Selected Cases | Parnell Law Chambers

Selected Cases – INTERPOL RED NOTICE & INTERNATIONAL EXTRADITION

(Guardrail of Confidentiality: Target persons anonymised)

Interpretation: Double criminality (also known as dual criminality) is a foundational legal principle of reciprocity in international extradition law which stipulates that a person may only be extradited from one country to another if the act they are accused of constitutes a criminal offence in both jurisdictions.

1. USA v W

INTERPOL Red Notice - Three counts of drug charges each carried a maximum penalty of life sentence without parole.

Extradition Request by the US Department of Justice (DOJ) to the New Zealand Government.

The accused was alleged to be the Hong Kong born 14K triad gang boss and the lynchpin pin in the narcotics cartel.

The extradition request had its root in the largest “Hayward heroin bust” in Hayward, California in 1991 – a record-breaking bust of the No.4 heroin with a street value of US$30 billion. The drug haul was the result of a joint operation of the Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration (DEA). The accused was the alleged mastermind overseeing the shipment into the US.

Josiah Wong personally embarked on anextensive investigation into the accused’s claim of innocence by interviewing witnesses and informants in Hong Kong, Australia and the United States. In the US, he had clandestine meetings with former FBI agents, former Federal Prosecutor and members of the criminal underworld to secure precious leads and information. Subsequently, leads were traced to a courthouse in Los Angeles, uncovering serious evidentiary discrepancies that led to the withdrawal of all the US charges.

One of the three charges was withdrawn during the proceedings in New Zealand and the remaining two were withdrawn after the accused had landed in New York.

Upon completion of the legal process in New York, the accused voluntarily surrendered himself to the Hong Kong Police to face historical drug charges for drug trafficking in 1985.

2. Hong Kong Special Administrative Region (HKSAR) v W

INTERPOL Red Notice - Outstanding Bench Warrant - Two counts of possession of a dangerous drug for the purpose of unlawful trafficking in Hong Kong 1985 - Each count is liable to imprisonment for life upon conviction.

Concurrent extradition requests from Hong Kong and the US filed with New Zealand.

Strategically advising the accused to consent to the HKSAR request while allowing the US request to take precedence to streamline the respective legal proceedings and prevent “legal ambushes”.

3. R v L

INTERPOL Red Notice - Two counts of trafficking commercial quantities of controlled drug and conspiracy under Criminal Code and Crimes Act of Australia - Each count carries a maximum prison term of life upon conviction.

Criminal law - Extradition proceedings in overseas jurisdiction – The accused was foreign national - Australian Government filed extradition request with [ Country A ], a civil law country where extradition proceedings were circumvented in less than 24 hours after the accused’s arrest - The accused was subsequently delivered to Australia – The common law Doctrine of Abuse of Process in Australia- Stay application considered on issues of illegality and abuse of process.

Deprivation of Committal Hearing in [Country A] - Conflict of interest where Prosecutors of [Country A] were acting as translators and legal advisers for the accused throughout the entire administrative process before the accused was brought before the Court - No access to independent legal counsel and translator prior to court appearance - The accused was inveigled to sign a statement drafted and witnessed by the Prosecutors in a foreign language of [ Country A] that he did not understand, consenting to surrender from totally unrelated [Country G] to [Country U] rather than Australia, the requesting country – Denial of rights.

Violation of the United Nations’ Universal Declaration of Human Rights (UDHR) – Whether the authorities of Australia and [Country A] were complicit in bypassing the committal extradition process - Whether circumstances of the accused’s delivery to Australia merited permanent stay of his prosecution – The act of foreign state - Whether illegality or irregularity of foreign government’s actions under foreign law was subject to Australian Court’s scrutiny under Australian law.

4. R v T

The accused was the alleged global cartel boss.

Criminal law – Extradition proceedings in overseas jurisdiction - The accused was citizen of [Country C] and he was deported from [Country A] to [Country C] via [Country B], a civil law country where he was arrested during a flight stopover - The Australian Federal Police (AFP) was seeking his extradition from [Country B] - The court of [Country B] ruled the accused extraditable and ordered his delivery to the Australian authorities.

The common law Doctrine of Abuse of Process in Australia’s judicial landscape - Stay application was considered on issues whether there was abuse of process where the accused was deported to [Country C] via [Country B] for the interception mid-way prearranged between the AFP and [Country B] in violation of the Deportation Order issued by [Country A] - The destination should have been [Country C] not [Country B].

