Gaeilge

Title:	Choong & anor -v- Director of Public Prosecutions
Neutral Citation:	[2014] IESC 35
Supreme Court Record Number:	72/14 and 74/14
High Court Record Number:	2014 202 SS, 2014 197 SS
Date of Delivery:	05/08/2014
Court:	Supreme Court
Composition of Court:	Denham C.J., Hardiman J., MacMenamin J.
Judgment by:	Denham C.J.
Status:	Approved

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Denham C.J.
Hardiman J.
MacMenamin J.

Between/

Judgment delivered on the 8th day of May, 2014, by Denham C.J.

1. This is an appeal by the Director of Public Prosecutions, referred to as “the DPP”, from decisions of the High Court (Butler J.) in which Li Jiuan Choong and Ching Ann Low, referred to collectively as “the applicants”, were granted bail.

2. An issue in this appeal is whether the High Court was correct to admit the respondents to bail on their own bond in a nominal amount and without independent sureties when the learned High Court judge was satisfied that they were a flight risk.

3. The Court was asked also to determine whether its decision in The People (DPP) v Bell (Supreme Court, ex-tempore, 13th June, 2013), prevented the High Court determining an appropriate and reasonable amount of bail to be required of an independent surety.

Background
4. On the 21st January, 2014, a search warrant was executed by An Garda Síochána in relation to a business premises and adjoining living quarters of Lee Ho Chinese Takeaway, Navenny Street, Ballybofey, Co. Donegal. During the search, €242,000 worth of cannabis plants were discovered growing in the accommodation adjoining the living premises. The applicants were either on or outside the premises at the time of execution of the warrants. They were arrested, detained and interviewed by Gardaí while in custody.

5. Subsequently, the applicants were charged with offences under the Misuse of Drugs legislation.

6. On the 23rd January, 2014, they were brought before Letterkenny District Court where applications for bail were made. These applications were refused on the ground that the applicants would not turn up to answer the charges before the court.

7. The applicants appealed the refusal to grant bail to the High Court.

8. The applicants’ appeal came on for hearing and was determined by the High Court (Butler J.).

9. The High Court ordered, on the 17th February, 2014, in relation to Li Jiuan Choong:-

“that the said Applicant be admitted to bail on the above charges on entering into a bond before a Judge of the District Court or the Governor or their nominee where the Applicant is currently detained in the following terms:
• Own Bond E100 (no lodgement)

• and further that the applicant do

• not commit any offence and otherwise be of good behaviour

• reside at an address and report daily at a Garda Station local to that address between the hours of 9.00 am and 9.00 pm each day and there sign the book for that purpose provided such address and reporting Garda Station to be notified in writing to and approved in writing by Garda Paul Harte or in his absence any other prosecuting Garda and notified in writing to the Governor of Dochas Prison and

• remain indoors and maintain a curfew between the hours of 10pm and 8am and be available if required to members of An Garda Síochána calling to said address during those hours and

• notify in writing and seek approval in writing from the prosecuting Garda or in his absence the Member In Charge of the reporting Garda station of any subsequent change or variation in (a) address (b) the reporting condition or reporting Garda Station and (c) in the curfew condition and said change to be approved in writing and

• Surrender any travel documents and undertake not to apply for any new or duplicate passport or for any other travel documentation and

• appear in Court at each and every remand until the charges shall be disposed of according to law.

AND IT IS ORDERED that there be a stay on this Order for a period of three (3) weeks from the date hereof pending the DPP lodging an appeal with liberty to apply. And the Court considers it proper in the circumstances of this case to recommend payment by the State of the costs of the Applicant Solicitor including Junior Counsel in accordance with the Legal Aid - Custody Issues Scheme.”

10. An order was made in relation to Ching Ann Low in similar terms, with the additional requirement that Ching Ann Low:-

“Carry a mobile phone at all times and be available to answer said phone at all times the number of the said phone to be provided to the prosecuting Garda.”

11. The learned High Court judge gave a single judgment in relation to both applicants. Counsel’s agreed note of the proceedings included the judgment, which has been approved by the learned High Court judge and provides:-

“The prosecution is suggesting I can set a surety that's fair but at what amount - do I pluck it out of the sky? I have heard evidence that the Applicants have no money and no connections' to the jurisdiction.

I am confronted with a situation where two people have the presumption of innocence and are charged with a very serious offence, a husband and wife with a child in care; who can't speak English. I have been asked to fix bail and they are clearly a flight risk. I asked the prosecution what sum by way of a surety I can fix and they won't give me guidance. I have sought guidance elsewhere and didn't get it. I had a habit of relating the independent surety in a small way to the amount of the drugs involved, that was found to be wrong, therefore any sum that I fix by way of independent surety will be arbitrary. Therefore I am not doing that and I am setting bail in their own bond.

Mr. Justice Butler then fixed bail for both of the Applicants in the following terms:

Own Bond €100, lodge nil;

The Applicants to reside at an address to be agreed by Garda Paul Harte or his nominee;

To abide by a curfew at that address between 10 p.m. and 8 a.m.;

The Applicants to sign on daily at a Garda station to be nominated by Garda Harte or his nominee between 9 a.m. and 9 p.m.;

Mr. Low is to provide a mobile phone number to the Gardai and to make himself available at that number at all times;

Undertake not to apply for any other travel documentation.

