Beijing Mo Shaoping Law Firm
The Southwest Yard Zhong Shan Park, Beijing, 10031 P.R. China
Tel/Fax: 86-10-66058311 Email: shaoping@public.bta.net.cn
Attorney’s Memorandum
June 4, 2009
To: Suining Bureau of Public Security, Sichuan Province
Cc: Economic Investigation Branch
Branch Leader: Desheng Xie; Police Officer: Bo Wang:
We are the attorneys from Beijing’s Mo Shaoping Law Firm, representing Yongjun Zhou, who is the suspect of an alleged fraud case handled by your bureau. We are retained by Mr. Zhou’s family, which was confirmed by Mr. Zhou himself. After the retaining, we met with Yongjun Zhou and acquired information about the case. Here we offer our opinions as to this case based on our knowledge about this case and relevant laws for your reference.
I. Regarding the jurisdiction
We believe the Public Security agency of mainland China has no jurisdiction over this case.
1. The Public Security agency of mainland China has no jurisdiction pursuant to the principle of locality jurisdiction
According to the information provided by Yongjun Zhou, which was confirmed by the police officers handling this case, the basic facts relevant to this case are: When Yongjun Zhou entered Hong Kong from Macau, the Hong Kong police suspected him of being involved in a money laundering scam. The police presented to Mr. Zhou a letter addressing Hong Kong Hang Seng Bank from overseas when he was interrogated. The letter was pursuant to a demand for transfer of money from Hang Seng Bank, and the signor of this letter is the same as the name in English spelling present on Yongjun Zhou’s passport: Wang Xingxiang. It is quite clear that the act and its consequence of this case did not happen within the boundaries of mainland China. Pursuant to “The People’s Republic of China Criminal Law” (“Criminal Law”), Section 6, “This law is applicable to all who commit crimes within the territory of the PRC except as specially stipulated by law ….When either the act or consequence of a crime takes place within PRC territory, a crime is deemed to have been committed within PRC territory,” which is the principle of locality jurisdiction, and “The Basic Law of the People’s Republic of China Hong Kong Special Administrative Region”, Section 2 says, “The People’s Congress authorizes Hong Kong Special Administrative Region to have high level of autonomy, owns the power of administrative management, legislating and independent judiciary and final review,” China’s Criminal Law is not applicable to this case and China’s Public Security agency has no jurisdiction over this case.
2. The agency of Public Security of China has no jurisdiction pursuant to the principle of personam jurisdiction.
Yongjun Zhou obtained his green card in the United States on February 4, 1993, and has lived in the United States for 16 years. Considering his Chinese passport had expired, Yongjun Zhou repeatedly applied for the Chinese passport with China’s consulate general in the United States. He also asked his family to help him get a Chinese passport in China. However, his requests were declined, which should be deemed as the denial of his Chinese citizenship by the Chinese government. Without alternative, Yongjun Zhou applied for the U. S. citizenship with the U.S. Immigration and got it granted. According to Yongjun Zhou’s family, the U.S. Immigration has mailed “the notice for taking oath” to Yongjun Zhou’s home in the United States. Pursuant to “The People’s Republic of China Nationality Law”, Section 6, “the Chinese citizen living in foreign countries should be deemed to lose his/her Chinese citizenship when he/she voluntarily applies for or acquires foreign citizenship,” Yongjun Zhou, who lived in the foreign country for a long time and voluntarily applied for United States citizenship, has no longer had his China citizenship. Pursuant to Criminal Law, Section 7, “the crime committed by the Chinese citizen outside China shall be governed by this law. However, the crime subject to the imprisonment for less than three years shall not be prosecuted under this law. The crimes committed by the employees of The People’s Republic of China and servicemen shall be governed by this law,” which is personam jurisdiction principle, the Public Security agency of mainland China cannot exercise its jurisdiction over this case. Here, we need to bring your attention to “the Rule Related to Cases Involving Foreigners,” issued by Foreign Affairs Ministry, The Supreme Court, the Supreme Procuratorate, the Public Security Ministry and Justice Ministry, on June 20, 1995, Section 2, Subsection 1 (1) “as to the administrative detainment, criminal detainment, judicial detainment, detainment questioning and investigation, arrest, surveillance, bailment, attachment of passport and expulsion within limited time of a foreigner,….public security agency, state security agency, people’s prosecutor, the court and other related agencies should report the case, its handling and the way to handling media to its superior agency within 48 hours after taking the abovementioned measures and also inform the foreign affairs agency.” And Section 3, subsection 4(7) “If no valid ID that could be used to identify the dead or the citizenship of the suspect under bailment, surveillance, detainment questioning and investigation, detainment and arrest,….the handling agency should inform the foreign embassy or consulate general via inquiry,” your bureau should report this case to your superior and notify the foreign affair agency of the government at the same level. In the same time, the relevant agency should notify the United States embassy or consulate general pursuant to the “Vienna Treaty regarding Consulate Relationships.”
