Kang Juntao v 1. Menteri dalam Negeri, Malaysia (WA-44-191-08/2019)

MENTERI DALAM NEGERI, MALAYSIA …RESPONDEN-

PENGARAH PENJARA SUNGAI BULOH RESPONDEN JUDGMENT Introduction [1] This is an application for the issuance of a writ of habeas corpus for the immediate release of the applicant. The applicant is a citizen of the People’s Republic of China. Pursuant to the request on 15.01.2019 from the government of the United States of America (“US”) to the Government of Malaysia for the provisional arrest of the applicant, the applicant was arrested on 23.01.2019 on his arrival at the Kuala Lumpur International 4 Airport. The request by the US government was made under the auspices of the Agreement and the Exchange of Notes dated 03.08.1995 between Malaysia and the US for the extradition of offenders (“Extradition Treaty”). [2] On 24.01.2019, the learned Magistrate ordered that the applicant be remanded in custody for 60 days under the Extradition Act 1992. On 22.03.2019, the learned Magistrate allowed the application by the Public Prosecutor for the applicant’s case to be transferred to the Sessions Court. On 22.07.2019, the learned Sessions Court Judge allowed the application by the Public Prosecutor for the applicant to be committed to prison pending the applicant’s extradition to the US. On 01.08.2019, the applicant filed the present application. Brief matrix of facts [3] The applicant is wanted by the US government for trial at the US District Court of New Jersey with one count of laundering of monetary instrument in contravention of section 5 1956(a)(2)(A) of Title 18, United States Code and aiding and abetting the laundering of monetary instruments in contravention of section 2 of Title 18, United States Code. On 15.01.2019, the US government issued a request to the Government of Malaysia for the provisional arrest of the applicant. The request was made pursuant to the Extradition Treaty. A warrant for the arrest of the applicant was eventually issued on 13.02.2019 by the Honourable Joel Schneider, the US Magistrate Judge of the District Court of New Jersey for the indictment of the applicant in the case of United States v. Kang Juntao, Case No. 19 – 107 (JBS). [4] Investigations revealed that the applicant is a leader in a turtle trafficking syndicate. The applicant recruited turtle poachers in the US and pay them directly or through middlemen in the US. The turtles will then be shipped from the US to Hong Kong and China and resold in the black market. The trade of these turtles without the necessary permit is prohibited under the Convention on International Trade in Endangered Species 6 of Wild Fauna and Flora (“CITES”) which is codified in the US under the Endangered Species Act. [5]

that the applicant be brought before the Court on a date to be fixed and for the applicant to be released without any conditions; and

for any further and other orders as this Honourable Court deems fit and proper. The affidavits filed for and against the application are as follows:

“Afidavit Sokongan” affirmed on 01.08.2019 by Kang Juntao (Enclosure 2), the applicant; 9

“Afidavit Jawapan” affirmed on 05.09.2019 by Wan Nor Sakina binti Saad (Enclosure 6) for the respondents;

“Afidavit Jawapan 2” affirmed on 12.9.2019 by Rosoman bin Abu Bakar @ Che Din (Enclosure 7) for the respondents;

“Afidavit Balasan Pemohon” affirmed on 26.09.2019 by Kang Juntao (Enclosure 8), the applicant, and since the heart of the challenge by the applicant relate to the propriety of the warrant for committal, it is essential for this Court to have the benefit of the grounds of judgment of the learned Sessions Court Judge. For that purpose, I have directed the learned counsel for the applicant to obtain and file in the grounds of judgment in an affidavit. In that regard, the following affidavit was filed: 10

“Afidavit Tambahan Peguam Ee Kah Fuk” affirmed on 13.11.2019 by Ee Kah Fuk (Enclosure 26), the counsel for the applicant. Brief deliberations Contention of the applicant [9] The contention of the applicant in support of the application may be summarized as follows:

in order for the applicant to be extraditable to the US (the Requesting State), the offence alleged by the Requesting State to have been committed by the applicant must have been committed in the Requesting State. In the present case, the applicant has never set foot in the US and as such, it is not possible for the applicant to commit the alleged offence within the territory of the US; 11

the offence alleged to have been committed by the applicant has no extraterritorial effect under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLATFPUAA). Since the AMLATFPUAA does not have extraterritorial effect, there is no element of dual-criminality and it follows that the proviso to section 6(2)(b) of the Extradition Act 1992 had not been fulfilled;

