Presentation on Criminal Defence Practicing in China

On 7th November, 2019, the Cross Cultural Human Rights Centre invited Dr. Bin Li and Ms. Yolanda Chu to give a presentation on the topic of law practicing in China. Both speakers are attorneys at the Dongfang Law Firm in Beijing. Professor G.J. Alexander Knoops added his response from the perspective of European Legal System. Professor Tom Zwart and other Dutch-based scholars attended the meeting.

 Mr. Li kicked off his speech by a brief introduction about criminal cases’ new features in China. Firstly, the standards for approving the arrest have become strict. Such move attempts to reduce the risk of miscarriage of justice from the very beginning, protecting the right to liberty. And the acquittal rate has kept a decreasing trend. On the other hand, along with the economic  development and the change of criminal policies, the authorities have taken a tough stance against certain crimes. This includes, organised crimes, pollution crimes, and financial crimes.

    

 Then three cases were selected to elaborate some challenges lawyers encountered in practice. One concerns a case of contract killings, in which six suspects were involved. The first defendant, a real estate developer, initiated the murder mission, which was subsequently assigned to another defendant until the last one finally dropped the mission. The last suspect made a phone call to the target, attempting to make a deal with him, and this was how the plot was found out. However, due to some illegalities when collecting evidence by the police, the court excluded the testimony of suspects and an important evidence, the cell phone. Without the communication records and content, the relationship between six defendants was difficult to be identified, and the court therefore acquitted them. Not until the second appeal made by the prosecutors did the court finally admit the cell phone as evidence, and found the six defendants guilty.

In criminal cases, it is unusual that the court refuses resolutely the admission of evidence on the basis of the illegalities. Instead, the common practice is rather more like this: If the defence lawyer argues about exclusion of illegal evidence, the prosecutors will submit a statement from the investigators, stating that the evidence in question was acquired in accordance with the law. As a result, the court is usually in favour of the prosecutors, based on the reason that the defendant fails to prove his argument. However, in the instance case, the court somehow changed the usual practice, and excluded a critical evidence which could determine the result of final conviction. As the victim’s lawyer, Mr. Li held that the due process should not be abused to criminalise the innocent, nor let the criminals slip away. The exclusion of illegal evidence demands further clear rules for implementation, in order to prevent rent seeking of the judiciary.

     The second case is related to the loan fraud,  which triggered both criminal and civil lawsuits at the same time. A major problem the case showed is which lawsuit shall get the priority. The court is accustomed to dealing with criminal crimes before the civil disputes. However, in the instance case, even the “victim”, the bank, preferred the case to be trialled as a civil one, because it believed this was a better way to get the money back.

     Currently, China has not had regulations to define the criminal-civil overlapping cases, nor the principles to deal with such cases. As the defendant lawyer of the case, Mr. Li argued that when facing such cases, the criminal crimes did not necessarily prevail over the civil disputes. In certain circumstances, the choice should be made on the basis of such considerations: which would be a better protection of litigant’s interests, and which could solve the disputes in a more justice and effective way.

     When it comes to the third case, it invokes the question of defining crimes and illegal acts. The case concerns a company’s insurance defrauding by using false materials. Mr. Li represented the accused company, and made his arguments based on two points. First, the company found out its agent’s making up materials and reported it immediately to the insurance company. Second, because of the company’s report, the accused did not get the money based on the false claim. However, the prosecutors used the illegal sanctions issued by the China Banking and Insurance Regulatory Commission as the evidence to support the charge of insurance fraud crime.

     In the instance case, because of the overlaps between the crimes and illegal acts, it is evitable to take reference from those illegal acts of the accused, and thus make impacts on the judicial judgement. However, the defence lawyers shall not give up on this. In spite of the overlaps, the authorities’ decisions on the illegal sanctions do not necessarily determine whether the acts in question are crimes. Bearing this in mind, when facing such kind of cases, the lawyers should analyse the situation objectively and in a detail way. When resorting to some flexibility and creativity, it may find some new defence points.

    Mr. Knoops made comparisons with cases overlapping criminal and civil fields in the Netherlands. Such cases usually are tackled in two ways. One option is the victim may add his or her compensation claim to the criminal proceedings, and the court will make the judgment of the conviction as well as the compensation. The other option is similar to the case mentioned by Mr. Li, that it would become a choice between civil or criminal lawsuit. Furthermore, Mr. Knoops elaborated the exclusionary rule and its implementation in Europe.

     Mr. Zwart added his comments on the terrorism cases in the Netherlands. The Dutch government also faces problems of balancing its counter-terrorism strategies with human rights protections. Mr. Zwart shared the experience of his participating in several cases related to alleged terrorism here.

     In addition to making comparations of the law practicing between China and Europe, the audience showed their interest in the Chinese criminal justice system, especially about how it actually works, as well as its on-going reform.