China Aid Association
Comment on A Case against Zhuohua Cai
The brief detail of the case against Zhuohua Cai is like this: according to the report from BBC on 6th July 2005, Pastor Zhuohua Cai, famous Chinese Underground Church leader, was about to face a trial on 7th July in Beijing. He was accused of allegedly printing 200 thousand copies of Bible. It was said by his attorney that both his wife and Zhuohua Cai himself as well as 2 other church members were to be prosecuted on the grounds of “illegal business management”. Cai was arrested by the authorities on 11th Sep. 2004 and had been kept for ten months. Cai’s wife, Yunfei Xiao; her brother, Gaowen Xiao and her sister-in-law, Jinyun Hu were arrested on 27th Sep the same year in Hengshan County Hunan Province. It was also reported at the same time that the Ministry of Public Security had characterized this case as “the biggest case of religion filter since the found of PRC” due to the mass work done by Pastor Cai and his wife in his house church. In addition, in accordance with a public procurator’s words, Gan Luo, general secretary of the Political and Judiciary Commission under the Central Committee of the Communist Party of China, himself would interfere in the case.
Zhuhua Cai was a leader of a christian meeting spot in Beijing. Soon after he was arrested, Mr. Wei Qiang, general secretary of the Political and Judiciary Commission under Beijing municipal government, pointed out that: this case was the biggest case of religion filter since the found of PRC. Apparently, basing on the thought of “anti peace evolution”, the authorities arrested and investigated him for some political reason. However, being surrounded by the public opinions from all circles throughout the world, they changed their mind and labeled this case as “illegal business management”. If things at last turn out to be like that, then, according to Article 225 of the Criminal Law of PRC, Pastor Cai would likely be sentenced to 15 years of imprisonment.
In the penman’s opinion, the accusation above is not proof because of the following reasons:
First, in terms of subjective element of the crime of illegal business management, the prosecuted should have had the aim of figuring for illegal gains. While, in this case, there is not any proof of the prosecuted having such an aim at all. In fact, the prosecuted had even no business attempt at making money by printing Christian literature. Since the subjective element is absent, the act of the prosecuted should not be charged as the crime of illegal business management.
According to The Criminal Law Article 225, the crime of illegal business management including the following three situations:
(1) without permission, dealing in goods that are designated by laws or administrative rules and regulations as goods to be dealt in or sold in a monopoly way or other goods that are restricted in trading;
(2) buying or selling import or export licenses, import or export certificates of origin or other business licenses or approval papers required by laws or administrative rules and regulations; or
(3) other illegal operations that seriously disrupt market order.
The operations mentioned in this article first of all should be understood as acts aiming at making profits. So the illegal operations should be acts aiming at illegal gains which are the subjective element of this crime. If some so called “economic operations” are not aiming at making profits, they have not to be labeled as operations in this circumstance let alone illegal business management. Obviously, acts aiming at commonweal and charity without making any profit are not business operations. Even though some of these acts might to some extent violate related administrative regulations, they should be strictly excluded from illegal business management. The prosecuted printed and spread Christianity literature, which was not aiming at making illegal gains, thus the prosecuted had no intention to gain illegal profits. Therefore, the accusation of the procurator is not proof at all. Meanwhile, the distinction between violation of administrative laws and crime should be clearly made.
Second, in terms of objective element of the crime of illegal business management, the object can not be found in this case, because the prosecuted did not take any action that seriously harmed social order or disrupted market order. The copies of Christian literature printed by the prosecuted are not illegal publications that would harm social order or disrupt market order. The accusation is not proof.
Interpretation of the Supreme People’s Court on Some Issues concerning the Specific Application of Laws in the Trial of Criminal Cases for Illegal Publications Article 11 regulates: “Publishing, printing and copying illegal publications besides those mentioned through article 1 to 10, if the circumstances are serious, according to item 3 article 225 The Criminal Law (namely other illegal operations that seriously disrupt market order) is regarded and punished as the crime of illegal business management.” This kind of regulation is nothing but a blank crime which endows the judge with free authorities. Such free authorities could be used in this case randomly and arbitrarily, as harms the basic principle of criminal law–The definition of a crime shall be strictly construed and shall not be extended by analogy.
In this case, the publications printed by the prosecuted are all copies of Bible or supplementary books on Christian belief. They are not something against laws, regulations or morality and tradition which proclaims eroticism, superstition, gambling, violence, and etc. On the contrary, these publications can actively promote the social stableness since they teach people about kindness, mercy and love. Therefore, the Christian literature printed by the prosecuted did not belong to publications that seriously harmed social order or disrupted market order.
In this case, the prosecuted gave the copies of Christian literature to believers as gifts to help them better understand the Christianity. There was no price tag but words as “not for sale” printed on these books which did not enter the market for sale or brought harm to other managers’ legal rights(in fact there is no other managers at all for these kind of books are all gifts and not for sale). What’s more there was no evidence show in this case that the prosecuted had ever sale his copies in public. So the acts of the prosecuted did never disrupt the market order. Both the indictment from the procurator and the evidence in the court admit that the prosecuted was teaching religion in specialized religious place. Strictly speaking, the copies above are only materials for inside studies and researches among folk churches. So the Christian literature that the prosecuted printed is not illegal publications that seriously disrupt market order.
To sum it up, the acts of the prosecuted are not fit to the acts mentioned in article 11 Interpretation of the Supreme People’s Court on Some Issues concerning the Specific Application of Laws in the Trial of Criminal Cases for Illegal Publications. Since the objective element of the crime is absent, the prosecuted should not be sentenced and punished as criminal of illegal business management.
Third, in this case, the fact is not clear, and the evidence is not enough. The evidence that the procurator showed in the court was not “reliable and sufficient”which is required as a criterion for conviction by the Criminal Procedure Law of the People’s Republic of China.
