The American press has reported on the arrest and trial of William Ping Chen for the importation of garbage into China, alleging that he is a pawn in Sino-American relations. Whatever the political background, the decision of the Shanghai Municipal Intermediate Level People\u27s Court shows that this case was decided according to established rules of law

Wingo, Janice

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Washington International Law Journal Volume 6 Number 3 7-1-1997 The Garbage Smuggling Case: Judgment of Division One of the Shanghai Municipal Intermediate Level People's Court January 13, 1997 Janice Wingo Follow this and additional works at: https://digitalcommons.law.uw.edu/wilj  Part of the Comparative and Foreign Law Commons, and the Litigation Commons Recommended Citation Janice Wingo, Translation, The Garbage Smuggling Case: Judgment of Division One of the Shanghai Municipal Intermediate Level People's Court January 13, 1997, 6 Pac. Rim L & Pol'y J. 607 (1997). Available at: https://digitalcommons.law.uw.edu/wilj/vol6/iss3/5 This Translation is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington International Law Journal by an authorized editor of UW Law Digital Commons. For more information, please contact cnyberg@uw.edu. Copyright 0 1997 Pacific Rim Law & Policy AssociationTHE GARBAGE SMUGGLING CASE: JUDGMENT OFDIVISION ONE OF THE SHANGHAI MUNICIPALINTERMEDIATE LEVEL PEOPLE'S COURTJANUARY 13, 1997Translated by Janice WingotAbstract: The American press has teported on the arrest' and trialof William Ping Chen for the importation of garbage into China,alleging that he is a pawn in Sino-American relations. Whatever thepolitical background, the decision of the Shanghai MunicipalIntermediate Level People's Court shows that this case was decidedaccording to established rules of law.2Public Prosecution OrganShanghai Municipal People's Procuracy, Division OneDefendant: William Ping Chen, also called Chen Pingyi, male, bornFebruary 20, 1940, United States of America nationality, college leveleducation. Former Chairman of the Board of the Sino-American JointVenture, Shanghai United Paper Industries Company, Limited. Resides at910 Eighty-ninth Street, Oakland, California, United States of America. Int B.A., International Relations (Johns Hopkins University), M.A., Russian Studies (YaleUniversity), J.D.-LL.M Asian Law, University of Washington, 1995-96 graduate student at NationalTaiwan University Law School. No copyright is claimed to the original Chinese version.See Seth Faison, China, on Eve of Trade Talks, Holds American as Smuggler, N.Y. TIMES, June 6,1996, at A14.2 Albert H.Y. Chen, An Introduction to the Legal System of the People's Republic of China, 114(1992):The typical judgment of a Chinese court is short and does notset out lines or steps of legal reasoning and logical analysis in a way asdetailed as in the judgments in common law courts. Relevant statutoryprovisions may be referred to, but the precise relationship betweenthem in their application to the case will not usually be discussed atlength. As there is no established doctrine of precedent, case law willseldom be referred to in the judgment. Lawyers' submissions are notusually responded to in the judgment. Dissenting judgments are notallowed.Footnotes are those of the editor given to help common-law trained readers better understand thecivil law process.PACIFIC RIM LAW & POLICY JOURNALthis case, he was taken into criminal detention 3 by the Shanghai MunicipalPublic Security Bureau on June 3, 1996. On the 13th of the same month hewas arrested according to law.4 Presently he is in custody in the ShanghaiMunicipal Detention Center.Defense counsel: Pan Feng, Yuan Jiyu, attorneys at law, JingjianLaw Firm, Shanghai.5According to Division One of the Shanghai Municipal People'sProcuracy, Defendant, William Ping Chen, committed the crime ofsmuggling. [The prosecutor] filed an indictment with this court.6 This courtZHONGHUA RENMrN GONGHEGUO XINGSHI SUSONG FA[CRIMINAL PROCEDURE LAW OF THEPEOPLE'S REPUBLIC OF CHINA] [XINGSHI SUSONG FA], art. 4 1, states:Public security organs may initially detain an active criminal deservingarrest or a major suspect under any of the following conditions:(1) if he is preparing to commit a crime, is