'92-09-16 16:25 CLIFFORD CHANCE PARIS 1 44055200
The discussion which took place with Mrs. passe-Dessen and Prof. Cohen focused essentially on whether the Ministry of Justice has the right to refuse the extradition for strictly legal reasons. The Ministry of Justice can indeed refuse to extradite on political or human rights grounds. Apparently, all the arguments which are conceivable against the position supported by the Ministry of Justice were made by Mrs Masse and Prof. Cohen including the fact that the public Prosecutor of Versailles (who is subordinated to the Minister of Justice) lodged submissions before the Chambre d'Accusation in favour of the extradition (and beyond what was finally accepted by the Chambre d'Aqquzation),
It is of course debatable that the French Governzent would reserve the right to make findings of law against its own pleadings, the decision of a Chambre d'Accusation and the supporting decision of the Cour de Cassation, especially also if one considers thet the characterisation of the reproachable facts as "escroquerie" was not even challenged by Mr. Saniman in his petition to the Cour de Cassation.
The res judicata issue is strictly an issue of procedure and has been discussed at length. The issue whether the offence of "escroquerie" was committed by Mr. Saniman is also an issue of fact. On this particular issue, Mrs. Masse agreed to supply the Ministry of Justice with an additional note.
The scope of that note has been the subject of discussions for the last five days between ourselves, Prof. Cohen and Mrs. Masse. Prof. Cohen thought that it could be appropriate to indicate in this note to the Ministry of Justice chat, even if the conditions for the commission of the offence of "escroquerie" were not met, the facts reproached to Mr. Seniman would still constitute a punishable fence undef French criminal law (1.e. "abus de confiance" abuse of trust under article 408 of the Criminal Code). As briefly explained to you by telephone yesterday. I was not in favour of that approach because it implied that we could agree that the 1990 request, the submissions of the Versailles Public Prosecutor and the two court decisions could be wrong and also because:8 re-characterisation of that scrt could only be cosmetic failing an entire review of the file. I also thought that evan such a full review of the file would not permit to re-characterise the action' reproached to Mr. Saniman in a satisfactory manner, bearing in mind that the 1990 request had been drawn up with the assistance of the office of the Public prosecutor in Paris. Lastly, in the event of the starting of contentious action, this note could be used against us.
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Mrs. Massa supported that point of view and indicated that, in her view, the note should confirm that the advocates of the Hong Kong Government consider that the conditions for the offence of escroquerie set out in article 405 are met and should only supply a short narrative to that effect (1.8. evidencing the canoeuvres reproached to Mr. Saniman which peraitted th making of the loans to the group of Mr. George Tan).
This note is being prepared jointly with Mrs, masse and Prof. Cohen and will be supplied to the Ministry of Justice probably on Friday. It is a technical gnote involving only the advocates of the Hong Kong Government and the lawyers of the Ministry of Justice and will remain confidential. It will not alter the position taken so far by the Hong Kong Government.
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