1. As an expert and professor in Chinese Law, I provide the following opinion for you to consider.
2. Case Overview:
In the verdict delivered by the PeopleÕs Middle Court of Shenzhen, China, the following sentences were handed down:
The defendant Dr. Wang Bingzhang, a Chinese national and U.S. resident, was detained on July 16, 2002 and was formally arrested on December 5 by the Chinese authority. Guangzhou Shenzhen AttorneyÕs Office, based on Shen-Jian-Xing (2003) number
13, charged Dr. Wang with organizing and leading terrorist organization and conduction espionage. On February 10, 2003, the Shenzhen Court tried Dr. Wang behind closed doors, and arrived at the following verdict:
ÒIt is our CourtÕs belief that the evidences presented again Dr. Wang are accurate, thorough, conclusive and beyond reasonable doubts. Dr. Wang has established a secrete network with a Taiwanese spy agency, accepted funding and received missions from it, committed spying, and introduced connections. Based on these activities, Dr. Wang has committed treason.
Dr. Wang has also spread and promoted terrorism and formed terrorist groups. He has committed the crime of terrorism.
Both charges are deemed punishable by law.
The defendant Wang Bingzhang has denied the above charges, and his lawyer suggested that the evidences were insufficient. Based on the trial and examination results, the Court believes that the defendantÕs evidences do not match the facts, therefore, cannot be admitted.
Based on Section 12 of the PeopleÕs Republic of China Criminal Law, and Items 1 and 3 of Section 97, Item 1 of Section 53 of the PeopleÕs Republic of China Criminal Law from 1979, and Item 1 of Section 120, Item 1 of Section 55, Item 1 of Section 56, and Section 69 of the PeopleÕs Republic of China Criminal Law, the Court has the following verdict:
Defendant Wang Bingzhang is guilty of espionage and is to be sentenced to life imprisonment and is deprived of political rights for life. He is also guilty of terrorism and is to be sentenced to 10 years in prison and is deprived of political rights for 3 years. The sentences are to be served simultaneously and the combine sentence is life imprisonment with no political rights.Ó
After the defendant Dr. Wang Bingzhang appealed the verdict. The Guangdong province superior court upheld the verdict. Dr. Wang is currently serving the sentence at Shaoguan Prison.
Based on the evidences presented in the above verdict and my understanding of the Chinese law, my opinions are as follows. (1) The main evidence in the verdict is incomplete and insufficient. (2) The law was incorrectly applied to arrive at the verdict. Detailed analysis is as follows.
3. Main points with insufficient evidence:
I. The
verdict does not specified how Dr. Wang had been observed and arrested by the
Chinese Law Agency. From WangÕs familyÕs words, Dr. Wang was kidnapped in
Vietnam and was transferred to China by unidentified agents then was
subsequently arrested by the Chinese police.
According to international laws, any act of kidnap or arrest of people by a
country outside of this country is considered a violation of international
laws. This is not legal even if these acts are performed by official government
agents. Therefore, the fact that the Chinese agents initiated the illegal
kidnapping outside of their country is an illegal act. Since this whole case is
built upon an illegal procedure, all sentences should lose the support of the
law. Dr. Wang should be released unless the Chinese governmentÕs law
enforcement department can provide with enough facts and evidence that Dr.
WangÕs arrest was done legally.
II. The
Chinese court believed that Dr. Wang was part of a Taiwan espionage
organization and had contact with a certain Mr. Tsao and had received funding.
None of the above acclaim is based on enough evidence. Therefore, it cannot be
used to accuse Dr. Wang as part of a Taiwan espionage organization.
For example, concerning Dr. WangÕs contact with Mr. Tsao; the court didnÕt even
state Mr. TsaoÕs real name. Since Mr. Tsao had already met with Li Shao Min and
Li was sentenced with espionage and was expelled from China, the court should
know Mr. TsaoÕs name from LiÕs case.
How can a nameless person be used as evidence?
Another example, the court recognized that Dr. Wang took half of a million
dollars fund money from Taiwan and he took 800 to 1000 dollars (US) for
himself. This is not based on enough evidence either. Since the court said that
Dr. Wang had made contact with Taiwan since the 70s, over all these years, the
money that Dr. Wang received and used from Taiwan should have an exact number
and have gone through a precise process. This is important to what kind of
sentence and how severe the sentence is to be decided. Receiving half of a
million dollar fund and using 1000 dollar cannot possibly earn someone a
lifetime sentence. Also, how the funds were used should have been made clear.
III. For the allegation that Dr. Wang planned to bomb the Chinese Embassy in Thailand, the verdict is vague about the details. There is no factual evidence to support the claim that Dr. Wang had established a terrorist training camp in the north of Thailand. The entire allegation is based on the fact that the Thailand police had arrested Wang and sent him out of the border. Whether Thailand government ever sent the details of the arrest to Chinese government is unknown.
In short, the long verdict contained many ÒfactsÓ about Dr. WangÕs espionage and terrorist activities, and these facts are very complicated and incomplete details which are difficult to be sorted into any logical order. At first glance, the allegation of espionage and terrorism seemed serious, but from a more professional, analytical and legal point of view, none of the accusations has enough factual evidence to support the accusation.
