In the Matter of Wong Yuh Lan, Lim Yong Nam, Lim Kow Seng & Hia Soo Gan Benson

• Jurisdiction: Singapore
• Judge: Chia Wee Kiat
• Judgment Date: 10 February 2012
• Neutral Citation: [2012] SGDC 34
• Court: District Court (Singapore)
• Citation: [2012] SGDC 34
• Year: 2012
• Docket Number: Warrant of Apprehension Nos. 1—4 OF 2011
• Hearing Date: 03 February 2012,02 February 2012,09 December 2011,12 December 2011
• Plaintiff Counsel: Dy Senior State Counsel Mr Mark Jayaratnam & State Counsel Crystal Tan (Attorney-General's Chambers)
• Published date: 22 February 2012

District Judge Chia Wee Kiat: Introduction

This is an application of the State under s 11(7) of the Extradition Act, Chapter 103 to commit the four fugitives before this Court to prison to await the warrant of the Minister for their surrender to the United States of America.

The US has made a requisition to the Minister for Law for their extradition from Singapore to the US to face charges contained in the Superseding Indictment filed on 15 September 2010 in the US District Court for the District of Columbia.

The fugitives were apprehended in Singapore on 25 October 2011 by Commercial Affairs Department (CAD) officers pursuant to Warrants of Apprehension issued by Judge Toh Yung Cheong.

The four fugitives are Ms Wong Yuh Lan, Mr Lim Yong Nam, Mr Lim Kow Seng and Mr Hia Soo Gan Benson. For ease of reference, I shall refer to them as “WONG”, “NAM”, “SENG” and “HIA” respectively.

Although there are 12 charges listed in the Superseding Indictment, the State is seeking extradition only in respect of Count One for WONG and NAM, and Count Eight for SENG and HIA. Count One is for Conspiracy to Defraud the US by Dishonest Means in relation to the illegal export of 6000 radio frequency modules. Some of these modules were recovered in Iraq as components of improvised explosive devices (IEDs). Count Eight is for Conspiracy to Defraud the US by Dishonest Means in relation to the illegal export of military-grade antennas. Both Counts are offences under Section 371 of Title 18 of the United States Code.

The extradition is strenuously resisted by the fugitives.

Preliminary Question

Before turning to the substantive requirements of s 11(7) of the Extradition Act, I shall first deal with the preliminary question of whether a charge of conspiracy to defraud the US in alleged violation of 18 USC Section 371 is an extraditable offence enumerated in Article 3 of the United States of America (Extradition) Order in Council, 1935 (hereinafter referred to as the “Extradition Treaty”) currently in force between the US and Singapore.

The Extradition Treaty requires the reciprocal extradition of persons who are being accused or convicted of any of the crimes or offences enumerated in Article 3 of the treaty, committed within the jurisdiction of one party and found within the territory of the other party.

It has been contended on behalf of the fugitives that Section 371 is not an enumerated offence in the Extradition Treaty and that the only means by which a party could seek extradition for a crime not specifically designated in Article 3 would be to demonstrate that the particular crime is in fact the direct analog of a crime on that list, but by a different name, or that the additional crime represents an offence of “participating” in one of the 27 listed offences. Specifically, it was argued that the charge of conspiracy to defraud the US requires the existence of an agreement, not an accomplished act, and therefore the offence is fundamentally different from the offences listed in paragraphs 17 and 18 in Article 3. In addition, conspiracy does not fall within the term “participation” as used in the last paragraph in Article 3.

On the other hand, the State submitted that the listed offences in Article 3 should be understood to describe in general terms the type of conduct that Singapore and the US intend to be extraditable. The fact that the offence charged may have elements that are not part of the offence listed in Article 3 does not defeat extradition as long as the offence charged comprised conduct described in the listed offence.

In essence, the State is advocating what may be described as a conduct-based test whereas the Defence is asserting an ingredients-based test in interpreting Article 3 of the Extradition Treaty.