even if the offence alleged to have been committed by the applicant has extraterritorial effect under Malaysian law, the offence alleged to have been committed by the applicant is a matter between the People’s Republic of China and the US and has nothing to do with Malaysia as the applicant is not a citizen or permanent resident of Malaysia; 12

even if the offence alleged to have been committed by the applicant in the US has a corresponding criminality under section 4(1)(a) of the AMLATFPUAA, the predicate offence, which is required to be proved before an offence under section 4(1)(a) of the AMLATFPUAA may be said to have been proved, is absent; and

although pursuant to section 4 of the Extradition Act 1992 the Minister of Home Affairs had given a direction in writing for the prima facie requirement to be dispensed with and for the procedure under section 20 of the Extradition Act 1992 to apply, that does not absolve the Requesting State from submitting the required information under section 20 of the Extradition Act 1992 to show a probable cause. The affidavit affirmed on 13.02.2019 by Ryan Bessey, Special Agent of the U.S. Fish and Wildlife Service in support of the extradition request contains bare 13 averments and is not sufficient to implicate the applicant with the alleged offence. Contention of the respondents [10] In response to the arguments of the applicant, the submissions of the learned DPP may be briefly stated as follows:

in an application for the issuance of the writ of habeas corpus, it is for this Court to be satisfied that the detention of the applicant is without just cause. In the present application, the detention of the applicant was made under a warrant for committal dated 22.07.2019. As such, the onus lies on the applicant to show that his detention is not in accordance with the law;

the Extradition Act 1992 is applicable to the Extradition Treaty pursuant to the order made by the 1st respondent under section 2(1) of the Extradition Act 14 1992 which was published in the Gazette vide P.U.(A) 213/1997. As a result of the order, the procedures under section 20 of the Extradition Act 1992 become applicable instead of the requirement of prima facie case in an application to commit a fugitive criminal, such as the applicant, to prison pending the order of the Minister of Home Affairs for his surrender. In the circumstances, the warrant for committal had been properly and validly issued against the applicant by the learned Sessions Court Judge. Analysis and decision [11] In an application for the issuance of a writ of habeas corpus, the function of the courts has been described in a number of well-established authorities. In the case of Kerajaan Malaysia & Ors v. Nasharuddin Nasir [2004] 1 CLJ 81 FC; [2003] MLJU 841; [2003] 2 MLRA 399; [2003] 6 AMR 497, the Federal Court made the following observations in that regard: 15 “It is trite law that the remedy of habeas corpus is intended to facilitate the release of persons actually detained in unlawful custody. It is the fact of detention which gives the court its jurisdiction (See: Barnardo v. Ford [1892] AC 326). The observation made by Choor Singh J in Re Onkar Shrian [1969] 1 LNS 155; [1970] 1 MLJ 28 is particularly instructive. He said: Where the personal freedom of an individual is wrongly interfered with by another, the release of the former from illegal detention may be effected by habeas corpus. The illegal detention of a subject, that is a detention or imprisonment which is incapable of legal justification, is the basis of jurisdiction in habeas corpus.”. [12] It is trite that the challenge must be directed against the current detention order although the earlier or initial arrest may be irregular. (See: Mohd Faizal Haris v. Timbalan Menteri 16 Dalam Negeri, Malaysia & Ors [2005] 4 CLJ 613 FC; [2006] 1 MLJ 309; [2005] 2 MLRA 231; [2006] 2 AMR 193 and L. Rajanderan R. Letchumanan v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2010] 7 CLJ 653 FC; [2018] supp MLJ 393; [2010] 2 MLRA 182; [2011] 1 AMR 109). [13] The legal basis for the extradition of fugitive criminals is contained in the Extradition Act 1992. The term “fugitive criminal” is defined in section 5 of the Extradition Act 1992. Section 5 of the Extradition Act 1992 reads as follows: “Interpretation 5. In this Act, unless the context otherwise requires — “fugitive criminal” means any person who is accused of or convicted of an extradition offence committed within the jurisdiction of another country and is, or is suspected to be, in some part of Malaysia;”. 17 [14] The applicant is a person accused of an extradition offence committed in the US. For reasons which will discussed in the later part of this judgment relating to the issue of dual criminality, the offence which the applicant is alleged to have committed in the US is an extradition offence because upon conviction, it is punishable in the US with imprisonment for not less than one year and if committed in Malaysia, it is punishable too with imprisonment for not less than one year. (See: Section 6(2)(a)&(b) of the Extradition Act 1992). [15] Any arrangement made between Malaysia and any country for the extradition of fugitive criminals may be made under the Extradition Act 1992 if the order of the Minister of Home Affairs pursuant to section 2 of the Extradition Act 1992 is published in the Gazette. 18 Section 2 of the Extradition Act 1992 provides as follows: “Order of the Minister 2.

