On Defending Foreign Criminal Suspects
The author holds that, though there is no major difference between foreign criminal defense and domestic criminal defense in principle, points of focus and skills required differ. The author introduces ten aspects in foreign criminal defense worthy of discourse, which are: penal law articles, types of offence, power of attorney, translation, communication and intervention, family members, inter-country differences, out-of-court strategies, politics and diplomacy, fee payment and points out the necessity of specialism of foreign criminal defense.
Gong Chu (Oscar)
Partner, DeHeng Law Offices (Shenzhen)
PhD. In Law, Renmin University of China
Practice scope: Dispute resolution
Mobile: 13590496399 (WeChat)
On Defending Foreign Criminal Suspects
I have been processing legal affairs with foreign factors in every year since I began my legal career in 2005. Legal affairs involving foreign factors are comprehensive, namely those requiring a foreign language speaking lawyer to deal with such things as international investment, M & A, trade, family affairs, IPR, labor, legal consultancy, real estate, lawsuits & arbitration and penal cases. In this final category I have covered quite a few cases in which the suspects or the victims have been non-Chinese and my clients have received good results in terms of judgment and sentence. For example in one intentional homicide case the client was given an 8-year prison sentence (with a practical jail term of around 4 years). In another case my client caused serious injury to a Chinese person and was remitted to prison without probation. Hereinafter, I shall summarize some regular points of focus in criminal defense.
I. Penal law articles
There is no way for a penal lawyer to work normally without mastery of basic knowledge of penal law articles. This is a basic qualification for any criminal defense lawyer. However, my point is that in international criminal defense work this mastery of penal law articles is not the core. The reasons are these: China is a statutory code state with both substantive and procedural criminal laws brought to light to the public. Many issues can be probed by combining case facts with criminal law articles: whether a person has committed a crime, the name of the crime, how heavily the culpable should be punished, etc. As a language, Chinese is scientific in that it basically enables any Chinese person to search on the Internet or consult a law book to have a rough idea, though not an accurate one, about how to solve their legal problem if a lawyer is unavailable. In this regard English and many other languages are not comparable to Chinese. In common law countries not only the system of criminal law is different but also the innate features of language. For example some have one special word for one concept and these words, when put together, form legal terminology that is difficult for common people to understand without investing huge amounts of time and energy in study and training. Thus, in many countries the legal terminology almost equals a foreign language even for local people who had better have recourse to lawyers.
I consider that, during the criminal defense work for foreign suspects, the time spent by a foreign defense lawyer on searching, reading, understanding and analyzing penal law articles occupies at most five per cent of the total working time. Defending a criminal suspect is similar to solving a maths problem in that there is a formula for crime names and sentencing criteria. By filling case facts into the formula, you will get the punishment results. Besides, the judicial sovereignty of the state dictates that there is no necessity to take the criminal rules of a suspect's homeland into consideration in investigating, charging and sentencing him or her while the host country's justice can operate directly according to her own laws. There are also clear rules for extradition of criminal suspects and international transfer of sentenced persons. Hence, essentially there is no special difference in the basic way of defending Chinese or non-Chinese. Most of a criminal defense lawyer's time is spent on acquiring case facts and other work.
II. Types of offence
When I started to study Chinese penal law in the 1990s I found it to be concise, easily understandable and free from ambiguity. I memorized easily the ten categories of offence by adopting abbreviations, taking the first word of each type as a hint. Mainly, foreigners are prone to four categories of crime i.e. Crimes of Disrupting the Order of the Socialist Market Economy (3), Crimes of Infringing upon Citizens' Right of the Person and Democratic Rights (4), Crime of Property Violation (5), Crimes of Obstructing the Administration of Public Order (6).
In my legal work criminal defense is concentrated on Category 4 and 6, mainly the cases of intentional homicide, intentional injury and drug trafficking. Currently I am processing a case of marijuana sales and another case of heroin smuggling.
III. Power of attorney
In essence a power of attorney for a criminal case is similar to that for civil and commercial lawsuits or arbitration cases involving foreign factors in that the client, their close relative or legal representative signs it. Alternatively, an embassy or consulate to China may entrust a Chinese lawyer to act in other ways, with the content and format being a little different.
语言沟通问题直接排除我国绝大部分执业律师从事涉外刑辩业务。涉外刑辩律师的第一件基本素质就是要掌握外语。没有掌握至少一门外语的执业律师在原则上并非不能代理涉外刑案，只是在涉外刑案代理上，无优势，显拙劣。不会外语的律师为外国犯罪嫌疑人辩护，通常的做法是配备翻译。辩护律师带翻译会见外国人的弊端多，如：1. 翻译的水平问题造成无法准确传达原意；2. 翻译者的非法律专业背景导致翻译偏差；3. 律师通过翻译跟嫌疑人沟通，效率和质量不高。4.律师带翻译会见需获得审批，需协调时间，增加工作负担。
Language barriers exclude most Chinese lawyers from doing criminal cases involving foreign suspects. The first basic qualification for an international defense lawyer is the mastery of a foreign language. A certified lawyer without the grasp of a foreign language is not necessarily disqualified from such cases in principle, but would be at a major disadvantage compared with lawyers who possess such skills and qualifications - thus it may be awkward for them to undertake such work. For such a lawyer an interpreter or translator would need to be retained to assist them in their defense work. However, there are defects in bringing an interpreter to visit foreign suspects: first, the interpreter may not be able to fully understand what the suspect is saying; second, deviation may occur due to the interpreter's lack of legal knowledge; third, efficiency and quality of expression may be lower when the lawyer communicates with the suspect through an interpreter; fourth, approval must be gained in advance for the interpreter's visit and the lawyer must coordinate his/her working time with that of the interpreter, thus increasing the workload.