It is common ground that the Extradition Treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Article 3 of the Extradition Treaty provides that extradition shall be reciprocally granted for the enumerated “crimes or offences”. Now, if Article 3 was intended to import a strict application of the ingredients test, there would have been no reason for it to make reference to both “crimes” and “offences”. It is significant to note that Article 1 of the Extradition Treaty, which refers to the agreement of the High Contracting Parties to enter into an extradition arrangement, similarly adopts the formulation “crimes or offences”. In ordinary language, “crime” denotes an action that constitutes an offence. A plain reading of the provisions would therefore suggest that Article 3 is deliberately couched in broad terms to encompass two alternative tests: (a) a conduct-based test and (b) an ingredients-based test. This is supported by the fact that some of the enumerated crimes or offences in Article 3 are couched in terms that are more descriptive of a course of conduct than any specific offence. One such example is paragraph 18 which refers to “obtaining money, valuable security, or goods by false pretences” and another clear example is paragraph 23 which refers to “any malicious act done with intent to endanger the safety of any persons travelling or being upon a railway”. It follows that an offence would be extraditable if (a) the acts alleged to have been committed by the individuals comprise conduct described in the list of crimes or offences enumerated in Article 3, or (b) the ingredients of the offence charged are similar to the ingredients of the listed offence. This construction of Article 3 is not only consistent with the ordinary meaning of the terms of the treaty, it also gives effect to the object and purpose of the treaty, which is “to make more adequate provision for the reciprocal extradition of criminals” (see preamble to the Extradition Treaty).

The averments in Count One of the Superseding Indictment allege that WONG, NAM and others identified in the charge conspired to defraud the US by obstructing and defeating the lawful function of the US in administering its export laws and regulations, and as part of the conspiracy, misrepresentations and false statements were made to Company A in the State of Minnesota concerning the end-use and end-destination of the radio modules. This was to convince Company A through such false pretenses to sell 6,000 radio modules to Corezing International Pte Ltd (“Corezing”), a company based in Singapore, and to convince Company A to export the modules to Singapore. The averments allege that on 20 June 2007, WONG requested Company A to sell 6,000 radio modules to WONG at a price of USD $60 per module in response to which Company A asked WONG to provide end-use and end-user information. WONG was at the material time an employee of Opto Electronics Pte Ltd (“Opto”) who worked in Singapore and was supervised by Hossein A Larijani (“Larijani”) from Iran. Larijani, a citizen of Iran, was the owner and director of Paya Electronics Complex (“Paya”) and Opto. On 21 June 2007, WONG advised Company A that the 6,000 modules WONG wanted to purchase were intended for “a local customer in Singapore”. On 4 July 2007, Company A advised WONG that the best price that Company A could give WONG was USD $93.50 per module unless WONG provided more details about the end-use and the end-user for the modules. On 11 July 2007, WONG contacted NAM, the owner and director of NEL Electronics Pte Ltd (“NEL”), a company that operated in Singapore, to request that NEL take over the purchase of the 6,000 modules from Company A. Between 11 July 2007 and 16 July 2007, NEL requested Corezing in Singapore to initiate contact with Company A and negotiate the deal with Company A. On 16 July 2007, SENG, while working in Singapore for Corezing, initiated contact with Company A about purchasing 6,000 modules, which were to be exported from the US. In August 2007, Corezing and Company A negotiated an agreement in which Company A agreed to sell 6,000 modules to Corezing at a price of USD $69.30 per module. These modules were to be exported to Singapore in several shipments. On 6 August 2007, Larijani communicated with NAM asking about the status of the modules from Company A. On 24 August 2007, Corezing caused the first shipment of 700 modules to be shipped from Company A in the US. Company A’s invoice noted that the modules were of “USA origin” and that they were exported from the US for ultimate destination of Singapore and that any diversion from Singapore was contrary to US law. On 25 August 2007, Corezing, NAM and NEL caused Company A to submit a Shipper’s Export Declaration (“SED”) to the US Department of Commerce, headquartered in the District of Columbia, that falsely stated on the SED that the country of ultimate destination for the first shipment of 700 modules was Singapore. On 27 August 2007, an employee of NEL contacted WONG, NAM and Larijani to inform them that the 700 modules would arrive in Singapore the following day. On 28 August 2007, WONG prepared and sent a sales invoice to a freight forwarder in Tehran, Iran, for the shipment of 29 cartons of goods, including a carton containing the 700 modules. On 28 August 2007, WONG advised the freight forwarder to ensure that the first 700 modules had arrived in Singapore. On 11 September 2007, Larijani communicated with NAM and stated that he had only received 679 modules rather than the agreed upon 700.

In similar fashion, the remaining modules were shipped in four shipments from the US to Singapore and re-exported to Iran between September 2007 and February 2008.

The averments further allege that on 25 October 2007, NAM provided Larijani a news article discussing efforts by the US government to crack down on companies believed to be smuggling equipment to Iran to build explosive devices killing American soldiers in Iraq and Afghanistan. The averments state further that...