孟晚舟案要反转吗？

老福

很奇怪，根据最近的报道 (https://www.theglobeandmail.com/ ... ions-us-allegation/)，孟晚舟案的法官在庭审提问时竟然说U.S. allegation is unclear。在整个法律程序的这个阶段提出这样的问题，非常令人吃惊。这是孟晚舟案反转的信号吗？

最核心的部分是黑体部分，基本上法官这样问的：既然美方指控孟晚舟“falsely misrepresented that Huawei didn’t control Skycom”(而且汇丰银行事先不知道华为和Skycom的真实关系)，那么汇丰银行怎么可能仅仅因为孟晚舟说Skycom一切合规没有触犯禁运令就相信Skycom没问题呢？这是一个悖论，二者不可能同时成立。黑体的后半部分是前面一段的后续，法官表示怀疑孟晚舟的presentation会导致汇丰银行触犯法律。

上述论述听起来更像孟晚舟的律师在替她辩护，而且也是法官拒绝接受的新证据要说明的部分。

下面是具体的报道，包括法官的原话。

A B.C. Supreme Court judge who must decide whether Meng Wanzhou can be extradited to New York to face a fraud charge says she doesn’t understand the U.S. allegation against the Chinese executive.
。。。
Before Robert Frater, lawyer for the Attorney-General, could begin to lay out the evidence, Associate Chief Justice Heather Holmes of the B.C. Supreme Court questioned whether the U.S. had explained the essence of the crime it alleged Ms. Meng had committed – and in particular, its connection to sanctions against Iran.

“I’ve had great difficulty understanding,” she said. The judge – a former prosecutor specializing in corporate crime – went on to pose questions about how the United States set out the allegations in the record of the case (ROC) it supplied to Canadian authorities.
。。。
Ms. Meng is charged with fraud for allegedly misrepresenting to HSBC, in a PowerPoint presentation in Hong Kong in 2013, Huawei’s links to Skycom Tech Co. Ltd., another technology company. The U.S. alleges her misrepresentations exposed HSBC to the risk that it would be punished, criminally or civilly, for violating U.S. sanctions on Iran in dealings with Skycom and Huawei.
。。。
“What I don’t understand,” she told Mr. Frater, “is whether the simple fact of dealing with government in Iran would be viewed as offside sanctions.”

“No,” Mr. Frater replied. “It is clear there is good Iran business and bad Iran business.”

“Can you show me that in the ROCs?” (The ROCs are the documents that lay out the evidence and explain the alleged crime.)

Mr. Frater acknowledged: “There isn’t a clear statement of ‘here’s what’s on one side of the line’ and ‘here’s what’s on the other.’”

He said there was a “reasonable inference” that some Iranian business was legal, from the fact that Ms. Meng was candid about doing business in Iran.

“She admits that they’re doing business in Iran. She admits they work … with Skycom. No point in making that admission if all activity in Iran was proscribed,” Mr. Frater said.

“I have been troubled by this issue,” the judge said. “What I’m trying to get at is how does the ROC make all of that clear? That certain things engage sanctions and other things don’t. Because it’s only with that background that one can assess what’s said in the PowerPoint as to whether it was deceptive.”

Mr. Frater said he would get back to her on the point after the lunch break. When they reconvened, he said Huawei was certainly doing permissible business in Iran – but transactions in U.S. dollars put through in the United States were prohibited.

The judge also asked about possible contradictions in Mr. Frater’s summarizing of the case against Ms. Meng: that she told HSBC there was no risk of sanctions violations from Huawei or Skycom, while failing to disclose the true relationship between the two companies.

Associate Chief Justice Holmes said: “As I understand your theory ... the bank had nothing to worry about as far as sanctions violations went because Ms. Meng or Huawei could assure the bank that Skycom was in compliance. Doesn’t that run counter to the theory ... that she falsely misrepresented that Huawei didn’t control Skycom? In other words, how would she be able to give that assurance ... in a way that would be satisfactory and convincing to the bank unless Huawei was in full control of Skycom?”

