Recently, a legal team led by Yang Hangsheng, a senior partner at King&Capital Law Firm, was retained by a client suspected of theft to serve as his defense counsel during the investigation and prosecution review phases. Upon accepting the retainer, attorneys Yang Hangsheng, Li Song, and He Shunqi formed a case team. Faced with the grim reality that the client’s actions met the criteria for criminal liability and that criminal punishment was imminent, the team tackled the challenges head-on. Through in-depth analysis, efficient communication, and professional advocacy, they ultimately succeeded in persuading the procuratorate to issue a decision of non-prosecution. This effectively safeguarded the client’s stability in both work and personal life, demonstrating the critical role and tangible results of attorneys in defending clients in misdemeanor cases.
I. Speed Is of the Essence: Immediate Intervention to Establish the Defense Strategy
Upon accepting the case, the legal team swiftly began work, visiting the client at the detention center immediately to hear his account and defense. As the team had previously analyzed, “self-service shopping” cases of this nature often involve relatively clear facts and solid evidence, leaving limited room for defense.
The most challenging aspect of this case was that even a minor criminal penalty could lead to extremely severe collateral consequences.
The client was an employee of a state-owned enterprise with a stable job and a long history of good performance. However, due to unfamiliarity with the supermarket’s new self-checkout system and a gambler’s mentality, he repeatedly failed to scan certain items at the checkout, with both the total amount involved and the number of incidents exceeding the threshold for criminal prosecution. Furthermore, the case has already entered criminal proceedings, and the client faces the real risk of being prosecuted and sentenced. If convicted, his career prospects and social reputation will be severely affected, potentially plunging his family into financial hardship.
The primary challenge of this defense is how to secure a non-prosecution outcome for the client while navigating the fine line between criminal and non-criminal charges. To achieve the core objective of “avoiding criminal punishment,” it is necessary to proceed steadily and methodically, gradually accumulating various factors favorable to the client to achieve a breakthrough through “quantitative changes leading to qualitative changes.”
II. Proceeding Steadily and Methodically, Accumulating Evidence Layer by Layer, and Comprehensively Advancing the Achievement of a Non-Prosecution Agreement
After the legal team intervened, the client was released on bail pending trial and temporarily regained his freedom. However, shortly thereafter, the case was transferred for review and prosecution, marking the entry into its most critical phase. After reviewing the case files immediately, the legal team actively verified the evidence with the client. They discovered that the client had remained at the scene awaiting resolution despite knowing that a report had been filed, and had consistently provided truthful statements upon being taken into custody—circumstances that met the criteria for “voluntary surrender” as defined in judicial interpretations. Additionally, the return of stolen property, compensation for damages, and obtaining the victim’s forgiveness were identified as significant mitigating factors for sentencing. Following the incident, the client’s family actively cooperated by contacting the supermarket, offering a sincere apology and full compensation for the losses. Ultimately, they obtained a written statement of forgiveness from the supermarket, effectively mitigating the social harm of the case and further solidifying the grounds for non-prosecution.
The legal team focused not only on the act itself but also on demonstrating the client’s consistent conduct and attitude of remorse: emphasizing that this was a first-time and isolated offense with minimal subjective malice; the amount involved was not substantial and no serious consequences resulted; the client has stable employment and a fixed residence, possesses effective conditions for rehabilitation, and poses no risk of reoffending. Through multi-faceted arguments, the defense reinforced the positions that “the circumstances are minor and prosecution is unnecessary” and that “imposing a heavy penalty for a minor offense” would result in a mismatch between the crime, culpability, and punishment.
After finalizing the defense strategy, the legal team actively communicated with the procuratorate while submitting a detailed written defense brief that comprehensively and systematically articulated the team’s arguments. Through continuous and rational communication, the team closely adhered to the provisions on relative non-prosecution under Article 177, Paragraph 2 of the Criminal Procedure Law of the People’s Republic of China. By incorporating sentencing guidelines from the Supreme People’s Court’s Sentencing Guidelines for Common Crimes regarding self-surrender, guilty pleas, and restitution and reconciliation, and taking into account the standard of handling minor theft cases under new retail payment models in judicial practice, the team submitted a professional defense opinion arguing that the case should embody the judicial principles of restraint and prudence, resulting in the exemption of the client from criminal punishment and a decision not to prosecute. Furthermore, the team clearly distinguished between this case—involving a minor theft—and criminal acts committed by professional thieves, asserting that judicial authorities should treat them differently to reflect the principle of proportionality between crime, culpability, and punishment.
