After three hearings, Meng was released on bail after paying 10 million bail including 7 million cash. It was the first crossing she had ever crossed.
Next, if the United States makes an extradition request to Canada, it will be a long period of extradition hearing.
Bail was decided by the Supreme Court of British Columbia, Canada, on the afternoon of December 11, local time. The third hearing held on that day mainly resolved the issue of Mengs bail guarantor. In view of the courts doubts about whether Mengs husbands non-Canadian resident status could become a guarantor, Mengs defense lawyer David Martin added four people, including real estate brokers and neighbors, as co-guarantors.
On December 1, when the consensus on non-escalating trade confrontation was reached at the Group of Twenty (G20) summit held in Argentina, China and the United States dollar, Huawei President Ren Zhengfeis eldest daughter, Huawei Vice-Chairman and Chief Financial Officer Meng Wanzhou was arrested at Vancouver International Airport, Canada, when he changed planes. Canada said that the detention of Meng Wanzhou was based on the requirements of the United States.
On December 7 and 10, the first two bail hearings on Meng Wanzhou were also held in the British Columbia Supreme Court. Mengs evening boat, dressed in dark green prison uniform, appeared on the scene, all of which were quite relaxed. Outside the court, some Chinese people held slogans such as I love Huawei to express their solidarity with Meng Wanzhou. According to Canadian local media reports, many staff members of the Chinese Consulate in Vancouver also appeared at the hearing.
Mengs evening boat is expected to be released on bail. Its only a matter of time. Huang Feng, director of the Institute of International Criminal Law, Institute of Criminal Law, Institute of Criminal Law, Beijing Normal University, told China News Weekly before the third hearing that there are only three principles in Canadian domestic law that allow judges to detain suspects before formal proceedings begin: to ensure that suspects appear in court on time, to protect public safety, and to ensure public confidence in the judicial system.
Earlier, Mengs team of lawyers had submitted a number of evidence to the court, indicating that Meng would not leave Canada after obtaining the bail and would attend the subsequent hearing on time. At the hearing on Dec. 10, Mengs attorney, David Martin, summoned two people responsible for the development and operation of electronic surveillance equipment. Witnesses made it clear that electronic surveillance of bailers was absolutely no problem.
David Martin also testified to the court that Meng and her husband bought two houses in Vancouver in 2009, worth about $17 million, and that her son studied in Canada between 2009 and 2012. In order to show sincerity, Meng expressed his willingness to surrender all passports, including those still in validity and invalid ones, through his lawyer.
I have worked hard for 25 years, Meng said. If I am released on bail, my only goal is to be with my husband and daughter. I havent read a novel for years. Meng also expressed his wish to apply for a doctorate from the Suntech School of Business at the University of British Columbia, and during the extradition hearings thereafter, Mengs husband would also take his children to Vancouver to study.
Not Linked to 90-day Negotiations
According to the Associated Press, on December 5, Canadian Justice Department spokeswoman Ian McLauder announced that at the request of the US, Canada had arrested Meng Wanzhou on Saturday and she would be extradited to the United States.
Meng Wanzhou is the eldest daughter of Ren Zhengfei, the founder of Huawei. He was born to Ren Zhengfei and his ex-wife. After his parents divorced, he took his mothers surname. According to Huaweis official information, Meng joined Huawei in 1993, serving as Director of International Accounting, Chief Financial Officer of Huawei Hong Kong and President of Accounts Management. He is the vice chairman and chief financial officer of the company.
Meng Wanzhou, 46, gives the impression of being bright, confident and quick to speak. After graduating from university, she first went to the Construction Bank and joined Huawei a year later. When she first entered Huawei, she started at the grass-roots level and acted in a low-key manner. Few people knew her relationship with Ren Zhengfei.
As the companys chief financial officer and vice-chairman, Meng has long been responsible for Huaweis revenue assurance task. Over the years, Huaweis business income has continued to grow steadily. According to Huaweis earnings report for 2017, in the past five years, Huaweis sales revenue has increased from 239.025 billion yuan in 2013 to 603.621 billion yuan in 2017.
Although Ren Zhengfei said that Huawei will not follow the path of family business and launched the rotation system of CEO in 2012, the industry still speculates that Meng Late Boat may become the companys successor.