Whether the judiciary of [Country B] had breached its country’s Constitution (the right to inviolability of the accused) by hearing the Australian extradition request instead of allowing the judicial process to proceed in [Country C], the accused’s home country – Consideration of whether the AFP’s conduct in orchestrating the layover and arrest of the accused in [Country B] had amounted to interference with the internal affairs of [Country A] that issued the Deportation Order and perversion of justice – Whether there was collusion between the various government agencies in question - Violation of the United Nations’ Universal Declaration of Human Rights (UDHR) - Whether legality of foreign government’s actions under foreign law was subject to Australian Court’s scrutiny under Australian law.

5. R v D

Criminal law – Circumvention of extradition proceedings in a foreign jurisdiction -Whether the circumvention had been connived between the authorities of Australia and the foreign state in procuring the accused to be brought to Australia to face criminal charges - The accused was allegedly bundled up by law enforcement agents of [Country A] and delivered by air to [Country B], a civil law country in the absence of a valid entry visa - His presence in [Country B] became unlawful by design.

Application of the common law Doctrine of Abuse of Process in Australia- The accused was subsequently deported to Australia without going through any extradition proceedings despite the existence of treaty between [Country B] and Australia - Issues of abduction, false imprisonment, “judicial kidnapping” and “extradition by the back door” were considered with a view to seeking a stay application on abuse of process - Violation of the United Nations’ Universal Declaration of Human Rights (UDHR) – Whether the accused had been brought back to Australia in disregard of available extradition process in [Country B] in breach of international law - Whether Australian Court had the jurisdiction and supervisory power to inquire into the circumstances of the extradition process being bypassed.

6. USA v Z

Extradition Request by the US - Multiple Bank Fraud Indictments

Criminal Law – Extradition – Jurisdictional issues - The United States was seeking extradition of the accused from [Country A] - Advising on the side (second opinion) on issues of the respective jurisdictions of the USA, [Country A] and [Country B] over the alleged offences committed in [Country B] - Double Criminality - Sufficiency of Evidence – Human Rights - the viability of mounting an argument on political motivation and alleged abuse of process by the authorities of [Country A] .

The concept of deprivation in fraud and why “mirror image concept” is not applicable – No need to have all criminal elements aligned - Certain legal arguments in extradition including competing evidence advanced in Court are trial issues for the trial judge in the US not the extradition judge – Consideration of alternative approach to the contest of the US extradition request.

7. Former CEO of a commercial enterprise in New Zealand

Criminal law – Potential extradition issues - Advising on the implications of extradition request from a foreign country and New Zealand depending on his whereabouts when the situation arises sequel to issues of commercial fraud that come to light at the material time - Double Criminality - New Zealand Extradition Act.

8. CGY

INTERPOL Red Notice - Allegation of misappropriation of company funds of a public enterprise in [Country A] - The accused was wanted for extradition - The New Zealand Department of Internal Affairs declined the accused’s application for citizenship due to character issue.

Our extensive investigation into the allegation uncovered fabrication of evidence by the complainant in collusion with government officials in [Country A]. The new evidence was brought to the attention of the INTERPOL’s National Central Bureau (NCB) in New Zealand. The Red Notice was removed and the accused’s application for citizenship was eventually granted.

9. CSC

INTERPOL Red Notice - The accused was the former mayor of a city in [Country A] and Board Chairman of a quasi-state enterprise. Alleged embezzlement of company funds - Double Criminality - The prospect of ad hoc extradition arrangement under the Extradition Act of New Zealand - The accused’s claim of political persecution and false allegations – Strategies of contesting possible extradition request canvassed.

10. Senior Staff Member of an International Mining Corporation

A mine in [Country A] collapsed and caused multiple casualties - Criminal charge of Causing Death by Negligence was instituted - Issues of Double Criminality - No bilateral extradition treaty in force between [Country A] and New Zealand - The managerial staffer is New Zealand citizen - The prospect of ad hoc extradition arrangement under New Zealand Extradition Act – Consideration of the legal implications of Pipe River Mine disaster on the West Coast, South Island, New Zealand on 19 November 2010 where 29 men were trapped and killed.

11. Former Senior Government Official of a European Country

New Zealand citizen - Allegation of commercial crime in [Country A] - Double Criminality - No standing bilateral extradition treaty in force between [Country A] and New Zealand – The prospect Ad hoc extradition arrangement under NZ Extradition Act pondered – Whether the allegation was political in nature.

12. Former Mayor of an Eastern European Country

New Zealand citizen - Corruption - Double Criminality - No current bilateral extradition treaty between the country and New Zealand - NZ Extradition Act allows extradition request without a treaty – Claims of political oppression - Slim prospect of extradition request given the nature of the case.

