Wong Yuh Lan v Public Prosecutor and other matters

1. Choo Han Teck J:

2. [1]

   [1] Lim Yong Nam (“Nam”), Lim Kow Seng (“Seng”), Hia Soo Gan Benson (“Hia”) and Wong Yuh Lan (“Wong”) (henceforth collectively termed “the Applicants”) were each granted leave to issue a summons for an Order for Review of Detention under O 54 r 2(1)(b) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“Rules of Court”) on 23 February 2012. The Applicants then filed summonses seeking, inter alia, an Order for Review of Detention against the Singapore Police Force and Director of Institute of Mental Health (in Nam’s application) and the Superintendent of Changi Prison (in Seng, Hia and Wong’s application). These applications were made because pursuant to the United States of America (Extradition) Order in Council, 1935 (Cap 103, OR 1) (“US Order in Council”), the United States of America (“US”) had made a requisition to the Minister for Law for the extradition of the Applicants to the US to stand trial, and warrants of arrest had been issued against them by the US District Court for the District of Columbia on 15 September 2010. The US sought the extradition of the Applicants for 12 counts of conduct, including conspiracy to defraud the US by illegal means, smuggling, illegal exports and attempted illegal exports to the Republic of Iran (“Iran”), scheme to make false statements to the US and a scheme to conceal. However, the Attorney-General’s Chambers on behalf of the State sought the committal of Wong and Nam only in respect of Count One of the Superseding Indictment for conspiracy to defraud the US by dishonest means under Title 18 United States Code Section 371 (“18 USC § 371”). Wong and Nam were accused of being part of a “procurement shipping network” together with one Hossein A Larijani (“Larijani”), an Iranian national, Seng and Hia to export 6,000 radio frequency modules (“Company A modules”) manufactured by Company A, a US company, from the US to Iran via Singapore. This was in breach of US export restrictions against unauthorised shipment of US-origin goods from a third country to Iran. As against Seng and Hia, the State sought their committal only in respect of Count Eight, also pursuant to 18 USC § 371. Seng and Hia were accused of being part of a separate scheme with two other US nationals to cause antennae which were classified as “defense articles” under US law to be exported without a licence. Title 18 United States Code Section 371 (“conspiracy to defraud the US”) reads:

3. [2]

   [2] The learned District Judge (“the DJ”) issued a warrant for the apprehension of the Applicants on 12 October 2011, pursuant to s 9(1)(a) read with s 10(1)(a) of the Extradition Act (Cap 103, 2000 Rev Ed) (“the Extradition Act 2000”). The Applicants were apprehended on 25 October 2011 and held in remand until their committal hearing on 9 and 12 December 2011. On 10 February 2012, the DJ committed the Applicants to custody under a warrant of commitment under s 11(7) of the Extradition Act 2000. Pending extradition, the Applicants sought an Order for Review of Detention before me under s 417 of the Criminal Procedure Code 2010 (Act No 15 of 2012) (“CPC 2010) (previously known as a writ of habeas corpus). The State, an interested party to the proceedings, opposed the summonses for an Order for Review of Detention. On 6 August 2012, just before judgment was to be delivered, a question arose as to whether the summonses for an Order for Review of Detention should have been filed as criminal motions under the CPC 2010, rather than originating summonses under O 54 of the Rules of Court. The High Court in Karuppah Alagu v The Minister of Home Affairs, The Attorney-General of Singapore & Anor [1992] SGHC 72 (“Karuppah Alagu”) noted that in extradition proceedings, an application for a writ of habeas corpus to be issued should be made under the old CPC (or the CPC 2010 in this case) instead of O 54 of the Rules of Supreme Court 1970 (or O 54 of the Rules of Court in this case). The court in Karuppah Alagu regarded the procedural irregularity as technical and proceeded to hear the application. In this case, I directed the Applicants to file criminal motions under the CPC 2010 on 6 August 2012 after counsel stated that no changes to the affidavits or submissions were necessary.

4. [3]

   [3] The requirements for a warrant of commitment to be issued are set out in s 11(7) of the Extradition Act 2000:

5. The terms “extradition crime” and “fugitive” are also relevant to the requirements set out in s 11(7) of the Extradition Act 2000, and are defined under s 2 of the Extradition Act 2000:

6. [4]

   [4] The provisions of the Extradition Act 2000 are subject to any limitation or condition in the extradition treaty between the Singapore and the US (“The Singapore-US Treaty”). The US is recognised as a “foreign State” under the Extradition Act 2000, and unlike the case with a “declared Commonwealth country”, a treaty for extradition must be in place between the two countries for the extradition of fugitives. The treaty determines the scope of the parties’ mutual obligations for the extradition of fugitive criminals. The Singapore-US Treaty is derived from the extradition treaty of 22 December 1931 entered into between the United Kingdom (“UK”) and the US (“the UK-US Treaty”) given effect to by the US Order in Council. The “Extradition Acts 1870 to 1906” (which were further amended and consolidated into the Extradition Acts 1870 to 1935 – henceforth termed “the Extradition Act 1870”) applied by Order in Council to the UK-US Treaty, and by s 17 of the Extradition Act 1870 (33 & 34 Vict c 52) (UK) extended to every “British possession” including colonies (see Sir Francis Piggott in Extradition: A Treatise on the Law relating to Fugitive Offenders (Kelly & Walsh Limited, 1910) at p 177). After Singapore’s independence, Parliament repealed the Extradition Act 1870 and the Fugitive Offenders Act 1881 (44 & 45 Vict c 69) (UK). Nonetheless, the UK-US Treaty continued to apply between Singapore and the US, as can be seen in the Exchange of Letters Constituting An Agreement Between the United States of America and Singapore for the Continued Application to Singapore of the United States/United Kingdom Treaty of December 22, 1931 Concerning Extradition (“Exchange of Letters”). Section 3(1) of the Extradition Act 2000 also provides that Part II would apply to the extradition arrangement between Singapore and the US:

7. The Extradition Act 2000 and its predecessor, the Extradition Act 1968 (Act 14 of 1968) were intended to govern the extradition arrangements with declared Commonwealth countries and foreign States, although in the case of foreign States, subject to the provisions in the treaty (see Singapore Parliamentary Debates, Official Report (22 May 1968) vol 27 at cols 426–427). In relation to foreign States including the US, Part II of the Extradition Act 2000 applies subject to “any limitations, conditions, exceptions or qualifications” in the US Order in Council (s 3(2), Extradition Act 2000). While the Extradition Act 2000 lays down the framework for extradition arrangements the Singapore-US Treaty determines the scope of the Extradition Act 2000 applicable to the arrangements with the US and may, for example, limit “the circumstances in which a fugitive offender can be arrested and surrendered” (Regina v Governor of Ashford Remand Centre, Ex parte Beese and Another [1973] 1 WLR 969 at 972–973).