At the first bail hearing, attorneys from the Canadian Justice Department of the prosecution first spoke, saying that the United States demanded the extradition of Meng Wanzhou for fraud. According to court records, the prosecution claims that Huawei promotes its dealings with Iran through Skycom, a subsidiary, in complete violation of U.S. sanctions against Iran. Meng denied the prosecutors charges, saying Huawei and Skycom are two separate individuals whose cooperation is normal business operation.
According to the New York Times, the U.S. government has been investigating Huaweis business in Iran for many years. John Gibkesley, a Canadian attorney for the judiciary, said the East District Court of New York issued an arrest warrant for Meng on August 22. On November 30, a Canadian judge issued an arrest warrant for Meng after learning that she would change planes in Vancouver on her way from Hong Kong to Mexico.
From 8 to 9 December, Chinese Vice Foreign Minister Le Yucheng urgently summoned Canadian Ambassador to China, McJialian, and American Ambassador to China, Blanstad, to lodge strict representations and strong protests against the detention of Huawei company leaders by the Canadian side.
Le Yucheng evaluates the detention of Chinese citizen Ben Wanzhou by the Canadian side by ignoring the law, being unreasonable, being intolerable, being extremely bad in nature, and strongly urges the Canadian side to release the detainees immediately so as to effectively protect the legitimate and legitimate rights and interests of the parties concerned. Otherwise, it will cause serious consequences, for which the Canadian side shall bear full responsibility. In summoning Branstad, Le Yucheng pointed out that what the United States has done seriously infringes on the legitimate and legitimate rights and interests of Chinese citizens and is extremely bad in nature. China strongly urges the United States to attach great importance to Chinas rigorous position and take immediate measures to correct erroneous practices and revoke arrest warrants for Chinese citizens.
John Bolton, the US national security adviser attending the G20 summit with President Trump, said he had been informed by the Justice Department before the detention began, but he did not make it clear whether he had informed Trump. Canadian Prime Minister Justin Trudeau denied any involvement of his government in Mengs arrest, saying that he respected the independence of the judicial process in his country.
The New York Times quoted a retired American official as saying that Mengs arrest at this embarrassing time was more likely to be a coincidence, which was closely related to Mengs schedule. John Smith, former director of the Foreign Assets Control Office of the U.S. Treasury Department, said, Once you have the opportunity to arrest key people in law enforcement, you will seize this opportunity. Zachary Karabel, a NBC financial commentator, wrote in the Washington Post that even if there are other reasons for this, its easy to think that Trump is trying to put pressure on Beijing in a very rude way in future U.S. -China negotiations.
However, White House economic adviser Larry Kudrow denied that the United States intended to rip China off during the 90-day trade negotiations and said Trump at the G20 summit was unaware of the matter.
Some analysts believe that neither China nor the United States wants to link the case of Mengs late boat with the 90-day negotiations so that the consensus reached by the heads of state of China and the United States during the G20 summit will be lost. Moreover, there is no need to link the interests of both sides.
Speaking at a press conference held on December 6, Gao Feng, a spokesman for the Ministry of Commerce of China, said that the Sino-US economic and trade team is currently smoothly communicating and cooperating well, and that the two sides will start with agricultural products and automobiles and conduct consultations on intellectual property protection, technical cooperation, market access and trade balance in accordance with a clear timetable and road map. He said he was confident that China and the United States would reach an agreement within 90 days.
On the morning of December 11, Liu He, member of the Political Bureau of the Central Committee, Vice Premier of the State Council and leader of the Sino-US economic and trade consultation, made telephone calls with U.S. Treasury Secretary Mnuchin and Trade Representative Letterheiser. The two sides exchanged views on the timetable and road map for implementing the consensus of the two heads of state meeting and promoting the next step of economic and trade consultation.
On Dec. 10, the Supreme Court of British Columbia, Canada, held the second bail hearing of Meng Wangzhou. On the same day, people placed the slogan Release Mrs. Meng outside the court. Picture/Visual China
Accusation, Jurisdiction and Evidence
After Mengs bail, if the US formally requests extradition from Canada, she will have to face extradition procedures. Our Extradition Law usually tends to give the respondent to the United States. Robert Curie, a professor at Dalhousie University in Canada, wrote in an analysis of the case of Meng Wanzhou. According to Article 2, paragraph 3, of the Canadian-American Extradition Treaty, the requirement for Canada to extradite persons to the United States is that the offence of the respondent may be punished with a fixed-term imprisonment of more than one year in both Canadian and American domestic laws.
