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[Talk to My Lawyer]: What Happens When You Get Arrested?

SmSh Talks To a Criminal Attorney About What Happens When You Run Afoul of the Law
2021-09-14 16:00:00
"Talk to My Lawyer" is an ongoing SmartShanghai column discussing legal matters in Shanghai. SmSh invites qualified lawyers from our directory to give us legal advice on a range of issues, including commercial law, property law, contract law, and keeping-us-out-of-jail law.

What a cheerful topic to start this column on!

Glad to be here to impart this information to SmSh readers.

So. You've been picked up by the police. Let's talk about it.

In order to better explain what happens, let's get a few basics down.

Who Exactly Has Detained You?: How Police Agencies Are Organized in Shanghai

Police agencies in China — called "public security organs" — are classified into jurisdiction levels. They are from the top down:

• the national level - the Ministry of Public Security

• the province level - the Provincial Public Security Department (PSD). Note: the city of Shanghai is classified as a province.

• the district level - the Municipal Public Security Bureau (PSB)

• the District Branch of the Public Security Bureau

For criminal offenses, the police station that we're usually dealing with is the dispatched organ of the District Branch of the Public Security Bureau, set up in various residential communities within the territory of the Municipal Public Security Bureau.

For example, we have the Shanghai Public Security Department at the city ("provincial") level. Below it, we have the Pudong Branch of the Shanghai Public Security Bureau, which is in charge of Pudong District, Shanghai. Under that, we have several police stations set up in the community areas within Pudong District — for example, Beicai Police Station, Chuansha Police Station, and more.

In most situations, you are dealing with the District Branch police station where you live or the District Branch station where the given incident under investigation has been reported.

Under Which Legal Grounds Did You Get Detained? Did You Do Something Bad or Did You Do Something REALLY Bad?

Under normal circumstances, there are two basic legal grounds for restricting personal freedom:

• one is an offense of the Public Security Penalty Law
• one is a violation of Criminal Law

You Did Something Bad: Offenses Under Public Security Penalty Law

The Public Security Penalty Law is the management and punishment provisions for minor public security violations.

Such cases usually involve violations of "public security", administrative law but have not yet constituted a criminal offense.

For example, you got into a fight somewhere and only minor body injury was sustained and / or mild property damage occurred. More examples of behavior that could be classified as falling under Public Security Penal Law are drug use, prostitution, gambling, drunk driving, vandalism.

Under Public Security Penal Law, these misconducts are seen as minor violations and "administrative penalties" are administered in accordance with what the law is for the given offense.

Punishments are, most frequently, fines, financial restitution to injured parties, and warnings.

The most severe punishment you can get for an offense classified under Public Security Penal Law is detention lasting usually from 5 to 15 days. As a punishment, this is usually the final measure of the entire procedure. This type of detention is also called "administrative detention" which is served at a dedicated detention center.

But also, here's the thing: As a foreigner in China, you may also be subject to deportation depending on the severity of your offense and your individual situation — an added punishment indeed.

So, that's what you're looking at with offenses under the Public Security Penalty Law.

But what if...

You Did Something REALLY Bad: Violations of Criminal Law

The former constituted administrative, "public security" offenses. Now we're talking about the real crime stuff.

To extend our previous examples, a criminal violation could be if you've perpetrated a serious assault and are determined to be responsible for grave and serious injury — severe fracture, loss of vital organs, disfigurement.

Organizing and running a prostitution ring for profit making. Enough said.

In the case of illegal drugs, they're looking at importing and / or selling drugs or sheltering others to engage in this activity. Taking drugs is an act at the public security / administrative penalty level but selling drugs or sheltering others to take drugs is a criminal act that violates the criminal law.

Different from public security / administrative punishment, in criminal proceedings, detention is only a means of investigation.

In other words, detention is a temporary restriction on the personal freedom of the suspect to aid the police to carry out investigations, to prevent the suspect from escaping and from continuing to engage in criminal acts, and to wait for the appointed legal bodies to approve the arrest application of the suspect.

At this stage, detention is not a punishment measure. It is the methodology by which you will proceed to the next point in the criminal processing procedure — which is being formally arrested and charged, if the evidence is sufficient.

This kind of detention is also called "criminal detention".

You don't want this.

So You've Been Picked Up...

So, that's who you're talking to and how they are assessing your case.

Have you committed an administrative, public security offense? Have you committed a criminal violation? Is your administrative offense severe enough to be classified as a criminal violation?