8. [5]

   [5] The following conditions must be satisfied before the Applicants can be committed to await the Minister’s warrant for surrender to the US:

9. (a) There must be a duly authenticated foreign warrant issued in the US in respect of the Applicants;

10. (b) The Applicants must be “fugitives” as defined under s 2 of the Extradition Act 2000 read with Article 1 of the Singapore-US Treaty (“Issue 1”);

11. (c) The act or omission constituting the offence in Count One and Count Eight must constitute an offence in Singapore, had it taken place here (ie, the double criminality principle must be satisfied) (Issue 2”); and

12. (d) The offence made out by the Applicants’ conduct must fall under one of the categories of offences listed in Article 3 of the Singapore-US Treaty (“Issue 3”);

13. (e) The committing magistrate must be satisfied on the evidence adduced that the Applicants are liable to be surrendered to the US (“Issue 4”).

14. [6]

    [6] As to Issue 1, the DJ proceeded on the basis that the Applicants were “fugitives”. On Issue 3, the DJ found that the offence of conspiracy to defraud the US was an offence that fell within Article 3 the Singapore-US Treaty. The DJ found that the categories of offences enumerated under Article 3 of the Singapore-US Treaty were deliberately couched in broad terms to encompass both the “conduct test” (ie, that it is sufficient if the Applicants’ acts comprise conduct described in the list in Article 3) and the “ingredients test” (ie, that it is sufficient if the ingredients of the offence charged are similar to the ingredients of the listed category in Article 3). The DJ accepted that the extradition treaty “must be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. The DJ was of the view that “if Article 3 [of the Singapore-US Treaty] was intended to attract a strict application of the “ingredients test”, there would have been no reason for it to make reference to both ‘crimes’ and ‘offences’ [emphasis in original]”. Further, The DJ reasoned that “[i]n ordinary language, ‘crime’ denotes an action that constitutes an offence” and “some of the enumerated crimes or offences in Article 3 are couched in terms that are more descriptive of a course of conduct than any specific offence” (In the Matter of Wong Yuh Lan, Lim Yong Nam, Lim Kow Seng & Hia Soo Gan Benson [2012] SGDC 34 at [12]). Such a construction would give effect to the purpose of the Singapore-US Treaty to make adequate provision for the reciprocal extradition of criminals. Accordingly, the “conduct test” was adopted in interpreting the relevant provisions. The DJ was of the opinion that in any event, an actual fraud had been perpetuated on the US government and that the Applicants obtained the Company A modules and antennae from Company B through false pretences. Such conduct fell within paragraphs 17 and 18 of Article 3 of the Singapore-US Treaty, and Count One and Count Eight were thus extraditable offences.

15. [7]

    [7] The DJ then analysed the issue of whether the double criminality principle embodied in the definition of “extradition crime” in s 2 of the Extradition Act 2000 was met (ie, Issue 2). Applying s 9A of the Interpretation Act (Cap 1, 2002 Rev Ed) to this definition, the DJ held that the “conduct test” would promote the legislative purpose of the Extradition Act 2000, viz, to facilitate the extradition of fugitives. Thus, he found that the “conduct test” was to be preferred, and that the purposive approach to the construction of statutes took precedence over all other common law principles of interpretation (Public Prosecutor v Low Kok Heng [2007] 4 SLR(R) 183 and Ho Sheng Yu Garreth v Public Prosecutor [2012] SGHC 19). The DJ found that the alleged acts of the fugitives constituted an offence of abetment by conspiracy to cheat under s 415 read with s 109 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) if they had taken place here. The DJ was of the view that this was an offence described in paragraph 18 of Part I read with Part II of the First Schedule to the Extradition Act 2000. On Issue 4, the DJ held that his duty was to enquire whether there was some evidence, not inherently incredible, which if he were to accept as accurate, would make out the elements of abetment by conspiracy to cheat (what the DJ termed a “prima facie case”). The DJ found that a “prima facie case” of abetment by conspiracy to cheat was made out for both Count One and Count Eight.

16. [8]

    [8] Mr Jayaratnam, for the State, submitted that this Court should not re-hear the case and should limit itself to consider whether there was sufficient evidence to give the DJ the jurisdiction to make the order of committal. A court hearing an application for an Order for Review of Detention has the duty to correct both errors of law and can intervene where no magistrate directing his mind to the evidence could have reasonably concluded that there was sufficient and credible evidence to support a committal on a charge. The House of Lords in Regina v Governor of Pentonville Prison, ex parte Osman [1990] 1 WLR 277 at 290 (“ex parte Osman”), after reviewing the authorities, laid down the principles regarding the role of the court hearing an application for a writ of habeas corpus. The following principles are particularly helpful (at 300–301):

17. Thus, the Court may direct that an Order for Review of Detention be issued and order the person restrained to be released if it is satisfied that no magistrate would have committed the Applicants on the respective charges unless he made an error of law, such as applying the wrong principles of law in determining whether the requirements for extradition were satisfied (see also Tan Yock Lin & S Chandra Mohan, Criminal Procedure (LexisNexis, Looseleaf Ed, 2010) (“Tan and Mohan”) at para 2304).

18. [9]

    [9] The first issue (ie, Issue 1) is whether the Applicants are “fugitives” under the Extradition Act 2000. The Applicants were in Singapore when the acts set out in Count One and Count Eight of the Superseding Indictment were alleged to have been committed and had not stepped foot in the US. Mr Haq, counsel for Seng, Hia and Nam, argued that it was a misnomer to label the three persons as “fugitives” given that Seng, Hia and Nam had never stepped foot in the US throughout the time that the offences were allegedly committed. Mr Haq submitted that this was not a typical case of extradition involving persons who had committed a crime overseas and fled to Singapore to seek refuge. While it may be that a lay person’s understanding of “fugitive” would refer to persons who commit a crime in one country and flee to another, “fugitive” takes a different definition under the Extradition Act 2000 and the Singapore-US Treaty (as set out above at [3]). Article 1 of the Singapore-US Treaty is also pertinent:

19. [10]

