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By Elizabeth M. Lynch, May 28, 2012

Paul French describes his gripping new book, Midnight in Peking: How the Murder of a Young Englishwoman Haunted the Last Days of Old China, as a belated quest to bring justice to a young woman, brutally murdered 75 years ago in Beijing.  But the story is equally as applicable to the present, highlighting that our criminal justice system — and with the case of Bo Xilai, China’s criminal justice system — can easily fall victim to political agendas, singularly-focused investigations, and prejudices about who can and cannot commit a crime.

Midnight in Peking opens on a dark, cold morning in January 1937, in the dying days of old Beijing.  A young white woman’s mutilated body is found near the haunted fox tower by an old Chinese man who is up early walking his caged bird.  The body turns out to be that of 19 year old Pamela Werner, daughter of E.T.C. Werner, a former high-ranking British diplomat, China scholar, and single father who raised his daughter outside of the gated-off, foreign Legation Quarter of Beijing.

On the eve of the Japanese invasion, it was a murder that distracted Beijing as much as it obsessed it.  And rightfully so.  For the murder, and French’s amazingly detailed account of it, uncovers the debaucheries of some of foreign Beijing’s most elite, a young girl experimenting as a woman, and the official cover up that followed.  On the eve of World War II, there was no way that British officials would allow the Empire and its respectability to lose face, even if it meant short-changing a police investigation and letting a diabolic murderer to go free.

Pamela Werner becoming a woman - taken a few days before her murder.

French’s talent lies in his ability to transport the reader back to 1937 Beijing, back to the Grand Hotel des Wagons Lits, back to the Badlands where seedy expat Beijing lead much of its life but rarely talked about it within the Legation Quarter.  French also makes the characters come alive – with his seven years of painstaking research into the official criminal investigation and Pamela’s father’s own inquiry, French knows what each of the characters were doing, writing and saying at the time.

Midnight in Peking is known as a work of “literary non-fiction,” presenting the facts almost as a novel but unable to take any of the liberties that a work of fiction could permit.  In reality though, the work has more of the drama of a good closing argument – a winning closing argument – presenting the facts,debunking the police’s simplistic conclusions (including that it was a Chinese who did it; who else would kill and mutilate a body), and thoroughly presenting a stronger theory of who did it, a theory that the reader eventually adopts.

Midnight in Peking is a remarkable read, a page turner that kept me in one Friday night just to find out who did it.  But it is not just a story about the past.  Sitting there, reading  about a British murder investigation in China and seeing the prejudices that the police held about certain incidents, particular people and specific facts, made me think of the recent re-examination of the 1979 Etan Patz kidnapping case that is currently transfixing New York City.  In that case, it appears that the police misjudged suspects and had a singular focus on a specific interpretation of the facts, even with little facts to back that up.  Some 50 years after the Pamela Werner murder, police in New York City were making the same mistakes.  Fast forward 33 years to today and most likely these same types of mistakes are still being made.

But more than anything, the book also demonstrates the susceptibility of any criminal justice system to power and politics.  E.T.C. Werner was an outsider to British expat society of 1937, and not just because he chose to live outside of the Legation Quarter.  That pissed people off and when it came time to investigate the murder of his daughter, Werner, as an outsider, became a suspect.  The murderers that French eventually uncover were not just accepted in British society but considered the elites of Beijing.  That acceptance – and the fact that the British diplomats didn’t want a scandal on their hands – allowed them to live their lives as free men.  Ultimately politics – both individual as well as national – proved more important than justice.  Even when Werner conducted his own investigation and uncovered many of the lies of key suspects, British diplomats continued to ignore his pleas for justice for his daughter.

Not surprisingly, when reading French’s book, the Bo Xilai case – where Bo’s wife is accused of murdering a British national – was not far from

An old ETC Werner, around the time of his daughter's murder

my mind.  Given the politics involved in that case and the fact that perhaps Bo became an outsider to the Party system, it makes one wonder about the accuracy of the story that the Chinese government is currently presenting to the press.  If it could happen in British Peking in 1937, it can certainly happen in Chinese Beijing in 2012.  Likely, no criminal justice system is immune to political pressure.  It would be foolish – and dangerous – to think that any system is impervious.

Midnight in Peking is a remarkable story, wonderfully written and with characters that just come to life – some you love, some you hate and some you just despise.  For those who want to be transported to the past, Midnight in Peking is your ticket there; but for those who want to understand the present, more precisely the mistakes inherent in any criminal justice system, Midnight in Peking will take you there.  Whichever trip you decide to make, French will take you on a fun ride.

Rating:

Midnight in Peking: How the Murder of a Young Englishwoman Haunted the Last Days of Old China, by Paul French (Penguin Books, 2012), 272 pages.

