We understand that it would be frustrating to get detained in China (or elsewhere indeed), but it doesn’t mean that you can do nothing about it – you still have the chance to not get formally arrested or prosecuted, or obtain a not-guilty verdict under the PRC criminal law regime. The key is to act swiftly, get the professional advice from local practicing lawyer and develop your defence strategy and present it to the authorities as early as possible. It gets more and more difficult to get out of the situation when things move on to the next stages. Below are some suggestions about what you can do, or should be aware of, if you get detained/arrested in China, with some specific to white-collar crime:
- Check the identity of police officials and ask for help from your companions. Try to keep calm and ask the police officials to present their ID cards to understand what the case handling authority is. If you get detained when you are at work or with a friend, you should ask your colleague or friend to notify those close to you and get you help, including retaining a lawyer. Get a lawyer involved from the very beginning. Under PRC law, you are not allowed to communicate with your family or friends after being detained (normally only consular officials and your lawyer are allowed to visit you after the detention). Therefore, it may take a while before your family or friend find out that you have been detained if the police face difficulty in getting into contact with them (especially when they live abroad).
- Ask the police to notify embassy or consulate immediately. PRC law requires the police to notify your country’s embassy or consulate after detaining you. But you should still take the initiative to ask the police to notify the nearest embassy or consulate in the first instance. They can provide certain but limited assistance to you, including helping contact your family; they cannot get you out of prison.
- Be aware of the 37-day ‘golden period’. You have the right to retain a lawyer from the date on which you are first interrogated by the police or subject to compulsory measures. The police can detain you up to 37 days before the prosecutor approves arrest against you. Some call this a ‘golden period’ for you and your lawyer to argue your case, as it will be difficult to change the game once the prosecutor has approved the arrest. This is because PRC law provides that the prosecutor shall only approve the arrest if there is evidence showing that an offence has been committed, the suspect may be sentenced to imprisonment or a heavier punishment, together with other conditions.
- Communicate with your lawyer and develop the defence strategy as soon as possible. According to the figures publicised by the PRC Supreme People’s Procuratorate and PRC Supreme People’s Court for the year 2019, the prosecuting authorities approved arrests against 1,088,490 people and prosecuted 1,818,808 people, while deciding not to approve arrest against 191,290 people and not to prosecute 41,409, making the rough percentage for non-arrest being 14.95%, non-prosecution being 2.23%. The courts have convicted 16.6m criminals in first-instance cases, while have found not guilty for 637 defendants in public prosecution cases and 751 defendants in private prosecution cases. This makes the rough percentage for not guilty verdicts in public prosecution cases 0.000485% (white-collar crime is a public prosecution crime). Looking at these figures, you will know when to best act.
- Even if you are arrested, you still have the chance to not get prosecuted (as shown above). Upon closure of an investigation, the police hand over the case materials, including the argument made by your lawyer, to the prosecutor for it to review and consider whether to issue an indictment. Therefore, it is critical that your lawyer can communicate with you smoothly and build a convincing argument in writing.
- After an official arrest, you may be detained for up to 13.5 months before formal charges are made and the case is transferred to the court (you may be given bail under certain circumstances). Time already spent in detention before the sentencing will be accounted for and offset with the period of imprisonment decided in the final judgment. Normally the court has two to six months, from the date when a case is transferred to the court to issue an initial judgment. You have the right to file an appeal within ten days upon receipt of the judgment. The appeal should take up to two to four months.
- China has not abolished death penalty, but it is generally restricted to offenders of serious and violent crimes, and some non-violent crimes, such as drug smuggling or trafficking, production or sale of counterfeit medicine, which makes death penalty of little concern for white-collar crime offenders.
- The most commonly seen write-collar crimes include (according to the PRC Criminal Law and judicial practice): (i) embezzlement; (ii) bribery – the offence of a non-government official accepting bribes, the offence of offering bribes to government officials, the offence of offering bribes to non-government officials, and the offence of infringing trade secrets; (iii) crimes associated with listed companies – the offence of insider trading or leaking inside information, the offence of manipulating securities or futures markets, and the offence of harming the interests of a listed company by breach of fiduciary duty.
- The standard which differentiates corporate crime and individual crime under the PRC law as it impacts the sentencing for companies and individuals. For a corporate crime, the company would receive a fine, the responsible employees would still receive criminal punishment, but the punishment would generally be mitigated compared to an individual crime. If the individual has established the company for the purpose of carrying out criminal activities, or the company commits criminal activities as its main activity, it would be deemed to be an individual crime instead of a corporate crime. In addition, it could be hard to tell the difference if the individual is the legal representative of the company. Legal representative is a unique term under the PRC law, which is often assumed by the chairman of the board or the general manager and can generally represent the company during daily operation. If the legal representative made the decision to commit the criminal activities without violating explicit internal procedure or rules, the benefits accrued from the illegal activities went to the company, and the company does not commit criminal activities as its main activity, then it is likely for the PRC court to find that a corporate crime has been committed.