in the process ofcommitting a crime or is discovered immediately after committing acrime;(2) if he is identified as having committed a crime by a victimor an eyewitness;(3) if criminal evidence is found on his body or at hisresidence;(4) if he attempts to commit suicide or escape aftercommitting the crime or he is a fugitive;(5) if there is a likelihood of his destroying or falsifyringevidence or colluding with others to give false statements;(6) if his identity is unknown and he is strongly suspected ofcommitting crimes going from one place to another; and(7) if he is engaged in "beating, smashing and looting" and isseriously undermining work, production and public order.Furthermore, "[tihe time limit for holding a defendant in custody during investigation shall notexceed two months." XINGSHI SUSONG FA, art. 92.4 XINGSHI SUSONG FA, art. 39, states: "Arrests must be approved by a people's procuracy ordecided by a people's court and must be carried out by a public security organ."XINGSHI SUSONG FA, art. 26, states: "In addition to exercising the right to defend himself, thedefendant may entrust the following persons to defend him:(1) lawyers; ......6 XINGSHI SUSONG FA, art. 100, states:VOL. 6 No. 3SHANGHAI GARBAGE CASEaccepted the case on October 28, 1996, and on December 2nd of the sameyear, according to law, opened a public7 session of a collegiate panelg tohear this case.9Procurator Zhu Yunbin and Acting Procurator Zhuang Wenhao of theShanghai Municipal People's Procuracy, Division One, appeared in court toprosecute the case. Defendant William Ping Chen and defense counsel, PanFeng and Yuan Jiyu, came to court to participate in the defense.' 0When a people's procuracy considers that the facts of a defendant'scrime have been ascertained, that the evidence is reliable and sufficientand that criminal responsibility should be investigated according tolaw, it shall make a decision to initiate prosecution and shall, inaccordance with the provisions for trial jurisdiction, initiate a publicprosecution in a people's court.ZHONGHUA RENMrN GONGHEGUO XIANFA (1982) [CONSTITUTION OF THE PEOPLE'S REPUBLIC OFCHINA] art.125 states: "Except in special circumstances as specified by law, all cases in the people's courtsare to be heard in public." The New York Times New Service reported that U.S. Consular Officer, RichardAdams, attended the trial. Seth Faison, Garbage Smuggler Caught Up in the Bad Odor of US-ChineseTies, INT'L HERALD TRIB., Jan. 14, 1997, at 6.Sometimes this body is referred to as a "collegiate bench."XINGSHI SUSONG FA, art. 105, para. 2, states: "Trials of cases of first instance in the higherpeople's courts or the Supreme People's Court shall be conducted by a collegiate panel composed of one tothree judges and two to four people's assessors."See also CHEN, supra note I, 159:The formal trial of a case consists of five stages. First thechief adjudicator (of the collegiate bench) opens the trial and makescertain announcements, and the procurator reads out the indictment.Second, the adjudicators interrogate the defendant. With thepermission of the chief adjudicator, the procurator, defender and victimof the crime may also question the defendant. After interrogation ofthe defendant, witnesses will be questioned by the adjudicators and theprocurator, and, with the permission of the chief adjudicator, also bythe defendant and her defender.The third stage of the trial is the 'court debate.' This consistsof speeches by the procurator, the victim, the defendant and thedefender. Fourth, after the chief adjudicator announces that the courtdebate is closed, the defendant has the right to make a final submission.This is followed by the fifth stage, when the court adjourns, deliberateson the case and then announces the judgment (either delivered on thesame day as the trial or reserved) in public.XINGSHI SUSONG FA, art. 28, states:The responsibility of a defender shall be to present, according to thefacts and the law, materials and opinions proving the innocence of thedefendant, the pettiness of his crime and the need for a mitigatedpunishment or exemption from criminal responsibility, thussafeguarding the lawful rights and interests of the defendant.JULY 1997PACIFIC RIM LAW & POLICY JOURNALFollowing the assessment of the collegiate panel, the case was sent to theadjudicative committee" to be decided. The trying of the case has nowcome to an end.The Shanghai Municipal People's Procuracy, Division One, chargedthe defendant with evading customs inspection on 238 tons of garbagetransported from the U. S. to Shanghai from July to December of 1995,constituting the crime of smuggling. He should be punished according tolaw. Defendant William Ping Chen, after having been accused of the facts,made a confession in court.' 