A PRIVATE PRACTICE

BY HAN RUBO (韓儒博)

With demand surging,China’s private detectives are coming out of the legal shadows

隨著市場需求增多，私家偵探服務(wù)也在尋求正規(guī)化道路

He has nearly crashed his car during a high-speed pursuit, and was once held hostage by an angry businessman’s henchman,but Dai Pengjun insists being a private investigator isn’t a dangerous job—unless the clients make it so.

Dai is one of thousands of professionals who work as private detectives on the mainland, although they usually don’t call themselves that. Most prefer to go by titles—marriage investigator, market researcher, business consultant,missing persons expert—that only allude to the real nature of their work.With the law generally averse to all kinds of independent investigators and DIY evidence-gathering,mainland gumshoes are often even more private than their jobs suggest.Dai is among the few willing to put private detection in the public eye, thanks to his interviews and occasional TV slots, which he claims is vital to building trust in his unusual brand.

Dai has a staff of seven, who handle around a dozen cases a month—mostly finding people, advising firms on security, and “marital investigations,” which can include pre-marital background checks and evidence-gathering for the ubiquitous affairs—while leaving Dai time for his frequent media appearances.

While their legal status is precarious, and there have been numerous instances in which investigators have been detained and even jailed, Dai prefers to take a more lawyerly view of his work: “There is no single article that says, ‘If you operate as a private detective, you break the law.’”

The mainland’s private investigator business initially grew out of the chaotic energy of the post-1978 reform era. The rapid emergence of opportunities in finance, real estate,and business placed heavy strain upon the legal system. One of the first PI agencies was established in Shanghai by Duanmu Hongyu, a retired police detective, in 1992, soon followed by others in cities like Beijing and Chengdu.

Trails of broken contracts, swindled investors, and disenfranchised partners ensured these investigators did not lack for work—just ethics,according to the authorities. At the time, most of the evidence they gathered was inadmissible in court cases, and PI firms would often take extra-legal measures, which could include threats, bribery, theft (usually of private data) or force in lieu of legal penalties.

Many police, moreover, were disinclined to welcome rivals in the private sector, who might have their own agenda, or, worse, expose crimes they had ignored or suppressed.

Sherlock Holmes may have been pop culture’s first “consulting detective,” but it’s Hollywood’s noir incarnations, like fictional protagonist Phillip Marlowe, who have established the iconic image of private eyes: the romantic thug in a trench coat, a lonely voyeur who lives by his own code.

Rather than prowling the mean streets, it’s into an unglamorous office that most Chinese PIs must stroll,while hoping not to be tarnished by the legal gray zone they’ve been forced to occupy since 1993, when the Ministry of Public Security issued regulations prohibiting the Industry and Commerce Bureau from registering detective agencies as businesses.

“Only organs of state power can conduct investigations for evidence,”Wang Xudong, a lawyer at the Beijing Dacheng (Hefei) Law Firm tells TWOC, adding that these prohibitions were never made clear, and remain controversial.

While Dai notes civil organizations are “absolutely not allowed to intervene in criminal cases,” China’s Civil Procedure Law places the burden of proof on claimants, meaning lawyers or their clients do often hire firms like Dai’s to help build cases in civil court.

Wang, though, observes that“procedure law doesn’t stipulate a‘right of investigation,’” and dissuades his own clients from hiring PIs. A Supreme People’s Court decision from 2001, allowing privately made audio and video recordings to be admitted as evidence, certainly didn’t hurt PIs’interests (though the ruling cautioned that recordings should not harm the“l(fā)egitimate rights and interests of others, the public, and social mores”).

Chen Tianben, professor of at the People’s Public Security University of China, estimates nearly 23,000 firms employ around 100,000 staffin the detective trade. The majority are retired members of the judiciary,former law enforcement workers, or ex-lawyers. The domestic fallout from romantic disappointments provides the grist of most their work, low-key activities which help keep PIs off the state’s radar.

Bigamy and adultery are two common reasons for divorce. Proving either can ensure a ruling (and hefty pay-out) in favor of the injured party—not to mention the moral high ground.

