Huawei CFO's legal eagles take HSBC to court in Hong Kong to obtain evidence against US extradition Huawei CFO Meng Wanzhou's legal team has begun proceedings against HSBC in Hong Kong to obtain documents they believe will support her defence against extradition from Canada to the US. Meng, the daughter of Huawei founder Ren Zhengfei, was arrested in 2018 by Canadian authorities while transiting at Vancouver International …
I suspect that HK judges in civil law cases are not affected directly by the recent security law. On the other hand they know which side their bread is buttered (no doubt there is a Chinese metaphor for that) and so I think this is a brilliant move by Meng's legal team; I hope it isn't too late.
El Reg said: "The RCMP constable alleged to have been party to this has since left Canada, and is thus unable to provide witness testimony."
Last heard, said retired constable (actually a senior staff sergeant, Ben Chang) was in Macau and had hired a lawyer to represent him in an effort to avoid being forced to return to Canada to testify. He currently works as a senior security executive at a casino called Galaxy Macau.
It is considered highly unusual for a former Mountie to refuse to testify in a case.
The problem appears to be that an affidavit filed by Chang about the case was directly contradicted by the notes made at the time by another sergeant. The latter sergeant then reversed her testimony with a different account than was in her notes and agreed with Chang.
The CBSA (immigration) staff who grilled Meng for 3 hours about matters relating to the case claim that they did so because they happened to have read a Wikipedia article on her just before she arrived.
At issue is whether Chang conspired with the US FBI to arrange to question Meng without the usual legal protections, and to illegally pass on confidential information to the US, and then cover it up afterwards. Former colleagues of Chang say that it was not uncommon for the FBI to enlist the help of the RCMP on what they called "political cases" (their words, not mine) such as Meng's.
Here's two good articles from two of the most reputable news sources in Canada.
https://www.theglobeandmail.com/politics/article-ex-mountie-refusing-to-testify-in-huawei-extradition-hearing-is/
https://www.cbc.ca/news/canada/british-columbia/meng-wanzhou-rcmp-extradition-witness-1.5804308
Other news stories have said that the abuse of process arguments relating to the above are the most likely avenue to succeed for Meng's lawyers.
There have been repeated news stories that Ottawa are trying to get Washington to drop the case. A number of retired very senior politicians have also publicly called for the case to be dropped as not being in Canada's national interest. Next to the pandemic it is considered to be Canada's biggest headache.
On the one hand they are perhaps necessary to get bad actors to behave on the world stage, on the other they can be used for geo-political bullying.
Whilst no fan of the Iranian Government its hard to argue that the US Govt is any better in thought or deed - especially over the period when Trump was in power, but it seems that Might makes Right.
So we have is :
a) a "Crime" that is only such because America has unilaterally decided it is, followed after some delay by its Allies.
b) a Person being held directly responsible for that "crime" rather than the Corporate Entity itself.
There seems to be very little requirement to prove intent or harm by Meg herself and very little to be gained by holding her responsible for the actions of her company, which has already had its business model crushed by Sanctions itself.
Just like Iran is holding Nazanin hostage, the US and Canada seem to be determined to hold Meg hostage, and whilst Im sure Meg's cage is more gilded than Nazanin's its still a cage and its making the Political personal, which in lieu of being able to show any harm - isn't right.
Some of your facts are not exactly correct.
"a) a "Crime" that is only such because America has unilaterally decided it is, followed after some delay by its Allies."
In a way, but this is not unusual. It is not a crime for you to do business with Iran if you're outside the U.S., but if you are in the U.S., then it is. This is acceptable because the U.S.'s laws are set by politicians, and voters can replace those politicians if they disagree. You could therefore make it not a crime anymore by voting in others. Huawei is involved because they were selling their plan to a bank which operates in the U.S. and therefore chooses to follow U.S. laws.
"b) a Person being held directly responsible for that "crime" rather than the Corporate Entity itself."
This isn't the case. The reason Meng (and it's Meng, not Meg) is being charged is that there was a person making the claims to the bank which the U.S. claims are fraudulent, and it was her. The company may have directed her to do it, but she actually stood up and said the things which would be a crime if proven.
"There seems to be very little requirement to prove intent or harm by Meg herself"
The courts in Canada and the U.S. have been trying to do that. They have already had to deal with questions of intent, and her lawyers have tried to prove that she didn't have ill intent. They have so far failed to do that and are therefore more likely to get the request denied by pointing to procedural problems.