Where a binding arrangement has been entered into between Malaysia and any country for the extradition of fugitive criminals, the Minister may, by order to be published in the Gazette reciting or embodying the terms of such arrangement, direct that the provisions of this Act shall apply to that country subject to any restriction, exception, modification, adaptation, condition or qualification contained in the order.

Where any arrangement referred to in this section is revoked or lapses, the Minister shall, by order published in the Gazette, forthwith certify that fact; and any such order shall be conclusive evidence that the arrangement referred to therein has been revoked or has 19 lapsed, as the case may be, and shall not be questioned in any legal proceedings whatsoever.

Any order made under this section shall be laid before each House of Parliament as soon as may be after it is made.

An order made under this section shall be conclusive evidence that the arrangement therein referred to complies with the provisions of this Act, and that this Act applies in the case of the country mentioned in the order, and the validity of such order shall not be questioned in any legal proceedings whatsoever.”. [16] The Agreement and Exchange of Notes dated 03.08.1995 between Malaysia and the US in respect of the arrangement for the extradition of offenders is published in the Gazette as the Extradition (United States) Order 1997 vide P.U.(A) 213/1997 and came into force on 02.06.1997. The 20 warrant for committal was issued by the learned Sessions Court on 22.07.2019. Clearly, the Extradition Act 1992 applies in the present application. [17] A Sessions Court is empowered under section 18 of the Extradition Act 1992 to inquire into extradition matters brought before it in accordance with the specified procedures. Where an application is made to commit a fugitive criminal to prison pending the order of the Minister of Home Affairs for his surrender, it may be made under section 19 or section 20 of the Extradition Act 1992. In an application made under section 19 of the Extradition Act 1992, the Sessions Court is under a duty to consider whether a prima facie case has been made out in support of the requisition of the country concerned before committing the fugitive criminal to prison. However, the requirement of making out a prima facie is dispensed with if the application is made under section 20 of the Extradition Act 1992. 21 [18] The procedure under section 20 of the Extradition Act 1992 for issuance of a warrant for committal may only be resorted to if there is a direction given by the Minister of Home Affairs under section 4 of the Extradition Act 1992. Where the Minister of Home Affairs gives such a direction, the prima facie requirement to commit a fugitive criminal to prison pending his surrender shall be dispensed with. Section 4 of the Extradition Act 1992 provides as follows: “Direction of the Minister to apply procedure in section 20

Where the binding arrangement which has been entered into between Malaysia and any country for the extradition of fugitive criminals contains a provision for the prima facie requirement to be dispensed with either generally or in relation to a class or classes of offences, the Minister may give a direction in writing that the 22 procedure specified in section 20 shall apply to such cases.”. Propriety of the warrant for committal [19] In issuing the warrant for committal on 22.07.2019, the learned Sessions Court Judge exercised her powers under section 20 of the Extradition Act 1992. In order to determine whether the stipulated conditions have been satisfied and by necessary extension, whether the warrant for committal has been properly issued, it is necessary to examine the reasons advanced by the Public Prosecutor when making the application for the warrant for committal and the grounds provided by the applicant in resisting the application. Paragraphs (a), (b), (c) and (e) of section 20(1) of the Extradition Act provide for the conditions to be satisfied for the issuance of the warrant whereas the applicant is put under a duty to satisfy the court of the circumstances under subparagraphs (i) to (v) of section 20(1)(d) in order to resist the application. 23 [20] The warrant for committal dated 22.07.2019 was issued by the learned Sessions Court Judge based on the notice of application dated 02.04.2019 (“application for warrant for committal”) filed by the Public Prosecutor at the Kuala Lumpur Sessions Court. The respective affidavits filed for and against this application were as follows:

