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Frater 说得不错。
Judge in Meng Wanzhou’s extradition case says U.S. allegation is unclear
B.C. Supreme Court Associate Chief Justice overseeing extradition case admits to ‘great difficulty’ in grasping essence of accusationwww.theglobeandmail.com
Judge in Meng Wanzhou’s extradition case says U.S. allegation is unclear
Sean Fine Justice Writer
Published August 11, 2021 Updated 3 hours ago
Meng Wanzhou, chief financial officer of Huawei, arrives at B.C. Supreme Court to attend her extradition hearing on Aug. 11, 2021.
DARRYL DYCK/The Canadian Press
A B.C. Supreme Court judge who must decide whether Meng Wanzhou can be extradited to New York to face a fraud charge says she doesn’t understand the U.S. allegation against the Chinese executive.
The revelation came more than a year and a half after the extradition hearing started, and on the first day of its evidence phase – the all-important segment in which the Attorney-General of Canada, representing the U.S. Department of Justice, presents the case against Ms. Meng.
Before Robert Frater, lawyer for the Attorney-General, could begin to lay out the evidence, Associate Chief Justice Heather Holmes of the B.C. Supreme Court questioned whether the U.S. had explained the essence of the crime it alleged Ms. Meng had committed – and in particular, its connection to sanctions against Iran.
“I’ve had great difficulty understanding,” she said. The judge – a former prosecutor specializing in corporate crime – went on to pose questions about how the United States set out the allegations in the record of the case (ROC) it supplied to Canadian authorities.
The extradition request has deeply angered China. Days after Ms. Meng’s arrest on Dec. 1, 2018, it arrested and detained two Canadians, Michael Spavor and Michael Kovrig, and has held them for nearly 1,000 days. (Ms. Meng is free on bail.) Mr. Spavor was found guilty this week of spying and sentenced to 11 years in prison. The death penalty was upheld for another Canadian, Robert Schellenberg, for drug trafficking. China says the charge against Ms. Meng, the chief financial officer of the telecom Huawei Technologies Co. Ltd., is politically motivated.
Ms. Meng is charged with fraud for allegedly misrepresenting to HSBC, in a PowerPoint presentation in Hong Kong in 2013, Huawei’s links to Skycom Tech Co. Ltd., another technology company. The U.S. alleges her misrepresentations exposed HSBC to the risk that it would be punished, criminally or civilly, for violating U.S. sanctions on Iran in dealings with Skycom and Huawei.
Judges in extradition hearings are allowed only a limited weighing of the evidence. The government needs only to make the case that, if the crime were alleged to have happened in Canada, the evidence was sufficient to send it to trial. While it’s a low bar, and most extradition cases involving the U.S. succeed, former chief justice Beverley McLachlin of the Supreme Court of Canada once cautioned: “The judge must act as a judge, not a rubber stamp.”
Ms. Meng is charged with fraud for allegedly misrepresenting to HSBC, in a PowerPoint presentation in Hong Kong in 2013, Huawei’s links to Skycom Tech Co. Ltd., another technology company.
DARRYL DYCK/The Canadian Press
Associate Chief Justice Holmes made it clear she had no intention of being a rubber stamp.
“What I don’t understand,” she told Mr. Frater, “is whether the simple fact of dealing with government in Iran would be viewed as offside sanctions.”
“No,” Mr. Frater replied. “It is clear there is good Iran business and bad Iran business.”
“Can you show me that in the ROCs?” (The ROCs are the documents that lay out the evidence and explain the alleged crime.)
Mr. Frater acknowledged: “There isn’t a clear statement of ‘here’s what’s on one side of the line’ and ‘here’s what’s on the other.’”
He said there was a “reasonable inference” that some Iranian business was legal, from the fact that Ms. Meng was candid about doing business in Iran.
“She admits that they’re doing business in Iran. She admits they work … with Skycom. No point in making that admission if all activity in Iran was proscribed,” Mr. Frater said.
“I have been troubled by this issue,” the judge said. “What I’m trying to get at is how does the ROC make all of that clear? That certain things engage sanctions and other things don’t. Because it’s only with that background that one can assess what’s said in the PowerPoint as to whether it was deceptive.”
Mr. Frater said he would get back to her on the point after the lunch break. When they reconvened, he said Huawei was certainly doing permissible business in Iran – but transactions in U.S. dollars put through in the United States were prohibited.
The judge also asked about possible contradictions in Mr. Frater’s summarizing of the case against Ms. Meng: that she told HSBC there was no risk of sanctions violations from Huawei or Skycom, while failing to disclose the true relationship between the two companies.
Associate Chief Justice Holmes said: “As I understand your theory ... the bank had nothing to worry about as far as sanctions violations went because Ms. Meng or Huawei could assure the bank that Skycom was in compliance. Doesn’t that run counter to the theory ... that she falsely misrepresented that Huawei didn’t control Skycom? In other words, how would she be able to give that assurance ... in a way that would be satisfactory and convincing to the bank unless Huawei was in full control of Skycom?”
Mr. Frater said he didn’t see the inconsistency.
The judge then asked whether it was reasonable to suppose that a large bank with risk committees would rely on one individual’s assurance about companies not under its control.
The meeting between Ms. Meng and HSBC was arranged after Reuters published articles suggesting Skycom, which it said had “close ties” with Huawei, was violating sanctions. Associate Chief Justice Holmes expressed skepticism several times that the bank was truly put at risk by Ms. Meng’s presentation after it received a clear warning of sanctions violations in the Reuters reports. For fraud to have occurred, HSBC would have had to face a risk from the misrepresentations.