French also has a great website about the book, including his own explanation as to what propelled him to write the book and a walking tour of Pamela’s Beijing (with downloadable podcasts). For anyone who does the walking tour, I would be interested in you take of it. Please comment below!

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By Elizabeth M. Lynch, May 4, 2012

U.S. DEPARTMENT OF STATE

For Immediate Release                                                                                       May 4, 2012

2012/707

STATEMENT BY VICTORIA NULAND, SPOKESPRSON

Chen Guangcheng

The Chinese Government stated today that Mr. Chen Guangcheng has the same right to travel abroad as any other citizen of China. Mr. Chen has been offered a fellowship from an American university, where he can be accompanied by his wife and two children.

The Chinese Government has indicated that it will accept Mr. Chen’s applications for appropriate travel documents.  The United States Government expects that the Chinese Government will expeditiously process his applications for these documents and make accommodations for his current medical condition.  The United States Government would then give visa requests for him and his immediate family priority attention.

This matter has been handled in the spirit of a cooperative U.S.-China partnership.

# # #

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By Elizabeth M. Lynch, April 27, 2012

From the NY Times on Friday, April 27, 2012.

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By Elizabeth M. Lynch, October 10, 2011

Over at the US-Asia Law Institute’s blog, research fellow, Jeremy Daum has just published a thought provoking article on the Zhang Guoxi case, the first case to publicly – and perhaps most effectively – use China’s exclusionary rule to exclude evidence that was obtained through torture.

In June 2010, China surprised the world by issuing detailed rules on the use of evidence obtained through torture, essentially excluding it as the basis of conviction when the prosecutor could not show that the evidence was obtained legally and without torture.  China Law & Policy blogged about these new rules here and here.

On paper, the new rules provided hope that the police would reign in their ardent use of torture as a means to obtain a conviction.  But in practice, it appeared that the courts, the enforcers of the new exclusionary rules, had little institutional power to control the more powerful police and prosecutor’s offices.  This fear appeared to be realized when the Supreme People’s Court, a few weeks after the Rules’ adoption, chose not to apply them to overturn a death sentence that appeared to be based on a confession obtained through torture.

But as Daum describes below, a trial court in Ningbo has done what scholars thought was impossible – use the exclusionary rules to deny the use of a suspect’s confession where the prosecutor was unable to, or more aptly was too arrogant to provide evidence that the confession was obtained legally.

The Ningbo trial court did not just stop there.  Instead, the trial court issued a clear and transparent opinion on its decision, reflecting its reliance on the letter of the law concerning the new exclusionary rules. As Daum notes below, in China such an opinion from a trial court is rare making Daum wonder, what impact will the appellate court’s decision (the decision has now been appealed to the intermediary court), and the public’s response, have on the Chinese government’s impending adoption of an amended Criminal Procedure Law (“CPL”).

Below is an excerpt of Daum’s interesting article with a link to the full version.

 

Zhang Guoxi Case: a simple case of bribery?

Excluded : The Zhang Guoxi Case

By Jeremy Daum
Research Fellow, US-Asia Law Institute, NYU Law School

Normally, ‘dog bites man’ is not news, but in the generally bleak climate for reform that pervades China’s criminal justice system, a story of “judge upholds law” has gained some traction in the Chinese media. As Chinese and foreign experts scrambled to absorb new draft revisions to China’s Criminal Procedure Law (CPL) in time to offer their opinions during the single month allotted for public comment, another less publicized story was also making waves in the legal community. A trial court in Ningbo has been hailed as the first to give full force to rules on the exclusion of illegally gathered evidence jointly introduced slightly over a year ago by China’s Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Justice and top law enforcement agencies (“the Rules”), by excluding a confession and allowing a defendant to go unpunished…

…The case itself is remarkable only in its mundanity.  It is an ordinary bribery case in which Zhang Guoxi (章国锡), an official from a local construction administration project, was accused of abusing his office to accept seventy-six thousand yuan (about $12,000 U.S.) in graft over four years. The mistreatment that Zhang allegedly received at the hands of interrogators is also not the sort of blood-curdling horror story that “shocks the conscience” or that one might expect would provoke a judge to take a stance against his investigative and prosecutorial colleagues, risking his career and reputation….

….What is exceptional about the case is instead the trial court’s insistence that prosecutors and investigators follow both the spirit and the letter of the law.

Read the full article here.

