Attorney Shao Shiwei | Different Judgments for Similar Cases? A Study on 'Territorial Jurisdiction' in Criminal Cases

The term 'fair trial' mentioned here does not necessarily imply suspicion of corruption within local judicial organs leading to judicial injustice or perversion of the law. As stated earlier, due to differing levels of economic development in various regions or insufficient understanding of new types of cases by handling personnel, different judgments for similar cases are an unfortunate reality in practice. Since judges possess a certain degree of discretionary power, even different judgment outcomes cannot be entirely characterized as 'wrongful convictions,' and subsequent attempts to overturn such judgments are exceedingly difficult.

However, for the parties involved, if similar circumstances result in only a few months of imprisonment or even acquittal in other regions, while they face several years of imprisonment, this is clearly an unacceptable and profoundly unjust outcome.

For example, the amounts involved in cases of opening a casino are generally substantial. Referring to practical precedents, if an agent accepts bets amounting to RMB 1 million, they might be sentenced to one year of fixed-term imprisonment or even less in Shanghai, whereas in a third- or fourth-tier city, the agent might be sentenced to two to three years. Regarding the distinction in sentencing between principal and accessory offenders, some regions show a clear difference (e.g., five years for the principal offender and two years for the accessory), while other regions show no significant difference (e.g., six years for the principal offender and five and a half years for the accessory).

Another example involves OTC merchants buying and selling virtual currencies to earn spreads, suspected of committing the crime of aiding information network criminal activities or the crime of concealing or disguising the proceeds of crime. In the article 'Convicted of Concealing Proceeds of Crime for Trading USDT Virtual Currency: How Should Lawyers Choose Defense Strategies?' (see figure below), we mentioned a case. Regarding this case, the author and many public security friends have discussed it, and we unanimously agree that the USDT merchant in this case should be found not guilty.

                                                                                                                                                (Original link → 'Convicted of Concealing Proceeds of Crime for Trading USDT Virtual Currency: How Should Lawyers Choose Defense Strategies?》

The discrepancy between statutory provisions and judicial practice is an interesting matter.

If one examines the Criminal Procedure Law, the Interpretation of the Criminal Procedure Law, and other relevant regulations, the general meaning conveyed is that if a handling authority, while processing a case, discovers that another handling authority has jurisdiction over the case, it shallproactivelyreview,proactivelytransfer the case, and if there is a dispute over jurisdiction, it shallproactivelyreport to the superior authority for designation of jurisdiction.

The statutory provisions are obviously too idealistic.

Based on the author's experience in handling cases, the situation in practice is often as follows:

• Handling authorities may wish to avoid difficult cases and attempt to shift them to other peer departments from a jurisdictional perspective;

• For cases involving (significant) economic interests, handling authorities from other regions, amidst their busy daily routines, may proactively discover relevant clues of illegality and initiate'long-arm' cross-provincial arrests(for deeper insight, see → 'A Brief Discussion on Profit-Driven Law Enforcement in Criminal Cases Involving the Cryptocurrency Circle'), and phenomena of different handling authorities competing for jurisdiction may even occur;

Additionally, citing the view of a fellow attorney combined with practical case handling regarding the understanding of statutory provisions, see the figure below:

To state the conclusion first: Currently, China's Criminal Procedure Law and other regulations do not explicitly stipulate that public security organs at the victim's place of residence have jurisdiction. Therefore,jurisdiction cannot be directly determined based on the victim's place of residence.

As early as 2000, in the 'Reply of the Ministry of Public Security on Whether Public Security Organs at the Victim's Place of Residence Can File and Investigate Fraud Cases,' it was clearly stated: Fraud cases are under the jurisdiction of the place of residence of the criminal suspect or the place of the crime (including the place where the criminal act was committed and the place where the suspect actually obtained the property). Public security organs in other locations cannot file and investigate fraud cases.

However, cybercrimes have characteristics such as openness and cross-regional nature. Completely excluding nodes associated with the victim would be detrimental to solving the case. Therefore, relevant legal provisions have expanded the interpretation of the 'place of crime.'

However, from the wording of the aforementioned legal provisions, it can also be seen thateven with the expanded interpretation of the place of crime, it is not explicitly stipulated that public security organs at the victim's place of residence have jurisdiction.

Furthermore, the special provisions regarding telecommunications network fraud cases in the above articles do not apply to ordinary fraud cases. In addition, even with explicit legal provisions, in judicial practice, handling authorities may 'misinterpret' legal clauses, leading to errors in the application of jurisdiction.

For example, in the following case, the defense counsel argued that cybercrime cases should also be under the jurisdiction of public security organs at the suspect's place of residence, the place of sale of infringing products, etc.

                                                                                                                                                                      (Source: 'Guidelines for Pre-trial Conferences' Authors: Xu Xin, Xiao Zhi'e)

According to the Criminal Procedure Law and its interpretations, procuratorates and courts have an obligation to review jurisdiction. If the collegial panel holds a pre-trial conference, defense counsel may raise jurisdictional objections during the pre-trial conference.

However, the Criminal Procedure Law and its interpretations do not explicitly specify the form in which the court should respond to jurisdictional objections raised by defense counsel.

If a jurisdictional objection is rejected, some courts provide an oral response during the pre-trial conference, others reject it with reasons stated in the criminal judgment, and a few courts issue a ruling granting the parties the right to appeal, such as in case (2019) Yu 16 Xing Zhong No. 205. However, other courts have ruled that parties do not have the right to appeal against jurisdictional objections, such as in case (2020) Gan 0104 Xing Jian No. 1.

In summary, jurisdictional issues are crucial in criminal proceedings, especially in cases involving new types of crimes or cross-regional offenses, as they may directly impact the conviction and sentencing. Although legal provisions define the scope of jurisdiction for different types of cases, in practice, due to factors such as local economic development levels, cognitive differences among judicial personnel, and profit-driven law enforcement by handling authorities, jurisdictional objections are often a key defense strategy. For defendants, correctly raising and utilizing jurisdictional objections may help secure a fairer and more reasonable trial outcome.

Therefore, when facing complex cases, criminal defense attorneys need to combine specific circumstances and fully utilize the objection procedures granted by law to strive for the best legal protection for their clients. Although the probability of successful transfer is not high,there is only a slim chance if one strives for it; without striving, there will never be an opportunity.

[i] Designated Jurisdiction in Criminal Proceedings and Its Practical Application https://mp.weixin.qq.com/s/SbvfsuwIlDU34k9B7Btv3g

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