The Court then asked the prosecution if there were any other conditions required, which reply was No.

Mr. Justice Butler said he would readily grant a stay provided the appeal papers were lodged with all due haste and he granted liberty to apply if they were not.

Counsel for the Applicants referred the Court to the decision in Redmond v Ireland [1992] I.L.R.M. 291, where the Supreme Court refused the application for a stay and outlined (albeit in a personal injury matter) that when deciding to grant a stay of execution ‘the court must balance conflicting considerations so that justice will not be denied to either party.’

Mr. Justice Butler said he would with regret grant the stay as the Applicants were flight risks and that the appeal would be pointless if they did flee. The Court accepted that an address may be hard to meet. He granted the stay with effect for three weeks from today's date and that any further application for a stay would then have to be made to the Supreme Court.

It was submitted by Counsel for the Applicants that the application for the stay was premature as there was no address to hand yet and the Court stated that then it was all moot and he would grant the stay.

The Court certified for the Interpreter and allowed for a recommendation under the Legal Aid (Custody Issues) Scheme.”

12. The DPP filed a notice of appeal in relation to the determinations of the High Court in respect of the applicants. The grounds were as follows:-

(i) That the learned High Court Judge erred in law and/or in fact in granting bail to the applicant;

(ii) That the learned High Court Judge erred in law and/or in fact in fixing bail without the inclusion of a requirement that an independent surety do enter into a recognisance on the applicant’s behalf;

(iii) That the learned High Court Judge erred in law and/or in fact by taking into account an irrelevant consideration when granting bail, namely that the approach he had previously adopted towards the setting of bail in drug related cases had since been held to be incorrect by this Court in DPP v. Bell (Supreme Court, ex-tempore, 13th June, 2013);

(iv) That the learned High Court judge erred in law and/or in fact by taking into account an irrelevant consideration when granting bail, namely the fact that the applicant was not alleged to be the "prime mover" in the commission of the relevant offences;

(v) That the learned High Court judge erred in law and/or in fact in failing to attach any or sufficient weight to the seriousness of the charges, the strength of the evidence supporting them, the likely sentence to be imposed on conviction and the applicant's lack of ties to this jurisdiction, when he granted bail and/or set the terms of bail;

(vi) That the learned High Court judge erred in law and/or in fact in attaching excessive weight to the means of the applicant, when he granted bail and/or set the terms of bail;

(vii) That the learned High Court judge erred in law and/or in fact by granting bail and/or setting the terms of bail for the applicant without having sufficiently distinguished her circumstances from those of her co-accused.

13. The terms of the grounds of appeal of the DPP in the case of Ching Ann Low were similar to those in the appeal relating to Li Jiuan Choong, except for the word “his” in paragraph (vii), in place of the word “her”.

Submissions
14. The Court received oral and written submissions from the parties.

Decision
15. At the core of these appeals is an issue in relation to the decision of this Court in The People (DPP) v Bell (Supreme Court, ex-tempore, 13th June, 2013).

16. DPP v. Bell determined that it was an error in law for the High Court to apply a fixed policy in determining the quantum of bail in drugs related cases. In particular, that the High Court erred in operating a fixed policy of fixing the financial terms of bail at 10% of the given street value of the drugs in applications for bail in respect of charges under the Misuse of Drugs Act, rather than assessing the circumstances of each case, and that such a policy was an arbitrary and rigid test, which did not have regard to the particular circumstances of each individual case. This Court held that the High Court erred in failing to take into account relevant considerations in assessing the financial terms of bail and also failed fully to vindicate an applicant’s constitutional rights by failing to consider properly the merits of the application for bail, in failing to fix bail at a level commensurate with an applicant’s means, or in failing to impose conditions appropriate in all the circumstances.

17. This Court did not hold in The People (DPP) v. Bell, and does not now hold, that the High Court is prevented from determining an appropriate and reasonable amount of bail, in all the circumstances, to be required of an independent surety.

18. In the view of this Court, there was an error of law by the High Court in its application of the principles identified by this Court in D.P.P. v. Bell.

19. Here, in the view of this Court, the learned High Court judge erred in law in concluding that he was prevented from setting an independent surety as he was no longer permitted to apply a fixed policy in relation to an independent surety as an appropriate way to arrive at the financial terms of bail in respect of an applicant. We should now explain our reasons.

20. The decision in DPP v. Bell created no new law. It has long been established that a court, in determining the terms for bail, must consider all the circumstances of the case, and may not adopt a fixed policy as to the amount to be sought of an independent surety.

21. At the core of the law on bail is the decision in The People (A.G.) v. O’Callaghan [1966] I.R. 504. Referring to the discretionary nature of bail, Walsh J. held at p. 512:-

“The granting of bail in the High Court is, with one curious exception, always discretionary.”