III. After the Hearing, the Decision Not to Prosecute Was Finalized, and the Clouds Parted
After a comprehensive review of the case facts, evidence, and the professional defense arguments submitted by the lawyers, the procuratorial authorities accepted the defense team’s arguments and proposed to handle the case by declining to prosecute, subsequently conducting a relevant hearing. During the hearing, the client’s sincere repentance was also acknowledged by the hearing panel. After the client signed the plea agreement, the procuratorate ultimately determined that while the client’s actions constituted the crime of theft, the circumstances were minor. Given statutory mitigating factors such as full confession, acceptance of guilt, and willingness to accept punishment, as well as full compensation for the victim’s losses and written forgiveness, the procuratorate decided not to prosecute.
With this, the individual’s life has returned to normal; they have retained their job and reputation, minimizing the impact of their momentary lapse of judgment to the lowest extent permitted by law.
IV. Reflections on Similar Cases
The modus operandi in such cases is largely similar, characterized by long-term, repeated, and small-scale offenses. The perpetrators have expanded from those who rely on theft for a living to individuals with stable jobs and no financial burdens in their family lives. These individuals belong to the typical consumer base of supermarkets; the goods they steal fall within their means. However, due to a lack of legal awareness, a desire to take small advantages, and a gambler’s mentality, they commit repeated offenses. Each theft involves a small amount of merchandise, and they believe the items are of little value, assuming that even if caught, they can simply compensate the supermarket—unaware that they have committed a crime. The mindset and level of malice of suspects in these cases differ significantly from those in ordinary theft cases.
Overall, in crimes involving self-checkout theft, the perpetrators pose a low risk to public safety and exhibit minimal malicious intent; their actions are primarily driven by a desire to gain a small advantage. Most are first-time or occasional offenders. However, once such acts are treated as criminal offenses, the impact on the perpetrators is severe. Defense attorneys have also noted that in current judicial practice, judicial authorities strive to impose lenient and mitigated penalties. They emphasize lenient dispositions, aiming to minimize the “scope of punishment” to reduce judicial confrontation and social conflict as much as possible. Through a diversified approach that combines firmness with flexibility, they seek to promptly repair damaged social relationships and provide a stable, harmonious, and orderly environment for social development.
V. Lessons from the Case: Finding a Way Out at the Threshold of Criminal Liability; Judicial Compassion Safeguards Lives
This case is a typical theft case where the conduct “met the threshold for criminal liability but involved minor circumstances.” The defense process was fraught with challenges and amounted to a “battle we could not afford to lose.” Rather than evading the illegality of the client’s actions, the legal team, through meticulous review of evidence, thorough examination of the circumstances, application of relevant policies, and effective communication and coordination, successfully secured the optimal outcome of a non-prosecution decision step by step.
The purpose of criminal punishment is to prevent and reduce crime, and to create conditions for its eventual eradication. The functions of punishment for offenders primarily include retribution and rehabilitation. The retributive function implies that punishment, when applied to any perpetrator of a criminal act, will inflict mental or physical suffering. The rehabilitative function means that the application of punishment should also serve to transform the offender into a new person. In this case, the party has deeply recognized the illegality and harmfulness of their own conduct, has learned a profound lesson, exhibits minimal subjective malice, possesses the conditions for rehabilitation, and has essentially no likelihood of reoffending. Therefore, the objectives of punishment and rehabilitation have been achieved. In accordance with the law, lenient and mitigated punishment may be imposed to reflect the principle of restraint in criminal law and the principle of proportionality between crime, culpability, and punishment. Not holding the defendant criminally liable not only aligns with the criminal justice policy of balancing leniency and strictness but also demonstrates the judicial authorities’ compassion and humanistic concern.
King&Capital Law Firm consistently upholds a service philosophy of professionalism, dedication, and responsibility. We not only adhere to the legal bottom line and precisely safeguard the legitimate rights and interests of our clients, but also contribute to repairing damaged social relationships, minimizing judicial confrontation and social conflict to the greatest extent possible, and better resolving social contradictions. This ensures the unity of the political, legal, and social effects of judicial rulings.
Translated with DeepL.com (free version)
