Wong Yuh Lan v PP

• Judgment Date: 07 August 2012
• Date: 07 August 2012
• Docket Number: Criminal Motions No 63, 65, 66 and 67 of 2012
• Court: High Court (Singapore)

Wong Yuh Lan

Plaintiff

and

Public Prosecutor and other matters

Defendant

[2012] SGHC 161

Choo Han Teck J

Criminal Motions No 63, 65, 66 and 67 of 2012

High Court

Criminal Procedure and Sentencing—Extradition—Application for order for review of detention—Applicants committed to await warrant of surrender to the United States of America to stand trial—Role of court hearing application for order for review of detention—Whether applicants were ‘fugitives’—Whether act or omissions constituting offence in extradition request amounted to offence under Singapore law had it taken place here—Whether offence made out by applicants' conduct was extraditable offence under treaty between Singapore and the United States of America—Whether committing magistrate was correct in finding that there was sufficient evidence to justify committal—Sections 2 and 11 (7) Extradition Act (Cap 103, 2000 Rev Ed)

The United States of America (‘US’) made a requisition to the Minister for Law (‘the Minister’) for the extradition of Lim Yong Nam (‘Nam’), Lim Kow Seng (‘Seng’), Hia Soo Gan Benson (‘Hia’) and Wong Yuh Lan (‘Wong’) (collectively termed ‘the Applicants’) to the US to stand trial. The requisition was made pursuant to the United States of America (Extradition) Order in Council, 1935 (Cap 103, OR 1) which contained the extradition treaty between the Singapore and the US (‘the Singapore-US Treaty’). The US District Court issued warrants of arrest against the Applicants on 15 September 2010 for 12 counts of conduct.

The Attorney-General's Chambers on behalf of the State sought the committal of Wong and Nam only for Count One of the Superseding Indictment for conspiracy to defraud the US by dishonest means under Title 18 United States Code Section 371 (‘18 USC §371’). The US accused Wong and Nam of conspiring with one Hossein A Larijani, Paya Electronics Complex (‘Paya Electronics’), Opto Electronics Pte Ltd (‘Opto Electronics’), NEL Electronics Pte Ltd (‘NEL’), Corezing, Seng and Hia to defraud the US by exporting modules from [Company A] (‘Company A modules’), a US company, from the US to Iran via Singapore. The US complained that this breached US export restrictions against unauthorised shipment of US-origin goods from a third country to Iran. On 20 June 2007, Wong asked for a quotation for 6,000 Company A modules by e-mail. [Individual Y] (‘Individual Y’) from Company A's Hong Kong office responded with a quote of US$98.45 per module. Wong stated that her target price was ‘$60’ but Individual Y stated that they could only offer a further discount if she provided more information (including the end-user of the Company A modules). Wong asked NEL's employees (one of whom was Nam) to ‘take over this order’. According to Nam, he was unable to get a good price for the Company A modules after sourcing for prices over the Internet. Nam told Seng about this order, and a few days later, Seng showed Nam a quotation from Company A to BBS Electronics Pte Ltd (‘BBS’) at US$75 per module. (Seng was an employee of BBS, but he had also set up Corezing International Pte Ltd (‘Corezing’) with Hia to earn income on the side.) Nam requested that Corezing contact Company A for the purchase. Corezing and Company A managed to agree on a price of US$69.30 per module sometime before 9 August 2007. The Company A modules were exported from the US to Singapore in five shipments between August 2007 and February 2008. The US alleged that the goods were sent ‘port to port’ to Opto's freight forwarder in Singapore. Wong then arranged for the goods to be flown to Larijani in Iran. For each of these shipments, Company A also used information provided by Corezing to prepare SEDs for the shipments. The ‘ultimate consignee’ was stated to be ‘Corezing International’, and the ‘country of ultimate destination’, ‘Singapore’. For the final three shipments made between October 2007 to February 2008, Corezing had also completed an end-user statements (known as BIS Form 711) stating that the ‘ultimate consignee’ was NEL and that the items would be used for ‘Telecom Project’.

