As Zhao Lianhai’s defense counsel, let me first clearly state my position. Based on the currently existing evidence and legal provisions, this defense counsel believes that Zhao Lianhai is innocent. The specific defense arguments are as follows：
1. Zhao Lianhai’s family, untold numbers of infants, and even the entire nation, are all victims of the national food safety crisis.
On September 11, 2008, the wonton cruelty and rampancy of China’s tainted milk powder were exposed to the public by conscientious reporters. Nationwide, due to the effects of insufficient nutritional intake or kidney stones, infants who had been consuming the tainted milk powder missed out in the crucial early ten months of their development and became weakened and were slow in their development. Zhao Lianhai’s son, Zhao Pengrui, was no exception. He started drinking infant milk powder at the end of 2006 and was found to have kidney stones in September 2008. He is now five years and one month old and he weighs only 15 kilograms (about 33 pounds). He is barely a meter (about 39 inches) tall. His weight and height are well below the standard for a normal child.
By December 2, 2008, the Ministry of Public Health stated, There have been cumulative reports of 294,000 infants with abnormalities of the urinary tract caused by the consumption of questionable milk powder. On the afternoon of March 27, 2010, Premier of the State Council Wen Jiabao, during an online exchange with a great number of netizens, said, “Netizens probably don’t know that we’ve paid a great price for this Sanlu milk powder. Our survey showed that as many as 300,000 children have been affected by the milk powder—which, it should be said, is a profound lesson that not only one company or one place, but our entire nation should learn from.”
Under the promotional slogan “A glass of milk a day makes a strong nation,” the flower of our nation, the future of our people stumbled at the starting line on the tainted milk powder, losing out not only in terms of body height and weight but probably also in intelligence and even mental condition.
Of course, the tainted milk powder can also cause long-term damage and medical after-effects in afflicted children. This defense counsel would also like to quote the professional opinions of several domestic and international experts. First, in October 2008, in an interview with Reuters, Anthony Hazzard, the World Health Organization (WHO) regional adviser for food safety, raised the possibility that in addition to the expelled kidney stones, there could still be crystals in the children’s kidneys. “Our understanding is that these are not normal kidney stones because they are not being detected via all of the tools that one uses to detect kidney stones, so some are not showing up on X-rays,”1 Hazzard said. “We believe at this stage that it's really the complex of melamine and cyanuric acid forming what you call crystals . . . they can form in the small tubules [in the kidneys] and they get bigger and can block the tubules.”2 Second, according to a Southern Metropolis Daily report,3 a research group from Peking University’s Institute of Reproductive and Child Health published an article in the Canadian Medical Association Journal on February 22, 2010, in which they point out that the effects of melamine on the health of children are not merely short term. Although the majority of the children who were diagnosed with kidney stones and kidney swelling after they consumed melamine-contaminated milk powder recovered over time without specific treatment, six months later ultrasound-based screening still showed renal abnormalities—kidney stones and kidney swelling—in 12 percent of affected children.4
To this very day, the tainted milk powder continues to pose an unpredictable danger, and this is what motivates Zhao Lianhai in his struggle.
2. In view of the fact that consumers’ associations lack status and do not have a voice, the courts have refused to hear their cases. The dissatisfaction with the compensation plan unilaterally issued [by a group of manufacturers of tainted milk powder] without any hearings or consultation, and the spontaneous, peaceful, and rational consumers’ rights protection activities undertaken by consumers who fell victim in the tainted milk powder incident, including Zhao Lianhai, to safeguard their own lawful rights and interests, are understandable.
After the tainted milk powder incident was exposed, innumerable food safety incidents—such as “Sudan I red dye” incidents, “bleached food” incidents, “dichlorvos ham” incidents, “stale rice” incidents, “lean meat essence” incidents, “formaldehyde in food” and “formalin in food” incidents, and the recent “toxic cowpea” and “sewer cooking oil” incidents—have been emerging with great frequency, seriously harming the rights and interests of consumers.5 That public prosecution agencies should charge Zhao Lianhai with “taking advantage of hot social issues” because of his engagement in the defense of consumers’ rights in order to safeguard his own lawful rights and interests is completely wrong.
