Reports are coming out today that three UCLA basketball team members visiting China for a game have been arrested in Hangzhou, for suspected shoplifting. As a USA licensed Attorney (Illinois) and resident legal professional in China for over 30 years I know first hand this matter must be taken seriously. Swift action is required to ensure a timely release for these three students.
I have worked has a legal professional in China over 30 years. I first came to China in 1986 and have lived here continuously since that time. As the first foreign lawyer to work in a Chinese law firm, and as founder of one of the first privately law firms established in China since the start of its period of reform, I have worked first hand on criminal defense cases in China. I have assisted directly in everything from defense of minor public disturbance charges to serious matters involving the potential for the death penalty. In my experience the first 2 to 3 days are crucial in defining the course of a criminal case.
Let me explain briefly the process awaiting the three unfortunate students. First, you must understand that the students will be treated and prosecuted according to the domestic laws and procedures of China. They will be allowed visits from personnel of the USA Consulate in Shanghai, but these diplomatic personnel are unable to provide legal advice, and the USA Embassy or Consulate will typically be unable to intervene, as this is strictly a matter of China’s domestic law enforcement.
In China there is no right to lawyer. There is no right to remain silent. Anything the students stay to authorities can and will be used against them. As they are newly arrested, they will be in custody of the local police. The police will be tasked with interviewing the students, collecting evidence and building a legal case against them based on a suspected violation of law. Once the police feel they have established a sufficient case that a crime has been committed they will transfer the individuals to the office of the Procuratorate. The Procuratorate is similar to the prosecutor’s office in the USA. The Procuratorate will make a judgment as to whether the evidence supplied by the police will likely be enough to support a conviction. If the Procuratorate is satisfied with the evidence, they will refer the matter to the court. If the Procuratorate is not satisfied with the evidence, they may decide to release the individuals from custody, or they send them back to the police for further collection of evidence. In my time in China I have seen the police and the Procuratorate bounce suspects back and forth between their organizations for up to 9 months. During these 9 months, the suspects remain in jail.
In the event the Procuratorate believes there is evidence sufficient for a conviction, and the matter is referred to a court, there is almost a 100% certainty that these students will be convicted and face. Official statistics for the past several years indicate over 99% conviction rate. For the charge of shoplifting these students are facing potentially 3 or more years in a Chinese prison.
In my experience, the fate of those taken into custody by Chinese police is determined within the first 2 to 3 days after the initial arrest. This is when police interview the suspects, often without any lawyer present, and build a case. Intervention of an experienced criminal defense attorney at this stage is critical to secure a fast release or a mitigated sentence.