The Case of Li Zhi
The following is a translation of the defense document from the lawyers representing Li Zhi, who had been sentenced to eight years in jail for the crime of "subversion." This document was used as the basis for the appeal hearing. The original Chinese-language document is here.
I am offering this original document for anyone who is genuinely interested in this case beyond the spoon-fed summaries from western media, as illustrated by these headline stories:
By comparison, the initial thoughts of the EastSouthWestNorth bloggers were at Comment 200601#02 and this was what motivated him to translate the primary source document from which everything else flowed.
But you can make up your own mind by reading the original document. Put aside all received notions and read this. It is actually an amazing read about a myriad of things unique to China in this era. Then at the end, knowing what you have just read, you can come back and look at these headlines and see if they are justified.
Was this a proper description of the case of Li Zhi?
Was this a proper characterization of the role that Yahoo! played in this case?
How many of these reporters actually paid attention to this primary document, of which multiple copies are available even inside China (e.g. at the website of the office of the defendant's lawyers)? Or perhaps they did read it and covered themselves by hedging in the language (e.g. the use of quotation marks, 'may have,' 'said to,' 'reportedly,' 'accused of' and so on). It is clear that nobody really cares about Li Zhi, who was na´ve and gullible enough to be set up for an unnecessary crime, because the reporters won't tell you about the important aspects of the actual case according to his lawyers.
Related Link: Yahoo! in China and Degrees of Evil Rebecca MacKinnon, RConversation
To The Combined Court for the Li Case:
We have been appointed by the appellant's family to become the defense lawyers for Li Zhi during the appeal process. We have studied the case materials and the court proceedings of the first instance trial, and so we have a broad foundation of understanding about this case. We have met the appellant in person and we have heard his opinions about the case.
Li Zhi believed that the evidence in the case was highly inaccurate and that the Combined Court at the first instance trial did not seriously listen to the explanations in his testimony. His two defense lawyers were allowed to meet him for the first time only briefly in the court corridor a few minutes before the hearing started. The lawyers said that they respected the prosecutor's evidence and therefore they would offer a "reduced criminality" defense. Li objected immediately, but he was unable to explain in depth due to the lack of time. Therefore, the defense put up by the lawyers were procedural and did not protect the legal rights of the appellant, thus rendering the defense virtually non-existent. The circumstances described by Li Zhi was consistent with the information on file, and it was completely identical to what we encountered when we followed the law to ask to meet the appellant but the prison authorities insisted that the court must approve first.
We were hoping the appeal court hearing would be in an open court. Unfortunately, this did not happen. Thus, we can only follow the objective facts of the case together with the laws and their interpretations to provide a written document to the Combined Court of Appeal: the facts that are accepted in the verdict document of the first instance trial are seriously inaccurate and the application of the law was inappropriate. We believe that this should be corrected according to the law.
The verdict of the first instance trial based the "criminal activities" of Li Zhi on three points, namely: "On three occasions, Li applied to join the overseas hostile organization 'China Democratic Party' and was appointed to a position"; "Li established a personal page at the Muzi website to publicize hostile ideas"; and "instigated and guided others to join the 'China Democratic Party' ... in an attempt to subvert the socialist system of the country." In the following, we offer different facts and interpretations about these received inferences, and we offer the related arguments to defend Li Zhi in front of the Combined Court.
1. Concerning "On three occasions, Li applied to join the overseas hostile organization 'China Democratic Party' and was appointed to a position," there are five points of argument:
(1) In Gongguobao Number 589 Notice of June 2002 from the Ministry of Public Security, the "China Democratic Party" was identified as a "hostile organization" and the fact was to be announced at the "trial of China Democratic Party member Wang Xiaoqin who was investigated and suspected of inciting subversion of the national government authority" instead of as a direct statement. When was the Wang trial held? Was the trial fair? Our country is vast and the degree of transparency on many verdict documents are often restricted in many aspects. When the Ministry of Public Security used an individual case to "announce" a policy decision, it is difficult for the common citizens to understand it. An explanation is required, because this was not just a procedural matter. Li Zhi said repeatedly that if only he knew that the "China Democratic Party" was a "hostile organization," he would not have joined it. This is a reasonable explanation that is consistent with reality, and therefore should be considered.