This is the principle of double criminality. The principle of double criminality stipulated in Canadas Extradition Act in 1999 is that crimes in Canada and the applicant country may constitute sentences of more than two yearsimprisonment. Obviously, lower standards apply to extradition cooperation between Canada and the United States.
In this case, the U.S. government charged Meng with fraud, which could constitute up to 30 yearsimprisonment. On the issue of sanctions against Iran related to fraud, some scholars pointed out that the Canadian Special Economic Measures Act stipulated that economic dealings with the sanctioned countries were a crime, and that Iran was included in the relevant sanctions list by the United Nations and Canada. But Canadian law does not apply to foreigners operating outside Canada, while the United States seems to be pursuing Mengs late boat. Are there any violations of U.S. territory?
The reason why the United States chose to accuse Meng of fraud is that if Meng violated the United States unilateral sanctions, it would not necessarily conform to the principle of double criminality. Huang Feng told China News Weekly that the prohibition that the United States accused Meng of violating belongs to third-party sanctions. That is to say, the target of sanctions is not American citizens or American enterprises who violate the prohibition, but third-party personnel and organizations who have contacts with American enterprises.
Such third-party sanctions are not recognized by Canadian domestic law. Therefore, Mengs behavior does not violate the Canadian Special Economic Measures Act, let alone the penalty involving more than one years imprisonment.
However, according to Article 3 of the Canadian Extradition Act 1999, the offences involved by the respondent may be offences different from those in Canadian law and the law of the applicant State. In Canada, fraud of more than $5,000 is a severely punished crime punishable by up to 14 yearsimprisonment. The prosecutor representing the United States Government may therefore choose the applicable Canadian criminal offence of fraud.
In Huang Fengs view, the choice between the US government and prosecutors is not always wise. The crime of fraud needs to clarify who has caused economic losses and what benefits have been obtained. Huang Feng told China News Weekly, There are differences between some normal strategies and fraud in trade. Now the case is made public, and the extradition request and evidence of the United States are subject to worldwide scrutiny.
In addition to the charges controversy, the US accusation of Mengs actions outside the United States has also triggered jurisdictional disputes. According to the U.S. government documents currently published, the U.S. side does not believe that Mengs actions exceed its jurisdiction. New York Eastern District Federal Prosecutor accused Meng of using pages of slides to fraudulently establish financial institutions in the United States, so the U.S. courts have territorial jurisdiction. But Huang Feng pointed out that the financial institution was not an entirely American financial institution but had branches in the United States.
If the evidence of territorial jurisdiction is insufficient, the U.S. government may also invoke protective jurisdiction to circumvent the limitation of the place where the act occurred and the nationality of the actor and claim jurisdiction over the case on the basis of national interests. After Mengs arrest on December 1, U.S. Senator Ben Sass accused the Associated Press of using private enterprises to harm the national security interests of the United States and expressed gratitude to Canada for arresting the CFO.
If the Canadian courts recognize the charges brought by the United States Government and the jurisdiction of the United States courts, they may grant extradition requests from the United States as long as the evidence provided by the prosecutor on behalf of the United States Government is sufficient to prosecute the parties for fraud.
The Canadian courts do not examine convictions, but they do examine whether the charges filed by the United States meet the criteria of prima facie evidence. Huang Feng introduced to China News Weekly. However, in practice, it is difficult for the respondent to defend the evidence.
In this case, in order to prove the sufficiency of the suit against Meng Wanzhou, the US side needs to submit a summary of evidence to the court. Canadas domestic criminal procedure has a high standard of evidence identification. However, limited by the Extradition Law of 1999, the court has no right to examine the evidence submitted by the applicant country in accordance with its own criminal procedure law when conducting extradition hearings, and the respondent can not summon witnesses or provide evidence to defend himself.
In addition, judges can only determine whether the evidence provided by the United States Government is sufficient to justify extradition itself after extradition. Whether Meng Wanzhou really constitutes a crime is not within the jurisdiction of Canadian judges.
In the extradition case of Hassan Diabu in 2008, Canadian judge Robert Malange, who presided over the hearings, reluctantly stated that although the evidence of the French government applying for Hassans extradition accusing him of involvement in terrorist attacks was incomprehensible and it seems unlikely that he would be convicted in a fair trial, he could not refuse an extradition request on the basis of the provisions of the Extradition Law of 1999. Ask.
