JC (double jeopardy: Art 10 CL) China CG  UKAIT 00036
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 21-23 January 2008
Date Determination notified: 14 May 2008
Dr T Okitikpi, non-legal member
|Secretary of State for the Home Department||RESPONDENT|
DETERMINATION AND REASONS
1. There is a risk of prosecution or reprosecution under Articles 7 and 10 of the Chinese Criminal Law for overseas offenders returned to China. However, the use of those provisions is discretionary and extremely rare. Absent particular aggravating factors, the risk falls well below the level required to engage international protection under the Refugee Convention, the ECHR, or humanitarian protection. The risk of prosecution or reprosecution will be a question of fact in individual cases but is more likely where (a) there has been a substantial amount of adverse publicity within China about a case; (b) the proposed defendant has significantly embarrassed the Chinese authorities by their actions overseas; (c) the offence is unusually serious. Generally, snakehead cases do not have the significance they have in the West and are regarded as ordinary (but serious) crimes requiring no special treatment;(d) political factors may increase the likelihood of prosecution or reprosecution; and (e) the Chinese Government is also particularly concerned about corruption of Chinese officialdom.
2. Prosecution under Article 7 or 10 is a fresh prosecution. The discretion to prosecute is exercised in the light of the opinion of the Chinese authorities as to whether the foreign jurisdiction dealt properly, and without undue leniency, with the offence. It can no longer be said that there is no information available on the use of that power: the Chinacourt database of cases and the NPC website guidance are maintained directly by the Chinese Government and provides guidance for judges and lawyers on the use of these powers.
3. The burden of proof does not shift to the Secretary of State in double jeopardy cases. The Court of Appeal decision in Adam v Secretary of State for the Home Department  EWCA Civ 265 is not authority for such a proposition, particularly where the decision to re-prosecute is discretionary.
4. In the light of our findings above, the decisions in WC (no risk of double punishment) China  UKIAT 00253 and SC (double jeopardy ? WC considered) China CG  UKAIT 00007 are no longer to be treated as country guidance on the double jeopardy question.
|Introduction and conclusions on first stage reconsideration setting out the material error of law.||1|
|The appellant's case, including consideration of the appellant's evidence and that of his sister||36|
|Provisions of Articles 7 and 10 of the Chinese Criminal Law 1997 (overseas offences provisions) and sources of online case reports in China.||61|
|Country expert reports from:|
|A. Professor Jerome Cohen||67|
|B. Professor Michael Palmer||76|
|C. Dr Mei Lin Gechlik||89|
|D. Dr Michael Dillon (including oral evidence)||102|
|E. Dr Jackie Sheehan (including oral evidence)||131|
|F. Professor Fu Hualing (including oral evidence) .||151|
|1. The Foreign and Commonwealth Office letter of 15 August 2005 ('double jeopardy' letter)||177|
|2. The arrest warrant and the Foreign and Commonwealth Office response||1179|
|3. 2007 Country of Origin Information Report on China||184|
|Respondent's submissions on the appellant's case and the background evidence (Miss Broadfoot)||186|
|Appellant's submissions on the appellant's case and the background evidence (Mr Mackenzie)||213|
|Overseas offences prosecutions (including reprosecutions) in China||238|
|Removal of Chinese snakehead defendants (some convicted with the appellant and some for factually similar offences)||242|
|General conclusions on the background evidence and expert reports, as assessed, when set against the issues identified.|
|1. WC and SC||246|
|2. Double jeopardy: assessing the experts and their evidence||249|
|3. In what circumstances will reprosecution occur?||263|
|4. Prison conditions||271|
|Summary of findings.||273|
|Application of the general conclusions to the appellant's case and decision.||274|
|s.72 certificate decision||275|
|Credibility and findings of fact||281|
|Paragraph 364 of the Immigration Rules (HC 395 (as amended))||284|
|Double jeopardy and Article 10 re-prosecution||287|
|Conclusions on the continuing applicability of existing cases.||292|
|Appendix of documents considered.||Appendix|
"364. Subject to paragraph 380, while each case will be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation. The Secretary of State will consider all relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport. The aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects. In the cases detailed in paragraph 363A deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained without authority....