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By Elizabeth M. Lynch, December 27, 2010

With President Hu Jintao set to make an official State visit to the U.S. next month, expect an increase in op-eds concerning violations of human rights in China and the demand that President Obama raise human rights issues with President Hu.  These op-eds usually name particular human rights activists, those who have been at it the longest and whose regular imprisonment and abuse make the international news.  Teng Biao is one such human rights lawyer who receives international attention whenever the Chinese police take him into custody, which, unfortunately, is a fairly regular occurrence.

In a recent essay translated in the Wall Street Journal, Prof. Teng recounts the wrongful detention and police brutality he suffered on December 23, 2010, when attempting to visit a colleague’s mother.  But what makes Prof. Teng’s essay particularly poignant is that he admits that because of his special status as an internationally-known human rights lawyer, the beatings he suffers at the hands of the police are much less severe than someone with less international name recognition.

The op-eds that will inevitably appear prior to President Hu’s visit to the U.S. should not just call for the freedom of a single human rights activist; rather it is important that these op-eds also look at the systemic problems with the culture of lawlessness that permeates the Chinese police and the lack of a rule of law.  Prof. Teng portrays a police force drunk on its own power and willing to cast aside the law to do as it pleases, including abusing its citizens.

‘A Hole to Bury You’
A first-hand account of how China’s police treats the citizens it’s supposed to serve and protect.

Human Rights lawyer, Teng Biao

By Teng Biao*

Beijing – On Dec. 23, the United Nations International Convention for the Protection of All Persons From Forced Disappearance came into force. China has declined to accede to this convention. My experience that same day is just one of many examples of how the authorities continue to falsely imprison Chinese citizens.

That evening, I was in the Xizhimen area of Beijing chatting with my colleagues Piao Xiang, Xu Zhiyong and Zhang Yongpan. Ms. Piao had been disappeared after she and I went to Dandong on Oct. 7 to argue the court case of Leng Guoquan, a man framed by the police for drug trafficking; she had only been released on Dec. 20. Her abductors had been officers from the state security squad of the Public Security Bureau. I asked her to narrate the entire process of her disappearance in detail.

Later, I suggested to Mr. Zhang, “Let’s go and see Fan Yafeng’s mom.” The day before, we had contacted fellow human rights lawyer Fan Yafeng and found out that he was under strict house arrest. But he had said that his mother was going to be alone at home in the evening and so I thought we should go see her.

Because I used to go there frequently I remembered clearly where she lived. As Mr. Zhang and I entered the block of flats and started walking up the staircase, I had a feeling that someone was following us. Observing that we went to the third floor, a young security guard asked us whom we were visiting. We said, “We’re seeing a friend.” Immediately, he called out for someone else to come up.

We knocked on the door and were greeted by Mr. Fan’s mother. But as we entered the flat, the security guard came with us, and a person in plainclothes stormed in just behind him. The man in plainclothes demanded to check our IDs in a very coarse manner. I asked him in a loud voice, “What sort of people are you? How can you enter a private residence without permission?”

The plainclothes man said, “I am a police officer. We want to check your ID cards.” “You’re a police officer? I want to see your police ID.” “If I am telling you I’m a police officer, then that’s what I am. What are you doing here?” “Is that your business? How can you prove you’re a police officer if you don’t show your police ID card?”

***Click here to Read More***

*Prof. Teng Biao is a lecturer of law at the Law School of the China University of Political Science and Law (CUPL), one of China’s most prestigious law school.  After working with human rights lawyer Xu Zhiyong to successfully abolish the Custody and Repatriation system, Teng and Xu opened the public interest law firm, Open Constitution Initiative, which was shut down in summer 2009.  Teng has been repeatedly warned by administrators at CUPL that if he continues with his rights defense work, he could lose his job and even his personal freedom.

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By Elizabeth M. Lynch, September 30, 2010

Defendants await trial in the Chongqing Mob Crackdown

On June 1, 2010, China openly admitted to a huge problem in its criminal justice system – the reliance on confessions obtained through torture. On that date, China issued regulations establishing a new system by which confessions obtained through torture would be excluded from trial. Although the torture of criminal suspects is illegal under Chinese criminal law, the law had been largely silent about whether that evidence, once obtained, should be excluded from trial. Noting the inherent unreliability of confessions obtained through torture, the new regulations clearly established rules to try to eliminate such evidence from criminal trials. This was progress.

Last week, the Supreme People’s Court (SPC), had the opportunity to test these new exclusionary rules and, as China’s highest court, show by example that these regulations were passed to have some bite. But instead, on Sunday, September 26, 2010, the SPC chose to ignore its mandate and Fan Qihang was executed.

