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The Schellenberg Affair: Chinese Lawyers and Law Professors Opposing Court’s Handling of Robert Schellenberg’s Case

China Change, January 16, 2019

On January 14, a court in Dalian, northeastern China, sentenced Canadian Robert Lloyd Schellenberg to death for drug smuggling at a one-day retrial. It appears that China, after detaining two Canadians recently, is escalating the diplomatic clash with Canada over the arrest  of Meng Wanzhou (孟晚舟), Huawei CFO, which the US requested pursuant to its extradition treaty with Canada, to the United States for suspected violation of Iran sanctions. The bizarre re-sentencing of Schellenberg seems to indicate how far China is willing to go to pressure Canada for the release of Meng, and how it is betting on Canada to give in by using the Schellenberg case as further leverage. To help clarify the legal controversy surrounding the retrial of Schellenberg, China Change gathered and translated the views of Schellenberg’s defense attorneys and several other Chinese lawyers and law professors who opposed the re-sentencing. As for opinions supporting the Chinese court’s decision, you can find them in China’s state media such as the Global Times and China Daily. — The Editors

Lawyer Ma Gangquan (马纲权) — A death sentence handed down with mysterious haste, January 16, Beijing Time, WeChat post:

1. It took about four years from Schellenberg’s detention  to his being sentenced to 15 years in prison by the e court of first instance.

Schellenberg was apprehended on December 1, 2014, and his case was heard by the Dalian Municipal Intermediate People’s Court i (大连市中级人民法院) on March 15, 2016. On November 20, 2018, at the court of first instance, he was found him guilty of trafficking illicit drugs. He was sentenced to 15 years in prison to be followed by expulsion from China, as well as a fine of 150,000 RMB. Schellenberg appealed the sentence. 

2. The time it took for the case to be returned to the first-instance court with supplemental prosecution  was just four days.

On December 29, during the review of Schellenberg’s case, the Liaoning High People’s Court (辽宁省高级人民法院) ruled that the original sentence was overly lenient and “obviously inappropriate” [in consideration of the crime], and sent the case back to the Dalian Intermediate Court for retrial.

On January 2, 2019, the Dalian Municipal Procuratorate (大连市检察院) submitted a supplementary indictment to the Dalian Intermediate Court.

3. On January 14, 2019, the Dalian Intermediate Court began the retrial at 8 a.m., with proceedings lasting until around 7 p.m., at which time the court adjourned for one hour. After  the collegial panel deliberated and submitted its decision to the adjudication committee for discussion, at around 8 p.m. the court resumed the hearing, at which time it, it announced Schellenberg’s death sentence. This was all done in less than a day, deftly and expediently.

Lawyer Zhang Dongshuo (张冬硕), Schellenberg’s defense attorney, January 15, 2019, Chinese-language interview with Deutsche Welle

DW: Robert Lloyd Schellenberg’s case was retried and a new verdict was announced in no more than 15 days. What is your view on this?

Zhang: This is indeed a very unusual situation — though the proceeding is in accordance with the law. But it is indeed quite unusual for a case involving the death penalty to finish in just 15 days from court proceedings to delivering the sentence.

DW: In increasing the sentence from a 15-year prison term to death, do you think that this verdict was made fairly and in accordance with the evidence?

Zhang: I can’t comment on whether or not it was fair. I can only say that in my view as a defense lawyer, the evidence available is insufficient to prove that Schellenberger engaged in smuggling of more than 222 kilograms of drugs in Dalian. This is the first point. Second, there is insufficient evidence to suggest that he participated in organized international drug trafficking. Third, the prosecution provided no new facts in its supplementary indictment about the alleged crime. Therefore, even if the charges are accepted by the court, they cannot be used to increase the severity of Schellenberg’s sentence. These are my three main arguments. But it is regrettable that the court completely disregarded the arguments of the defense.

DW: What remains now is for the case to be appealed, correct?

Schellenberg has the right of appeal. Only after he files an appeal — we have two lawyers, I am the primary defense attorney, and Zhong Qiang (钟强) is the secondary defense attorney — will we continue to defend him during the appeal period. I guess that he will formally file an appeal in the middle of next week.

[Note: Zhang Dongshuo is a lawyer with the Mo Shaoping Law Firm in Beijing; Zhong Qiang is senior partner of the Beijing Yingke (Nanning) Law Firm, Director of Criminal Legal Affairs Department, and Vice Chairman of the Drug Crime Defense Alliance.]

