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Client UpdateAugust 2012
Dispute Resolution
1 Rajah & Tann LLP
Singapore High Court Orders
Release Of Extradition Detainees In
Iranian Export Case
Introduction
Earlier this year, headlines were made when the US government charged two
Singaporeans for conspiring to export 6000 radio frequency modules from the US to Iran
and two other Singaporeans for conspiring to export antennae from the US to Singapore
without a license (“the Applicants”), and requested their extradition to the US to stand
trial there. While the District Court ordered their apprehension pending extradition, the
decision was partly overturned in the recent High Court judgment of Wong Yuh Lan v
Public Prosecutor and other matters [2012] SGHC 161, where Justice Choo Han Teck ordered
two of the Applicants to be released. This is the first time that a Singapore court has
ordered the release of detainees requested for extradition by another country.
Two Applicants (“Wong” and “Nam”) were accused of being part of a scheme to export
certain electronic modules from the US to Singapore, and then to re-transport them to Iran,
breaching US trade sanctions against the export of goods to Iran. However, the Court
found that these acts would not constitute an offence in Singapore since Singapore did not
have absolute prohibitions against trade with Iran at the time the acts were committed.
This case provides an insight into the principles behind when a person can or cannot be
extradited out of the country for alleged criminal offences. In particular, it provides a
guide as to extradition proceedings between Singapore and the US. It also highlights the
importance of being aware of and strictly following the import and export regulations of
any country with which one is intending to conduct international trade. These regulations
may be more stringent than local procedures, and the consequences of their breach can be
severe.
Nam, one of the two successful Applicants, was represented here by Hamidul Haq, Thong
Chee Kun, Yusfiyanto Yatiman, and Istyana Ibrahim of Rajah & Tann LLP.
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Brief Facts
(1) Wong and Nam were accused of being part of a “procurement shipping network” to
export 6000 radio frequency modules (“the Modules”) from the US to Iran via
Singapore.
(2) The Modules were ordered from an American company through another Hong
Kong company. They were then sold down a chain of two Singapore companies,
and eventually transported to Iran. Nam and Wong were employees at these two
Singapore companies.
(3) The US had imposed sanctions against the export of goods, technology and services
from the US or by a US person to Iran.
(4) It was alleged that the transaction was structured so as to give the impression that
the eventual destination of the Modules was Singapore and not Iran, and thus
conceal the true end-user from the knowledge of the American side.
(5) The US thus sought Wong and Nam’s extradition for their part in the alleged
conspiracy to breach US trade sanctions against the export of goods from the US to
Iran via Singapore.
(6) The US also sought the extradition of two other Singaporeans (“Seng” and “Hia”)
on another charge of conspiracy to cause restricted antennae to be exported out of
the US without a license, thus violating US export regulations.
Issue
The Court had to determine whether to release the Applicants or to allow their extradition
to the US. This depended on whether the requirements of extradition, as set out in the
Singapore Extradition Act read with the Singapore-US treaty on extradition of fugitives,
were satisfied.
The main issue before the Court was the question of whether the crimes the Applicants
were accused of were “extradition crimes”, as defined under Section 2 of the Singapore
Extradition Act. The definition of “extradition crime” incorporates the double criminality
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requirement common under extradition law. It was this issue around which the majority
of the judgment centered.
Holding of the High Court
The Court held that Wong and Nam had not been charged with extradition crimes as their
acts were not criminally punishable in Singapore. They were thus ordered to be released
from custody. However, the Court upheld the District Court’s decision with regard to
Seng and Hia.
Breach of US trade sanctions
In order to qualify as an “extradition crime”, the conduct which is the subject of the charge
in the extradition request must be punishable in both Singapore and the requesting state.
(i) This principle of double criminality requires the Court to transpose the
allegations of fact from the requesting state to the requested state.
(ii) Essentially, the Court had to determine whether a person residing in a foreign
country who carried out identical acts as alleged by the US would be guilty of a
crime in Singapore as well, and thus be capable of facing extradition to
Singapore.
(iii) The Court expressed approval of the “conduct test” of double criminality, which
involves looking at the conduct alleged against the fugitive and assessing
whether the conduct would have been criminal had it been committed within
the jurisdiction of the requested state.
The Court held that the allegations of fact against Wong and Nam, as transposed, would
not make out an offence under Singapore law.
(i) The acts complained of against Wong and Nam were all in furtherance of the
violation of US trade sanctions on the export of all goods from the US to Iran.
(ii) At the time the acts were committed, Singapore did not have absolute
prohibition against trade with Iran. The restrictions only covered specified
classes of goods, and did not include the Modules allegedly transported in this
case.
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(iii) Therefore, Wong and Nam’s acts of abetting the re-export of goods to Iran
would not have been criminally punishable in Singapore.
Since the double criminality requirement was not fulfilled, the offences Wong and Nam
were accused of could not be considered extradition crimes. To regard Wong and Nam’s
acts as criminal would therefore be tantamount to extending the trade obligations that the
Singapore Parliament accepted as binding on Singapore, and would amount to the
enforcement of another country’s trade policies which differed from Singapore.
