INTERPOL RED NOTICE & INTERNATIONAL EXTRADITION

(Guardrail of Confidentiality: Target persons anonymised)

Legal Interpretation: Double criminality (also known as dual criminality) is a foundational legal principle of reciprocity in international extradition law which stipulates that a person may only be extradited from one country to another if the act they are accused of constitutes a criminal offence in both jurisdictions.

1. United States v W

INTERPOL Red Notice — Three drug charges, each carrying a maximum penalty of life imprisonment without parole.

The United States Department of Justice (DOJ) submitted an extradition request to the New Zealand Government.

The accused was alleged to be a Hong Kong-born leader of the 14K triad and a core figure in a narcotics cartel.

The extradition request originated from the well-known “Hayward heroin bust” in Hayward, California in 1991, the largest seizure of No. 4 heroin in United States history, with an estimated street value of USD 30 billion. The operation was jointly conducted by the Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration (DEA). The accused was alleged to be the mastermind overseeing the shipment of narcotics into the United States.

Upon being instructed, Josiah Wong personally embarked on an extensive investigation, carrying out overt and covert inquiries with witnesses and informants in Hong Kong, Australia and the United States. While in the United States, he secretly met with former FBI agents, former federal prosecutors and members of the criminal underworld in order to secure critical intelligence. Subsequent tracing of leads to a courthouse in Los Angeles uncovered serious evidentiary inconsistencies, ultimately resulting in the withdrawal of all charges by the United States.

One of the charges was withdrawn during the New Zealand proceedings, and the remaining two were withdrawn after the accused was extradited to New York.

Upon completion of the legal process in New York, the accused voluntarily surrendered himself to the Hong Kong Police to face charges relating to drug trafficking in 1985.

2. Hong Kong Special Administrative Region v W

INTERPOL Red Notice — Outstanding arrest warrant — Two counts of possession of dangerous drugs for the purpose of unlawful trafficking in Hong Kong in 1985, each punishable upon conviction by life imprisonment.

Hong Kong and the United States simultaneously submitted extradition requests to New Zealand.

Strategic advice was given for the accused to consent to the HKSAR extradition request, while allowing the United States request to take priority, in order to streamline legal proceedings and prevent “legal ambushes”.

3. R v L

INTERPOL Red Notice — Two counts of trafficking commercial quantities of controlled drugs and conspiracy (under the Australian Criminal Code and Crimes Act), each carrying a maximum penalty of life imprisonment.

Criminal law — Extradition proceedings in a foreign jurisdiction — The accused was a foreign national. The Australian Government lodged an extradition request with [Country A] (a civil law jurisdiction). Within less than 24 hours of the accused’s arrest, the extradition process was bypassed and the court formally terminated the extradition proceedings.

The common law doctrine of “abuse of process” in Australia — Application for a permanent stay of prosecution on grounds of illegality and procedural abuse.

The accused was denied a committal hearing in [Country A] — Conflict of interest where prosecutors in [Country A] acted simultaneously as translators and legal advisers — The accused had no access to independent legal counsel or translator — He was inveigled to sign a statement in the language of [Country A] which he did not understand, consenting to surrender from the entirely unrelated [Country G] to [Country U] instead of Australia — Deprivation of personal rights.

Violation of the Universal Declaration of Human Rights — Whether Australia and [Country A] colluded to bypass extradition procedures — Whether the manner in which the accused was delivered to Australia justified a permanent stay of prosecution — Whether unlawful or irregular acts of a foreign state may be reviewed and adjudicated by Australian courts under Australian law.

4. R v T

The accused was alleged to be the leader of a global drug cartel.

Criminal law — Extradition proceedings in a foreign jurisdiction — The accused was a citizen of [Country C] and was deported by [Country A] to [Country C] via [Country B] (a civil law jurisdiction); he was arrested in [Country B] during a flight layover. The Australian Federal Police (AFP) subsequently sought his extradition from [Country B].

The court of [Country B] ruled that the accused was extraditable and ordered his surrender to Australian authorities.

The common law doctrine of abuse of process in Australia — Consideration of application for a stay of prosecution on the basis that the deportation route via [Country B] constituted an abuse of process, allegedly pre-arranged between the AFP and [Country B], in violation of the deportation order issued by [Country A] (the proper destination being [Country C], not [Country B]).