(2) Li Zhi applied to join the organization on the basis that he identified with the party constitution. Upon scrutiny of this 'constitution,' there are no regulations related to any hostility and subversion.
(3) On two occasions, he was unable to succeed when he applied due to channel inaccessibility. At the end of May 2003, the electronic mail address of the organization was forwarded via the Internet to him by an anonymous person. When Li Zhi applied to that address, he was accepted immediately, so it meant that he was lured. This is a critical point, and the related problems will be presented in detail in the following discussion.
(4) The important thing is that since joining the organization in June 2003, Li Zhi did not discharge any "responsibility." There were no "organized activities and there were none of the activities that "endanger national security" as provided in the "National Security Law Implementation Details." In the verdict document of the first instance trial, it was determined that Li's "activities fit the crime of subverting national government authority" and therefore item 1 of article 105 of the Criminal Law was invoked to determine the punishment. But in this whole verdict document, there was only one empty statement that Li Zhi "plotted for 'China Democratic Party' members to infiltrate our government by entering the elections for People's Congress representatives in the vain attempt to seize national political power." No examples were offered and no description of the time and place of the "plotting activities" was given. This showed that the first combined court did not prove that Li Zhi had "organized, planned and implemented the subversion of government political authority and the overthrow of the socialist system." All of the 17 pieces of "proof" were similar in this sense. From this, we can undeniably argue that the crime determined in the first instance trial was just a "big hat" (note: tag, brand, categorization). As everybody knows, having just a "big hat" without actual deeds that endanger national security does not constitute a major crime of "subversion."
(5) The objective facts and the current policies all indicate that members of "hostile organizations" are not necessarily all "hostile elements" who are involved in crime. Over the past decade or so, there are many examples. One appropriate example are the "students" of "Falun Gong." In this case, the significant person known as Mr. Ying had joined the China Democratic Party before Li Zhi, and continued to maintain a close relationship with the organization. He "admitted" himself that he had "issued" warnings to the organization leaders about evading detection as well as participated in other important activities. Even then, when the Ministry of National Security people spoke to him, the location was not in the office of the Ministry but in a hotel that receives guests. While Li Zhi was arrested, Ying was not prosecuted and convicted. The case file indicated that Ying continues to work at a certain "restaurant." In the verdict document of the first instance trial, it was mentioned that "this was handled in a separate case." That is the usual polite talk about how such problems are dealt with; in truth, nobody ever asks any questions; even if someone wants to learn the truth, they have no right to ask and therefore cannot know. Anyway, the example of Ying is further illustration that our opinion is more accurate. From this, we conclude: even if Li Zhi had joined the hostile organization China Democratic Party, he did not do anything to endanger national security and so he should not and could be convicted of any crime. Why was it an exception for Li Zhi only? Why can't all people be equal before the law? Since the first instance trial is seriously in error, the appeal court should rectify this in accordance with the law.
2. Concerning "inciting and leading other people to join the overseas hostile organization as well as providing guidance", there are four arguments:
(1) First, it must be pointed out that the "other people" was actually the person named Ying only. Furthermore, it must be pointed: Prior to Ying meeting with Li Zhi on the Internet, he had established "Mushi Society" on his own and then he began "Freedom News Weekly" with almost 30 issues on the Internet. None of these were connected to Li Zhi, and there did not seem to be anyone "inciting and leading" him.
(2) The relationship between Ying and Li was initiated by Ying and not by Li Zhi. According to Ying's testimony, the two exchanged emails twice. When he joined the China Democratic Party and made contact for the second time, Ying followed the directive from his "superior contact person" and cut off all contact with Li Zhi. The characterization of "numerous times" in the first court verdict document is inaccurate.
(3) Ying claimed that he "joined the China Democratic Party of his own free will after considering for a long time." He did so fully one year and three months before Li Zhi joined. During those fifteen months, Ying may have carried out the organization's activities and worked earnestly, but all that is not connected to Li Zhi.
