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)

Under the Modified Law, a saisie judiciaire may prohibit a specified person subject to Jersey jurisdiction from dealing with realisable property outside Jersey. The Jersey limitation in article 16(4)(a) applies to vesting property in the Viscount; it does not read into article 16(4)(b) or (c). The restrained asset in mortgaged foreign property is the net equity, not the mortgage debt or mortgage interest. A third party may commit contempt by knowingly aiding a breach or intentionally frustrating the order’s purpose. A mortgagee need not seek variation for every assignment, but must assess the risk in good faith. A foreign state requesting assistance does not thereby institute the Jersey proceedings or waive state immunity where the Attorney General brings them.

Three conjoined appeals concerned saisies judiciaires granted by the Royal Court of Jersey in 2013 and 2014 following requests from Indonesia to assist with external confiscation orders. The underlying assets included the net equity in a Singapore apartment held indirectly through a Jersey-based trust.

The Court of Appeal dismissed the jurisdiction appeal, allowed the mortgage appeal and declared that the mortgagee could assign its rights, and ordered the Indonesian Ministry jointly and severally liable for costs. The appeals concerned whether the Modified Law permitted restraint of foreign property, whether the mortgage could be assigned without variation of the saisies judiciaires, and whether Indonesia had submitted to Jersey jurisdiction so as to incur costs liability.

The Board, in the joint judgment of Lord Hamblen, Lord Stephens and Lady Rose, advised that the Jurisdiction Appeal be dismissed and that the Mortgage Appeal and Immunity Appeal be allowed.

1. Jurisdiction. Article 16(4)(b) contains no geographical limitation. The definitions of property and realisable property include property in Jersey or elsewhere. The express reference to property held by the defendant “in Jersey” in article 16(4)(a) confirms that the omission of equivalent words from article 16(4)(b) and (c) was deliberate. Vesting operates in rem and is therefore limited to Jersey property, whereas the prohibitions operate in personam against specified persons subject to the Jersey courts’ jurisdiction. They may therefore affect foreign property.
2. This construction accords with the purpose of the Proceeds of Crime (Jersey) Law 1999 as modified by the 2008 Regulations: facilitating international asset recovery, including through Jersey trust structures. The court may make ancillary orders, including orders requiring repatriation or disclosure of overseas assets, subject to conditions, exceptions and safeguards.
3. Mortgage. The mortgage debt and Credit Suisse’s mortgage interest were not realisable property. The realisable property was the net equity in the Singapore apartment. A person not bound by an order may nevertheless commit contempt by knowingly aiding or abetting its breach, or by intentionally frustrating or thwarting its purpose: Attorney-General v Punch [2002] UKHL 50. A mortgagee need not apply for variation in every case. It may assess in good faith whether an assignment would interfere with the administration of justice. A declaration permitting assignment to any third party was too broad because it could authorise conduct amounting to contempt. The proposed assignment to Mr Koswara was highly prejudicial and no variation should be granted.
4. State immunity. The Attorney General instituted and pursued the proceedings on his own behalf. Acting “on behalf of” the requesting government meant only that the request triggered his statutory power. Indonesia was not a party. The provision of evidence and assistance by Indonesian officials did not amount to intervention or taking a step in the proceedings. Indonesia had not waived immunity and could not be made liable for costs.

1. Privy Council: The jurisdiction appeal was dismissed. The mortgage appeal was allowed and the declaration made by the Court of Appeal was set aside. The immunity appeal was allowed.
2. Court of Appeal of Jersey: The mortgage appeal was allowed and a declaration was granted: [2019] JCA 207. The jurisdiction appeal was dismissed: [2020] JCA 234. The Court ordered the Indonesian Ministry jointly and severally liable for costs: [2020] JCA 013.
3. Royal Court of Jersey: The application concerning the mortgage assignment was refused: [2019] JRC 114. The jurisdiction challenge to the saisies judiciaires was rejected: [2020] JRC 058.