    [10] The territory of the High Contracting Parties, which were the UK and the US at that time, is defined under Article 2 of the UK-US Treaty. Essentially, through Article 2, Article 1 applied to all territories under the parties’ exclusive administration or control which, in the case of the UK, included all British colonies and dominions overseas. The Extradition Act 1870, which applied to the UK-US Treaty, defined “fugitive criminal” under s 26 as “any person accused or convicted of an extradition crime committed within the jurisdiction of any foreign state who is in or is suspected of being in some part of Her Majesty’s dominions” and “fugitive criminal of a foreign state” as “a fugitive criminal accused or convicted of an extradition crime committed within the jurisdiction of that state”. It is not immediately apparent what the distinction between “fugitive criminal” and “fugitive criminal of a foreign state” is. However, it is likely that “fugitive criminal of a foreign state” refers to “fugitive criminals” who have been convicted or accused of committing an extradition crime while being physically present in the foreign state which is seeking extradition (“the requesting state”). “Fugitive criminals” would include persons who were not physically present in the requesting state but who were accused of committing criminal acts within the jurisdiction of the requesting state. In the explanatory notes to s 26 of the Extradition Act 1870, it was stated that:

20. In contrast, the view in Tan and Mohan (at para 652) is that the words “fugitive from that State”, used for example in s 6(1) and s 20(1) of the Extradition Act 2000, “implies presence for a time in [the requesting state]”. (Section 6(1) of the Extradition Act 2000 essentially provides that every fugitive from a foreign State to which Part II of the Extradition Act 2000 applies shall be liable to be apprehended and surrendered to that state as provided by Part II, subject to any limitations, conditions, exceptions or qualifications such as those provided for in the treaty, while s 20(1) of the Extradition Act 2000 provides for the same in relation to a declared Commonwealth country). This view is incongruous with the meaning of “fugitive” and “fugitive from a foreign State or declared Commonwealth country” in ss 2(1) and 2(2) of the Extradition Act 2000 respectively. The crucial part in the definition of “fugitive” in the Extradition Act 2000 is that the act or omission constituting the offence is committed within the jurisdiction of the requesting state as opposed to the physical presence of the “fugitive” within the requesting state. Thus insofar as Mr Haq is arguing that the Applicants are not “fugitives” because they had never been physically present in the US, that view must be incorrect.

21. [11]

    [11] The terms “fugitive” and “extradition crime” beg the meaning of “jurisdiction”. The issue is whether “jurisdiction” is limited to the territorial jurisdiction of the requesting state, or whether it only requires that the requesting state has the power under its laws to try the offender for an alleged offence whether the act or omission constituting the offence was committed within or outside its territory (the House of Lords in Regina (Al-Fawwaz) v Governor of Brixton prison and Another [2002] 1 AC 556 (“Al-Fawwaz”) took the latter view). This was considered in Son Kaewsa and others v Superintendent of Changi Prison and another [1991] 2 SLR(R) 180 (“Son Kaewsa”). The applicant, who was a Thai national, argued that he was not a “fugitive” given that he had never been to the US at any time. The court noted that the complaint did not allege that the applicant had been in the US at any time but that he had arranged for the heroin to be transported from Bangkok to the US. The criminal acts alleged against the applicant had taken place in Singapore, Hong Kong and Bangkok, and not in the US. The High Court was of the view that this argument had no merit by reason of s 2(2) of the Extradition Act 2000 which provided that “[a] reference in this Act to a fugitive from a foreign State or declared Commonwealth country shall be read as a reference to a fugitive accused of an extradition crime that is alleged to have been committed, or convicted of an extradition crime that was committed, at a place in that foreign State or declared Commonwealth country or within the jurisdiction of, or of a part of, that State or country” (at [36]). The High Court in Son Kaewsa then noted (at [37]) that:

22. [12]

    [12] Several interpretations are possible regarding the meaning of “jurisdiction” in the definition of “fugitive” under s 2(1) or s 2(2) of the Extradition Act 2000. The first is that only an “extradition crime” needs to have been made out against the person and that the “extradition crime” is committed within the requesting state’s jurisdiction, in the sense that that the requesting state has the power to try the offender. The second is that the person must not only be accused of or convicted of an “extradition crime” but that the act or omission constituting the “extradition crime” must have been committed within the territorial jurisdiction of the requesting state. The second interpretation would mean that “place within the jurisdiction of a foreign State or a declared Commonwealth country” (eg, in the definition of “fugitive”) refers to the territorial jurisdiction of requesting state, in contrast to a possibly wider meaning that can be derived from “place in or within the jurisdiction” (eg, in the definition of “extradition crime”) of the requesting state. The distinction would be less significant where jurisdiction over the criminal offence is to be exercised territorially in Singapore. Difficult issues could arise if jurisdiction over the offence can be exercised extraterritorially. An “extradition crime” would be made out even if the acts or omissions constituting the offence against the law of the requesting state were committed wholly outside the territorial jurisdiction of the requesting state. However, persons against whom an “extradition crime” have been made out would not be considered “fugitives” and are not liable to be surrendered to the requesting state under the Extradition Act 2000. For this reason, I am of the view that “place within the jurisdiction of [the requesting state]” should not be read as meaning “place in the territory of the requesting state”. On the facts of this case, I find that Seng and Hia are “fugitives” under the Extradition Act 2000, whereas, for reasons that follow, I hold that the conduct of Wong and Nam in Count One would not give rise to a criminal offence in Singapore, and they would not strictly be considered “fugitives”.

23. [13]

    [13] I turn now to Issue 2. The definition of “extradition crime” includes the essential feature that the conduct which is the subject of the charge in the extradition request must be punishable in both Singapore and the US. The principle of double criminality is captured in the definition of “extradition crime” under s 2(1) of the Extradition Act 2000:

24. Article 9 of the Singapore-US Treaty also has a double criminality requirement, couched in the following terms:

25. Double criminality in the context of extradition requires that a person be extradited if there is evidence that would justify his apprehension had the act or omission constituting the offence been committed in the state to which the extradition request has been made (“the requested state”). In order to do this, the allegations of fact must be transposed – for example, would a person residing in a foreign country (which is the status of the Applicants here vis-à-vis the US) who carried out the identical acts or omissions as alleged in Count One and Count Eight of the Superseding Indictment be guilty of a crime in Singapore, and be capable of facing extradition to Singapore? Lord Millett in Al-Fawwaz at [95] explained the purpose of the requirement of double criminality in extradition:

26. I agree entirely. The difficulty with the double criminality test lies in its application, which is controversial and varies in content from one jurisdiction to another. An overly technical approach is best avoided. Courts have affirmed that the double criminality principle does not require that both the requested state as well as the requesting state recognise the offence under identical labels. In In re Arton (No 2) 1 QB 509 (“In re Arton”), Lord Russell noted (at 517) that:

27. [14]