The evidence that the procurator showed in the court in order to prove the guilty of the prosecuted that was said to make illegal gains by printing Christian literature was only part of confession from the prosecuted. Besides, the confession was not coherent at all and there was no other evidence. So the evidence showed by the procurator was solitary (therefore dubious) evidence. So this evidence did not reach the criteria of “evidence reliable and sufficient” required by the Criminal Procedure Law of the People’s Republic of China. According to the principle of criminal law, “In case of ambiguity, the definition of a crime shall not be made.” Since the evidence can not prove the guilty of the prosecuted, he can not be defined as criminal of illegal business management.
Fourth, there is no procedural justice in this case. When the procedural justice of law is assured, the law will lose its substantive justice.
In court record in the appendix we can see ZhuoHua Cai’s defence was this: “I deny my confession record. It is not the truth. The officials of the State Security threatened me:’Spreading Bible is a problem on belief and a serious political issue. You should transform it into an economic issue.’ I answered in the way what they wanted me to answer. They wrote me a confession and made me sign on it. Then they said I should also confirm it. They wrote me a second confession and said that if I said something they had not asked me to say in the court, they would beat me.” Confession got through extorting from a criminal suspect or defendant by torture, though true, can not be the evidence in court. It is the common principle in modern evidence theory. In a well developed nomothetic society, evidence will not be used in court if it is obtained through extorting from a criminal suspect or defendant by torture and the suspected or the defendant will be released as innocency due to the procurator’s violation of procedural justice.
Fifth, Citizens of the People’s Republic of China have freedom of religious belief. This right is guaranteed by the constitution and laws. The prosecuted printed Christian literature, which was an act of Chinese folk religious mission.
Constitution of PRC Article 36 regulates: Citizens of the People’s Republic of China enjoy freedom of religious belief. No state organ, public organization or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion. The state protects normal religious activities. Article 35 regulates: Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.
According to these two basic regulations, we have reasons to believe that the prosecuted did not violate laws in principle. On the other hand, the freedom of religious belief and freedom of speech and of the press should be protected by constitution and laws. As Chinese citizens, if these two basic rights can not be assured, we can hardly enjoy any other rights. We all know that there is no right without obligation. When we enjoy a right, we at the same time have some obligation. So, to the freedom of religious belief, its obligation aspect is not to affect other’s freedom of religious belief when enjoying the right. The prosecuted did not affect other’s freedom of religious belief, therefore he did not violate the Constitution. What’s more, he also as a Chinese citizen has the freedom of speech and of the press. Supposing his act violated the freedom of press, then theoretically, he violated the copy right regulated in Intellectual Property Law, because to copy presswork one should authorized by the copyright owner. Let us first set aside the problem whether he violated the copyright or not. Even though he did so, it would be a case of private law which is totally unrelated with the Criminal Law.
In conclusion, according to current Chinese Constitution, Zhuohua Cai should enjoy the freedom of the press by law. No state organ may deprive this sacred right endowed by Constitution. According to the regulation of “illegal business management” in article 225 the Criminal Law and the interpretation of the Supreme Court, the procurator has no evidence to prove that the prosecuted harmed social order and disrupted market order. The reasons are: first, the prosecuted was not a manager. Second, the copies printed by him did not go to the book market and he had no intention to sale them. Third, there was no business acts taken by him. Fourth, he did not gain profit by spreading the Christian literature. Fifth, his act had no element of crime, thus it had no possibility to harm the society.
Therefore, even strictly according to the current legal system, the act of printing and spreading Christian literature can not be defined as “illegal business management”. If it is defined so, the judgement will be against the law. At least it would violate the following laws and regulations: first, Constitution, for article 35 of the Constitution clearly regulates freedom of the press; second, Legislation Law, for the core of this law is not to make regulations against the Constitution; third, the Administrative License Law, for it regulates that department without legal endowment can not create license. The inside materials are not necessarily licensed by law; fourth, the judicial principle of “evidence supporting prosecution”. The procurator prosecuted without showing sound evidence.
In other words, the nature of Cai’s case has nothing to deal with illegal business management. It can only be related to political conflicts between citizen right and authority right: first, conflict between citizen’s freedom of the press and authority’s monopolization of the press; second, conflict between religious belief and freedom and religion control under the idea of antitheism; third, conflict between universal religion and Chinese ideology. Therefore, the core of Cai’s case is not concerning on economic problems but on political ones. Though it began with religion, it became something beyond religion. Essentially, it belongs to the category of freedom of speech and thinking. The reason why he was arrested is not because of his illegal business management but because of his spreading of a kind of religion which is not liked by the government. By the force of the minimum standard of international civilization, to express this belief is superficially legal, but some of the authorities always keep it illegal in their minds. Therefore, the government would give great pressure to those who fail to fulfill the requirements set by the government even “slightly”. Well, in order to deceive the public, all kinds of strange accusals will be put on their heads.
In any civilized society, it will go without saying to freely express one’s thinking and to freely spread one’s belief. Both are the core of freedom to speech and are the basic ideas of political civilization. For many years, China has been hammering at the establishment of a nomocracy society and socialism politically civilized country. In such a country, the basic rights of the citizens should be protected by law. There are two reasons when the law fails to do so: one, the law itself has some blemishes; the other, the law system has some problems, namely ruled by man not by law.
Religious life is an essential part of human being’s spiritual life. After a long struggle and suffering even by paying for blood, man gained his right of religious freedom. In the idea of modern civilization, religious freedom will always be the core of many basic rights including freedom of speech, of assembling and of conscience and etc. All these rights together promotes the venerable individual life, conscience moral act, autonomy civilized society and healthy democratic politics. The history of human being says that to build a venerable, civilized, moral and harmonious society, religious freedom is a must. In the time of peace and in an economic first society, man can not always simply think of material consumption. Man is thirsty for a spiritual life, as revives religion and belief widely in public. It is a certain trend. It has no conflicts with the main trend of science and culture. The modern civilization has already solved the problem between science and belief. The individual freedom of belief will surely clear up the collective ideology. The promotion of individual right will surely limit the power of government. That is what the authorities have to face and accept.