The evidence phase, which wraps up the hearing, continues on Thursday, and is expected to last until the middle of next week.
UPDATED: Judge in Meng Wanzhou case challenges Crown's position on fraud
Crown begins final committal arguments in Meng Wanzhou extradition casebiv.com
UPDATED: Judge in Meng Wanzhou case challenges Crown's position on fraud
Crown begins final committal arguments in Meng Wanzhou extradition case
By Chuck Chiang | August 11, 2021, 3:00pm
The final portion of the Meng Wanzhou extradition proceedings got underway Wednesday | File photo: Shutterstock
The final portion of the Meng Wanzhou extradition proceedings got underway Wednesday, with Crown attorney Robert Frater making the Attorney General’s office’s final committal arguments on the landmark case.
Frater, in summing up the U.S.’s case against Meng, focused on the Huawei Technologies CFO’s alleged crime of fraud – of misrepresenting the company’s relationship with a subsidiary (Skycom) selling embargoed telecom products in Iran – as the core of the Crown’s argument for extradition.
The Crown said Canadian case law makes it clear and simple that the intention of creating the offence of fraud was to discourage dishonest behaviour in business dealings, adding that the core aspects of what constitutes a fraud come down to two factors: Dishonesty and the risk of deprivation to a victim.
Frater said Meng’s presentation to HSBC in 2013 – after a pair of Reuters reports that revealed Skycom was selling U.S.-sanctioned telecom devices in Iran – was the essence of the definition of fraud as defined by both Canada and the United States.
“It was both what she said and what she did not say [in 2013],” Frater said. “It was motivated by the desire to reassure HSBC in light of two Reuters articles that Huawei is not involved in any activity that would lead to HSBC running afoul of US sanctions law.”
The purpose, Frater said, was to convey the message that HSBC has no risk stemming from continuing its banking relationship with Huawei.
“She falsely tried to distance Huawei from Skycom, who - according to the Reuters reports - was engaged in activity in Iran. In reality, Huawei was in full control of Skycom. It was a material non-disclosure...The evidence of the dishonesty is abundantly clear.”
Frater also noted that Meng’s assertion that HSBC suffered no financial loss from the decision to continue to provide banking services to Huawei does not mean much in the definition of fraud, since the bank was put at risk of loss for violating U.S. sanctions.
That risk, Frater noted, stemming directly from Meng’s alleged misrepresentations is enough to show fraud had occurred.
“When you send the CFO of your company to the bank to tell them there is no risk, you are sending the message that this is important,” Frater said. “It certainly was the case that HSBC did rely on that information to make its decision. Should the bank have been more vigilant? Perhaps, but clearly the bank was misled.
“The issue will be was HSBC deceived, not whether HSBC could have avoided being deceived.... Even with no actual loss, the risk of loss stands.”
Frater also brought up presiding judge Heather Holmes own previous decisions in this case, noting that an extradition judge’s purview is similarly limited as a judge at a preliminary hearing.
That means a stay of proceedings is only possible if the U.S. Record of the Case and other facts provided by the United States are so obviously false and detrimental to the extradition process, and the judge should not judge the strength of the defence’s case when evidence only shows an alternate narrative of what happened.
That responsibility, Frater said, rests with the trial judge.
“There continues to be a high threshold for evidence [presented in at extradition hearings] to lead to stay,” he said. “The facts of the case [presented by U.S. officials] have to be so unreliable that the court must stay proceedings... None of the challenges [made by Meng] has risen to that point.”
The day also saw presiding judge (and B.C. Supreme Court associate chief justice) Heather Holmes challenge Frater and the Crown's position on several points. One key point Holmes requested clarification upon was whether the U.S. Record of the Case (ROC)made clear that only some business transactions - the ones that Skycom was allegedly involved in - were to incur penalties for violating U.S. sanctions.
Holmes noted the Crown has presented the position so far that - since not all business activities with Iran violated U.S. sanctions and the U.S. jurisdiction came into play when proceeds of the illegal transactions were cleared through American financial systems - would it be Meng's responsibility to tell HSBC what risk there may be if the HSBC-Huawei banking relationship continued.
"It's clear Ms. Meng said, 'we, Huawei, do business in Iran,'" Holmes asked Frater. "And it's clear that HSBC continues to do business with Huawei. That's fundamental to the theory in the ROC [of Meng's alleged fraud]. Is Ms. Meng reasonably the one to advise HSBC on risks arising from dollar clearing?"
Frater - while acknowledging the ROC did not clearly outline the parameters of U.S. sanctions against Iran - contended that the key is Meng gave HSBC during the 2013 meeting reassurance to continue the bank-client relationship.
"The message that was conveyed to HSBC was that, 'You were at no risk at all because we are fine with all sanctions,'" Frater said.
Holmes also requested clarification on the point that HSBC's banking relationship with Huawei continues to this day, and that Huawei continues its operations in Iran. With those points, Holmes asked Frater how it was possible for Meng to misrepresent HSBC's risk of loss by continuing to do business with Huawei.
Frater noted that - while Huawei's own activities in Iran at the time did not violate sanctions - the key remains its relationship with Skycom. It was Skycom that the Reuters report described as having conducted business in violation of U.S. sanctions, Frater said, adding that the misrepresentation is Huawei's link to Skycom - with was described as a partnership.
"There's no disclosure of the relationship with Skycom," Frater said of Meng's 2013 meeting with HSBC. "Huawei is Skycom."
The hearings are scheduled to continue until Aug. 20.
