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1 October 2020 is the Material Date of “12 Hongkongers Case” (30 September 2020)

On 23August 2020, 12 Hongkongers were caught and detained by China Coast Guard as they attempted to flee to Taiwan. According to Lu Siwei, a Chinese lawyer assigned by the family of one of the detainees, 1 October 2020 is the material date for these 12 Hongkongers.

 

Time Limit for Detention

In Hong Kong, after a suspect is arrested by law enforcement agencies (e.g. police officers or officers from the ICAC), they should undertake investigation promptly, and swiftly take him/ her to Magistrates for mention should they decide to prosecute. If no prosecution is sought, generally, they can only grant bail to or release the detainee after 48 hours of detention.

 

Yet, in China, a different jurisdiction, law enforcement agencies can detain suspects for 37 days without bringing a prosecution.

 

Legal Foundation

The legal foundation of detaining a suspect for 37 days without needing to prosecution is premised on Articles 91(1) & (2) of “Criminal Procedure Law of the People’s Republic of China”, which state that:

 

“Deeming that a detainee needs to be arrested, a Public Security Authority shall, within three days after detention, file an arrest request with the people’s procuratorate for examination and approval. Under special circumstances, the time limit for filing such a request may be extended for one to four days.” (Article 91(1))

 

– As such, in so-called “special circumstances”, public security authority can extend the initial detention period from 3 days to 7 days.

 

“For a person strongly suspected of committing crimes from place to place, repeatedly, or in a gang, the time limit for filing an arrest request for examination and approval may be extended to 30 days.” (Article 91(2))

 

– As such, public security authority can extend the detention period in addition, making it a total of 7 + 30 = 37 days’ detention.

 

Furthermore, the wordings of Article 91(2) are dubious which are difficult to construe their literal meaning, especially when reading in Chinese. Interpretation of the Articles would only ascertain ambiguity, and therefore it is proven that detainees can hardly protect their own rights, and defence lawyers are also unable to review the detention decision.

 

Moreover, there is no stipulation that the public security authority has to apply to the People’s Procuratorate for the “30 days” extension. Therefore, most of the mainstream legal analysis in the mainland China has compromised to accept that the public security authority can detain the suspsects for 37 days in all cases at their discretion.

 

Precedents of prolonged detention

37-day detention is around 20 times longer than that in Hong Kong. What is more perplexing is, the next stage of the procedure after 37 days is not prosecuting the suspects henceforth, but to “approve the arrest” of the suspects. “Approval of arrest” is de facto another extension of detention just in a different name, but after the “approval of arrest” the detention period can be in months or even years.

 

Hence, it is not uncommon to see in China, there are suspects being detained for more than 100 days or even more than a year without being brought to prosecution. This is drastically different from the criminal procedure Hong Kong or most of the jurisdictions in the world.

 

Lawyer Ding Jiaxi and Lawyer Gao Zhisheng are 2 examples of prolonged detention. Lawyer Ding Jiaxi is a main participant of the “New Citizens Movement” in China. His whereabout remains unknown after he was detained on 26 December 2019, and there is no news as to whether he is already prosecuted whatsoever. Similar situation is found on Lawyer Gao Zhisheng. Gao represented many cases related to the protection of minorities in the society, and he was subject to various kidnapping and imprisonment subsequently. His whereabouts remain unknown after he was detained in August 2017. Family members of both Ding and Gao spoke in the 45th Session of the Human Rights Council in the United Nations on 21 September 2020 to demand China to immediately release human rights lawyers, and to eradicate enforced disappearances against human rights lawyers in China.

 

Implication to the “12 Hongkongers Case”

The aforementioned analysis denotes that as the 12 Hongkongers were detained on 23 August 2020, 1 October 2020 would therefore be the date where the Public Security Authority has to decide whether to “approve the arrest” of the 12 Hongkongers. If such arrest is approved, relevant authorities should announce the relevant charges against them, and the ensuing arrangement upon the approval of arrest. If no arrest is approved, those 12 Hongkongers should be released immediately.

 

Expectation

At the moment, information regarding the “12 Hongkongers Case” is lacking. Relevant authorities have refused any lawyers appointed by the family members to meet the detainees by allegedly claiming that the detainees had appointed “government-assigned lawyers” instead. This only makes the situation of the 12 Hongkongers look more abysmal and worrying. It is hoped that China would comply with international law and domestic regulations to provide every legal right that the detainees and the lawyers appointed by the family members are entitled to, and to provide a fair, just and open criminal procedure for the case.

 

Source

https://bit.ly/36iLwVD (Essay by Chinese Lawyer Lu Siwei)

https://bit.ly/34duRjB (Criminal Procedure Law of the People's Republic of China)

https://twitter.com/luoshch/status/1308375270953451525 (Talk given by Luo Shengchun, the wife of lawyer Ding Jiaxi, in the 45th Session of the United Nations Human Rights Council

https://twitter.com/Genghe1/status/1308501677234966528 (Talk given by Geng Ge, the daughter of lawyer Gao Zhisheng, in the 45th Session of the United Nations Human Rights Council)

 

 

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