    [14] Double criminality is a doctrine applied by courts in various jurisdictions in different ways and with varying strictness. There is basically a choice between the “ingredients test” and the “conduct test”. The “ingredients test” looks for correspondence (and at its strictest, identity) between the elements of the foreign offence for which the fugitive is alleged to have committed and the elements of the local offence. The “conduct test” on the other hand requires the court to look at the conduct alleged against the fugitive and to determine whether the conduct would have been criminal had it been committed within the jurisdiction of the requested state. The “ingredients test” in its strictest form was adopted by the 3-2 majority in Government of Canada and another v Aronson [1990] 1 AC 579 (“Aronson”). The House of Lords had to consider s 3(1) of the Fugitive Offenders Act 1967 (c 68) (UK) (“Fugitive Offenders Act 1967”) of which s 3(1)(c) is in pari materia to the definition of “extradition crime” in s 2 of the Extradition Act 2000 and of particular relevance to the present case. Under the Fugitive Offenders Act 1967, a “relevant offence” for which extradition may be granted is one that falls within any of the descriptions set out in Schedule 1 to the Fugitive Offenders Act 1967 and is punishable for a term of 12 months or more (in the case of a Commonwealth country, under s 3(1)(a) of the Fugitive Offenders Act 1967), and for which “the act or omission constituting the offence, or the equivalent act or omission, would constitute an offence against the law of the United Kingdom if it took place within the United Kingdom ...” (s 3(1)(c) of the Fugitive Offenders Act 1967). The issue was whether the phrase “the act or omission constituting the offence” is more consistent with the “ingredients test” (ie, that the ingredients of the foreign offence disclosed in the charge must establish guilt of a corresponding local offence) or the “conduct test” (ie, that the totality of evidence relied upon to prove the charge would, if accepted, establish guilt of a corresponding local offence) (Aronson at 589). The majority preferred the “ingredients test”. Lord Bridge of Harwich, who was in the majority, explained (at 589–590):

28. Lord Lowry took a similar view, commenting at 608–609 that:

29. The dissent took the view that s 3(1)(c) of the Fugitive Offenders Act 1967 was capable of supporting the “conduct test”, and to adopt the “ingredients test” was “to look for exact correspondence between the definition of the crimes in the two countries and no scheme of extradition based on such a premise will ever be workable as has been recognised since the early days of the operation of extradition laws” (Lord Griffiths in Aronson at 593).

30. [15]

    [15] The broader “conduct test” was applied in In re Nielsen [1984] 1 AC 606 (“In re Nielsen”) (affirmed in Government of the United States of America and others v McCaffery [1984] 1 WLR 867 at 869 (“McCaffery”)) in the House of Lords’ consideration of s 10 of the Extradition Act 1870. Section 10 of the Extradition Act 1870 provided that “[i]n the case of a fugitive criminal accused of an extradition crime, if the foreign warrant authorising the arrest of such criminal is duly authenticated, and such evidence is produced as (subject to the provisions of this Act) would, according to the law of England, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England, the police magistrate shall commit him to prison, but otherwise shall order him to be discharged” and further defined “extradition crime” in s 26 as “a crime which, if committed in England or within English jurisdiction, would be one of the crimes described in the first schedule of this Act”. Lord Diplock held that the committing magistrate’s task was simply to decide whether the evidence produced by the requesting state would “justify the committal for trial of the accused for an offence that is described in the 1870 list (as added to or amended by subsequent Extradition Acts) provided that such offence is also included in the extraditable crimes listed in the English language version of the extradition treaty”. The House of Lords held that in cases concerning the extradition of a person accused of an “extradition crime” (as opposed to a person convicted of an “extradition crime”), the magistrate did not have the jurisdiction under s 10 of the Extradition Act 1870 to receive evidence on foreign law as to determine whether the foreign offence was similar in concept to the English offence. Only English law should be applied to the evidence in deciding whether guilt would have been established had the conduct taken place in England (In re Nielsen at 623–625, doubting the comparative exercise taken in In re Arton in this respect). In Lord Diplock’s view, whether it was proper to consider the criminal law of a foreign state would depend on the wording of the provision relied upon. Foreign law would have to be considered in cases where extradition is limited to crimes of a particular kind or cases concerning extradition of convicted persons (In re Nielsen at 621).

31. [16]

    [16] It has been said that the s 3(1)(c) of the Fugitive Offenders Act 1967 (which is in pari materia to the definition of “extradition crime” in the Extradition Act 2000) requires a stricter standard of double criminality as compared to the Extradition Act 1870, and the “ingredients test” should thus be adopted. Lord Bridge of Harwich in Aronson held that the approach In re Nielsen only applied to the Extradition Act 1870 and should not be followed when considering provisions under the Fugitive Offenders Act 1967 (Aronson at 590):

32. [17]

    [17] It seems to me that the distinction in the phraseology of the Extradition Act 1870 and the Fugitive Offenders Act 1967 alone does not favour one test over the other. The Law Lords in Aronson themselves differed in their views on the interpretation of the phrase “the act or omission constituting the offence”. The Privy Council in Werner Kurt Rey v Government of Switzerland and another [1999] 1 AC 54 (“Werner Kurt Rey”) in construing s 5(1) of the Extradition Act 1994 (No 8 of 1994) of The Bahamas (“The Bahamas Extradition Act 1994”) preferred the view of the dissent in Aronson. While the Privy Council accepted that s 5(1)(b)(ii) of The Bahamas Extradition Act 1994 was identical to s 3 of the Fugitive Offenders Act 1967, they emphasised that the search was for “the best contextual interpretation of the critical words” given that the words were contained in a differently worded statute (Werner Kurt Rey at 64). The wording of s 5(1)(b)(ii) could support the “ingredients test” as well as the “conduct test”. However, in the Privy Council’s view, the meaning in the light of the wording of the other provisions in The Bahamas Extradition Act 1994 leaned in favour of the latter. Among the reasons in favour of the “conduct test” was that “[t]he two supplementary subsections which follow upon section 5(1), viz. 5(2) and 5(3), respectively speak of an ‘offence constituted by an act’ and an ‘offence…constituted by acts’.” Section 8(2) of The Bahamas Extradition Act 1994 also required the particulars and facts supporting the extradition offence of which the fugitive was accused to be furnished. The Privy Council was of the view that there were features in the Fugitive Offenders Act 1967 that were material to the majority’s decision in Aronson, and these features were not present in The Bahamas Extradition Act 1994 (Werner Kurt Rey at 65). The majority in Aronson had “attached importance to the provisions of s 3(2) of the Fugitive Offenders Act 1967”, a provision in pari materia to limb (b) of the definition of “extradition crime” in the Extradition Act 2000. Section 3(2) of the Fugitive Offenders Act 1967 was not present in The Bahamas Extradition Act 1994. Section 3(2) of the Fugitive Offenders Act 1967 is, with respect, unclear on the issue of whether the “ingredients test” or “conduct test” should be adopted. Lord Griffiths in Aronson (at 593) in dissent found that s 3(2) of the Fugitive Offenders Act 1967 supported a reading of “broad similarity, not exact correspondence, of offence”. Furthermore, even where the definition of “extradition crime” in relation to countries like the US expressly referred to “conduct which constitutes an extradition offence” in s 137 of the Extradition Act 2003 (c 41) (UK), the House of Lords in Norris v Government of the United States of America [2008] 1 AC 920 (“Norris”) held that such language was on its face consistent with either approach ([87]–[88]):