the “Afidavit Sokongan” affirmed on 02.04.2019 by Lim Ju Vynn (“Affidavit of Lim Ju Vynn”) in support of the application;

the “Afidavit Balasan” affirmed on 15.04.2019 by the applicant (“Affidavit of KJT”) in opposing the application;

the “Afidavit Jawapan” affirmed on 03.05.2019 by Wan Nor Sakina binti Saad (“Affidavit of Wan Nor Sakina”) in support of the application; 24

the “Afidavit Jawapan II” affirmed on 14.05.2019 by Inspektor Mohamed Shamir bin Mohd Ridzam Deva (“Affidavit of Inspector Mohamed Shamir”) in support of the application; and

the “Afidavit Balasan II” affirmed on 17.05.2019 by the applicant (“Affidavit of KJT 2”) in opposing the application.

Whether there is a direction under section 4 by the Minister of Home Affairs – Section 20(1) [21] A perusal of the Affidavit of KJT shows that the direction of the Minister of Home Affairs was contained in Exhibit “KJT – 1”. Exhibit “KJT – 1” was the notice of application dated 02.04.2019 filed at the Kuala Lumpur Sessions Court by the Public Prosecutor in its application for the applicant to be committed to prison pending his surrender. This notice of application was supported by the Affidavit of Lim Ju Vynn and the direction of the Minister of Home Affairs was annexed as 25 Exhibit “LJV – 11” in that affidavit. Exhibit “LJV – 11” was the direction of the Minister of Home Affairs dated 19.03.2019 under section 4 of the Extradition Act 1992 directing for the procedures under section 20 to be applied in relation to the extradition request for the applicant from the US government. I find that the Minister of Home Affairs had thus given his direction accordingly under section 4 of the Extradition Act 1992.

Whether there are supporting documents produced in relation to the offence – Section 20(1)(b) [22] For the purposes of section 20(1)(b) of the Extradition Act 1992, section 20(3) defines what supporting documents are. Section 20(3) of the Extradition Act 1992 provides as follows: 26 “Procedure before Sessions Court where a special direction has been given under section 4 20.

In this section, “supporting documents” means—

any duly authenticated warrant for the arrest of the fugitive criminal issued by the country which seeks his return or any duly authenticated copy of such warrant;

any duly authenticated document to provide evidence of the fugitive criminal’s conviction or sentence or the extent to which a sentence imposed has not been carried out;

a statement in writing setting out a description of, and the penalty applicable in respect of, the offence and a duly authenticated statement in 27 writing setting out the conduct constituting the offence.”. [23] A perusal of the Affidavit of KJT shows as follows:

the warrant of arrest for the applicant was contained in Exhibit “KJT – 1”. Exhibit “KJT – 1” was the notice of application filed by the Public Prosecutor for the applicant to be committed to prison pending his surrender. This notice of application was supported by the Affidavit of Lim Ju Vynn and the warrant of arrest was annexed as Exhibit “LJV – 9” in that affidavit. Exhibit “LJV – 9” was the warrant for the arrest of the applicant dated 13.02.2019 issued by the Honourable Joel Schneider, the US Magistrate Judge of the District Court of New Jersey for the indictment of the applicant in the case of United States v. Kang Juntao, Case No. 19 – 107 (JBS); 28

the statement in writing setting out a description of, and the penalty applicable in respect of, the offence and a duly authenticated statement in writing setting out the conduct constituting the offence were contained in Exhibit “KJT – 1”. Exhibit “KJT – 1” was the notice of application filed by the Public Prosecutor for the applicant to be committed to prison pending his surrender. This notice of application was supported by the Affidavit of Lim Ju Vynn and the respective statements were annexed as Exhibits “LJV – 5” and “LJV – 6”, respectively in that affidavit. They are in the manner of the affidavit affirmed on 13.02.2019 by Ryan C. Connors (Exhibit “LJV – 5”), the Trial Attorney in the Environmental Crimes Section of the US Department of Justice and the affidavit affirmed on 13.02.2019 by Ryan Bessey (Exhibit “LJV – 6”), the Special Agent of the US Fish and Wildlife Service; 29

the authentication was provided by means of a Certificate dated 22.02.2019 signed by Jeffrey M. Olson, the Associate Director, Office of International Affairs, Criminal Division, Department of Justice, Washington D.C. This Certificate was annexed as Exhibit “LJV – 4” in the Affidavit of Lim Ju Vynn and is found in the notice of application filed by the Public Prosecutor. In the circumstances, I find that Exhibits “LJV – 1”, “LJV – 5”, “LJV – 6” and “LJV – 4” are “supporting documents” within the meaning of section 20(3) of the Extradition Act 1992 and that they have been produced before the learned Sessions Court Judge when she heard the application for the issuance of the warrant for committal.

