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How China Addresses Cross-border Access to Electronic Data in Criminal Matters?


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Key takeaways:

  • The guiding case, Jian Li No.67, issued by China’s Supreme People’s Procuratorate shows how the procuratorates request the public security organs to access overseas electronic data.
  • The case is of great significance in that it exemplifies how Chinese prosecutors should examine evidence obtained from abroad, especially electronic data, in criminal cases.

China’s Supreme People’s Procuratorate (the “SPP”) shows, in its published guiding case, Jian Li No.67, how Chinese procuratorates review electronic data obtained from overseas.

In China, public security organs (police) are responsible for the investigation of criminal cases, and procuratorates are responsible for criminal prosecution. In order to effectively make convictions of criminal suspects, procuratorates will guide public security organs in obtaining evidence.

This case shows how the procuratorates request the public security organs to access overseas electronic data.

I. Case Background

Between June 2015 and April 2016, dozens of suspects committed telecom/internet fraud against residents of the Chinese mainland in the Republic of Indonesia and the Republic of Kenya. Most of them are residents of the Chinese mainland and Taiwan.

Since the victims, in this case, are all Chinese mainland residents, China shall have jurisdiction over this case according to the principle of priority of territorial jurisdiction.

In April 2016, Kenya deported the suspect to mainland China, and at the same time provided China with laptop computers, voice gateways (devices that can integrate voice communications into data networks), mobile phones, and other physical evidence.

In May 2016, the Second Branch of the Beijing People’s Procuratorate (the “Procuratorate”) was designated to have jurisdiction over the Case and act as the public prosecutor. Upon the invitation of the public security organ, the Procuratorate participated in the investigation process to guide the public security organ in evidence collection.

With respect to the electronic data obtained abroad in this case, the procuratorate required the public security organ to:

(1) obtain the Investigation Report issued by the Kenyan police, the Information Sheet issued by the Chinese Embassy in Kenya and the seizure decision letter, the seizure list and other documents issued by the public security organ. These are to prove that the evidence obtained by the public security organ overseas has a legitimate source and the transfer process of such evidence is authentic, consistent and lawful.

(2) entrust appraisal institution to certify that the electronic data is authentic and uncontaminated or damaged from the time when Kenyan police arrested the suspects and recovered the involved equipment.

Based on the evidence obtained by the public security organ according to the above requirements, the Procuratorate initiated prosecution in court.

On 21 Dec. 2017, the Beijing Second Intermediate People’s Court issued the judgment of first instance, holding that the suspect’s conduct constituted fraud. Thereafter, the Appeal Court upheld the judgment of first instance.

II. SPP Opinions 

The SPP included this case in its 18th batch of guiding cases and named it the “Jian Li No.67” case.

According to the SPP, the case is of great significance in that it exemplifies how Chinese prosecutors should examine evidence obtained from abroad, especially electronic data, in criminal cases.

1. How to examine evidence obtained from abroad

The SPP believes that prosecutors should examine evidence from the following four aspects:

(1) Examination should be done to determine whether such evidence complies with the relevant provisions of the Criminal Procedure Law of the PRC. If it can prove the facts of the case and complies with the provisions of the Criminal Procedure Law, it may be used as evidence.

(2) If the evidence is obtained in accordance with the relevant treaties, agreements on mutual judicial assistance, cross-Straits agreements on mutual judicial assistance, or as entrusted by international organizations, examination should be done to determine whether the procedures and documents for obtaining the evidence by the public security organ are complete and whether the procedures and conditions for obtaining the evidence comply with the provisions of the relevant legal documents.

If the evidence is not obtained in accordance with the aforesaid regulations, the public security organ shall be required to provide a notary certificate issued by the public security organ of the country where the public security organ is located, which shall be authenticated by the central competent foreign affairs authority of the country or its authorized body, and shall be authenticated by the Chinese embassy or consulate in that country. (Author’s note: This usually refers to cooperation between Chinese and foreign law enforcement authorities in individual cases.) 

(3) If the evidence is obtained by entrustments, examination should focus on whether the process of the evidence is continuous, whether the documents are complete, whether the handover items are complete, whether the information of the handover items recorded in the handover lists of both parties is consistent, and whether the handover lists correspond to the handover items.

(4) if it is the criminal suspect and his defender, agent AD litem that provides evidence from abroad, it should be reviewed whether it has been notarized and certified in accordance with the relevant provisions of the treaty, and certified by the Chinese embassy or consulate in that country.

2. How to review electronic data obtained from overseas

The SPP believes that prosecutors should examine evidence from the following four aspects:

(1) Whether the electronic data storage medium maintains its originality and identity in the links of collection, storage, identification, and inspection.

(2) Review the source and collection process of electronic data, such as: verifying whether the electronic data is extracted from the original storage media, and whether the collection procedures and methods comply with laws and relevant technical specifications.

(3) With regard to electronic data extracted and recovered from storage media obtained from abroad, it shall examine whether the electronic data has not been tampered with or damaged since it was obtained from foreign authorities.

(4) Check whether electronic data is authentic, that is, check whether electronic data and other evidence are mutually verified.

III. Our comments

The case could shed light on how China obtains electronic evidence from abroad in criminal cases.

It is also noteworthy that this is a cross-border telecom fraud case, where, overseas criminal suspects use telephone, SMS, Internet and other telecommunication network technology means to defraud victims in China.

Such crimes have worsened in the last decade. Therefore, in 2018, the SPP issued guidelines ‘The Handling of Telecom and Internet Fraud cases by Procuratorial Organs’ to guide Chinese procuratorates in handling such cases Among others, the most interesting parts are the sections of “electronic data review” and “overseas evidence review”.

The “Jian Li No. 67” case described in this post shows how Chinese procuratorates have put the aforementioned Guidelines into practice.

 

 

Photo by Boitumelo Phetla on Unsplash

 

 

 



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