|Changle government building. Image credit: Google images|
Chinese prosecutors have the discretion not to indict an accused when the evidence is insufficient or when his/her perceived threat to society is minimal. However, these are not necessarily the most important reasons. Dui Hua’s research found that criminal suspects deemed patriotic can also avoid prosecution in mainland China.
China’s long-time conviction rate of over 99.9 percent often overshadows the judicial progress it has made in other areas. While the acquittal rate dipped to its lowest point at 0.052 percent in 2021, Chinese prosecutors have approved fewer arrests and indicted fewer suspects in recent years. Statistics released by the Supreme People’s Procuratorate in March 2022 indicated that the country’s non-prosecution rate increased from 9.9 percent in 2019 to 16.6 percent in 2021.
Non-prosecution embodies the lenient aspect of China’s largely punitive criminal justice system. Among the major beneficiaries of non-prosecution are juvenile delinquents, the elderly, severely ill, first-time offenders, and pregnant and breastfeeding women. Prosecutors can also exercise discretion and choose to not indict suspects if they have made “major contributions to the state or society” or performed “meritorious deeds.” Existing laws and regulations leave undefined what acts are considered “major contributions,” but the following case Dui Hua discovered concerning a Hong Kong “patriot” provides insight into this term.
On October 21, 2019, the Public Security Bureau of Changle District, Fuzhou, decided not to prosecute a Hong Kong resident surnamed Chan. The bureau carried out criminal detention in December 2013 and listed Chan as a wanted criminal online on June 18, 2014. Chan was suspected of “organizing an illegal border crossing,” for allegedly forging identity documents for a group of 11 Chinese nationals in their applications for tourist visas at the US Consulate in Guangzhou. Their application was unsuccessful because the documents were found to be counterfeit by the consulate staffers.
Chan flew back to Fuzhou from Hong Kong and turned himself in on October 14, 2019, six years after his alleged offense took place. That same day, Chan was released on bail pending further investigation. About a week later, the procuratorate issued a non-prosecution decision, citing the various patriotic acts he had performed in Hong Kong.
|Fuzhou Changle International Airport. Chan flew here from Hong Kong before turning himself in, six years after his alleged crime. Image credit: Fuzhou Changle International Airport|
First among these acts, Chan served as the then-incumbent executive vice president of the Hong Kong Family Union (New Territories West Branch), a pro-China non-governmental organization which helps mainland residents to emigrate to Hong Kong. During his tenure, Chan allegedly organized and participated in multiple activities to promote love for the motherland and Hong Kong. Chan was given credit for carrying out stability maintenance and secret investigation work for the Hong Kong Liaison Office during “Occupy Central,” the civil disobedience movement which paralyzed parts of Hong Kong for 79 days in late 2014.
|On October 13, 2014, protestors camp out in the streets of Hong Kong as part of the Occupy Central movement. Image credit: L-BBE / CC BY 3.0|
Furthermore, Chan was commended for performing security work for the official celebrations marking the 20th anniversary of Hong Kong’s handover to Chinese rule in 2017, the only year Xi Jinping attended the handover celebrations in the former British colony as Chinese president, as of this writing. More notably, Chan was cited for his “fearless” and “tenacious struggle” against the “radical opposition forces” during the recent 2019 protests, as well as his unified actions in supporting the Hong Kong government. The decision not to prosecute Chan came as Hong Kong protesters fought citywide pitched battles with police in an eruption of public anger against an already suspended extradition bill that critics saw as a fundamental threat to the former British colony’s civic freedoms and rule of law.
Prosecutors also outlined other reasons for not indicting Chan, but the arguments are not without flaws. For example, one reason for not indicting Chan is because he turned himself in even though he did so six years after the public security bureau carried out criminal detention. Additionally, it was argued that the seriousness of Chan’s crime was mitigated because his attempt to organize illegal crossings failed. Chan did not complete the crime; he only attempted to commit it, argued the prosecutors. Even with this reasoning, it is unclear why the prosecutors did not charge Chan with forgery, covered by Article 280 of the Criminal Law, since the non-prosecution decision found that Chan did indeed forge identity documents for 11 Chinese nationals.
The crime of organizing illegal border crossings is known to incur serious penalties. Dui Hua previously reported that the crime resulted in Korean missionary Cho Young-joo getting a seven-year prison sentence. Cho was not given lenient punishment for the humanitarian mission he conducted across the Yunnan-Myanmar border. Prominent house church leader Cao Sanqiang (曹三强) has more than a year to serve before completing his seven-year prison sentence in Yunnan for the same crime. Also convicted of the same crime are two Hong Kong anti-extradition bill protesters who attempted to flee to Taiwan by speedboat but were intercepted by mainland coastguards in August 2020. The duo is still serving their sentences in Guangdong.
|Map showing the route (in green) from Kunming to Jinghong, from where Cho intended to travel to Mongla. Source: Gaode Map|
The treatment given to Chan was vastly different to that of Cho, Cao, and two of the Hong Kong 12, despite all of them being accused of organizing illegal border crossings. Chan’s preferential treatment calls into question whether “patriots” enjoy impunity for the criminal offenses they committed in mainland China. This raises speculation that Chan is not the only case of prosecutors dropping criminal charges against the so-called “patriots” because of meritorious services rendered in Hong Kong, China, or elsewhere.