Jail or deport?
Posted: Sat Jul 25, 2015 11:32 pm
A magistrate has released an illegal immigrant linked to an extensive cannabis grow house network, despite concerns he will be deported and avoid facing justice.
But Magistrate Peter Dingwall has warned he would consider any decision to deport the man as an interference in the court's jurisdiction, urging authorities to think "very carefully" before doing so.
Ong Yap, 35, has pleaded not guilty to participating in a criminal group, and is currently before the ACT Magistrates Court.
He was arrested over his limited involvement in a cannabis grow house that formed part of an alleged major, sophisticated network of hydroponic set-ups across the territory.
Police, in a media statement, said an operation targeting the grow houses has seized 1226 plants with an estimated street value of more than $7 million.
Homes have been raided in Kaleen, Calwell, Downer, Harrison, Hackett, Macgregor, Nicholls and Weetangera.
Yap was one of four to face the ACT Magistrates Court on Wednesday, but was the only one to apply for bail.
The application, however, was complicated by the fact that he is in the country illegally.
Prosecutors did not oppose bail and it was highly likely that Yap would be deported immediately if released.
That prompted concern from Magistrate Peter Dingwall on Wednesday, and again when the case reappeared on Friday.
Mr Dingwall said that if Yap was deported, he would be unable to return to court, and therefore unable to meet his bail requirements.
Initially, Mr Dingwall indicated that the situation would leave him unable to grant bail.
"Otherwise it makes a mockery of it," he said. "He's charged and taken out of the country – the court's jurisdiction is impeded."
Prosecutors would not withdraw charges, and would not apply for a criminal visa to keep him in the country, an avenue they said was rare and expensive.
That in turn prompted an application by Yap's lawyers, Ben Aulich and Associates, to permanently stay proceedings.
Lawyer Adrian McKenna argued the prosecution's decision to not withdraw the charges or apply for a criminal visa represented an abuse of process that manifestly oppressed his client.
He said it meant Yap would be forced to either spend seven months behind bars waiting for a hearing, or be "railroaded" into entering a guilty plea.
It would be highly unlikely that Yap, even if found guilty, would be sentenced to imprisonment, given his clean record and low level of involvement in a single grow house.
Mr Dingwall decided to release Yap on bail.
But he warned that any decision to deport Yap would interfere with the court's jurisdiction, and encouraged authorities to think "very carefully" before doing so.
Yap was taken away by immigration authorities upon his release.
His case is due back in court in September.
Read more: http://www.canberratimes.com.au/act-new ... z3gwu8TAqy