Issues in dispute included: whether the judiciary of [Country B] breached its constitution (the inviolability of the accused’s person) by entertaining Australia’s extradition request rather than allowing proceedings to occur in [Country C]; whether the AFP interfered with the internal affairs of [Country A] and perverted justice by orchestrating the layover and arrest; whether there was collusion between government agencies; whether the Universal Declaration of Human Rights was violated; and whether the legality of foreign governmental acts under foreign law is subject to review by Australian courts under Australian law.

5. R v D

INTERPOL Red Notice — Two counts of trafficking commercial quantities of controlled drugs and conspiracy (under the Australian Criminal Code and Crimes Act), each punishable by life imprisonment.

Criminal law — Circumvention of extradition procedures in a foreign jurisdiction — Allegations that Australian and foreign authorities conspired to unlawfully procure the accused’s return to Australia for prosecution.

The accused was allegedly forcibly taken by law enforcement officers in [Country A] and flown to [Country B] (a civil law jurisdiction) without a valid entry visa, rendering his presence in [Country B] unlawful from the outset.

The common law doctrine of abuse of process in Australia — Despite the existence of an extradition treaty between [Country B] and Australia, the accused was deported to Australia without undergoing any extradition proceedings.

Consideration of the issues of abduction, false imprisonment, “judicial kidnapping” and “extradition by the back door” in support of an application for a stay of prosecution.

Whether the Universal Declaration of Human Rights was violated — Whether the accused was returned to Australia in disregard of available extradition procedures in [Country B], in breach of international law — Whether Australian courts have jurisdiction and supervisory powers to inquire into the bypassing of extradition procedures.

6. United States v Z

Extradition request by the United States — Multiple bank fraud indictments.

Criminal law — Extradition — Jurisdictional issues — The United States sought extradition of the accused from [Country A].

Second-opinion legal advice provided on whether the United States, [Country A] and [Country B] had jurisdiction over the alleged conduct occurring in [Country B].

Double criminality — Sufficiency of evidence — Human rights — Whether a defence based on political motivation and abuse of process by authorities in [Country A] could be advanced.

The concept of “deprivation” in fraud and the inapplicability of the “mirror principle” — Extradition does not require all elements of offences to align perfectly — Competing evidence raised in extradition proceedings must be determined by the trial judge (in the United States), not the extradition judge — Consideration of alternative strategies to resist the US extradition request.

7. Former Chief Executive Officer of a New Zealand Commercial Enterprise

Criminal law — Potential extradition issues — Legal advice on possible extradition requests from foreign states and New Zealand, depending on the individual’s location when commercial fraud allegations emerged — Double criminality — New Zealand Extradition Act.

8. CGY

INTERPOL Red Notice — Allegation of misappropriation of funds of a public enterprise in [Country A] — The accused was sought for extradition.

The New Zealand Department of Internal Affairs refused the accused’s citizenship application on character grounds.

Subsequent extensive investigations revealed that the allegations were fabricated, colluded in by the complainant and government officials.

New evidence was submitted to the INTERPOL National Central Bureau (NCB) in Wellington, New Zealand, leading to the immediate removal of the Red Notice, and the accused’s citizenship application was ultimately approved.

9. CSC

INTERPOL Red Notice — The accused was a former mayor of a city in [Country A] and chairman of a quasi-state enterprise, alleged to have misappropriated company funds — Double criminality — Consideration of ad hoc extradition arrangements under the New Zealand Extradition Act — Claims of political persecution and false allegations — Strategies to contest a potential extradition request.

10. Senior Executive of an International Mining Corporation

A mine collapse in [Country A] resulted in multiple fatalities — Criminal charge of causing death by negligence — Double criminality issues — No bilateral extradition treaty between [Country A] and New Zealand — The executive was a New Zealand citizen — Consideration of ad hoc extradition arrangements and response strategies under the New Zealand Extradition Act.

Consideration was also given to the legal implications of the Pike River Mine Disaster on the West Coast of New Zealand’s South Island on 19 November 2010, in which 29 men lost their lives.

11. Former Senior Government Official of a European Country

New Zealand citizen — Alleged involvement in commercial crime in [Country A] — Double criminality — No existing extradition treaty between [Country A] and New Zealand — Claims of political persecution — Consideration of ad hoc extradition arrangements and response strategies under the New Zealand Extradition Act.