33. [18]

    [18] I am of the view that the definition of “extradition crime” in s 2 of the Extradition Act 2000 read with Article 9 of the Singapore-US Treaty is capable of being interpreted using either approach. The DJ adopted the “conduct test”. The question ultimately is which approach would be more justifiable in balancing the interests of the individual without unduly frustrating the purpose of extradition treaties. Given that the content of double criminality has no fixed meaning, both the “ingredients test” and the “conduct test” can be adopted from a jurisprudential point of view. Nonetheless, policy and practical considerations lean in favour of the “conduct test”. Courts in favour of the “conduct test” generally advance four reasons in support: (1) that the “ingredients test” leads to the unenviable problem of the committing magistrate having to hear and make findings on issues of foreign law since that the elements of the foreign offence have to be examined; (2) the “ingredients test” frustrates extradition because the definition of crimes in various jurisdictions differ and it is not possible in most cases to find exact correspondence between the two; (3) the “conduct test” is becoming the preferred test in other jurisdictions; (4) the “conduct test” is consistent with the double criminality rule because the accused’s conduct would still make out a recognised offence in the requested state on the evidence put forth by the requesting state (see Norris at [88]–[90] and Werner Kurt Rey at 64–65). For these reasons, I am also in favour of the “conduct test”.

34. [19]

    [19] I now turn to examine whether the Applicants’ conduct would, if it had taken place in Singapore, constitute an offence punishable in Singapore. The State has argued that the equivalent offence for which the Singapore court must determine has been made out on the evidence is abetment by conspiracy to cheat under s 415 read with s 109 of the Penal Code. Sections 107, 109 and 417 of the Penal Code provide as follows:

35. As I mentioned (at [13]), the central issue in the application of the “conduct test” is whether the allegations of fact, as transposed, would make out an offence under Singapore law (see generally, Regina v Governor of Pentonville Prison, ex parte Tarling (1978) 70 Cr App R 77 at 136 affirmed in ex parte Osman). Transposition must be applied sensibly, as emphasised by Lord Millet in Al-Fawwaz at [109]:

36. In Al-Fawwaz, the US requested the extradition of the applicant, an alleged member of an Islamic terrorist organisation, for conspiracy to murder American citizens, officials, diplomats and others to whom the Internationally Protected Persons Act 1978 applied in the US and abroad. Lord Millet was of the view that the appropriate transposition of the facts would require the English courts to consider whether a conspiracy to murder British subjects would be punishable in England (at [110]):

37. Transposition requires that the Applicants’ conduct as set out in the extradition request must be properly characterised and transposed before it can be determined whether the conduct would constitute an offence in Singapore. The House of Lords in Norris emphasized the importance of a proper transposition of the facts in determining whether the double criminality requirement is satisfied. In Norris, the US sought the extradition of the applicant, alleging that he and his co-conspirators organised meetings in which they agreed to charge prices for carbon products to certain levels or maintain or increase the prices of these products in the US and elsewhere. The applicant successfully argued on appeal to the House of Lords that he could not be extradited on the count of conspiracy to defraud buyers of carbon products by dishonestly entering into an agreement to fix, maintain and co-ordinate the price for the supply of carbon products in the US. The Divisional Court had accepted the argument that a price fixing arrangement could amount to common law conspiracy to defraud where the arrangement was kept secret to deceive customers into believing that they were paying a market price. The customers were misled into paying higher prices than they would have for the products. By ordinary standards of reasonable and honest people, this would be regarded as dishonesty (Norris v Government of the United States of America and others (Goldshield Group plc and another intervening) [2007] 1 WLR 1730 at [64]–[68]). The Law Lords disagreed with the Divisional Court’s view. The Law Lords found that there was no common law offence or statutory offence of price fixing in the UK during the relevant period where the acts were committed. The mere making or operating of a secret price fixing agreement did not, without more, amount to dishonesty and hence to a criminal offence. The House of Lords rejected the proposition that mere secret participation in a cartel could give rise to a conspiracy to defraud (at [63]):

38. [20]

    [20] The Law Lords, however, came to a contrary conclusion on the other counts relating to forms of obstruction of justice in the criminal investigation into price fixing in the carbon products industry conducted by the grand jury in the Eastern District of Pennsylvania. The applicant argued that it was not an offence under English law to conspire in England to obstruct criminal investigation into price fixing by the grand jury in Pennsylvania. This argument was rejected. The House of Lords endorsed the approach by Duff J in the Canadian case of In re Collins (No 3) (1905) 10 CCC 80 (“In re Collins”). In that case, the extradition request was for a charge of perjury by wilfully making a false statement of fact in an affidavit used in Californian proceedings. It was argued that that was not an extradition crime because it was not a crime in Canada to make a false statement of fact before a Californian court. Duff J held that this was not the correct approach because one should not focus on “the adventitious circumstances connected with the conduct of the accused, but upon the essence of his acts” (at [50]), and it would be necessary to “transplant” the environment which “include[s], so far as relevant, the local institutions of the demanding country, the laws effecting the legal powers and rights, and fixing the legal character of the acts of the persons concerned, always excepting, of course, the law providing the definition of the crime which is charged” (at [53]). The House of Lords in Norris thus held at [100] that:

39. The views expressed in Norris on the issue of transposition are pertinent to the present case. A correct characterisation and transposition of the facts, institutions, laws and circumstances are crucial for determining whether there is double criminality. I turn now to the conduct set out in Count One and Count Eight of the Superseding Indictment. I will deal with Count Eight first as the facts are more straightforward and because the issue of extraterritoriality discussed with respect to Count Eight will be relevant to Count One as well.

