Clifford Chance

An Australian man has been convicted and sentenced for breaching UN sanctions imposed on North Korea for his involvement in brokering forbidden deals.

Providing services to assist the sale of weapons of mass destruction is enough to make even the most seasoned sanctions advisers a little uncomfortable. When Sydney man Chan Han Choi was arrested in December 2017, it was alleged he had brokered five transactions in North Korea which violated United Nations sanctions laws. The seven counts originally on the indictment included two counts of providing services for weapons of mass destruction, three counts of contravening United Nations sanctions enforcement law and three counts of contravening Australian sanctions laws.

Choi was the first person to be charged under Australia's weapons of mass destruction legislation, the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (Cth). In their first media release about the arrest, the Australian Federal Police (AFP) alleged that Choi was brokering the sale of missiles and missile componentry (which could contribute to the delivery systems for weapons of mass destruction) and expertise from North Korea to other entities. These allegations were never fully ventilated as the charges were eventually dropped.

Sanctions relevant to the counts were imposed by the United Nations on the Democratic People's Republic of Korea (North Korea) as long ago as 2006 and those sanctions breaches became criminal offences in Australia in 2008.

Choi was described by the AFP (in another media release) as 'an economic agent of North Korea, generating income for the Government through his facilitation of various commodities to and from North Korea.'

Despite the AFP accidentally broadcasting his imminent arrest in the preceding 72 hours (without naming him) on various social media accounts, including an online streaming platform called Periscope and the AFP's Twitter account, where the nature of the alleged crimes were disclosed, Choi was successfully arrested.

In February 2021, one week into his trial, Choi plead guilty to two charges, under a fresh indictment. The plea deal meant that five of the original seven counts were rolled into two charges, with two of the seven originally charged counts, relating to weapons of mass destruction ( which Choi had consistently denied, saying he did not believe he was providing services related to weapons of mass destruction) being dropped.

On 23 July 2021, Choi was sentenced to three and a half years imprisonment. He was facing a possible 10 years of imprisonment on each count. The Court was aided by an agreed statement of facts, meaning Choi had a hand in the set of facts put before the Judge in considering sentencing. This process is common and greatly assists the Court in expediting their consideration of the relevant background and appropriate sentencing.

Choi's said that his shock at seeing the effects of famine in North Korea lead him to engage in the brokering services which saw him charged, as a form of protest and attempt to undermine the sanctions placed on the country which he saw as having a direct impact on the suffering of North Koreans.

The sentencing Judge was somewhat critical of Choi's credibility, describing him as being susceptible to grandiosity, overstating his role and importance. In handing down her decision, the Judge noted the purpose of criminalising sanctioned services was to fortify the sanctions in place, avoiding them becoming 'useless tools of international influence', regardless of how small Choi's actual role was. Her Honour said that Choi's conduct had a 'corrosive effect on the sanctions' and tended to 'undermine their purpose' and noted that Choi's conduct was difficult to detect. Her Honour assumed many international traders and brokers had little concern with the work of the United Nations, a lack of appreciation of the effect of providing sanctioned services and a sentence needed to be handed down that would deter those with financial or political motivations to offend.