Tan Chi Fang and 3 others v HM Attorney General
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hamblen,Lord Stephens,Lady Rose |
| Judgment Date | 06 June 2023 |
| Neutral Citation | [2023] UKPC 21 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal Nos 0012 and 0018 of 2020 and 0010 of 2021 |
[2023] UKPC 21
Lord Sales
Lord Hamblen
Lord Leggatt
Lord Stephens
Lady Rose
Privy Council Appeal Nos 0012 and 0018 of 2020 and 0010 of 2021
Privy Council
Trinity Term
From the Court of Appeal of Jersey
Appellant – His Majesty's Attorney General
Collingwood Thompson KC
David O'Mahony
(Instructed by Charles Russell Speechlys LLP (London))
Appellant – Robert Tantular
Jeremy Cousins KC
Ian Smith
Timothy Hanson
(Instructed by Simons Muirhead & Burton LLP)
Respondents – Tan Chi Fang and 3 ors
Jeremy Cousins KC
Timothy Hanson
(Instructed by Simons Muirhead & Burton LLP)
Heard on 8 and 9 February 2023
Lord Hamblen, Lord Stephens AND
This is the judgment of the Board in three appeals all arising from the same dispute over the scope of two saisies judiciaires granted by the Royal Court in 2013 and 2014. They were granted in respect of the property of a Jersey based trust called the Jasmine Investment Trust (“the Jasmine Trust”) settled in 2004 by Robert Tantular. Mr Tantular was closely connected with an Indonesian bank called P.T. Bank Century Tbk. He has been convicted by an Indonesian court of offences of fraud and money laundering following two criminal trials in 2014 and 2015. The Indonesian authorities have made confiscation orders against him and have sought the assistance of the Attorney General of Jersey to gather in Mr Tantular's assets so that they can be applied to satisfy those confiscation orders.
One particular item of property which the Indonesian court wished to realise is an apartment in the Cuscaden district of Singapore (“the Singapore Apartment”). At the time that the saisies judiciaires were granted, that apartment was owned indirectly by the trustee of the Jasmine Trust. Mr Tantular and members of his family, some of whom were living in the apartment, are discretionary beneficiaries of the Jasmine Trust. Also at that time, the Singapore Apartment was subject to a charge in favour of the bank Credit Suisse SA in Singapore as mortgagee and the loan secured by that mortgage was in default.
The three issues raised by these three appeals can be expressed shortly as follows:
(i) The Jurisdiction Appeal Does the Jersey law pursuant to which the saisies judiciaires were granted by the Royal Court permit the saisies judiciaires to be made in relation to property situated outside Jersey at least where the persons who can exercise the rights of ownership or control of that property are subject to the jurisdiction of the Jersey courts? In this appeal Mr Tantular is the Appellant and the Attorney General is the Respondent.
(ii) The Mortgage Appeal If the saisies judiciaires are not limited to property within Jersey and do cover the Singapore Apartment, was the Court of Appeal right to grant a declaration that Credit Suisse as the holder of a charge over the apartment was entitled to assign its rights under that mortgage to a third party? In this appeal, the Attorney General is the Appellant and the First to Fourth Respondents are members of Mr Tantular's family. The Viscount of Jersey (who is the Chief Executive Officer of the Royal Court) is the Fifth Respondent and the Jasmine Trust is the Sixth Respondent. Neither the Viscount nor the Jasmine Trust has played any role in the proceedings.
(iii) The Immunity Appeal When the Attorney General is unsuccessful in an application connected with the saisies judiciaires such that Mr Tantular and his family became entitled to a costs order in their favour, can the state of Indonesia be made liable for those costs on the basis that it has submitted to the jurisdiction of the Royal Court either by instituting the proceedings brought by the Attorney General or by taking steps in those proceedings to support the making of the saisies judiciaires? In this appeal the Attorney General is the Appellant and the First to Fourth Respondents are members of Mr Tantular's family. Again, the Viscount and the Jasmine Trust trustee are the Fifth and Sixth Respondents but have not played any role in the proceedings.
