Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

Tuesday, July 31, 2012

The long arm of the law

The BBC recently reported that two Chinese citizens had been sentenced by police in Jiangxi province "to labour camp" (probably re-education through labor (RETL) 劳动教养, since the police can do this, but have no authority on their own to impose a criminal punishment of reform through labor 劳动改造). The offense? The son of one of the citizens reported that police had told him that his mother "took part in an illegal demonstration." OK, par for the course so far. Nothing unusual about this, right? Wrong. The demonstration was in Hong Kong.

Hong Kong is, of course, part of China, but PRC law does not apply in Hong Kong, with the exception of a few specific statutes listed in an appendix to the Basic Law. And the laws regarding criminal and adminstrative offenses (the kind that can get you locked up for re-education through labor) aren't there. For these purposes, then, Hong Kong is like a foreign country. Thus, the citizens here are getting locked up on one of two theories:

1. You can be punished in China for something you did outside of China that was illegal where you did it (the "illegal demonstration" was illegal in Hong Kong, and China is just helping Hong Kong enforce its own law).

2. You can be punished in China for something you did outside of China that was perfectly legal where you did it. (I.e., China passes judgment on whether the act should be punishable.)

China's Criminal Law does indeed cover acts committed by persons (citizens and non-citizens) outside of China, but where the maximum sentence is imprisonment for three years or less, the actor "may" (可以) be exempted. Here the Criminal Law does not seem to be implicated; just the administrative punishment of RETL. The rules on RETL do not, to my knowledge, say anything about their extraterritorial application; given the approach of the Criminal Law, however, it is hard to believe that anyone considering the issue in the abstract would have thought that it could be applied in this way.

This action by the authorities, then, is a big red flag to any Chinese citizen who thought they could not be punished under Chinese law for engaging in an action abroad that didn't amount to a major crime under Chinese law. (Few people would be surprised to find themselves punished on returning to their home country if, for example, they committed treason while abroad.) If you look at the regulations on RETL, you'll find that you can even be sentenced for "not engaging in a proper occupation" (不务正业). Lazy Hong Kongers lying around on your mom's sofa, beware!

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This is not so unusual. In Shenzhen, many years ago, a Hong Kong businessman was brought to trial in court for an economic case (which is a money dispute, but china prosecuted the party for fraud). At the hearing in court, the businessman's son was in court attending his father's trial. The Judge ordered to arrest the son and release the father to go to H K to get money to release the son. It created an scandal, exposing the absurd procedure of the criminal system. The Judge defended his treatment, saying in Chinese system, a father's debt has to be paid by his son. Totally logical and ethical.

Posted by: Frankie Fook-lun Leung | Aug 3, 2012 12:42:37 PM

Article 23 of the H K Basic law can create criminal offenses like treason etc. which can be committed while not in China, such as advocating Tibetan Independence or Splitting up the Country with Taiwan gaining full autonomy.

Posted by: Frankie Fook-lun Leung | Aug 9, 2012 2:43:49 PM

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