12. Former Mayor of an Eastern European Country

New Zealand citizen — Corruption allegations — Double criminality — No current bilateral extradition treaty with New Zealand — The New Zealand Extradition Act permits extradition without a treaty — Claims of political persecution — Given the nature of the case, the prospect of an extradition request is minimal.

13. Advising an Australian Law Firm

INTERPOL Red Notice — The accused was a prominent business magnate from [Country A] residing in Australia on a visitor visa — A Red Notice was issued at the request of the National Central Bureau (NCB) of [Country A] for bribery charges.

Jurisdictional issues — Even if the accused had become a permanent resident of another city at the time the arrest warrant was issued, [Country A] retained absolute jurisdiction over the alleged offences — Regardless of nationality, the government of [Country A] has undisputed jurisdiction over the alleged crimes.

Advice was given to apply to the Commission for the Control of INTERPOL’s Files (CCF) for deletion of the Red Notice on grounds of non-compliance with Article 83 of the Rules on the Processing of Data — Other applicable INTERPOL rules and provisions — Risk of deportation — Whistleblower claims — Fabrication of evidence by officials — Human rights issues — Political persecution — Double criminality — No bilateral extradition treaty between [Country A] and Australia, though Australia may enact ad hoc regulations via the Governor-General to allow non-treaty extradition on a case-by-case basis — Consideration of whether the charges were ostensibly bribery but substantively political in nature, rendering them non-extraditable.

14. BCD

INTERPOL Red Notice — The accused was a permanent resident of New Zealand and former chairman of the board of a listed company in [Country A] — A Red Notice was issued by the National Central Bureau (NCB) of [Country A] for bribery allegations.

Absence of double criminality — No bilateral extradition treaty between [Country A] and New Zealand — Abuse of process — Procedural fairness — Fabrication of evidence.

Commercial disputes arising from mergers, acquisitions and share buy-back arrangements — Examination of the relationship between the accused and the shareholder-complainant — The complainant acted as a proxy for a government official — Allegations not made in good faith — Weaponisation of the INTERPOL system to pursue private civil disputes as a form of retaliation — Violations of the Universal Declaration of Human Rights and the INTERPOL Constitution.

15. Cross-Border Credit Card Debt

INTERPOL Red Notice — A New Zealand resident accused of credit card fraud in a Middle Eastern country — Serious doubt as to double criminality — Jurisdictional issues — Abuse of the INTERPOL system — Criminalisation of private credit card debt to trigger an international arrest warrant.

16. YXZ

INTERPOL Red Notice — The accused was a New Zealand resident and former director of a securities company in [Country A] — Allegations of misappropriation of funds — Double criminality — No existing bilateral extradition treaty between [Country A] and New Zealand — Consideration of the feasibility of ad hoc extradition arrangements and response strategies.

17. Advising a Hong Kong Law Firm on the Extradition Treaty between the HKSAR and New Zealand

INTERPOL Red Notice — The target person was reportedly subject to a Red Notice for commercial offences — The extradition treaty between Hong Kong and New Zealand was officially suspended on 28 July 2020.

However, the Fugitive Offenders Ordinance still permits extradition on a “one-off” basis — Section 3 of the Ordinance empowers the Chief Executive to make surrender orders to jurisdictions with which Hong Kong has no bilateral treaty or agreement — Such orders are subject to scrutiny by the Legislative Council and judicial review — Legally possible, but highly unlikely in the current political climate.

18. YCM

INTERPOL Red Notice — The accused was wanted for operating a Ponzi scheme in [Country A] — Double criminality and jurisdictional issues — No existing bilateral extradition treaty between [Country A] and New Zealand — Examination of the feasibility of ad hoc extradition arrangements and response strategies.

Issues concerning human rights, fair trial and judicial independence in [Country A] — Reference to the legal implications of the case Minister of Justice v Kyung Yup Kim [2022 | NZSC 44].

19. RJZ

INTERPOL Red Notice — The accused was wanted for illegally raising funds for an education enterprise in [Country A] — Double criminality — No extradition treaty between [Country A] and New Zealand — A one-off ad hoc extradition arrangement may be made under the New Zealand Extradition Act — Examination of feasibility and response strategies.

Issues concerning human rights, fair trial and judicial independence in [Country A] — Reference to the legal implications of the case Minister of Justice v Kyung Yup Kim [2022 | NZSC 44].