40. [21]

    [21] The US has alleged that Seng and Hia were engaged in a conspiracy with US persons to cause antennae manufactured by Company B (specifically, “2010-1 antennae” and “3120 antennae”, henceforth collectively termed as “antennae”) to be exported out of the US without a licence. This violated export regulations in the US. The Arms Export Control Act 22 USC § 2778 (“AECA”) in the US regulates and restricts the sale of arms, munitions, implements of war and “defense articles”. The Defense Directorate of Trade Controls (“DDTC”) of the US Department of State promulgates the International Traffic in Arms Regulations 22 CFR Parts 120-130 (“ITAR”), pursuant to authority granted under the AECA. The ITAR governs the export of “defense articles” and contains the United States Munitions List (“USML”) under 22 CFR Part 121.1. A person who wants to export “defense articles” must obtain a licence or prior approval from the DDTC. The 2010-1 antennae and 3120 antennae are classified as “defense articles” under ITAR and can only be exported with a licence. As is the case with shipment of most goods out of the US, documents including a Shipper’s Export Declaration (“SED”) must also be filed. It is unlawful under US law to use any “export control document” (such as invoices, declarations of destinations, SEDs, bills of lading, and airway bills) containing a false statement or misrepresenting or omitting a material fact to export “defense articles”.

41. [23]

    [23] The Superseding Indictment stated that the “object” of the conspiracy in Count Eight was to make money and obtain property by procuring 2010-1 antennae and 3120 antennae from Company B in violation of United States export regulations. It was alleged that Seng knew that the 2010-1 antennae and 3120 antennae required a licence for export. The US accused Cooperator C, Seng and Hia of conspiring to order 2010-1 antennae and 3120 antennae at a frequency range different from the stock frequency range so that Company B would not recognise the orders as a repeat of Seng’s previous orders and would not require an export licence and end-user declarations to be made. The US relies on companies to report violations and ensure compliance with US laws on trade in “defense articles”. The US also alleged that Hia had instructed Cooperator C to undervalue the antennae to circumvent the requirement for the filing of SEDs, “thus functioning to prevent detection [that these were defense articles] by US customs and law enforcement”. SEDs do not need to be filed for shipments of value below US$2,500. The essence of the conduct alleged to be unlawful is that of engaging in a conspiracy to breach regulations requiring a licence to be obtained for the export of controlled goods. The manner in which the antennae were ordered and obtained from Company B and the falsification of the shipment value on the airway bills took the form of overt acts done in furtherance of the object of the conspiracy. The complaint was that these overt acts prevented the US law enforcement agencies and Company B from detecting that the antennae were “defense articles” to be exported out of the US and requiring a licence to be obtained for export.

42. [24]

    [24] It was not disputed that an abetment by conspiracy to have controlled goods exported without a licence would be punishable in Singapore. There are regulations in Singapore governing the export of goods that can be used for military purposes including the Strategic Goods (Control) Act (Cap 300, 2003 Rev Ed) (“Strategic Goods (Control) Act”) (see for example, ss 5 and 7). The main argument advanced by Mr Haq was based on extraterritoriality, namely, that the acts allegedly committed by Seng and Hia took place entirely outside the US and the Singapore courts would not have jurisdiction to try acts of abetment occurring outside Singapore. Section 109 of the Penal Code did not have extraterritorial application until s 108B of the Penal Code came into force with effect from 1 February 2008. Criminal jurisdiction has traditionally been confined to the territory of the state. The Court of Appeal in Public Prosecutor v Taw Cheng Kong [1998] 2 SLR(R) 489 (“Taw Cheng Kong”) held that there was a presumption against the extraterritorial application of legislation (in absence of express words to the contrary) as a matter of comity and in observance of the sovereignty of other nations (at [66]–[69]). A strict application of the territorial principle would exclude jurisdiction over acts that occur partly or entirely outside the territory, notwithstanding that the effect of those acts was felt in the territory. Modern conceptions of the territorial principle have been adopted in other jurisdictions to deal with the difficulties that arise from adopting a strict territorial approach, such as problems identifying the place where the act or offence was committed (see generally, M Sornarajah, “Extraterritorial Jurisdiction Over crimes in Singapore, Malaysia and The Commonwealth” (1987) 29 Mal Law Rev 201 at 208; Sir Robert Jennings QC and Sir Arthur Watts QC (gen eds), Oppenheim’s International Law: Volume 1, PEACE, Introduction and Part 1 (Longman Group UK Limited, 9th Ed, 1992). For example, the English courts have recognised the applicability of both the subjective territorial principle (ie that jurisdiction can be assumed if an offence had been initiated in the territory but was completed outside the territory) and the objective territorial principle (ie that jurisdiction can be assumed if an offence had been initiated outside the territory but was completed within the territory). Another way courts have dealt with the problem of double criminality is by deeming that an act that begins or occurs outside the territory of the requested state but which is completed within the territory of the requested state is justiciable by the courts in the requested state (ie, “the continuing act” doctrine). The English courts have extended the territorial principle in order to assume jurisdiction, even if every element of the crime was committed abroad, if the “effects” of the crime were felt in England – such as in the case of a conspiracy entered into wholly abroad but the object of which was to commit an offence in England (see Somchai Liangsiriprasert v Government of the United States of America and Another [1991] 1 AC 225 (“Somchai Liangsiriprasert”)). Whatever the approach, it is clear that in jurisdictions like the UK and Canada, the territorial principle is increasingly being abandoned. Singapore on the other hand continues to adopt a strict territorial approach for the exercise of criminal jurisdiction. The Court of Appeal in Taw Cheng Kong emphasised that any recognition of the “effects” doctrine, for example, must be left in Parliament’s hands (at [85]–[88]):

43. [25]

    [25] Mr Jayaratnam urged me to adopt the position in England where a conspiracy made outside the territory, the object of which was to commit an offence in the territory, is justiciable even if no overt act pursuant to the conspiracy had yet occurred in England. The Privy Council in Somchai Liangsiriprasert considered this issue fully for the first time. The accused argued that such a conspiracy was not a common law crime unless either some overt act pursuant to the conspiracy took place in England, or alternatively, unless the impact of the conspiracy was felt in England. The Privy Council rejected this view. Lord Griffiths stated at 251:

44. The Court of Appeal in Taw Cheng Kong (at [87]) cited the passage above from Somchai Liangsiriprasert but was of the view that such change could only be effected by Parliament. Parliament has chosen to address the lacuna by introducing s 108B into the Penal Code to capture acts of abetment committed overseas of an offence committed in Singapore, and for the abetment provisions to extend to persons “who perpetuate their criminal intentions from afar” (Singapore Parliamentary Debates, Official Report (22 October 2007) vol 83 at col 2184). Section 108B of the Penal Code would apply to acts of abetment committed on or after 1 February 2008, and states that:

