Cheng v Government of the United States of America [2014] EWHC 4091 (Admin)

Case No CO/3871/2014[2014] EWHC 4091 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday 19 November 2014
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE AIKENS
MR JUSTICE NICOL
Between
CHENGAppellantv
Between
GOVERNMENT OF THE UNITED STATES OF AMERICADefendantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Alun Jones QC (instructed by Kaim Todner) appeared for AppellantMr Peter Caldwell (instructed by Crown Prosecution Service) appeared for First RespondentMiss Clair Dobbin (instructed by Treasury Solicitor) appeared for Second Respondent
J U D G M E N T
[1]MR JUSTICE NICOL: On 6 March 2014 the USA Department of Justice requested the appellant's extradition to face trial in the US District Court of Massachusetts on an indictment with ten counts and related forfeiture proceedings. In broad terms the indictment alleged that between 2009 and 2012 the appellant was party to a conspiracy to secure the export of pressure transducers from the USA when their ultimate destination was Iran. Transducers can be used in the manufacture of nuclear weapons.[2]The appellant was arrested on a provisional warrant on 7 February 2014. The Secretary of State certified the request on 12 March 2014. An extradition hearing took place at Westminster Magistrates' Court on 5 June 2014 before District Judge Kenneth Grant. He sent the case to the Secretary of State on 16 June 2014. The District Judge's decision to do so was the first matter which is the subject of an appeal before this court. The Secretary of State made an extradition order on 7 March 2014 and that is the second matter which is the subject of appeal.[3]Before the District Judge the only matter in dispute was whether the offences specified in the request were extradition offences (see Extradition Act 2003, Section 78 (4) (b)). The District Judge held that they were. Mr Alun Jones QC, on the appellant's behalf, alleges that he was wrong to do so. If these were not extradition offences the District Judge was obliged to discharge the appellant (see Section 78 (6)), and that is what Mr Jones says he should have done. It is convenient to take this matter first before turning to the appeal against the Secretary of State's decision.[4]The USA is a category 2 territory to which Part II of the Extradition Act applies. Accordingly, the relevant definition of an "extradition offence" is in Section 137 which says:
"(1) This section sets whether a person's conduct constitutes an ‘extradition offence’ for the purpose of this Part in a case where a person - (a) is accused in a category 2 territory ..... of an offence constituted by the conduct ..... ..... (2) The conduct constitutes an extradition offence in relation to the category 2 territory if the conditions in sub-sections (3), (4) or (5) are satisfied. (3) The conditions in this sub-section are that - (a) the conduct occurs in the category 2 territory; (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom; (c) the conduct is so punishable under the law of the category 2 territory."
[5]Before the District Judge, Mr Peter Caldwell, who then as now appeared for the Government of the USA, argued that the conduct alleged against the appellant would constitute a number of different offences. Among these was conspiracy to defraud. In his judgment the District Judge found that the conduct alleged against the defendant inferentially alleged that he had been a party to a number of dishonest representations. Because the true end user of the pressure transducers was misstated to the US Customs authorities export licences were granted which would not have been had the true identity of the end users been disclosed. The District Judge noted that he had not been addressed by either advocate about the individual counts in the indictment. He found that the behaviour behind the counts alleged in the request concerned the same criminal enterprise, the conspiracy to export. He considered the case before him as therefore closely analogous to Tappin v Government of the United States of America [2012] EWHC 22 (Admin).[6]There is no dispute that what has to be examined is the conduct (my emphasis) alleged against the requested person rather than the constituent elements of the offences under the law of the requesting state (see Norris v United States of America [2008] 1 AC 920).[7]The conduct alleged against this appellant is set out in an affidavit of Stephanie Siegmann, an Assistant US Attorney for the District of Massachusetts. Mr Jones submits that this affidavit does not accuse the appellant of conduct which would amount to conspiracy to defraud. He notes that Miss Siegmann refers to four particular export transactions which took place in a period in 2009. In my judgment this argument cannot succeed.