collect for a third party. Mr Chen maintained that he did not know what was inside the package but did not believe it was a prohibited drug. He is alleged to have admitted to the police that the consignment was "something not good" and became increasingly concerned. 3. Mr Chen is 31 years of age. He is a Chinese citizen who is presently in Australia on a valid student visa which expires on 15 March 2022. Prior to his arrest, he was enrolled at university and had part-time work as a food delivery driver. Mr Chen does not have a criminal history and other than by reference to the current charge, does not appear to have criminal associations. 4. The Crown opposed bail upon the basis that Mr Chen had no community ties and that the seriousness of the charge combined to inform a significant incentive to leave the jurisdiction. That concern was also influenced by the strength of the Crown case which the Crown contended made a conviction highly likely. 5. Mr Chen submitted that there was a real risk that he would not come to trial for a considerable period and that he was able to offer an appropriate surety to secure his attendance at court. As will already be apparent, Mr Chen has not previously spent any time in custody and his family all reside in China. The hardship likely to be experienced by him over an extended period on remand was considerable. Mr Chen was steadfast in his denial of any knowledge of the contents of the package. He emphasised the strength of his denials of any knowledge of the presence of drugs was assisted by his previous good character. 6. Although the Crown maintained that Mr Chen presented with a risk of commission of a serious offence and of endangering the community if granted bail, I do not accept that submission. In contrast, I accept that there exists a tangible incentive for Mr Chen to leave the jurisdiction having regard to the likely consequences of a conviction for this offence.