EXPATKIATES FACE CHINA’S CRIMINAL LAW SYSTEM
Once, a few years ago, the prospect of a Westerner facing China’s criminal justice system was essentially a fantasy fit only for movie stars like Richard Gere. There were a few instances of violent crimes committed by Westerners, such as theft or drug dealing, and routine punishment was uncontroversial. However, the majority of foreigners came to China as investors and were thus warmly welcomed. Nonviolent transgressions were treated leniently, and Westerners were often deported rather than entered into the local justice system.
In recent years, an increasing number of Westerners have moved to China to benefit from its economic growth and booming industry. There were nearly 250,000 foreigners registered with work permits in China as of 2009. China rarely grants work permits to uneducated foreigners, as it has no need to import manual labor. Most foreigners work as managers and executives or technicians, and most speak little, if any, Chinese. Most carry their home culture’s view of right and wrong, and assume that they know enough to avoid legal trouble in China.
However, in recent years, a surprising number of foreigners is learning about Chinese justice firsthand. While there are no reported statistics on the numbers of foreign nationals in Chinese jails and detention centers, anecdotal information suggests that Chinese policy may be changing in favor of treating Westerners more like Chinese citizens, and Westerners may find their culturally shaped expectations dashed like waves upon the reality of Chinese criminal procedure.
Compared to Chinese citizens, Westerners have particularly high expectations for government to respect their individual rights. The American culture, in particular, has created expectations that defendants are entitled to protections from the power of the state, through such vehicles as Miranda rights and “reasonable cause” for a search warrant, and so on. For many Americans, this culture is so “normal” that it is invisible, and it is assumed to be based on universal rights and expectations. One recent case serves as an illustration that Westerners should leave their expectations at home when they move to China. Like an increasing number of foreigners in China, a young American lawyer spoke no Chinese and knew little about Chinese culture but took a job in China without understanding that Chinese regulations could be fundamentally different from his expectations.
The lawyer worked at a foreign company as foreign legal counsel in a Chinese city. He had a work visa and was allowed to advise on the law of his home country (a broader mandate than granted by state bar authorities) but not on Chinese law.
However, when his employer was under investigation by Chinese authorities, and police appeared to conduct a warrantless search, he prevented the search. He did not understand that, because they were administrative police conducting an administrative search, they did not need search warrants. Coming from a culture that prizes restraint on authority, this lawyer thought he was taking heroic action. Instead, he ended up with a criminal record in a Chinese prison, imperiling his bar membership back home.
If this lawyer had known the history of office building regulation in China, he would have known that police have access to all offices of foreign-invested entities at all times, and foreign-invested entities may only locate their premises in buildings that have obtained approval for use by foreigners. One perhaps forgotten reason for this is so that police can readily monitor foreigners’ activities and prevent activities that are harmful to Chinese society.
The police also demanded to see the young lawyer’s original passport and work visa. He only had copies in his pocket, preferring to keep the original safe in his apartment. Chinese regulations require that one’s passport and visa be carried at all times, although many people do carry only copies of them. The police demanded that he take them to his apartment to get his original passport. (The police team included a translator.) The lawyer was unwilling to go with the police and swore at them. Such righteous defiance absolutely infuriated the police, who are not used to such disobedience except from hardened criminals. They pulled him out of his chair, and a genuine physical tussle erupted, ending with two men on the ground. The lawyer was taken down to one of Beijing’s detention centers after the fight.
Many critics complain that Chinese efforts to follow the rule of law are meaningless. However, this position starts with a cultural assumption: State power can be excessive and should be restrained to prevent abuse. If one starts with the different premise that public chaos and disorder are even greater threats than the abuse of government authority, then a strong state power is tolerable, and abuses become relatively insignificant. China’s legal system, like many non-Western systems, is little concerned with the abuse of state power, instead trusting in state power as a necessary force for the greater good in order to protect ordinary citizens from malicious citizens.
There are several violations of China’s Code of Criminal Procedure visible in the young lawyer’s case. At least two of them are very common: Officials stretch their discretion to the limits of authority imposed by the Criminal Law and Code of Criminal Procedure and defendants have limited access to evidence. In addition, there are conditions for which Westerners may not be prepared: Defendants have very limited access to lawyers and no access to friends or family, and the trial is not the first test of the evidence. The entire process differed significantly from what his Western upbringing and legal training had led him to expect.
