UNABLE TO ESCAPE LONG ARM OF CHINA’S LAW EVEN AFTER BEING SENT BACK HOME
A prisoner-swap treaty means a businessman is serving a lengthy sentence in Australia for acts that would probably not be criminal there
Since he was arrested in 2010, Matthew Ng has lost his US$100 million business, his health and his family. He has been kept apart from his wife and three younger children, whom he sees only sporadically. His eldest daughter fell into a deep depression, stopped eating and died.
An Australian businessman who had been working in China, Ng was sentenced by a Chinese court in 2011 to more than 12 years in prison on bribery and fraud charges. His lawyer contends that the case was fabricated to allow a Chinese state-owned company to confiscate his business.
In 2014, he was transferred to Australia under a bilateral treaty that allows prisoners to serve their sentences in their home countries.
Since then, he has been incarcerated at a state prison in rural Australia for crimes he probably did not commit, and which his lawyer says would not even be crimes in Australia.
“Australia has imprisoned in Australia one of its own citizens as a result of the injustice and disregard of human rights within the Chinese legal system,” said the lawyer, Tom Lennox.
In China, he said, “You can complain but it makes no difference. But in Australia it should be different.”
Ng has petitioned Australian AttorneyGeneral George Brandis for a pardon and his immediate release from the prison, St Helier’s Correctional Centre in Muswellbrook, about 200km north of Sydney.
Mr Brandis declined to comment on the case, but his office said in an email that the prisoner swap treaty between Australia and China does not allow the Australian government to make “any judgement as to the reasonableness or otherwise of the sentence imposed by the foreign country”.
Ng’s problems began when he tried to sell a travel company he had started in Guangzhou, in southern China. In the process of building the company, Et-China, he bought a majority stake in a struggling state-owned company, GZL, for US$10 million. GZL was a subsidiary of Lingnan, a hotel and travel conglomerate owned by the Guangzhou government.
In 2010, Swiss travel giant Kuoni offered to buy Ng’s company for $125 million.
Lingnan then demanded to buy back its GZL shares at the original selling price. Ng refused.
He was arrested and jailed for 13 months before he was finally tried. He was convicted of misappropriating company funds, misstating his company’s registered capital and bribing a director.
Ng’s trial lawyer, Chen Youxi, called the charges ridiculous. The bribery allegation, for instance, involved payments to a company director that had been publicly reported and taxed.
“The court does not have either enough evidence or legal basis for the sentence,” Mr Chen said after the trial.
A separate civil case in 2013 stripped Ng of his business assets.
Lingnan ended up acquiring Et-China’s assets “lock, stock and barrel”, said Christopher Rose, an Australian businessman who managed the company after Ng’s arrest. “It would be worth in excess of $1 billion today,” he said.
After Ng lost his appeal in the criminal case in 2012, his eldest daughter, Isabella, then 15, fell into a deep depression and became anorexic. She died in 2013.
His wife, Niki Chow, who Mr Lennox said was harassed by Chinese authorities, developed breast cancer, and was forced to bring her three youngest children home to Sydney without their father.
Since he was transferred to Australia, Ng has been able to see them occasionally and make phone calls to them limited to six minutes each.
His children “understand that I was charged in China and they know that China is a communist country”, he said. “But they don’t understand why I am locked up here.”
At 49, he is scarred and brittle, friends say. His physical health has improved in Australia, but he remains despondent.
“He is mentally fragile,” said a longtime friend, David Marquard, a director at Ernst & Young Australia. “He has been in jail far longer than he ever should have been, even if you believe he has done something wrong, which I don’t.” Corrective Services, the state prisons agency, denied a request to visit or interview Ng. The agency said it prohibits the news media from visiting jails and interviewing prisoners.
Through his lawyer, Ng protested his innocence.
“I have never confessed,” he said. “I would never tarnish my own name saying I did something that I did not do.
“Despite all they did to me and my family in China, I did not break. But now I am here, I must have a free hand to regain my life. I must have meaningful contact with my children and wife, and I must clear my name.”
Ng could qualify for release on parole this year, a concession under Australia’s sentencing laws. In China, he would have likely served his entire sentence. His parole would last until 2021.
As the first prisoner transferred under the 2011 treaty with China, his chances of review or a pardon are slim, according to several lawyers and a former official.
The attorney-general’s office said that while a transferred prisoner could apply for a pardon, the treaty’s success depends on “mutual respect for each country’s sovereignty” and the desire to allow prisoners to be close to family and rejoin Australian society.
According to Mr Lennox, Mr Brandis holds that the government has no right to review the case or the sentence. Several other lawyers agreed that the treaty obliged Australia to administer foreign sentences even when they may be repugnant to Australian values.
“If we agree to the terms of the treaty,” said Bret Walker, a Sydney lawyer and former president of Australia’s Law Council, “we have to accept the fact of criminal guilt for that conduct and the infliction of that length of imprisonment as a sentence, even though either or both of those aspects are quite outside the way Australia would approach the matter.”
Donald Rothwell, the dean of the Australian National University College of Law, said that Australia has some “capacity” under the treaty “to revisit” the sentence, but the bigger obstacles were political and diplomatic.
He and other lawyers warned that if Australia was not seen as upholding its side of the treaty, it could jeopardise the prospects for the 41 Australians now serving sentences in Chinese jails.
Mr Lennox disagrees. He contends that China no longer cares what happens to Ng. Moreover, he said, such potential consequences should not deprive his client of justice now.
“There are grounds in the treaty for Matthew to be released,” he said.
“But the government has washed its hands of him. It is as if they have moved on and left him stranded.”
would never tarnish my own name saying I did something that I did not do MATTHEW NG PRISONER