Fan Qihang’s trial was one of the many from the Chongqing mafia crackdown. The city of Chongqing has long had a problem with organized crime; with many officials, judges and police on the take, the city was an Al Capone dream. But in 2007, Chongqing’s own Elliot Ness arrived in the form of Bo Xilai. As Chongqing’s Chinese Communist Party boss, Bo led a swift campaign to wipe out the local mafia, and by the end of November, 2009, over 800 arrests were issued and over 300 people prosecuted. And Bo meant business. No one was spared; even high officials and successful business men were prosecuted and sentenced to long prison terms and even death.

Fan Qihang was one of the defendants who received the latter. A Chongqing construction mogul, Fan was accused of running a crime syndicate and of arranging for the murder of Li Minghang, member of a warring gang. On February 2, 2010, Fan was convicted and sentenced to death, over the objections of his lawyer who maintained that Fan’s confession was obtained through torture.

Fan’s appeals fell on deaf ears and in a last ditch effort to save his client’s life, Zhu released videos of his client made during his meetings with him while awaiting trial. In the video, Fan details the torture and shows to the camera fresh wounds of where he was shackled and hung from the iron bars in his holding cell for days on end. In anguish, Fan tried to kill himself twice – once biting off the tip of his tongue and the other repeatedly banging his head against the wall. Medical reports back up these suicide attempts. (see Ng Tze-wei, “Lawyer reveals grim details of client’s torture,” South China Moring Post, July 29, 2010).

With this mounting concrete evidence of a confession obtained through torture, Fan’s case offered the perfect opportunity for the SPC to show the strength of China’s new exclusionary rules, reverse Fan’s conviction and order a new trial without the use of Fan’s confession. Such a decision would also be a radical signal to China’s criminal justice system that the high court was not going to stand for such blatant violations of the new regulations.
But that’s not what happened. Instead by affirming Fan’s death sentence, the SPC let it be known that even with the new exclusionary rules on the books, it will still be business as usual. Confessions should be obtained at all costs, even at the cost of justice.

But before we criticize China too much, it’s important that we look at ourselves. Fan’s execution comes on the heels of the controversial execution in Virginia of Teresa Lewis. Lewis, along with two other men, was convicted of the killing of her husband and step-son in order to obtain her husband’s life insurance payments. But unlike most who receive the death penalty in the United States, Lewis never pulled the trigger. Instead, the man Lewis was having an affair with, Matthew Shallenberger, and another cohort, did the shooting; in on the plan, Lewis left the doors to the house unlocked so that the two men wouldn’t have difficulty getting in.

Although Shallenberger and the other shooter were both given life imprisonment, Lewis was given death with the judge stating that Lewis was the mastermind of the scheme and by far more culpable than either of the other two. Borderline mentally retarded with an I.Q. of around 71 (Shallenberger’s IQ ranges around 113 and he was diagnosed with a manipulative personality disorder), Lewis’ execution last Thursday was heavily criticized both in the U.S. and abroad as a gross violation of justice and due process.

To be sure, China executes thousands more people than the U.S. (to date this year, the U.S. has executed 39 people) and its violations of due process, fairness and justice are much more egregious than what is seen here. But these two executions – Lewis and Fan’s – falling back to back makes one wonder, by maintaining a death penalty how much of a cover does the U.S. offer China? And why do we want to?

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By Elizabeth M. Lynch, September 15, 2010

On Monday, September 20, Columbia Law School’s Society for Chinese Law & SIPA’s Asia-Pacific Affairs Council is sponsoring:

Hope & Caution: Trends in China’s Criminal Justice System

On this panel, I will have the very fortunate opportunity to share the stage with Jennifer Smith, the former China Director of International Bridges to Justice.  Together we will not only look at some new criminal justice legislation – such as the new exclusionary rules, plea bargaining and recent death penalty amendments – but we wil also discuss their practical implications.  Additionally, because this event is intended to be much more conversational, there will be ample time for questions and comments. 

While I can’t gaurantee that Hope & Caution will be nearly as sexy a show as Lust, Caution, it will be a lot of fun and a great opportunity to hear what is happening in China and also share your own thoughts and theories. 

 Hope & Caution: Trends in China’s Criminal Justice System

Monday, September 20
6:30 PM – 7:30 PM
SIPA Building, Room 918
420 West 118th Street

Featuring:
Jennifer Smith – Former China Director of International Bridges to Justice
Elizabeth M. Lynch – Founder of China Law & Policy

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By Elizabeth M. Lynch, June 29, 2010

In our June 2, 2010 post – “A Paper Tiger?” – we discussed China’s newly adopted “Regulations on the Exclusion of Illegally Obtained Evidence in Criminal Cases.” At that time, the Regulations were not publicly available and we based our analysis on a summary of the regulations published in the state-run media by Prof. Fan Chongyi, a noted criminal procedure expert at the China University of Politics and Law.