The fact that consumer associations lack status and were not in a position to negotiate with the manufacturers of the tainted milk powder, and the fact that the courts refused to accepted cases, harm the rights and interests of consumers directly. The defense counsel believes that only vigorous consumer rights defense action by civil society can exert maximum deterrent force over lawless manufacturers and executives, be an active monitor, and hold the government accountable, thereby cleaning up the utter chaos of the consumer marketplace.
Just as the theme for the World Consumer Rights Day 2010 was “Our money, our rights,” the spirited rights defense is, naturally, the eternal theme of the protection of the rights and interests of consumers. On April 9, 1985, the General Assembly of the United Nations adopted the United Nations Guidelines for Consumer Protection. Principle 6 of the Guidelines stipulates “freedom to form consumer and other relevant groups or organizations and the opportunity for such organizations to present their views in decision-making processes affecting them.”7 Zhao Lianhai and the “Home for the Kidney Stone Babies” that he founded indeed want to fight for “the opportunity to present their views in decision-making processes affecting them.”
This defense counsel has also observed that although many incidents of consumer protest have occurred in China, there has not yet been an instance of criminal prosecution. For example:
The defense counsel contends that none of Zhao Lianhai’s actions exceeded the scope of protection of the rights and interests of consumers and they should be supported by the government and protected by the state.
3. The crime of “picking quarrels and provoking trouble” is one of four new criminal charges reconstituted from the disassembled crime of “hooliganism” in the old Criminal Law. But due to its excessively vague provisions and lack of further judicial analysis, thus leaving space for arbitrary interpretation, the charge is objectively extremely easy to be used by public authorities to shackle the normal expression of civil rights.
Article 293 (4) of the Criminal Law of the People’s Republic of China stipulates, “Whoever commits any of the following acts of creating disturbances [translated here as “picking quarrels and provoking trouble”], thus disrupting public order, shall be sentenced to fixed- term imprisonment of not more than five years, criminal detention or public surveillance: (4) creating disturbances in a public place, thus causing serious disorder in such place.”8
“Picking quarrels and provoking trouble” is just one of four criminal charges broken off from the [former] crime of hooliganism. The conduct that constitutes such a crime should not only be indicated in “acts of creating disturbances [picking quarrels and provoking trouble] carried out in public places. The subjective “hooliganistic intent” and the objective “stirring up trouble” are the basic and distinctive characteristics of this crime and are also the critical distinction between this crime and related criminal offenses. “Creating disturbances in a public place” usually refers to actions with an unhealthy intent, such as those done for amusement or out of a desire for mental stimulation. Stirring up trouble and provoking trouble in a public place, and thereby creating a disturbance, are committed out of a hooliganistic intent to fill an internal void.
Zhao Lianhai’s actions, however, are the normal actions of a victim of tainted milk powder defending his rights. There is absolutely no hooliganistic intent involved. Moreover, the manner and methods of his actions did not disturb the order of a public place, nor did they created serious disorder in a public place, such as causing people to panic, flee, or other such chaotic situation.
I will now proceed with an analysis of the specific charges raised by the prosecutorial organ in the court of law:
4. The January 2, 2009, Meeting with Reporters, Fengtai Jinxiugong Hotel
As they found unacceptable the compensation plan that was unilaterally formulated by the government behind closed doors in December 2008, Zhao Lianhai and other parents of afflicted children had a spontaneous discussion and decided meet with reporters on January 2, 2009, at the Chinese restaurant of the closed-down Jinxiugong Hotel in Fengtai District. The meeting would be held to voice the demands and complaints of the victim community. On the evening of January 1, 2009, Zhao Lianhai’s personal freedom was unlawfully restricted and he was forcibly confined to the Tuanhe Farm Conference Center; his mobile phone signals were blocked. As a result, he did not attend the press conference at the Jinxiugong Hotel in Fengtai.
Q: How long was the interview event?
A: About two hours.
Q: Were there many spectators?
A: There were a few people, not many.
Q: Was there any aggressive behavior at the scene?
A: There was no aggressive behavior at the scene.
The transcript of the questioning of Yu Haibo, another plainclothes policeman from the Yuegezhuang Police Substation of the Fengtai District Branch Public Security Bureau, who was at the hotel and on duty at the time, reveals:
Q: Where there many spectators?