Official figures from the Ministry of Civil Affairs suggest that China’s divorce rate has quadrupled between 1998 and 2018; around one in four new marriages now end up in court.Meanwhile, the pace of adultery has tripled since 2000, with one in three married men and one in 7.5 women having extramarital affairs, according to research published in 2015 by Renmin University’s Institute of Sexuality and Gender.

Even so, getting a ruling can be tricky, for women especially;since 2018, judges are required to discourage divorce petitions, usually by suggesting trial separations or second chances to preserve “social harmony.” Like many US states,China requires third-party assent for recordings, disallowing any evidence that has been gathered unless both parties are physically present.

Dai’s mentor, Wei Wujun, is a Sichuanese detective who achieved minor celebrity in the late 1990s for his championing of wronged wives,using evidence he collected to secure settlements after their husbands abandoned them.

Dai himself was a high school dropout who’d tried numerous roles as a tailor, chef, and street vendor,before catching Wei on TV while stuck at home during the SARS epidemic in 2003. “I got very excited,”Dai recalls. “I thought being a private detective isn’t something you need an advanced degree for, as long as you’re willing to work hard.”

Though Dai couldn’t afford to pay,Wei took him on as a student after Dai helped him stake out a target in a high rise in Jiangsu, and he hasn’t looked back after 18 years.Dai charged just 1,800 RMB over seven days for his first independent investigation, and says his results were correspondingly poor.

Now, he quotes his clients five to six figures, and justifies the cost with his skill and experience. “Private detectives are luxury items, not necessities, so they don’t come cheap.”

Despite nearly two decades in the trade, Dai says he has never experienced anything more than the lightest brush with the law—an invitation to “have tea together”in his hometown with security personnel, who asked him questions about his job, took notes, and paid for the meal. “Their meaning was pretty simple, just to tell you, ‘I know about you.’”

In 2013, however, police detained 1,152 investigators in 21 cities and provinces, later charging over 200 of them with buying and selling data.Dai, a surprisingly strong advocate for privacy, believes that anyone caught misusing others’ data for money, such as a detective in Jiangsu jailed for three years in 2019 for privacy infringement, besmirches the reputation of his trade and deserves punishment.

“Don’t sell information” is the first rule of Dai’s detective club, followed by avoiding conflicts of interest,“staying undercover,” “don’t lose sight of the target and don’t give yourself away.”

He says his investigators never record a target inside a private building, only in streets, hotel hallways, and other public areas. The firm claims it destroys all files when a case is over, and if Dai sees a client in public, he’ll avoid making eye contact unless they acknowledge him first.

Technology has been a boon to the business, with social apps providing users a range of convenient means to break their marital vows, while providing investigators an array of digital evidence, along with the equipment to gather it. “Social media has contributed to the distrust among people looking for partners,”the state-run China Daily stated in an article on PIs in 2013, and another feature from 2017.

But apps like WeChat, TanTan,and Momo, which facilitate even the most casual of acquaintanceships,are more likely to be mere catalysts in a society in which materialism has dampened ideology, and spirituality is widely suppressed; and where women are increasingly less willing to endure meddling relatives, slovenly husbands, and financial pressures simply for the sake of an unhappy marriage.

Despite the money to be made policing China’s upscale marriage market, the most elite investigative firms focus on a more dangerous game. With direct foreign investment of around 890 billion USD injected into the Chinese economy between 2003 and 2013 alone, according to the Wall Street Journal, there is constant need for oversight among multinationals operating in the PRC,along with a bottomless well of skulduggery to uncover.

Draped in the corporate jargon of the consultancy trade, these firms offer “risk-mitigation” and“anti-fraud solutions,” promising prospective clients a staff of accountants to analyse contracts and double-check figures for evidence of double-dealing.

The real work, meanwhile, falls to field agents, who go about their“due diligence” with the finesse of Watergate burglars: bribing secretaries, sneaking away files, and frequently employing foreigners to pose as investors, complete with hidden cameras, to tour suspect factories; or locals with the knowhow and savvy to stakeout operations believed to be faking their output.