Last week, the Chinese government finally publicly issued the “Regulations on the Exclusion of Illegally Obtained Evidence in Criminal Cases” (English translation courtesy of DuiHua Foundation; Chinese version here).  These Regulations do not portray the sophistication found in Prof. Fan’s analysis, showing that perhaps Chinese legal academia is more progressive and more committed to legal reform than the Chinese government.  This shouldn’t be surprising.  In order for these Regulations to really have an impact, it was necessary to bring on board China’s Ministry of Public Security (MPS) and Ministry of State Security (MSS), two police bodies that, as in most cultures, are inherently conservative and do not like their investigative powers reined in by the law.  While the Regulations are a step forward, it is a bit disappointing that they do not go as far as we had originally hoped.

In addition to some of the issues noted in our previous post, the Regulations raise some of the following issues:

• Will a Chinese court ever conduct an investigatory hearing as to the legality of the confession? Articles 6 and 7 of the Regulations govern the burden of proof when raising the issue of a confession gained through torture.  Similar to the law in the U.S., under the Regulations, the defense has the right to raise the issue of a confession obtained through torture but must offer a sufficient factual basis for the court to order a hearing on the matter.  Similarly, the Chinese regulations places a minimum burden on the defense to offer some factual basis for its claim; Article 6 calls for the defense to provide the name of the person who performed the torture, the time the torture occurred, the place, the manner and the content of the torture in order for the court to call for further investigation.  If the defense can offer that minimal evidence, the court assumes that the confession was obtained illegally and the burden of proof switches to the prosecutor to offer evidence or testimony that the confession was obtained legally as required by Article 7.

But Article 6 and 7 provide no standards for the evidence.  For the defense, Article  6 requires that some “leads” or “evidence” be provided to the court.  While the Article 6 offers some examples of what the leads or evidence could be, does the defense have to provide all of those examples?  If so, how would a defendant know the names of his interrogators?  There isn’t necessarily a polite introduction aspect to an interrogation. Will a defendant, after a few rounds of torture, even remember the time and the place of the torture?  Likely the few pieces of evidence a defendant would be able to offer is the manner and content of the torture.  But it is unclear if just those two pieces of evidence would be sufficient for the court to switch the burden of proof to the prosecutor.

If the court does happen to order a shift in the burden of proof, Article 7 is similarly silent on the sufficiency of evidence a prosecutor needs to provide to show that the confession was gained legally.  In fact, Article 7 is even less clear on what that evidence should be offered and provides little guidance as to what a judge should consider and the weight of any evidence.  Would a court find a signed statement from one of the interrogators stating that there was no torture enough evidence?  Article 7 does state that audio and video recordings could be sufficient, but does not mandate this type of evidence.  If Article 7 had mandated that the prosecutor provide video or audio evidence of the interrogation, then the Regulations would be a huge step forward in preventing torture during an interrogation.  Perhaps in practice courts will de facto require such evidence, giving more bite to the Regulations.  But nothing in the Regulations themselves currently mandate video or audio evidence.

• Is a prosecutor able to delay the trial indefinitely? Interestingly, Article 7 also offers the prosecutor the opportunity to postpone the trial so that he or she can obtain more evidence to show that the confession was obtained legally. In accordance with the Regulations, the prosecutor would request a postponement under the Article 165 of the Criminal Procedure Law (CPL).  However, Article 165 of the CPL contemplates three different situations in which a trial could be delayed, two of which are applicable in a case where a prosecutor needs more evidence to prove the legality of a confession: (1) the need to notify a new witness to appear in court or to obtain new physical evidence and (2) when the public prosecutor discovers there is a need to conduct a supplementary investigation.  Only the latter situation contains a one-month time restriction (see CPL Article 166); postponement due to the need to notify witnesses or obtain new physical evidence does not have a time restriction.  While CPL Article 165(2) seems most applicable to situations where a prosecutor requests more time to obtain evidence to show that a confession was obtained legally, a court could postpone a trial on the grounds found in CPL Article 165(1), especially if the court is pressured by the Chinese Communist Party, through an adjudication committee, to give the prosecutor more time to obtain enough evidence to convict.  Until courts have greater independence, expect outside influence in politically-important cases.  Articles 8 and 9 of the Regulations also allow a postponement in the trial for further investigation: Article 8 is at the request of the court and Article 9 is at the request of the prosecutor during the trial.  Neither Article 8 nor Article 9 reference any portion of the CPL which would limit the time of the postponement.  In fact, the language in Article 9 is very closely aligned with the language found in CPL Article 165(1), which does not limit the time length or the postponement.
• Does the appeals process offer greater protection from illegally-obtained confessions? Article 12 contemplates an appeal process and creates an incentive for the defense to raise the issue of an illegally-obtained confession at trial.  Under Article 12, if the defense alleges that the defendant’s confession was obtained through torture, the court refuses to investigate the allegation, and the court uses the confession as a basis for a conviction, then on the appeal – or what is known in China as the “trial in the second instance” and the court retries the case – the appellate court must conduct an investigation.  This appears similar to the U.S. system of raising an objection on the trial level in order to “preserve” the issue for appeal.  But looking more closely at Article 12, a lot more elements are required to preserve the objection.  In the U.S., filing a motion to suppress evidence or merely objecting to an issue at trial, even if overruled, is enough to preserve the issue for appeal and if properly preserved, the appellate court must re-examine the trial court’s decision.  But in China, under Article 12, it’s not enough that the issue is raised and overruled, the confession must also be a basis of a conviction to require the court of the second instance (the appellate court) to investigate the circumstances surrounding the confession.