(4) In order to find Li Zhi guilty of crime, the verdict in the first instance trial used the verb "incite" to imply that Li Zhi has the responsibility of "inciting other people" to commit crime. However, the document was unable or unwilling to cite the regulations about 'incitement' in the Criminal Law. So we can only offer a question about the interpretation of the verb "incite": Did Li Zhi "order" or "permit" Ying to do something? To go further, did Li "direct" or "incite" Ying to do anything? The first instance trial verdict document could not offer any factual elaboration. When they exchanged material and information on the Internet, this is "communication" and "exchange." Even if the authorities believe that the communication and exchange are extremely "reactionary" and "abominable," that would just be their opinion of the quality of the content; they would not transform "exchange" into "incitement," because otherwise millions of netizens can all become "inciters"?
As for the theory of "guidance," based upon the various actions of Ying, this is sheer absurdity. In all of the many testimonies by Ying, there was not a single sentence about Li Zhi actually "guided" him and there was not a single mention about how he was "incited" by Li Zhi. Therefore, the conclusion in the first instance trial verdict document that "(Li) actively guided Ying to engage in hostile activities and to expand the scope and space of his hostile activities" was baseless and empty words to force criminal charges on Li. The court of appeal should not believe in this.
(3) Concerning "setting up a personal page at the Muzi website and wantonly promote hostile ideas ... engage in subversive action," this is the key point of this case and so it is necessary to provide detailed arguments using the evidence in the case file:
(1) Concerning "setting up a personal page at the Muzi website," the testimony of the principal witness Ying in this case was unverified. There is the testimony of another person Hou Wei: In June 2002, he helped Li Zhi set up a simple home page to be used for the company's advertising business. In June 2003, Li Zhi wanted to apply for an Internet website, asked Hou Wei for assistance but it never materialized. This proves that Li Zhi did not have the ability to set up a "personal page" and it also showed that his explanation was factual and trustworthy.
(2) Li Zhi said in court that his electronic mail box could have been accessed by other people. He asked for this to be checked, but the combined court rejected the request. Li's "doubts" were based upon the following circumstances:
There was a person with the Internet nickname Bashanyeyu (there is a great deal of material about this person in the case files) who told Li Zhi that his name is Mou Yu (not known if this is real name, alternate name or pseudonym). Over a period of time, this person continually contacted, communicated and exchanged information with Li Zhi. In March-April 2003, he came from northwestern Sichuan to meet with Li Zhi multiple times in Dazhou. Li was not on guard, he opened his email box and he let this person used his home computer. During the investigation phase of the first instance trial, the prosecutor read out the "recorded proof" and the content was about what Bashanyeyu (=Mou Yu) and Li talked about during the meeting. Then Li realized that the conversation had been surreptitiously recorded. Based upon this, Li Zhi believed that Mou Yu had been "investigating" him.
Within the investigation files, there is a report from the Dazhou Ministry of National Security titled "Investigation Results: The Contents of the Conversation of the April 16, 2003 meeting between Li Zhi and the related person." This "hostile element" was not named. Since the so-called "secret conspiracy" in the material was the product of the chat between Mou Yu and Li Zhi, it must be considered that the other party in the conversation was a "hostile element" and there was a "secret conspiracy" between the two to subvert the national government authority. But the other party was not charged in this case as a "co-criminal." From this, it is reasonable to infer that the so-called "hostile element" is Mou Yu.
Even more noteworthy is this: Bashanyeyu (=Mou Yu) had not only used Li Zhi's electronic mail box, but he has also used Ying's electronic mail box. According to the information provided by Sina.com to the investigating unit, Ying and Bashanyeyu have the same mailbox: email@example.com. When Mou Yu sent email to Li Zhi, he used that account. An example is the principal evidence used by the prosecution, which is an email from Mou Yu. This particular material is worthy of attention. Without bothering about the signs of fabrication within, the contents indicated that apart from "I will do everything that I can to help you in a timely manner" to "join the China Democratic Party," it repeatedly asked: "The development staff at Muzi net belongs to which organizations?" and "Do you have any connections with the China Democratic Party organization in Dazhou?" The intent to expand the scope of the investigation is obvious. Considering the fact that the email was sent out on May 23, 2003 and Ying had broken off contact with Li Zhi, the sender could undoubtedly only be Bashanyeyu (=Mou Yu). Based upon the timing of this piece of mail, the person who provided Li Zhi with the email address of the China Democratic Party can only be Mou Yu and no one else.