Leading firms profess to maintain strict compliance with regulations which forbid the use of wiretaps and bugs, or laws against data theft and trespassing (most agencies affirm they can only follow targets on public property). The Supreme People’s Court’s provisions on evidence in civil litigation notes that evidence is valid “as long as it was obtained by legal means, using legal technology,”explains Wang, the lawyer, adding that “the judge decides how much weight to give this evidence.”

But eavesdropping, searching locations, and following targets on the move still carries a risk that rules might get broken on the fly, however inadvertently.

What clients do with their dossiers is another potential issue. Having a mistress or taking bribes would be a prime example of “risk,” said an analyst familiar with the process, and potentially explosive if there is proof.

This might be taken in good faith—as a reason not to make a deal, or add a stipulation to a contract—but is just as likely to be used as leverage,especially if the client decided to extort their potential partners. This would then expose investigators to any potential fallout. Indeed, the analyst said, investigators would sometimes complain about being threatened by their own sources,or require clients to pay additional funds to pay off threats from whistleblowers.

Multinational and overseas NGOs often rely on mainland consultancy services to provide on-the-ground evidence for reports on fraudulent listings or allegations of human rights abuses. Kun “Dino” Huang, a 43-year-old Chinese Canadian, spent two years in jail after being detained in 2011 and then arrested in 2013 for making inquiries at the behest of a hedge fund into mines in Luoyang owned by Canada-based Silvercorp Metals.

British national Peter Humphrey and his Chinese-born American wife Yu Yingzeng, who together ran ChinaWhys, a consultancy specializing in corporate inquiries,encountered similar issues when they were accused of “illegally obtaining”evidence on Chinese citizens for GlaxoSmithKline, in a headlinegrabbing case involving anonymous emails, a sex tape starring a senior Glaxo executive, and hundreds of millions in bribes. Humphrey was forced to confess in a pretrial recording on state television,sentenced to two years in prison, and fined 150,000 RMB.

Exceptional as they seem, these cases demonstrate the kind of obstacles that investigators face due to lack of recognition and legal guidance in the profession. They also highlight the paradox of a system that proclaims corruption as its greatest threat, while treating individuals who vow to fight it with intense suspicion.Yet, far from undermining public security, private detectives can often provide a valuable auxiliary service for overworked police.

Li Yuan, who runs an independent investigation company in Changchun,capital of the northeastern Jilin province, told China Daily most of his clients are families looking for lost relatives. These are often parents of children who’ve gone missing but have not met the threshold for a police investigation.

Li cited a client who’d lost touch with his son—it turned out the boy was being held against his will by one of the many gangs that operate illegal pyramid schemes. Rescuing them can be an arduous and risky process,particularly as many have either been indoctrinated or surrounded by zealous staff, and police are rarely equipped to shoulder the work,leaving it to untrained activists or PIs like Li.

In this case, Li managed to use an old phone number to track the boy down, and a delivery worker helped confirm his location. After reporting the information to police, Li collected 30,000 RMB (4,800 USD) from his client.

“There is definitely demand,” Wang says, and the lawyer acknowledges that certain organs “have not fully been able to fulfill their mission to serve the people and solve the people’s problems. Under these circumstances, private investigation will flourish.”

Wang expects eventual regulation to give some legal standing to private detectives, and draw the line between specialists and the “underground rogue organizations, with zero professionalism” that he says are prevalent. This would not only help his work as a lawyer, but establish some industrial standards for the mushrooming PI field.

Dai isn’t as optimistic, and thinks the “industry is strewn with thorns.”In his view, having professional values and methods provides all the legitimacy his firm needs for now.“Even in a ‘gray’ profession, you need to do the job in a way that’s above board…h(huán)ow we conduct ourselves sets the example for private detectives in China.” – ADDITIONAL

REPORTING BY YANG TINGTING (楊婷婷)

AND HATTY LIU