4. Errors in the application of the law:
The verdict referenced the following items in the Chinese Law:
1)
Article 12 of the ÒCriminal Law of the PeopleÕs Republic of
ChinaÓ (i.e. the new edition appeared after 1997) states:
ÒPrior to the implementation of the current law after the establishment of the
PeopleÕs Republic of China, if an act is not considered unlawful, it should be
judged according to the law of that time. If an act is considered unlawful and
should be prosecuted according to rules defined in Section 8 of Chapter 4 in
the current law, and case proceeding should follow the criminal case procedures
defined in the previous law. However, if an act is deemed lawful or not severe,
the current law should be applied. Any ruling prior to the implementation of
the current law should be considered effectiveÓ.
The aforementioned Section 8 of Chapter 4 contains this sub-section:
Sub-section 87 Ð Conditions under which no prosecution should be allowed:
a. The highest punishment is 5 years, and the crime was committed more than 5 years ago.
b. The highest punishment is between 5 and 10 years, and the crime was committed more than 10 years ago.
c. The highest punishment is more than 10 years, and the crime was committed 15 years ago.
d.
The highest punishment is more than 10 years or capital
punishment, and the crime was committed more than 20 years ago. For prosecution
of any crime committed more than 20 years ago, the permission from the Highest
PeopleÕs Court is required.
2) The ÒCriminal Law of the PeopleÕs Republic of ChinaÓ in 1997 (i.e. the old edition prior to 1997) contains:
a.
Item 1 and Item 3 of Section 97 state:
ÒAccording to Section 97, those who commit the following crimes of espionage
should receive more than 10 years of or life imprisonment. Those, whose cases
are less severe, should receive between 3 and 10 years imprisonment.
i. Stealing, providing and spying information for enemy.
ii. Omitted
iii. Taking part in special mission or espionage organization, or receives orders from enemyÓ
b.
Item 1 of Section 53 states:
ÒAll criminals who receive capital punishment or life imprisonment should be
deprived of political rights for lifeÓ.
3) The ÒCriminal Law of the PeopleÕs Republic of ChinaÓ (i.e. the current edition):
a.
Item 1 of Section 120 states:
ÒThose who organize, lead or actively participate in terrorist activities,
should receive between 3 and 10 years of imprisonment. Other followers should
receive less than 3 years of imprisonment, confinement in custody, or be placed
under surveillance.Ó
b.
Item 1 of Section 55 states:
ÒThe duration for depriving an individual of its political rights, unless
otherwise defined by Section 57, is between 1 and 5 years.Ó
c.
Item 1 of Section 56 states:
ÒFor crimes that threaten national security, the convicted should be deprived
of political rights for life. For crimes concerning homicide, rape, arson,
explosion, poisoning, robbery and other crimes causing severe destruction to
the society, the convicted should be considered to be deprived of political
rights for life.Ó
d.
Section 69 states:
ÒIf a person is convicted of many crimes, except for the capital punishment and
imprisonment for life, the duration of the imprisonment should be less than the
sum of the durations of all crimes and higher than the duration associated with
the most severe crime; the duration of the rest of the crimes should not exceed
3 years, and the duration for any custody should not exceed 1 year. The term of
imprisonment should not exceed 20 years.Ó
The above references clearly demonstrate the following errors in the trial:
A.
Both current and previous criminal law codes were inadequately
used to convict a case with a duration of nearly 20 years. As a result, the
prosecutor had all the advantages and the defendant placed in a disadvantageous
situation. It was an unfair trial.
The verdict stated that since 1982 Dr. Wang had communicated with the Taiwan
espionage agency and performed spying activities until December 5, 2002, the
day he was arrested. The extent of this is 20 years.
The current criminal law was published in 1979 and was effective on January 1,
1980. Since then this law underwent a few significant amendments, and was put
to implementation on October 1, 1997.
Concerning the allegation of espionage, the trial referenced Item 1 of Section
97 from the previous law concerning anti-revolutionary crimes, specifically,
spying, collecting and providing information to enemy, and Item 3 which
concerns the participation in espionage activities.
The current criminal law changed the term Òanti-revolutionaryÓ to Òthreat to
national securityÓ. The resultant changes affect Item 3 of Section 97 Ð
involving spying information and participating in espionage organizations, Item
1 of Section 110 Ð involving taking part in an espionage organization and receiving
orders from it and its delegates, Section 111 Ð involving collection and spying
information for overseas system, organizations or members. The term of
imprisonment is between 5 and 10 years. For severe cases, the term of
imprisonment can be above 5 years or life imprisonment. For less severe cases,
the penalty can be less than 5 years of imprisonment, custody, or being
deprived of political rights.
If Item 1 and Item 3 of Section 97 are to be applied, the previous law code was
only good until September 31, 1997. How were Dr. WangÕs alleged espionage
activities from September 31, 1997 until December 5, 2002 categorized?