If a Christian can not enjoy the rights of getting a Bible, reading it freely and spreading it freely, he will not enjoy the basic freedom of belief. In another word, such freedom of belief will become a lie. As we all know, the right of belief is the essential part of human right. In history, people paid a lot to get and protect this right. Since the coming of modern society, different belief communities have begun to respect and tolerate one another. By and by there came a kind of common value. The separation of church and state has become the principle accepted by most countries.
Chinese government has signed the International Covenant on Civil and Political Rights. Article 18 says: “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.” Obviously, in this case, the prosecuted printed and spread Christian literature , which is the kind act of “manifesting his religion or belief in worship, observance, practice and teaching” regulated in the above covenant. But the persecution from the authorities he is experiencing indicates a kind of violation of his freedom to belief.
All Chinese people, from Christians to non-Christians to even anti-Christians, should stand up to defend for the prosecuted. If there were no freedom of expression of Christianity, there would be no freedom to criticize on Christianity. Similarly, if the Christian’s freedom of religion were deprived, any other religion would face the same danger. What’s more, if the freedom of religion were not able to be protected, all the other right and freedom would be at risk. Appendix I?Detailed Record of the Case
Zhuohua Cai was arrested. Did he realize it beforehand? Never! Neither did his family and his church. On 8th Nov. 2004, he and his wife knew that the book storeroom of their church had been sealed up. Why? What would happen next? He was not able to understand it. His wife was even more confused.
In the morning of 11th Sep. 2004, his wife Yunfei Xiao saw that the south gate in their complex was closed by the police. She told it to her family, but they all did not think too much on it. Cai did not have breakfast, as usual, and went to church for the coworker meeting. After the meeting, he went out from the church and walked on the pedestrian road. To his great surprise, he was grasped into their van by three fly cops waiting outside. Around 9 at that night, a man knocked on the door of the Wheat Company. Somebody asked: “who’s that?” “It’s me”, he answered. The ladies inside had thought that he was a male friend of some of them, so they opened the door. As soon as the door was open, ten men broke in, cops and fly cops. They ordered the all ladies to stand still in the living room and to turn around so that they were not able to witness their searching. The ladies were threatened and trembled. There were 8 host computers, video cameras, cameras, books, CDs, business licenses and etc. confiscated. Seven ladies were all taken away to the police station and investigated separately throughout the night. Five of them were released till 12 the next day, and two till 16 the next day. During the investigation, no water, no food and no sleep.
As to Cai, he was suffered much more than the ladies were. They had been investigated for 14 to 18 hours, while Cai for 39 hours without any break from that noon to 3 in the morning the third day next. It is our own analysis through what we knew: that morning, without breakfast he went to the coworker meeting; almost noon time he was arrested; no water, no food, no sleep till the next night; when nine that night he was taken to his home, he had some leftovers after 2 days of fasting; 2 in the morning he was taken home again to fetch his cell phone; nothing was known after that.
They searched his home and the copies of religious books without ISBN were confiscated. There were 2 cartons of books with ISBN bought in foreign book markets in the living room. They were totally legal properties and should have not been confiscated. However, who would stop the police if they have decided to do something? The Cais were frightened, grieved and upset. How could they respond? They were totally in the control of the cops. Telephone books and even the residential certificate were confiscated. How sad they were!
In the morning of 11th Sep, Cai’s wife Yunfei Xiao and her brother Goawen Xiao went out to do some business and did not come back home that night. Maybe it was the inspiration from the Holy Spirit. After they knew what had happened. They had to leave their home and fled away. Their parents were worried about where they would go without any necessity thing or money. Meanwhile, they were under great pressure, for the cops always came to them to ask for their 2 children. It was heard that later they were arrested in their hometown together with her sister-in-law. It was beyond everybody’s imagination.
Wengao Xiao’s wife Jinyun Hu was preparing for her sister’s wedding in the hometown when she was arrested together with her husband and his sister. Hu was so confused for she was a mere housewife. She was first not a Christian, second jobless, third uneducated. Such a person was counted as a member of Cai’s joint crime.
Each of the couples has a son. Cai’s is 4 years old and Xiao’s 7. Now the 2 boys are both looked after by their grandparents. They miss their parents a lot. The older one has even though of committing suicide for several times. The younger one sometimes comforted his brother: “My parents also were arrested. Why not me think of suicide? Because I believe they will come back.” He was also crying when saying these words. When he missed his parents, he would quietly lay down on his parents’ bed where he had always slept with them. Sometimes he called his uncle “daddy uncle” and his auntie “mummy auntie” and wanted to sleep with them. The grandparents, when seeing the kids missing their parents, could not help crying.
On 11th Sep. 2004, Zhuohua Cai was arrested and the Wheat Company was searched and the properties were confiscated. How could the company keep running on with no leaders and equipment? The landlord of the company said to Cai’s mother: “I was told by the authorities not to rent the house to you any longer.” And the landlord of their house said to her: “Please move out. I will give you back the extra money.” Then his mother had to move out of both the house and the company and to find a new place meanwhile. She was tortured physically and spiritually.
Cai suffered a lot, which is what we can understand. In the mid of October, his family sent him some clothes. It was not until his attorney first met him that they found the guards had not given the clothes to him. Thank Lord. Some brother asked some head officer in Haidian Public Security Bureau to send the clothes to Cai after 46 days of block. Though the detention is quite near to Cai’s home, his family and his church can not take care of and help him at all. Though the four people involved in this case are kept in the same detention, they are separated in four “worlds”.