The asylum claim
"364. Subject to paragraph 380, while each case will be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation…"
The Tribunal set out all the relevant circumstances and concluded that there was nothing in the compassionate circumstances to outweigh the public interest presumption.
Material error of law decision
"…5. On 3 January 2007, this appeal came before me. There were different representatives on that day. I directed that the stage 1 reconsideration be listed before me as soon as possible, with a view to setting up a country guidance hearing on the double jeopardy point, having regard to the Foreign and Commonwealth Office evidence. The appellant undertook to indicate within 14 days whether the credibility issue was pursued; that was not done. The Tribunal's Article 8 ECHR findings and findings under the Immigration Rules are unchallenged, as is the decision regarding general risk on return (outwith the double jeopardy point).
6. I heard submissions from the appellant. He argued that the Tribunal had failed to deal with the Foreign and Commonwealth Office evidence, although it had been on notice that he relied upon it. A response to an information request from the Country of Origin Information Unit quoted part of that letter. The PRC had a statute permitting double jeopardy prosecutions and his evidence had not been properly weighed. The Tribunal had overlooked the Adam point; in that decision, exceptionally, Schiemann LJ held that where the new evidence was in the hands of the Home Office throughout, the burden of showing that it could not be relied upon was upon the respondent. He asked the Tribunal to look at paragraphs 45 and 51 of WC which deal with the monitoring of returnees. [paragraphs cited]
7. The authorities with which the Tribunal was dealing all refer to lack of evidence for double jeopardy prosecutions of offences committed entirely overseas. That is not the position of this appellant, whose offence was committed in both countries. It was a serious offence. The Secretary of State has only latterly disclosed a paragraph from a letter from the Foreign and Commonwealth Office. The whole letter must now be disclosed. It was not before the Tribunal in WC and SC and in failing to deal with it at all in their determination, there is no doubt that the Tribunal made a material error of law. The appeal must be reheard."
(a) The weight to be given to the 'double jeopardy' letter from the Foreign and Commonwealth Office regarding the risk on return of prosecution for an offence for which the returnee had already been convicted and punished in the United Kingdom;
(b) Whether, in the light of that evidence, WC (no risk of double punishment) China  UKIAT 00253 and SC (double jeopardy – WC considered) China CG  UKAIT 00007, are still good law;
(c) The effect of the Court of Appeal's decision in Adam v Secretary of State for the Home Department  EWCA Civ 265;
(d) The weight to be given to the evidence of Professor Palmer;
(e) The respondent's certification of the appeal under s.72 Nationality Asylum and Immigration Act 2002; and
(f) Whether the appellant is a credible witness.
Evidence before the Tribunal on reconsideration
The Appellant's Case
The United Kingdom offences
"…deliberately made to hear the torment and sufferings of the poor persons who were at the other end of those phones."
Substantial sums were demanded from the relatives.
'…nobody is saying that everybody used violence, but violence was obviously implicit and necessary in the carrying out of these conspiracies. I accept that in certain cases there is no direct involvement in violence to the hostages – in certain cases. You, [the appellant, and defendants 1-4] …without a doubt fall into the top category in this case and demand the highest sentence. …the period of custody that I think appropriate in your cases is 14 years on count 1, 14 years on count 2 and eight years on count 3. It seems to me that they all ought of course to be concurrent…"
"It seems to me that it is not a matter for this Court to decide whether or not [the defendants if deported] face execution, or trial again, in China; that is a matter for the Secretary of State and his advisers. In this sort of case, which is organised crime, I have no hesitation – and that one reason is enough in my view – to recommend all of you, where appropriate, for deportation once these sentences have come to an end….
After your release you will be subject to supervision on licence until the end of three quarters of the total sentence. You will be liable to be recalled to prison if your licence is revoked, either on the recommendation of the Parole Board or, if it is thought expedient in the public interest, by the Secretary of State."
The present appellant was released at the halfway point in his sentence and, his Counsel accepted by an oversight, has not been supervised on licence. There is, therefore, no evidence but his own (and very little of that) as to how he has conducted himself since his release.