In 1999, Jersey adopted the Proceeds of Crime (Jersey) Law 1999 (“POCL 1999”). This sets out the procedure whereby the Attorney General can apply to the Royal Court for a saisie judiciaire when someone is convicted of a criminal offence in the Jersey courts. The POCL 1999 contains a power to enable it to be applied in addition to the enforcement within Jersey of confiscation orders made in criminal proceedings pursued in overseas courts. Article 38 of the POCL 1999 empowers the States to make regulations directing that the POCL 1999 shall apply to external confiscation orders and to criminal proceedings begun in a territory outside Jersey which may result in an external confiscation order being made there.
Under that power, the States made Regulations in 2008, now called the Proceeds of Crime (Enforcement of Confiscation and Instrumentalities Forfeiture Orders) (Jersey) Regulations 2008 (“the 2008 Regulations”). The purpose of the 2008 Regulations was to enable the Attorney General to use the procedure set out in the POCL 1999 at the request of overseas territories which have criminal proceedings ongoing in their jurisdiction in the course of which they have imposed or are likely to impose their own confiscation orders on criminals. The 2008 Regulations are made up of nine regulations setting up the regime and a Schedule which modifies the provisions of POCL 1999 to make them appropriate for application for this new purpose. Regulations 2 to 6 deal with enforcing overseas confiscation orders in Jersey and regulation 7 deals with requests made by the Attorney General to an overseas court for assistance with enforcing a Jersey confiscation order.
Regulation 2 of the 2008 Regulations thus provides that the POCL 1999 “shall apply” to external confiscation orders with the modifications specified in the Schedule to the 2008 Regulations. Other regulations deal with, for example, how orders made by overseas courts are to be authenticated: regulation 3 and the evidence to be given about proceedings and orders in overseas countries: regulation 4.
Regulation 6 of the 2008 Regulations is important for the Immunity Appeal challenging the costs order made by the Court of Appeal against the Indonesian Government. That provides that the government of a country or territory outside Jersey “shall be represented” in any proceedings in the Royal Court by the Attorney General and that a request for assistance in the specified form constitutes the authority of that government for the Attorney General so to act.
The POCL 1999 as modified by the Schedule to the 2008 Regulations is referred to as “the Modified Law”. Some sections of the POCL 1999 are not needed at all for the new purpose; some provisions of the POCL 1999 apply just as they appear in the POCL 1999 itself and some provisions are modified. As well as setting out in a Schedule the changes that need to be made to the POCL 1999, the 2008 Regulations helpfully contain a consolidated version of the Modified Law.
The overall scheme of the Modified Law is broadly as follows. First the overseas authority sends a request for assistance to the Attorney General giving the necessary information about the criminal proceedings being pursued against the defendant. The Attorney General then applies to the Royal Court for a saisie judiciaire in effect freezing property up to the value of the actual or proposed external confiscation order. On the grant of the saisie judiciaire, the “realisable property” held by the defendant in Jersey vests in the Viscount and other property covered by the saisie judiciaire can be dealt with only at the Viscount's direction. Once the external confiscation order has been registered by the Royal Court pursuant to article 39 of the Modified Law, that Court may empower the Viscount to realise the property which is either vested in him or is otherwise in his possession pursuant to the saisie judiciaire: article 17. Once the Viscount has realised that property, he must make such payments out of the sums as the Court directs. After deducting his own fees and expenses, the Viscount then applies the remainder “on the defendant's behalf towards the satisfaction of the external confiscation order”: article 20. That amount is paid into the Criminal Offences Confiscations Fund, set up under article 24, in so far as needed to satisfy the amount specified in the external confiscation order. If there is any money left over, the Viscount pays it to the previous owners of the property as the Court directs.
The main articles of the Modified Law that are relevant to all three appeals are set out here.
Article 1 defines the term “external confiscation order” as follows:
“‘external confiscation order’ means an order made by a court in a country or territory outside Jersey –
(a) for the purpose of recovering property obtained as a result of or in connection with criminal conduct;
(b) for the purpose of recovering the value of property so obtained;
(c) for the purpose of depriving a person of a pecuniary advantage so obtained; or
(d) for the purposes of recovering property used in or intended to be used in such conduct or in predicate conduct outside Jersey or recovering property of equal value to such property;”
Article 15 of the Modified Law sets out when the powers of the Court to make a saisie judiciaire can be exercised:
“ 15 Cases in which saisies judiciaires may be made
(1) The powers conferred on the...
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