3. The agency of Public Security of China has no jurisdiction pursuant to the principle of protection jurisdiction.
As stated above, the victim of this case should be Hong Kong Hang Seng Bank or other overseas individual or organization, neither a Chinese citizen nor China as a country. Therefore, pursuant to Criminal Law, Section 8, “Foreigners who commit crimes against a Chinese citizen or China as a country, subject to imprisonment for more than three years, could be governed by this law, except for that such act is not punishable pursuant to the law of the locality where the crime is committed,” which is the principle of protection jurisdiction, the agency of Public Security of mainland China has no jurisdiction over this case.
II. Regarding the evidence in this case
We believe there is insufficient evidence to charge Yongjun Zhou with fraud.
As stated above, the basic facts relevant to this case are: When Yongjun Zhou entered Hong Kong from Macau, the Hong Kong police suspected him of being involved in a money-laundering scam. The police presented to Mr. Zhou a letter addressing Hong Kong Hang Seng Bank from overseas when he was interrogated. The letter was pursuant to a demand for the transfer of money from Hang Seng Bank and the signor of this letter is the same as the name in English present on Yongjun Zhou’s passport: Wang Xingxiang. There is no other evidence to show that Yongjun Zhou had something to do with this letter or Yongjun Zhou was involved in the fraud. According to Yongjun Zhou, he obtained this Malaysian passport from an immigration service company. Although the name on the passport is the same with the name of the signor of that letter, he did not write such a letter and did not see this letter before. Therefore, we believe, without any other corroborating evidence, it cannot be ascertained that Yongjun Zhou is the person who wrote this letter. It is also worth noting that, according to Yongjun Zhou, after verifying the above, the Hong Kong police not only released Yongjun Zhou but also apologized to him. It indicates that the Hong Kong police, who have the jurisdiction over this case, have already excluded Yongjun Zhou as the suspect!
III. Regarding the procedure used in this case
We believe there is a grave problem of overtime detainment.
Yongjun Zhou was detained by Shenzhen police in early October 2008, when Yongjun Zhou did not disclose his real identity. On November 7 or 8, 2008, Suining City, Sichuan Province Bureau of Public Security sent police to meet with Yongjun Zhou in Shenzhen. According to Zhou, some of the police from Suining City Bureau of Public Security know him from before and at that time Yongjun Zhou had disclosed his real identity to Shenzhen Police. Thus, his real identity could be ascertained no later than November 8, 2008. Pursuant to “The People’s Republic of China Criminal Procedural Law” (“Criminal Procedural Law”), Section 128 (2), “The number of days of the detainment should be counted starting from the day when the real identity of the suspect is ascertained if the suspect refuses to disclose his/her name and address,” Yongjun Zhou has been detained 144 days more than that allowed by the law, starting from November 8, 2008, the day when his real identity was disclosed, to May 8, 2009, the day when the Suining Peoples’ Procuratorate granted the arrest of him, subtracting 30 days, the longest for criminal detainment, and 7 days, the days for the review by the People’s Procuratorate, pursuant to Criminal Procedural Law. Pursuant to Criminal Procedural Law, Sections 75 and 96, “the suspect, defendant and his/her legal representative, relative or the attorney or other defender retained by him/her have the right to demand the release of the suspect or defendant or cancellation of the surveillance or household watch if the court, prosecutor or Bureau of Public Security detains them for longer than that allowed by the law” and “the suspect may retain his/her attorney to provide legal counsel, complain or appeal after he/she is detained or interrogated for the first time,” we will complain on behalf of Yongjun Zhou to Shenzhen Police for their overtime detainment of Yongjun Zhou.
Considering the above, we believe:
1. The Agency of Public Security of Mainland China has no jurisdiction over this case pursuant to Criminal Law, Sections 6, 7 and 8 regarding the jurisdiction of the criminal cases;
2. There is insufficient evidence to charge Yongjun Zhou and his case should not stand;
3. There is a grave problem of overtime detainment of Yongjun Zhou.
Yongjun Zhou was the first president of Autonomous Students Federation of Beijing Universities during the [Tiananmen Square uprising of 1989]. Due to the 20th anniversary of the June 4 event, his prominent case may receive great attention from the international community. We hope that your bureau will enforce the law in compliance with the law, ascertain the case as soon as possible and dismiss the case.
Regards,
Shaoping Mo, Attorney
Zerui Chen, Attorney
Beijing’s Mo Shaoping Law Firm
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