Appendix II?Court record (By Biao Teng)
In the morning of 7th July 2005, having been locked up for 9 months, Cai and his wife, Xiao Yunfei; her brother, Xiao Gaowen and his wife, Hu Jinyun were first tried for alleged “illegal business practices” in the People’s Court of Haidian District, Beijing City. The trial had been postponed three times by then. On 5th July, it was noticed that the trial would be given in the third court, while one day after the defense lawyer was told that the place was changed to the sixth court which could only hold 24 people. Most people did not get the notice of change of place on the internet, so they went to the third court on the trial day. Biao Teng, one of the defense lawyers, arrived at the court at 8:25 AM that day. Before he arrived, there had been many people waiting on the line to get audience cards. Cai’s mother was the 5th one from the front of the line. But a tipstaff told her that all the audience cards of the sixth court had been already handed out. We told him that she was Zhuohua Cai’s mother and asked for a card. Some other people questioned him: why did he only hand 4 cards out while there were more than 20 seats in the court? That tipstaff’s replied very impolitely, “no more, no more!”
Several minutes later, in succession arrived Lawyer Zhisheng Gao, Dr. Yafeng Fan, Lawyer Xingshu Zhang and Xiaoguang Jin as well as other two deputies Zhiyong Xu and Yongmiao Chen who were not able to get the proofs of non-criminal record from the local police office (they were told that the police office could not give them proofs for forbiddance from the upper authorities). When we entered the sixth court, there had already been tens of audiences sitting there. When we questioned the tipstaffs and female secretary (I forget her name): “Why did you only hand out 4 audience cards?”
She said, “Cannot you see how many people have come?”
“How did they get the cards?”
The answer was, “They applied for the cards collectively beforehand.”
As soon as Biao Teng brought aunt Cai into the court, they were stopped by a tipstaff.
Biao Teng said?”This is Zhuohua Cai’s mother.”
The tipstaff said?”Does she have the audience card? If not, please go out.”
Biao Teng said?”There are still seats available here. Why not allow her in? She hasn’t seen her son for more than 9 months.”
Zhiyong Xu questioned them: “Can you tell me what your rule is on handing out audience cards? There must be something wrong with it.”
It became a bit out of order. Teng asked the tipstaff for an option: if there was seat empty when the trial began, let her stay here to listen. He agreed. Zhisheng Gao said; “For the other audiences the present is a choice, but for the prosecuted’s mother it is a must. I do not understand where the technical obstacle lies in. Just one more seat. “
When the time was almost up, the secretary ordered to check the audiences’ ID cards. Zhisheng Gao commented: “Hoe much do they care about the identity of the audience! They pay a lot of attention on it!”
The tipstaffs checked their IDs one by one. Since Zhiyong Xu got his audience card from an old lady, he was driven out rudely and his audience card was grasped away though he initially offered for an exchange of ID card with that lady. Aunt Cai was driven out, too. All the defense lawyers expressed strong objection on that. At that time, a tipstaff said that there had to be 4 seats saved for tipstaffs and asked the audience in the front rows who “applied for audience cards beforehand” to go to another court to listen. They left without any words. We have reason to doubt that these people were arranged by the authorities.
The court door was closed and the trial was about to begin, but there were at least 3 seats empty besides the 4 saved for the tipstaffs.
Zhisheng Gao said to Judge Tao You: “To common citizens, the audienceship is a matter of law, while to family of the prosecuted, it is not only a matter of law but a matter of humanism.”
The Judge said: “Talk about it later.”
Biao Teng?”Just now a tipstaff said if there was seat empty aunt Cai would be allowed to stay. Here are the empty seats€¦”
The Judge: “Which tipstaff?”
Yafeng Fan said: “The one just left. We all heard he said so.” The Other lawyers all showed their objection on this issue.
The Judge still answered: “Let’s talk about it after the beginning of the trial.”
Biao Teng: “That will be too late.”
Zhisheng Gao said: “It is not wise or humane not to let her in.”
Tao You: “It is that tipstaff’s business.”
Zhisheng Gao: “You tell me, who is in charge of the court, you or the tipstaff? Is not it the decision of the court that Cai’s mother can not be an audience?”
“Talk about it after we begin.”
“Then it will be meaningless to talk about it.”
“It is arranged by the court. What’s the matter?”
“You are misusing your authority?”
Silence, confrontation. Tao You glared at Lawyer Gao with hostility. Gao looked him back in scorn.
Tao You asked?”Why are you looking at me?”
Zhisheng Gao: “What right do you have that I can not look at you? Three words: expanse of power. If you were not the judge, I would never look at you.”
Tao You: “I just do not want you to!”
Zhisheng Gao?”Today a new rule is created in the court: lawyer cannot look at Judge.”
Tao You?”The way and time you look at me is beyond limitation.”
Zhisheng Gao?”Please tell me what the limitation is.”
Tao You: “Now I allow you to look at me. Ok, look!”
Zhisheng Gao?”You give me the privilege at last. You should pay attention to your status. You scold others and do not allow the lawyer to look at you, while having been chewing your gum since you came in. What is this decency?”
Tao You: “The trial is not begun yet. I will pay attention to my manner after the beginning.”
Two jurors both took their seats nameed Qian Wang and Jianmei Ren. Tao You knocked the hammer: “Take the prosecuted to the court.”
The forbiddance of aunt Cai’s audienceship shows the inhumanity of the court. Such a detail also tells us the inhumanity of the whole system. In the process, the secretary, the tipstaffs and the judge all exposed their indifference and brutality.
Probably the judge has never had such an experience. One week ago, Tao You was only a secretary, as was displayed in the notice board of the court. It is unknown whether in order to get this promotion he took over the case. There is an article called Let Us Remember Those Who Participated Evil by Jie Yu. It tells us that those who have conscience and have a little knowledge on the case and the background will make an excuse for not taking over the case. What the judge did before the prosecuted was taken to the court emphasized the religious persecution color of the case.
Many people may have this kind of concern: A wise man does not fight when the odds are against him?In order to get a lighter sentence, the lawyers should not have cared for the details with the judge; otherwise the judge will take revenge by making a sentence. It is true. However, for such a case known all over the world, it is not the judge of the court but the higher authorities who will make the final sentence. Even if they were extremely humble to the judge, he would not make a light sentence without permission. Even if they were extremely rude to him, he dares not randomly make a heavier sentence without permission from the upper officials. In addition, according to our experience, the more we are humble to the judge, the harder he will treat us back during the trial. The harder we struggle for our own rights fearlessly, the more responsible the judge will be in the trial.