45. [26]

    [26] Prior to 1 February 2008, the court would assume jurisdiction only if the acts of abetment by conspiracy had taken place in Singapore. This approach is supported by Somchai Liangsiriprasert. The Privy Council’s view in Somchai Liangsiriprasert that an overt act in pursuance of the conspiracy need not occur in England for the conspiracy to be justiciable in England was made in the context of common law conspiracy, which is not part of our Penal Code. In relation to the charge of doing acts preparatory to trafficking a dangerous drug under s 4(1)(c) of the Dangerous Drugs Ordinance in Hong Kong, the Privy Council in Somchai Liangsiriprasert found (at 252) that this provision could not capture the accused person’s conduct as it did not have extraterritorial effect. The Privy Council held that in relation to a criminal statute, there is a strong presumption that it is not intended to have extraterritorial effect in the absence of clear and specific words. Similarly, the law on abetment by conspiracy in Singapore has been codified and it remains that in absence of words to the contrary, the Penal Code provisions are presumed to apply territorially only. Thus, in Yong Vui Kong v Public Prosecutor [2012] SGCA 23 (“Yong Vui Kong”), the Court of Appeal observed that s 109 of the Penal Code was only intended to criminalise acts of abetment, including abetment by instigation, which had taken place within the jurisdiction of Singapore (and by “jurisdiction”, the Court of Appeal presumably meant the “territorial jurisdiction” of Singapore). Yong Vui Kong (“Yong”) was convicted of trafficking in 47.27g of diamorphine and was sentenced to suffer death. Chia Choon Leng (“Chia”), Yong’s boss and supplier, had allegedly instructed him to deliver some “gifts” to Singapore in return for RM 2,000. This conversation took place in Johor Baru, Malaysia. Yong then brought the drugs into Singapore and was arrested. Chia was later arrested by Malaysian police and handed over to the Central Narcotics Bureau in Singapore. Chia was charged with, inter alia, instigating Yong in Johor Baru to transport approximately 1,227.02g (later reduced to 61.36g) of diamorphine from Johor Baru to Singapore. Chia was later given a discharge not amounting to an acquittal. Yong argued that the selective prosecution between him and Chia amounted to a breach of Art 12(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint). The issue was whether Chia by instigating Yong in Johor Baru to transport to drugs to Singapore had committed the offence of abetment under s 12 and 13 of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (“MDA”). The court held that, in absence of clear words, a domestic statute has no extraterritorial effect and acts committed outside the jurisdiction are presumed not to constitute an offence under the relevant domestic statute even if they would have amounted to an offence had they been committed in Singapore. Thus s 12 and s 13 of the MDA (which provided for the abetment of MDA offences) would not extend to an abetment that had taken place outside Singapore of an MDA offence to be committed in Singapore. Section 12 of the MDA applied to an abetment within Singapore of an offence committed in Singapore. Section 13(a) of the MDA applied to an abetment within Singapore of an offence to be committed outside Singapore which was punishable under a corresponding law in force in that place”, and s 13(b) of the MDA applied only to preparatory acts done within Singapore. Most significantly, the court also observed that s 108B of the Penal Code (which came into force on 1 February 2008) could have applied to Chia’s abetment by instigation but for the fact that Chia’s instigation of Yong took place before 1 February 2008 (Yong Vui Kong at [46]). Chia could not be prosecuted because all the alleged acts of instigation had taken place outside Singapore before 1 February 2008. Mr Jayaratnam argued that Yong Vui Kong could be distinguished because the Court of Appeal was only considering abetment by instigation and not abetment by conspiracy. Although the comments were made in the context of abetment by instigation rather than abetment by conspiracy, the Court of Appeal did not confine its observations to abetment by instigation. In addition, s 108B of the Penal Code is framed in broad terms and is clearly intended to address the lacuna for all acts of abetment occurring outside Singapore, including abetment by conspiracy. This view is also supported by the Parliamentary debates pertaining to the inclusion of s 108B into the Penal Code in which no distinction was drawn between abetment by conspiracy and other types of abetment (Singapore Parliamentary Debates, Official Report (22 October 2007) vol 83 at col 2184 (Assoc Prof Ho Peng Kee, Senior Minister of State for Home Affairs)):

46. [27]

    [27] I will deal briefly with a few other arguments made by Mr Jayaratnam regarding jurisdiction over acts of abetment by conspiracy that occur outside Singapore. Counsel relied on Son Kaewsa to argue that Seng and Hia’s acts would be captured by s 109 of the Penal Code. Two of the applicants in Son Kaewsa were charged with, inter alia, conspiracy to import heroin into the US, while the third, for knowingly and intentionally distributing more than 1kg of heroin in the US. The acts alleged against them had taken place in Singapore, Hong Kong and Bangkok and did not occur within the territory of the US. The applicants argued that their acts were not capable of constituting an extraditable crime. The High Court rejected the argument, and held that “[e]ven conspiracies to commit offences under [the Misuse of Drugs Act] Cap 185 which take place outside Singapore are within the jurisdiction of Singapore: see s 13”. The High Court in Public Prosecutor v Abdul Rashid and others [1993] 2 SLR(R) 848 (“Abdul Rashid”) cited the “continuing act” doctrine in response to the argument that the Singapore courts had no jurisdiction over an abetment that occurred in Malaysia. In Abdul Rashid however, the court was of the view that the accused’s physical presence when he subsequently travelled to Singapore after abetting his co-accused in Malaysia to “smuggle” the goods into Singapore “neutralised counsel’s submission on the issue of jurisdiction”. It would suffice to state that Son Kaewsa and Abdul Rashid must be read in the light of the observations in Yong Vui Kong on the construction of s 13 of the MDA and the issue of extraterritoriality. Mr Jayaratnam also argued that since the acts done by Cooperator C had taken place within US territory, this was sufficient to render Seng and Hia triable for abetment by conspiracy in Singapore had the facts been transposed. Counsel’s argument cannot be correct in view of Yong Vui Kong. Chia’s acts were not deemed to be criminally punishable in Singapore, notwithstanding that the offence was carried out by Yong in Singapore.

