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Dispute Resolution

Collective Guilt?

By Paul Firmin

An article in the South China Morning Post (published in their This Week In Asia supplement on 19 September 2020) caught more than just my attention recently. In 2016, a 12-month baby was killed in Suining City located in China's south-western Sichuan province while out with her mother being pushed in a pushchair. She was hit by a palm-sized metal ball – the kind used for hand exercises – dropped from a nearby apartment building. It killed her.

An investigation resulted, but failed to find the culprit. Unsurprisingly, no one would admit responsibility. Nevertheless, the family sued every household in the apartment building from which the metal ball could have been dropped or fallen from. The case eventually came to trial in the Chuanshan local district court which ruled that all households in the eight-story apartment building shared culpability and ordered them to pay damages jointly. 

Under Article 87 of the Liability Law, the presumption of guilt applied to disputes over liability arising from unidentified thrown or falling objects. The court found that unless the owner of the apartments in the building could prove that they were not at fault, they were presumed to be liable. 

Although only one person could have committed the offence, the judge said the law should protect the weak and should balance the interests of all parties, and this way achieve the purpose of compensating the victims and serve as a warning to the public. Each apartment owner in the building was fined 3,000 Yuan – a small price to pay for the actual culprit who faced a fine of hundreds of thousands of Yuan and up to a year in prison. Small wonder the other innocent apartment owners felt aggrieved.

The case received widespread publicity and comment from many Chinese Internet users. Whilst no one would deny that the family of the baby deserved compensation, it was felt to be patently unfair for innocent people to be held responsible and punished. Many blamed the police for failing to do their job properly – did they fingerprint the metal ball, did they search every apartment to look for the matching metal ball (they usually come in pairs), did they target the elderly who are believed to be particularly fond of using these type of balls as muscle relaxants, calm nerves, improve sleep and lower blood pressure? It was called second-rate justice by some and a cop-out by others.

To those in the West, the idea of punishing innocent people simply to ensure that the guilty are not immune from punishment, is an anathema. It brings to mind the kind of reprisals taken by the Nazis during the Second World War who would think nothing of executing an entire village just to ensure that the actual perpetrators of the murder of a German soldier did not get away scot free.  

But is it really so wrong and can it really be said to compare with heinous Nazi tactics? It is in the public interest that those who perpetrate crimes be held responsible for them. It is in the public interest that victims of crime should receive compensation. Perhaps judgment such as this will make building managers improve safety measures and exercise greater caution. 

After all, what is so wrong with a presumption of guilt in these circumstances. How many of those who were innocent attempted to prove their innocence? There must have been many occupiers who were out of their apartments or away at the time. There must have been many who had alibis and witnesses who could have testified to their never having owned or used such exercise balls, or never having seen such exercise balls in their apartment.

And from a legal perspective, presumptions of wrongdoing are often adopted in Hong Kong. The offence of misfeasance in public office is almost always proved against government civil servants simply by showing that they have too much money in their bank accounts than they could possibly have earned – the inference or presumption being that they have received bribes. In the United Kingdom, in any proceedings relating to the proceeds of crime, there is a presumption against the offender that the money or property in question is tainted unless the contrary is proved by the offender. 

These presumptions are for the public good. They benefit us all who suffer wrongdoing, whether as a society as a whole or as an individual. They benefit not just the parents of a 12-month-old baby whose lives will never be the same again, but us all.   

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