Foreign Affairs

Former prisoner takes on China’s ‘so-called’ justice system

China expert Peter Humphrey tells Newsroom about his first-hand experience with China’s justice system, and his plans to testify against Chinese extradition. Laura Walters reports. 

UK-based China expert Peter Humphrey is making himself available to any court in the world where defence lawyers are trying to save someone from being sent back to China, and that includes New Zealand.

Humphrey, who was an investigator in China for 15 years before being arrested and spending two years in prison, has offered his testimony in the case of Korean-born, New Zealand resident Kyung Yup Kim, should the Crown decide to appeal a recent decision that calls into question China's human rights record.

Humphrey said China failed all three tests for extradition cases: the plausibility of charges, prospects for a fair trial, and prospects for humane treatment. And he was willing to share his experience in order to help defence teams keep their clients from being sent to face China's "so-called justice system".

Last month, New Zealand’s Court of Appeal ordered the Government to reassess its decision to extradite Kim to China to face murder charges, due to human rights risks.

Meanwhile, Beijing called for Kim to be handed over as soon as possible, “so that justice can be upheld for the victim”.

New Zealand first agreed to extradite Kim in 2015 after the body of a 20-year-old woman, who had been strangled, was found in a field in Shanghai in 2009. Kim has denied the murder accusation.

Crown Law is currently assessing its options and an appeal would have to be lodged by Tuesday.

"There is another moral ground on which it’s easy, and that is that whether a person is innocent or guilty – and they might be innocent. If you send them back to China, they will be 100 percent convicted of a crime… we will be sending a man or woman to their doom with 100 percent certainty."

Justice Minister Andrew Little said the case presented a difficult balancing act in terms of New Zealand’s obligations to the rest of the world, when someone needed to be held to account.

In this case, there were considerations beyond the “dry legal issues”, and China’s record on human rights and its system was an important factor to weigh in.

“But the other factor the Court of Appeal didn’t seem to talk about in great deal at all is the risk that New Zealand becomes a place where people, as in this case, who are accused of murder, can take refuge here and never be held to account for that,” Little said.

“And we need to be careful that we don’t set ourselves up to be that country... And that’s why I think it would be helpful to have all those issues weighed into balance to get some guidance for the future.”

China's human rights record

Humphrey told Newsroom that potentially allowing serious criminals to walk free was a hard moral call to make.

“There is another moral ground on which it’s easy, and that is that whether a person is innocent or guilty – and they might be innocent. If you send them back to China, they will be 100 percent convicted of a crime… we will be sending a man or woman to their doom with 100 percent certainty. And that’s not right.

“Even if we can’t try the crime they’re accused of in our own jurisdiction, we should not be sending them back to that jurisdiction where they will never, ever face a fair trial.”

While China had signed the UN Convention Against Torture and the Standard Minimum Rules for the Treatment of Prisoners – known as the Nelson Mandela Rules – in the Kim decision New Zealand’s Appeal Court Judge Helen Winkelmann said there were reliable reports that torture remained widespread. Humphrey said China failed on half of the standards contained in the two global documents.

Justice Minister Andrew Little says New Zealand has to make sure it does not become a haven for criminals looking to avoid justice. Photo: Lynn Grieveson

“New Zealand has obligations under international law to refuse to return a person to a jurisdiction in which they will be at substantial risk of torture, or where they will not receive a fair trial,” Winkelmann said in her written judgment.

In response to the decision, Foreign Ministry Spokesperson Geng Shuang said China attached high importance to protecting and promoting human rights.

“The Chinese judicial system effectively safeguards the legal rights of criminal suspects. Our achievements in human rights protection in the judicial field are there for all to see,” he said.

Inside a Chinese prison

Last month, Humphrey gave expert testimony in a Chinese extradition case in Sweden, where he outlined his experience in how PRC police put together a case relying on confessions and witnesses rather than forensic evidence, the way a trial was conducted without access to independent defence lawyers and witness cross-examinations, and how prisoners were treated while in custody.

About 24 hours after he gave testimony, defendant Qiao Jianjun was released from custody. The Swedish court’s decision is pending.

Humphrey said he would happily give similar testimony should Kim’s case be taken further in New Zealand.

His experience in prison started with being thrown into a small cell, with about 12 other people, in the middle of the night.

The cell did not have any furniture or beds, and the prisoners sat or squatted on the wooden floor throughout the day. There was a hole in the corner, which acted as a toilet, and there was no access to hot water.

Food lacked nutrition and was served in ‘doggy bowls’ slipped under the door.

"There’s no prospect of a fair trial because every element of the judicial machine, in China, is part of the Communist Party. There is no rule of law, because the law does not stand above everybody. The Communist Party and its members stand above the rule of law...

"There’s absolutely no possibility for separation of powers. There is no such thing in China as an independent court, with impartial judges. It is not possible when you have a one-party dictatorship."

Prisoners had no access to medical treatment, and Humphrey left prison with prostate cancer. Others who were detained at the same time had since died of cancer.

Prisoners were interrogated once a day, despite it taking weeks to access a lawyer. The interrogations took place inside a locked cage, with a panel of three police interrogators.

Humphrey said even when he did get a lawyer, they were not truly independent, and were limited in their abilities to properly represent their client. This was due to an oath they signed to the Chinese Communist Party, and a non-disclosure agreement with the prosecution.

The police case was built on pressuring people to give statements to use as confessions, and pressuring witnesses to make statements, he said, adding that there was not a professional forensic investigation as would be expected in a country like New Zealand.

In court, Humphrey could not produce his own witnesses, and prosecution witnesses were not subject to cross-examination.

This experience gave him a unique insight into the experience of people “in the clutches of the Chinese, so-called, justice system”.

“There’s no prospect of a fair trial because every element of the judicial machine, in China, is part of the Communist Party. There is no rule of law, because the law does not stand above everybody. The Communist Party and its members stand above the rule of law,” he said.

“There’s absolutely no possibility for separation of powers. There is no such thing in China as an independent court, with impartial judges. It is not possible when you have a one-party dictatorship.”

Kim’s lawyer Tony Ellis has acknowledged Humphrey’s offer to share his expertise, if needed.

Global implications

Kim’s case does not exist in a vacuum.

The Swedish case was part of a wider extradition push by the PRC, called Operation Foxhunt.

This operation focused on corrupt CCP officials who had fled the country, and Qiao Jianjun was number three on the CCP’s most-wanted list.

There were other individual extradition cases around the world, and the recent Hong Kong situation had drawn global attention to the issue.

Humphrey said he didn’t believe two million protestors in Hong Kong could be wrong in their "virulent" opposition to broadening China’s extradition powers.

“All of this gives me great cause for concern that China is stomping around the world, trying to drag people back to the PRC and give them a dose of what China calls its judicial system, but in fact is a total sham.”

Other countries would be watching what New Zealand did in Kim’s case.

“[These decisions] will have reverberations; they will have an echo around the world in many countries that are under the genuine rule of law, with independent laws and judges,” Humphrey said.

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