Mr. Frater said he didn’t see the inconsistency.

The judge then asked whether it was reasonable to suppose that a large bank with risk committees would rely on one individual’s assurance about companies not under its control.

The meeting between Ms. Meng and HSBC was arranged after Reuters published articles suggesting Skycom, which it said had “close ties” with Huawei, was violating sanctions. Associate Chief Justice Holmes expressed skepticism several times that the bank was truly put at risk by Ms. Meng’s presentation after it received a clear warning of sanctions violations in the Reuters reports. For fraud to have occurred, HSBC would have had to face a risk from the misrepresentations.

征久仁

我感觉不太乐观，枫叶政府对中国说不是损失钱，对山姆大叔说不可就没命了。

老福

征久仁 发表于 2021-8-13 08:11
我感觉不太乐观，枫叶政府对中国说不是损失钱，对山姆大叔说不可就没命了。 ...

是这样，法官的问题，本来应该是孟晚舟的律师在双重犯罪那一段提出的。正常情况，如果孟晚舟的律师那时没有提出，现在法官也不会自己主动去问。事出反常即为妖，所以才有孟晚舟案是否反转的问题。

从大局来看，指控孟晚舟是懂王时期的事。对拜登政府而言，即使不喜欢这个指控，也不可能主动撤案，否则会被共和党从政治上攻击。现在如果加拿大法官从法律的角度否定引渡，对拜登政府而言反而是解套。如果真的引渡了，孟晚舟就会成为美国的烫手山药，因为汇丰银行的新证据明确说明美方的指控不能成立，到那时美国怎么办？

togo

有点象是为孟公主甩锅。你那么大的银行，应该有自己的风险评估部门，不应该听随便一个人的说法

asquyd

袁绍大败，大家都说这下该听田丰的话了。田丰却说：“我军胜了，我一定能活下来。现在我死定了。”果然，袁绍回来就把田丰杀了。

孟晚舟要是石锤在加拿大杀了个人，反倒肯定不会有什么问题。川皇会亲自说情礼送回国。

所以现在孟晚舟是必然送引渡的。今生能不能再见上老爹一面都很难说。

老福

那篇报道下网友的评论(很明显，网友普遍认为法官的问题非常有利孟晚舟)：

Fred888：

the US case has taken a broadside hit.  It's taking on water.  The US could make it go away by signaling they might turn the other way if the Minister of Justice withdrew support for extradition on the grounds raised by Justice Holmes.
This could end sooner than we expect.  On the other hand, Schreiber's case took around ten years.  Schreiber didn't want to leave and Meng doesn't want to stay.

Cynical in Toronto:

Canada never should have arrested Meng.  Thank you, Jody Wilson-Raybould, you could have denied the Trumpian request, but instead, you got pushed over.  And let's not forget that Trudeau knew about this before it happened, too.

Spineless Canadians.  I am no China fan, but in this case I hope Meng gets released.  

APK:

I’d bet that if lawyers and judges were paid on a per-case basis, rather than a per hour salary, justice would be more efficient by orders of magnitude.
The Meng trial would have been over long ago.

montrealer0:

As in vague.
Politically motivated.

Hyphenated Canadian:

Meng is getting off.

Goerge Not Bush:

I see a lot of judge blaming for how long the case has dragged on. But judges are duty bound to hear the cases brought before them.

The weaknesses in the case against Meng have long been apparent, but the Minister of Justice and Attorney General has been insistent on prosecuting this case to the max (and letting the two Michaels rot).

Lametti and his predecessor could have put a halt to this questionable case (and gotten the two Michaels back) years ago.