Walsh J. continued to refer to the objective of bail in the criminal process at pp.513-514 stating that:-

“In bail applications generally it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by a reasonable amount of bail….[I]t is desirable to release on bail as large a number of accused persons as possible who may safely be released pending trial. From time to time necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at trial but in such cases ‘necessity’ is the operative test. The presumption of innocence until conviction is a very real thing and is not simply a procedural rule taking effect only at trial. In the modern complex society in which we live the effect of imprisonment upon the private life of the accused and his family may be disastrous in its severe economic consequences to him and his family dependent upon his earnings from day to day or even hour to hour…[T]he object of fixing terms of bail is to make it reasonably assured that the applicant will surrender at his trial.”

Referring to the quantum of bail, Walsh J. determined at pp.518-519:-

“Bail must not be fixed at a figure so large as it would in effect amount to a denial of bail and in consequence lead to an inevitable imprisonment. As I indicated earlier in this judgment, both Bracton and Hawkins testify that at common law the Court in fixing the amount of the bail is to be guided by the ability to give bail and the condition or quality of the prisoner, in addition, of course to the other factors, such as the nature of the offence and the gravity of the evidence. If persons come from a humble walk in life or are of little means it is most likely that their friends or those of them who are prepared to go as surety for them are of the same condition and the amount of bail required must be just and reasonable in all the circumstances having regard to the condition and ability of the accused, bearing in mind all the time the overriding test of the probability of the accused failing to appear for trial. Needless to say, any bail which a party can in fact procure cannot be considered excessive.”[Emphasis added].

22. Thus, it is well established that the fixing of the amount of bail is dependent on all the circumstances of a case. These include ability to pay, the nature of the offence, and the gravity of the offence. The amount of bail should be just and reasonable in all the circumstances, having regard to the particular circumstances of an accused, and bearing in mind “the overriding test of the probability of the accused failing to appear for trial”.

23. The balancing process required of a judge determining the issue of bail was addressed by Kearns J. in Broderick v. D.P.P. [2006] 1 I.R. 629 at p. 634:-

“…the real issue in this case is to determine how any judge, when fixing the amount of bail, should balance the competing interests, at least in the case of serious offences, to ensure that an applicant will stand trial by fixing bail at an appropriate level on one hand, but by not fixing at a level which he cannot meet on the other.”

He continued to endorse the approach of the High Court judge in so far as it was:-

“…measured and sensible in that it bridged the gap between requirements on one hand to acknowledge the gravity of the offences but not on the other hand to set terms which were tantamount to the denial of bail.”

24. The law has long recognised that an accused person should not be denied bail just because he is poor. (See the quotation of Walsh J. in The People (A.G.) v. O’Callaghan [1966] I.R. 504 at pp. 518 – 519 quoted with emphasis above).

25. The same approach may be seen in other common law jurisdictions. For instance, in the U.S. Supreme Court decision of Bandy v. United States (1961) 7 L ed 2d 9, 82 S Ct 11 Douglas J. stated:-

“Further reflection has led me to conclude that no man should be denied release because of indigence.”

26. The issue of setting bail has also been addressed in the academic literature. Thomas O’Malley explains in The Criminal Process (Roundhall, 2009) at para. 13.22:-

“Because of the paramount importance of respecting the presumption of innocence in all bail decisions, care must be taken to avoid setting the amount of bail at a level which will render it impossible for an accused person to secure his liberty pending trial even though he meets the other requirements for bail.”

27. Dermot Walsh also addressed the level at which bail should be set in Criminal Procedure (Roundhall, 2002) at para. 10.52:-

“It is apparent, therefore, that the court must consider the individual circumstances of the defendant and his immediate social circle. Two defendants with similar records facing similar chargers in similar circumstances could set very different amounts of bail and surety requirements, reflecting their different social and financial circumstances. Nevertheless, it is not a requirement that bail must be set at a level which the defendant can satisfy. The nature of the offence, or the defendant’s previous record, may be such that the tribunal may reasonably consider that it is necessary to set a bail amount beyond the personal means of the defendant in order to ensure that he appears for his trial.”

28. Indeed, the discretion of the Court in setting the level of bail can be traced back to the origins of common law. In Blackstone’s Commentaries on the Laws of England (6th edn., 1775) it is stated that “excessive bail ought not be required: though what bail shall be called excessive must be left to the courts, on considering the circumstances of the case, to determine”.

29. Thus, it is the responsibility of the trial judge in each case to consider all the circumstances of the case when an application for bail is before him or her. It requires an exercise by the learned trial judge in applying the law to all the particular facts of the case. A judge should not apply an arbitrary 10% fixed policy rule as to the level of bail based on the value of illegal drugs in a drugs related case. The law requires that, in each case, the learned trial judge considers all the circumstances relevant to that applicant and the offences with which he is charged. A sum fixed for an independent surety, in accordance with the well settled principles relating to applications for bail, after consideration of all the circumstances in a case, would not be arbitrary. As is referred to by Professor Dermot Walsh above, two defendants, with similar records, facing similar charges in similar circumstances could have different amounts of bail and surety requirements, reflecting different social and financial circumstances.

30. The learned trial judge in this case erred in law in his application of the decision of this Court in The People (DPP) v. Bell. I would allow the appeal and remit the matter to the High Court for a hearing of the application for bail in accordance with law.