"… [The appellant] was seen to be part of an organised Chinese gang called the 'snakeheads' who were trying to take over the business of a rival gang. They were holding the rival gang's group of immigrants to ransom for £12000 each. I understand it was alleged that some violence was used although no weapons were used."
'The risk would appear to be further gang involvement and consequently further very serious offending".
"6.1 If [the appellant] had been granted leave to remain in this country and home circumstances had been investigated by the home area, with them supporting release, then I would recommend [the appellant] for parole. Clearly, to recommend him for parole in the current circumstances is infeasible."
Appellant's oral evidence
"[Appellant], male, residing in this area, is of Han race. His date of birth was [date given]. This person is dissatisfied with the Chinese Communist Party, was violent to the duty personnel, organised unrest. As from 16 October 1994 this person is wanted for arrest."
The appellant insisted that the warrant was genuine and referred the Tribunal to his sister for an account of how she got it.
The sister's oral evidence
Country Background Evidence
People's Republic of China Criminal Law 1997 (CL): Articles 7 and 10 (overseas offences)
"Article 7 and Article 10 of the Criminal Law (CL)
1. The power to re-prosecute in Article 10 of the Criminal Law (CL) derives from Article 7 of the CL.
2. Article 7 of the CL provides:
"This Law shall be applicable to any citizen of the People's Republic of China who commits a crime prescribed in this Law outside the territory and territorial waters and space of the People's Republic of China. However, if the maximum punishment to be imposed is fixed-term imprisonment of not more than three years as stipulated in this Law, he may be exempted from the investigation for his criminal responsibility. This Law shall be applicable to any State functionary or serviceman who commits a crime prescribed in this Law outside the territory and territorial waters and space of the People's Republic of China."
3. This provision reflects the personality principle and allows the extra-territorial application of the CL. Because of this application, the CL follows Chinese citizens wherever they go, and Chinese courts always have jurisdiction to punish Chinese citizens who have committed crimes overseas upon their return.
4. Even if a Chinese citizen has already been tried (and punished) in a foreign country, Chinese government can re-prosecute the relevant citizen upon his return.
Article 10 of the CL provides:
"Any person who commits a crime outside the territory and territorial waters and space of the People's Republic of China, for which according to this Law he should bear criminal responsibility, may still be investigated for his criminal responsibility according to this Law, even if he has already been tried in a foreign country. However, if he has already received criminal punishment in the foreign country, he may be exempted from punishment or given a mitigated punishment."
5. The rationale behind Article 10 of the CL is that China, as a sovereign state, refuses to recognize foreign penal judgments unless such recognition arises in accordance with any international agreement which China has signed. The rule against double jeopardy does not apply in China in principle.
6. Importantly, decisions to prosecute or re-prosecute offences committed overseas under both Article 7 and Article 10 are discretionary. Under Article 7, CL normally applies to a crime committed by a Chinese citizen overseas only if the offence is relatively serious (and attracts a maximum sentence of more than three years) unless the offender is a civil servant or a serviceman, in which case all offences may, in theory, be prosecuted.
7. Article 10 is intended to avoid a situation in which a foreign court treats a Chinese offender with undue lenience. The article gives the procuracy the discretion to prosecute or not to prosecute a Chinese citizen who was tried by a foreign court for an offence committed overseas depending on the seriousness of the offence committed and penalties imposed by the foreign courts. The Chinese procuracy may re-prosecute the offender for the same offence to compensate for the undue lenience. The same article also authorizes the court to exempt the offender, when re-prosecuted, from any further punishment in China and give only mitigated penalties depending on the seriousness of the overseas offence and the severity of the overseas penalty."
"May offences committed outside China's territory which have already been adjudicated by a foreign court still be ascertained for criminal responsibility under China's Criminal Law?
According to the provisions of Article 10 of the CL, any person who commits a crime outside PRC territory and according to the Criminal Law of the PRC should bear criminal responsibility, even if she or he has been tried in a foreign country, may still be investigated [for criminal responsibility] according to the Criminal Law of the PRC. China is an independent sovereign state, possessing independent power of criminal jurisdiction. It does not accept the binding force of foreign adjudication, and the power of its jurisdiction over crime cannot be lost just because such criminal conduct has been subjected to adjudication in another country. This provision in the criminal law, is a concrete manifestation of the principle of Chinese sovereignty and a concrete manifestation of the principle of protection in the CL.