Brendan P. Dick:

You can’t help and wonder if even Ms. Wanzhou realized the glacial pace of the Canadian judiciary, year and half in and the judge only now is clueing in on the case, The obvious explanation is that Canadian judges don’t think anyone who is “white collar” can commit a crime.
So Meng isn't expedited because she landed in a country that allows all corporate crooks to go free, then what, the Americans don’t play by that rule, they’ll understand their case, so will judges and juries and getting out of the true great North only brings you a reprise, not freedom.
It’s big world and one day in the future she could find herself landing in a country that has faster learners.
my suggestion concede defeat, face the charges get this behind you, if the case is that weak then you’ll really go free, the alternative, Canada sets you free you go back to China the bastion of due process, or worse the plane has an emergency landing in Alaska

George Not Bush:

    The government needs only to make the case that, if the crime were alleged to have happened in Canada, the evidence was sufficient to send it to trial.

Wrongly framed – Correct framing is:

    The government needs only to make the case that, if the crime were alleged to have happened between two foreign nationals in another country, Canada would have criminal jurisdiction if the evidence was sufficient to send it to trial.

Mikhailovich:

So this "extradition" is about unilateral US sanctions which have no standing in international law, are therefore illegal, and are in fact, or could be interpreted as acts of war. Of course you can argue that since the US did it, everything is OK, because in effect the US sets its own "laws" of conduct which ipso facto are legal everywhere. That is not the way that "international law" is supposed to work.  The judge asked interesting questions, but the one interesting question she did not ask is whether US unilateral sanctions should be enforced in Canada.  Clearly, they should not if Canada still counts itself an independent state. And all of this, spoiling Canadian-Chinese relations, over a PowerPoint presentation in 2013!  This is nuts.

yukon:

The Judge knows the Liberals need the CCP support with the upcoming election.

Well played Judge, Supreme Court next perhaps?

Michele K:

The judge – a former prosecutor specializing in corporate crime –

What a shame that you are trying to turn this into something political, whereas the judge is actually schooled in all areas necessary to judge this matter.

I think I'll go with Madame Justice over anything you've got to say on the matter.

Wangster75:

so there is good business and bad business in Iran? I was led to believe or have the perception that doing any business with Iran is on United States bad books.  Who decides and what a joke this has become....I sincerely hope Canada get out of being the middleman here

TH16:

You are right.  We are all losing brain cells trying to figure out the legal arguments.  

But you nailed it in the last sentence. At heart, our high minded legal system is getting used for a power play.   We have two seven year olds fighting in a sandbox.  And Canada is the sandbox, getting trampled on.  

BlahBlahBlahh:

This has been one of the most interesting events to watch. I learn about international affairs, law, sanctions, class structure in China. Fascinating.
I hope the judge's questioning will get Meng off our hands and the two Mike's freed. Otherwise I understand there are years more appeals Meng can make.
Although if she gets freed 3 years after being detained, it will make our constant claims of 'Canada follows the rule of law.' seem weak. If our law allows this, what good is it really?

老福

togo 发表于 2021-8-13 08:52
有点象是为孟公主甩锅。你那么大的银行，应该有自己的风险评估部门，不应该听随便一个人的说法 ...

是的，晨大的记录里说加拿大检方提出以“无损失诈骗”罪名判定引渡，这就是说法官的问题起作用了。但是这样一来，美国就失去了管辖权。因为即使孟晚舟对汇丰银行撒谎，如果没有造成汇丰违反美国禁运的损失，美国对孟晚舟和汇丰都没有管辖权，事情发生的地方在香港美国也没有管辖权。没有管辖权，美国凭什么指控孟晚舟。引渡的基础就不存在了。

老福

asquyd 发表于 2021-8-13 08:53
袁绍大败，大家都说这下该听田丰的话了。田丰却说：“我军胜了，我一定能活下来。现在我死定了。”果然，袁 ...

类比似乎不成立。拜登不是懂王，我觉得他不会认为摆脱一个烫手的土豆是个坏事情。

雷达

老福 发表于 2021-8-13 09:08
类比似乎不成立。拜登不是懂王，我觉得他不会认为摆脱一个烫手的土豆是个坏事情。 ...