A: There were a few people, not many.
Q: Was there any aggressive behavior, at the scene, such as banner waving or slogan shouting?
A: There was no aggressive behavior at the scene.
5. The Tuanhe Farm Conference Center
Because Mr. Zhao Lianhai was illegally confined to the Tuanhe Farm Conference Center, several parents of afflicted children proceeded there to negotiate [his release], whereupon the entrance gate to the conference center was closed and the parents were not allowed in. If the entire negotiation process entailed the so-called “picking quarrels and provoking trouble” criminal behavior as the prosecutorial organ charges, why didn’t the conference center dial 110 to report it to the authorities? To this day, the investigative organ has not questioned the several parents of afflicted children who were negotiating that day, so the evidence contains only the conference center’s one-sided testimony. Even more difficult to comprehend is how Zhao Lianhai, who had been illegally confined within the conference center and was himself not at the scene, and whose mobile was blocked, could turn into the “instigator and convener” as charged by the prosecutorial organ.
6. The August 4, 2009, report of Li Ruirui’s rape case to the Beijing Municipal Public Security Bureau
Li Ruirui, a young woman from Anhui, was sent to Juyuan Hotel on Majiabao Road by local officials stationed in Bejing and illegally locked up because she had traveled to Beijing to petition the authorities. In the early hours of August 4, 2009, at 2 am, Li Ruirui was raped by an unlawful detention guard. When the other illegally locked-up petitioners found out about it, they stormed out of the place of detention enraged and went to the Yangqiao Police Substation of the Fengtai District Branch Public Security Bureau to report the case. They then proceeded to the Beijing Municipal Public Security Bureau to report the case, as they believed that the situation was serious. When Zhao Lianhai heard the appalling news, he was furious, and notified reporters to let the press take on a watchdog role. Besides Zhao Lianhai, there were no more than a dozen or so people gathered on the sidewalk some hundred meters east of the Beijing Municipal Public Security Bureau at the time, and they discussed how to report the case. Police investigation showed that present at the scene were Li Ruirui, Liu Shasha, Zhao Lianhai, Xiao X, Liu XX, Ba XX; also present were Xing Changbao, Li Huazhen, and Yu Guiying, three petitioners who had fled Juyuan Hotel. Altogether, there were about a dozen people, including the reporters.
Yang Laiping, a passerby who is a witness for the prosecution in this case, testified, “I saw two or three foreigners who were filming with video cameras. Surrounding the foreigners were six or seven Chinese and three to four officers from the people’s policemen.”
The above facts show that, astonishingly, in the best of all places, our capital Beijing, an outrageous scandal of collective illegal detention took place, with a guard brazenly raping a woman in a large room holding more than ten people. That Zhao Lianhai, being a righteous citizen of good conscience, bravely stepped forward and notified the media and discussed reporting it to the authorities upon hearing about it, could be turned around to become “picking quarrels and provoking trouble.” How could this happen? When a dozen people stand on the sidewalk around 1:00 pm, what specifically were they doing that disturbs public order? The Dongcheng District police did not even issue administrative penalties that day, but now it has become the crime of “picking quarrels and provoking trouble,” which gravely disturbs public order.
7. The September 11, 2009, candlelight commemoration of the first anniversary of “Kidney Stone Babies”
The candlelight commemoration of the first anniversary of “Kidney Stone Babies” was held at the private Peach Blossom Room at the Jing’eqing Restaurant in Daxing District. It did not in any way create a disturbance or cause trouble by way of “shouting slogans and illegal assembly,” as charged by the prosecutorial organ. If the “picking quarrels and provoking trouble” did happen that day, why was it not reported by Jing’eqing Restaurant, the injured party, to the authorities? Is it possible that a small gathering in a private room has been elevated to “illegal assembly” on ideological grounds?
In order to gather the “proof of crime,” the Tuanhe Police Station carried out an evidence-gathering investigation on September 12, 2009, questioning servers and the manager of the Jing’eqing Restaurant.
Q: Who called for the lighting of candles?