In addition to using the confession as a basis of the defendant’s conviction, the court of the first instance must also have rejected the defense’s request to conduct an investigation; in other words, the court must have found the evidence provided by the defense under Article 6 of the Regulations insufficient to switch the burden of proof to the prosecutor and conduct an investigation under Article 7 of the Regulations.  But if the court in the first instance conducts the investigation and finds that the prosecutor offered enough evidence to rebut the defense’s allegation, on appeal, the court in the second instance is not required to re-investigate the issue of the legality of the defendant’s confession.  Given the loosey-goosey parameters of the evidence required of the prosecutor under Article 7, the trial finding the prosecutor’s evidence sufficient is likely.

Article 12 mandates that court of the second instance conduct an investigation if the three elements found in Article 12 are met.  But there is nothing in Article 12 that forbids the court of the second instance to investigate the allegations of illegality if less than all three of the elements of Article 12 are present; there is just nothing that requires it.  In fact, CPL Article 186 gives the appellate court the power to reexamine all issues in a case, even if outside the scope of the appeal or protest.  So ultimately, it is within the power of the court in the second instance to conduct an investigation concerning a defendant’s confession, regardless of the elements of Article 12.

• What about cases outside of the formal criminal justice system? Flora Sapio, an expert in Chinese criminal law, noted in her analysis of the new regulations that the Regulations apply only to formal criminal cases; the Regulations offer no protection to individuals in criminal-like situations, such as Re-Education Through Labor (RETL) and drug rehabilitation, both administrative cases, not criminal ones.  The new regulations offer no protection to individuals being tried in these areas of law.

The “Regulations on the Exclusion of Illegally Obtained Evidence in Criminal Cases” were drafted in order to better implement the Chinese Criminal Law’s prohibition against torture of suspects.  But ironically, the Regulations themselves are relatively vague and their strength will only be determined through their implementation.  If defense counsel does not raise the issue of an illegally-obtained confession (with CL Article 306 defense counsel has the incentive not to protest the confession as discussed in the previous post), or if the court does not give greater life to Articles 6, 7 and 12, then the Regulations will have little impact.  But given that there are some in the legal field that are working hard to provide for greater justice and rule of law in the Chinese criminal justice system, there is hope that perhaps something can happen with these Regulations.  A small hope, but hope nonetheless.

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By Elizabeth M. Lynch, April 20, 2010

On Monday, I posted my take on the Rio Tinto trial which elicited significant response from China law scholars.  I was lucky to have a very thoughtful response from Prof. Vivienne Bath of the University of Sydney and Director of the Centre for Asian and Pacific Law at the University of Sydney.

Prof. Bath has a different perspective on the Rio Tinto trial and you can find her comments below.  She also points out two mistakes that I made in the original article.  In the original article, I state that foreign press was permitted into the bribery portion of the trial.  This is incorrect.  They were only permitted access to the verdict and sentencing portion.  A second mistake is that I state that there was live witness testimony; there was not.  There was only the presentation of written testimony; not actually live witness testimony.  I have made these corrections to the original article and my apologies to the readers.

I thank Prof. Bath for her response to my article and for giving me permission to post it to China Law & Policy to offer a different perspective.

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By Elizabeth M. Lynch, April 19, 2010

Originally Posted on Foreign Policy Digest

Developments

Last summer, the billion dollar steel industry watched in rapt attention as China cracked down on one of its own.  On July 5, 2009, Chinese authorities in Shanghai detained four employees of the Australian mining company Rio Tinto, then later sentenced them to prison terms ranging from seven to fourteen years.  Many China watchers and industry insiders considered the sentencing and charges of bribery and commercial espionage to be retaliation for the recent tough iron ore pricing negotiations, and Western media were quick to portray the Rio Tinto incident as a reflection of China’s irreverence toward rule of law and its politicization of the legal system for corporate advantage.   However, in examining the Rio Tinto case, the Chinese prosecutors followed legal procedure more precisely than they do in most ordinary criminal trials in China.  While there may have been some misuse of criminal process for corporate gain, it appears that the Australian government and Rio Tinto itself may have acted as passive accomplices in its politicization.

