This is the Affidavit of Guo Guoting (Thomas Guo), declared the 24, September, 2005, at the City of Courtenay, in the Province of British Columbia, Canada.
I, GUO Guoting of 211C – 750 Comox Road, in the City of Courtenay, in the Province of British Columbia, Canada, Chinese lawyer, knowing that this Affidavit shall have the same force and effect as if given as evidence in a Court of Law, hereby AFFIRM AS FOLLOWS:
1) I am a native and citizen of China.
2) I am 47 years old.
3) I obtained an LL.B. degree in 1984 from Jilin University law school , majoring in International Law.
4) Beginning in 1984 I practised at all levels of the Chinese Court System, from the District Courts to the Supreme Court, until March of 2005, when my licence to practise law was suspended by the Justice Bureau of Shanghai.
5) Before the revocation of my licence to practise law, I had been a Chinese lawyer for twenty years.
6) I was named by the international publication, Legal 500 (2001-2002), as the number one maritime lawyer in China. I was a commercial lawyer for eighteen years and maritime law was my speciality, but I also practised as a defence lawyer in so-called “sensitive” criminal cases.
7) For the last two years of my practice in China, although I continued to take a few Maritime Law cases, I specialised in Criminal Law as it pertained to human rights.
8) I have served as a law professor at Wuhan University and at the Shanghai Maritime University.
9) I have been an arbitrator on the panels of both the China International Economic and Trade Arbitration Commission and the Maritime Arbitration Commission.
10) I have translated the following English textbooks into Chinese and my translations are used as textbooks in Chinese universities:
a) James E. Bond, The Art of Judgment;
b) Morden on Bills of Lading;
c) Sassoon on CIF & FOB Contracts(4th ed);
d) Scrutton on Charterparties and Bills of Lading(20th ed);
e) O’May on Marine Insurance Law and Policy;
f) The Institute Clauses(3rd ed)
11) In addition, I am the author of the following textbooks:
a) International Economic and Trade-Law and Practice: 1994, Politics and Law University Press, Beijing;
b) Law and Lawyer’s Practice in International Maritime Trade: 1996, Dalian Maritime University Press, Dalian;
c) Study of Current China Foreign Economic and Trade Cases: Politics and Law University Press, Beijing
12) I have also published approximately sixty major articles in professional legal journals.
13) I lived my entire life in China until coming to Canada in May of 2005.
14) I am familiar with the accusations the Chinese Government of China has made against Lai Changxing and I have followed the Chinese press coverage of this case from its inception until now. I have long known Lai Changxing by reputation because until about six years ago I lived in Fuzhou, the capital city of the province where he located his business activities and where he had a very high public profile.
15) I have been asked to provide my opinion, based on my twenty years experience as a trial lawyer in the courts of China and my political understanding of this case, on whether Lai Changxing will be at risk if he is sent back to China. I have been asked specifically to comment upon the following issues:
a) If Lai Changxing is returned to China, will he receive a fair trial on the accusations which the Chinese government has made against him?;
b) If Lai Changxing is returned to China, is he likely to be subjected to torture?; and
c) If Lai Changxing is returned to China, is he likely to be killed?
16) I shall address the three questions in Paragraph 15 ante, in the same order in which they are set out in that paragraph.
If Lai Changxing is returned to China, will he receive a fair trial on the accusations which the Chinese government has made against him?
17) I have no hesitation in saying that there is no possibility that Lai Changxing could receive a fair trial in China.
18) This is a case in which the Chinese government has put itself in a position to suffer an enormous loss of face and credibility with the Chinese people. After they have printed blaring headlines about the “biggest criminal”, who should be executed ten times over, an acquittal is simply not an option for a Chinese court. An acquittal, indeed anything less than conviction on all counts and imposition of the maximum sentence would be a huge loss of face for the Chinese government. The Chinese government (more correctly the Communist Party, which in reality is the Chinese Government) exercises total control over the Chinese courts at all levels.
19) As Jerome Cohen of New York University has testified in the subject case, “The Chinese courts have an absolutely impeccable record of carrying out the instructions of the Chinese Government”. There is no doubt in the mind of anyone in China familiar with the legal system that the Chinese Government has long ago determined the verdict and the sentence to be imposed in the event of Lai’s return. The only role of the Chinese court will be to affix the court seal on the pre-ordained judgement.
20) Quite aside from the special circumstances of the Lai case, there is in reality no such thing as a fair trial for any accused on trial in a Chinese criminal court. This is because the Chinese court system lacks all the most basic prerequisites of a fair trial by any recognizable international standards:
a) There is no presumption of innocence. It is often claimed that Article 12 of the 1996 Code of Criminal Procedure( “No person shall be found guilty without being judged as such by a People's Court according to law.”) enshrines the presumption of evidence, but that is clearly not the case. This article does not in any way affect the burden of proof in a trial. In practice, there is an absolute presumption of guilt in all Chinese criminal court proceedings.
b) There is a conviction rate in Chinese criminal courts of almost 100%. The possibility of any defendant being found “Not Guilty” is so remote as to be meaningless.
c) Appeals are also meaningless because in the ordinary course of events, the appeal court has already given prior approval to the lower court’s decision before the lower court’s judgement has even been handed down. The trial of an appeal is almost always a paper trial only. There is no hearing.
d) Lawyers are not permitted to see their clients until after the entire police and prosecutorial investigation has been included, including interrogation of the accused. In many cases the lawyer is never allowed to meet his client, notwithstanding his clear right to do so as provided by the 1996 Code of Criminal Procedure.
e) When a defence lawyer is allowed to meet with his client, a police officer must always be present, except for those meetings which occur in an interrogation room which is equipped with a video camera, allowing the police and prosecutors to monitor the conversation from a remote location.
f) The lawyer is not allowed to discuss with his client the circumstances of the events with which he is charged or how/why the client was arrested. In the event that the interview goes beyond a description of the charge facing the accused and what it means, the attending police officer will terminate the interview.
g) Lawyers are never provided with copies of the prosecutor’s file, notwithstanding their right to the documents therein under the 1996 Code of Criminal Procedure.
h) Defence lawyers are routinely intimidated and often physically abused by police and prosecutors. Torture is routinely used in virtually all criminal investigations. In fact, the use of torture has been described by many who have investigated it as “endemic” and “systemic”. One of my clients was tortured to death by prison guards, and another was tortured to death by policemen.
i) Lawyers who plead their clients “Not Guilty” or introduce a statement from the accused which contradicts the statement given by the accused to the police (usually under torture) are often sent to prison under the notorious Article 306 of the Chinese Criminal Code.