That was the prelude. A wonderful judicial drama was to begin.
The four prosecuted were escorted to the court by four tipstaffs with handcuffs on and dressed in yellow waist coats (“uniform” for people locked in the detention). I have been hating these deeds a lot which are radically against the principle of presumption of innocence. Wearing yellow waist coat, with handcuffs on, and being escorted by the tipstaff are all leave an impression of guiltiness to people. How can he be treated like this if he were not guilty? In a country ruled by law, the attorney will spend a lot on dress and manner of the accused. Even a killer will be well dressed and treated politely, so that no bad impression will be left to the judge or the jury. Some lawyers and scholars have been appeal for the cancel of the rule of “yellow waist coat”, but this bad rule seems spreading wider and wider. This detail also shows the inhumanity of the political system. The prosecuted are treated as criminals and enemies before the final sentence.
After the identity check, the handcuffs were taken off. Each prosecuted sit down in the middle of 2 tipstaffs. There were also 4 tipstaffs sitting among the audience.
Then the indictment was read. There were two procurators. The male named Muzi Li said nothing from the beginning to the end. The female named Tong Zhang was the secretary.
The four prosecuted all denied the indictment. During the trial process, they were calm, unperturbed and rational.
Xingshui Zhang pointed out one mistake in the indictment: “There are only three items in article 225 in the Criminal Law. How come it is said that the fourth item?”
The procurator read confession record and presented the evidence. Tong Zhang read:
Q:Why you are taken to the police office?
A: Because I illegally sold Christian literature and made illegal profits for doing that.
Q:What was the whole process of your illegal management?
A:Some people gave me the order. They wanted to buy Christian literature. Then I downloaded the sample from the internet and took it to Room 602, Gate 1, Building 24, Lanyuan complex, Haidian District. My wife then edited it with 9 workers and then made the edition into films. Afterwards, Yungao Xiao was in charge of transportation. That’s all.
Q:How did you get the profits?
A:I only charged for the books and did not charge for the transportation.
Zhuhua Cai’s defense was: “I deny my confession record. It is not the truth. The officials of the State Security threatened me:’Spreading Bible is a problem on belief and a serious political issue. You should transform it into an economic issue.’ I answered in the way what they wanted me to answer. They wrote me a confession and made me sign on it. Then they said I should also confirm it. They wrote me a second confession and said that if I said something they had not asked me to say in the court, they would beat me.”
Lawyer Gao made comment on this confession record: “According to the regulation on withdrawal in article 28 the Criminal Procedure Law, a member of investigatory should show his identity so that the prosecuted might ask for his withdrawal. But in this record, we know that the investigator did not show his identity or make the party known his right of asking for withdrawal. Besides, in the record the investigator used the expression of “illegal business management” for many times, which apparently was inducing the prosecuted to make a confession.”
The procurator: “We think the evidence is got legally.”
Zhisheng Gao ?”Want you “think” is different from what the law regulats.”
The procurator asked the prosecuted:”Did anybody show his identity to you?”
Only Cai answered?”The policemen did but the Public Security people did not.”
Zhisheng Gao?”The objective fact and the legal fact are different. We are now questioning on the format of the confession record. Though almost all the prejudication records are the alike, I will always question on the format as long as I defend”
Xingshui Zhang and Biao Teng emphasis once more to the court: “Since the confession record was got through inducing and extorting from the prosecuted by torture and since there are procedure blemishes, it can not be the evidence in court. The court should take what the prosecuted say in the trial as evidence.”
Wengao Xiao also denied his confession record: “I had even never read it, but they made me sign it.” His defense lawyer also questioned the procedure of getting the confession.
After the procurator read Yunfei Xiao’s record, Xiao said: “The prejudication man said that the record was exactly what I had said and I needed not read it.” She has never looked it over.
Zhuohua Cai: “The procurator said that I mainly made money from illegally sell publications. Please show me the evidence! Invoice, receipt, contract or the buyer? Where are they? What is your evidence?”
Zhisheng Gao: “First, according to Article 65 the Criminal Procedure Law, a public security organ shall interrogate a detainee within 24 hours after detention. However, the first interrogation to Yunfei Xiao was made 24 days after she was arrested, and the second 63 days after. This procedure is seriously against the law. The record was taken beyond the legal time limit. Can you present a record made within 24 hours? Second, according to the regulation on withdrawal in article 28 the Criminal Procedure Law, a member of investigatory should show his identity so that the prosecuted might ask for his withdrawal. But we can not see this procedure in the record. There is a serious blemish in the procedure.”
The procurator said: “We have that part of record in Procuratorate note.” Then she read the Procuratorate note.
Zhisheng Gao: “When public prosecution initiates a case, it shall hand in a list of major evidence before a court. This evidence is not found in the list therefore the defenders have not seen it before the court. It is not a technical problem only. It matters to the right of the parties and the defenders.”
The procurator: “We can present any evidence we have in the court whenever necessary.”
Zhisheng Gao: “Again, it is your rule not Chinese law.”
By questioning the prosecuted, Yafeng Fan proved that the Christian literature printed was not used to make money but to preach religion. He asked the court to take what is found in the trial into account.
In Jinyun Hu’s confession record, she said: “she gave me 80 thousand. Because she is my sister-in-law, I accepted. If it were from somebody else, I would have thought it over.”
The questions Tao You asked Hu seemed to induce her confession so that he could judge her guilty. He had lost his nonaligned position. Or he had never taken the nonaligned position. A judge in the court should not try to ask questions but to listen to what the parties’ debate, based on which he draws his conclusion.
Biao Teng?”Hu’s record was got by inducement. And there are a lot of logical problems.”
The Judge: “Where is the inducement?”
Biao Teng said:”For instance, this is found in the record on 1st October:
Q:Is it legal for them to print the Christian literature?