Background

Rio Tinto is keenly aware of China’s importance in its operations.  In 2009, China’s imports accounted for $10.56 billion, or close to a quarter of Rio Tinto’s overall profits.  With China as one of the few countries still growing during the global finical crisis, it is no wonder that Rio Tinto’s 2009 Annual Report listed “strengthen [its] relationship with China” as a key strategic goal for 2010.

In China, it is neither unusual nor unlawful for suspects to be detained without being officially arrested or charged with a crime.  Article 69 of the Chinese Criminal Procedure Law (CPL) permits authorities to detain a suspect

Stern Hu

without arrest for up to 30 days in certain instances—one of which is in cases with multiple suspects.  When the four employees were detained by Chinese State Security officials on July 5, 2009, Stern Hu—an Australian citizen—Wang Yong, Ge Mingqiang, and Liu Caikui appeared likely to be charged with stealing state secrets, a grave offense under the Articles 111 and 113 of the Chinese Criminal Law (“CL”) that can carry a life or, even death, sentence if convicted.  State secret trials are particularly nontransparent; the trial is completely closed, with even the defendant’s lawyer excluded.  However, upon their official arrest on August 12, the four Rio Tinto employees were not charged with stealing state secrets; instead all four were charged with the lesser crimes of stealing corporate secrets and commercial bribery, which carry prison terms of three to seven years and five years, respectively.  There is a thin line between stealing state secrets and stealing corporate secrets when the entity involved is a state-owned company, as are most Chinese steel companies.  But, given Stern Hu’s Australian nationality, it was crucial to Sino-Australian relations that China make such a distinction in this case.  On February 10, 2010, a three-judge panel in the Shanghai Number One Intermediate Court agreed to accept the case, and the four employees were officially indicted.

While in custody, the four employees received support from both Rio Tinto and the Australian government.  Sam Walsh, chief executive of Rio Tinto’s iron ore operations, remained confident in his employees’ innocence and repeatedly expressed his concern over the charges.  Australian officials who paid consular visits to Hu, as mandated by the China-Australia Agreement on Consular Relations (the “Consular Agreement”), continued to discuss the case with the press, and the Western media remained actively interested in the case, wondering how the Chinese government was going to execute what was perceived as trumped up charges against Rio Tinto employees.

Australian Consul-General Tom Connor (centre) makes a statement to the media outside the Shanghai No. 1 Intermediate People's Court in Shanghai, on March 22, following the first day in the trial of four Rio Tinto employees.

In a surprising turn of events, on March 22, 2010—the opening day of the long-awaited trial–all four Rio Tinto employees pled guilty to accepting bribes totaling $13 million.  In accordance with the Consular Agreement, an Australian consular official was allowed to attend the bribery portion of the trial.   Domestic press was given access to the trial, but with only guilty pleas, there was little to report.  Foreign press was excluded.* After the guilty plea, Rio Tinto and the Australian government, the only two Western entities that have seen the actual evidence that caused the four to plead guilty, stated that there was enough evidence to support the bribery charge.  But this allegedly “clear evidence” has not been made public, making it impossible to evaluate its credibility.

On the second day of the trial, the Court tried all four defendants in a closed-door trial on the charge of stealing commercial secrets.  Even Australian consular officials, who are permitted to attend all trials under the Consular Agreement, were denied entry.  After concluding the trial on March 24, the Court reached its verdict on the following Monday, March 29, 2010.  With Stern Hu’s wife in the courtroom–the first time she had seen her husband since the day he was taken away by authorities–the Court found all four defendants guilty of stealing commercial secrets.  In accordance with Chinese practice, sentences were immediately handed out: Stern Hu received a total of 10 years in prison, and Wang Yong, Ge Mingqiang and Liu Caikou received fourteen, eight and seven years, respectively.  All of the sentences were within the timeframe allowed by the Criminal Law.