2 Defense counsel did not object [to the charge]that the defendant's acts constituted a crime. However, [counsel] arguedthat defendant acted on behalf of Shanghai United Paper IndustriesCompany, Limited, and that the transported garbage had not yet given riseto pollution in China's environment. [Counsel] suggested that thedefendant be punished leniently.Upon investigation and examination [the court] finds that thedefendant, William Ping Chen, disregarding the numerous objections of theChinese manager of Shanghai United Paper Industries Company, Limited,and against China's customs laws and regulations and environmentalprotection-related regulations, and with the purpose of seeking profits, fromJuly to December 1995, in the names of the China Export Commodity BaseXINGSHI SUSONG FA art. 149 states: "If the president of a people's court at any level finds somedefinite error in a legally effective judgment or order of his court as to the determination of facts orapplication of law, he shall refer the matter to the judicial committee for handling." RENMIN FAYUANZuzmi FA [ORGANIC LAW OF THE PEOPLE'S COURTS] art. 1I, beginning with para. 2 states:Members of the judicial committee of the local people's courts atvarious levels shall be appointed and removed by the standingcommittees of the people's congresses at the corresponding levels,upon the recommendation of the presidents of those courts .... Thepresidents of the people's courts shall preside over meetings of thejudicial committees of the people's courts at all levels.See CHEN, supra note 1, 110-12.12 XINGSHI SUSONG FA, art. 36, states:The testimony of a witness may be used as a basis in deciding a caseonly after the witness has been questioned and cross-examined in thecourtroom by both sides, that is, the public prosecutor and the victim aswell as the defendant and defenders, and after the testimonies of thewitnesses on all sides have been heard and verified.See also CHEN, supra note 1, 163: "It is noteworthy that the Law of Criminal Procedure expresslyprovides that a defendant may not be convicted solely on the basis of his confession in the absence of anyother evidence."VOL. 6 No. 3SHANGHAI GARBAGE CASEConstruction Anhui Company and the Zhejiang Province LivestockProduction Import-Export Company in order to import withoutauthorization 238 tons of U.S.-produced solid garbage packed in sixteencontainers. He falsely reported it was wastepaper or mixed paper. [Thegarbage] was illegally transported to the Wusong Port Area and WaigaoqiaoPort Area, in Shanghai, China, on the Tuohe, freight-steamer V165; thePresident Roosevelt, freight-steamer Vi12 and V113; the PresidentWashington, freight-steamer V126; and the President Lincoln, freight-steamer V130. Upon inspection, it is decided that China prohibits theimport of all of the above-mentioned 238 tons of garbage.The above-mentioned facts are proved by the following evidence:discovery and seizure of 238 tons of garbage in sixteen separately loadedcontainers; the "Inspection Report" and the "Opinion Regarding Inspectionof Garbage in 16 Containers" by the People's Republic of China ShanghaiImport-Export Commodity Inspection Department and the ShanghaiMunicipal Environmental Protection Department concerning the garbage inthe above-mentioned containers, all categories of which China prohibitsimport; documentary evidence seized from the defendant, such as bills oflading and related invoices, container packing certificates, bills of carriage,etc. for the above-mentioned containers; written evidence supplied toShanghai Customs by the Shanghai Office of American President Lines(China) Company, Limited, [proving] that defendant is the agent of the U.S.shipping company [that transported] the above-mentioned containers; thestatement of