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ATM thief wants compensation

By Li Yingqing and Guo Anfei (China Daily)
Updated: 2010-01-19 07:49

When He Peng set foot in Tongle Square of Luliang county, Yunnan province, at 2 am on Saturday, the 30-year-old felt like a stranger in his hometown.

He was sentenced to life imprisonment in 2002 after withdrawing nearly 430,000 yuan ($63,000) from his bank's ATMs, which gave him money that was mistakenly put into his account by a bank clerk.

He was set free at midnight on Saturday and given a second shot at life after Xu Ting, a young man in Guangzhou, capital of Guangdong province, who committed a similar crime, had his life sentence commuted to five years in 2008. In the aftermath, media coverage raised questions over the fairness of the judicial system.

His lawyer also plans to seek State compensation for his incarceration.

A freshman at Yunnan's provincial police academy in 2002, He Peng discovered 1 million yuan in his account at the Agriculture Bank of China at the ATM on March 2, 2001.

After his first withdrawal attempt, He found the money was real and proceeded to draw several thousand yuan more, "thinking maybe some relatives had deposited the money for me", he was quoted in a Beijing News report as saying.

The second day, he drew more from ATMs all over the provincial capital of Kunming. He took a total of 429,700 yuan. He then asked his mother to help declare the loss of his bank card.

He was arrested on March 5, 2001, and jailed for stealing the money on July 12 that year.

The man's plea of innocence was subsequently denied and the Yunnan Higher People's Court upheld the sentence.

Appeals filed

Many lawyers who offered to help He and his family members said they tried various means to file appeals for him.

"We have spent almost all the savings of our family, more than 300,000 yuan, for our son's case," said He's mother Meng Xiaoyue.

"We've been to Beijing 10 more times and we had to go to the city or the provincial capital almost three times a month."

He's family filed a third and last appeal to the higher court in July last year and on Nov 18 the court made the order to ascertain the facts of He's first trial and changed his sentence to eight-and-a-half years in prison.

"Thanks to those lawyers, law experts, journalists and the friends and relatives, my son's fate changed," He Jiangui, the man's father, said at a banquet on Saturday to welcome He home and thank supporters.

"He (Peng) was imprisoned while he was only a student. Now he's a 30 year-old man. What I am concerned about most is his lack of social experience. I wish he could marry a good girl and live a peaceful and normal life," his father said.

Yao Yongan, He's lawyer, maintains that He is innocent. He claims that it was a malfunction of the ATM machine that led to the case of Xu Ting in Guangzhou. However, He Peng's case was caused by the bank's mistake. He argues that the bank mistakenly deposited 1 million yuan into He's account, and that led to the consequences.

Now, Yao said he would enter a plea of not guilty for He's crime. If he succeeds, He would apply for State compensation.

Zhu Wei, a lawyer and PhD candidate of the law school of the Beijing-based Renmin University of China, who had hosted a series of seminars on He Peng's case, suggested that this case is quite different from the case of Xu Ting.

Xu's case is one of larceny, while He's case leans toward a misappropriation offense. Under civil law, He's case is one of illegitimate gains caused by bank's fault. As such, the essence of He's case is said to be milder than Xu's.

In an interview with the Kunming-based Metro Times, He Peng said he did wrong but that he is not guilty of the crime he was charged with.

"I need to think about filing the appeal," He said, adding that he should re-enter society as soon as possible and support his debt-ridden family.

The Xu Ting case

Xu Ting, a 25-year-old native of Shanxi province, worked in Guangzhou, capital of Guangdong province, and withdrew 175,000 yuan through 171 ATM transactions in 2006 from his bank card that had only 170 yuan. Xu knew the machine was malfunctioning that day.

Xu was sentenced to life imprisonment in the trial at the Guangzhou Intermediate People's Court on Nov 29, 2007.

The case was extensively reported by the Guangzhou media and caused heated debate among legal circles.

It later became an issue at the National People's Congress and Chinese People's Political Consultative Conference meetings.

In March 31, 2008, the Guangzhou intermediate court changed Xu's life sentence to a fixed-term imprisonment of five years.