The news that the Chinese government has demanded that the U.S. return Ling Wancheng has attracted much attention. Mr. Ling, the youngest brother of Ling Jihua, the disgraced former director of the Communist Party Central Committee’s General Office, is said to be hiding in the U.S. News reports indicate that the Chinese government has asked, through official channels, that Ling Wancheng be sent back to China to face criminal proceedings. So far, however, it seems that Washington has rebuffed Beijing’s request.
Much about this case is unknown. For instance, we do not know whether the Chinese government has provided the U.S. evidence of Mr. Ling’s wrongdoing. Procedurally, Ling Wancheng has not been indicted and there is no warrant for his arrest. According to Chinese media reports, Ling ran a private equity fund and made more than 1.2 billion yuan (nearly $200 million) from his investments in various media and Internet start-ups. It is unclear whether he violated any Chinese laws in his business dealings.
Those who have some knowledge of the Western legal system in general, and the American system in particular, can quickly tell that Beijing is using the wrong approach to repatriating its fugitives hiding in countries with which China has no extradition treaty.
Typically, the Chinese government tends to build a strong diplomatic case for returning high-value fugitives such as Ling Wancheng. Chinese officials emphasize the negative impact if failure to comply with their requests might have on bilateral relations. While such arguments may have some political merits, they are unlikely to sway Western or American officials who have doubts about the legal merits of these cases and whose hands are tied by the due process in their countries that severely constrain their ability to meet Chinese demands for the repatriation of fugitives.
Due to the fundamental differences in their political and legal systems, China and Western countries will unlikely establish extradition treaties any time soon. The best solution for China is to formulate a multi-pronged strategy tailored to Western legal systems and norms.
The first prong of this strategy should focus on strengthening the legal merits of the requests for repatriation made by China to foreign governments. Chinese officials should construct a legally robust case, backed by formal criminal indictments, sufficient supportive evidence, and commitments to fair legal proceedings. Professional prosecutors directly involved in these cases, not diplomats, should make the presentations to Western government officials. In the specific case of Ling Wancheng, it is reasonable to blame Beijing’s failure to gain Washington’s cooperation on its unsophisticated approach. But this is not too late. China should first build a strong criminal case against Ling Wancheng, backed by irrefutable evidence. It then should announce an official indictment and issue a warrant for his arrest. Afterwards, Chinese prosecutors and diplomats can present their formal request to the U.S. government. Of course, given the political sensitivity of the Ling case and his potential value as a source of intelligence about China, this may not deliver instant results. Nevertheless, such an approach will be given greater credibility by American officials.
The second prong should attack the “Achilles heels” of Chinese fugitives and improve the odds of their repatriation. It is well known that these fugitives tend to commit three crimes against their host countries that can result in their expulsion and repatriation. For example, they are most likely to have committed immigration fraud and visa violations in order to evade Chinese justice. The Chinese government can help Western governments by providing evidence of such violations (like the use of fake identifications in applying for visas). Another common crime committed by these fugitives is money laundering. In order to transfer their ill-gotten wealth to their safe haven, they typically use a shadowy system of money transfers that unavoidably violate stringent Western laws against money laundering. If China has such evidence, it should not hesitate to provide it to Western governments. Chinese fugitives also routinely commit tax fraud by concealing their income. Many of them have secret foreign bank accounts that they do not declare on their tax returns – a violation that can result in criminal prosecution. Chinese authorities should provide Western governments information that can uncover such illegal acts.
The third prong should focus on depriving the fugitives their legal residency in their havens. Given the lengthy time required to obtain citizenship in Western countries, it is likely that most recent fugitives, including Ling Wancheng, use Chinese passports or have green cards purchased through investor visa programs. To make life difficult for these fugitives and force them to return, China should immediately cancel their passports or pressure small countries (mostly in the Caribbean’s) that have sold them investor passports to revoke them. For those fugitives who may have obtained their foreign green cards through investor visa programs, China should provide evidence of their criminal activities and build a case for revocation on the ground that fraud and criminal acts have enabled them to gain legal residency on foreign soil.
The last prong is to go after the wealth stashed abroad by the fugitives through civil litigation. Typically, these fugitives have harmed commercial entities in China. If these entities can gain legal standing in a foreign jurisdiction, a difficult but not impossible act (Chinese entities with foreign affiliates can do so easily), they can sue these fugitives in courts and ask for damage and penalties. Such legal actions may not deliver quick results, but they can force fugitives on the run to surface and pay huge legal fees to avoid default judgments.
To be sure, this new approach requires enormous amounts of time, preparations, professionalism, and patience. But once such a system is in place, it should be far more effective than the current approach in repatriating fugitives. Even in the difficult case of Ling Wancheng, it is not too late give this novel strategy a try.
