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Jersey concludes saga with Robert Tantular and his criminal property

07/05/2020

Saisies Judiciaires - are the Court’s powers limited to property situated in Jersey?

Overview

The following case was heard on the 8 April 2020 and published 7 May 2020. The case concerns a point of statutory construction, namely whether a saisie judiciaire imposed under Article 16(1) of the Proceeds of Crime (Jersey) Law 1999, as modified by the Proceeds of Crime (Enforcement of Confiscation Orders) (Jersey) Regulations, 2008 (“the Modified Law”), is limited to property situated in Jersey, as contended by the Representor (Robert Tantular). https://www.jerseylaw.je/judgments/unreported/Pages/[2020]JRC058.aspx

The conclusions to the case were that the Court’s powers under the Modified Law are not limited to property within its jurisdiction as contended by the Representor. Properly construed, the Modified Law empowers the Court to regulate the conduct of a person, over whom it has personal jurisdiction, in relation to property that person owns outside the jurisdiction, in this case over H 1 Trust Company Limited and the property it ultimately owns in Singapore.

Background

Mr Robert Tantular, the settlor of the Jasmine Trust, was convicted of various banking offences in Indonesia in September 2009 and was sentenced to 9 years imprisonment.

He had been prosecuted for further offences, and on 4 February 2010, in connection with those proceedings, the Central Jakarta District Court issued a restraint order in respect of the assets of the Jasmine Trust.

The Indonesian Ministry of Law and Human Rights in due course sought the assistance of Jersey’s Attorney General to obtain a saisie judiciaire in Jersey, and such an order was granted on 9 August 2013.

The saisie was in the normal form in that it was granted in respect of the realisable property of the settlor situated in Jersey, but also specifically extended to the assets of the Jasmine Trust.

The Jasmine Trust

The Jasmine Trust was established by deed dated 17 June 2004 between the settlor and ING Trust Company (Jersey) Limited as the first trustee. The trustee at the date of the application was BOS Trust Company (Jersey). The beneficiaries were listed as the settlor, his wife, his three children and his wife’s younger sister.
The Jasmine Trust was a discretionary Jersey law governed trust in the conventional form with a power of appointment of capital and income in favour of any one or more of the beneficiaries.

Subject to any such appointment, the trustee was to apply the capital or income to or for the benefit of anyone or more of the beneficiaries as in its discretion it thought fit with a duty to accumulate income in default.

At the expiry of the trust period, which was expressed to be 78 years (or such earlier day as the trustee may declare) the trust fund is to be held upon trust for such one or more of the beneficiaries in such shares or proportions as the trustee may determine, in default of which upon trust for the individual beneficiaries then living in equal shares.

The original assets of the trust were first settled into a New Zealand trust on 13 March 2003. On 17 June 2004, all the assets of the New Zealand trust were transferred to the trust.

At the time of the application to release the saisie, the trust owns the entire share capital of two companies. The shares of one company, called Perennial Investment Holdings Limited (“Perennial”) were added to the trust in 2004.

• Perennial owned a property in Singapore which it acquired in 2000. That property was subject to a mortgaged in the sum of approximately S$2.4m with remaining equity in the property of over S$1m.

• The trust also owned a BVI company called Jonzelle Limited “Jonzelle” which was incorporated on 19 August 2004. In 2005 Jonzelle purchased what is now the home of the settlor’s family in Singapore. That property was again mortgaged to Credit Suisse which has a balance of some S$4.4m, leaving substantial equity in the property.

• The trust also owned a third company which was said to have comparatively little value.

The settlor had also written a letter of wishes dated 19 June 2004 to the original trustee. The letter recognised that the settlor’s wishes were not legally binding upon the trustee and that it granted no rights to any of the potential beneficiaries. However, it expresses the hope that the trustee would take the settlor’s wishes into account when exercising any discretionary powers. The letter went on to say that, during the settlor’s lifetime, the settlor would like the trustee to consider him as the ‘principal beneficiary’. After his death, he wished the trust fund to be held for his wife and children in specified shares, passing to grandchildren in default. It went on to say that, should all his children die without issue, he would wish the trust fund to be held for the sister-in-law.

• https://toptrustnerdery.com/2014/06/25/tantular-saisie-judiciaire/

Further background reading is here –

• On 10 June, 2014, Tantular-v-AG [2014] JRC 128, (“the June judgment”), the Court dealt with an earlier dispute in these proceedings. The factual background was described in that judgment, to which the reader is referred as necessary. We shall confine ourselves to reciting those facts which are relevant to our present decision. https://www.jerseylaw.je/judgments/unreported/Pages/[2014]JRC128.aspx

• Tuesday 24 June 2014 Jersey trust in Indonesian banking scandal Jersey trust in Indonesian banking scandal [Tuesday 24 June 2014] https://www.bailiwickexpress.com/jsy/news/jersey-trust-indonesian-banking-scandal/#.XrO6o6hKiUk

• DEC 2014 - Trust – reasons for the Court’s decision to vary the saisie judiciaire so as to authorise the viscount to release some assets. https://www.jerseylaw.je/judgments/unreported/Pages/[2014]JRC243.aspx