Therefore, if you are detained, you first need to know whether you have violated administrative or criminal law. Generally speaking, asking the police officer dealing with your case will impart a general understanding. You'll know what you're there for probably! For most cases, this is fairly obvious, as most offenses are simple, administrative, and cut-and-dry.

You were found to do this and then penalty for it is that, which is dictated bylaw.

The Initial Interrogation

In all cases, you will be subject to an initial interrogation wherein the police are adding to their investigation on the specifics of how you ended up in their station. During this time, depending on your situation, they are also gathering further evidence — for example, hospital reports are being determined in the case of assault, or hair drug test samples are being processed, or security footage is being viewed — and evidence could be directly collected from you during the process of the interrogation.

Conducting Yourself During the Interrogation

It's always wise to remain polite, cooperative, and respectful in speaking with the police. You can, however, choose to remain silent on topics you are not sure of during your first interrogation.

Of course, this is not to suggest that you refuse to cooperate with the investigation or to conceal facts, or even to deceive the police. Such behaviors may affect the outcome of your final trial and cause disadvantages to you.

At your first interrogation, however, you have not had the chance to speak to legal counsel to advise you of your situation. Specifically, you can keep silent about what you're not sure of, disagree with, or don't understand, and then clearly inform the police that you'd like to...

Talk to a Lawyer

You can contact your lawyer at any time before or during the process of an administrative detention (browse lawyers on SmartShanghai here).

For a criminal detention, the process is much more serious. You can contact (and you will be hiring) a lawyer to intervene in the case right after the police's first interrogation with you. This is highly recommended.

This is because if it is a criminal detention, your mobile phone will be confiscated immediately and if you need to contact and hire a lawyer — you do — you must make it clear to the police during the first interrogation and urge them to allow you to do so.

So What Happens Now? How Will This Play Out?

That depends on the offense and the evidence. For minor administrative offenses, if you do have done something bad, your lawyer will very much suggest to you that you pay the fine, take the warning, show deference, and move on. Normally, if a violation exists and it is not a serious violation, all you need to do is to accept the administrative penalty according to the lawyer's advice and no further action needs to be taken.

Administrative offenses — non-criminal offenses — that result in administrative detention for 5 to 15 days, is going to result in a more in-depth discussion with your lawyer about your case. Deportation for a foreigner is more serious and needs to be approved by the Ministry of Public Security of China. Unless your situation is more severe, the public security organs will generally be quite cautious in applying it. You need to talk to your lawyer about the ramifications — the worst one being deportation.

For administrative penalties, the police will hand you a "Notice of Administrative Penalty", which contains your personal information, violations, punishment basis, and the punishment results.

And the worst case scenario:

You have been found to commit a criminal violation or have had your administrative offense upgraded to one following more evidence coming to light.

The police will hand you a "Notice of Criminal Detention". Which is exactly what it sounds like. Cannot stress this enough: if you see this form, you need to lawyer up ASAP.

No warnings, fines, or administrative detention. You're facing a criminal trial and several years of imprisonment. In addition, the police will ask if you want to notify your family members during the interrogation and if you are a foreigner, the police will most likely contact your embassy or consulate.

At this time, if you are detained, this detention is no longer an administrative punishment, but an initial step of a criminal procedure and, in that capacity, you may be detained for up to 37 days - this period could be extended for another one or two months, depends of the circumstances of the crime and the difficulty of obtaining evidences. During these 37 days, you will be transferred to a detention center, the police will conduct investigations against you and collect relevant evidence, and then apply to the prosecutor for an approval of arrest upon you. If the evidence collected is reliable and sufficient, the prosecutor may approve the arrest application and at that time, you will face a longer period of detention, which may last as long as several months, until a trialing judgment is made. At that time, you may face more severe penalties, such as years of imprisonment.

One of the biggest differences between Chinese criminal procedures and Western countries is that the Chinese police generally do not enact criminal detention on people before they have done some preliminary investigation and are convinced that you are under a certain suspicion.

Of course, if the police fail to obtain decisive evidence, they may release you directly, or they may not be able to obtain the prosecutor's approval to arrest you, but in that 37 days, if you get a "Notice of Arrest", this means the application of arrest is approved and you then usually will face a trial.

And that's a column for another time...


Hope you guys found this information useful or interesting as an insight into Chinese criminal procedure. Stay safe!