Hu:It should be illegal, otherwise Cai would not have been arrested and Yunfei Xiao and Gaowen Xiao would not have fled. (“should” and “otherwise” indicate a kind of presumption. How can it prove that Hu had known that Cai’s deed were illegal? How can it prove that the 80 thousand RMB were illegal gains?)
Q:You knew what they did was illegal. Why did you accept her money? (How is this conclusion made: “You knew what they did was illegal”. It is a language trap.
Hu is an honest, undereducated village woman. How could she tell the trick in such a condition??
A:I wanted to live on it.
Q:Did you participate their illegal printing of those books? (Again this question has set the illegal nature of Cai’s acts. Whatever the answer was, it would be used in the court to prove the guilty of the prosecuted. How cunning! This kind of inducement can be found everywhere in the confession record.””
The record of XX Zhan, manager of printing house, is also questionable. After the procurator read it, Biao Teng said: “On the third page of Zhan’s first record, there are such words: ‘He (Gaowen Xiao) said the books were gifts when I asked him about the use of the books. But I felt that he must have been sent to do this and he would surely make money of that.’ On the fourth page, Zhan said, ‘He did not say, but I felt he must have made money of it’. Here, “felt” and “must have” both indicate a kind of presumption and imagination which can not be used as evidence.”
The procurator also took out some evidence as production notice and storeroom renting contract. Xingshui Zhang and Xiaoguang Jin pointed that we did not doubt on the truthfulness of the evidence. But it only showed the prosecuted had ever taken that action, which could not prove that the act was illegal and profitable.
The respond of the procurator was: it was not the individual evidence that proved the crime, but the collective evidence did.
This respond was professional and sharp. However, all the confession records as major evidence had serious blemishes in procedure. So they can not be used to prove the crime. The so called “collective evidence” was not sound.
At last the procurator read the “arrestment record”:
“According to Jinyun Hu’s confession, in the cooperation of our police detachment€¦Gaowen Xiao was arrested.”
“According to Gaowen Xiao’s confession, in the cooperation of our police detachment€¦Yunfei Xiao was arrested.”
Biao Teng has been so annoyed by it: “Judge: the police and the procurator intentionally provoked hostility and built gulf between husband and wife and brother and sister in this way. It was against the ethic principle. “Refusal to give witness against one’s relatives” is not only an excellent Chinese tradition but an international principle respected by all civilized countries. Why were the brother and the wife responsible for a witness against his sister and her husband? I am strongly against this expression and the intention behind it.”
Feeling discomfort about the above expression of “provoke hostility”, Tao You said: “Lawyer Biao Teng, please pay attention to your wording.”
Then, Meihua Zhang, a witness for the prosecuted, gave her witness in the court.
Biao Teng asked: “What did Zhuohuo Cai do for work? Did he make a lot of money?”
She said: “He did business in life assurance and CMOS chip and made a large mount of money. His mother said it was a blessing from God.”
Question:”Did he give you books of Christian literature? Did he charge you any money for that?”
Answer: “I tried to give him some money? but he never accepted. I gave some of the books to other brothers and sisters without charging of money. Once upon a time, 1000 RMB was mailed to me from Shandong. We wanted to mail it back, but the party insisted us keeping it. Then we bought some video materials for them with this money.”
Xingshui Zhang asked: “What was Cai’s purpose to print Christian Literature?”
Answer: “In order to let people have a better understanding on the Bible and on God.”
Zhuohua Cai applied to question the witness, but he was refused by the judge and the witness went out the court. It was the end of court investigation. During this period of time, Biao Teng noticed a disgusting action of a tipstaff. When Zhuohua Cai and Yunfei Xiao stated the case, they took some gestures. But for tens of times the tipstaff poked them and threatened them in a low voice: “Put down you hands” or “Donot move”. This action shows the evil and dark characteristics of the rulers. The basic humane love and kindness could be found nowhere. They need not even struggle themselves to do something to show their love. It is ok for them to just remain undo, but they can not make it. They always try to show themselves by mistreating the under pressed in order to gain the favoritism for the upper officers.
Biao Teng seriously pointed out this to the judge: “When Zhuohua Cai and Yunfei Xiao stated the case, they took some gestures, which was stopped for many times by tipstaffs 110610 and 110720. I think it is wrong and inhumane. Gesture is part of their statement. The act of the tipstaffs badly interrupted the statement and thought of the prosecuted. I will show my great objection on it and please stop this inappropriate act.”
Tao You’s respond was not beyond our imagination: “Tipstaff has right to keep the court safe. If the prosecuted has the similar gestures again, please continuously stop them.”
How can a Christian suspected of a nonviolence crime bring unsafty to the court with seven more tipstaff on watch? Human nature is dying out from such a system. We can not help our sadness whenever we think of this. Now I take this answer of that judge down to be a witness of the inhumanness of Chinese judicatory.
Xingshui Zhang began his defence first: his main points were that the act of the prosecuted did not belong to business management but to Chinese folk religious ministry, thus it had not disrupted the social and market order at all; “illegal business management” is a typical “blank crime”; as a faithful Christian his act is to let people know about God; Christianity calls upon love and mercy, the spread of which is helpful and favorable to the society; pastor Cai himself had financial capability to support what he did; the evidence by the procurator is not enough to prove his guilty according to the criteria set by the Criminal Procedure Law; and secular law should not break the principle of religious freedom. He said, “Freedom of religion and belief is a necessity of people’s spiritual life, is a great resource of ethos, and is an important representative of the comprehensive national power.” When he was talking about freedom of belief, Tao You was so impatient that he interrupted him for more than ten times. Almost every sentence was stopped by the reason of “not relative to this case”.
Lawyer Jin defended for Gaowen Xiao. His main points were: Gaowen Xiao and Zhuohuan Cai had not same intention for a joint crime; Xiao was only an employee who can not be the subject of crime “illegal business management”; there is no credible evidence provided by the procurator.
