No Extradition Treaty With China: Delhi High Court Refuses Vivo Executive's Plea To Visit Ailing Father Amid PMLA Probe
The Delhi High Court has refused permission to Vivo executive Guangwen Kuang alias Andrew, an accused in the Enforcement Directorate's money laundering case against Vivo Mobile Communication, to travel to Guangzhou, China to visit his critically ill father.Justice Madhu Jain observed that humanitarian considerations cannot override the need to secure the presence of an accused facing...
The Delhi High Court has refused permission to Vivo executive Guangwen Kuang alias Andrew, an accused in the Enforcement Directorate's money laundering case against Vivo Mobile Communication, to travel to Guangzhou, China to visit his critically ill father.
Justice Madhu Jain observed that humanitarian considerations cannot override the need to secure the presence of an accused facing prosecution in a case involving alleged proceeds of crime exceeding Rs. 2 lakh crores.
The Court held that the absence of an extradition treaty and a Mutual Legal Assistance Treaty (MLAT) in criminal matters between India and China significantly heightened the risk of Andrew not returning to face trial.
Andrew had sought temporary release of his passport and permission to travel to Guangzhou, stating that his 82-year-old father had suffered a right cerebellar haemorrhage, was on life support and that he wished to be by his side during what could be his final days.
It was argued that the request was based purely on humanitarian grounds and that Andrew had consistently cooperated with the ED's investigation, appeared before the Special Court whenever required and undertook to return within the time stipulated by the High Court.
On the other hand, ED opposed the application, contending that Andrew was a Chinese national facing prosecution under the Prevention of Money Laundering Act in a case involving alleged proceeds of crime amounting to approximately Rs. 2,02,41,17,72,292.89.
It argued that in the absence of an extradition treaty with China, securing his return would become virtually impossible if he chose not to come back.
The agency also submitted that the undertaking furnished by the employer company did not create any legally enforceable obligation to ensure his return.
Dismissing the plea, the Court observed that while it was conscious of the humanitarian circumstances, such considerations alone could not be determinative when criminal proceedings were pending.
“The Court is required to balance such considerations with the interest of justice and the necessity of securing the presence of the accused throughout the proceedings,” it observed.
The Court further noted that since there is no mutual treaty in criminal matters between India and China, the authenticity of the medical documents produced by Andrew regarding his father's condition could not be effectively verified within a reasonable time.
It said the only available mechanism would be through Letters Rogatory or diplomatic channels, a process that could take several months or even a year.
“While this Court is not called upon to apply the municipal laws of another nation, the legal position prevailing in the country to which permission is sought cannot be regarded as wholly irrelevant. If the legal regime of that foreign country itself does not ordinarily permit foreign nationals facing criminal proceedings to leave its territory, this Court would not be adopting a substantially liberal approach in favour of a foreign national facing prosecution before an Indian Court, particularly when no effective legal mechanism exists to secure his return in the event of non-compliance,” the judge said.
Justice Jain further found merit in ED's submission that the undertaking furnished on behalf of Andrew did not provide any effective or legally enforceable assurance securing his return.
“The undertaking merely records the applicant's intention to return and does not impose any binding obligation upon the employer company in the event of breach. Equally, no undertaking or assurance has been furnished by the Consulate General of the People's Republic of China or any other diplomatic authority,” the Court said.
It added: “Having regard to the seriousness of the allegations, the enormous magnitude of the alleged proceeds of crime, the applicant's status as a foreign national, the absence of an extradition treaty between India and China, and the absence of any effective safeguard capable of ensuring the applicant's return to India, this Court is not satisfied that permission to travel abroad deserves to be granted.”
Title: ED v. MS VIVO MOBILE COMMUNICATION AND ORS GUANGWEN KUANG @ ANDREW