Court didn't get full picture in Megaupload founder Kim Dotcom's case, his lawyers claim
Megaupload founder's lawyers say court was misled into allowing his assets to be frozen
Lawyers for former Hong Kong resident Kim Dotcom have accused justice officials of misleading the courts by failing to paint the whole picture when they sought to freeze millions in assets belonging to the internet entrepreneur, the High Court heard.
US prosecutors claim Megaupload and its founders engaged in mass copyright fraud for more than five years, earning upwards of US$175 million. They want Dotcom and his associates to face trial in the US on charges of internet piracy, copyright breaches and money laundering.
In arguing to have the restraining order lifted, Gerard McCoy SC, for Dotcom, said the secretary for justice failed to provide "full and frank disclosure" of the facts when it applied to freeze the assets of Megaupload Limited, a Hong Kong-registered firm.
"We are applying for [the order] to be set aside because the court has misrepresented the true position," he said yesterday.
The restraint order was made "ex parte", which meant the defendants were not represented in court. Under such conditions, the prosecutor "must put on his defence hat", and the obligation - "an additional duty of candour" - is even stricter when it involves a public body such as the Department of Justice, McCoy said. "Did the secretary for justice put his cards on the table face up? This application is a clear example of the duty either being ignored or simply misunderstood," he said.
McCoy argued there was a "material non-disclosure" of information to the judge who heard the application. The information, he said, included the fact that Megaupload could not be served a criminal summons as it did not have a US mailing address, a requirement under US law.