“Edward Snowden ‘in safe place’ in Hong Kong, but time running out”

June 22, 2013

South China Morning Post on June 23, 2013 released the following:

“Edward Snowden has not been detained or put under police protection and is “in a safe place” in Hong Kong, but experts say time is running out for Snowden if he intends to leave Hong Kong and seek asylum elsewhere.

[By] Lana Lam

The South China Morning Post can reveal that contrary to some reports, US whistleblower Edward Snowden has not been detained or put under police protection and is “in a safe place” in Hong Kong.

But experts say time is running out for Snowden if he intends to leave Hong Kong and seek asylum elsewhere.

His fate may depend on when the Hong Kong police seek a provisional warrant for his arrest from a local court in light of charges in the United States, a legal procedure the Post understands was still being worked Saturday night.

Snowden had indicated that he wanted to seek asylum in Iceland, although he has also pledged to put his future in the hands of the Hong Kong people and courts.

When a local warrant is issued, police will hand his details to the Immigration Department and Snowden will be unable to leave the city.

Police commissioner Andy Tsang Wai-hung would only say Saturday that a provisional warrant issued by a US court would not apply to Hong Kong.

Professor Simon Young Ngai-man, of the University of Hong Kong’s law faculty, said: “I suspect, though I do not know for sure, that a provisional arrest warrant has already been issued by a HK magistrate as early as June 14, the date of the [US] charges.”

Civic Party lawmaker Ronny Tong Ka-wah, a senior counsel, said a local court could grant a provisional warrant quickly.

Law Society vice-president Stephen Hung Yuen-shun said a court would be able to issue a warrant without hearing from Snowden’s lawyers.

A report in The Washington Post said US authorities had asked Hong Kong to issue a provisional warrant to detain Snowden.

Under the Fugitive Offenders Ordinance, Hong Kong authorities must inform Beijing of the receipt of any extradition request. Beijing may intervene if the case seriously affects the nation’s defence and foreign affairs. The central government can instruct Chief Executive Leung Chun-ying on whether or not Snowden should be arrested.

“If Beijing did not give any instruction … and Snowden were arrested, he can apply for bail, or a habeas corpus … to … challenge the legitimacy of his arrest,” Tong said.

If he is arrested, committal proceedings will take place before a magistrate, who will decide whether there are sufficient grounds to send Snowden back to the US. Snowden can also argue that the prosecution was political in nature – he would be released were the magistrate to rule in his favour on that point.

“[Snowden] can argue that his offence is of a political character – based on his conscience, political views or values,” said former security minister Regina Ip Lau Suk-yee.

Young said relevant arguments Snowden could raise would include questioning the motive for the prosecution, the likelihood of his receiving a fair trial back home and his likely treatment in the US.

The court will also rule on whether the offences Snowden is accused of would be crimes in Hong Kong. Young believes that not all of the three offences – theft of government property, unauthorised communication of national defence information and wilful communication of classified communications intelligence to an unauthorised person – have an equivalent in Hong Kong law.

“While the requested offence of theft of governmental property will not present difficulties, the other two information-related offences will likely attract litigation and dispute in the courts,” Young said. But, he said, the chief executive could consent to allow offences not mentioned in the extradition treaty with the US to be included.

Both Snowden and the local government have the power to appeal against the magistrate’s ruling and take the case all the way to the Court of Final Appeal.

Even if Snowden fails and the chief executive order his transfer, Snowden can seek a judicial review of the decision, which can also be subject to various appeals, Young says.

Tong says the theft charge alone may be enough to secure Snowden’s extradition, unless the former CIA technician can prove he stole for political reasons.”

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Douglas McNabb – McNabb Associates, P.C.’s
International Extradition Lawyers Videos:

International Extradition – When the FBI Seeks Extradition

International Extradition – Wire Transfer – Email – Telephone Call

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We previously discussed the extradition treaty between the United States and Hong Kong here.

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To find additional global criminal news, please read The Global Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

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US cites United Nations treaty in Megaupload case

February 13, 2012

Computer World on February 13, 2012 released the following:

“Judge in bail hearing questions whether Dotcom extradition is lawful

BY MICHAEL FOREMAN

The United States government will be relying on a United Nations treaty aimed at combating international organised crime as the legal basis of its extradition to the US of Megaupload founder Kim Dotcom and other co-accused.

While the extradition hearing is scheduled to take place on February 22, some of the legal arguments that will be made at that hearing were foreshadowed at a bail-refusal appeal heard at Auckland High Court on February 3.

During the bail appeal, Dotcom’s lawyer Paul Davison QC, said the US was seeking to have Dotcom and other employees of Megaupload extradited in relation to charges of conspiracy to commit racketeering, money laundering and copyright infringement.