According to the provisions of the CL, crimes committed outside the territory of the People's Republic of China should carry criminal responsibility. Most important are the provisions of Article 7 of the CL, under which the provisions of the Criminal Law [of the PRC] are applicable when Chinese citizens, state personnel and members of the armed forces commit offences outside Chinese territory; the provisions of Article 8, under which the provisions of the CL are applicable to foreigners, who outside PRC territory, commit crimes against the PRC state or against its citizens; and other concrete provisions in the criminal law concerning criminal responsibility. In accordance with the basic provisions of PRC criminal law, criminal responsibility should be borne, even if a [case has] already been tried by a foreign court, including where the foreign court has delivered a verdict of not guilty or a verdict of guilty, and also if the foreign court has imposed a criminal punishment or exempted [the offender] from criminal punishment. The PRC is not bound by the foreign judgements, and in accordance with the criminal law of the PRC, the PRC judicial organs may still decide if such conduct constitutes a crime and the punishment to be imposed. The following points should be given attention in such circumstances: the PRC "may" in accordance with the CL determine [criminal responsibility] but does not have to determine [criminal responsibility] – it is that the power to prosecute is retained to the extent that it decides whether it is desirable or not want to again [try the case] in accordance with PRC criminal law and necessarily decide [the case] in accordance with the concrete case and concrete circumstances. For example, where a convicted person has already been tried by a foreign court, and sentenced to a certain punishment, although with reference to the same crime even if the punishment is still a little heavier, but the offender admits guilt, [and] in the enforcement of the sentence shows effective repentance, then the PRC may [decide] not to carry out a determination [of guilt].
In order to achieve the purpose of effective education and change the [outlook of the] offender, and at the same time to respect foreign law, the Criminal Law also provides that in cases in which there has already been criminal punishment then if the PRC must in accordance with the Criminal Law carry out a fresh trial, then the criminal punishment may be exempted or reduced. In this stipulation, it is important to consider that the offender has already been tried by the foreign court and received criminal punishment, so that when the PRC court handles the case, then in accordance with the concrete circumstances of the case, the court may exempt punishment or reduce punishment. Of course, the provisions of the CL [state] "may" but this is not "should", and if the foreign court's decision is obviously partial, resulting in an abnormally light sentence, the PRC of course may not be bound by the [decision] in which there is exemption or reduction of the criminal punishment. (Dated: April 17, 2002)."
Case reporting in China
Expert evidence on double jeopardy prosecution in China
A. Professor Cohen's evidence to the United States Congressional-Executive Committee
"Yet we can expect robust law reform efforts to continue in China, even in the field of criminal justice. The PRC is still considering whether or not to ratify the International Covenant on Civil and Political Rights (ICCPR), which it signed in 1998. Ratification would commit the PRC to changes in law and practice in the criminal justice area as profound as those changes in economic law and practice required by the PRC's entry into the WTO. Regardless of ICCPR ratification, the Chinese Government, under strong domestic pressures to eliminate some of the most glaring defects in the CPL [Criminal Procedure Law] and some of the worst distortions of the CPL in practice, has already made clear its determination again to revise the CPL. Although optimists predict that the newly-revised CPL might appear by next year, we should not underestimate the magnitude of the task. A multitude of controversial issues awaits the NPC, and achieving a meaningful reconciliation of the conflicting views of the Ministry of Public Security, the Ministry of State Security, the Ministry of Justice, the Supreme People's Court, the Supreme People's Procuracy, the All China Lawyers Association, influential academic experts and relevant Party organizations will require enormous legislative skill, time and energy.
