Claims by Meng Wanzhou’s lawyers that the electronic serial numbers of her phones were sent to the US Federal Bureau of Investigation by a Canadian police officer as part of a covert investigation were based on “speculation and surmise” and should be rejected, a government lawyer told the Huawei Technologies executive’s extradition hearing on Thursday.
The officer, former staff sergeant Ben Chang, has since retired from the Royal Canadian Mounted Police and is now a casino executive in Macau. He provided the hearing with an affidavit denying that the transfer occurred, and has retained a private lawyer who says Chang will not appear for cross-examination.
Meng’s lawyers say that Chang’s denial should be disregarded and that his “unprecedented” refusal to testify bolsters their contention that Meng was the victim of a conspiracy between the FBI and Canadian police and border officers to conduct a secret criminal probe of her that abused her Canadian charter rights.
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The US bid to have her sent to New York to face trial for fraud, they say, must thus be thrown out by the Supreme Court of British Columbia, which is hearing the extradition case.
But government lawyer John Gibb-Carsley, representing US interests in the case, told the court there was “no evidentiary basis” to conclude Chang ever sent the electronic serial numbers (ESNs) to the FBI. “The evidence points in a different direction,” said Gibb-Carsley.
He said no negative inference about the government case should be drawn about Chang’s refusal to appear.
However, Associate Chief Justice Heather Holmes expressed doubt about the logic. “Generally retired officers testify … and that’s not happening here,” she told Gibb-Carsley.
Meng, 49, Huawei’s chief financial officer and the eldest daughter of company founder Ren Zhengfei, is accused of defrauding HSBC by lying to the bank about Huawei’s business dealings in Iran, putting the bank at risk of breaching US sanctions on Tehran. She denies the charges and has been fighting extradition in Canada’s courts for the past 27 months.
Gibb-Carsley argued that the burden was on Meng’s side to prove the ESNs had been shared. The government side, meanwhile, was left to try to establish a negative – but there was “ample evidence” that Chang did not share the material, Gibb-Carsley said.
In a December 4, 2018 email, sent three days after Meng’s arrest at Vancouver International Airport on a US-sought warrant, Chang – of the RCMP’s financial integrity unit – notified Constable Gurvinder Dhaliwal that the FBI was seeking the ESNs and asked him to obtain them.
But Chang did not send any emails using his RCMP account to any FBI accounts after that. Claims by Meng’s lawyers that he could have used a private account or “blind-copied” FBI agents to his communications “strain credulity”, a written submission by Canadian government lawyers contended.
It was similarly “implausible” that the complicated information, constituting almost 100 digits, would have been relayed in a phone conversation, Gibb-Carsley argued.
Gibb-Carsley said the one piece of evidence to suggest sharing was what he called a “double hearsay statement” in the notes of RCMP Sergeant Janice Vander Graaf, indicating that Dhaliwal told her Chang had sent the numbers to an FBI official. Yet Dhaliwal “explicitly denied” saying so, Gibb-Carsley said, and Vander Graaf testified that she was subsequently satisfied the information was not shared.
The nature of the issue was “symptomatic of how my friends [representing Meng] have created their narrative” of a covert criminal investigation, he added.
Gibb-Carsley told the court that what the FBI actually requested on December 4 were the “serial numbers” of Meng’s phones, not their “electronic serial numbers”; the ESNs are an identifier unique to individual devices that Meng’s lawyers said could be used as a “gateway” to obtain their data.
It was Chang’s email that had “added the E” to the request, he said. “We don’t actually know whether the US requested ‘electronic’ serial numbers,” said Gibb-Carsley.
Regardless, he said, the request was consistent with the FBI seeking to identify the physical devices for the purposes of later making a proper request for them, under the Canada-US legal assistance treaty. It was not a covert pursuit of data, he said.
Chang worked as the RCMP liaison officer in Hong Kong for four years, before the financial integrity unit. In a legal filing, government lawyers cited “witness safety” for a previous refusal to turn over material related to Chang, who is now assistant vice-president for security at Macau’s Galaxy casino.
Gibb-Carsley pushed back against suggestions by Meng’s lawyers that material related to her case might have been destroyed when Chang retired in mid-2019 and his email account was eliminated.
“There’s no evidence that all relevant emails and documents of Staff Sergeant Chang were not collected” and shared with Meng, said Gibb-Carsley, and the relevant material had been preserved on the RCMP’s record management system.
In the course of the extradition case, at least 634 official documents, amounting to 2,753 pages, had been disclosed to Meng’s team, he added.
Gibb-Carsley said that in any case, the government side never intended to rely on Chang’s affidavit. Rather than be content with the withdrawal of the document as evidence, he said, Meng’s lawyers wanted the court to draw an adverse inference from Chang’s refusal to testify that he had indeed sent material with the FBI.
This was unreasonable, he said.
Meng had tried to obtain evidence from other jurisdictions, but “in respect of this one crucial piece of evidence, the applicant [Meng] did not take any steps to attempt to compel Staff Sergeant Chang to testify,” the government side said in a written submission, and this suggested an alternative conclusion should be drawn regarding Chang.
“The only reasonable inference to be drawn from the applicant’s failure to make any efforts to have Staff Sergeant Chang testify is that his evidence would be detrimental to the applicant’s case,” it said.
Holmes adjourned the hearing until Friday.
The protracted extradition battle may be nearing its endgame, with hearings due to conclude on May 14, after which the judge will decide whether to approve extradition. But appeals could last for years, and a final decision on whether to extradite Meng will be made by Canada’s justice minister.
Meng’s arrest upended China’s relations with Canada and the US, and Canadians Michael Kovrig and Michael Spavor were detained by China in the days afterwards on charges of endangering state security.
Both men underwent brief trials in the past week, conducted in secret – due to national security considerations, according to Chinese officials. They concluded in a matter of hours without verdicts being announced.
Canadian Prime Minister Justin Trudeau and other officials have characterised their treatment as arbitrary detention and “hostage diplomacy” by China in retaliation for Meng’s arrest.
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This article Canadian officer never sent Meng Wanzhou’s phone information to FBI, extradition hearing is told first appeared on South China Morning Post