Perspective | Case-Based Explanation: Procedures for Reversing Administrative Penalty Decisions

1. It’s a recreational activity among friends.

Around 3:00 p.m. on April 16, 2025, Jia and several close friends were playing mahjong in the second-floor office of Zhen in a certain district. This activity was purely for entertainment purposes.

2. There is no evidence to prove that their mahjong playing involved any form of transaction.

Jia and the others played mahjong without engaging in any monetary transactions—there were neither WeChat transfers nor Alipay transfers among them, nor did they conduct any cash transactions. In fact, the purpose of these four friends playing mahjong was simply to gather together for leisure and entertainment, rather than to engage in gambling for profit. Given the absence of payment records or wagered funds, this purely recreational activity should not be classified as gambling.

The chips seized by the defendant’s public security authorities are not proof of any actual transactions; they cannot substantiate the true extent of profits or serve as a vehicle for obtaining benefits. Rather, they are merely tools for entertainment, reflecting the outcomes of wins and losses and enabling players to experience a sense of victory whenever they see them.

The recorded statements in the interrogation transcript contain portions that are not truthful, and the defendant, Jia, was questioned while illegally using restraints. Moreover, no simultaneous audio-video recording was provided to corroborate the authenticity of the transcript’s contents. The defendant public security organ argues that the simultaneous audio-video recording is internal documentation rather than evidence, which further highlights the procedural problems involved.

1. The record-keeping process violated the legally prescribed procedures.

The multiple interrogation records of Jia and Zhen, prepared by the defendant public security organ, are almost identical—particularly the questions and answers regarding the rules of mahjong, which match word for word. However, in their objections and statements during the trial, Zhen, Jia, and others all indicated that they did not acknowledge any gambling activity during the interrogations, questioned the authenticity of the interrogation records, and requested that the public security organ provide simultaneous audio and video recordings of the interrogations. Moreover, they pointed out that the multiple records were not compiled in one go but rather were pieced together intermittently.

According to the records of the interrogation transcripts, during the initial interrogation of Jia on April 16, 2025, his registered domicile and current residential address were not inquired about. However, the public security authorities fabricated a non-existent address—the specific room number in a certain unit of a certain building on a certain road in a certain district. This further demonstrates that, when preparing the interrogation transcripts, the public security authorities failed to genuinely listen to the statements of the parties involved, thereby confirming that the interrogation transcripts violated the provision in Article 73 of the “Regulations on Procedures for Handling Administrative Cases by Public Security Organs,” which stipulates that the first inquiry should include an inquiry into the respondent’s residential address.

2. Rest and meals were not provided in accordance with the law.

The interrogation record dated April 29, 2025, shows that Jia’s rest and meals were not adequately ensured, leading to his fainting. This situation violates the provisions of Article 71 of the “Regulations on Procedures for Handling Administrative Cases by Public Security Organs.”

3. The interrogation record does not include the identity information of the police officer, nor does it specify the procedure for presenting relevant law enforcement credentials.

4. The record-keeping process was not accurately documented, and the parties involved were not allowed to provide supplementary information.

Jia and Zhen testified in court that the record was prepared by the police officer himself, who asked and answered questions on his own, recording the officer’s questions as Jia’s answers. In the absence of simultaneous audio and video recordings to corroborate the record, it cannot be used as a basis for reaching a verdict. According to Article 84 of the “Law of the People’s Republic of China on Administrative Punishment for Public Security (Revised 2012),” the interrogation record shall be presented to the person being questioned for verification; if the person being questioned is unable to read, the record shall be read aloud to him or her. If the record contains omissions or errors, the person being questioned has the right to supplement or correct it. After confirming that the record is accurate, the person being questioned must sign or affix a seal to it. During the trial, Jia stated that the content of the record made by the defendant public security organ during the interrogation seriously deviated from his actual statements, and he was not allowed to make any supplements or corrections.

Article 39 of the Administrative Penalty Law of the People’s Republic of China clearly stipulates that “information regarding the authority responsible for administering administrative penalties, the basis for initiating a case, the procedures for implementation, and channels for redress shall be made publicly available.” Furthermore, before issuing a penalty decision, administrative agencies must thoroughly collect evidence and effectively guarantee the parties’ right to review the case files.

Given the defendant public security organ’s previous improper practices—such as taking evidence out of context, selective enforcement, and overreach in law enforcement—it is evident that, when issuing the penalty decision at issue, the defendant public security organ not only failed to complete the evidence-gathering process but also deliberately selected and distorted evidence. This constitutes a case of “penalizing first, gathering evidence later,” seriously violating the statutory procedures.

Article 44 of the Administrative Penalty Law of the People's Republic of China clearly stipulates: “Before making a penalty decision, the administrative authority shall inform the party concerned of the content, facts, reasons, and legal basis for the proposed administrative penalty, and shall also inform the party concerned of its rights under the law to make statements, present defenses, and request a hearing.”