Dual Criminality –Whether the alleged act of the applicant would constitute an offence under the laws of Malaysia if it had taken place in Malaysia – Section 20(1)(c) 30 [24] In the case of Menteri Dalam Negeri, Malaysia & Anor v. Seyed Ramin Paknejad [2017] 4 CLJ 541 FC; [2017] 4 MLJ 303; [2017] 5 MLRA 202; [2017] 3 AMR 368, it was held by the Federal Court that “the rule of dual or double criminality in extradition law is that requirement that to be an extraditable offence the act constituting the offence must be an offence in both the requesting and requested States and must have been committed in the territory of the requesting State.”. The rule of dual criminality is incorporated under section 6 of the Extradition Act 1992. Section 6 of the Extradition Act 1992 reads as follows: “Extradition offence

6.

A fugitive criminal shall only be returned for an extradition offence. 31

For the purposes of this Act, an extradition offence is an offence, however described, including fiscal offences —

which is punishable, under the laws of a country referred to under paragraph 1(2)(a) or 1(2)(b), with imprisonment for not less than one year or with death; and

which, if committed within the jurisdiction of Malaysia, is punishable under the laws of Malaysia with imprisonment for not less than one year or with death: Provided that, in the case of an extraterritorial offence, it is so punishable under the laws of Malaysia if it took place in corresponding circumstances outside Malaysia. 32

An offence shall also be an extradition offence if it consists of an attempt or a conspiracy to commit, or an abetment of the commission of, any offence described in subsection (2).”. [25] As a matter of observation, it is pertinent to note at this juncture that the offence alleged to have been committed by the applicant in the US is an extradition offence and not an extraterritorial offence. To that end, the issue regarding the extraterritoriality of the offence alleged to have been committed by the applicant does not arise. [26] The circumstances relating to the offences alleged to have been committed by the applicant pursuant to the indictment before the US District Court under the federal law of the US was annexed as Exhibit 1 in the affidavit affirmed on 13.02.2019 by Ryan C. Connors (Exhibit “LJV – 5”), the Trial Attorney in the Environmental Crimes Section of the US Department of Justice. Exhibit 1 is as follows: 33 “INDICTMENT COUNT ONE (Laundering of Monetary Instruments) The Grand Jury in and for the District of New Jersey, sitting at Camden, charges:

KANG JUNTAO is also known as Kan Jundao.

At all times relevant to this Indictment, defendant KANG JUNTAO was a citizen of the People’s Republic of China (“China”) residing in Hangzhou City, China.

Applicable Law The United States, China, Malaysia, Hong Kong special administrative region (“Hong Kong”), and approximately 180 other countries are signatories to a multilateral treaty called the Convention on International Trade in Endangered Species of Wild Fauna and Flora, 34 27 U.S.T. 1087, T.I.A.S. 8249 (commonly referred to as “CITES”).

The purpose of CITES is to monitor and regulate the trade of and to protect fauna and flora from commercial activities that might diminish the capability of any species to survive in the wild. CITES classifies wildlife, fish, and plants in three appendices (Appendix I, II and III). International trade in species listed in these Appendices is monitored and regulated by permits and quotas. The permit restrictions apply to live and dead specimens, as well as the skins, parts, and products made in whole or in part from a listed species. Wildlife and plant species listed in Appendix I of CITES are those currently threatened with extinction and that are or may be further threatened by trade. Under Appendix I of CITES, a species may be exported from a country only if, prior to exportation, the exporter applies for and obtains a valid foreign import permit issued by the country of import and 35 a valid export permit issued by the country of export. Wildlife and plant species listed in Appendix II of CITES include species that are not presently threatened with extinction but may become so if their trade is not regulated. Under Appendix II of CITES, a species may be exported from a country only if, prior to exportation, the exporter applies for and obtains a valid CITES export permit issued by the country of export.