Lawyer Mo Shaoping (莫少平) — interview with Voice of America, January 16, 2019, Beijing time:

Mo Shaoping: As defense lawyers, we pleaded not guilty on his behalf. I believe that the evidence provided by the prosecution does not exclude all reasonable doubt, so he should be acquitted. However, the court did not accept this argument and claimed that there were so-called new criminal facts submitted. The defense attorneys believe that the so-called new criminal facts provided in the supplementary indictment are wholly nonexistent. However, if the prosecution did not supplement the indictment, the court would definitely not have issued a death sentence. Therefore, the so-called new criminal facts were meant to take advantage of the procedure of supplementary indictment and retrial to increase the severity of the crime, and warrant the death penalty.

Reporter: How did Schellenberg react to [the announcement of the verdict] in court?

Mo Shaoping: From beginning to end, Schellenberg denied the charges against him. He denied them then and denies them now. He says that his purpose for travelling to Dalian was purely for tourism, and has no knowledge of drugs. However, the witness Xu Qing (许清), who later appeared in court, may have indeed been involved in the crime. But the authorities considered him to be a witness, rather than a suspect. As attorneys we suspected that at one time this person may have been a public security agent. Later, the public security [Chinese police] produced evidence to show that he wasn’t their agent. So the facts regarding this case were unclear and inconclusive from the start. The evidence as provided could hardly substantiate the charge that Schellenberg was involved in drug smuggling activities.

Reporter: The court didn’t accept your arguments?

Mo Shaoping: It didn’t, the court issued the death penalty. We have never seen any precedent for this case, in which the death penalty was announced at the hearing. Usually, death sentences are announced on a later date after court has been adjourned and the adjudication committee has deliberated. I’ve never seen a case where the death penalty was announced right after the conclusion of the trial. It’s unprecedented. 

Reporter:Many people have linked this matter to the case of Meng Wanzhou (孟晚舟). Do you think there was a political motivation in Schellenberg’s sentencing?

Mo Shaoping: I will leave the analysis to journalists. Schellenberg was held for more than four years, and the Dalian Intermediate People’s Court made a first-instance judgment and sentenced him to 15 years. Why did it take four years to sentence him? Because the court thought that the evidence was insufficient and sought instructions all the way up to the Supreme People’s Court (SPC). The SPC said Schellenberg could be convicted and the sentence should be 15 years. So Schellenberg was sentenced to 15 years in prison according to the SPC’s instructions, and he was also considered an accomplice.

As a general rule, after an appeal is filed, the court of second instance will not hold a court hearing; instead, the court rules just based on the written documents in the case. It’s very unusual that a second-instance court would suddenly hold a hearing, and then suddenly remand the case for retrial. It took the Dalian Procuratorate only one day to produce and submit the so-called supplementary indictment to the court after the retrial order had been made. Just 16 days later the court tried Schellenberg again and announced the death penalty right after the trial. Everything about the proceeding was unusual.

Chen Youxi’s comment on Weibo

Lawyer Chen Youxi (陈有西), January 15, 2019, Beijing time, Sina Weibo:

It is clearly stipulated in law that there is to be no increase in punishment when a case is sent back for retrial. Without new facts or new evidence, there cannot be an additional penalty. If a new crime is discovered, after the original sentence has taken effect and the case remanded, then the new criminal facts should be re-indicted in accordance with the adjudication supervision procedures. Increasing the penalty on remand is not permitted, so as not to deter the defendant from appealing.

Article 237 of the PRC Criminal Procedure Law (CPL) stipulates that second instance people’s courts handling appeals submitted by the defendant, his legal representative, defender, or close relatives, must not increase the defendant’s punishment. Cases that second instance courts remand to first instance courts for retrial, except when there are the new criminal facts and the people’s procuratorate provides a supplemental indictment, the original people’s court must also not increase the defendant’s penalty. In instances in which the people’s procuratorate lodges an appeal or where there is a private prosecution appeal, the aforementioned restrictions do not apply. 

Per the Interpretation of the Supreme People’s Court on the Application of the PRC Criminal Procedure Law, Article 327:  After the defendant, or his legal representative or defender, or a close relative, files an appeal, and the second instance people’s court remands the case for retrial, except in cases where there are new criminal facts and the people’s procuratorate files a supplementary indictment, the original people’s court must not increase the defendant’s penalty.

Article 257 (5) of the Supreme People’s Court’s Interpretation of Several Issues Concerning the Implementation of the PRC Criminal Procedure Law provides: “… in the case where a change in the original sentence must be done according to law, the case shall be retried according to the adjudication supervision procedures after the second instance judgment or ruling becomes effective.”