[8]Miss Siegmann's affidavit describes how the appellant, a citizen of the People's Republic of China and with businesses in China, had traded with Iranian companies for a number of years. One of the people with whom he did business was Shahab Jamili, an Iranian businessman based in Tehran. Jamili told the appellant on a number of occasions that the end user of these items was the Iranian Government. Initially, the appellant sold Jamili parts that originated in China. In February 2009 Jamili told the appellant that one of the Iranian companies was looking to purchase pressure transducers manufactured in the United Kingdom or the United States. The idea of buying UK-made products was ruled out. The affidavit continues that the appellant conspired with other Chinese-based individuals, one of whom, as the affidavit says, "set up two front companies in Shanghai, China to pose as the end user in transactions with another Chinese company for the purpose of fraudulently obtaining export licences from the United States".[9]In April 2009 it is alleged that Jamili emailed the appellant not to place orders for the total required amount of pressure transducers all at once "due to critical control conditions and boycott by US Government." Instead, he should "buy in orders of 50 to 150 pieces per shipment and do not make any doubt of their side (USA) otherwise if factory knows the final destination it may cause that they will stop further business. Thus we must take care seriously. Please inform [another conspirator] the same situation too."[10]Mr Caldwell submits the District Judge was right to find the conduct alleged against the appellant in Miss Siegmann's affidavit supported an inference of dishonesty. He submits (and I quote from his skeleton argument):
"The appellant was involved in the deliberate misleading of the exporting US company as to the true end user of the goods in question, and also thereby, misleading the US Customs authorities who being deceived as to the end user issued licences for the export of the goods."
Whether this is in fact what happened will be a matter for the trial court in Massachusetts. But I agree that this is the conduct which is alleged against the appellant.[11]There was a good reason why, as the District Judge observed, there should have been no debate before him as to the individual counts on the indictment. Since what has to be examined is the conduct alleged against the requested person, rather than the constituent elements of the particular charges, it is the conduct - not the charges - which is the proper focus of attention. As long as the charges all arise out of the same criminal enterprise, it is not necessary - indeed it would be contrary to Norris - to examine whether the elements of the individual offences have their precise correlation with an English offence.[12]In the present case I agree with Mr Caldwell that the counts alleged in the request did all concern the same criminal enterprise, namely the conspiracy to export the goods in question.[13]Mr Caldwell, in the alternative, argued that there were equivalent restrictions on exports as a matter of English law. However, since, like the District Judge, I consider that he succeeds on his primary submission, it is unnecessary to examine the detail of this alternative argument.[14]In an email of 14 July 2014 the District Judge made clear that he had sent the case to the Secretary of State in respect of all the charges set out in the extradition request.[15]Mr Jones argues that the Secretary of State should not have made the extradition order without obtaining an assurance from the requesting state that the appellant would be prosecuted only for conspiracy to defraud. He argues that none of the other counts on the indictment were found to be extradition offences. Absent an assurance, there would be a breach of specialty and for this reason an appeal against the decision of the Secretary of State should be allowed.[16]For the Secretary of State, Miss Clair Dobbin submits that Mr Jones's argument is misconceived. The District Judge had confirmed to the Secretary of State the case was sent to her in respect of all the counts in the extradition request. The task of the Secretary of State was to be satisfied that specialty would be observed and that the appellant would not be tried for offences other than those referred to in the request. The Secretary of State had no reason to believe that the appellant would be tried for other offences, and indeed Mr Jones does not argue the contrary. In reality, Miss Dobbin argues, Mr Jones's complaint is that the District Judge sent the entirety of the extradition request to the Secretary of State, but it is not the Secretary of State's task to review that part of the District Judge's decision. Put shortly, if the appellant cannot succeed on his first ground of appeal as against the District Judge's decision he cannot succeed on his second as against the Secretary of State. It is sufficient to say that I agree with Miss Dobbin.[17]It follows that for my part I would dismiss the appeal against the district judge's decision and the appeal against the Secretary of State's order.

LORD JUSTICE AIKENS: I agree.