A certified lawyer with a good grasp of a foreign language is an inter-disciplinary talent who can operate free of hindrance.
Apart from visiting the suspect, the lawyer needs to talk to non-Chinese speaking people from the suspect's social circle from time to time. Also, the lawyer has to be able to communicate with the suspect's family members at any time. It is not realistic for the interpreter/translator to always be present with the lawyer and, besides, this would make the cost high. If the lawyer is superior to the interpreter/translator in language skills, he will not be led blindly by the latter during case file reading, proof appraisal and the court hearing. On the contrary, he will be able to point out translation errors and correct them. In this way the lawyer can take the upper hand, control the rhythm and even hold the prosecutor and judge in awe, thus helping the suspect in getting the best judgment.
涉外刑辩律师掌握多门外国语言是技能加分项。相当一部分来华外国涉嫌犯罪者文化不高，英文差，经常需要用他们的母国语言沟通。这些语种的中国翻译较难聘请。即使嫌疑人会说英语，很多人达不到精通程度，会夹杂母语的单词。比如母语是法语的非洲人用英语说“Support”，但他要表达的并不是“支持”，而是“忍受、承担”（法语单词Supporter）；母语是西班牙语的南美人用英语说“Pan”, 不要理解为 “平底锅”，他说的是“面包”。并且，他们往往会用母语语法套英文单词。碰到这种情况，翻译难以理解，遑论准确传达。如律师本人通晓其母国语言，效果比带翻译工作还更好。
A foreign criminal defense lawyer possesses an even higher value should he have a grasp of several foreign languages. Quite a few suspects from overseas are not very well educated, speaking no Chinese and with poor or little English. Communication is only achieved by speaking their mother tongues. English language interpreters are far easier to retain than interpreters of other languages. Also, very often even when a suspect speaks English he or she may utter words or phrases of his or her mother tongue. For example, a native speaker of French from Africa may say "Support", but this word does not necessarily mean "Support" in English. Rather, it means to "Tolerate somebody or Burden the consequences" in French; a native speaker of Spanish from South America may say "Pan", but this is not actually a cooking tool, and his real intention is to say "Bread". Besides, they may speak English with the grammars of their mother tongues. It will be difficult for the interpreter to properly understand the suspect if he or she does not have a working knowledge of such linguistic nuances. If the lawyer is knowledgable of the suspect's language he will be better able to understand and assist them.
Thus, a certified Chinese lawyer who has studied a few languages is able to obtain the best working quality in representing such a category of cases. Also, studying a foreign language for this lawyer becomes a self-training legal skill and more than just a joy.
V. Communication and intervention
Two work tools that a defence lawyer working with foreign suspects should not underestimate are communication and psychological support.
Detained in another country, as well as cut off from his family and homeland, except for personal visits or telephone calls, often not carried out by some embassies/consulates to China, during which parties are forbidden to discuss the case itself, the suspect will no doubt lack a sense of safety. He is often troubled and in turmoil. Communication difficulties with roommates can also lead to the assigned lawyer becoming the only person with whom the suspect can talk in-depth. Efforts should be made to eliminate the suspect’s fear and to calm any negative emotion. This can be done by the suspect’s lawyer allotting time for the suspect and by explaining to him the rules and articles of law in detail.
Despite seeming irrelevant, spending time talking with the suspect is very useful for two main reasons: a. The lawyer can support the suspect to relax and adjust to life in custody; b. By spending time talking with the suspect, the lawyer can understand the suspect’s personality, self-development, etc. to help analyse case factors including cause, subjective culpability, etc. which can facilitate the defence work.
Good communication often benefits the suspect. For example, the lawyer may comment positively about the suspect in his defending documents to the Prosecutor General's Office or to the Court, in order to make a good impression on the prosecutor or the judge. This may work to help the suspect in getting a lighter prosecution or punishment.
VI. Family is king
The lawyer should not focus solely on the case to the detriment of communication with the suspect’s family members. On the contrary, he must always keep the family in mind, be ready to communicate with them at all times, update them with the latest developments in the suspect’s case, and show the family unwavering patience in his discussions. The reasons for this are: a. As the suspect’s family are not in China, the defence lawyer is their eyes, ears and mouth and their main source of information; b.The family may provide useful information and/or documentation related to the case; c. Cooperation is required from the family at all stages of the defence work. It is also worth noting that the suspect’s family processes the defence’s retainer.
