Supreme Court New South Wales Medium Neutral Citation: R v Li [2019] NSWSC 1237 Hearing dates: 18 September 2019 Date of orders: 19 September 2019 Decision date: 19 September 2019 Jurisdiction: Common Law Before: Harrison J Decision: Bail granted Catchwords: BAIL – whether unacceptable risk - whether Crown's bail concerns can be mitigated by appropriate conditions Category: Principal judgment Parties: Nai An Li (Applicant) Crown (Respondent) Representation: Solicitors: Voros Lawyers (Applicant) Office of the Director of Public Prosecutions (Resondent) File Number(s): 2019/158737 Publication restriction: Nil Judgment 1. HIS HONOUR: Nai An Li is charged that between 1 February 2017 and 5 February 2017 he did receive, harbour, maintain and assist Ying Cheng Luo, knowing Mr Luo to have committed a serious indictable offence, namely murder. He was arrested, charged with this offence and taken into custody on 12 July 2018. However, Mr Li commenced to serve a sentence for an unrelated matter four days after his arrest on 16 July 2018. That sentence expired on 22 June 2019, since which time Mr Li has been in custody referable solely to the charge that he now faces. 2. The facts that are said to give rise to the charge are briefly as follows. 3. On 9 January 2017, Jun Jia sold 1kg of methylamphetamine for $90,000. He had purchased that drug on credit from a supplier the same day for $80,000. The Crown alleges that Mr Jia did not pay his supplier and that Mr Luo was then contracted to kill him. An unsuccessful attempt to kill Mr Jia was made on 23 January 2017. The details of what occurred on this occasion are not presently relevant. 4. The Crown alleges that a further attempt to kill Mr Jia was made at about 11pm on 1 February 2017. From about 4pm on that day, Mr Li, Mr Luo and Witness B socialised and smoked heroin at Mr Luo's apartment in Burwood. Mr Luo and Jaiyo Liu later left the Burwood address and at about 10.30pm arrived at 5 Kennedy Street, Guildford where they confronted Mr Jia and another man named Wu. Mr Liu produced a firearm. Mr Wu attempted to intervene but was fatally shot by Mr Liu. Three further shots were fired at Mr Jia but they did not strike him. Mr Liu and Mr Luo then left the premises. It is alleged that they returned about five minutes later with Ian Fan, still looking for Mr Jia. They were informed that the police had been called and they proceeded to leave the premises. As they were doing so, Mr Luo accidentally discharged a firearm he was carrying, sustaining a gunshot wound to his leg. 5. These men then went to premises occupied by Mr Fan. Mr Li arrived shortly thereafter. In due course, Witness B drove Mr Li to North Strathfield where he purchased heroin to be given to Mr Luo for the relief of pain caused by his gunshot wound. Mr Li obtained more heroin for the same purpose at a later time from a different source. 6. The Crown alleges that Mr Li permitted Mr Luo and Witness B to remain at his home at Sans Souci for a number of days where they took refuge and avoided the police. During this time, Mr Li provided significant assistance to Mr Luo by way of cleaning and dressing his wound and generally caring for him while he recuperated. Mr Luo and Witness B later moved out of Mr Li's home and into a motel at Lidcombe. 7. Mr Li applies for bail. That application is opposed. The Crown is concerned that Mr Li will fail to appear if released on bail and that he will commit further offences or reveal the whereabouts of Witness B. In this last respect, Witness B has to date cooperated with the police and provided them with an induced statement about what occurred in relation to the events above briefly described. It is alleged by the police and accepted by Witness B that he was in the car that took Mr Liu and Mr Luo to the Guildford premises where Mr Wu was killed and that he effectively remained in their company and that of Mr Li for some days after that. Although Witness B does not speak Mandarin or Cantonese, he has provided the police with a version of what he saw occur between or among these various participants at different locations from time to time. 8. The Crown case against Mr Li is that he knew that Mr Luo had been involved, as a participant either in a joint criminal enterprise or possibly an extended joint criminal enterprise with Mr Liu, in the murder of Mr Wu. Although he has been interviewed by the police, Mr Li has never admitted that he knew that Mr Liu had either intended to become involved in any proposal or plan to kill Mr Wu or that Mr Liu was involved in fact in the events that led to his death. Mr Li has consistently contended that he was aware only that Mr Luo accidentally shot himself, not that he was participating in some criminal enterprise that resulted in the death of Mr Wu. 9. In the course of evidence given in the Local Court on 20 May 2019, the Officer in Charge of the investigation into the murder of Mr Wu and related matters gave evidence with respect to concerns said to have been held by the Crown with respect to the prospect that Mr Li might, if granted bail, interfere with or harm Crown witnesses. The officer conceded, in cross-examination by Mr Voros, that he had no direct or indirect information to suggest that Mr Li was then seeking to do so. The officer's concern was that he might do so if granted bail. 10. The Crown also raised the prospect that Mr Li might commit offences if granted bail. This concern was said to derive from the fact that Mr Li was known to have had difficulties over many years with drug addiction and that he might return to the use of illicit drugs if released. It was not suggested that there was any prospect that Mr Li was at risk of committing a serious offence beyond a resumption of his drug related activities. Mr Ng, who appeared for the Crown, candidly, and in my view quite properly, acknowledged that Mr Li's conviction for possessing an unauthorised firearm in a public place in 1999 and resisting an officer in 2003 did not helpfully or materially inform the Crown's bail concerns in this respect. 