Pending comprehensive revision of the CPL, the NPC may decide to make certain urgently-needed reforms earlier. For example, should the NPC do something about "re-education through labor" ("laojiao")? It is an administrative punishment that is not authorized by NPC legislation (as now required by other NPC legislation) and that is dispensed by the police, who can send someone to labor camp for three or four years without the participation of lawyers or the approval of the procuracy or the courts. Although the Ministry of Public Security has been waging a public relations and lobbying campaign to retain "laojiao", even conducting limited experiments to allow lawyers into the proceeding in an effort to avoid losing this major sanction, its continuing existence is blatantly inconsistent with the premises of the CPL and the Law on Legislation, as well as perhaps the Constitution itself, as many Chinese judges, officials, lawyers and academic experts have pointed out.
Perhaps we can also expect an expanded role for the courts, and further strengthening of the courts and the legal profession in order to enable the courts to play this expanded role. The Chinese Government is plainly facing a domestic crisis of confidence caused by the failure of its institutions to deal adequately with a rising tide of public grievances relating to environmental pollution, real estate manipulation, unauthorized local financial demands, corruption, discrimination and other official abuses. Increasingly, interest groups, fueled by a shared sense of injustice, are taking to the streets and even rioting. These protests threaten political, economic and social stability and indeed the common people's belief in the legitimacy of Communist rule. Too often, for example, the courts, instead of enforcing national laws against lawless local officials or conflicting local regulations, serve as the instruments of the local elite against the victimized populace. And lawyers brave enough to assist the protesters in their efforts to resort to courts in order to vindicate their rights are often detained or intimidated by the local police and prosecutors."
"A large number of Chinese criminal justice experts from the judiciary, the procuracy, the defense bar, the Ministry of Justice, the Ministry of Public Security, the NPC staff and academic life have been making impressive efforts to develop a national consensus on a broad range of understandably contentious issues. Should suspects generally be granted bail during the investigation period instead of languishing in detention as at present? Should they have a right to keep silent and not incriminate themselves? Should a presumption of innocence be confirmed and its implications spelled out? Should defense lawyers be allowed to monitor police interrogations, conduct their own investigation prior to indictment and freely meet detained clients? What steps should be adopted to make defense lawyers available to accused who more often than not go unrepresented? What protections should be enacted to reduce the likelihood that suspects will be tortured and to curb widespread overtime detentions? What measures should be prescribed to strengthen the current insignificant legislative barriers to arbitrary search and seizure? Should all illegally-obtained evidence be excluded from trials? Should plea bargaining be fostered? Should prosecution witnesses be required to appear at trial in order to make meaningful the existing right to cross-examine one's accusers? What kind of appellate review should replace the current perfunctory procedure? None of these issues, which have long cried out for legislative resolution, is likely to be dealt with by the NPC in the near future.
Nor does the NPC seem ready to abolish the notorious, supposedly "non-criminal", administrative punishment of "re-education through labor" (RETL), which allows the police unilaterally to ship people off to three or even four years of confinement in circumstances that are similar to those of the conventional criminal punishment of "reform through labor". Two or three years ago, many Chinese reformers, even within the Ministry of Public Security (MPS), seemed confident that the NPC was about to abolish or at least substantially revise RETL. There was widespread agreement among the experts that its continuing existence undermines the significance of the Criminal Procedure Law (CPL), since it allows the police to circumvent the protections of the CPL, including review by the procuracy and the courts, and nevertheless to send people to long periods of what is, for all intents and purposes, criminal punishment. But the apparent opposition of the Central Party Political-Legal Committee and the leadership of the MPS, which believes that it continues to need this weapon to help quell social unrest, has been sufficient to block adoption of the draft legislation that now lies dormant in the NPC."
"This is a gloomy time in China for the administration of criminal justice and related legislative and judicial reform. The NPC seems to be frozen in this area, and the only significant systemic reform – the SPC's effort to improve procedures in death penalty cases – is moving slowly and toward an uncertain outcome. In too many cases, the police operate with reckless disregard for existing criminal procedures, and in making their decisions courts are the helpless tool of Party and government leaders and the objects of other distorting influences. Although the nation's leaders continue to use the abstract rhetoric of the "rule of law", they increasingly emphasize that the Western-style laws, institutions and procedures that the Party has introduced since 1978 are not to be applied in a Western manner. They want the legal system to repress the rising tide of social unrest generated by China's rapid success rather than effectively process the new disputes and grievances that are being brought to it for solution. This in itself has added to social instability. The failure of the highly-touted "socialist rule of law" to meet popular needs and its frequent use as an instrument of repression have fueled feelings of frustration that are being transformed into what has accurately been called "rightful resistance."