As against Seng and Hia, the State sought their committal only in respect of Count Eight, also pursuant to 18 USC §371. Seng and Hia were accused of being part of a separate scheme to cause antennae (‘2010-1 antennae’ and ‘3120 antennae’) which were classified as ‘defense articles’ under US law to be exported without a licence. Seng (under the alias ‘James Wong’) contacted [Company B] (‘Company B’), a US company, on 22 September 2006 by e-mail asking for quotes for antennae with model numbers ‘3120’ and ‘3080’. Company B informed Seng that the export of the antennae would require an export licence and declaration of end-user information. Seng did not respond. In November 2005, [Individual B] (‘Individual B’) (an employee of Company B) told [Cooperator C] (‘Cooperator C’) (a former Company B employee who had set up a new company, Company C) that Company B ‘refused a sale’ to Seng because he did not provide end-user information. Cooperator C and Individual B then ‘devised a plan to make the sale and evade export regulations’. Cooperator C requested for the same items ordered by Seng but changed the specifications to avoid alerting Company B that this was in actuality Seng's order and that end-user information was required. Cooperator C then contacted Seng on 5 November 2006 offering to broker a deal with Company B. This transaction was not completed. On 15 February 2007, Seng sent an e-mail as ‘James’ to Cooperator C requesting a quotation for 50 units of 2010-1 antennae. This time, the transaction was completed. The goods (ie, 50 units of 2010-1 antennae and 5 units of 3120 antennae) were shipped to Corezing in five batches between 25 July 2007 and 24 September 2007. Corezing then shipped the goods to Hong Kong. The US alleged that for all five shipments, the actual value of the goods was different from the value stated on the airway bills. The US relied on an e-mail sent by Hia on 9 July 2007 to Cooperator C stating’‘ [p]ls help me to put in yr Invoice for Export as USD 40’ for the antennae. The US accused Seng and Hia of being part of a conspiracy to make money and obtain property by procuring 2010-1 antennae and 3120 antennae from Company B in violation of United States export regulations.

The district judge (‘District Judge’) committed the Applicants to custody on 10 February 2012 to await the warrant of the Minister for their surrender. They were given leave to issue summonses for an order for review of detention (‘Order for Review of Detention’) under O 54 r 2 (1) (b)of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) on 23 February 2012. However, they were later directed to file criminal motions instead given that the applications were made under s 417 of the Criminal Procedure Code 2010 (Act 15 of 2010) (‘CPC 2010’).

Held, allowing Criminal Motion No 63 of 2012 and Criminal Motion No 66 of 2012 but dismissing Criminal Motion No 65 of 2012 and Criminal Motion No 67 of 2012:

(1) The provisions of the Extradition Act (Cap 103, 2000 Rev Ed) (‘Extradition Act 2000’) were subject to any limitation or condition in the extradition treaty between the Singapore and the US. The Singapore-US Treaty might, for example, limit ‘the circumstances in which a fugitive offender can be arrested and surrendered’ (Regina v Governor of Ashford Remand Centre, Ex parte Beese[1973] 1 WLR 969 at 972-973): at [4].

(2) A court hearing an application for an Order for Review of Detention had the duty to correct errors of law and could intervene where no magistrate directing his mind to the evidence could have reasonably concluded that there was sufficient and credible evidence to support a committal on a charge: at [8].

(3) The crucial part in the definition of ‘fugitive’ in the Extradition Act 2000 was that the act or omission constituting the offence was committed within the jurisdiction of the requesting state as opposed to the physical presence of the ‘fugitive’ within the requesting state. The issue was whether ‘jurisdiction’ was limited to the territorial jurisdiction of the requesting state, or whether it only required that the requesting state had the power under its laws to try the offender for an alleged offence whether the act or omission constituting the offence was committed within or outside its territory. I was of the view that ‘place within the jurisdiction of [the requesting state]’ (eg,in the definition of ‘fugitive’) should not be read as meaning ‘place in the territory of the requesting state’: at [10] and [12].

(4) The definition of ‘extradition crime’ included the essential feature that the conduct which was the subject of the charge in the extradition request had to be punishable in both Singapore and the US. Double criminality was a doctrine applied in various jurisdictions in different ways and with varying strictness. There was basically a choice between the ‘ingredients test’ and the ‘conduct test’. The ‘ingredients test’ required correspondence (and at its strictest, identity) between the elements of the foreign offence for which the fugitive was alleged to have committed and the elements of the local offence. The ‘conduct test’ on the other hand required the court to look at the conduct alleged against the fugitive and to determine whether the conduct would have been criminal had it been committed within the jurisdiction of the requested state: at [13]and [14].

(5) Courts in favour of the ‘conduct test’ generally advanced four reasons in support: (a)that the ‘ingredients test’ led to the unenviable problem of the committing magistrate having to hear and make findings on issues of foreign law since that the elements of the foreign offence had to be examined; (b)the ‘ingredients test’ frustrated extradition because the definition of crimes in various jurisdictions differed and it was not possible in most cases to find exact correspondence between the two; (c)the...