Justice Minister Chris Ellison has given an unprecedented “phooey!” to an extradition request from Hong Kong – but is there a political dimension involved?

China combines the worst of both worlds – the most repressive aspects of communism with capitalism at its most exploitative.

However, everyone busily sucks up to Beijing and politely looks the other way – Australia included.

All which made it a little odd when Justice Minister Chris Ellison made an unprecedented decision to block the extradition of two Australians, David Hendy and Carl Voigt, to Hong Kong on corruption and bribery charges.

The Sydney Morning Herald reported the matter on February 1. The full story is at http://www.smh.com.au/articles/2004/02/01/1075570293749.html, but here’s the gist of the yarn:

“A decision by the federal Justice Minister, Chris Ellison, to block the extradition of two Australian businessmen to face charges in Hong Kong for an alleged construction scam is causing widening controversy in the Asian financial centre.

“An editorial yesterday in Hong Kong’s leading English-language newspaper, The South China Morning Post, called the decision ‘baffling – and worrying’.

“This is the first time since 1997, when Hong Kong returned to Chinese rule, that a request for fugitives to be returned for trial had been turned down by the Australian Government after being cleared by the courts…

“The two Australians, David Roger Hendy of Perth and Carl Voigt of Brisbane, were arrested by Australian Federal Police in October 2002 at the request of Hong Kong’s Independent Commission against Corruption, for alleged involvement in a defective pilings scam at a residential building project in Hong Kong…

“Four others have been charged in relation to the scam, found guilty and given jail terms of two to five years. The two Australians left Hong Kong before the ICAC investigation started.

“An Australian court approved the extradition request late last year, but Senator Ellison refused to authorise it, giving no reasons…”

That’s basically been it at the Australian end, but in Honkers the South China Morning Post has stayed with the story – and last week it floated a new, intriguing angle.

Ellison went on the record in a SCMP article by senior investigative reporter Peter Michael and correspondent Louise Pemble that included this par:

“Senator Ellison denied having had contact with Hendy and said he was unaware of any link between the Perth-based businessman and the Liberal Party.”

Say what?

Ellison has released a statement to the Post saying he was not obliged to explain his decision.

And according to the paper, “Prime Minister John Howard’s office, Foreign Affairs Minister Alexander Downer and the Australian consulate in Hong Kong refused to comment.”

The Post did report, however, that Shadow Attorney-General Robert McClelland has said the opposition “will be seeking a fuller explanation of this matter.”

Labor heavies and Crikey fans John Faulkner and Robert Ray raised the extradition issue in the Senate twice last week, in questions on Tuesday and Wednesday, but concentrated on the diplomatic and law enforcement angles and got the predictable non-answers from Ellison.

So what on earth inspired the South China Morning Post to raise the Liberal angle?

Crikey army, over to you.

And for anyone who’s interested, here are some recent stories on the matter from the Post:


South China Morning Post, 8 February 2004


Australia’s justice minister has refused to back down over his unprecedented move to block the extradition of two men wanted in Hong Kong on corruption and bribery charges, fuelling a growing diplomatic row.

Speaking for the first time since the controversy over two Australians, David Roger Hendy, 42 and Carl Voigt, 45 – who are wanted in connection with a piling scandal on a housing project – Chris Ellison, a Liberal Party senator, yesterday denied the Hong Kong authorities were upset at his decision, declaring the matter was at rest and “for the best”.

His comments come despite indications to the contrary by authorities in Hong Kong and the fact that the Department of Justice is now considering a move to seek leave for a judicial review of Senator Ellison’s decision to block the men’s extradition in the Australian courts.

An Independent Commission Against Corruption probe into the construction industry in 1999 revealed serious concerns about the safety of high-rises, according to court documents.

Several Hong Kong men have already been convicted in connection with the case.

Speaking in Perth yesterday, Senator Ellison said he had taken Hendy’s circumstances into account when making his decision, including his age, health and family situation, among others.

“It is rare for me to refuse an extradition request, but in this case after very careful consideration, I determined it was for the best,” he said.

Senator Ellison denied having had contact with Hendy and said he was unaware of any link between the Perth-based businessman and the Liberal Party.

He also denied that by blocking the extradition, he had soured relations between Australia and Hong Kong.

The extradition had been cleared by the Australian courts.

“I’ve had no legal action from Hong Kong, I’ve had communications with them on my reasons and that’s where the matter rests.”

It is understood Hendy has left the construction industry and is a director of a financial services company. He was unavailable for comment yesterday.

Meanwhile, lawyers and families of the wanted men said they were “equally stunned” that they had been set free.

“We had resigned ourselves to returning to Hong Kong to face trial,” Gail Voigt, 45, said. Lawyers told them they had “no chance”.

“When you look at the statistics of extraditions between the two countries the odds were just so heavily stacked against us,” she said from her home in Brisbane.

The men are alleged to have instructed staff to build short, sub-standard piles on a residential project in Tung Chung and then offered bribes to an engineer to fabricate construction records.

Australia’s federal opposition has said it will pursue the issue when Parliament resumes on Tuesday.


South China Morning Post, 6 February 2004


Australian Justice Minister Chris Ellison has come under renewed attack for refusing to surrender two men wanted in Hong Kong on corruption and bribery charges, with the federal opposition yesterday joining calls for an explanation.

Top-level officials from the Security Bureau, the Justice Department, the Independent Commission Against Corruption and senior politicians have been demanding an answer from the Perth-based senator, but without success.

Hong Kong authorities fear the unprecedented decision by the minister could harm relations between the two sides.

The two Australians, David Roger Hendy, 42, and Carl Voigt, 45, are wanted in connection with a piling scandal on a residential project.