Many species of turtles and tortoises are listed in Appendix II, but some have greater protection and are listed in Appendix I. Species listed in Appendix I and II of CITES are prohibited from export by Title 50, Code of Federal Regulations, Section 23.13(a), which states: Except as provided in § 23.92, it is unlawful for any person subject to the jurisdiction of the United States to conduct any of the following activities unless they meet the requirements of this part: 36 Import, export, re-export, or engage in international trade with any specimen of a species listed in Appendix I, II or III of CITES. The exporter is required to provide all pertinent information as well as submit Federal Fish and Wildlife Application Form 3-200-32, 3-200-33, 3-200-36, and/or 3-200-74.

CITES is implemented in the United States by the Endangered Species Act of 1973 (the “ESA”), which directs the U.S. Fish and Wildlife Service (“USFWS”) to administer the treaty. 16 U.S.C. §§ 1537a, 1540(f). The ESA makes it unlawful to knowingly “trade in any specimen contrary to the provisions of [CITES], or to possess any specimen traded contrary to the provisions of [CITES].” 16 U.S.C. §§ 1538(c)(1), 1540(b)(1). “Trade,” in this context, includes the sale and export from the United States. The USFWS has issued regulations 37 incorporating the specific permit requirements and provisions of CITES and listing the species contained on the CITES appendices. 50 C.F.R. Part 23.

The eastern box turtle (Terrapene Carolina Carolina), the Florida box turtle (Terrapene Carolina Bauri) and the Gulf Coast box turtle (Terrapene Carolina Major) are subspecies of the common box turtle (Terrapene Carolina) and have been listed in CITES Appendix II since 1995. The spotted turtle (Clemmys Guttata) is a semi-aquatic turtle listed in CITES Appendix II as of

The wood turtle (Glyptemys Insculpta) has been protected under CITES Appendix II since 1992.

In addition to the requirements of CITES and the ESA, federal law generally requires that all wildlife, including turtles, or parts thereof, be declared to the USFWS prior to their export from the United States. When exporting any wildlife, exporters or their agents 38 must file with the USFWS, a completed Declaration for Importation or Exportation of Fish, Wildlife, or Plants (Form 3-177). A USFWS of United States Customs Service officer must clear (or refuse) wildlife being exported from the United States, and the exporter or his agent must make available to the officer the wildlife being exported, as well as all required permits, licenses or other documents. 50 C.F.R. § 14.

United States law prohibits the transfer of funds from outside the United States to the United States with the intent to promote a specified unlawful activity. 18 U.S.C. § 1956(a)(2). Smuggling goods from the United States, 18 U.S.C. § 554, is a specified unlawful activity. U.S.C. § 1956(c)(7). There is extraterritorial jurisdiction over this conduct by a non-United States citizen of the conduct occurs in part in the United States and the series of transactions involves funds exceeding $10,000. 18 U.S.C. § 1956(f). 39

Money Laundering Person One is a special agent working in an undercover capacity in Atlantic County, New Jersey. As described below, KANG JUNTAO sent Person One and other individuals a series of financial transactions for the purchase, shipping, and smuggling of turtles from the United States to Hong Kong.

Person One maintained a PayPal account for all transactions with KANG JUNTAO. PayPal is a digital money transfer platform located in the United States. Person One opened a BB & T bank business checking account in New Jersey to maintain the undercover funds listed below. This BB & T bank account is linked to the undercover PayPal account used to transact with KANG

KANG JUNTAO arranged for turtle suppliers to send Person One eastern box turtles, Florida box turtles, Gulf 40 Coast box turtles, spotted turtles, and wood turtles, which were in turn smuggled to Hong Kong. In total, between on or about June 12, 2017, and December 3, 2018, KANG JUNTAO sent Person One 40 payments amounting to approximately $78,362 through PayPal. Person One used these funds to, among other things, pay turtle suppliers at KANG JUNTAO’s direction. Thirty-eight of the payments sent by KANG JUNTAO correspond to an address in China, twenty-nine of which are associated with China Union Pay Bank, a financial institution in China, or China credit card accounts.

Neither KANG JUNTAO nor his associates ever applied for or ever received the necessary CITES permits to export protected species. None of the turtle shipments were declared to USFWS or customs authorities. In total, KANG JUNTAO directed Person One and other shippers to smuggle approximately 1,500 41 turtles out of the United States to China, valued at approximately $2,250,000.