B. Professor Palmer's report
"10. There is, however, an absence of reported cases of re-prosecution under Article 10 of the revised Criminal Law of the PRC, 1997. This reflects, in my view, not an absence of such cases but, rather, a problem of reporting – reflecting in part the problem of the secrecy that pervades important areas in the operation of the legal system in the PRC. Secretiveness is part of a general approach to law and governance in the PRC, and the failure of the PRC government to acknowledge and deal with the SARS epidemic reflected, continued close control over and censorship of the media by the PRC authorities. Legal reforms in the PRC have prompted the Chinese legal system to become a little more open and transparent than it was two decades ago. However, secrecy continues to be a critically important feature of the operation of the Chinese legal system. Very important is the secretive nature of the workings of the court adjudication committee, despite its active involvement in trial decision-making."
"11…Discussing sources of law with reference to the role of the courts under the heading "The Emergence of Case Law", one of the leading authorities on Chinese law in North America, Stanley Lubman, has recently pointed to the particular and limited role given to "case law" in the PRC:
Chinese doctrine firmly rejects the doctrine of precedent (panli), denying any binding force to judicial decisions. Although the prior cases may be considered instructive examples (anli), they are not binding and are not supposed to be considered a source of law. In practice the Supreme People's Court has been publishing decisions in its Gazette since 1985 for their "reference and educational value". Most of the lower-court decisions were carefully chosen and substantially re-written in order to transmit to the lower court [Supreme People's] Court's views of the issues involved.
Other reports of decisions circulate to the lower courts through internal channels, but only the most "mature" and "representative" are selected for open publication (LUBMAN, Stanley [1999) Bird in a Cage: Legal Reform in China after Mao, Stanford, Calif: Stanford University Press, at pp. 284-5).
12. Discussing sources of law with reference to contract law, a politically much less sensitive area than criminal justice, another leading authority on Chinese law in North America, Pitman Potter, has more recently pointed to the particular and limited role given to case analysis in the PRC:
The formalism evident in Chinese official legal culture remains a dominant characteristic of judicial decision making. Collections of judicial decisions to be used in judicial training programs give primary emphasis to uniformity and consistency in judicial decisions. As well, the process of case analysis begins with a review of statutory provisions, which themselves reflect the instrumentalist character of state law and regulation. Little attention is paid to close analysis of pertinent facts, or to the subtleties of fact cum law analysis. Thus the importance of formalistic compliance with state law is instilled in judicial decision makers from early on (POTTER, Pitman B.  The Chinese Legal System: Globalisation and Local Legal Culture, Routledge: London & New York at p. 54)."
It is clear that there are collections of decisions available to Chinese researchers and for judicial training, and that they are used in judicial training programmes with the emphasis on judicial uniformity and consistency.
"Most of the cases reported in the [Supreme People's Court] Gazette are from decisions of lower courts which reach the Supreme Court through "the internal reporting channel". Traditionally, every lower court, particularly every higher provincial court, is supposed to submit to the Supreme Court those of its decisions which involve either important or complex issues … these submissions are not required by law, nor do decisions reach the court by way of law or review.
The Court does not simply publish verbatim what it regards as the important opinions of lower courts, Instead, the Court, after selecting desirable cases will substantially edit or rewrite most of the selected cases in order to make them understood and followed the way the Court wants...
One cautionary note is that the decisions eventually published in the Gazette constitute no more than a fraction of the cases the Court transmits to the lower courts as guidance in their decisions. Besides the open channel of publication in the Gazette, the Court continues to use a traditional "internal channel" …[Decisions published] are also mostly not the Court's own decisions, but are selected from lower court opinions and edited and rewritten by the Court … the internal channel is more likely to be used to relay cases that are less significant … [but] … sometimes cases selected … for special purposes are also sent through the internal channel …(LIU Nanping  " 'Legal Precedents' with Chinese characteristics: Published Cases in the Gazette of the Supreme People's Court," Journal of Chinese Law, Vol. 5, pp. 107-129, at pp. 115-116)."