A: Mr. Zhao Lianhai said, “Let’s start.” Then the other people took out candles from the things they had brought with them and lit them. They also displayed a sign with “9/11” written on it.
Q: What were the distinctive features of the clothing they changed into?
A: The clothing had a portrait of a child covering the entire front, with “Never Forget China 9/11” written below it. There was nothing on the back, just the words “Never Forget” at the neckband.
Q: Is there anything else you want to say?
A: On September 11, 2009, at about four in the afternoon, two reporters who came with Mr. Zhao Lianhai were filming an interview in the main hall. They were recording a video of a little kid running around. At the time, a man and a women were eating at table 6 in the main hall, so around 5:00 pm. I went to the reporters and told them, “Your filming is messing with our restaurant’s regular business. Our customers are unable to eat their meal as normal.” I asked that they stop, and they left. Our restaurant had previously scheduled cleanup and cockroach extermination for around 9:00 pm. But Mr. Zhao and his friends in the Peach Blossom Room kept not wanting to leave until around 9:40 pm when they finally left, which directly affected the time of our previously scheduled cockroach extermination, affected the time when our employees got off work, so that they couldn’t get their normal rest.
Nothing had happened in the first place, but nobody had foreseen that once the police took the initiative to go asking around like this, Zhao Lianhai’s meal at the restaurant would be turned into proof of the crime of “picking quarrels and provoking trouble” and gravely disturbing public order.
8. Trips to Shijiazhuang to follow the events of the Sanlu trial, bankruptcy, and auction
Zhao Lianhai and other victims of the Sanlu milk powder paid close attention to the developments in the Sanlu tainted milk powder incident from beginning to end. Zhao went to Shijiazhuang four times altogether, to follow the events of Sanlu’s trial, bankruptcy, and auction, and to push local courts to file the case as soon as possible. Due to his tenacity and outspokenness, Zhao had become the most closely watched person in Shijiazhuang. Every time he went to negotiate, the police stood at attention. If, indeed, he “created a disturbance in a public place, thus causing serious disorder in such place” in Shijiazhuang, why did the Shijiazhuang police not impose an administrative penalty or file a criminal case? Instead, it was the Daxing District Branch Public Security Bureau and the Beijing Municipal Public Security Bureau’s Division of Public Security Administration that took the trouble to investigate.
So what “facts of crime” did the two public security organs choose?
Q: What was he [Zhao Lianhai] doing these two or three times?
A: He was inciting family members of the victims at the company gate.
Q: How was he inciting them?
A: He was shouting, “Sanlu, compensate us for the damage! Give us money! We demand justice!”
Q: What consequences did these five people’s posters and shouting have for your work unit?
A: I urged them to move to the side of the gate, and the people who stood around watching promptly dispersed. It didn’t cause any consequences.
Q: What aggressive behavior did Zhao Lianhai exhibit during the entire process?
A: He only shouted things like, “Are there any laws left?” At the time, a lot of people had gathered to watch, but they were later scattered by public security officers on duty.
Q: Tell us a bit about the course of events.
A: After Zhao Lianhai and his group came to the court gate, a small child knelt down on the ground, a woman wept, and Zhao Lianhai shouted things like, “Are there any laws left?” and “The heavens cannot tolerate injustice!” He said a lot of things, but I don’t remember clearly what. This went on for about half an hour. After this, we used “cold treatment” to deal with this matter. We ignored him. We didn’t try to persuade him either. And then the few of them left.
(Note: The kneeling child and the weeping woman also come from families affected by the tainted milk powder, but they had nothing to do with Zhao Lianhai and his group.)
One can see from the written records above that Zhao Lianhai expressed his feelings of indignation only verbally and that his words and actions were the peaceful, rational, and restrained expressions of a victim.
9. There are numerous procedural illegality issues in this case of such gravity and to the extent that most of the evidence is completely invalid.