We have no intention of trying to figure out the identity of Mou Yu. But there are two things that are worthy of attention: First, in the two items cited above, one of them is characterized as the conversation with the "hostile element." Somehow, we only read Li Zhi's side of the conversation and there was not a single response from the other party. On April 16, the material about the "meeting" between the two said that "concerning how to engage in hostile activities in the future, Li Zhi said ..." and so on. In this instance, the "how to engage" could have been brought up by the "hostile element." If so, people are bound to ask: Is this a case of "entrapment" to lay down the foundation to "build" and "solve" a case? The aforementioned anonymous mail to Li Zhi containing the address for the China Democratic Party also falls into this category. But, why did they do this? Knowing what went on and learning the truth is undoubtedly important for deciding this case properly. Second, Li Zhi said that someone used his email account without permission. That is reasonable and well-founded, and we recommend a thorough investigation in order to protect this legal right not to be framed up by others.
(3) Based upon the above circumstances, Li Zhi suggested that he has never posted any "reactionary essays" on the Internet and therefore someone else had set up for the crime. This is a reasonable explanation. This is a pointed question whose consequence is criminal guilt, so it must not be lightly disregarded.
(4) Backing up a step, even if Li Zhi has expressed his political opinion on the Internet, or approved certain types of speech that the authorities cannot agree with, but as long as it does not violate any of the regulations in the "Resolutions Concerning Protecting Internet Security" from the National People's Congress Standing Committee and it does not implement any of the prohibited activities in the "Resolutions, this does not constitute a crime.
An important point of thought of Deng Xiaoping was that there are no restricted zones in reform. Citizens have the constitutionally granted right to express their opinions about the social reform issue, and it is a reflection of the political democratization of the country. Even if the comments are excessive, or not appropriate to the times, one should be guiding and educating an immature but ardent youth instead of suppressing and punishing him severely.
If the process of the first instance trial is unchallenged and allowed to propagate, it will slow down the democratization of the country and affect the grand project of reforming and opening Greater China. Law enforcement must carefully balance the advantages and disadvantages.
To the judges: according to the position of the first instance trial, Li Zhi had certain "hostile ideas" but every single one of them was about unrestricted Internet access or "big hats." We hold a different opinion for we disagree and our analysis is as follows:
First: Concerning "opposing the dictatorship by one party." Actually, this is a correct position promoted repeatedly by the Chinese Communist Party during the 1940's. In recent years, the scholars have also discussed the subject. Li Zhi touched upon the subject during private conversations, so how can this be an expression of "reactionary thoughts," or holding hostile political views and even getting on the Internet to attempt to subvert the people's democratic political authority, and therefore he was to be severely punished?
Second: Concerning "imitating Yao Lifa ... to try to become a People's Congress representative." Concerning Yao Lifa's independent quest to become a People's Congress representative, there are different viewpoints from the very start. Everyone has their reasons, and it is impossible to demand the same opinion from everyone. But "trying to become a People's Congress representative" is the political right of a citizen; whether one can do so depends on the election and this is the realization of democracy. No matter the reason why Yao Lifa wanted to do so and no matter why anyone wants to become a People's Congress representative, the process of learning and striving takes place within legal scope and occurs under legal rules. No matter which side you are on, this should not be regarded as "reactionary" and then suppressed.
Third: Concerning "struggling for democracy and freedom in China." This is the flag raised high by thousands and millions of martyrs who shed their blood, and this is the ideal target that innumerable people of ideal and integrity hoped to reach. How can this be ceded to "hostile elements"? Besides, there is no proof that Li Zhi is using this slogan based upon the need to topple the government authority!
Four: Concerning "overthrowing the socialist system." This was the judgment against Li Zhi in the first instance trial. But amongst all the facts that were "investigated and heard" in the judgment, nothing can be used to used as the basis to support this. We have examined all 17 pieces of evidence and found that none of them involved "overthrowing the socialist system." These vacuous claims were used to attribute crime, so this should be obvious during the appeal.
As for the "reactionary essays" on Li Zhi's personal computer that the first instance trial referred to, this was purely a certain expression of the tendency of personal thoughts (we have no reason to believe that this was about archiving materials). To proclaim this as "subversion" and call it a crime would to be retreat down the old path of "thought crimes" and "speech crimes." This is a reactionary move against contemporary political civilization. We believe that the appeal court will not accept it and will reject it. As for Li Zhi "posting reactionary essays" on the Internet, the evidence is suspicious as mentioned previously. So we ask you to investigate clearly before coming to a conclusion.