The top-level ICAC probe into corruption within Hong Kong’s building and construction industry offered a “shocking insight” into serious concerns about the safety of Hong Kong high-rises, according to court documents.

The inquiry revealed the “frightening” and “grave hazard that (the Tung Chung development) might collapse and cause loss of life and serious injury”.

The number of people placed at risk could run into the hundreds, it warned.

Weighing into the political crisis yesterday, opposition spokesman for homeland security Robert McClelland vowed to throw his full support behind Hong Kong’s push for an explanation.

“The relationship between Hong Kong and Australia is important and mutually beneficial,” Mr McClelland said. “In particular, Australia and Hong Kong have worked well together (hellip) in the pursuit of justice for victims of crime.

“The Australian federal opposition is keen to ensure that the working relationship is maintained and that Australia and Hong Kong continue to work together to bring criminals before an appropriate court of law.

“Senator Ellison must be mindful of the mutual benefit that arises from this relationship in his handling of this matter.

“It is desirable that the reasons for these decisions are explained as fully as possible, and the Australian federal opposition will be seeking a fuller explanation of this matter.”

Prime Minister John Howard’s office, Foreign Affairs Minister Alexander Downer and the Australian consulate in Hong Kong refused to comment.

Senator Ellison yesterday released a statement to the South China Morning Post saying he was not obliged to explain his decision.

“The Australian extradition process involves the taking of submissions from the subject of the extradition request, seeking comment from the requesting country, and consideration of all this information by the minister,” the statement said. “In both the Hendy and Voigt cases the minister decided that surrender was not appropriate.”


South China Morning Post, 5 February 2004


Hong Kong authorities are today reviewing their options following the refusal by Australia to extradite two runaway Australians wanted in a high-profile ICAC investigation.

“We are examining the details of the cases and the implications with a view to determining the way forward,” said a government spokesman.

The two Australians, David Roger Hendy, 42, and Carl Voigt, 45, are wanted in connection with a piling scandal at a Tung Chung residential development.

Hendy has been charged with corruption, conspiracy to defraud and furnishing false information, while Voigt faces 14 similar counts.

The two former senior executives of a piling contractor were arrested by the Australian Federal Police in Perth and Brisbane on October 17 and 18 in 2002.

Both defendants left Hong Kong in early 1999 before the ICAC investigation was launched.

Officials from the government, the Security Bureau, the Justice Department and the ICAC have been embroiled in talks to try to resolve the impasse.

Assistant Director of Public Prosecutions Ian McWalters said yesterday the case was important because it was the biggest short piling investigation ever conducted by the ICAC as part of a probe into widespread corruption within the construction industry.

Barrister Kevin Egan, who has been closely following developments, described the Australian government’s actions as unusual.

“What I find striking and remarkable is the Australian justice minister has refused to authorise a decision which the Australian judicial process has endorsed and approved,” he said.

“Knowing the integrity of the Australian judicial process he (the justice minister) would not have done so unless he thinks he has very good grounds to refuse the extraditions.

“It is usually a rubber stamp down there as it is here for similar requests from the Australian Federal Police.

“It is unprecedented. You would have to fear the attitude taken by the Australians could deeply compromise existing relationships.”


South China Morning Post, 1 February 2004


Two men wanted in Hong Kong on charges of corruption and fraud were freed in Australia after the justice minister took the rare step of invoking his executive powers to quash their extradition.

The move, which was made despite the Australian courts approving their surrender, has stunned Hong Kong’s law enforcement officials and could threaten to undermine co-operation.

Australian Justice Minister Chris Ellison has refused to give Hong Kong an explanation for the rejection of requests and his spokesman has indicated he has no intention of doing so. A well-placed Hong Kong government source said it was unacceptable and could result in negative consequences. “In future if they come to us and ask for assistance we may have a problem co-operating with them,” he said.

The two Australians, David Roger Hendy, 42, and Carl Voigt, 45, are wanted in connection with a piling scandal at a Tung Chung residential development.

Hendy has been charged with 11 counts of corruption, conspiracy to defraud and furnishing false information, while Voigt faces 14 similar counts. Hendy was released from custody on Christmas Eve and Voigt on October 13.

Three other people are already serving prison sentences of two to five years in relation to the scandal.

In sentencing them, District Court Judge Richard Davies said: “As so often is the case, I am left to deal with foot soldiers. In this case, those who issued commands have escaped justice.”

A Department of Justice spokeswoman said the pair could face up to 20 years in prison if found guilty.

Security panel chairman James To Kun-sun said Senator Ellison must justify his decision. “We must demand an explanation,” Mr To said.

While Senator Ellison is not obliged to say why he made his decision, Mr To said it would be the polite thing to do.

“As a courtesy, and out of respect for a partner in the fight against crime, Australia must provide a satisfactory explanation. Otherwise it may hurt international co-operation,” he said.

Department of Justice deputy law officer Amelia Luk said it was the first time a government had exercised its executive powers to thwart extraditions that the judicial system had found were warranted.

“We were surprised (at Senator Ellison’s decision) because this is a fairly straightforward case in our mind,” Ms Luk said. “We view this very seriously.”

Australia and Hong Kong have had a seamless extradition relationship since the handover. A spokeswoman for the Independent Commission Against Corruption, which investigated the piling scandal, said: “As far as I can remember there has never been an incident of this nature with one of our cases.”

She said the case was now a matter for the two governments, but co-operation between the two jurisdictions’ corruption agencies was proceeding smoothly.

Extradition expert Michael Blanchflower SC said it was rare for a government to refuse an extradition request without explanation. “I’ve not come across a case where a requested country does not inform the requesting state of the reasons for a refusal,” he said.

Governments made extradition decisions knowing the possible political and diplomatic implications.

 

Peter Fray

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