the China Export Commodity Base Construction AnhuiCompany and the Zhejiang Province Livestock Production Import-ExportCompany that they never commissioned William Ping Chen to importsixteen containers of garbage; documentary evidence that the defendantwrote, in his own handwriting, in January and May of 1996, to the twoabove-mentioned companies admitting that he, himself, had used withoutauthorization the names of the two companies in order to import the above-mentioned sixteen containers of garbage; the related "HandwritingAppraisal Document;" and other related evidence. The evidence is reliableand sufficient.This court finds that the defendant, William Ping Chen, with thepurpose of seeking profit, used without authorization the names of China'sforeign trade companies, falsely reported commodity names in violation ofcustoms regulations, evaded customs inspection, and illegally imported intoChina 238 tons of garbage, the import of which is prohibited. His actsJULY 1997PACIFIC RIM LAW & POLICY JOURNALconstitute the crime of smuggling and he, therefore, should be punishedaccording to law. The facts of this case indicate that these acts of thedefendant were purely his individual acts and, moreover, are obviouslyharmful to society. Accordingly, the opinions of defense counsel are notaccepted. In order to safeguard the order of China's customs inspectionadministration and protect China's ecological environment, according to theprovisions of articles 313 and 30' 4 of the "Criminal Code of the People'sRepublic of China," and of article 4, section 1, paragraph 1, of the"Supplementary Provisions Conceming the Punishment of the Crime ofSmuggling"' 5 of the Standing Committee of the National People'sCongress, the judgment is as follows:Defendant William Ping Chen committed the crime of smuggling,and is sentenced to ten years' imprisonment, a criminal fine of 500,000renminbi, and a supplementary sentence of expulsion from the country.' 6Division One of the Shanghai Municipal Intermediate Level People's Court" ZHONGHUA RENMIN GONGHEGUO XINGFA [CRIMINAL LAW OF THE PEOPLE'S REPUBLIC OF CHINA][XINGFA], art. 3, states: "This Law is applicable to anyone who commits a crime within the territory of thePeople's Republic of China."14 XINGFA, art. 30, states: "Deportation may be imposed independently or supplementarily to aforeigner who commits a crime."" GUANYu CHENGZHI ZOUSIFA DE BUCHONG GUIDING [Supplementary Provisions of the StandingCommittee of the National People's Congress Concerning the Punishment of the Crimes of Smuggling],art. 4, sect. 1, para. 1, states:Those who smuggle goods and articles not specified in articles 1-3 ofthe present provisions shall, in the light of the seriousness of thecircumstances, be punished in accordance with the followingprovisions:(1) whoever smuggles goods and articles valued at not lessthan 150,000 yuan and less than 500,000 yuan shall be sentenced tofixed-term imprisonment of not less than ten years or lifeimprisonment, and shall concurrently be sentenced to a fine orconfiscation of property.According to article 27 of the Criminal Law, punishments are divided into principal andsupplementary punishments. XINGFA, art. 27. "The principle punishments are as follows: (1) publicsurveillance; (2) criminal detention; (3) fixed-term imprisonment; (4) life imprisonment; and (5) thedeath penalty." XINGFA, art. 28. "The supplementary punishments are as follows: (1) fines; (2)deprivation of political rights; and (3) confiscation of property." XINGFA, art. 29. The American press hasreported that, while Mr. Chen was sentenced to ten years imprisonment, "his expulsion makes that termirrelevant." Seth Faison, China Convicts American as Trash Smuggler, N.Y. TIMES, Jan. 14, 1997, at A3.This is not in line with the court's ruling. However, the New York Times adds, "It was not immediatelyclear when Mr. Chen would be deported." Id.VOL. 6 No. 3

The Garbage Smuggling Case: Judgment of Division One of the Shanghai Municipal Intermediate Level People\u27s Court January 13, 1997

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The Garbage Smuggling Case: Judgment of Division One of the Shanghai Municipal Intermediate Level People\u27s Court January 13, 1997

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