47. [28]

    [28] A pertinent question that arises on the facts is whether Seng and Hia’s acts of abetment were indeed committed outside Singapore. The communications between Seng, Hia and Cooperator C in relation to the purchase of the antennae took place largely by email. These emails are presumably relied upon to show that Seng and Hia engaged Cooperator C in a conspiracy to have the antennae exported without a licence and were the “acts” of abetment. An email from Cooperator C dated 5 November 2006 to “Eric Lim” (ie Seng) stated that:

48. Negotiations between “Eric Lim” and Cooperator C were not conclusive. Subsequently, Seng under the alias of “James” sent an email dated 15 February 2007 to Cooperator C stating that:

49. “James” then sent an email to Cooperator C on 16 February 2007 requesting that a “proforma invoice for 2010-1 [antennae] for 50 pcs” be issued and:

50. The issue is whether email sent from a person located outside Singapore to a person in Singapore as a means to engage the latter in a conspiracy can be said to be acts of abetment by conspiracy that took place in Singapore. The English courts incline to the view that such acts would have been committed within the jurisdiction of England. In Regina v Baxter [1972] 1 QB 1, the defendant had been charged with three offences of attempting to obtain property by deception. He had sent a letter posted in Northern Ireland to Liverpool football pools promoters, falsely representing that he had made accurate forecasts and was entitled to receive a winning dividend. The defendant argued that the English court had no jurisdiction to try him as the attempt was complete when the letters were posted in Northern Ireland and no criminal act had been committed in England. While the English Court of Appeal discussed and rejected this argument in the context of the offence of attempt, the following pronouncements are helpful (at 12):

51. The cases of Rex v Rogers [1877] 3 QBD and Rex v Oliphant [1905] 2 KB 67 were cited with approval in the context of abetment by conspiracy under the Penal Code (Act No 45 of 1860) (India) in Emperor v Chhotalal Babar (1912) 14 BOMLR 147. I would prefer not to draw esoteric distinctions between different modes of communication. It seems artificial to regard an act of abetment as having been committed in Singapore only if the communications had taken place during a physical meeting in Singapore, as opposed to a phone call, email or letter from an abettor overseas to a person in Singapore. I am of the view 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. The position may be different if the email was not received by Cooperator C due to some technical default, for example. Cooperator C would not have been aware of the request for quotations for the antennae and Seng and Hia could not have engaged him in a conspiracy. Communication would have to be made to Cooperator C for there to be a “meeting of minds” on the facts of this case. In my view, if the allegations of fact were transposed, Seng and Hia’s acts of abetment would be justiciable in Singapore.

52. [29]

    [29] In respect of Count One, the US has accused Wong and Nam of conspiring with Larijani, Paya Electronics Complex (“Paya Electronics”), Opto Electronics Pte Ltd (“Opto Electronics”), NEL Electronics Pte Ltd (“NEL”), Corezing, Seng and Hia to defraud the US “by impeding, impairing, obstructing, and defeating the lawful function of [the US] in administering its export laws and regulations by exporting approximately 6,000 modules from Company A in the State of Minnesota by dishonest means”. The Company A modules were shipped from US to Singapore, and then to Iran. The US has imposed sanctions against the export of goods, technology and services from the US or by a US person (wherever located) to Iran since 15 March 1995. The International Emergency Economic Powers Act 50 USC §§ 1701–1706 authorises the President of the US to impose economic restrictions on a foreign country in response to an unusual or extraordinary threat to the national security, foreign policy, or economy of the United States. On 15 March 1995, President William Jefferson Clinton issued Executive Order No 12957 which stated that “the actions and policies of the Government of Iran constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States” and declared it “a national emergency to deal with that threat”. Executive Order No 12957 was expanded and continued by Executive Order Nos 12959 and 13059) (“the Executive Orders”). The Executive Orders were given effect to by the Iranian Transaction Regulations 31 CFR Part 560 (“ITR”). The export of goods from the US or by a US person (wherever located) to Iran is prohibited without prior authorisation or licence from the US Department of the Treasury. The ITR also prohibits transactions by any US person or person within the US that evades or avoids or has the purpose of evading or avoiding these prohibitions. SEDs must also be filed for the export of US goods and technology. Exporters, shippers and freight forwarders are also required to complete Bureau of Industry and Security Form 711 (“BIS Form 711”) setting out the identity of end-users and intended end-use of US-origin goods that are exported to other countries. The identity of the end-user may determine whether the goods may be exported at all, and whether specific authorisation from the US government is required for export. Exporters are required to declare on the BIS Form 711 that the “facts contained in this statement are true and correct” and are warned that “the making of any false statement or concealment of any material fact... may result in imprisonment or fine, or both”.

53. [31]

    [31] The US alleged that there were several “commonalities” in the five shipments that furthered the conspiracy. It alleged that Corezing, NEL and Opto Electronics entered into the series of “business agreements” in which Corezing would sell the Company A modules to NEL at a profit, and NEL would then sell the Company A modules to Opto Electronics at a profit. A representative from NEL would inform Wong of the arrival of the Company A modules in Singapore, and the goods would be sent “port to port” to Opto’s freight forwarder. Wong would then arrange for the goods to be flown to Larijani in Iran. The US claimed that Corezing’s purchase of the Company A modules was actually “a carefully crafted and structured transaction meant to shelter the true end-user from the knowledge of Company A”. The US also alleged that Corezing caused Company A to make false representations to the US government. For each of these shipments, Company A used information provided by Corezing to prepare SEDs for the shipments. The “ultimate consignee” was stated to be “Corezing International”, and the “country of ultimate destination”, “Singapore”. For the final three shipments made between October 2007 to February 2008, Corezing had also completed a BIS Form 711 (known as an end-user statement) stating that the “ultimate consignee” was NEL and that the items would be used for “Telecom Project” which Company A submitted to the US authorities. Company A had requested for the BIS Form 711 after the third shipment was held up in the US for what Company A advised to be “a discrepancy in the reporting of ECCN numbers”. Seng informed Company A on 19 November 2007 by email that Corezing was not able to reveal the name of the customer due to a non-disclosure agreement. However, he stated that the issue could be resolved if Company A signed an undertaking not to approach Corezing’s customer. Company A executed the agreement accordingly. The BIS Form 711 were signed under Nam and Seng’s names. The US claimed that the Applicants were aware that Company A’s modules were US-origin goods, through their correspondence with Company A’s representatives and the sales agreements, and that Larijani, Wong and Nam were directly aware of the restrictions on the export of US-origin goods to Iran. The Superseding Indictment referred to two email dated 25 October 2007 and 4 February 2008 in which Nam sent news articles to Larijani on pressure put on the United Arab Emirates by the US government to “crack down on companies believed to be smuggling equipment to Iran to build explosive devices killing American soldiers in Iraq and Afghanistan”, and that a Singapore permanent resident had been arrested in the US for exporting US-origin goods to Iran. Special Agent Dean A Scheidler in his affidavit dated 28 September 2010 stated that:

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