The Defendant Shi Tao’s Application for Appeal on the Verdict of the First Trial

ToThe Hunan Provincial Higher People’s Court

Appellant Shi Tao, male, born July 25, 1968, in Yanchi County, Ningxia Hui Autonomous Region, of Han ethnicity, a university graduate and former reporter for Dangdai Shangbao [Contemporary Business News], resident at Room 102, Block 4, No. 3 Junanli Xiaoqu,Taiyuan City, Shanxi Province, I.D.#310107680725125.

The appellant is dissatisfied with the judgment passed by the Changsha Municipal Intermediate Court and is hereby applying for appeal. The appellant requests that the original judgment be reversed and that he be found not guilty.

Reasons for appeal:

I. The original judgment was incorrect in its facts; the Central Party documents involved in this case were not state secrets, and the appellant did not in fact transmit state secrets abroad. Original judgment: On April 20, 2004, the appellant transmitted an abstract of the important contents of a central Party document recorded in the course of an editorial meeting, namely Central General Office [2004] Document No. 11, "Notice Regarding Current Efforts to Maintain Stability," to an overseas Web site, which constitutes transmitting state secrets abroad."

1) Regarding the facts of the case, the appellant argues:

i. The appellant did not employ any inappropriate means to obtain the basic contents of this document.When Mr.Wang verbally communicated these contents in the

course of an editorial meeting, the staff present were not restricted to mid-ranking officials of department level or above, but were all of the newspaper’s ordinary editorial staff.Witness Peng Zhiguo was at that time only an ordinary editor, and was not promoted to news controller until after the appellant resigned from the newspaper. At the time, the appellant was head of his department, and was in a position to know the scope of the communication, and expressed this to the court. However, the court’s judgment disregarded the appellant’s testimony regarding the range of personnel attending the meeting.

ii. The person communicating the information, Mr.Wang, spoke with a very strong Hunan accent. The appellant, coming from a different province, had to strain to understand what Mr.Wang said, and did not clearly hear him say that this document was top secret. In any case, in a meeting attended by such a wide range of staff, and given that Mr.Wang was in the habit of communicating a variety of "important" and "extremely important" notices on instruction from above, the appellant did not pay particular notice.

iii. The appellant to this day has not seen the actual "top secret document" referred to, nor has the judge, and this does not comply with the legal requirement that evidence must be presented in court. The appellant has reason to doubt the very existence of this so-called "top secret document."

iv. Because the person communicating the information, Mr.Wang, spoke with a very strong Hunan accent, the appellant was only able to record the gist of what he said, and was unable to record the comprehensive contents of the document.

v. It is not true that the person communicating the information, Mr.Wang, instructed the appellant in the presence of others not to take notes. During the meeting, the appellant was sitting to the right of Mr.Wang, and was the chief operational officer of the newspaper; if the appellant had heard an order not to take notes, he would certainly not have continued to do so, albeit in accordance with normal practice. In addition, page 5 of the judgment, referring to "physical evidence," states that "the notes of witnesses Wang and Peng Zhiguo summarize the contents of the aforementioned CGO Document No. 11." Peng Zhiguo, as an ordinary editor,was not prohibited from taking notes, which conflicts with the judgment’s statement that "when Wang noticed Shi Tao taking notes, he made a point of reminding Shi Tao not to take notes."

vi. Dr. Hong Zheseng’s Minzhu Tongxun is an independent publication and is not any kind of "hostile force" or "reactionary Web site;" the judgment’s claims to that effect display an outdated class-struggle mentality. The intention of providing the summary to Minzhu Tongxun was merely to fulfill the journalist’s vocation of providing open access to news; it was not a sinister act of selling intelligence to a "hostile force."

2) Regarding the nature of the document, the appellant argues that the Central Government Office document does not qualify as a state secret under law.

The reasons are:

i. Article 2 of the State Secrets Law stipulates that "State secrets shall be matters that have a vital bearing on state security and national interests and, as specified by legal procedure, are entrusted to a limited number of people for a given period of time."1 The contents of Central General Office Document No. 11, "Notice Regarding Current Efforts to Maintain Stability," includes only policies and regulations regarding stabilization and propaganda efforts. It does not directly involve state security or national interest, nor does it conform with the legal requirement of being limited to only a certain range or

grade of Party member or official. It likewise fails to conform with the stipulation in Article 8 of the State Secrets Law that state secrets relate to major policy decisions on state affairs, the building of national defense or the activities of the armed forces, diplomatic activities, national economic or social development, science and technology, the safeguarding of state security or the investigation of criminal offenses or other matters classified as state secrets by the State Secrets Bureau. In addition, many documents of the Central General Office and General Office of the State Council are issued to the news media for open dissemination to the public, and the contents of Document No. 11, relating to "stabilization efforts," do not appear to contain secrets relating to national defense, scientific intelligence, commercial secrets or statistics on national resources. Rather, they are entirely devoted to public opinion, which are a matter of public knowledge and cannot be considered "secret." To classify such a document as "top secret" is to violate the principles of rule of law, governance for the people and open government, and deprives the public of the right to information.

