Robert Tantular v HM Attorney General

JurisdictionJersey
CourtRoyal Court
JudgeJ. A. Clyde-Smith O.B.E.,Clyde-Smith
Judgment Date08 April 2020
Neutral Citation[2020] JRC 58
Date08 April 2020

[2020] JRC 58

ROYAL COURT

(Samedi)

Before:

J. A. Clyde-Smith O.B.E., Commissioner

In the Matter of the Proceeds of Crime (Jersey) Law, 1999 as Modified by the Proceeds of Crime (Enforcement of Confiscation Orders) (Jersey) Regulations, 2008

And in the Matter of Saisies Judiciaires in Respect of the Realisable Property of Robert Tantular

Between
Robert Tantular
Representor
and
Her Majesty's Attorney General
First Respondent

and

The Viscount
Second Respondent

and

H1 Trust Company Limited
Third Respondent

and

Tan Chi Fang
Fourth Respondent

and

Jason Ray Tan
Fifth Respondent

and

Michelle Tantular
Sixth Respondent

and

Sandy Tantular
Seventh Respondent

and

Credit Suisse AG Singapore Branch
Eighth Respondent

Advocate M. L. Preston for the Representor.

Her Majesty's Solicitor General for the Attorney General.

Advocate C. F. D. Sorensen for the Viscount.

Authorities

Proceeds of Crime (Jersey) Law 1999.

Proceeds of Crime (Enforcement of Confiscation Orders) (Jersey) Regulations, 2008.

Tantular v AG [2014] JRC 243.

Rex v Williams & Another [1942] AC 541.

Brassard v Smith [1925] AC 371.

Tantular v AG [2014] JRC 128.

British South Africa Co v Companhia de Moçambique [1893] AC 602.

King v Director of the Serious Fraud Office [2009] 1 WLR 718.

Morrison v National Australia Bank Ltd 561 US 247 [2010].

Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005.

Proceeds of Crime Act, 2002.

( King v HM Procureur 2011–12 GLR 285).

In the matter of the representation of Kaplan [2009] JLR 88.

Security Interests (Jersey) Law 2012.

S D Freeman and Ors v Ansbacher Trustees (Jersey) Limited [2009] JLR 1.

In the matter of the realisable property of Arnold Bengis [2018] 1 JLR 377.

R v Richards [2008] EWCA Crim 1841.

Mirchandani v Somaia and Anor [2017] EWHC 1038 (QB).

R (on the application of KBR Inc) v Director of the Serious Fraud Office [2019] QB 675.

Criminal Justice Act 1987.

Mitchell, Taylor and Talbot on Confiscation and the Proceeds of Crime.

Baroque Trust Company Limited and Ors v The Viscount [2004] JRC 066

In The Matter of Hindelang [2004] JLR Note 17.

In re Doraville [2016] (2) JLR 44.

In re Rosenlund [2015] (2) JLR 29.

AG v Ljungman [2014] (2) JLR 1.

United States v Abacha [2015] WLR 1917.

Republic of Nigeria v Doraville Properties Corporation [2017] (1) JLR 46.

Macmillan v Bishopsgate Investment Trust Plc (No 3) [1995] EWCA Civ 55

Saisies Judiciaires — are the Court's powers limited to property situated in Jersey?

THE COMMISSIONER:
1

This case concerns a point of statutory construction, namely whether a saisie judiciaire imposed under Article 16(1) of the Proceeds of Crime (Jersey) Law 1999, as modified by the Proceeds of Crime (Enforcement of Confiscation Orders) (Jersey) Regulations, 2008 (“the Modified Law”), is limited to property situated in Jersey, as contended by the Representor.

Background
2

On 9 th August 2013 and 3 rd September 2014, the Court granted the Attorney General two saisies judiciaires over the realisable property of the Representor, pursuant to Article 16(1) of the Modified Law. The application was made at the request of the Indonesian Government following the convictions in Indonesia of the Representor for fraud and money laundering offences. The two Acts of Court are in the same terms, and taking the first, it recites as follows:

“(1) that pursuant to paragraph (1) of Article 16 of the 1999 Law, as modified and included in the 2008 Regulations, a Saisie Judiciaire be granted in respect of the realisable property situate in Jersey of Robert Tantular (hereinafter referred to as “Tantular”) (whether movable or immovable, vested or contingent) which, without prejudice to the generality of the foregoing, is known to include assets held by BOS Trust Company (Jersey) Limited 3 rd Floor, Forum House, Grenville Street, St Helier, [now H1 Trust Company Limited] as trustee of the Jasmine Investment Trust and its underlying companies, which, without prejudice to the generality of the foregoing, includes:-

(i) movable property including securities, investment stocks, shares (including bearer shares), promissory notes, bonds, funds or currency in whatever form held within the Jasmine Investment Trust and its underlying companies;

(ii) balances standing to the credit of accounts held in the name of the Jasmine Investment Trust and its underlying companies;

(iii) the benefit of any loans made by [H1 Trust Company Limited] as trustee of the Jasmine Investment Trust or by the directors of its underlying companies; and

(iv) immovable property held by the companies underlying the Jasmine Investment Trust;

(2) that, save to the extent envisaged by paragraph (4) below, [H1 Trust Company Limited] be prohibited from dealing with any realisable property of Tantular at present held by it or transferred to it after the making of this present Order;

(3) that thereafter, in view of the statutory duties placed upon him by paragraph (4) of Article 16 of the Modified 1999 Law, the Viscount be directed to take possession of all the realisable property situated in Jersey of Tantular and to manage or otherwise deal with the same in accordance with the Court's directions;

(4) that [H1 Trust Company Limited] be permitted to manage or otherwise deal with the assets of the Jasmine Investment Trust under the direction of the Viscount.”

