The United States Department of Justice Complaint and press release
150 The genesis of the article ultimately penned by Mr Garnaut and published by Fairfax was a "Sealed Complaint" filed on behalf of the Federal Bureau of Investigation and approved by Assistant United States Attorneys in New York. Mr Garnaut was alerted to the Complaint by a friend and colleague. Mr Garnaut's evidence was that he read and considered the Complaint.
151 The Complaint is a very lengthy and detailed document. It runs to 37 pages. It contains five counts or charges under United States law and details the factual allegations said to underlie those charges. Critically, in the present context, upon any close or careful reading, it provides precious little support for any of the imputations conveyed by the article. Had Mr Garnaut in fact closely and carefully read and analysed the Complaint, as he suggested he did, that should have been apparent to him.
152 The indictment names five defendants: Mr Ashe, Mr Francis Lorenzo, Mr Ng Lap Seng, Mr Jeff C. Yin, Ms Yan and Ms Piao (also known as "Park"). Needless to say, Dr Chau is not named as a defendant. Nor is he named or explicitly referred to in any part of the Complaint.
153 As already indicated, the Complaint contains five counts.
154 The first count is a charge of conspiracy to bribe a United Nations official. The defendants to that count are Mr Lorenzo, Mr Ng, Mr Yin, Ms Yan and Ms Piao. It is alleged that those defendants "and others known and unknown, willfully and knowingly did combine, conspire, confederate, and agree together and with each other to violate Title 18, United States Code, s 666". Mr Garnaut and Fairfax relied on the fact that this charge referred to persons "known and unknown" and suggested that Dr Chau was, or may have been, one of those persons. As will be seen, a careful reading of the indictment reveals that that reliance was largely misplaced or at best tenuous. It should also perhaps be added that such verbiage is not unusual in conspiracy counts. It tends to reveal very little.
155 The key particular of count 1 was that Mr Lorenzo, Mr Ng, Mr Yin, Ms Yan and Ms Piao "agreed to pay and to facilitate the payment of bribes to an individual serving as President of the United Nations General Assembly and the Permanent Representative to the United Nations ("UN") for Antigua and Barbuda ("Antigua"), in exchange for official actions on behalf of businessmen". Mr Garnaut and Fairfax relied on the allegation that the alleged bribes were paid on behalf of "businessmen". Dr Chau was said to be a businessman. As will be seen, even putting aside the obvious point that there are probably many millions of people who may be described as businessmen in China and elsewhere, a careful reading of the indictment again reveals that this reliance was in any event misplaced or, at best, tenuous. It suffices at this stage to note that a number of alleged bribes were paid to Mr Ashe. Only one of the alleged bribes could be said to have had anything whatsoever to do with Dr Chau.
156 The Complaint contains particulars of the overt acts of the alleged conspiracy. Only one of those overt acts could possibly be said to relate in any way to Dr Chau. That particular was in the following terms:
On or about November 4, 2013, YAN and PIAO arranged for a $200,000 wire to a bank account belonging to the President of the UN General Assembly from another co-conspirator not named as a defendant herein in exchange for the President attending a private conference in his official capacity.
157 Mr Garnaut and Fairfax relied on the fact that the alleged payment was said to have come from "another co-conspirator not named as a defendant herein". They contended that that co-conspirator was Dr Chau. There are some issues or weaknesses with that contention. First, though there are references later in the Complaint to a person referred to as "CC-3", this particular does not identify the alleged co-conspirator as CC-3. That may be contrasted with one of the other particulars, where the source of an alleged bribe was similarly referred to as a co-conspirator not named in the Complaint, but identified as "CC-1". Second, as will be seen, it was not directly alleged that the relevant payment came from CC-3. Rather, it was said to have come from "one of CC-3's companies". It does not follow that the payment came from, or was made on behalf of, or with the knowledge of, CC-3. No such direct allegation was made in the Complaint.
158 Count two in the Complaint is an offence against Title 18, United States Code, s 666(a)(2) and 2. This was the substantive offence which was the subject of the alleged conspiracy which was the subject of the first count. The defendants to the second count are Mr Lorenzo, Mr Ng, Mr Yin, Ms Yan and Ms Piao. The key particular of this count is that the defendants paid bribes to Mr Ashe in exchange for official actions on behalf of businessmen. It is noteworthy that there is no allegation that any other person, known or unknown, aside from the named defendants, was responsible for paying the alleged bribes. It was not alleged in count two that CC-3 paid any bribe to Mr Ashe.