ii. This document cannot even qualify as a Party secret, because logically speaking, the Party is a closed organization, and Party secrets cannot be disseminated to people who are not government or Party officials. If such information is disseminated to a non-Party member, the act of doing so effectively declassifies that document. The appellant is not a Party member, and is not obligated by the Party to preserve official secrets. If the Party chose to disseminate its document to the appellant, the appellant is not under any obligation to preserve its confidentiality.

iii. By classifying this document as a state secret ex post facto, the State Secrets Bureau violated Article 8 of the State Secrets Law for the purpose of manufacturing evidence on behalf of the Public Security Bureau. The use of manufactured evidence does not conform with the requirement of objective evidence, and therefore cannot be relied on in reaching a judgment. In addition, having concocted this evidence after the fact, without giving public security officials, prosecutors or judges access to the document, how is it possible to expect that the appellant would have known that it was a state secret?

iv. Although the document is purportedly signed by the General Office of the State Council, the contents of the document and the way they were disseminated indicate that it is in fact a Party document, and is not related to government affairs. For that reason, it cannot be regarded as a state secret.

II. The appellant had no objective intent to disseminate state secrets abroad, and therefore in the objective sense did not endanger state security. The appellant disseminated the Central General Office document abroad in order to prevent overseas democracydactivists from encroaching on the borders, which was consistent with the intent of the document. And indeed, following dissemination of the document, there were no cases of democracy activists breaching the borders, which demonstrates

that the appellant did not in fact endanger state security, and that he acted beneficially to the spirit and execution of Party policy. According to criminal law theory, criminal behavior must be harmful to society and have evil intent.The appellant had no objective incentive to endanger state security, nor did his actions objectively result in endangerment of state security. For that reason, his conviction constitutes a perversion of justice.

III. Unlawful investigative procedures render the prosecution’s evidence invalid. Around noon on November 23, 2004, the appellant was suddenly accosted while about 100 meters from his home; a hood was placed over his head, and he was taken away. At the time he was "apprehended," the appellant was not shown or served with any warrant or other legal document. On the afternoon of that same day, the Changsha City Public Security Bureau, together with local officers of the Shanxi Public Security Bureau, unlawfully entered the appellant’s home in Taiyuan without a warrant and carried out an illegal search, after which they unlawfully transported the appellant to Changsha. It was only the next day that the criminal detention papers were processed. According to the Criminal Procedure Law, during the investigative process there are six possible types of detention: summons for interview, summons for detention, criminal detention, release on bail while awaiting trial, residential supervision and formal arrest. As regards the home of the subject of an investigation, the processing office can carry out a search, but only if in possession of a search warrant. Prior to RULE BY LAW "apprehending" the appellant, the Changsha Municipal State Security Bureau did not have any evidence that the appellant had provided state secrets to persons overseas.All that they possessed was a few electronic communications that were insufficient to qualify as evidence. It was only after they unlawfully "apprehended" the appellant and obtained a statement from him, and obtained the appellant’s journal and other documents through an unlawful search on his home, that they were able to establish a string of evidence on which to base their case.

According to the Criminal Procedure Law, the evidence on which a case is based must be lawful, relevant and genuine. It must be lawful in the sense that it must have been obtained through the procedures laid down in law, and evidence obtained through unlawful methods (such as coerced confession and illegal search and seizure), even if it genuine and relevant, cannot be relied on in a court of law. In this case, all of the evidence, from the unlawful investigation onward, was obtained through illegal means; therefore, according to the principles of procedural justice, all of the evidence in this case is unlawful evidence, and is therefore inadmissible.2

IV. Sentencing the appellant to 10 years in prison violates the principle of punishment fitting the crime. If for the sake of argument it is conceded that the appellant did indeed commit the crime of illegally providing state secrets to persons outside of China, the specific circumstances of this case and normal judicial practice would dictate a sentence of less than three years, or even a suspended sentence. The original judgment argued that what the appellant transmitted overseas was a top secret central government document, a serious crime that warranted a sentence of ten years. In fact, the serious circumstances of the case can be judged by the consequences. What consequences worthy of notice resulted from this case? What diplomatic or national defense intelligence was leaked? What technical or economic intelligence was lost? None at all. On what basis was the ten-year sentence passed? There is only one explanation, which is ignorance of the law and a wish to threaten and wreak revenge against independent intellectuals.

In summary, the original judgment pronouncing the appellant guilty of the crime of transmitting state secrets abroad is without factual and legal basis when viewed from the perspective of law and evidence. For that reason, the appellant requests that the appeals court act in accordance with judicial conscience and an attitude of responsibility toward history, and overturn the original judgment.

The appellant, Shi Tao

May 4, 2005