Read the full judgment text of HCMP 2557/2010 on BabelCite. This Court of First Instance judgment was delivered on 30 January 2014 before Deputy High Court Judge J Yau.
Mutual legal assistance – criminal matters – external confiscation order – registration and enforcement under the Mutual Legal Assistance in Criminal Matters Ordinance (Cap 525) – restraint order under section 27 and Schedule 2 – Bank Century collapse in Indonesia in 2008 – D1 and D2 tried and convicted in absentia by Central Jakarta District Court of corruption and money laundering – restitution of 3,115,889,000 Indonesian Rupiah (US$286,650,550) ordered and assets confiscated – whether the Indonesian District Court had jurisdiction to try D1 and D2 in absentia – whether sufficient notice of the proceedings was given under Indonesian law – whether the external confiscation order is enforceable in Hong Kong at common law – whether section 28(1)(b) of the Ordinance is satisfied – whether the dual criminality test under section 5(1)(g) is satisfied – whether the proceedings are political in nature – whether the external confiscation order is penal and thus not an 'external confiscation order' as defined – whether material non-disclosure warrants discharge of the restraint order – whether 'realisable property' under section 5 of Schedule 2 includes property under the effective control of the defendant or only property specified in the order – whether D11's SCBHK accounts can be confiscated as property of D1 and D2 – whether the absence of D3 in the trial of D1 and D2 affects registration – Held: the Indonesian District Court had jurisdiction to try D1 and D2 in absentia as they were validly summoned under Indonesian law through Interpol, ambassadors, the President Director of Bank Mutiara and newspaper advertisements, and the court is not an appellate court over the Indonesian courts – Held: sections 27 and 28 of the Ordinance introduce a new statutory regime that displaces common law principles of conflict of laws, following Re Law Kin Man, and the external confiscation order is enforceable in Hong Kong – Held: dual criminality is satisfied as the conduct amounts to fraud/theft and money laundering in Hong Kong – Held: the proceedings are not shown to be political in nature on the basis of bare allegations, lawyers' opinions and news articles – Held: the 'fatwa' of the Indonesian Supreme Court did not render the order penal – Held: the alleged material non-disclosure does not warrant discharge of the restraint order – Held: for enforcement of an external confiscation order, 'realisable property' under section 5(1)(a) of Schedule 2 means only property specified in the order, not property under the effective control of the defendant (section 5(1)(b)) – Held: D11 is a vehicle of D1 and D2, the transfer of its shares to Mr Liegey was a breach of the restraint order and abuse of process and is disregarded, and the Mauritius protected cell company structure does not insulate the accounts from confiscation – Held: the requirements of section 28(1)(b) and (c) are satisfied in respect of D3, who was acting in concert with D1 and D2 and had ample opportunity to defend in his own trial – External confiscation order registered and enforced against specified accounts – Receivers appointed as enforcement receivers under section 9 of Schedule 2 of the Ordinance – Restraint orders discharged in respect of accounts not specified in the order (D10's accounts, D12 a/c 379179, D8 a/c 447-0072727-5, D9, Vantage Corporation a/c 379190, D6's accounts, and D11 a/c 96332) – Costs to the Secretary nisi.
Legal issues: Jurisdiction of Indonesian District Court to try D1 and D2 in absentia · Enforceability in Hong Kong of external confiscation order made in absentia · Dual criminality requirement under section 5(1)(g) of the Ordinance · Whether the external confiscation order is penal in nature and not an external confiscation order as defined · Whether the Indonesian proceedings are political in nature warranting refusal of registration · Whether material non-disclosure warrants discharge of the restraint order · Meaning of 'realisable property' under section 5 of Schedule 2 of the Ordinance · Whether D11's accounts are subject to confiscation as property under the control of D1 and D2 · Whether absence of D3 in the trial of D1 and D2 affects registration and enforcement against D3's assets
Outcome: The external confiscation order of the Indonesian District Court was registered and enforced in Hong Kong against the specified accounts of D1, D2, D3, D5, D8, D11, D12, D13, D14, D15 and D16. Restraint orders were discharged in respect of certain accounts not specified in the external confiscation order (D10's accounts, D12's EFG Bank account 379179, D8's account 447-0072727-5, D9's account, Vantage Corporation account 379190, and D6's accounts). The Receivers were appointed as enforcement receivers under section 9 of Schedule 2 of the Ordinance. Costs were ordered to the Secretary nisi.
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