159 Count three in the Complaint is a charge of "Conspiracy to Commit Transportation Money Laundering". It is unnecessary to say anything further about this count. There could be no basis for contending that it had anything to do with CC-3 or Dr Chau. Mr Garnaut and Fairfax did not contend otherwise.
160 The same can be said about counts four and five in the Complaint, which are charges against Mr Ashe alone. They relate to his income tax affairs.
161 Page 5 through to page 37 of the Complaint contains a detailed recitation of the factual allegations relating to the charges. The critical point to note about the factual allegations is that there is not a single direct allegation that the person referred to as CC-3 did anything to instigate or effect, or knew anything about, the payment which was alleged to constitute the relevant bribe paid to Mr Ashe.
162 The section of the Complaint which contains an overview of the charges summarises the relevant bribery allegations in the following terms:
In addition, ASHE received over $800,000 in bribes from various Chinese businessmen arranged through YAN and PIAO and, in return for these bribes, ASHE supported these businessmen's interests within the United Nations and with senior Antiguan government officials, including the country's then-Prime Minister … with whom ASHE shared a portion of the bribe payments.
163 Mr Garnaut and Fairfax again relied on the reference to "Chinese businessmen". As will be seen, however, the payment of $200,000 which was alleged to be connected in some way with CC-3 was alleged to have been made "in exchange" for Mr Ashe's appearance at a conference. Unlike the other alleged bribes, it was not alleged that the $200,000 payment was made in return for Mr Ashe's support for CC-3's interests within the United Nations or with senior Antiguan government officials. There is accordingly a disjunct between this part of the overview and the specific allegations concerning the $200,000 payment.
164 The Complaint contains a detailed section concerning the "relevant individuals and entities". There is no reference to the individual referred to as CC-3 in that section of the Complaint.
165 The detailed discussion of the various alleged bribes paid to Mr Ashe appears under a heading: "Yan and Piao arrange payments to Ashe in exchange for official actions on behalf of various Chinese businessmen". Mr Garnaut and Fairfax relied on the reference in that heading to the allegation that the payments were made on behalf of various Chinese businessmen. It is, however, again instructive to contrast how the different bribery allegations are particularised. A $300,000 payment to Mr Ashe is particularised under a subheading "Yan and Piao facilitate a $300,000 bribe to Ashe on behalf of a Chinese media executive" (emphasis added). Another series of payments are particularised under a subheading "Yan and Piao arrange additional payments to Ashe in exchange for official actions on behalf of a Chinese security company". The relevant $200,000 payment to Mr Ashe, however, is particularised under the subheading "Yan and Piao arrange for a $200,000 payment to Ashe in exchange for attending a conference in China in Ashe's official capacity". The subheading does not contain the allegation that the payment was made on behalf of CC-3.
166 Perhaps more significantly, when the factual allegations concerning the $200,000 are closely analysed, it is tolerably clear that there is no direct factual allegation that the payment was made on behalf of, or more importantly, with the knowledge of, or at the direction of, CC-3. Rather, the factual allegations concerning CC-3, at their very highest, involve hearsay assertions contained in a number of emails and other documents that were allegedly authored by Ms Yan and Ms Piao.