Consequently, Wong and Nam could not be said to be fugitives under the Extradition Act
or the Singapore-US treaty.
The Court thus ordered Wong and Nam to be released forthwith.
Breach of US export regulations
The Court found that the offences Seng and Hia had been accused of were in fact
extradition crimes. The abetment by conspiracy to export controlled goods without
obtaining a license would be punishable both in the US and in Singapore, thus fulfilling
the test of double criminality.
It was held that the acts allegedly committed by Seng and Hia could be said to have taken
place within US jurisdiction even though they did not step foot in the US and had only
sent emails from Singapore to the alleged co-conspirator in the US. The Court mainly
relied on the English case of Regina v Baxter [1972] 1 QB 1 in order to find that acts of
abetment in the form of email correspondence sent to and received by a person in
Singapore can be construed as having been committed within the territorial jurisdiction of
Singapore. Transposing the allegations of fact, Seng and Hia’s acts of abetment would
therefore be justiciable in Singapore.
Concluding Words
When trading to and from Singapore, one must be aware of the local import and export
regulations that one must comply with. Given the increasing extraterritorial reach of
foreign law, it is also crucial to be familiar with the trading regulations of the other
country involved in the transaction. While two of the Applicants here were released
(because similar trade sanctions with Iran were not in force in Singapore at the material time
of the offences), Singapore has since taken steps to implement the UN Security Resolutions
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which impose sanctions in Iran by way of primary and subsidiary legislation as well as
other orders and circulars adopted by Singapore Customs. The same argument that
succeeded here may not be applicable to offenders committing similar acts after such
legislation has been implemented in Singapore.
The other two Applicants, Seng and Hia, were residents of Singapore and, to their minds,
had acted wholly in Singapore at the material time of the offence. Yet, the Court essentially
found that the offence would be justiciable in Singapore (and that therefore the double
criminality rule would be satisfied) as emails sent outside Singapore to a person in
Singapore would be enough for a Singapore court to have jurisdiction over the senders of
these emails.
It is thus essential to be properly advised on the trade laws of the partner country. What
may be seen as a mere technical requirement here may constitute a serious offence
elsewhere. As seen here, the repercussions of such an error can be extremely serious.
The case also brings to light the issue of extradition, which has only received limited local
judicial attention to date. Apart from the extradition schemes with Malaysia and other
Commonwealth States, Singapore has signed extradition treaties with foreign states such
as the United States of America and Germany. Singapore is also party to several
international conventions such as the Convention on Prevention and Punishment of
Crimes against Internationally Protected Persons, the International Convention against
Taking of Hostages and the International Convention for Suppression of Terrorist
Bombings, which provide for specific extradition processes. These conventions have been
implemented in Singapore by way of primary and subsidiary legislation. It is therefore
advisable to be fully apprised of the relevant principles and procedures behind extradition
proceedings as countries all around the world expand their jurisdictional reach over
offenders situated overseas. The maxim “all crimes are local” can hardly hold true in an
increasingly interconnected world where transnational crimes are likely to become the
focus of prosecution.
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Contacts
Please feel free to also contact the Knowledge and Risk Management Group at [email protected]
Rajah & Tann LLP is the largest law firm in Singapore and Southeast Asia, with regional offices in China, Lao PDR, Vietnam and Thailand,as well as associate and affiliate offices in Malaysia, Indonesia, Cambodia and the Middle East. Our Asian network also includes regionaldesks focused on Japan and South Asia. As the Singapore member firm of the Lex Mundi Network, we are able to offer access to excellentlegal expertise in more than 100 countries.
Rajah & Tann LLP is firmly committed to the provision of high quality legal services. It places strong emphasis on promptness, accessibilityand reliability in dealing with clients. At the same time, the firm strives towards a practical yet creative approach in dealing with businessand commercial problems.
The contents of this Update are owned by Rajah & Tann LLP and subject to copyright protection under the laws of Singapore and, throughinternational treaties, other countries. No part of this Update may be reproduced, licensed, sold, published, transmitted, modified, adapted,publicly displayed, broadcast (including storage in any medium by electronic means whether or not transiently for any purpose save aspermitted herein) without the prior written permission of Rajah & Tann LLP.
Please note also that whilst the information in this Update is correct to the best of our knowledge and belief at the time of writing, it is onlyintended to provide a general guide to the subject matter and should not be treated as a substitute for specific professional advice for anyparticular course of action as such information may not suit your specific business and operational requirements. It is to your advantage toseek legal advice for your specific situation. In this regard, you may call the lawyer you normally deal with in Rajah & Tann LLP or e-mailthe Knowledge & Risk Management Group at [email protected].
Hamidul HaqPartnerD (65) 6232 0398F (65) 6428 2116
Thong Chee KunPartnerD (65) 6232 0156F (65) 6428 2130