Analysis

The Rio Tinto case makes clear that the Chinese criminal justice system could use improvement, particularly in regards to the public’s access to evaluate the evidence in non-closed trials.  But it is not the grave travesty the Western media portrays it to be.  In many ways, the Rio Tinto employees were given more protection of the criminal law than must ordinary Chinese defendants.  The Rio Tinto employees were all given access to defense counsel; Stern Hu met with his attorneys on ten different occasions before trial. In China, most defendants are unrepresented and the few who retain an attorney usually have no access to that attorney prior to trial.  Additionally, the Rio Tinto commercial secrets trial lasted two days, one day longer than most trials in China, with examination of evidence, including statements from witnesses.  In China, most criminal cases rely solely on a defendant’s confession with little to no other evidence.*

But the Western media has been particularly focused on the closed commercial secrets portion, with some arguing that the closed trial violates Chinese domestic law (see here and here).  Indeed, Article 152 of the CPL states that criminal trials, except for those involving state secrets or personal private matters, are open to the public.  However, the CPL is not the only instructive document.  The Supreme People’s Court (SPC), China’s highest court, issues binding interpretations to clarify the law.  Article 121 of the SPC’s “Interpretation of the CPL” maintains that in cases involving “business secrets,” the court may close the trial if a party requests it.  The Interpretation does not say that “party” is limited to either prosecutor or one of the defendants in the case; presumably any party with an interest in the secret may request the closure.  In this case, Rio Tinto, the Chinese steel companies involved, or the Chinese government, all of whom likely have reasons to keep the public out of the seedy affairs of iron ore pricing, likely requested a closed trial.

However, it is problematic that an Australian consular officer was excluded from the corporate secrets portion of the trial, and equally disturbing that the Australian Foreign Minister would neglect to discuss or criticize the Consular Agreement violations after the verdict.  The Consular Agreement is clear that an Australian consular official is permitted to attend all trials involving Australian citizens in China.  China’s claim that “judicial sovereignty” necessitated the closing of the commercial secrets portion of the trial is specious at best and leaves China open to the Western media’s assertion that the Rio Tinto case was purely political.

Yet, there is also reason to question the roles of Rio Tinto and the Australian government in the politicization of this case.  From the beginning, when the charges were changed from state secrets to commercial secrets, both the Australian government and Rio Tinto likely exerted pressure on the Chinese government, taking advantage of the political nature of the Chinese legal system which the Western media has criticized China for.

Sam Walsh, Rio Tinto's Iron Ore Chief

After the four employees were found guilty, Rio Tinto was quick to report that while “clear evidence” showed beyond a doubt that the four employees had accepted bribes, all bribe-taking was conducted outside of Rio Tinto.  It seems difficult to believe that a $13 million bribery scheme, presumably resulting in cheaper prices for iron ore for Chinese steel makers or more iron ore sold to a preferred Chinese steel maker, would leave not a single trace of evidence on Rio Tinto’s systems – not a single email or a price discrepancy or any evidence that more iron ore was being sold to one steel company, nothing. Also, as others have pointed out, with regard to the charge of stealing commercial secrets, one must wonder, who was the ultimate beneficiary of the theft?   Although evidence in the commercial secrets theft is not public, during sentencing the Court stated that the Rio Tinto employees obtained secret information about the China Iron and Steel Association’s “next price for upcoming iron ore negotiations.”  In other words, the limit one can charge the Chinese steel industry for iron ore.  This is information that Rio Tinto the company would want but would be less valuable to individual employees such as Stern Hu.

There are other legal tools to use to find out this information, but it appears that the Australian government has chosen not to use them.  Under Australian law, bribery of foreign officials by an Australian company and its employees is illegal and can be prosecuted in an Australian court, even if the bribery happened abroad.  Here, the Rio Tinto employees were convicted of stealing commercial secrets.  While one could steal commercial secrets by burglarizing someone’s office or hacking into their computer, it is most likely that the Rio Tinto employees obtained the secrets from someone on the inside of China’s state-owned steel industry.  It is most likely the Rio Tinto employees paid for this type of information, which is not easily attainable or free.  Such an act would be in violation of Australia’s criminal law prohibiting bribery of foreign officials and could subject Rio Tinto to large monetary penalties.  But the Australian government has made no overtures of either investigation or prosecution of other Rio Tinto employees or Rio Tinto itself.

China’s legal system is far from perfect; greater transparency could result in a more reliable legal system, less vulnerable to censure.  In this case, allowing the public to see the evidence relating to the bribery charges and giving some sort of an explanation for closing the commercial secrets portion of the trial could have been useful.  But, ultimately, the Rio Tinto case is not the poster child for China’s retreat from rule of law or for the danger of foreign companies doing business in China.  Instead, this case makes clear that the oft quoted adage by lawyers that “bad facts make bad law” is equally as apt to the press: “bad facts make bad journalism.”

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* Corrections were made to the original article to better reflect the facts (see here).  The author still stands behind the views expressed in this article.