Hassan was subsequently extradited to France for trial. On January 12 this year, the French authorities dismissed all criminal charges against the Canadian scholar on the grounds of insufficient evidence.
In fact, the Extradition Law of 1999 was controversial in Canada long before the Hassan case. Gary Boating, a well-known Canadian scholar and known as more experienced than any other lawyer in confronting the extradition system, once accused the law of making Canadian judges imprudently stamp extradition requests.
Another scholar, Anne Frest, in a 2002 paper criticized the Extradition Law as sacrificing the right of the respondent to a fair judiciary for the national interest. The article has attracted great attention from the legal community, because Annes father, former Supreme Court Justice Gerald, was one of the drafters of the 1999 Extradition Act.
In the Hassan case, most legal scholars are on the side of the respondent. Hassans defense team also defended the parties against the defects of the 1999 extradition law. However, the Canadian authorities turned a deaf ear to this and finally let the innocent Hassan suffer for 10 years.
Perhaps based on the tragic end of the Hassan case, some Western scholars analyzed the Meng Wanzhou case and thought that Canada has no choice but to extradite Meng Wanzhou. But scholars also believe that this case is an extremely special case.
It is difficult to judge the attitude of Canada and the trend of legal review from the issue of temporary arrest itself. Huang Feng told China News Weekly that countries with extradition treaties may arrest them out of international obligations, but whether they will extradite after that is another question.
It is possible that the United States will not be able to produce decent extradition requests and evidence supporting extradition requests and will stop there. It is also possible that the applicant successfully refuted the allegations of the United States in the review process, thus ending the extradition proceedings by the Canadian judicial or administrative authorities. Huang Feng said. At present, he suggested that Mengs team of lawyers prepare for the reason of refusing extradition.
Based on the above facts, the western mainstream media have long judged Mengs bail. Before the second hearing, Reuters quoted legal experts as saying that judges might decide to release Meng Wanzhou conditionally, including by accepting high-tech surveillance measures.
However, the bail procedure is only a minor episode before the extradition hearing officially begins. According to the Canadian Extradition Act 1999 and the Canadian-American Extradition Treaty of 1976, since the arrest of Meng Wanzhou by the British Columbia High Court of Canada is based on a temporary arrest warrant, the United States must submit a formal request for extradition to Canada within 60 days of his arrest and submit the relevant documents to the International Assistance Group (IAG), an agency dealing with extradition matters of the Canadian Ministry of Justice.
According to Article 11, paragraph 3, of the Extradition Treaty between Canada and the United States, the period of temporary arrest is 60 days, so if the United States abandons its formal request, Meng will be released after 60 years.
If the United States makes a formal request, IAG will make recommendations to the Attorney General within 30 days of receipt of the document. With the authorization of the Minister of Justice, the case enters the court hearing process. When the court decides whether the prosecution representing the U.S. government has sufficient evidence to prosecute Meng, the Attorney General will decide whether to extradite Meng to the United States. Generally speaking, the procedure may last for months or even years.
On Dec. 10, the courts on-the-spot painting record of Mengs second bail hearing. Picture/Visual China
Using the Refusal of Extradition Provision to Defend
Another opportunity for Mengs lawyer team is to use the refusal to extradite clause to defend. Articles 44 to 47 of Canadas Extradition Act 1999 and Articles 4 to 7 of the Canadian-American Extradition Treaty provide for the refusal of extradition.
Although most of the contents such as possible death sentence, the defendant is under 18 years old and serving his sentence in Canada can not be applied to this situation, the provisions of Article 46, paragraph 2, of the Extradition Act 1999 that a case must not constitute a political crime or a crime of a political nature may allow the defendant to find an opportunity to defend.
According to Article 46, murder, negligent homicide, intentional injury and other crimes and their abettors can not apply the non-extradition of political offenders rule, but the fraud charged by the U.S. government against Meng Wanzhou is not included.
Some scholars pointed out that the U.S. sanctions against Iran in this case are not only a regulatory measure, but also a diplomatic tool, so there are political factors and uncertainties. The U.S. Senators statement in the Meng Wanzhou incident shows that the U.S. side will arrest Meng Wanzhou in connection with the Sino-U.S. trade war.
(Current US actions) show the pressure on Huawei, a Chinese company, and is based on the fact that Huawei executives have Chinese nationality to prosecute and suppress. The accusations and purposes of the US side are all related to specific countries and countries, Huang Feng said in an interview with China News Weekly. Therefore, the purpose of the US side has obvious political characteristics.