In this case, prior to issuing the penalty decision at issue, the defendant public security authority neither served Jia with the key evidence nor informed him in writing of the “specific facts underlying the penalty” or the “specific legal provisions applied.” Moreover, the defendant public security authority had previously evaded responsibility and refused to allow the plaintiff to offer an explanation. As a result, Jia was effectively deprived of his right to make a statement and present a defense, thereby violating the principle of procedural justice.

During multiple summonses, the defendant—the public security authority—asked Zhen to admit that he had engaged in gambling and demanded that Zhen sign a penalty decision document he presented, which imposed a three-day detention without a fine. However, Zhen neither acknowledged having engaged in gambling nor admitted the alleged facts of gambling. Consequently, the public security authority reissued a new administrative penalty decision, changing the punishment to a fine of 1,000 yuan and ten days of detention.

Zhen and others strongly requested that the public security authorities provide the corresponding simultaneous audio and video recordings. However, the public security authorities argued that such simultaneous audio and video recordings were not evidence in this case but rather internal procedural requirements—classified as internal documents—and thus refused to provide them.

During the trial, Zhen and Jia stated that they had not engaged in gambling activities. They requested the court to obtain video footage or order the relevant parties to submit relevant materials, and expressed their confidence that the court would render a fair judgment.

According to Article 33 of the Administrative Penalty Law of the People’s Republic of China, “If a party can provide sufficient evidence to prove that it was not subjectively at fault, no administrative penalty shall be imposed; and if the violation is a first-time offense with minor harmful consequences and the party promptly rectifies the situation, an administrative penalty may also be waived.” In this case, Jia neither exhibited any subjective fault nor caused any harmful consequences, and has no prior adverse record. Therefore, the case does not meet the statutory conditions for imposing a penalty, and the maximum penalty imposed in this case is clearly unreasonable.

Article 4 of the Administrative Penalty Law of the People’s Republic of China stipulates: “The establishment and implementation of administrative penalties must be based on facts and commensurate with the facts, nature, circumstances, and degree of social harm caused by the illegal act.” In this case, Jia and others have committed no illegal acts and have caused no harmful consequences whatsoever. Nevertheless, the defendant public security authority directly imposed a penalty of “a fine of 1,000 yuan” on them—a penalty that is grossly disproportionate to the circumstances characterized by “no illegal facts and no harmful consequences.” Considering the defendant public security authority’s improper conduct during the investigation—including logical errors, lack of common sense, and overreach in law enforcement—it is evident that this penalty was not only not grounded in objective facts but may even have been motivated by retaliatory intent. Clearly, it violates the principle of proportionality and constitutes an “improper exercise of discretionary power in imposing the penalty.”

The defendant, the district government, as the reconsideration authority, failed to conduct a comprehensive review of the original administrative penalty decision’s findings of fact, the legality of the evidence, and the due process.

According to the relevant provisions of the Administrative Reconsideration Law of the People’s Republic of China, the reconsideration authority shall conduct a comprehensive review of both the legality and reasonableness of the original administrative act. However, the district government in question merely carried out a formal review of procedural documents without making any substantive judgment on the underlying substantive disputes, and thus its decision to uphold the original act lacks factual basis.

The outcome of this case—where the defendant, the public security authority, revoked the administrative penalty—was achieved thanks to the following two factors:

First, the author conducts a study of the case from a professional perspective.

With regard to the case files, we meticulously prepared detailed review records, ensuring precise alignment with relevant laws and regulations. At the same time, we employed methods such as retrieving similar cases and analyzing the special relationships between the parties and their relatives and friends, adopting an attitude of respect for objective facts and carefully examining each piece of evidence one by one. For example, we thoroughly considered the identities and addresses of the parties involved in the interrogation transcripts, as well as the evidentiary value of the simultaneous audio and video recordings. We promptly submitted objections and advocacy opinions to the court, clearly presenting at the trial the fact that the parties had not engaged in gambling activities.

To determine whether a particular act constitutes gambling, it is necessary to analyze whether the actor engaged in profit-seeking behavior. The key lies in whether the actor had a profit-making intent. Taking this as a starting point, the author offers an advocacy opinion based on the specific facts of the case, demonstrating that Zhen and Jia did not have any profit-making intent; at most, their conduct could be considered mere recreational activity among friends.

Second, accurately apply the law and strictly control issues related to the penalty procedures, fully safeguarding the legitimate rights and interests of the client.

Meanwhile, we would like to thank the court for giving full consideration to the agent’s arguments. After attending the trial, the public security authorities re-examined the case and concluded that the party involved was a first-time offender with relatively minor social harm. In accordance with Article 13 of the “Regulations on Internal Law Enforcement Supervision by Public Security Organs,” they decided to revoke the penalty. Subsequently, the plaintiff filed a motion to withdraw the lawsuit, and the court issued a ruling approving the withdrawal, achieving a positive outcome.

(Disclaimer: This article reflects the author’s views based on personal experience and is intended for exchange and discussion only.)