Huawei CFO's legal eagles take HSBC to court in Hong Kong to obtain evidence against US extradition

Similar attempt was made in London, where it failed

Huawei CFO Meng Wanzhou's legal team has begun proceedings against HSBC in Hong Kong to obtain documents they believe will support her defence against extradition from Canada to the US.

Meng, the daughter of Huawei founder Ren Zhengfei, was arrested in 2018 by Canadian authorities while transiting at Vancouver International Airport following an extradition request by the US government.

The arrest warrant, issued by the District Court for the Eastern District of New York, accuses the company exec of violating bank fraud and conspiracy laws to circumvent US sanctions against Iran. These charges are related to the activities of Skycom Tech Co Ltd, an entity alleged to be a Huawei subsidiary that was accused of providing computer hardware to Iranian telecommunications providers, including one partially owned by the Iranian Revolutionary Guard Corps (IRCG).

More specifically, US prosecutors claim Meng misled HSBC about Huawei's true relationship with Skycom, and the company's ownership structure, during a 2013 meeting at a Hong Kong tea house. They allege she told bank representatives Skycom was sold to an independent third party, rather than a shell company owned by Huawei itself. Both Meng and Huawei have strenuously denied these allegations.

Meng's legal team hopes that by obtaining the original PowerPoint presentation delivered to HSBC, as well as any internal communications related to the matter, they can demonstrate to the court the absence of an evidential basis to the extradition request. A preliminary hearing is scheduled to take place tomorrow, 12 March.

This effort mirrors a previous attempt from Huawei in the London High Court, where it tried to access these documents by using the Bankers' Books Evidence Act 1879. This 19th-century act can compel banks to provide documents to third parties that are engaged in a lawsuit.

This attempt was unsuccessful as Meng's lawyers were unable to demonstrate that the legislation applied to extraterritorial legal matters. In dismissing the case, Mr Justice Fordham also said Meng's legal team failed to prove HSBC had a regulatory obligation to hold records pertaining to internal discussions of the PowerPoint presentation.

In a media briefing today, Alykhan Velshi, Huawei's vice president of corporate affairs in Canada, said this latest attempt had a better hope of success as it targets the Hong Kong subsidiary of HSBC, rather than the global parent.

Velshi also expressed hope the differing legal system could play a deciding factor, saying: "The proceedings in the UK were ultimately under a 19th-century English banking law, whereas the proceedings in Hong Kong are under different sets of legislation that apply to financial institutions operating in Hong Kong, AML (anti-money laundering) laws, and other legislation.

"It's our position that the decision in the UK doesn't debar consideration of this issue in Hong Kong because the rules are different. The regulatory requirements governing HSBC Hong Kong are different to the regulatory requirements governing HSBC UK. The internal policies may also be different."

Jurisdiction may also play a factor in Meng's success, said Velshi. "The presentation that forms the basis against the charges against [Meng Wanzhou] was given at a restaurant in Hong Kong. Huawei's relationship was managed in part out of Hong Kong. So there is definitely a jurisdictional nexus between the alleged underlying conduct, the documents being sought, and Hong Kong."

Nonetheless, there remain questions about whether Meng's legal team will be able to obtain the requested documents before her extradition trial is scheduled to wrap up in May.

There's also the thorny issue of admissibility. Velshi admitted: "It's not automatic that any information we obtain from HSBC is admissible. However, it's certainly the case that any information would show the US record of the case contains material omissions or misstatements, attempts to mislead the court, or attempts to mislead Canada. This would, in our position, be highly relevant to the case in Vancouver."

In addition to the issue of evidence, Meng's legal team is attempting to stay the extradition process by arguing the proceedings come from a place of bad faith. They claim the Trump administration hoped to use Meng as a pawn in the US-Sino trade deal, referring to comments made by the former president in 2018.

Additionally, they have argued that the case against Meng is in violation of international law, which prohibits nations from asserting criminal jurisdiction over conduct unrelated to that nation. In this case, the charges stem from interactions with the Hong Kong subsidiary of a British bank regarding an Iranian subsidiary of a Chinese company.

Meng's team had previously unsuccessfully argued that since Canada did not have the same degree of sanctions against Iran during the time of the alleged offence, the claims made by the US government failed to meet the "double criminality" standard in Canadian extradition law.

They also claim Meng's rights were violated during her initial arrest and detention, alleging the company exec was subjected to a three-hour interrogation without the benefit of legal counsel, as well as the inspection of her electronic devices. The RCMP constable alleged to have been party to this has since left Canada, and is thus unable to provide witness testimony.

HSBC declined to comment. ®