China: Rejected Self Defense Plea A Green Light For Deadly Demolitions

Sina blogger Sheng Dalin, assistant to the editor in chief of Henan's Orient Today, updates us on a story which began last year in Hongshan District in Wuhan, Hubei province.

Tong Yihong's home was the last one standing in his village after neighbors in the area, slated for development, took the compensation package and relocated. As lot after lot of the surrounding land was leveled, the Tongs built a barbed wire fence around their property and waited for a better offer.

On November 18, 2010, a group showed up with a bulldozer and moved within throwing range of Tong's building. Police say that bricks Tong was throwing down from his roof put someone in the hospital; Tong says the group tore through his fence and began to roll in, that no one was injured and that, acting in self defense, he was only aiming for the bulldozer.

Tong Yihong, November 2010

Tong Yihong, November 2010

After local police took a statement from a skeptical Tong on November 19, telling him he faced charges of public disorder, he flew the next day to Beijing to ‘turn himself in’ and try pleading his case there. By November 21, Tong was in Hongshan police custody and on a train back to Wuhan, where he faced new charges of inflicting grievous bodily harm.

Last Wednesday, Tong was found guilty of the charge in a closed trial at an intermediate people's court in Hongshan district. According to media reports over the weekend which quote the official verdict, Tong was sentenced to four years in prison and ordered to pay RMB 190,000 in compensation to the alleged victim, surnamed Luo.

Sheng provides further background to the case:


On November 18 last year, Tong Yihong was standing guard on the roof of his home when he saw a group of people with machinery “rushing toward his house”. Worried that they'd come to tear his house down with him still inside, he began throwing bricks off the roof, hitting and injuring someone. The court found that the individuals associated with the company were fulfilling the terms of their contract to level the ground at the site, and had not come to tear the house down. Also, the construction machinery did not come in contact with Tong's house, thus Tong's actions did not constitute self defense. Tong's lawyer, however, said the area fully surrounding Tong's house had already been razed, thus there was no land in need of being leveled. A video clip supplied by Tong showed that the barbed wire fence enclosing his house on all four sides had been ripped open that day. A police investigation confirmed that the machinery brought in by the workers also that day was a type of crushing machine known as “the woodpecker”. (From the May 20 edition of Beijing News)

Tong's attempt to turn himself in outside of the jurisdiction of the arresting police, in the hope of ensuring due process, received sustained media and public interest at the time. The fate of Tong's property, however, remains unclear. Tong has reportedly already filed an appeal.

The verdict comes at the same time that China's State Council makes yet another call for an end to the practice of forced demolition of housing and land expropriation and, Sheng notes, putting the charges against Tong aside for a moment, the court took neither this nor public opinion which see Tong's actions as self defense into consideration, in a decision which he suspects might indirectly encourage developers to continue such behavior:


Determining whether or not the demolition crew's actions constitute forced demolition [in China, ‘forced demolition’ is generally understood to mean: a demolition carried out while property owners are still inside or on top of the housing unit or building and refuse to vacate] or whether or not Tong Yihong was acting in self defense by throwing down bricks depends largely on three facts raised by the defense lawyer: 1. The land surrounding the Tong home on four sides had already been leveled—if this is true, then it's simply a lie that the workers had come to level any land; 2. The machinery brought in by the crew was a crushing machines—if true, the claim that they had come to level dirt is even less credible, and their behavior ought to be deemed “forced demolition”, as crushing machines are tools used in demolition, not in leveling dirt; 3. The barbed wire fence surrounding the Tong home on all four sides was ripped open by the crew – if this is true, then we're talking breaking and entering, so even if the intention wasn't to demolish the home, Tong and his family still would have had the right to defend themselves.


Verifying the above three details shouldn't be difficult. There are likely many eyewitnesses who can state as to whether or not the land surrounding the Tong home had already been razed; if the prosecution have no evidence which proves that the video supplied by Tong had been fabricated, then the defendant's statements should be held as reliable. Further, it was the police who confirmed that it was a “woodpecker” tool which was brought in, and did the court have sufficient reason to toss out the police statement?

“机械没有接触到童家房屋”显然是法院认为不构成正当防卫的主要理由。可问题是:等机械接触到房屋的时候,不就晚了吗?《刑法》第二十条规定:“为了使国家公共利益、本人或者他人的人身、财产和其他权利免受正在进行的不法侵害,而采取的制止不法侵害行为,对不法侵害人造成损害的,属于正当防卫,不负刑事责任。 ”很显然,童贻鸿扔砖头就是为了制止不法侵害行为,而自那群人开着破碎机扯开铁丝网围墙的时候起,不法侵害就已经开始了。

The court's main reason for finding the self defense claim inadmissible seems to be that “the construction machinery did not come in contact with Tong's house”. However, if Tong had waited until the machinery came in contact with his house, wouldn't it have then been too late? According to Article 20 of the Criminal Law of The People's Republic of China, “Where a person conducts an act to stop an unlawful infringement in order to avert an immediate and unlawful infringement of the state's interest or of the public interest or of his own or another person's rights of the person, or property rights, or other rights, resulting in harm to the unlawful infringer, such an act shall be justifiable defence, and criminal responsibility shall not be borne for such an act.” Obviously, Tong Yihong was throwing down bricks in an attempt to avert an act of unlawful infringement, unlawful infringement which began the minute that group of workers started the crusher machine and ripped a hole in the barbed wire fence.



Recently, a succession of self-immolation and other horrible incidents have taken place as a result of forced demolitions. In response to this, the State Council issued a notice on the 13th, announcing its decision to immediately launch an investigation into the legality of land expropriations and housing demolitions being carried out across the country, as well as to strengthen supervision and crack down on illegal demolition projects in an attempt to ensure people's legal interests are being uphold. The court's ruling against Tong Yihong, however, clearly encourages illegal demolitions.

Of course, the State Council notice has no legally binding power over courts, and judges in any event should measure facts against the letter of the law. If confidence is to be had in this case, the court should at least give a direct response to the three facts put forth by the defense lawyer.

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