At this point the judge, Justice Raynor Asher interrupted Davison, asking him: “These are extradition offences? I assume you have satisfied yourself on that?”

Davison replied that criminal breach of copyright was not a scheduled offence [under New Zealand’s extradition treaty with the US]. The racketeering charge was said to have a similarity with a scheduled offence however “everything is derivative” from the copyright infringement charge.

“The funds which were derived from the business activity and the involvement of a group of people around the business activity is the basis of the allegation that this was racketeering … the movement of business proceeds and funds then becomes an allegation of money laundering, but the whole thing is pinned back to the existence of a criminal breach of copyright.

“I am not able to advance a position at this stage which would be as strong as to say that there is no strength to the US government’s case. But suffice to say that there is a substantial challenge to it, and it’s not at all clear that this is an extraditable situation.”

Asked whether he had discussed these matters with Crown prosecutor Anne Toohey, Davison said he had been waiting for ten or 12 days for the prosecution to respond to his request for documents.

“I have been frustrated by being unable to get access to a range of documents that underpin the steps that were taken to issue the provisional [arrest] warrant.”

“I have been requesting the Crown to provide me with the requisite documents, I have been told that the police hold the requisite documents and the police will respond.”

Davison said that the legal basis of the extradition request “may give rise to another proceeding”.

“It is a fundamental matter, it’s not being overlooked, and it is likely to be litigated,” he said.

Fergus Sinclair, a lawyer with the Crown Law Office who appeared as co-counsel with Toohey on behalf of the United States, said that while it was true no copyright offences were named in the extradition treaty, certain crimes where they involved trans-national organised crime, were subject to section 101b of the Extradition Act.

Under this section any offence which was punishable by a prison sentence of more than four years was deemed to be extraditable, and under the New Zealand Copyright Act the distribution of an infringing work could be punished by up to five years in prison.

Sinclair cited the United Nations Convention against Transnational Organised Crime (TOC), which was passed by a UN general assembly resolution in 2000, as the basis of invoking the organised crime provisions of the Extradition Act.

Under the terms of TOC Sinclair said an “organised criminal group” had to consist of a structured group of three or more persons acting in concert with the aim of committing serious crime.

He said there were seven defendants in the Megaupload case, and that according to US grand jury indictment of January 5 members of the Megaupload conspiracy engaged in criminal copyright infringement and money laundering on a massive scale with estimated harm to copyright holders in excess of US$500 million.

Since the bail appeal hearing, several legal commentators have expressed the view that the Megaupload extradition case could be appealed to the New Zealand Supreme Court.

IT lawyer Rick Shera said that Davison’s submissions reinforced his opinion that the extradition case would be complicated.

“My view has always been that there’s a clear issue as to whether the extradition treaty is the end of the story or whether section 101b of the Extradition Act would be involved. Whatever happens you still go back to the [New Zealand] Copyright Act where differences between the NZ and US legislation may become significant.

“I would expect that after the first or second round, one or other of the parties will appeal.

“There hasn’t been a case like this in New Zealand before and, as far as you can you look at it from a general perspective and considering what is at stake, you would want it to be heard by the Supreme Court.””

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Douglas McNabb – McNabb Associates, P.C.’s
International Extradition Lawyers Videos:

International Extradition – When the FBI Seeks Extradition

International Extradition – Wire Transfer – Email – Telephone Call

————————————————————–

To find additional global criminal news, please read The Global Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Mais’ Alleged Killer Could Be Extradited

July 10, 2011

The Gleaner on July 9, 2011 released the following:

“Glenroy Sinclair, Assignment Coordinator

HEAD OF the Criminal Investigation Branch, Assistant Commissioner Ealan Powell, and his team are now busy wrapping up their preliminary investigation before drafting a provisional warrant for the United States to extradite the driver of the BMW X6 implicated in the murder of Kingston College schoolboy, Khajeel Mais.

This is because fresh information has suggested that the BMW X6 driver is a US citizen.

“We have that information, but before we can do anything, we have to complete our file and then draft a provisional warrant,” Powell told The Gleaner yesterday.

A provisional arrest request is an urgent petition to arrest a person pending receipt of an extradition request. It may be appropriate when it is believed that the fugitive may flee the jurisdiction.

There are allegations that prior to the shooting, the X6 driver had originally planned to leave the island on Monday, July 4, which is Independence Day in the United States. But immediately after the shooting, he reportedly purchased another ticket and departed the following day to New York.

The Gleaner understands he has an original address in Florida, and the police, with their overseas counterparts, are now probing his whereabouts.

Mais, 17, was gunned down last Friday. He was a passenger in a taxi which collided with a BMW X6 on Highland Drive, St Andrew.”

Douglas McNabb and other members of the U.S. law firm practice and write extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN List Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

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