Baseless extradition request for Meng doomed to fail

So much for human rights in Canada! For just telling the truth and trying to maintain good China-Canada relations, Canada’s ambassador to China, John McCallum, was sacked by his Prime Minister Justin Trudeau!

McCallum is a former university professor, a former minister of national defense and member of the Queen’s Privy Council for Canada. So it’s a fair bet he knows what he is talking about. In particular, he had said that Huawei’s Chief Financial Officer Sabrina Meng Wanzhou, now under detention in Canada at the United States’ request, has a strong case against extradition. It’s worth pointing out that what the ambassador said is true and fits in with the exercise of international extradition law.

Now that the US Justice Department has made a big show of unveiling 23 charges against Huawei and Meng on Tuesday, the same day China’s Vice-Premier Liu He arrived in the US for a critical high-level US-China trade talk, it just demonstrates that this could not be a coincidence, but simply that the extradition request is timed to give the US side extra leverage.

The 24-page indictment paper makes three allegations: First, Huawei defrauded four banks into clearing transactions with Iran in violation of US sanctions through a subsidiary called Skycom. Second, Huawei had attempted to steal trade secrets from a US firm and third, Huawei obstructed US criminal investigation on this case.

But amazingly in this lengthy indictment paper, there were only two brief mentions of Meng’s alleged involvement! Firstly in Paragraph 18 stating that Meng had a meeting with “Financial Institution 1” where she allegedly made some untrue statement and secondly in Paragraph 20 when she traveled to the US, it was found that her “device” contained a deleted message.

Under the first allegation, in June 2013, Meng was said to have attended a meeting with the financial institution where she presented a PowerPoint in Chinese. Although the indictment did not name the bank and its location, there is good reason to believe that it is the HSBC office in Hong Kong. It was alleged that the PowerPoint presentation contained misrepresentation regarding Huawei’s ownership and control of Skycom. One had to scrutinize the details of the PowerPoint to ascertain whether it did amount to a false and deliberate misrepresentation but in any event, if the meeting indeed took place in Hong Kong, this is an extraterritorial offense as far as the US is concerned and the ambassador is correct to say that such offense should not be extraditable based on Canadian extradition law.

The second allegation referred to early 2014 when Meng traveled to the US, arriving at John F. Kennedy International Airport, she was found to be carrying “an electronic device that contained a file in unallocated space — indicating that the file may have been deleted — containing the following text: Suggested talking points re Iran/Skycom: Huawei operation in Iran comports with the law...; relationship with Skycom is normal business cooperation, etc.” Anyone with corporate experience can see that these are nothing but company positions for the speaker to emphasize, and probably distributed to all executives. It hardly constitutes Meng’s mens rea.

Hence one can see that the extradition case against Meng was not based on any solid grounds. It is also extraordinary as the US government never prosecuted any top executive for sanctions violation. In 2015, Deutsche Bank was fined $258 million for violating American sanctions on Iran and Syria. But none of the executives involved in the scheme were indicted. HSBC was found to have allowed its branches to facilitate money laundering and in the end, suffered huge monetary penalty. But never had any HSBC executives charged with any criminal offense. So why should the US go after a company executive now? Further, why, of all the executives in Huawei and Skycom, just prosecute Meng in this case?

Also as the ambassador had pointed out, the background to the alleged offenses were a breach of the US Iranian Transactions and Sanctions Regulation which proscribed the export of US goods, technology and services to Iran. This criminal offense is unique to the US while Canada never signed up to it. It is therefore against the basic principle of extradition that it should be allowed only under reciprocal offenses of the two countries.

A case validating this principle was encountered in Hong Kong in 1974 when the Independent Commission Against Corruption applied to extradite the fugitive chief police superintendent Peter Godber from Britain for the offense of possessing assets beyond his legitimate earnings. The UK rejected it on the ground that there was no such reciprocal offense in Britain. In the end, the ICAC had to search for evidence to eventually extradite Godber for a simple bribery offense.

Most of all, judging from all the circumstances, it is apparent to any reasonable mind that this is but a political ploy by the US to thwart China’s high-tech development which was seen as threatening the US’ leadership. True to his impetuous character, US President Donald Trump slipped up by declaring that he would intervene in the case to secure a trade deal with China! Any reasonable judge in Canada should come to the conclusion that this is a politically motivated extradition and should reject the US request outright and free Meng at the earliest opportunity.

The author is an adjunct professor of HKU SPACE and a council member of the Chinese Association of Hong Kong and Macao Studies. He is also a former deputy commissioner of the ICAC and now an international anti-corruption consultant.