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Tan Chi Fang and 3 others v His Majesty’s Attorney General (Jersey); Tan Chi Fang and 3 others v His Majesty’s Attorney General (Jersey) No 2; Robert Tantular v His Majesty’s Attorney General (Jersey)

6 June 2023
[2023] UKPC 21
Privy Council
Imagine a game of freeze tag, but internationally. Indonesia wants to freeze assets of a bad guy who has assets outside Indonesia. The court said Indonesia can freeze the assets, but needs to follow the rules about who owns the stuff and what they can do with it. The court also said a bank can't just hand over the assets to a friend of the bad guy without getting permission first. Finally, the court said Indonesia can't be sued in Jersey unless it agrees.

Key Facts

  • Three appeals arose from a dispute over the scope of two saisies judiciaires granted in Jersey in 2013 and 2014 concerning assets of the Jasmine Investment Trust.
  • The trust, settled by Robert Tantular, indirectly owned a Singapore apartment, subject to a Credit Suisse mortgage.
  • Indonesian authorities sought asset recovery from Tantular, convicted of fraud and money laundering in Indonesia.
  • Appeals concerned: (i) the Jersey court's jurisdiction over overseas property; (ii) Credit Suisse's right to assign its mortgage; (iii) Indonesia's liability for costs.

Legal Principles

Interpretation of Jersey's Proceeds of Crime legislation (Modified Law) regarding the territorial reach of saisies judiciaires.

Proceeds of Crime (Jersey) Law 1999, as modified by the Proceeds of Crime (Enforcement of Confiscation and Instrumentalities Forfeiture Orders) (Jersey) Regulations 2008.

Presumption against extra-territorial effect of legislation.

R (KBR Inc) v Director of the Serious Fraud Office [2021] UKSC 2.

State immunity from jurisdiction.

State Immunity Act 1978 (as applied in Jersey).

Contempt of court: aiding or abetting breach of court order.

Attorney-General v Punch [2002] UKHL 50.

Outcomes

Jurisdiction Appeal dismissed.

The Jersey court has jurisdiction over overseas property where individuals controlling it are subject to Jersey's jurisdiction; Article 16(4)(b) of the Modified Law, interpreted literally, does not limit saisies judiciaires to Jersey property.

Mortgage Appeal allowed; Court of Appeal's declaration set aside.

Credit Suisse's assignment of the mortgage could potentially aid and abet a breach of the saisies judiciaires or frustrate their purpose. While the mortgage itself wasn't 'realisable property', the assignment needed court approval to prevent undermining the order's intent to preserve the equity in the Singapore apartment.

Immunity Appeal allowed.

Indonesia did not institute the proceedings nor take any steps to waive sovereign immunity; the Attorney General acted on behalf of Indonesia but did not represent the Indonesian government as a party to the proceedings.

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