"and very little to be gained by holding her responsible for the actions of her company, which has already had its business model crushed by Sanctions itself."
The former part has already been contested above, and the latter part is unrelated. The sanctions against Huawei in particular are related to a different allegation, and one which in my opinion is much weaker. The point of the fraud case is to prevent fraud. The point of the sanction on Huawei is either to protect Americans from dangerous Huawei equipment (if you believe the drafters) or to gain an advantage in a trade war (what I think). Therefore, the fraud case can be legitimate while the sanctions could be unwarranted.
doublelayer said: "The courts in Canada and the U.S. have been trying to do that. They have already had to deal with questions of intent, and her lawyers have tried to prove that she didn't have ill intent. They have so far failed to do that and are therefore more likely to get the request denied by pointing to procedural problems."
Eh, no there has been no such thing addressed in court yet. The court in Canada is not concerned with her guilt or innocence, just whether the extradition request by the US meets the rather low bar required by the bilateral extradition treaty between the two countries. The US courts will decide on whether Meng has done anything wrong under US law, but they have not been involved yet.
The questions being addressed by the court in Canada include whether the US made their extradition request in bad faith, whether there is a political motivation behind the US request, and whether there was abuse of process on the part of Canadian immigration officials and police, perhaps at the request of their US counterparts.
The particular issue being addressed in Hong Kong is with regards to getting an original copy of the presentation which Meng gave to HSBC, as her defence lawyers have said the US have edited the version they presented to Canada in order to give a misleading impression to the court. If the document was indeed altered by the US then much of the US case falls apart.
As I said the Canadian court are not interested in Meng's actual guilt or innocence. The court are interested though in whether the US actually have enough of a case to justify an extradition. I should point out that going by previous US practice the charges that Meng might face in the US may bear little resemblance to the ones being used to request her extradition.
One of the relevant cases in this respect is with regards to an extradition from Canada to France in which the French legal authorities were later found to have made false representations to the Canadian court in order to gain the extradition of someone under false pretences. The person in question was later found not guilty in France due to lack of evidence, but only after spending years in jail.
One of the issues Canada was dealing with before the pandemic swept everything else off the table was with whether we needed to overhaul the extradition laws in Canada to deal with systematic abuse by supposed "allies" who were exploiting weaknesses in Canadian extradition law.
News opinion in Canada suggests that the strongest defences that Meng has with respect to extradition are the abuse of process by Canadian police and immigration officials acting at the behest of their US counterparts.
In addition to this there is a not unlikely possibility of a deal between Canada and the US to get the latter to drop their extradition request in return for the US getting something else they want from Canada (likely either trade, or given the current US government, some support for their environmental agenda). This has been floated multiple times by pundits in Canada as a way out of the current situation where Canada finds itself being used as a pawn in a US-China power struggle.
You are broadly correct, but the courts in Canada have also had to resolve claims by her lawyers that the crimes were invalid under Canadian law. These disputes have at times involved discussions of what fraud is, whether sanctions apply in multiple countries, and the like. Some of these discussions have indeed handled questions of culpability if she is found guilty, and thus the intent I described. When such claims were made, Canadian courts have decided that it is a crime to make fraudulent claims about sanction compliance, which is why she is still hinging her defense on procedural issues. Your description about what those are is quite good.
The question of "double criminality" (whether there would have been a crime under Canadian law) was apparently always the weakest defence, even if that wasn't obvious to someone not familiar with how this works. The US framed the extradition request as "fraud" specifically to get around the issue of Canada not having sanctions in place (as we didn't pull out of the agreement with Europe like the US did).
At one point the judge basically just asked the crown (who are handling the extradition request from the US) whether he would prosecute this case as fraud, to which we shouldn't be surprised to hear that he said "yes".
Not an awful lot of thought seemed to go into it by the judge, and of course the Canadian court isn't concerned with the issue of whether any fraud actually occurred, just that "fraud" is a crime in Canada. The issue of whether Meng broke any US sanctions or whether she committed any fraud in doing simply isn't an issue that the court will have any interest in.
This is why her defence rests on procedural issues, as these are the only issues the court may have any actual interest in. This is why her strongest defences are whether there was abuse of process through the US providing false or misleading information to Canada or whether Canadian police and immigration abused their powers when questioning her and if they illegally handed information over to the US.
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