13. Advising Australian Law Firm

INTERPOL Red Notice - The accused was a prominent business magnate originally from [Country A] residing in Australia on Visitor Visa - Subject to a Red Notice issued at the request of the National Central Bureau (NCB) of [Country A] for the charges of Bribery - Issues of jurisdiction - [Country A] has absolute jurisdiction over the accused for the alleged crime notwithstanding the fact that he became a permanent resident of another city when [Country A] issued the arrest warrant - The government of [Country A] has undisputed jurisdiction over the accused for the alleged crimes regardless of his nationality or place of abode.

Consideration of application to the Commission for the Control of Interpol’s Files (CCF) of the INTERPOL for the deletion of the Red Notice on non-compliance under Article 83 of the INTERPOL’s Rules on the Processing of Data - The other relevant applicable INTERPOL Rules and Articles - The threat of Deportation over the accused - The accused’s claims -Whistleblower - Fabrication of evidence by government officials - Human Rights - Political Persecution - Double Criminality - No bilateral extradition treaty between [Country A ] and Australia - The Australian Government, however, may create ad hoc regulations (via the Governor-General) to allow extradition on a non-treaty case-by-case basis – Whether the offence was politically motivated on the pretext of bribery - non-extraditable offence.

14. BYH

INTERPOL Red Notice - The accused is a permanent resident of New Zealand and the former Chairman of the Board of a public company in [Country A] - Subject to a Red Notice issued by the National Central Bureau (NCB) of [Country A] for bribery - Absence of Double Criminality - No Bilateral extradition treaty between [Country A] and New Zealand - Abuse of Process - Procedural Fairness – Fabricated Evidence .

Acquisition and amalgamation of public companies - Commercial disputes among shareholders - The relationship between the accused and the shareholder complainant who was allegedly holding as proxy the share for a senior government official - Accusation not made in good faith in the interest of justice - Private civil dispute presented as criminal investigation by using the INTERPOL as the weapon of vengeance – History of persistent abuse of the INTERPOL Red Notice system by authorities - Violation of the United Nations’ Universal Declaration of Human Rights (UDHR) and the INTERPOL’s Constitution.

15. Cross-Border Credit Card Debt

INTERPOL Red Notice - New Zealand resident accused of credit card fraud in a Middle Eastern country - Double Criminality in doubt - Jurisdiction issues - Abuse of the INTERPOL system - Private credit card debt characterized as criminal matter to trigger international arrest warrant.

15. XXY

INTERPOL Red Notice - Accused was New Zealand resident and the former Director of a securities company in [Country A] - Allegation of embezzlement - Double criminality - No current bilateral extradition treaty between [Country A] and New Zealand - Prospect of ad hoc extradition arrangement and the defence’s approach considered – Issues of human rights, fair trial and judicial independence.

17. Advising Hong Kong Law Firm on Extradition Treaty between HKSAR and New Zealand

INTERPOL Red Notice - Target person was said to be subject to a Red Notice for commercial crime - The extradition treaty between HKSAR and New Zealand was officially suspended on 28 July 2020 - The Hong Kong Fugitive Offenders Ordinance, however, allows extradition proceedings to proceed on a “one-off” basis - Section 3 of the Ordinance allows the Chief Executive to make an order for the surrender of a fugitive to a country with which Hong Kong has no bilateral treaty or agreement - The order made under Section 3 is subject to scrutiny by the Legislative Council and judicial review - Technically possible but unlikely to happen in the current political climate.

18. YCM

INTERPOL Red Notice - The accused was subject to a Red Notice for charges of running a Ponzi scheme in [Country A] - Issues of Double Criminality and jurisdiction - No standing bilateral extradition treaty between [Country A] and New Zealand - Ad hoc extradition arrangement possible - Issues of human rights, fair trial and judicial independence in [Country A] - Legal ramifications of the extradition case of Minister of Justice v Kyung Yup Kim [2022 | NZSC 44

19. RJZ

INTERPOL Red Notice - Accused was subject to a Red Notice for charges of illegally raising funds for an education enterprise in [Country A] - Issues of Double Criminality - Absence of extradition treaty between [Country A] and New Zealand - Ad hoc extradition arrangement on one-off basis possible under New Zealand’s Extradition Act - Issues of human rights, fair trial and judicial independence in [Country A] - Legal ramifications of the extradition case of Minister of Justice v Kyung Yup Kim [2022 | NZSC 44