Anyway, the conclusion at the first instance trial was based upon suspicious and unreliable evidence and should be overturned. Whether by remedy or amendment, the appeal court should correct the errors in the first instance trial and render a just verdict.
Concerning the evidence in the file, apart from the problems pointed above, there are several doubts and explanations in the following:
(1) In court, Li Zhi repeatedly said that his computer contained enough materials and essays to prove that he had no intention of "subverting" the political authorities. The most distinguished thing was that he has always opposed promoting democratic reform through violence. Unfortunately, these favorable evidence were all withheld by the prosecution and not offered in court. For the sake of justice, we ask for a remedy which will present the picture of the entire case and avoid biases.
(2) On August 1, 2003, Yahoo! Hong Kong Holdings Company made a "Declaration concerning user information" in which they "provided information concerning user lizhi340100" and explained that "for details see the attachment. The attachment includes the registration information for the email account as well as email items." It can be seen that the contents of the "attachment" can be used as evidence. But the "attachment" was never sent to the court. According to the explanation from Yahoo, the content of the attachment not only contained the details about the exchange of the emails," but also serve the purpose of "clearing the doubts." Therefore, we ask you to investigate carefully. Of course we hope that the lawyers will be permitted to read them in order to understand the full situation to defend the client. This matter is about the client's rights and we hope that you will remedy this.
(3) Among the evidence provided by the Dazhou Ministry of National Security, there was mention of the testimonies of a "connected person" and a "hostile elements." However, the testimonies of the two (or they can the same person) are not available. By law, the two persons (or just one) should provide the testimonies to the court, so that Li Zhi can question and explain it. Otherwise, these two pieces of evidentiary material cannot be effective as evidence.
(4) In the verdict of the first instance trial, there was no support for the public prosecutor's accusation that Li Zhi "actively participated in the June 4 disturbance, thereby developing hostile emotions towards the Chinese Communist Party and socialism." But in evidence #8, the verdict refers to the printed copies of material the computer hard disk: "This proves that Li participated in the 'democracy movement' in 1989 and became dissatisfied with our party and government, and therefore engaged in hostile activities." The intent is to say that Li Zhi's "hostility" had some theoretical foundations and roots. Yet, this piece of evidence was seriously inaccurate. The basis for the prosecution was based upon the private conversation between Li Zhi and Mou Yu. Such conversations are like chats and the content (especially the details) are likely to be exaggerated, magnified or downsized. Therefore, it is necessary to have some proof about the reliability. In Dazhou around June 4, Li Zhi was in a middle school whose administration was very strict and did not allow its students to go "on the streets." Li Zhi was no exception. When he told people about his participation in the demonstrations, it was extremely exaggerated and untrustworthy. Li Zhi's denial in court now is more realistic. Besides, we noticed that the first instance trial verdict document corrected the incorrect invocation of the "June 4 movement" and referred to it as the "democratic movement marches." Therefore, even if he participated in the "June 4" march, it should not be considered the foundation and roots of his thoughts that led to "subverting the political authority."
In conclusion, the evidence about the theoretical roots of Li Zhi's "implementation of subversion" is groundless. It is an undeniable fact that Li Zhi did not engage in "subversive" activities. The evidence had been opposite to the actual situation, and therefore has no effectiveness.
To the Chief Judge: To summarize the whole case: the problem of Li Zhi was that he joined an overseas organization that he did not know was of a "hostile" nature. Four months later, he was arrested. During that period, there were no activities. He had used the Internet to exchange ideas with others, express political opinions and he may have made excessive speeches while chatting with others. He wanted to work for the democratization of the country, but he never found any effective path, he never established a firm theoretical foundation and his ideas and viewpoints are often unpopular. But no matter how much inadequacy or deviation he has, the fact is that he has no motivation to subvert the government and he has not made any concrete subversive actions. About this, we are confident that the court of appeal will have an accurate grasp. Our defense above involves the definition of the nature of the case, and the implications are huge. We hope that court will accept our correct opinions and we look forward to receiving justice from the court of appeal.
Beijing City Wu Luan Zhao Yan law firm
Defense Lawyers in the Li Case: Zhang Sizhi and Yan Ruyu
February 4, 2004