3

The Representor does not hold any property in Jersey. All that is situated in Jersey is H1 Trust Company Limited (“H1”), a Jersey incorporated and regulated trust company, in its capacity as trustee of the Jasmine Investment Trust, a discretionary trust governed by Jersey law. In that capacity H1 has a limited amount of cash, but otherwise owns the issued shares in the British Virgin Island incorporated company Jonzelle Limited (“Jonzelle”). The share register identifies the shareholders of Jonzelle as Helm Management Limited, a Jersey incorporated company, at the same address as H1. Helm Management Limited has executed a document stating that it holds the shares in Jonzelle as “…. nominee of and as trustees on trust for …. H1 … as trustee of the Jasmine Investment Trust (hereinafter called ‘the owner’) …”. Helm Management Limited gives a number of undertakings in the same document, including an undertaking to exercise its rights as shareholder at the direction of “ the owner”. I understand that the share certificates are at the offices of Helm Management Limited in Jersey. The directors of Jonzelle are officers of H1 and also resident in Jersey. In short H1 owns and controls Jonzelle.

4

The sole material asset of Jonzelle is a residential property situated in Singapore, namely 26 Cuscaden Road, #20–03 Cuscaden Residence, Singapore 249722. The Singapore property is mortgaged to the Eighth Respondent, Credit Suisse, which has taken or is in the process of taking possession with a view to its sale. It is anticipated that the net proceeds of sale of some US$4 million will flow back up to H1.

5

A number of gifts have been made by the Representor to the Jasmine Investment Trust. In its judgment of 8 th December 2014 ( Tantular v AG [2014] JRC 243), the Court found that gifts totalling some US$1.6 million were caught by the Modified Law, but I am given to understand that figure may extend to gifts of some US$7.3 million.

6

Advocate Preston, for the Representor, submitted that the share certificates in relation to Jonzelle are not in themselves title to the shares but merely evidence of such title and that the physical location of the share certificates does not determine their situs for legal purposes ( Rex v Williams & Another [1942] AC 541). Instead, the legal situs of shares in a company is the place where the shares can be effectively dealt with – Brassard v Smith [1925] AC 371. The shares in Jonzelle are ordinary shares that are recorded on a register in the BVI and it was clear, he said, that they do not constitute property held in Jersey. Subject to the caveat to which I refer later, the case proceeded on the basis that it was concerned with property situated outside Jersey.

The Modified Law
7

The 2008 Regulations were made under Article 28A and Article 38 of the Proceeds of Crime (Jersey) Law 1999 (“the 1999 Law”), which Articles are concerned with the recognition and enforcement of foreign confiscation orders. By the 2008 Regulations, the 1999 Law is modified in the manner set out in the Schedule. The law as modified is reproduced after the Schedule for illustrative purposes only. Counsel confirmed that no issue arose in the Court relying upon the Modified Law as illustrated.

The Modified Law
8

I now set out the key provisions which stand to be construed, starting with the operative provision of Article 16, so far as is relevant:

“16 Saisies judiciaires

(1) The Court may, subject to such conditions and exceptions as may be specified in it, make an order (in this Part referred to as a saisie judiciaire) on an application made by or on behalf of the Attorney General on behalf of the government of a country or territory outside Jersey .

(2) …

(3) …

(4) Subject to paragraph (5), on the making of a saisie judiciaire –

(a) All the realisable property held by the defendant in Jersey shall vest in the Viscount;

(b) Any specified person may be prohibited from dealing with any realisable property held by that person whether the property is described in the order or not;

(c) Any specified person may be prohibited from dealing with any realisable property transferred to the person after the making of the order;

And the Viscount shall have the duty to take possession of and, in accordance with the Court's directions, to manage or otherwise deal with any such realisable property; and any specified person having possession of any realisable property may be required to give possession of it to the Viscount .

(5) Any property vesting...

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1 cases
  • Robert Tantular v HM Attorney General
    • Jersey
    • Court of Appeal
    • 12 November 2020
    ...HM Attorney General in person Authorities Proceeds of Crime (Jersey Law) 1999 In the matter of the Saisies Judiciaires of Robert Tantular [2020] JRC 058. Doraville Properties Corporation v Attorney General [2017] (1) JLR 64 In the matter of the Realisable Property of Tantular and Ors v AG [......

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