"…Luo Gan, a politburo standing committee member and director of the Central Committee for the Management of Public Security, has urged security organs to "[...] continue to adhere to the 'strike hard' principles" in on-going security work. Luo Gan also called for the campaign to be extended for another year on 18 July 2003, (6) although it is unclear whether this resulted in an actual policy decision for the campaign to continue on a national level. Xiao Yang, president of the Supreme People's Court, also called in December 2003 for the campaign to continue in response to continually rising levels of crime in China."Any crime which the law regards as serious should certainly receive serious penalties, and any crime which is punishable by the death penalty according to the law, should certainly receive the death penalty. This will ensure the healthy progress of strike hard".
Hu Jintao, former Secretary of the Standing Committee of the CCP Central Political Bureau (Legal Daily 4 May 1996), now President of the People's Republic of China and Chairman of the CCP.
According to official national statistics, the conviction rate for all crimes for the five years from 1998 to 2002 was 99.1%. An almost 'perfect' conviction rate is deeply worrisome in the context of factors demonstrated in this document, such as increased detentions and arrests, torture to extort confessions, restricted access to legal representation, the absence of a presumption of innocence, extreme pressure on the police, Procuratorate and courts to secure convictions during "strike hard", and courts passing guilty verdicts through a sense of political obligation and a desire to maintain resolve rather than rigor. Under such circumstances, miscarriages of justice are inevitable, and it is possible that people are executed 'in error' on an almost daily basis ..."
"…although it is impossible to say to what extent he is at risk, and even though the offences for which he has been convicted in [the United Kingdom] do not carry the death penalty."
(a) the books of Harry Wu: "Bitter Winds: A Memoir of My Years in China's Gulag" (1994) and "Troublemaker: One Man's Crusade Against China's Cruelty" (1996));
(b) a report on a laogai camp in Western Sichuan province by James Cox of Global Network (Prison Camp or Death Camp, February 8 1999);
(c) the 2001 Amnesty International report based on a petition smuggled out by prisoners at Hunan No 1 Prison in Central China , reporting appalling conditions there;
(d) the Hong Kong information centre for Human Rights and Democracy report of December 2001 reporting an outbreak of tuberculosis in Liaoning's Tieling Prison which killed 57 prisoners and unsympathetic attitudes to outbreaks of tuberculosis and Hepatitis B at Eastern Zhejiang Province's no 1 prison in October 2001; and
(e) from Labour Rights Now, an independent human rights group for employment and human rights issues, a report on the maltreatment of Trade Union activists in Hunan Province No 1 Prison.
"The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment undertook a visit to China from 20 November to 2 December 2005, at the invitation of the Government. He expresses his appreciation to the Government for the full cooperation it provided him throughout the visit. The report contains a study of the legal and factual aspects regarding the situation of torture or ill-treatment in China.
The Special Rapporteur bases his finding on a thorough analysis of the legal framework, individual communications and on written information from and interviews with a wide array of sources, including Government officials, non-governmental organizations, lawyers, victims and witnesses, as well as from on-site inspections of detention facilities. Accordingly, he recommends a number of measures to be adopted by the Government in order to comply with its commitment to prevent and suppress acts of torture and other forms of ill-treatment.
Though on the decline, particularly in urban areas, the Special Rapporteur believes that torture remains widespread in China. He welcomes the willingness of the Government to acknowledge the pervasiveness of torture in the criminal justice system and the various efforts undertaken in recent years at the central and provincial levels to combat torture and ill treatment. In the opinion of the Special Rapporteur, these measures have contributed to a steady decline of torture practices over recent years.
Many factors contribute to the continuing practice of torture in China. They include rules of evidence that create incentives for interrogators to obtain confessions through torture, the excessive length of time that criminal suspects are held in police custody without judicial control, the absence of a legal culture based on the presumption of innocence (including the absence of an effective right to remain silent), and restricted rights and access of defence counsel. The situation is aggravated by the lack of self-generating and/or self-sustaining social and political institutions including: a free and investigatory press, citizen-based independent human rights monitoring organizations, independent commissions visiting places of detention, and independent, fair and accessible courts and prosecutors.
