Recently, King&Capital Law Firm WangXinTong, WangZiChen lawyers on behalf of a Myanmar Myawaddy KK Park cross-border telecom fraud case, the party LiMou's situation is like the “desperate” movie ZhangYiXing played computer engineer, the defense to LiMou long-term mental and physical double coercion is forced to participate in the fraud activities, lack of subjective intent to cheat others of their money and property, the facts of the alleged crime is not clear, Insufficient evidence and other reasons for its application for non-approval of the arrest, the defense was supported by the prosecution, Li Mou bail finally reunited with his family after more than two years of separation.
Since February 20, 2025, China, Myanmar and Thailand jointly carried out the repatriation of suspects involved in fraud in Myanmar's Myawaddy region, a total of 2,876 Chinese suspects involved in fraud have been escorted back to the country [1], and in the context of China's adherence to the “full chain, full elements, all-round” crackdown on telecommunication network fraud crimes, the authorities responsible for the case Such cases are dealt with strictly. However, in the escorted back to the people involved in fraud, there is a part of being cheated out of the country after being forced to participate in the crime of the “victim”, they were lured or held hostage out of the country, in the long term beatings and detention, subject to mental and physical double coercion forced to participate in fraud activities, the lack of subjective malignancy of the crime. How to provide an effective defense for parties coerced to participate in fraud under such circumstances has become a thorny issue in the field of criminal defense nowadays. In this article, we will share the defense experience of this case and further sort out the key points of defense in cases of coerced participation in cross-border fraud for your reference.
I. Accepting the commission to represent the cross-border wire fraud case, and making unremitting efforts to obtain the decision of not approving the arrest
In the year before Li Mou was criminally detained, his family had repeatedly received distress messages from Li Mou, in which Li Mou said that he had been tricked into Myanmar's Myawaddy KK Park, and secretly got his cell phone to send a message begging his family to call the police to pick up his own country. The family tried but still no progress, until suddenly received a notice of detention from a public security bureau in Hebei Province, only to learn that Li has been suspected of fraud criminal detention. Although this indicates that Li has returned to China, but at the same time means that Li has become a suspect, will probably be held criminally responsible. Because Li had been out of contact with his family for nearly two years, his family was completely unaware of the facts related to his suspected fraud, and it was not clear why Li had been detained off-site.
Undertake lawyers in accepting the commission immediately went to meet with, understand that Li Mou was worker to high pay job as the reason to cheat to our country near the border, was held hostage to Myanmar Myawaddy KK park, after asking for help in vain was coerced to participate in telecom fraud work. In the wire fraud work to make up the travel expenses after the “redemption” to return to the country, immediately after returning to the country was suspected of fraud criminal detention. After the meeting, the contractor lawyer according to the clues provided by li mou, from his family to retrieve li mou sent distress information as evidence, wrote a written opinion and the case authorities communicate with many times, and finally for li mou for the non-approval of the decision. Subsequently, the contractor lawyer to assist the family and public security organs to communicate many times, negotiate to reduce the bail pending trial deposit, Li finally reunited with his family two years apart, regained his freedom.
Second, cross-border wire fraud case defense dilemma
This case is not rare in the recent foreign wire fraud cases, in recent years due to telecommunications network fraud criminal activities continue to be high, the crime situation is becoming increasingly serious and complex, our country will be cross-border telecommunication network fraud crime as “top priority” vigorously combat, the overall criminal justice policy more and more stringent. In the calculation of the amount of the crime, the standard of proof of the amount of the crime, and the determination of the circumstances of the crime, all adopt a more severe determination or punishment of the suspect.
First, about the way to calculate the amount of crime.
With regard to Article 4 of the Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases of Telecommunication Network Fraud and Other Cases (hereinafter referred to as the “Opinions”) issued by the two high committees in 2016, it is stipulated that “if multiple people jointly commit telecommunication network fraud, the suspect or defendant shall bear the responsibility for all the acts of fraud committed by the gang during the period of his/her participation”. The gang shall be liable for all fraudulent acts committed during the period of their participation. ...... The “period of participation” stipulated above shall be counted from the beginning of the period in which the suspect or defendant commences to commit the fraudulent act.” That is to say, the amount of fraud from the perpetrator of the perpetrator to start committing fraudulent acts from the point of time, to all the fraudulent gang of fraudulent proceeds for the amount of conviction.
Second, on the standard of proof of the amount of the crime.
Because of the cross-border electric fraud case there are many people involved, the crime chain is long, the amount of money involved is huge and other characteristics, fraud funds corresponding to the specific victims and the amount of fraud has been difficult to verify, resulting in the case of the amount of crime is difficult to determine the problem. In response to this problem, Article 6 of the Opinions provides that: “If it is not possible to collect statements from the victims one by one, the victim's statement can be combined with the statements already collected, as well as the verified bank account transaction records, third-party payment and settlement account transaction records, call records, electronic data and other evidence, and comprehensively determine the number of victims and the amount of funds defrauded and other facts of the crime. “This means that even if the cross-border wire fraud cases can not correspond to a specific victim, as long as the objective evidence can prove that a certain amount of money for the suspect, the defendant fraud proceeds, the amount of money may be calculated into the amount of the suspect's crime.
Thirdly, regarding the determination of the circumstances of the crime.