From on or around June 12, 2017, through on or around December 3, 2018, in Atlantic County, in the District of New Jersey and elsewhere, defendant KANG JUNTAO transported, transmitted, and transferred a monetary instrument and funds in excess of $10,000 to a place in the United States, specifically New Jersey, from and through a place outside the United States, specifically China, with the intent to promote the carrying on of specified unlawful activity, to wit Smuggling Goods from the United States (Title 18, United States Code, Section 554), and did aid and abet other persons in doing so; all in violation of Title 18, United States Code, Sections 1956(a)(2)(A) and 2. 42

KANG JUNTAO sent Person One the following PayPal payments to promote turtle smuggling from New Jersey to China: Date Value Date Value June 12, 2017 $1,000 Feb. 16, 2018 $2,500, $4,000 & $250 June 17, 2017 $800 March 8, 2018 $1,400 June 24, 2017 $3,432 April 17, 2018 $1,800 July7, 2017 $472 April 26, 2018 $600 July9, 2017 $4,000 April 27, 2018 $1,000 July21, 2017 $1,248 May 6, 2018 $412 & $618 July25, 2017 $3,500 & $3,000 June 1, 2018 $2,060 August 16, 2017 $1,000 June 6, 2018 $2,266 August 18, 2017 $4,160 July 13, 2018 $2,472 August 28, 2017 $4,160 August 16, 2018 $4,326 Sept, 7, 2017 $4,000 & $3,000 August 24, 2018 $1,236 Sept 26, 2017 $1,000 Sept. 11, 2018 $2,000 & $ 1,500 October 17, 2017 $1,000 & $200 October 12, 2018 $2,000 & $500 November 8, 2017 $2,450 October 26, 2018 $2,400 November 16, 2017 $2,000 Dec, 3, 2018 $600 December 8, 2017 $2,000 January 18, 2018 $2,000 Total $78,362 A TRUE BILL FOREPERSON JEAN WILLIAMS Deputy Assistant Attorney General Environment and Natural Resources Division By: SGD. RYAN CONNORS Trial Attorney”. 43 [27] The applicant is alleged to have committed the offence of laundering of monetary instruments in the US under 18 U.S.C. § 1956(a)(2)(A). Upon conviction, it provides for a sentence of fine of not more than $500,000 or twice the value of the monetary instrument or funds involved in the transportation, transmission, or transfer, whichever is greater, or imprisonment for not more than twenty years, or both. The provision of 18 U.S.C. § 1956(a)(2)(A) reads as follows: “18 United States Code § 1956 – Laundering of

(2) Whoever transports, transmits, or transfers, or attempts to transport, transmit, or transfer a monetary instrument or funds from a place in the United States to or through a place outside the United States or to a place in the United States from or through a place outside the United States — 44

(A) with the intent to promote the carrying on of specified unlawful activity; or

(B) knowingly that the monetary instrument or funds involved in the transportation, transmission, or transfer represent the proceeds of some form of unlawful activity and knowing that such transportation, transmission, or transfer is designed in whole or in part —

to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or

(ii) to avoid a transaction reporting requirement under State or Federal law, shall be sentenced to a fine of not more than $500,000 or twice the value of the monetary instrument or funds 45 involved in the transportation, transmission, or transfer, whichever is greater, or imprisonment for not more than twenty years, or both. For the purpose of the offense described in subparagraph

(B), the defendant’s knowledge may be established by proof that a law enforcement officer represented the matter specified in subparagraph