Since Xingshu Zhang and Xiaoguang Jin were continuously stopped by the judge, in the beginning of Zhisheng Gao’s defence, he expressed his objection first: “Xingshui Zhang called on tolerance in his defence, well I think tolerance should be practiced in the court first. I want to remind the judge and the jury that today you are responsible not only morally but legally. You can not play your power at random.”
The Judge: “It is not the time for you to comment on the judge and the jury.”
Gao answer him back strongly:”? am pleading the judge to make sure of the consistency of our defence. I hope you would not interfere in my defence any more.”
As expected, his defence was not interrupted any more.
The core of his defence was that the prosecuted was not a business manager. The prosecuted did not want the Christian literature to go to the market, and it did not; the Christian literature concerned in this case was neither sold nor bought; the prosecuted’s act did not harm the society, so the elements of the crime were absent, and etc.. As to the evidence, Gao said: “In the investigation record of Gaowen Xiao on 30th Sep. 2004, in one single page, the expression of “how to do the illegal business management” was mentioned for 3 times. It is a most special phenomenon in this case. All the prosecuted confessed exactly in their investigation record that what they did was “illegal business management”. Even Jinyun Hu, who had nothing to deal with the printing of this Christian literature at all before she was arrested, in her first confession record, she unusually said that their act was a kind of illegal business management. We can not help being surprised by the power of the ministry of investigation. We urged the judge to know that these innocent persons have been kept for more than 10 months. There is no legal technical difficulty to give this case a fair judgment. This unfair torture should be ended as soon as possible. To protect their basic human rights is where the value of court and judge lies.”
Biao Teng’s main points were: “According to the Criminal Law article 321 the premise of the crime of harbouring stolen contraband should be the existence of the illegally acquired goods. If the other three prosecuted were innocent, Hu’s act was surely not a criminal act. While the other three prosecuted’s act was not the so called illegal business management, because it had no harm to the society but beneficial to it. If Cai wanted to make profits, why had he not kept on with his insurance, stock and computer business? He is a gifted business person and has already gained thousands of money before. Why did he print the Christian literatures? In order to spread the Good News, he gave up opportunities of making large mount of money. Here, as a non-Christian, I would like to show my respect to Zhuhua Cai and Yunfei Xiao.”
Biao Teng said, as for the crime of harbouring stolen contraband, it means the act of “knowingly concealing contraband”. But it was impossible for Jinyun Hu to “knowingly” conceal “contraband”. There is no evidence except the confession record (which is a result of inducement) to prove the source of the 80 thousand RMB. It is beyond her ability to be knowing of the source of the money. Even the ministry of police and procuratorate with great effort were not able to prove that the money is contraband. How can an uneducated countryside woman know it was contraband? Did she have obligation or reason to ask her sister-in-law about the source of the money? If I had a friend who got use to rob, and if one day he gave me something to hide, I would surely be knowledgeable about the contraband. I could not defend myself as innocent from knowing. But it is impossible for a common person to tell whether the act of printing Christian literature legal or not. Even for a professional person in law, he could hardly link the printing of ISBN books with a crime.
At last Biao Teng said: “The Judge and the jury, today, four innocent people’s freedom is in your hands. You could choose to rebuild 2 happy families or to destroy their happiness. You could choose to heal millions of Christians’ hurts or to arouse their angers and fears. You could choose to protect the freedom or to tolerate the evil. Now the 4-year-old boy Yaobo Cai and the 7-year-old boy Zhichao Xiao (showing their pictures) are crying for their parents. The old generations are eager for their children’s return. Hundreds of Christians all over the world are fasting for them. Chinese Christians, Chinese religion believers, all Christians, all believers, all the observers, the journalists and writers, and all the people who love freedom are looking at you and waiting for your judgment. You name on the judgment will be remembered. To be a worrier of protection of freedom or to be a helper of religious persecution it is the choice you have to seriously face.”
The two female prosecuted began to weep, and so did some audiences. Tao You ordered:”Please pay attention to your emotion! The prosecuted.”
The procurator briefly refuted the defense lawyers’ opinions. The main points were: the appraisal of “illegal religious publications” by Beijing Religious Affair Bureau and Beijing Press Bureau; according to the confession record, Zhuohua Cai’s income was mainly from printing Christian literature; according the legal presumption, Jinyun Hu should had known the 80 thousand RMB was contraband, and etc. Zhisheng Gao questioned: “What is Beijing Religious Bureau here for? In the court, there are only witnesses and technique appraisers. As a witness one should know the fact of the case, so Beijing Religious Bureau is not. As a technique appraiser one should fulfill the requirements set by relative laws, for example the signature of the specific appraiser, so it is also not.”
Other opinions of both parties are stated in part two, so they will not be repeated here. A important impression on this part is that the procurator did not answer many of the questions raised by the lawyers.
So much for the court debate.
After the final statement of the prosecuted, the Judge announced that the judgment will be made later.
The four prosecuted were put on the handcuffs and escorted out of the court. It was 13:30 then.
I hope they could get their freedom back as soon as possible. May God bless them with love and tolerance at the time when they lose their freedom.
I do not know how many trials would be like today’s trial. But those who are fearless begin to keep their dignity when facing exinanition and threat. They begin to be proud when facing power and buffoon. They begin to fight back to the cruel system and sinful human nature.
Appendix Three: Written Opinion for the sue by Beijing Bureau of Public Security
Series Number 3684-3687 , Haidian PS
The prosecuted Zhuohua Cai, male, born on 10th April 1971 in Beijing, Han nationality, Junior College degree, manager of Beijing Wheat Culture and Art Company, ID number: 130402197104102411?living address Rome 402, Gate 12, Building 5, Pingyuanli Complex, Xunwu District, Beijing. Cai was criminal detained by the undersign bureau on 13th Sep. 2004, and arrested according to the law on 20th Oct. 2004.
