On Sep. 30, 2020, the Shenzhen City’s Yantian District Procuratorate approved the arrest of all 12 Hong Kong residents, which included 2 minors, on suspicion of organizing illegal border crossing, and 10 persons on suspicion of illegal crossing of the border. The Hong Kong police passed the Arrest Notice to the families the same night. With the differences in mainland and Hong Kong legal systems, many of the families were extremely concerned about the consequences and development of the arrests. To address some of these concerns, the author is hereby offering a few new perspectives.

First, Yantian Procuratorate’s approval of the arrest means that there is sufficient evidence to show that the 12 Hong Kong residents constituted a crime and may be sentenced to fixed-term imprisonment. The procuratorate believes that there is a need for continued custody, and therefore has not released bail pending trial. Of course, the procuratorate’s stance does not mean that the 12 will for sure be convicted, because the power to convict lies in the courts. However, judging from the low innocence rate in the mainland, these 12 cases do not look optimistic.

The family is concerned about whether the case will have a result. According to the mainland’s Criminal Procedure Law, the investigation and detention period for this case is two months, which means that the public security department will transfer the case over to the procuratorate for review and prosecution before Nov. 30, 2020. Many wonder if the investigation period will be extended, I do not believe so for three reasons: 1) this case is clear and simple, and I believe that public security has already finished investigating, but are still verifying some evidence to be cautious, then the investigation should be completed soon. 2) this case does not have the circumstances stipulated in Articles 158 and 159 of the Criminal Procedure Law, let alone those in Article 160. Therefore, there is no legal basis for extended detention. 3) as the case has attracted worldwide attention, Shenzhen’s judicial organs should close the case as soon as they can to show the international community and Hong Kong public its judicial transparency and efficiency.

As such, the case could be transferred within two months for procuratorate review and prosecution. The one-month limit for the procuratorate’s review and prosecution is one month, and could be extended for another two weeks before deciding whether to initiate a public prosecution. If the procuratorate initiates a public prosecution to the court, the court will hold a trial and the trial period is two months. Therefore, from the perspective of the statutory deadlines for the three stages of comprehensive criminal proceedings, an optimistic estimation is that this case will be completed between New Year’s Day and Chinese New Year.

An important thing to note is the two minors in the case. I boldly speculate that regardless of whether these 12 Hong Kong residents have committed a crime, these two minors may not be prosecuted in the end, with the reason being that according to the Criminal Procedure Law and the provisions stipulated in chapter six, the crime of crossing the border of the country, the procuratorate can conditionally not prosecute minors. This is not only in line with domestic law, but also that of international conventions.

The case started as a very ordinary criminal case, but the defenders hired by the families all encountered a difficult problem – Yantian District Detention Center claimed that the suspects have appointed two defenders on their own, and have therefore refused the ones from the families. We know that the right to defense is one of the most important rights throughout the entire criminal proceedings. If the right to defense is restricted or even deprived, then the case would not only fail the test of the law, but also the examination of history, and will lead to very serious consequences. We hereby call on the Shenzhen judicial organ to choose between the easy way out by excluding defenders, and restoring the public’s confidence in the rule of law. We ask the Shenzhen judiciary to think twice before acting.

The defenders are highly skeptical of the detention center’s claim that the suspects have appointed lawyers on their own. If the truth is revealed, such relevant personnel have perhaps already broken the law. We hope that these relevant departments in Shenzhen will immediately rectify these illegal acts. The defenders requested that the Yantian District Detention Center allow the families-appointed lawyers to see the suspects, and to read them their rights. At the same time, we also appeal to those lawyers who have been arranged to intervene in the case. Without the authorization of family members, we ask that you resign from the case immediately because you have no rights to defend. Even if you were “entrusted” by those detained at the center, the truth will come to light eventually. Your appointment will not withstand scrutiny and confrontation, therefore we hope that you respect the law and not violate it knowingly. Please respect your conscience and professional ethics.

As mentioned above, the families-appointed lawyers' right to defense is currently being restricted, but does it mean that these lawyers are not qualified to defend? Of course not. Before meeting the client, the defenders should continue to perform their defense duties by initiating complaints and allegations as follows: 1) the Yantian District Detention Center has refused to arrange for the lawyers to meet with the suspects; 2) the Yantian District Public Security Bureau has not rectified the illegal behaviors of the detention center; 3) the delinquency of the prosecutor’s office of the Yantian District Procuratorate has not rectified the illegal behaviors of the detention center; 4) the investigation and supervision departments of the Yantian District Public Security Bureau have not responded to the defenders' complaints and allegations; 5) report to the Shenzhen Municipal Supervisory Committee the dereliction and abuse of power by relevant public officials. These aforementioned complaints and allegations can be lodged with procuratorates, public security organs, and supervising committees at all levels in Guangdong Province. Concurrently, defense lawyers can also write letters to their clients and request the detention center to ensure that they receive them as a right to communicate.

So far, the families in Hong Kong have neither received any substantial help from the Hong Kong government, nor have they been able to get a hang of the situation of their family members in the Yantian Detention Center through their defenders. Since they are unfamiliar with mainland laws, they are very anxious and flustered and not sure how to go about defending the rights of their families. As such, I hereby make a few suggestions for the family members to defend their rights.

Family members must first know what rights they have, including the most important rights to know, the right to communicate, and the right to meet. The right to know means that family members have the right to know all the progress of the case and the health status of their detained relatives. The case-handling agency should inform the family members of the progress of the case in a timely, proactive, and complete manner. The right to communicate is mostly about correspondence. Family members can write letters to the parties at any time, and ask whether the case-handling agency has forwarded the letters to the detained while requesting to receive a response. The Yantian Public Security Bureau should ensure the suspects' right to communicate and provide convenience for such communication between the family and the suspects. The mainland’s Criminal Procedure Law does not stipulate the family’s right to meet before the judgment, but the current Detention Center Ordinance has the provision that Hong Kong family members can apply to the Yantian District Public Security Bureau or the Guangdong Provincial Public Security Bureau to meet with the detained.

In view of the existing inconvenience between the two places, in addition to continuing to seek help through the Hong Kong government, the families can also meet with the NPC deputies and CPPCC representatives in Hong Kong, clearly voice their demands, and ask them to perform their duties as the NPC deputies and CPPCC members, through the Ministry of Public Security and the Supreme Procuratorate, hold accountable these violators of the law within the public security bureau and procuratorates in Shenzhen’s Yantian District.

The 8.23 border crossing case was originally an extremely ordinary one, but within the context of history, it seems to be evolving into one of the most influential and controversial cases since Hong Kong’s Handover in 1997. In the vortex of the times, each and every one of us is more or less feeling helpless. However, the defense lawyers will face everything calmly in the name of the rule of law. In this difficult time, all defenders will abide by the concept of the rule of law, stand firmly with the families, and allow us to hold their hands tightly to accompany them through the most turbulent time in this life.

(Lu Siwei, Chinese human rights lawyer)

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