On December 7, Canada time, Meng Wanzhou returned to court for another hearing. Earlier, it was reported that the U.S. Department of Justice was discussing with Meng Wanzhou the possibility of a plea deal.
In exchange for a guilty plea, she would be returned to China in exchange for a partial admission of wrongdoing.
A plea agreement raises many questions. For example, why did Meng Wanzhou reach an agreement with the U.S. Department of Justice when she faced the Canadian prosecution in a Canadian courtroom? For example, if Meng Wanzhou admits to some of the charges, what are the implications for Huawei? And if Meng Wanzhou rejects the agreement, how will the case end?
BBC Chinese interviewed legal experts to answer each of these questions.
Legally speaking, what is a plea agreement?
“To people in civil law countries (such as China), plea agreements are difficult to understand; if you are guilty, you should be punished, if you are innocent, you should be released, and there is no bargaining.” City University of Hong Kong Law School Professor Wang Jiangyu introduced, in common law countries, this practice is particularly common, especially in the United States.
The U.S. judicial system handles a large number of cases each year, and court trials are extremely lengthy and costly. If every case were to go to trial, the time, manpower, and financial resources would be difficult to support, so plea agreements provide a mechanism by which the defendant admits guilt in exchange for a lighter punishment.
“You may see the prosecution say to the defendant, you might have been sentenced to ten years, but now you’re only going to serve eight years without going to trial, and the defendant’s lawyer may bargain and ask if three years is okay. The prosecution thinks about it and says, no, three years, five years. The two sides come to an agreement, the defendant gets a reduced sentence, and the legal system as a whole saves money.”
Meng Wanzhou faced one such option – the U.S. Justice Department offered more attractive terms, such as immediate return to China without having to serve time in prison, in exchange for Meng Wanzhou’s admission to certain charges, bringing the two-year case to a close.
In 2004, the U.S. Department of Justice began using deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs). According to current disclosures, the U.S. Department of Justice is offering Meng Wanzhou a DPA, or Deferred Prosecution Agreement.
A deferred prosecution agreement is not a waiver of surveillance, which means that there is still a possibility that the person may be prosecuted in the same case in the future. And the agreement imposes conditions, such as requiring the defendant to cooperate if he or she is prosecuted again, otherwise the defendant will be considered guilty of a new offense, or requiring the defendant to refrain from certain types of activities.
Why negotiate an agreement with the U.S. Department of Justice? What is Canada’s role?
Meng Wanzhou was arrested by the RCMP at a Canadian airport and appeared in a Canadian courtroom to face the Canadian prosecution as well. Why was it the U.S. Department of Justice that tried to reach an agreement with Meng Wanzhou?
Wang explained that the Canadian court is not hearing the case of Meng Wanzhou itself, but whether Meng Wanzhou is in compliance with the U.S.-Canada extradition agreement, and the final decision is only to extradite or not.
“If Meng Wanzhou and the U.S. Department of Justice reach a plea agreement, then the latter will withdraw its extradition request, and the Canadian court will not need to continue the trial and will release her immediately.”
It is worth noting that Canada’s relations with China have deteriorated dramatically because of the Meng Wanzhou case. Two Canadian citizens, Michael Kovrig and Michael Spavor, are currently in Beijing’s custody.
Canada’s role is made even more awkward by the U.S. attempt to handle the case out of court.
Canada has remained tight-lipped about a potential agreement between the two sides, with Prime Minister Trudeau declining comment last Friday, saying his first priority was to get the two Canadian citizens detained in China back home.
However, former Canadian ambassador to China Guy Saint-Jacques said, “Let’s hope that the discussions are serious and a solution can be found, otherwise I think we’re going to be in a mess for a long time.”
The CBC also quoted Vancouver lawyer Richard Kurland as saying that the news could help U.S. and Canadian politicians test the waters of public opinion, and that if there is overwhelming support for ending the case, then both governments would have more incentive to reach an agreement to get out of it.
But for Canada, even a plea deal and then release may not necessarily repair relations with China. Wang Jiangyu believes that the U.S. and Meng Wanzhou reached a deal, and Canada must release her. The arrest is seen as politically offensive by China, but the release will not be seen as a favorable move by China, but only a natural consequence of the U.S. judicial process.
If a plea deal is reached, what are the implications for Huawei?
The news that the U.S. and Meng Wanzhou are negotiating a plea deal was not “welcomed” by the Chinese authorities, but alluded to as a “trap”.
Chinese foreign ministry spokeswoman Hua Chunying said she saw the report as a mirror image of the plot in the book “The American Trap” by a French Alstom executive.
In 2013, Alstom executive Frédéric Pierucci was arrested in New York by the U.S. Federal Bureau of Investigation (FBI) and charged with commercial bribery. Since then, several Alstom executives have entered into plea agreements with the U.S., and their confessions were used as evidence to convict Alstom to a fine of $772 million. At the same time, Alstom’s power business was acquired by U.S. rival General Electric.
If Meng Wanzhou reaches a plea deal, will it implicate Huawei?
Commentator I.W. Deng previously told the BBC that if Meng Wanzhou pleads guilty, the substantive effect the U.S. is seeking is not diminished, as it would give other Western countries even more reason to marginalize Huawei.
“There are possibilities, and it mainly depends on the terms of the plea agreement.” Wang Jiang Yu said, if it is just an admission that there was something incomplete about the information provided to HSBC in the first place, that may not affect Huawei; but if Meng Wanzhou is asked to provide new evidence that could restrict Huawei’s actions around the world, that is another matter.
Reports so far suggest that Meng Wanzhou is not very enthusiastic about entering into a plea deal with the United States, either because the terms of the agreement would further affect Huawei, or because Meng and her lawyers are confident that a Canadian court will deny the extradition request.
Why is the U.S. offering a plea deal now?
The U.S. considers Huawei a threat to U.S. national security, which Huawei has denied.
“In response to this issue, we can only make reasonable speculations based on the general environment.” Wang Jiangyu said that this is a highly politicized case, Trump has repeatedly said that the Meng case can provide leverage for China-US trade negotiations, and relevant tweets have even become evidence that Meng Wanzhou’s lawyers prove that the case is politically motivated. The political case needs political interest and political will behind it.
But after the U.S. election, the White House will change its owner on January 20 next year. In Wang Jiangyu’s view, there are two reasons why the new President Biden will not push the Meng Wanzhou case: first, as a traditional liberal politician, he thinks that international competition in this way is too low and not in line with his style of doing things; second, even if he pushes the Meng case forward and achieves results, he will be credited with Trump’s success.
Zheng Anguang, vice president of the Institute of International Relations at Nanjing University, also expressed similar views to the media. He argued that the Meng Wanzhou case is a political matter and that Biden may consider dropping the charges against Meng when he comes to power.
As a result, the current Department of Justice under the Trump administration has an incentive to learn more about the case with just over a month left.
According to the latest court transcript from December 7, RCMP Sergeant Ross Lundie at Vancouver Airport testified, “I am not, by any means, providing information or taking action on behalf of the FBI. I was working in a Royal Canadian Mounted Police (RCMP) capacity to assist the FBI, and in my capacity, I would have been in a very uncomfortable position.”
“And the Canadian prosecution, representing the U.S. side, is getting weaker and weaker in court, with no strong evidence other than a PowerPoint of Meng Wanzhou and HSBC, while Meng’s lawyers are pursuing the politics of the case and the abuse of Canadian police procedures.” Wang Jiangyu believes that the case has dragged on into the Biden era, making Canada’s position even more awkward, and the likely outcome is that the Canadian court sees the political nature of the case and rejects the U.S. extradition request.
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