The Opinions confirm the standard of the base sentence by the seriousness of the circumstances rather than the amount of the crime, emphasizing that in the case where the amount of the crime committed by the suspect or the defendant is difficult to prove, the cumulative time of his or her outbound travel to offshore crime dens for more than 30 days in one year or multiple outbound travels to offshore crime dens may be used as a basis for the determination that the fraud has “other serious circumstances”. Based on the “three to ten years of imprisonment” sentencing.
Third, the defense strategy: multi-dimensional construction of powerful defense
Specifically in this case, the contractor lawyer in respect of Li's own plea of guilty on the basis of willingness to accept punishment, that the case is unclear, insufficient evidence should not be recognized as a crime, even if based on the content of Li's confession that constitutes the crime of fraud, but also coercive accessory, self-surrender and other lenient circumstances, the fact that the determination and application of the law have not reached the conditions of the approval of the arrest, should be made to make the decision of non-approval of the arrest.
(A) the allegation of fraud evidence factually incorrect, evidence is seriously insufficient
According to the contractor's lawyer, the evidence in the case only Li's confession can prove the facts of the case, no other subjective and objective evidence can be proved, in line with the “Criminal Procedure Law” Article 55 “only the defendant confession, no other evidence”, can not be found guilty of Li, Li's confession can not be corroborated with other evidence and is “a lone”. Corroborated with other evidence and “isolated evidence”. According to the “isolated evidence can not determine the case” and “not gullible confession” rule, the facts of this case is unclear, insufficient evidence, can not prove that Li suspected of fraud.
(ii) Li was tricked into going abroad, and was coerced by violence to participate in the acts involved for a long time in the KK Park in Myanmar, and should be recognized as a coerced accessory.
A coerced accessory means that a person who is coerced to participate in a crime participates in the joint crime not entirely voluntarily under the threat of another person and plays a lesser role in the joint crime. According to Article 28 of the Criminal Law, “If a person is coerced to participate in a crime, the punishment shall be mitigated or exempted in accordance with the circumstances of his crime.”
Li was held hostage out of the country until before participating in fraudulent behavior has been in the loss of personal freedom in the state, can not freely contact with their families, while asking for help in vain, and because of the initial refusal to participate in the fraud, enduring nearly three months of beatings and a long period of detention, and later due to the administrators of the violence of the beatings and do not participate in the fraud on the threat of never being able to return to the country, can not withstand the physical and mental pressure of a great deal of physical and mental pressure in a complete violation of their own wishes, but also to participate in the act involved. He was forced against his will to take part in the acts in question. When the coercion was mildly weakened, Li immediately stopped the fraudulent behavior and did his best to borrow money to return to China immediately. This behavior can also prove that Li Mou previously involved in fraud is completely in a state of coercion, an opportunity to immediately escape and stop the criminal behavior, should be recognized as a coerced accessory.
In such cases, can be considered from the following perspectives constitute a coerced accessory:
(1) The objective circumstances of coercion: such as being held hostage outside the country, being beaten or detained, being threatened with violence (injury, killing), being mentally coerced (such as threatening to reveal privacy, damage to reputation), unable to freely contact the outside world;
(2) The subjective aspect of going against one's will: the perpetrator is forced to participate in the crime out of fear and lacks initiative and voluntariness. For example, repeatedly and clearly expressed their refusal to participate in the fraud, and were forced to participate only when they were physically and mentally unable to do so;
(3) Efforts to actively seek disengagement: e.g., attempts to contact family members, asking for help and calling the police, actively looking for opportunities to stop the criminal behavior, and immediately stopping the criminal behavior when the situation of being coerced disappears.
(C) the determination of the circumstances of surrender
Defenders need to pay attention to the defense of innocence at the same time, but also to the defense of mitigating circumstances, especially downgrading circumstances, such circumstances can play a very important role in the decision of the approval period. In this case, Li took the initiative to contact our border management personnel to explain the situation and then enter the country according to the agreed time, belonging to the initiative to surrender. After arriving at the case, Li was able to actively, accurately and truthfully confess the facts of the crime related to himself, and actively cooperated with the public security organs in investigating the case, which is in line with the conditions of surrender as stipulated in Article 67 of the Criminal Law: “A person who voluntarily surrenders himself to the police after committing a crime, and truthfully confesses to the crime is a surrenderee. A criminal who surrenders may be punished in a lighter or less severe manner. Among them, those who have committed less serious crimes may be exempted from punishment.” It should be recognized as self-surrender.
The fight against telecom network fraud crime is a necessary measure to protect the people's property security, but while cracking down on it, it is also necessary to adhere to the bottom line of the rule of law. While cracking down on telecommunication network fraud crimes, it should also focus on distinguishing between different situations, different subjective viciousness, different degrees of participation in the personnel to be differentiated. For those who organize and lead the main and backbone elements of criminal fraud gangs, they should be severely punished in accordance with the law; for those who are coerced to participate in fraudulent activities and play only a supporting role, they should take into account their special circumstances, and be given appropriate lighter and mitigated penalties or even exempted from penalties within the framework of the law. For those who are coerced to participate in fraudulent activities, through professional legal defense, to help them obtain fair judicial treatment, to ensure the fairness and reasonableness of their punishment, which is not only the protection of individual rights, but also the improvement of the entire criminal justice system.
