On appeal from the Superior Court, Law Division, Atlantic County.
King, Long and Stern. The opinion of the court was delivered by Stern, J.A.D.
[244 NJSuper Page 87] Albert King-Chun Poon, the subject of a State Grand Jury indictment (defendant), and his sister (surety) appeal from an April 7, 1989 order of the Law Division which entered judgment in favor of the County of Atlantic and against defendant in the amount of $150,000. The order further provided that the "$150,000.00 presently on deposit with the Clerk of Atlantic County be transferred . . . to the Office of the Treasurer of Atlantic County for deposit." We reverse the entry of judgment
and remand for further proceedings relating to the forfeiture of bail posted by the surety.
Defendant and 13 others were indicted by a State Grand Jury on various counts of theft and related offenses committed in furtherance of a conspiracy to violate the casino gaming laws. On June 17, 1987 defendant was arrested in California and returned to New Jersey on a warrant issued at the time of indictment. It appears that a $1,000,000 bail was set by a judge in California following defendant's arrest. According to a statement made at defendant's first appearance in New Jersey, he was "returned voluntarily by State investigators."
At his arraignment in New Jersey on July 1, 1987, a Deputy Attorney General (D.A.G.) stated his view that a $500,000 bail was appropriate given defendant's "exposure . . ., if convicted, as well as the likelihood of flight in light of those penalties" and "prior history in the court system, both here and in Hong Kong." The D.A.G. indicated that defendant had a prior conviction in Hong Kong for theft and "had to be returned from the United States for that offense" and that defendant had also been placed on probation in Nevada for "a secondary matter."
Defendant's attorney explained that defendant ran two retail toy stores in California and "has significant business interests in this country." He emphasized that "Mr. Poon has voluntarily waived extradition here" and claimed that bail in the amount of $500,000 "would be excessive". The D.A.G. responded by noting that Poon did not "surrender himself to California authorities", that the authorities had a "difficult time locating" him and that "his residence is not something which, I think, is so definitively defined as to insure that he is maintaining close ties in that community" in California. Further, the D.A.G. reported that defendant had not been observed at his business premises for some time and that the indictment alleged a $2,700,000 fraud involving two casinos. He added that "even a
surrender of passport, immigration records . . . would not preclude Mr. Poon from leaving this country." Defense counsel answered by representing that if it became necessary, defendant "would be willing . . . to waive extradition from any country, from any government in order to secure his appearance in this court to meet the charges."
The court concluded that based on the allegations and exposure, a bail of "half a million dollars" was appropriate and further directed that the defendant surrender "either [his] passport, Hong Kong passport or what is referred to as identity card." Nothing was stated at that time with respect to defendant's immigration status.
Defendant retained new counsel and moved for reduction of bail on July 24, 1987. The application was heard before another judge who thereafter heard all subsequent proceedings.
Defense counsel indicated why defendant's assets could not be used to meet the $500,000 cash bail and, while acknowledging defendant had left the jurisdiction of Nevada "for five years before he answered" the charges there, his waiver of extradition on the present charges made him a "good risk." Counsel also stated that defendant had been in jail for five weeks, and it was "unjust to have him waiting while" the co-defendants were being sought outside the United States. Only two of the fourteen defendants had been arrested and were present in the jurisdiction. Defense counsel also argued that the State's case would be difficult to prove and would take a substantial period of time to try. However, in opposition to a bail reduction, the D.A.G. noted, among other things:
In 1975, while employed as a charter accountant for a bank, Mr. Poon embezzled $200,000 in Hong Kong; fled to the United States; was arrested on a warrant and returned to Hong Kong by way of extradition. He was not deported. Mr. Poon reentered the United States and has, in fact, no immigration status whatsoever. He has no green card. He is not a legal resident alien, and immigration right now is trying to figure out what they're going to do with him and they're assigning an investigator to it.
I spoke to the investigators that worked with the investigations that dealt with Mr. Poon on his first entry into this country. Mr. Poon received an
aggregate of five or seven years in the Hong Kong case. He did five. He returned to the United States in '82 to Buffalo. He has resided in California since then. In 1980 there was the allegation of cheating which was substantially resolved in Nevada. In 1985 he was on three years probation for that particular offense, cheating at cards . . . The bottom line, Your Honor, is Mr. Poon might be willing to waive extradition from California. He could not under any circumstances be allowed to waive extradition in advance from Hong Kong or Taiwan. [emphasis added].
The court immediately asked defense counsel if his client had a passport, and counsel answered in the affirmative, stating that he had posted a $10,000 bond with the Immigration and Naturalization Service in 1985 and "has been dealing with them directly to resolve his status on the new amnesty law." Counsel further indicated that his client believed the new amnesty law applied to him and was hiring an attorney to handle his difficulties with the Immigration and Naturalization Service. Counsel stated:
He's been here since 1982. He may have had discussions with him about that. I suggested to him he hire an attorney who specializes in that field. And the answer is, I don't know. I do know he posted a ten thousand dollar bond, seems to be temporarily at peace, and that's reinforced by the statement of attorney general that they're going to start some in litigation.
The prosecutor responded by contending that defendant had assets sufficient to make the $500,000 bail and could easily leave the United States for a jurisdiction, such as Formosa or Taiwan, with which we have no extradition treaty. He again argued that "the half a million dollars cash bail is an appropriate amount given a 2.7 million dollar theft out of two casino, given the international tenor [ sic ] and the conspiracy in the group in which Mr. Poon was involved in, and given his major role [in] that particular activity."
The court denied the motion to reduce bail but ordered that in the event the $500,000 bail was posted, a condition "would require the surrender by Mr. Poon to the Attorney General of New Jersey of his passport, pending the completion of the proceedings." The judge also required the surrender of any current Hong Kong identification card.
On August 21, 1987 defendant again moved for reduction of bail. He argued, among other things, that the co-defendants were not being extradited or brought back to New Jersey for trial, that the case was very weak, and that the bail was totally inappropriate in the circumstances. The State again opposed a reduction, noting that the trial "is not going to be held up in any way, shape or form for people coming in from Hong Kong. The State is going to be ready to move on your schedule as you put it forward." The DAG who appeared at the proceedings also indicated that he was informed by the Deputy Attorney General who handled the prior bail proceedings "that immigration agents have apparently been checking into Poon and talked to Mr. Poon. There is extra incentive for Mr. Poon to get out of this country." The D.A.G. further said that he did not know the "status" of defendant's passport, but defense counsel indicated that it would be surrendered as condition of bail pursuant to the court's prior orders.
Defense counsel also stated:
One comment made by counsel I wanted to [dispel]. I'm aware by the Immigration Service that my client has made peace with them by posting a $10,000 bond, so there is not whatever danger that counsel perceives with him, and you're correct that your order does state that we turn in our passport and the identity card, but as we said the last time, if counsel said there is such a document, we are not aware of any such a document. The passport is the only document we have.
Defendant stated that he had lost the identity card.
The court modified the prior order and set "cash bail at $250,000." It was posted by the surety on September 2, 1987 in the form of a cashier's check drawn on the First Jersey Bank.
Two days later, on September 4, 1987, defendant was served with a "Notice to Applicant for Admission Detained for Hearing Before Immigration Judge," requiring a hearing before a United States Immigration Judge for attempting "to enter the United States by fraudulently presenting a counterfeit Alien Registration Card (Form I-151) while knowing that you were not in fact a lawful permanent ...