Detention without charge often exceeds statutory bases. Under Chinese criminal procedure law, a suspect may be detained for up to 14 days while the facts are investigated. After 14 days, the law states that the suspect shall be released or a warrant for arrest shall be issued. In the case of the American lawyer, the police made no effort to obtain examination by the People’s Procuratorate (the highest national agency in China responsible for both prosecution and investigation) within 14 days, even though the full facts of the alleged crime occurred in the presence of the police and therefore further investigation of the facts was fairly simple. There was no complicated set of facts to unravel, no missing witnesses to identify.
In cases where the crime is serious, such as those involving a gang or multiple crimes committed in different cities, the suspect can be held for up to 37 days without charge. In the young lawyer’s case, the police held him for 37 days, without charge and without access to friends or family. It defies reason that this crime justified treatment as a “serious crime” equal to gang activity. Thus the gravity of the political consequences appeared to justify treatment of the defendant as a serious criminal, justifying extended detention.
Delays in prosecutor’s indictment inquiry. Criminal suspects who have been formally arrested (as opposed to merely detained in jail) and charged are by law required to be investigated and indicted or released within 3 months (Criminal Procedure Code Article 124). Prosecutors have an additional 2 months in grave cases, and a further 2 months in cases where the punishment is 10 or more years’ imprisonment (Articles 126, 127).
The police are supposed to file formal charges, and then the director of the Legal Division of the Police should release the defendant’s file for transfer to the Procurator-ate. By law, after 6 weeks the Procuratorate must indict the suspect or drop the charges. However, there are many days that are not included in the count. There can be weeks of time where the suspect’s file is in transit and thus the clock is not running against any authority.
Prisoner’s right to evidence for defense. Defendants have the right for their defense lawyers to consult, extract, and duplicate the judicial documents pertaining to the evidence against the defendant. This right begins when the People’s Procuratorate notifies the defense that it has begun to examine the case for prosecution.
Counsel’s access to defense evidence is limited. There is one defense reading room, and all defense lawyers must review their clients’ files in this one room, under supervision. There is a copy machine in the defense reading room, and under supervision, defense counsel is allowed to copy certain documents. Moreover, the room is only open for half of each business day, and its limited size requires that defense counsel make appointments in advance to have access to the room. It can take 7 to 14 days from the time a request is made to view the evidence to the date when defense counsel can actually view the evidence. Therefore, the earliest date at which defense counsel can see the evidence against the defendant is 2 to 3 weeks after a case is transferred by the police to the Procuratorate.
No right to copy or view all photographic and video evidence. While the law requires that the defense be allowed to copy all evidence, in practice prosecutors do not permit the defense to copy videotape evidence or photographs. The concern is that the defense might leak photos or video footage to the press or to third parties outside the government agencies involved. In balancing the interest of the state to prevent leaks against the interests of the individual defendant, individual prosecutors routinely disregard a defendant’s right to have his defense team fully analyze all the evidence, including videos. In the case described, the police submitted only 3 short clips, of fewer than 15 seconds each, to represent what they described as a 1-hour event. The video of the provocations that led to the criminal acts were omitted. Out of context, the young lawyer’s actions appeared unprovoked and erratic.
Limited right and access to counsel. Access to a lawyer is limited to only 2 instances in the 37-day pre-charge period, although a defendant is allowed to have 2 lawyers, so a total of 4 meetings with counsel is possible. However, no defense can be mounted during this stage, as there are no charges and no evidence available to the defendant. Furthermore, the defendant is not allowed to have any contact with family, friends, or non-Chinese counsel.
Once charges are filed and the case is transferred to the Procuratorate, then the defense has a right to mount a defense. The defendants are now allowed to meet with lawyers when they desire. However, most Chinese lawyers handle cases on a flat-fee basis, so there is little interest in frequent meetings. Furthermore, such meetings are not always held in a private room but sometimes with a Chinese guard standing nearby.
Limitations on outside contact. There are other restrictions that a foreigner might not expect. For example, Chinese detention centers do not allow suspects to have access to foreign newspapers, even if they include stories about the foreigner’s case. Such a story might be expected to boost morale and encourage the foreigners to defend themselves more vigorously.
In addition, defense counsel is not allowed to bring out any handwriting from the defendant. Therefore, no personal notes to family members may be delivered. There is no regulation for this, but it is police practice and consistent with the purpose of causing a defendant to admit wrongdoing and accept punishment.