The verdict did not reference the rules defined in the current law, which in
turn implies that the part of the allegation concerning the period between
September 31, 1997 and December 5, 2002 should be withdrawn? However the
verdict states that:
a. In January 1998, Dr. Wang entered the Chinese border under a false name to make contact with Fan Yiping and company.
b. In 1998, Dr. Wang made Zhang Lin the ÒAction CommanderÓ
c. In the second half of 1998, Dr. Wang prompted Xie Hong via email to conduct terrorist acts.
d. On February 7, 1999, Dr. Wang made Zhang Hong the ÒCommander of Special ActionsÓ
e. In March, 2001, Dr. Wang wrote a letter to a certain high-ranking officer in Taiwan and proposed a plan for terrorist acts.
f. Between January and July of 2001, Dr. Wang went to Thailand twice to plan the explosion of the Chinese Embassy in Thailand.
The verdict used sections
from an ineffective law code to decide that all the activities conducted by Dr.
Wang since September 31, 1997 are unlawful and criminal. The verdict did not
indicate that the current law was applied to convict Dr. WangÕs activities
after October 1, 1997. Therefore, the verdict which is based on a totally
ineffective law is groundless and faulty.
In any democratic society, the confusion and incorrect application of laws are
considered enough by a trial judge to throw away all associated allegations and
acquit the case and the defendant.
B.
The fact that the verdict used the sections in the previous
law concerning Òanti-revolutionaryÓ crimes to judge the activities of Dr. Wang
over a period of more than 20 years and ignored that the term
Òanti-revolutionaryÓ was replaced by Òthreat to national securityÓ in the
current law means that the evidence used by the allegations are groundless, and
cannot be applied, according juristic procedures.
Secondly, the previous law categorized those Chinese who are members of a
foreign espionage agency as Òsecret agentÓ, and those foreigners who are
members of a foreign espionage agency as ÒspyÓ. Regarding matters that are
categorized as Òthreat to national securityÓ, the current law already removed
the term Òsecret agentÓ, and placed both Chinese and foreigners under the ÒspyÓ
category.
The verdict, which is based on the previous law, called Dr. Wang a spy. But Dr.
Wang is Chinese, so he should be called a Òsecret agentÓ accordingly.
Therefore, the trial applied the previous law in the conviction but used terms
defined in the current law. This is purely self-contradictory.
C.
Another very important error within the verdict is that it
used Section 97 from the previous law to decide that Dr. Wang committed crime
for espionage. However, the verdict used Item 1 of Section 120 from the current
law to decide that Dr. Wang committed crime for actively participating in,
organizing and leading terrorist groups. Why did the verdict use the previous
law? ThatÕs because the term for Òterrorist activitiesÓ was not defined in the
previous law. This term was added to the current law after 1997 under Section
120.
Since Section 120 of the current law states that Òactivities that are conducted
prior to implementation of this law and after the establishment of the PeopleÕs
Republic of China should be judged using the previous law if the previous law
determines that the activities are not of criminal nature.Ó
The previous law was effective between 1979 and 1997. During that period,
terrorist activities were not classified as crimes. According to the above
definition and rules, all activities conducted by Dr. Wang between 1982 and
September 31, 1997 cannot be as evidences for terrorist activities and hence
cannot serve as grounds for his conviction.
D. Based on the incomplete evidence against Dr. Wang, and the misuse of both current and previous laws in Dr. WangÕs trial, for example, Dr. WangÕs activities prior and after September 31, 1997 should be handled differently, and the different definition for terrorism under the current and the previous laws, the allegations and associated evidences of terrorism against Dr. Wang prior to September 31, 1997 should be rejected. As a result, his overall alleged accusation should be reduced.
5. Comment
From the above analysis, the errors and neglects contained in the trial are numerous. To make a justified and correct decision on such a complicated case with a long extent of time and concerning so many people, further investigation and concrete evidence are needed. The current verdict lacks factual evidence, and is arrived at using wrong legal procedures. It is suggested that Dr. WangÕs family ask the court to review the case and correct those errors.
6. Recommendations
Knowing that the innocent will eventually be proven innocent and the guilty will forever remain guilty, Dr. Wang himself should actively offer to the court with facts and evidence, and keep the hope that the whole case will be sorted out and that the punishment will be reduced. That way, the innocent will be released and the guilty will be fairly punished.
Dr. WangÕs family should also actively gathered facts and evidences to help the government clearly sort out the whole case and to release Dr. Wang as soon as he is proven innocent.
The court should use an objective and justified approach to review the whole case and make necessary investigations. The case should be re-tried if necessary. It also should cooperate with Wang and his family in order to make a fair judgment. Not only is this good for Dr. Wang, our nationÕs image will also be elevated as a result which will encourage other oversea Chinese to come back.
Our countryÕs policy is a combination of punishment and education. As long as Dr. Wang and his family are willing to participate and offer all the necessary evidence to help clarify the case, the criminal will be punished and the innocent will be freed. The goal of our countryÕs punishment is to educate those who committed wrong doing. Therefore, education is the still most important approach. Hopefully the responsible party will turn this bad situation into good state of affairs.
Wang Yojin
Chinese Law Analyst
The Department of Asia Studies, Hong Kong Chinese University
November 8, 2003