孟已经没有什么太大价值了，就是怎么收尾好看一点

老兵帅客

asquyd 发表于 2021-8-12 19:53
袁绍大败，大家都说这下该听田丰的话了。田丰却说：“我军胜了，我一定能活下来。现在我死定了。”果然，袁 ...

嗯，想出来一个办法，把吴签送到温哥华去，让孟杀，然后大家都happy了。

征久仁

老兵帅客 发表于 2021-8-13 09:56
嗯，想出来一个办法，把吴签送到温哥华去，让孟杀，然后大家都happy了。 ...

加拿大人不能鼓励外国人杀害加拿大人啊，这是两条人命啊

老兵帅客

征久仁 发表于 2021-8-12 21:09
加拿大人不能鼓励外国人杀害加拿大人啊，这是两条人命啊

大义灭亲嘛

老福

原来孟晚舟的罪状是这个：
Frater accused Meng of making statements to the banker that “went to some length to demonstrate that Huawei had a rigorous approach to sanctions compliance, and that Huawei demanded the same of any partners working in Iran.”

She neglected to tell the banker that Huawei controlled the company, Skycom, that was the subject of HSBC’s concern, he said.

“It’s about leaving an impression. And the message was received exactly as it was intended,” Frater said.
就算孟晚舟回避直接回答问题，难道不是汇丰银行的责任要求对方直接回答问题吗？奇怪的加拿大逻辑。

链接

嘉洲

最有可能剧本是孟一直上诉到大家拿最高法庭，拖着。

hsb

发出逮捕令的那个米国法官荣升似乎是解套步骤之一。
先是不接收华为提交的最新汇丰证据，最后来一把极限施压。但中国不吃这一套，津门下清单。
米加开始找退路，荣升上面那个法官，可以有选择让后任来解套。
中国再判个11年，意志明确。米、加开始退却。

嘉洲

hsb 发表于 2021-8-13 11:37
发出逮捕令的那个米国法官荣升似乎是解套步骤之一。
先是不接收华为提交的最新汇丰证据，最后来一把极限施 ...

还是师母已呆吧。美加有这么好拿捏？如今睡王团伙正到处给土共上眼药呢。

晨枫

奇怪的是，为什么她没有在去年5月判决是否符合双重犯罪时提出呢？当然，那时还没有汇丰文件。

有一个可能是：拜登在对华关系上已经无棋可走，所以用孟晚舟撤销引渡作为对华姿态，换取中国在其他方面的让步？

嘉洲

晨枫 发表于 2021-8-13 12:45
奇怪的是，为什么她没有在去年5月判决是否符合双重犯罪时提出呢？当然，那时还没有汇丰文件。

有一个可能 ...

您觉得中国会因为孟晚舟在其他方面让步吗？放孟是双方重回谈判桌的一个前提，即所谓清单列表。如今这世道，是谁求着谁呢？

晨枫

嘉洲 发表于 2021-8-12 23:33
您觉得中国会因为孟晚舟在其他方面让步吗？放孟是双方重回谈判桌的一个前提，即所谓清单列表。如今这世道 ...

中国肯定不能啊。在天津根部不提关税的事，又把麦克给判了11年，摆明了就是“赶紧放人，谈条件没有”。

老财迷

老福 发表于 2021-8-13 08:28
是这样，法官的问题，本来应该是孟晚舟的律师在双重犯罪那一段提出的。正常情况，如果孟晚舟的律师那时没 ...

是，真引渡到美国，美方也不好处理。中国不是法国那么容易糊弄，印象中欧洲在这事情上没说过一句话，大家心里都清楚。
这事对美方而言，最好还是在加拿大就结束。

但另一方面，中国宣判了2个加拿大人，应该是中、加在桌下没谈妥。