If a foreigner’s family arranges counsel in its home country, and wishes the counsel to speak with the foreign defendant in his native language, the family will probably be disappointed. Foreigners are given no right to meet with any counsel other than the Chinese defense counsel or a staff member of the foreigner’s diplomatic mission. The young lawyer did have access to his consulate, which did send someone to meet him roughly once per month and report back to his parents. However, the reality of consulate meetings is that consulate staff can do very little and are often not sympathetic to compatriots who get themselves arrested in China.
Prisoner’s right to sign legal documents from his home country. There is no Chinese statutory basis to revoke a person’s civil rights upon arrest or detention. Chinese detainees retain their political rights, such as the right to vote in elections. Only convicts lose their civil rights. However, in practice, the police frequently refuse to allow detainees to sign legal documents. As a matter of custom, a defendant is only allowed to sign powers of attorney for his Chinese counsel and documents related to the Chinese case.
Harsh physical conditions. Physical conditions in Chinese detention centers are less comfortable than Western defendants would expect and can be worse than the conditions in prisons. There are often 12 men or women to a cell. Soft mattresses are not used, as they could promote infestations of lice, etc. Daily showers are not allowed, although tooth brushing is permitted. There have been reports that shaving is performed with a shared razor, and in a country with difficulty in admitting an HIV/AIDs problem, shaving is not advised.
Outdoor access may be limited to a very small space, something like an airshaft, and so may not even qualify as daily outdoor exercise by Western standards. Diet is generally limited to cabbage and potatoes. Prisoners who get some money deposited into their jail account may buy small luxuries like soap, toothpaste, and extra food.
Trial has a different purpose. While “presumed innocent” is enshrined as a primary principle in most Western minds, Chinese law and the surrounding culture considers that principle to be one among many. The Criminal Procedure Law states that the aim of the law is to ensure “punishment of criminals and protection of the innocent against being investigated for criminal acts” (Chinese Criminal Procedure Law, Article 2).
The system does not serve a defendant who is eager to review evidence, prepare a defense, and fight the charges. The entire system is designed to punish criminals as efficiently as possible. A high priority, in order to confirm police actions, is to obtain a confession of guilt. In balancing an individual defendant’s interests against the protection of society, the individual cannot outweigh the rest of society. That would be to allow the tail to wag the dog.
The US understanding of the word “trial” is as a test of the evidence. However, the Chinese word for trial is kai-ting, or open-the-court. The root of the word does not mean testing of evidence; it means a demonstration of the reasons that someone is punished by the state. When the court is in session, or “open,” the facts are presented to the judge. However, in a significant sense, the testing of evidence is done well before the parties arrive in court. By the time the defense is allowed to be involved for trial, the only remaining issue is to determine the length of the sentence. The Chinese courts pride themselves on a near-perfect conviction rate. This is understood to show that they do not waste resources on innocent suspects.
In a twist that might surprise a Westerner, the police brought civil charges against the young lawyer. They requested the price of a new camera to replace a camera they allege was broken in the fight and minor medical bills for one police officer who showed that he received abrasions to his elbow. They also claimed damages for emotional injury. The criminal court moved the civil claims to a civil court. The lawyer’s family paid the police all of their civil demands in order to settle the civil case and possibly soften the prosecution.
The young lawyer was tried, found guilty, and convicted. He was sentenced to imprisonment and banishment. Fortunately, the sentence was a relatively light seven months’ imprisonment, instead of the maximum of three years. This meant he had only a month more than time already served in detention. Given his unhappy experience in China, he had no plans to return. Unfortunately, there is a growing number of foreigners who move to China to enjoy an expatriate lifestyle and are not prepared for Chinese culture. Importing Western expectations to China can cause them real harm.
MOST WESTERNERS carry their home culture’s view of right and wrong, and assume that they know enough to avoid legal trouble in China.
IN BALANCING a defendant’s interests against the protection of society, the individual cannot outweigh the rest of society. That would be to allow the tail to wag the dog.
By Laura Wen-yu Young and Francis S.L. Wang
Laura Wen-yu Young is managing partner at the Law Offices of Wang & Wang (www.wangandwang.com), with offices in Beijing, San Francisco, Shanghai, and Taipei.
Francis S.L. Wang is senior partner at the Law Offices of Wang & Wang (www.wangandwang.com), with offices in Beijing, San Francisco, Shanghai, and Taipei.