When courts of second instance send various cases back for retrial on the grounds of unclear facts and insufficient evidence, purporting they have a new understanding of circumstances that were already discovered during the original trial, and result in supplemental prosecutions and an additional penalty for the defendant through retrial by the court of first instance, it is a disguised violation of the principle of “appeal without increased penalty.” The result is that the appeal system will inevitably be damaged the defendant’s right of appeal will be impaired and constrained; the second-instance final appeal review and correction mechanism will be forfeited.

There’s no way around this. Regardless of the case, it is very easy to find a few pages of new evidence, and have a new understanding of the details of the case. As long as a judge is allowed to remand a case with supplemental charges, a reason could be found in any case to support a sentence increase. Accordingly, defendants would not dare to appeal. The system of China’s second-instance final review would be fundamentally destroyed.

He Weifang (贺卫方), law professor at Peking University, January 15, 2019,Beijing time, WeChat: 

The Canadian named Schellenberg was sentenced to 15 years in prison by the Dalian Intermediate People’s Court on November 20, 2018 after being detained for more than four years. In addition, the court confiscated 150,000 yuan of his assets and ordered his deportation. He insisted that he was not guilty, and filed an appeal.

It really was a strange coincidence that just at this point in time, in early December, the Canadian police arrested a high level Chinese business executive named Meng [Wanzhou] based on the extradition treaty between the United States and Canada. This move triggered an angry protest from China, which threatened Canada, telling Canada it would pay for what it had done.

Soon after, on December 29, the Schellenberg appeal was heard in the Liaoning High People’s Court.  It is worth noting that the procuratorate did not file a protest after the trial in the court of first instance, but this did not prevent the High Court from remanding the case to the Dalian Intermediate People’s Court for retrial. Meanwhile, the New Year’s holiday intervened, and so it was on January 14, 2019, in less than ten work days, the Dalian Intermediate People’s Court unexpectedly and, in lightning speed, tried the case, and in a shocking move, changed the defendant’s sentence to the death penalty, and confiscated all his assets.

Some people have asked: Doesn’t China’s Criminal Procedure Law stipulate the norm of  “appeal without an increase in penalty”? A local scholar who attended the retrial responded that the rule prohibiting an increase in penalty does not include cases in which the procuratorate discovers and raises new criminal facts after the defendant appealed, or cases in which the procuratorate did not lodge a protest.

However, as a result, as long as the defendant files an appeal, the procuratorate can counter-appeal on the grounds of having discovered certain new criminal facts or just communicate with the court to exert some pressure (which is very easy for the procuratorate to do in China), which will inevitably lead to the complete failure of the principle

“appeal without an increase in penalty.”  As long as the defendant refuses to accept the original judgment and appeals, all that awaits the defendant is the procuratorate’s protest (even a protest is not actually necessary) and a subsequent increase in punishment. So who would dare to appeal?

Furthermore, now that the procuratorate produced new facts so quickly in such a short period of time  after the first instance trial, one wonders why they didn’t discover these facts during the four years of Schellenberg’s detention, facts that have caused the outcome of the case to change so drastically? Even though the PRC’s Criminal Procedure Law does not have the “double jeopardy” clause that prohibits anyone from being prosecuted twice for substantially the same crime, we have reasons to expect that the procuratorate had learned all the facts and made all the preparation before the first trial, given that the investigation had gone on for four years and had been through all sorts of pretrial procedures. How could it be that as soon as the defendant appealed, the procuratorate “discovered new facts” and that the defendant changed from being an accomplice to the principal culprit? Isn’t that just bizarre?

In this country, administrative officials can make wrong decisions and diplomats can blatantly lie, but if judicial organs also take part in such a farce, succumbing to external interference and treating the law like a toy, that’s really a despairing and perilous situation.

He Weifang and Zhang Jianwei’s comments on WeChat.

Zhang Jianwei (张建伟), law professor at Tsinghua University, January 15, 2019, Beijing time, WeChat:

In the case of supplementary indictment, the court could alter the sentence and increase the penalty. Here, supplementary indictment should be understood to mean that the supplemental crimes are crimes in addition to what has already been tried; if the prosecutors supplemented certain facts that fall within the criminal facts that have already been tried in the first instance but may affect the penalty decision, it is still a violation of the principle of no increase of sentence on appeal.

The thinking behind the principle of no increase of sentence on appeal is to allay the defendant’s fear of a worse outcome on appeal. In Schellenberg’s case it was the defendant who appealed, and increasing the penalty through spurious reasons is a violation of the principle of no increase of sentence on appeal.

At the moment when China and Canada is locked in a diplomatic row, such a judicial re-sentencing rouses the suspicion that the judiciary in China is merely a servant of politics, and it hurts the international perception of China being a country governed according to the law. As such, there is more to be lost than gained. You may think you are doing good for the country, but you are in fact ruining it.

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