(B) as true, and the defendant’s subsequent statements or actions indicate that the defendant believed such representations to be true.”. The words “specified unlawful activity” in subparagraph (A) of the 18 U.S.C. § 1956(a)(2) is defined under 18 U.S.C. § 1956(c)(7) as an act which includes smuggling of goods from the US. [28] In relation to the offence of laundering of monetary instruments under the laws of the US, the equivalent law in Malaysia is section 4(1)(a) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 46 2001 (“AMLATFPUAA”). Pursuant to section 3 of the AMLATFPUAA, the words “unlawful activity” in section 4(1)(a) of the AMLATFPUAA means the commission of a serious offence and under section 3 of the AMLATFPUAA, the words “serious offence” means any of the offences specified in the Second Schedule. [29] The offence of importing and exporting of any scheduled species without a permit is provided for under section 10 of the International Trade in Endangered Species Act 2008 (“ITESA”) and this offence is one of the offences specified in the Second Schedule of the AMLATFPUAA. The words “scheduled species” in turn is defined as any animal or plant specified in the Third Schedule of the ITESA and the types of turtles in relation to the offence alleged to have been committed by the applicant in the US are included in the Third Schedule. [30] Upon conviction, section 4(1)(a) of the AMLATFPUAA provides for a penalty of imprisonment for a term not exceeding 47 fifteen years and the court may also impose a fine of not less than five times the sum or value of the proceeds of the unlawful activity or instrumentalities of the offence at the time the offence was committed or five million ringgit, whichever is the higher. [31] Based on these reasons, I find that the alleged act of the applicant would definitely constitute an offence under section 4(1)(a) of the AMLATFPUAA if it had taken place in Malaysia, satisfying the element of dual criminality under section 20(1)(c) of the Extradition Act 1992.

Whether the applicant had provided substantial grounds to satisfy the court to believe in the existence of the circumstances in subparagraphs (i) to (v) of section 20(1)(d) [32] In the present application, the applicant filed two affidavits. One (Enclosure 2) is in support of his application and the other (Enclosure 8) is in response to the affidavits filed for and on behalf of the respondents. The other affidavit (Enclosure 26) is only for the purpose of exhibiting the grounds of judgment 48 of the learned Sessions Court Judge in allowing the application of the Public Prosecutor for the issuance of the warrant for committal. [33] In the two affidavits, the averments relate to, among others, the following matters:

the applicant’s initial arrest was invalid and unlawful for the following reasons:

the grounds and allegations of facts relied on in the application for the warrant for committal did not fall under the subject matter and scope of the

(ii) the warrant for committal is against the Federal Constitution, 49

the warrant of arrest dated 13.02.2019 issued by the Honourable Joel Schneider, the US Magistrate Judge of the District Court of New Jersey is without merit and bad in law;

there was no substantive evidence to associate the applicant with the alleged offence. Even if the offence were committed (which is denied), it was committed in China and not in Malaysia. Further, the applicant had never set foot in the US; and

the element of dual criminality has not been proved. [34] In considering the affidavits filed by the applicant before the Sessions Court, the learned Sessions Court Judge in her judgment said the applicant had not raised any substantial grounds to satisfy the court to believe in the existence of the circumstances in subparagraphs (i) to (v) of section 20(1)(d) of 50 the Extradition Act 1992. In her well-written judgment, the learned Sessions Court Judge said as follows: “[40] Mahkamah telah meneliti hujahan kedua-dua pihak, fakta serta keterangan afidavit dan dokumen-dokumen yang dieksibitkan. Mahkamah mendapati kandungan Afidavit Balasan Responden dan Afidavit Balasan Responden II tidak membangkitkan sebarang pembelaan yang boleh dikemukakan menurut Seksyen 20(1)(d)(ii), 20(1)(d)(iii), 20(1)(d)(iv), 20(1)(d)(v) dan 20(1)(e) di bawah Akta Ekstradisi.”. The learned Sessions Court Judge also added that the averments were bare assertions without condescending to the relevant material facts. [35] I am satisfied that the learned Sessions Court Judge had properly considered the affidavits filed by the applicant in finding that the applicant had not brought himself within any of 51 the circumstances under section 20(1)(d) of the Extradition Act

Similarly, in the present application too, the applicant had not avail himself of the same. In the circumstances, I find that the applicant has not satisfied the court to believe in the existence of the circumstances in subparagraphs (i) to (v) of section 20(1)(d) of the Extradition Act 1992. Conclusion [36] In the circumstances, I find that there is no impropriety in the grant of the warrant for committal by the learned Sessions Court Judge. I hereby dismiss the applicant’s application for a writ of habeas corpus and uphold the warrant for committal granted by the Sessions Court to detain the applicant pending the issuance of the order by the Minister for his surrender. Dated 16 March 2020. sgd AHMAD SHAHRIR MOHD SALLEH JUDICIAL COMMISSIONER HIGH COURT KUALA LUMPUR. 52 For the applicant: James Ee Kah Fuk Lee Ewe Kiang (Messrs. K.F. Ee & Co.) For the respondents: Faizul Aswad bin Masri Suloshani Vijendran Senior Federal Counsels, Attorney General’s Chambers.