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Hu's trial a clash of diplomacy and law

Hu's trial a clash of diplomacy and law

The outcome of Stern Hu's trial raises significant questions regarding the accountability of China's legal system and Australia-China consular agreements, say law academics from the Australian…

The outcome of Stern Hu's trial raises significant questions regarding the accountability of China's legal system and Australia-China consular agreements, say law academics from the Australian National University (ANU).

In a verdict handed down on Monday, former Rio Tinto executive Hu was sentenced, in the Shanghai No 1 Peoples' Intermediate Court, to seven years prison for bribery and five years prison for the theft of commercial secrets. The combined sentence is 10 years.

Speaking to Lawyers Weekly, Dr Ann Kent of the ANU College of Law said she was very concerned about the process and outcome of the trial.

"China is acting like a bully-boy at the moment," she said.

"There had been an expectation that the Chinese legal system was becoming more transparent and accountable, however on the evidence to date this trial has not met these expectations."

Kent said she was particularly concerned by the veil of secrecy adopted by China in relation to the trial, which is at odds with Australian and international expectations.

"Outstanding issues remain as to the conduct of the trial, including the lack of detailed information on the nature of the charges, the lack of transparency about the material evidence, the failure to reveal the reasons behind the apparent guilty pleas, and the lack of cross-examination of witnesses."

Kent also highlighted the Australian Government's lack of resolve in demanding full access to Hu's trial, which some commentators say suggests either a lack of political might or political will.

"The Australian Government has been sending subliminal messages to China that no matter what happens in the trial, it will be business as usual," she said.

Professor Don Rothwell, also of ANU's College of Law, said while the guilty verdict did not come as a surprise, the severity of the sentence does not necessarily fit with anticipated outcomes.

"Within Chinese law, once an accused person makes certain admissions, it is the custom for the court to show leniency towards the accused. The seven year sentence on the bribery charge doesn't seem to reflect a great degree of leniency," he said.

Rothwell pointed out that Australia's failure to insist on full access to the trial, despite its right to do so under the 1999 Australia China Consular Relations Agreement, was likely the result of diplomatic concerns.

"I suspect that ultimately the view may have been taken that, given China was adopting a different interpretation [of the agreement] - albeit one that was completely nonsensical - for diplomatic reasons, it wasn't worth pursuing," he said.

Hu now faces 10 years in prison, with his chances of launching a successful appeal within the Chinese legal system being less than one per cent. No other appeal options are available to him, and the Australian Government has given no indication that it plans to pursue the matter further.

However, according to Rothwell, Hu will have the right to seek transfer to an Australian prison once a prisoner transfer agreement - which according to recent comments by the foreign minister is in the process of being ratified - is finalised.

- Claire Chaffey

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