At the same time, according to Article 44 of Canadas Extradition Act 1999, the Minister of Justice of Canada has the right to refuse requests for extradition on grounds of race, religion, nationality, etc. It is unheard of in Canada to refuse an extradition request from the United States for political reasons. But I think Mengs lawyers will certainly defend against this, Curie said in an interview with CBC, a Canadian broadcasting company. It is not clear how Mengs team of lawyers will prove that the US sides request for Mengs extradition is suspected of political persecution.
Historically, the defense of refusal of extradition has generally not been accepted by Canadian courts. Ottawa Citizen has published a set of data: between 1999 and 2014, Canada received more than 1500 extradition requests, 90% of which came from the United States, and only five of them were rejected.
If the court really makes a decision in support of extradition, Meng has the right to appeal or submit an application to the Minister of Justice until he appeals to the Supreme Court of Canada. The Supreme Court, which has the right of choice to hear appeals, receives an average of 15 applications for appeals in extradition cases every year, but few of them are actually accepted. In 2014, the Supreme Court of Canada rejected Hassans appeal.
The Hassan case was once called the first real opportunity for common sense and fairness in extradition cases by Botin, but the Canadian judges did not respond to the voice of the society for judicial justice. Ten years later, Hassan had just been freed, and the case of Meng Wanzhou once again challenged Canadas extradition law.
There are many reasons to prove that extradition requests are unfair and oppressive from Canadian law and US-Canada treaties. Huang Feng told China News Weekly, The Canadian authorities should consider how the Canadian government will react if Canadians face the same situation in the future. This is a legal issue, which should be raised now.
In Huang Fengs view, Mengs lawyer team should open its eyes to not only the acts accused in the United States, but also prepare defenses from the perspectives of human rights protection, political motivation of extradition requests, the political characteristics of the case, the oppressiveness and injustice of American accusations, and the inadequacy of jurisdiction of American courts.
Even though it is difficult for Canadian judges to refuse extradition in judicial practice, according to Article 7 of the Extradition Act 1999, the person who ultimately handles the extradition request is the Minister of Justice of Canada. The Extradition Act specifies the powers of the Minister of Justice, including the extension of the period of review of extradition requests and the revision of extradition instructions at any stage of review.
Gary Boating once commented on the Hassan case that the Federal Ministry of Justice is interested in flattering France, the United States or any country requesting extradition. However, in practice in other Western countries, it is not uncommon for government departments to prevent extradition through non-legal procedures.
Mengs late boat incident is a typical case of legalization of political issues. Wang Jiangyu, an associate professor at the Law School of Singapore National University, commented on the social media. Huang Feng also told China News Weekly: There is another possibility: the United States is just trying to fix you up. Ive done some similar cases in recent years, and its over. Huang Feng said, But whether or not the extradition is final, the US side has achieved the goal of suppressing Huawei and even Chinese enterprises. If the extradition is successful, it can further suppress it. Huang Feng speculated that the possibility that the United States could successfully extradite Meng Wanzhou was less than 50%. But everything is still unknown. The only predictable thing is that it will be a long and variable process. Huawei has always maintained its rationality and restraint over what is happening. In its latest statement, Huawei said it would continue to pay attention to the progress of the case. We believe that the legal system of Canada and the United States will follow up with a fair conclusion. Source: Author of China Newsweek: Cao Ran, Wei Yuhong, responsible editor: Su Hong-hung_NBJ9980
Mengs late boat incident is a typical case of legalization of political issues. Wang Jiangyu, an associate professor at the Law School of Singapore National University, commented on the social media. Huang Feng also told China News Weekly: There is another possibility: the United States is just trying to fix you up.
Ive done some similar cases in recent years, and its over. Huang Feng said, But whether or not the extradition is final, the US side has achieved the goal of suppressing Huawei and even Chinese enterprises. If the extradition is successful, it can further suppress it.
Huang Feng speculated that the possibility that the United States could successfully extradite Meng Wanzhou was less than 50%.
But everything is still unknown. The only predictable thing is that it will be a long and variable process. Huawei has always maintained its rationality and restraint over what is happening. In its latest statement, Huawei said it would continue to pay attention to the progress of the case. We believe that the legal system of Canada and the United States will follow up with a fair conclusion.