167 The first paragraph of the relevant part of the Complaint dealing with the factual allegations concerning the $200,000 is in the following terms:
I also know from review of emails that after defendant JOHN W. ASHE became UNGA President, defendants SHIWEI YAN, a/k/a "Sheri Yan," and HEIDI HONG PIAO, a/k/a "Heidi Park," also arranged for a $200,000 payment to ASHE in exchange for ASHE making an official appearance at a conference in China being organized by a Chinese real estate developer ("CC-3"). Specifically, from my review of emails, bank documents, and other documents, I have learned the following:
a. On October 18, 2013, PIAO emailed ASHE, with a copy to YAN, and told ASHE that PIAO and YAN had been working on obtaining additional funds for ASHE. PIAO told ASHE that "an old friend of Sheri who is extremely wealthy" was organizing an international conference in Guangzhou, China (the "Guangzhou Conference"), and that PIAO and YAN had suggested that ASHE be invited to the conference. PIAO attached a program for the conference that listed several current and former government officials as invited attendees, including ASHE. ASHE replied that the Guangzhou Conference was "very tempting indeed" and that he might make it, but that his entire "team" would need to accompany him. YAN replied to ASHE that she had "[j]ust talk[ed] to Heidi, she is going to write to you. In short, all the people who travel with you will be covered by the man and plus." PIAO then replied to ASHE that "[w]e are sure that he will cover the cost of your team," and requested information about ASHE's team and travel plans.
b. On or about October 24, 2013, YAN emailed ASHE and PIAO and stated "[a]ccording to our strategy plan, [CC-3]'s office emailed me the invitation to John this morning … I will ask $200,000 for this trip. …" A few minutes later, YAN emailed ASHE, with a copy to PIAO, a draft invitation from CC-3 to ASHE to attend the Guangzhou Conference. YAN told ASHE that the invitation had been approved by CC-3, and YAN added that "[a]s you may see that I purposely add some words on future relationship between you and him, that will establish a good platform for you today and tomorrow." The draft invitation was addressed from CC-3 to ASHE as UNGA President and, in addition to inviting ASHE to the Guangzhou Conference, CC-3 stated that, "After attending this Summit, I wish that you would remember that you have a sincere friend in Guangdong Province - the economic powerhouse in China. And your friend here has the pleasure to offer you a permanent convention venue for the UN meetings on the sustainability and climate changes in the efforts to fully realize the Millennium Development Goals, as well as for the 193 members of the UN to convene for multilateral discussions on the topics of priority concerns."
c. On October 27, 2013, PIAO emailed ASHE and YAN and told ASHE that "in order to have [CC-3] to wire the money to 68th PGA account, we suggest that you write a courtesy letter (in 68th PGA letterhead) to [CC-3] to accept his invitation, and in the letter also list out the name and title for all the people to be travelling with you, in order to make the logistic arrangement for them." The next day, ASHE emailed the "courtesy letter" to CC-3 suggested by PIAO. The letter was addressed to CC-3 from ASHE and was on official UNGA President letterhead. In the letter, ASHE told CC-3 he was pleased to accept CC-3's invitation to him and his team to attend the Guangzhou Conference. ASHE stated that at the conference ASHE would "deliver a statement on the topic of 'Identifying the Parameters of the Post-2015 Development Agenda.'" ASHE then listed four UN officials that would attend the conference with him and asked CC-3 to contact his special assistant to "finalize the logistical arrangements."
d. On October 29, 2013, PIAO emailed ASHE and YAN and told ASHE that "in order to get the funding wired in ASAP," PIAO and YAN recommended that instead of asking CC-3 to contact ASHE's special assistant to make the "logistical arrangements," that ASHE revise his letter to CC-3 to ask that the arrangements be made through YAN. Later that day, PIAO emailed ASHE again, copying YAN, asking ASHE: "As for the $200K from [CC-3], which account would you like it to be wired to? The 68 PGA? Please advise." ASHE replied to PIAO and YAN that the money should be wired to the "PGA account" and attached a revised letter to CC-3. In the revised letter, ASHE told CC-3 to have his staff "contact my Adviser on Economic Matters, Ms. Shiwei Yan, to finalize the logistical arrangements for the trip."
e. Later that same day, ASHE sent two "letters of appointment" to YAN and PIAO, which were back-dated to the prior month, September 2013. In one letter, on UNGA President letterhead, ASHE informed each of YAN and PIAO that they had each been appointed "Adviser, Economic Matters" in ASHE's office. In the other letter, on Antiguan government letterhead, ASHE informed YAN and PIAO that they had each been appointed as "Adviser to Office of the Prime Minister of Antigua and Barbuda on matters pertaining to investments in Antigua and Barbuda from the entire Asia region." In the email enclosing the letters, ASHE stated, "I believe these complete the outstanding requests that were made to me."
f. On November 3, 2013, YAN emailed ASHE, with a copy to PIAO, telling ASHE that "Guangzhou has been wired 200k to PGA office today" and that "25k" had been wired to ASHE's travel agent. YAN also asked for the name of UN security personnel who would be traveling with ASHE to the Guangzhou Conference. On November 4, 2013, ASHE's PGA Account-2 received a $200,000 wire from China from one of CC-3's companies. That morning ASHE emailed YAN: "[c]an confirm receipt of $200k to the PGA."
g. On November 17, 2013, ASHE attended the Guangzhou Conference. According to the agenda for the conference, ASHE gave a speech to the conference and then gave media interviews on global economic development.