Article 15 of the Regulations on the Procedures for the Handling of Criminal Cases by Public Security Organs stipulates, “A criminal case shall be under the jurisdiction of the public security organs in the place where the crime was committed. If it is more appropriate for the case to be under the jurisdiction of the public security organs in the suspect’s place of domicile, then the public security organs in the suspect’s place of domicile may have jurisdiction over the case.” Article 16: “When a criminal case falls under the jurisdiction of several public security organs, it shall be under the jurisdiction of the public security organ that first filed the case. When necessary, it can come under the jurisdiction of public security organs of the place where the principal crime was committed.”9
Five public security organs of differing levels and in different districts collaboratively investigated this case, but only the Daxing District Branch Public Security Bureau filed the case for investigation. Therefore, evidence in this case obtained by the Changping, Fengtai, and Dongcheng public security bureaus and the Beijing Municipal Public Security Bureau’s Division of Public Security Administration should be categorized as invalid according to the law.
The “picking quarrels and provoking trouble” that occurred on January 2, 2009, at the Tuanhe Farm Conference Center in Daxing District has absolutely nothing to do with Zhao Lianhai. Nor did the first-anniversary commemoration of the tainted milk powder incident on September 11, 2009, involve “picking quarrels and provoking trouble,” let alone “create a serious disorder in a public place.” On these grounds, Zhao Lianhai did not engage in “picking quarrels and provoking trouble” in Daxing District, and therefore the Daxing District Branch of the Beijing Municipal Public Security Bureau does not have jurisdiction according to the law.
Article 282 of the Rules of the Supreme People's Procuratorate on the Criminal Procedure for People’s Procuratorates stipulates, “When a people’s procuratorate initiates an indictment, it shall transfer to the people’s court the written indictment, the catalogue of evidence, the list of witnesses, and photocopies or photographs of key evidence.”10
In sum, I ask the court to declare Zhao Lianhai innocent in accordance with the law.
1. Tan Ee Lyn, “Chinese Kids on Melamine Milk Develop Crystals: WHO,” Reuters, October 28, 2008, http://www.reuters.com/article/idUSTRE49R3CJ20081028. ^
2. Ibid. ^
3. Jian-meng Liu, PhD, et al., “Urinary Tract Abnormalities in Chinese Rural Children Who Consumed Melamine-Contaminated Dairy Products: A Population-based Screening and Follow-up Study,” Canadian Medical Association Journal (February 2010), http://www.cmaj.ca/cgi/doi/10.1503/cmaj.091063. ^
4. Ibid. ^
5. The “Sudan Red” incident involved duck eggs dyed with a carcinogenic red dye. The “Formaldehyde Food” incident involved using lead-based whiteners and industrial bleach as a food preservative. “Dichlorvos Jinhua Ham” incident involved the famous Jinhua Ham, which was soaked with the chemical Dichlorvos in order to kill mosquitoes, flies and maggots. The “Deteriorated Rice” incident involved rice being left on the shelf after exceeding its shelf life. The “Lean” incident involved giving pigs the chemical clenbuterol, which is an adrenal neural stimulant. The “Toxic Cowpea” incident involves highly toxic pesticides on beans that exceeded government standards. The “Sewer Oil” incident involved cooking produced from sewer waste. ^
6. Law of the People's Republic of China on the Protection of Consumer Rights and Interests, issued by the Standing Committee of the National People's Congress, promulgated October 31, 1993. ^
7. United Nations Guidelines for Consumer Protection (as expanded in 1999), General Principle 3(f). ^
8. Criminal Law of the People's Republic of China, issued by the Standing Committee of the National People's Congress, promulgated July 1, 1979; revised March 14, 1997; amended in 1999, 2001, 2002, 2005, 2006 and 2009. ^
9. Regulations on the Procedures for the Handling of Criminal Cases by Public Security Organs, issued by the Ministry of Public Security, promulgated 1987, amended 1998 and 2007. ^
10. Rules of the Supreme People's Procuratorate on the Criminal Procedure for People’s Procuratorates, issued by the Supreme People’s Procuratorate, promulgated 1998, Art. 282. ^
11. Wen Qiang was the former top judicial official in Chongqing. He was arrested in 2009 and executed in 2010 during the Chongqing gang trials. The second trial of Wen was open except his final statement. ^
12. The Rio Tinto espionage case began with the arrest in July, 2009, of four staff members in Shanghai office of the Rio Tinto Group, who were subsequently accused of bribery and espionage. The four employees went on trial in Shanghai on March 22, 2010. The second day of the trial was partially closed door. ^