I worked on a case early in my career in which the suspect directed his fury against me as his lawyer immediately after the judgment, due to what he felt was an unduly severe punishment served by the Court. Eventually he began to realise that I, his defence lawyer, had done a large amount of work in order for his case to deliver that result. He continues to be grateful towards me, even though upwards of ten years has since passed.
In one sense, the suspect’s family members are the lawyer’s true clients. The quality of the lawyer’s communication with the family members will directly determine what the family will be willing to do. For example, some family members will talk to the local media out of fear of the process and will sometimes divulge untruths about the case. Foreign media may also share false information based on only knowing one side of the story. This can have a negative impact on the Chinese justice system. From this point of view, a Chinese foreign criminal defence lawyer also performs the key role of maintaining international stability. How the family members react to the case can be even more sensitive and important than the Court’s final judgment on the suspect.
As opposed to the suspects who actually relocate to China to live and work, their family members often only speak their native language. This highlights the advantage of being a bilingual (or multilingual) lawyer. There are far too many languages for any one Chinese lawyer to learn, however it is truly a significant advantage for a lawyer to understand several international languages besides his own.
VII. Inter-country differences
Objectively speaking, among the around two hundred countries and regions, suspects and family members originating from Europe, America, and the former European/American colonies are easier to communicate with. The reasons are as follows: a. They respect and trust lawyers, due to the legal tradition in their countries; b.They are willing to pay fees to secure legal services. This allows the lawyer to concentrate solely on the defence work itself.
However, a lawyer may have the opposite experience to the above with suspects and family members from some countries. I was once entrusted by a consulate of one major state to defend a fraud suspect. I visited him and did some relevant work. Due to the ill manner of his family member and this family member’s different way of thinking, I refused to continue the work by terminating the legal service agreement.
VIII. Out-of-court strategies
In the early stages of my law career, I found myself working on some unique cases which caught the attention of the media and I found myself speaking to a large number of reporters. Some of these cases were reported by China Central Television and picked up by interested foreign media. Working with the media is a double-edged strategy for a defence lawyer, as the point of view adopted by a newspaper or television reporter can be different to that of the defence lawyer. This has the possibility to engender a negative effect. During those cases, I also made contact with local foreign affairs’ authorities and the suspects’ homeland embassy/consulate to China. It is suggested that the defence lawyer should have an out-of-court strategy where possible on a case-by-case basis carefully.
During one criminal case, I contacted the suspect’s homeland consulate in a city in the South China region. They eventually sent several diplomats to attend the court hearing, while the local intermediary court rarely accommodated such a situation, preferring to video and audio record the trial. This court provided a highly acceptable judgment for both the suspect and the lawyer.
IX. Politics and diplomacy
The performance of a nation’s judicial sovereignty will be influenced by politics and diplomacy, particularly where there are foreign cases involved. For example, in recent years one state detained a high-ranking official from a large-scale Chinese enterprise. This may have been the trigger for a retrial of a drug-trafficking case in which the suspect from that state was sentenced to fifteen years. In the retrial, the suspect received a death penalty sentence. It is possible that this altered judgment was influenced by the detention of the aforementioned high-ranking official. Another suspect, who was a parliamentary member in his country of origin, was detained on leaving China and was immediately charged with trafficking heroin, but was only sentenced to life imprisonment seven years later. A foreign criminal defence lawyer is suggested to broaden his world-view, pay attention to diplomatic developments and thus find an improved strategy for defending suspects from foreign countries.
X. Fee payment
It is difficult to collect an unpaid retainer from foreign clients who deliberately delay or refuse to pay. The law firm must remind the suspect’s family, or others, of the requirement for timely payment. They should also state clearly in their retainer agreement what are their firm’s payment terms.
The retainer is usually paid via methods such as an international wire transfer, PayPal, Western Union, and so on. Cash payments are rarely seen. It is possible for the retainer to be paid by a foreign government, such as the Filipino Government paying a retainer to a Chinese law firm for their defence of a Filipino citizen. A retainer could also be paid by an NGO, such as the NAACP (National Association for the Advancement of Colored People, U.S.) retaining a lawyer in China to defend a US citizen.
Money paid under these circumstances is always traceable.
International criminal defence is concerned with whether a foreign criminal suspect receives a fair judgment, that China’s justice system is praised, and that China’s international image is enhanced. It is also in complete accord with our original intention to promote justice and uphold the law. Defence lawyers in this specialism of the legal profession are highly sought after. For a criminal defence lawyer to perform highly on these cases takes a substantial investment of time and energy regarding the law around and the practices required for foreign criminal defence work. They may also find themselves creating something new that adds to the science of criminology, or that they are able to make suggestions to the justice, legislature or to a government department. It is vital to recognise that this specialism with the legal profession requires ongoing resources and that we must continue to explore and promote the specialism of foreign criminal defence law in our country.