The case I represented, Wang v. China Mobile phone fee dispute, achieved great success

[Lead Attorney: Zhiming Law Firm] I. Basic Case Facts

In the case of China Mobile Group Guangdong Co., Ltd. XX Branch (hereinafter referred to as "China Mobile"), where sales staff strongly recommended the "Family Network Family Numbers" service and prominently emphasized "free incoming calls" in relevant promotional materials, Mr. Wang, a consumer in Shenzhen, activated two Global Call family numbers, 158155891XX and 150138223XX, on January 19, 2008, and May 20, 2008, respectively. Since August 1, 2007, China Mobile has publicly announced through various media outlets (such as Shenzhen Commercial Daily) that Global Call users receive incoming calls on their mobile phones for free (i.e., the implementation of one-way charging). However, Mr. Wang gradually discovered that China Mobile continued to impose two-way charging on his family numbers 158155891XX and 150138223XX, and he was still improperly charged for receiving incoming calls.

Despite Mr. Wang's multiple attempts to negotiate with China Mobile, the company remained arrogant and unresponsive. Consequently, Mr. Wang has decided to retain Zhiming Law Firm and its lawyers to file a lawsuit against China Mobile, demanding a formal apology, compensation for the phone charge losses, and related transportation and lost work time expenses, with the phone charge compensation calculated at twice the amount fraudulently overcharged for incoming calls.

II. Disputed Focus

The focus of the dispute in this case is primarily whether the defendant's unauthorized overcharging of phone answering fees constitutes consumer fraud tort against the plaintiff.

III. Case Outcome

On February 19, 2009, the Shenzhen Futian District People's Court held in its first-instance judgment [(2009) Shen Fu Fa Min Chu Zi No. 507]:

(1) The defendant collected the call reception fees in accordance with the agreement of both parties, and the agreed terms do not violate the mandatory provisions of laws and regulations; therefore, both parties shall comply with and execute the agreement.

(2) The report in the Shenzhen Commercial Daily regarding free incoming calls for Global One users cannot serve as a basis for restricting the defendant's charging practices.

(iii) The defendant did not engage in any illegal conduct or fault in the process of collecting phone charges, and the plaintiff failed to prove that the defendant's actions constituted infringement. Accordingly, the court rejected the plaintiff's claims.

The plaintiff, dissatisfied with the judgment, retained Attorney Zhiming and filed an appeal to the Shenzhen Intermediate People's Court on March 30, 2009. After intense courtroom confrontation during the second-instance hearing, under the court's mediation, the defendant, recognizing the weakness of their position and under pressure, reached a settlement with the plaintiff-appellant on July 1, 2009, agreeing to compensate the plaintiff-appellant double the loss of call charges and bear the second-instance case acceptance fee. The second-instance court issued Civil Ruling [(2009) Shenzhen Intermediate People's Court Civil Final No. 973] to conclude the case.

3. IV. Case Analysis

Although the parties in this case were vastly mismatched in strength—one side being an isolated and vulnerable ordinary consumer, the other a seemingly powerful but unscrupulous business operator—the courtroom debates were exceptionally intense during both instances of trial.

Bearing the mission of exposing the hidden rules of powerful corporations that challenge authority, regarding the focus of dispute in the case, the plaintiffs and their retained attorneys have consistently maintained that:

(1) This case is an action brought based on the tort of consumer fraud.

The court of first instance confined itself solely to the mobile phone service agreement, disregarded the defendant's misleading promotional materials, disregarded the fact that the defendant had long implemented free incoming calls for Global System for Mobile Communications subscribers, disregarded the ambiguity arising from the defendant's standard form contract, failed to render an interpretation adverse to the party providing the standard terms, namely the defendant, as required by law, and one-sidedly emphasized the duty of care of the consumer, who occupies a weaker position. This constitutes an erroneous application of the law.

(2) The Defendant's Statutory Obligations as a Business Operator and the Illegality of Its Conduct

Articles 8 and 19 of the Law of the People's Republic of China on Protection of Consumer Rights and Interests expressly stipulate the plaintiff's right to know the truth and the defendant's obligation to provide truthful service information. The defendant's conduct of employing others and using other means to induce deceptive sales fully conforms to the fraudulent conduct defined in Article 68 of the Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China (For Trial Implementation), and constitutes one of the fraudulent consumer behaviors explicitly specified in the Measures for the Punishment of Fraudulent Consumer Behaviors.

(III) The Issue of Evidentiary Validity of the Report by Shenzhen Commercial Daily and the Provisions of Policy Documents of the Provincial Government Competent Authorities

Under Article 9 of the Provisions of the Supreme People's Court on Evidence in Civil Procedures, facts that are well known to the general public need not be proven by the parties. Therefore, in this case, the defendant publicly reported in the Shenzhen Commercial Daily (a party newspaper) that Global Tone users would implement one-way charging (i.e., free incoming calls) policy, the content of which is known to everyone, and the authenticity and legality of the relevant reports as evidence is beyond doubt. At the same time, according to the policy documents of the relevant provincial competent authorities provided by the defendant, the new tariff standard should be publicly announced in local radio, television, or designated newspapers and other media before implementation. Then, through what means and in what media did the defendant fulfill its obligation of public announcement when implementing the new incoming call charging standard for so-called family affinity numbers? The defendant is left with no satisfactory response to this. In fact, the relevant report in the Shenzhen Commercial Daily is precisely the embodiment of the defendant fulfilling its announcement obligation when implementing the new free incoming call standard. Its reversal of position and private imposition of incoming call charges on the plaintiff has never been publicly disclosed in any media, which precisely proves the illegality of the defendant's private charging.

In summary, in this case, the defendant's act of overcharging mobile phone fees fully satisfies the statutory constitutive elements of consumer fraud tort, and the defendant should bear corresponding compensatory liability in accordance with the law. Due to well-known practical reasons, the court of first instance openly championed the infringer. Through unremitting efforts and resistance at both the first and second instance stages, the plaintiff ultimately achieved a phased yet symbolic victory. The plaintiff's conduct will undoubtedly contribute to the establishment and development of a fair and just market competition order in China during its social transition period. (Compiled and commented by Cao Guanghui)