Tan Chi Fang and 3 others (Respondents) v His Majesty’s Attorney General (Appellant) (Jersey)
Case ID: JCPC 2020/0012
Jurisdiction: Court of Appeal of Jersey
Whether Article 16 of the Proceeds of Crime (Jersey Law) 1999 as modified by the Proceeds of Crime (Enforcement of Confiscation Orders) (Jersey) Regulations 2008, permits the Jersey courts to grant a saisie judiciare (a freezing order) in relation to property outside Jersey at least where the persons who can exercise the rights of ownership or control are subject to the jurisdiction of the Jersey courts.
What the legal situs is of the shares in a Jersey company. It is in dispute between the parties whether leave has been granted on this issue.
When the Jersey courts have made a saisie judiciaire over property subject to a mortgage, whether it can prevent the mortgagee assigning its interest under the mortgage and power of sale to a third party. Whether a state that makes a request for mutual legal assistance in criminal matters is deemed to waive state immunity when the Attorney General commences the proceedings and becomes an ordinary party to them such that a costs order can be made against it.
Mr Robert Tantular was convicted of various offences, including fraud and money laundering in Indonesia. In connection with the convictions, the Indonesian authorities sought to enforce confiscation orders against Mr Tantular. The confiscation orders included an apartment situated in Singapore (the "Property") that was occupied by Mr Tantular's family (Mr Fang and three others) (the "Family Members"). The Property is owned by a Jersey company, which in turn is owned and controlled by the trustee of a discretionary trust governed by the laws of Jersey that Mr Tantular had settled in 2004. The class of potential beneficiaries of the trust includes Mr Tantular and members of his family. At the request for mutual legal assistance from the Indonesian authorities the Attorney General of Jersey sought and obtained two saisie judiciaires to restrain "the realisable property situate in Jersey of Robert Tantular" ("the Saisies").
Credit Suisse obtained a variation of the Saisies from the Royal Court, to permit it to exercise its power of sale under a mortgage over the Property. The Family Members applied to the Royal Court for a declaration that the Saisies did not prevent Credit Suisse assigning its interest in the mortgage to a third party, or, alternatively, for such orders and directions as would permit the assignment to take place. The Royal Court refused the application, but the Court of Appeal allowed the Family Members’ appeal and granted the declaration (the "Substantive Decision"). The Court of Appeal awarded costs against the Attorney General and Indonesia jointly and severally (the "Costs Decision").
The Attorney General appeals against the Substantive Decision and the Costs Decision to the Judicial Committee of the Privy Council (JCPC 2020/0012).
Mr Tantular sought the discharge or variation of the Saisies on the basis that on the proper construction of Article 16(4), as modified, saisies judiciaires could be imposed only upon realisable property that is "situate in Jersey." The Royal Court dismissed the application and the Court of Appeal dismissed the appeal. Mr Tantular now appeals to the Judicial Committee of the Privy Council (JCPC 2021/0010).
His Majesty’s Attorney General
Tan Chi Fang and others
Government of the Republic of Indonesia
Lord Sales, Lord Hamblen, Lord Leggatt, Lord Stephens, Lady Rose
Hearing start date
8 February 2023
Hearing finish date
9 February 2023