The prosecuted Wengao Xiao , male, born on 20th Sep. 1969 in Hunan province, Han nationality, High school education, individual businessman, ID number: 43040319680920201X?living address Rome 2-103, No. 16 Suyanjing, Yanfeng district, Hengyang city, Hunan province. He was criminal detained by the undersign bureau on 27th Sep. 2004, and arrested according to the law on 20th Oct.
The prosecuted Yunfei Xiao, female, born on 6th Jan. 1972 in Hunan province, Han nationality, Middle school education, artificial person of Beijing Wheat Culture and Art Company, ID number: 430403197201062025?living address Rome 2-103, No. 16 Suyanjing, Yanfeng district, Hengyang city, Hunan province. She was criminal detained by the undersign bureau on 27th Sep. 2004, and arrested according to the law on 20th Oct.
The prosecuted Jinyun Hu, female, born on 23th Sep. 1962 in Hubei province, Han nationality, Middle school education, no career, living address Siyin District, Xiaocao Village, Caohe town?Chun County. She was criminal detained by the undersign bureau on 27th Sep. 2004, and arrested according to the law on 20th Oct.
The prosecuted Zhuohua Cai, Gaowen Xiao, Yunfei Xiao are suspected of crime “illegal business management” and the prosecuted Junyun Hu is suspected of crime “harboring of contraband”. The undersign bureau arrested Cai on 11th Sep. 2004 and Jinyun Hu, Yunfei Xiao, Gaowen Xiao on 27th Sep. 2004. The undersign bureau began the investigation of this case on 12th Sep. 2004, and by now the investigation is over.
According to the law, we prove that the above prosecuted have the following criminal acts:
The prosecuted Zhuohua Cai, Yunfei Xiao and Gaowen Xiao, have been illegally printing Christian literature for a long time in the aim of making illegal profit since 2003. They edited the Christian literature in Room 601, Gate 1, building 24, Lanyuan complex, Haidian District and printed in Jinshun Printing house in Shunyi and Qicaihong Printing house in Shijingshan. On 11th Sep. 2004, more than 200 thousand copies of 50 kinds illegal printed Christian literature were confiscated in south 3A storehouse, Jishuntong Company, No. 24 Jiuzhong Road, Daxing Jiugong town in Beijing. The appraisal shows that the Christian literature belongs to illegal publications.
In addition, the prosecuted Jinyun Hu, having the aim of making illegal profit, on 11th Sep, in Dayun Village Haidian District, knowingly kept 80 thousand RMB, which is the contraband of the above prosecuted’s illegal profit through printing Christian literature, and put it into her personal account, then she was arrested.
The evidence to prove the crime is: confession record, witness’s testimony, appraisal, illegal publications, and illegal profit. The four prosecuted confess the evidence is fact.
The fact of the crime is clear, and the evidence is enough.
To sum it up, the act of the prosecuted Zhuohua Cai, Yunfei Xiao and Gaowen Xiao has violated Article 225 of The Criminal Law of PRC. They are suspected of illegal business management. The act of the prosecuted Jinyun Hu has violated Article 312 of The Criminal Law of PRC. She is suspected of harboring the contraband. According to article 129 the Criminal Procedure Law of PRC, this case is sent to a trial.
The People’s Procuratorate of Haidian District
Director General 2004-12-20
PS:1.The four prosecuted above are in the detention of Haidian District.
2.The prejudication files include 11 volumes.
3.In the appendix there are 4 arrestment approvals.
Appendix Four: Explanation Regarding Certain Questions About the Specific Laws to be used in Adjudicating Criminal Cases of Illegal Publications
Article 11: Anyone who violates national regulations and publishes, prints, copies or distributes illegal publications other than those listed in Article 1 through 10 of this Regulation and severely jeopardizes social order or disrupts market order shall, where the situation is serious, be sanctioned in accordance with the stipulations of Article 225 of the Criminal Law for the crime of illegally conducting business.
Article 15. Illegally engaging in the business of publication publishing, printing, copying, or distribution, which severely disrupts market order, where the circumstances are particularly severe, and constitutes a crime, may be punished as illegal operation of a business in accordance with Article 225, clause 3 of the Criminal Law.
Appendix Five: Brief Introduction to Love Banquet (2) 2004
Zhuohua Cai is the editor in chief of this religious magazine. The police got one copy and labeled it as “illegal publication”.
The back ground of the cover is pea green and white with a dandelion on it. On its left corner above, there are two big green letters “Love Banquet“. On its right corner blow, there is a sentence with small letter in white “To Pastor Tian’en Zhao”.
Turn to the contents, and we see the first article is about a gospel trip to the minority people and then some testimonies. After that is a collection composed of several articles in memorizing of Dr. Tian’en Zhao, the famous pastor who passed away on 12th Jan. 2004.
The next part is called “History Review”. There is an article named “Declaration of leaving school”. It talks about a story of three students who were expelled from Jinling Seminary in 1999. Because they refused to sing revolutionary songs in the party of “May Fourth”, Guangxun Ding criticized on their acts and asked them to “automatically” leave the seminary. Then they made a joint declaration of leaving school to show their willingness of being faithful to God. They strongly criticized the secular and political standard of the seminary. Then the seminary put up a notice to make their act known as “a serious political incident” and expelled them from the seminary.
The last part is about “prayers for others”. They pray for the police, for society, for municipal government, and for farmers. A house church in Sichuan Province was fined for several thousand RMB without receipt, but they pray for the police: “Please bless the police. May their lives be assured by the administrative welfare so that they would not make a living on fines any longer. May the Lord’s justice help China to improve her legal system.”
Generally speaking Chinese people are quite weak in the sense of tax paying. There is an absence of social credit. They pray that “the Lord may open Chinese leaders’ eyes and help them to know that the higher moral standard the lower governmental cost.”
Municipal government is burdened for a lot of debts. A large amount of money is obtained by a small sum of people. The gap between the rich and the poor is becoming larger and larger. They pray for the government officials: “May the Lord give them a heart of righteousness and of servants.” They also pray for 90 million Chinese farmers. May the Lord give them equality and dignity.
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