(Footnote omitted.)
168 As noted earlier, it could perhaps be said to be a fair or reasonable inference, that the reference to the "Chinese real estate developer" identified as CC-3 was a reference to Dr Chau. The evidence adduced in this proceeding, however, would tend to suggest that it was somewhat of an overstatement to say that the relevant conference was organised by Dr Chau.
169 Even if it is accepted that the reference to CC-3 is a reference to Dr Chau, the only references to CC-3 in the pertinent paragraphs of the Complaint are references derived from emails or other correspondence apparently drafted by Ms Yan, Ms Piao or Mr Ashe. It is not alleged that any of those documents was authored by CC-3, or that he even knew about them. Other than the hearsay references derived from the documents authored by other people, there is no direct allegation that CC-3 did or said anything, or specifically knew about, approved of, or directed the payment to Mr Ashe. As for the payment itself, the allegation is that Mr Ashe's bank account "received a $200,000 wire from China from one of CC-3's companies". It is not directly alleged that the payment was made on behalf of CC-3, or at his direction, or with his knowledge.
170 Mr Garnaut and Fairfax asserted that the letters "CC" referred to or denoted a co-conspirator. Mr Garnaut's evidence was that using the acronym "CC" for co-conspirator was "consistent DoJ [Department of Justice] usage". He did not, however, suggest that he had any particular insight, knowledge or experience of Department of Justice usage. Rather, he suggested that he made "quick investigations" concerning that matter. He did not detail what the "quick investigations" involved.
171 Even accepting that the acronym "CC" may refer to a co-conspirator, that in any event provided a very flimsy basis upon which to assert that CC-3, or Dr Chau, was alleged to be a co-conspirator in count one of the Complaint. That is particularly so given that CC-3 is not expressly identified as a co-conspirator in the actual particulars of count one, CC-3 had not been charged and, perhaps most significantly, the Complaint does not contain a single direct allegation that CC-3 did anything, said anything, or knew anything about the alleged $200,000 bribe paid to Mr Ashe.
172 Mr Garnaut also accessed and read a media release issued by the Department of Justice concerning the Complaint. That media release was issued on 6 October 2015. There was a link to the Complaint in the online version of the media release. It would appear that Mr Garnuat accessed the Complaint through that link.
173 Perhaps not surprisingly, the media release did not contain any information of particular significance beyond what was contained in the Complaint itself. It provided a brief summary of the allegations. Like the Complaint itself, the media release contained various general references to the alleged bribes being solicited or accepted from "businesspeople in China". That hardly provided a firm basis to conclude that Dr Chau was a party to any of the alleged offences.
174 As for the specific allegation concerning the relevant $200,000 bribe, the media release stated:
In addition, YAN and PIAO arranged for ASHE to be paid $200,000 (plus travel expenses) in exchange for attending and speaking in ASHE's official capacity at a private conference in China hosted by a Chinese real estate developer identified as CC-3 in the Complaint. In addition to attendance at the conference, CC-3 also sought to "offer [ASHE] a permanent convention venue for the UN meetings on sustainability and climate changes … as well as for the 193 members of the UN to convene. …"
175 It should be noted that the quote concerning CC-3 was extracted from an email, referred to in the Complaint, which was not alleged to have been authored by, signed by, or sent by CC-3. It is, in any event, difficult to see the relevance of the allegation that CC-3 offered to allow the convention venue to be used for future UN meetings.