11. Finally, the Crown indicated that it held concerns that Mr Li may not appear if granted bail. Mr Li does not have a significant history of failing to appear. Mr Ng acknowledged that the prospect of Mr Li being sentenced to a period of imprisonment that would increase the risk that he would flee was modest at best. Moreover, the evidence tendered in support of the present application shows that Mr Li has strong community and family ties and is able if required to provide considerable security in the form of the unencumbered portion of his family home. 12. Mr Voros contended that the Crown case was both circumstantial and weak. It was based upon the proposition that a jury could be satisfied beyond reasonable doubt that Mr Liu had been involved in a joint criminal enterprise with somebody who murdered Mr Wu, when there was no evidence other than his association with Mr Liu after the event as described by Witness B and in the absence both of any evidence of conversations witnessed by Witness B, or indeed anyone at all, or any inculpating listening device product or intercepted telephone conversations. Mr Voros contended that Mr Li's involvement with Mr Liu was in the circumstances as consistent with innocence as with guilt and that a jury would necessarily have no difficulty retaining a reasonable doubt about it. He submitted that at best for the Crown a jury would be confronted with alternative hypotheses of equal probability. 13. In my opinion, the only bail concern of any significance is that Mr Li might reveal the whereabouts of Witness B. Interestingly, the Crown concedes that Mr Li is currently unaware of Witness B's location, but remains fearful that he might be able to discover it. That concern is not given content in any empirical way by reference to Mr Li's particular predispositions or available resources. It also strikes me as highly unlikely that Mr Li would become involved in any activity that would possibly imperil his liberty if bail were granted having regard to the fact that contact with Witness B by anyone is assuredly being closely assessed and continuously monitored. I also accept that there is some risk that Mr Li may fail to appear but that such risk can be adequately ameliorated or mitigated by the imposition of an appropriate surety condition, among others. 14. I do not consider that Mr Li presents any unacceptable risks if released into the community on bail. Moreover, Mr Li has proposed a series of conditions for my consideration. It seems to me that they adequately address the bail concerns identified by the Crown and would if imposed mean that those concerns would be adequately addressed. 15. I propose to grant bail, subject to the following conditions: 1. He is to be of good behaviour. 2. He is to reside at xxx Fraters Avenue, Sans Souci. 3. He is to report to Kogarah Police Station daily between the hours of 8am and 8pm. 4. He is to appear at the Supreme Court of New South Wales on 4 October 2019 and thereafter as required. 5. He is not to take any illegal or prescription drugs (other than a drug prescribed to the applicant by a medical practitioner). 6. He is to comply with a curfew and is not to be absent from the address at which he is required to live between the hours of 10pm and 6am. 7. He is not to contact or attempt to contact any co-accused in these proceedings including Mr XXX, directly or indirectly including through a third party. 8. He is not to contact or attempt to contact any prosecution witness either directly or indirectly including through a third party. 9. He is to surrender his passport to the officer in charge and agree he is not to apply for any new passport or travel document. 10. He is not to go within 1 kilometre of any point of international departure. 11. He is to have use of and access to only one mobile phone, the number of which is to be provided to the officer in charge within 24 hours of the applicant's release. He is not to have use or possession of any other phone. 12. He is not to use any encrypted service such as "WhatsApp", "WeChat", "Snapchat" and "Instagram". 13. *An acceptable person is to enter into an agreement under which she agrees to forfeit the sum of one hundred thousand dollars ($100,000) if the applicant fails to appear before court in accordance with the bail acknowledgment. Jun Li is an acceptable person for the purposes of such security upon provision of sufficient evidence of identity and residential address. *The condition above identified by an asterisk is a pre-release requirement for the purposes of s 29 of the Bail Act 2013. It must be complied with before the applicant is released on bail. ********** Amendments 22 August 2024 - Publication restriction removed. 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: 22 August 2024