176 There was nothing in the media release to suggest any present intention on the part of the Department of Justice to charge CC-3, or any other person. The relevant United States Attorney was, however, quoted as noting that "the investigation is ongoing". Mr Garnaut appeared to give that statement considerable weight and significance. The media release did not give any reason or explanation for the fact that CC-3 or, for that matter, CC-1 and CC-2, had not been identified in the Complaint or the media release.
177 It should also be noted that the media release stated that the "charges contained in the Complaint are merely accusations, and [that] the defendants are presumed innocent unless and until proven guilty" and that "the entirety of the text of the Complaint and the description of the Complaint … constitute only allegations, and every fact described should be treated as an allegation". It would appear from the terms of the article that Mr Garnaut did not pay sufficient heed to those cautionary statements. They did not find their way into the article.
178 Mr Garnaut and Fairfax submitted that the Complaint and the Department of Justice media release "by themselves provided a reasonable basis for the views held by Mr Garnaut, and supported the allegations made in the [a]rticle". It will be readily apparent from the foregoing discussion that I do not agree. That submission has no merit and is rejected. A careful and considered reading of the Complaint and media release would or should have revealed to Mr Garnaut that, without more, there was no sound or reasonable basis to assert that Dr Chau had in fact been accused of bribery, or conspiracy to bribe, Mr Ashe, let alone that he had in fact bribed, or conspired to bribe, Mr Ashe. Nor did the contents of those documents provide a reasonable basis to assert that Dr Chau had acted in so seriously wrong a manner as to deserve extradition to the United States on criminal charges, including charges of bribery.
179 One final point should be made in the context of the Complaint and the Department of Justice media release. It would appear to be tolerably clear that Mr Garnaut did not, at any stage, seek to ascertain exactly why, if CC-3 was indeed Dr Chau, and Dr Chau was a co-conspirator, he had not been charged, or even named in the Complaint. He did not even attempt to contact the Department of Justice or the United States Attorneys who apparently had conduct of the case.
180 In his evidence, Mr Garnaut asserted that he did in fact turn his mind to the fact that Dr Chau had not been charged. He gave the following evidence:
What did you think about that?---I thought there could be several reasons. One, it's possible that there was something really important that I couldn't see which is exculpatory.
Yes?---Two, they - that the US authorities had - had charged and indicted the people that they could actually lay their hands on, who were physically in the United States at the time. They couldn't get them all to be in the United States at one time.
Well, you can indict someone or charge someone without arresting them?---You can.
Did you know that?---Yes, I did. But that would be - raise complicated questions of extradition which are almost impossible from China. And also most likely, in my personal point of view - from a personal point of view, I thought that this was likely to be a counterintelligence operation and that US prosecutors, the FBI in particular, would be very reluctant - may be very reluctant to reveal the source of their information or to give - to show their hands on a counterintelligence investigation.
181 The basis of Mr Garnaut's belief that the investigation and charging of Mr Ashe, Ms Yan, Ms Piao and others was a "counterintelligence operation" and that the prosecutors would accordingly be very reluctant to "show their hands" was, at best, unclear. There is certainly nothing in the Complaint or media release which provided any basis for this belief.
182 As for why he did not even attempt to contact the Department of Justice to ascertain what he could find out, Mr Garnaut gave the following evidence:
Did you attempt to contact anyone at the Department of Justice?---No, I did not.
Yes. Thank you?---I didn't think I would be able to make progress on that front.
Did you make - you didn't think you would be able to make any progress. Why not?---Because - - -
They had issued a press release?---They did. At that point, I didn't have contacts which were likely to divulge classified information to me.
Sorry. They issued a press release. You could have rung the person who was the person named as the person who authorised the press release, couldn't you?---I could have. Now, from my long experience, I've never been - I've never gained much information from the person named at the bottom of any press released if I didn't know them.
183 It is difficult to see why Mr Garnaut's pessimism about whether he would have been able to obtain any useful information from the Department of Justice, including an explanation for why CC-3 had not been identified or charged, was really warranted. His claim that he had never gained much information from any person named at the bottom of a press release was likely to be an exaggeration. In any event, even if Mr Garnaut's pessimism may have been warranted, that does not adequately explain why he made no effort whatsoever to contact the Department of Justice, or anyone else who may have been involved in the relevant investigation and prosecution, in an attempt to obtain such information. The worst case scenario was that the response would be "no comment".