While the basic conditions in the detention facilities seem to be generally satisfactory, the Special Rapporteur was struck by the strictness of prison discipline and a palpable level of fear and self-censorship when talking to detainees.
The criminal justice system and its strong focus on admission of culpability, confessions and re-education is particularly disturbing in relation to political crimes and the administrative detention system of "Re-education through Labour". The combination of deprivation of liberty as a sanction for the peaceful exercise of freedom of expression, assembly and religion, with measures of re-education through coercion, humiliation and punishment aimed at admission of guilt and altering the personality of detainees up to the point of breaking their will, constitutes a form of inhuman or degrading treatment or punishment, which is incompatible with the core values of any democratic society based upon a culture of human rights (Commission on Human Rights, E/CN.4/2006/6/Add.6; 10 March 2006)".
C. Dr Gechlik's report
"…Article 10 of CL 1997 stipulates that any person who commits a crime outside the territory and territorial waters and space of the People's Republic of China, for which according to this law he should bear criminal responsibility, may still be investigated for his criminal responsibility according to this law, even if he has already been tried in a foreign country; but if he has already received criminal punishment in the foreign country, he may be exempted from punishment or given a mitigated punishment. .... Clearly, this provision is aimed at protecting the State sovereignty and safeguarding the interests of the State, as well as national citizens. Therefore, some scholars hold that it is unreasonable for Chinese judges to recognize the criminal judgments made by foreign courts. In their opinion, such foreign criminal judgments are considered as a type of fact and only have consultative use. Actually, this opinion is doctrinally not persuasive in our view. Taking a comprehensive view of the Article 10 of the CL 1997, which provides that a criminal who has already received criminal punishment in the foreign country may be exempted from punishment or given a mitigated punishment, one can find that Article 10 of the CL 1997 does not purely exclude the recognition of foreign criminal judgments. On the contrary, this is still a kind of recognition that can be treated as negative recognition. Although such kind of recognition does not affect or restrict the State power of criminal punishment, the results of the trial by national courts are still affected by the nature of the execution of foreign criminal judgments. Similar provisions exist in the criminal legislation of other countries such as Japan. Therefore, it cannot be concluded that Article 10 of the CL 1997 directly excludes the principle of ne bis in idem."
"Of course, the regulation in Article 10 of the Criminal Law is conservative. In judicial practice, this provision is not often used in specific cases."
"… From a state sovereignty point of view, immediate abolition of Article 10 of the Criminal Law is not likely appropriate. Consideration must be given to both the protection of human rights and the maintenance of state sovereignty, and it might be reasonable to revise Article 10 of the CL 1997 from the doctrine of negative recognition to the doctrine of positive recognition. The so-called doctrine of positive recognition stipulates that criminal judgments handed down by foreign courts must be recognized by courts in China, except when the judgment is apparently partial for some unlawful reasons."
"81(2) No parole shall be granted to recidivists or criminals who are sentenced to more than 10 years of imprisonment or life imprisonment for crimes of violence such as homicide, explosion, robbery, rape and kidnap."
"142(2) With respect to a case that is minor and the offender need not be given criminal punishment or need be exempted from it according to the Criminal Law, the People's Procuratorate may decide not to initiate a prosecution."
"Rushing an immature draft into law is not in our interest. But we cannot afford any more foot-dragging on this one. We badly need a substitute for the re-education-through-labor mechanism.
Through its existence since 1957, re-education-through-labor institutions have contributed to maintaining order and preventing crime. The system's inadequate concern for civil rights as well as lack of jurisprudence protection have made it increasingly out of step with the country's progress in protecting human rights.
Re-education through labor is a Chinese invention that applies to minor law violations that do not constitute crimes or qualify for criminal punishment.
Since police authorities can independently decide to send a citizen for such re-education and the terms of re-education can be as long as four years, there have been legitimate worries as well as examples of abuse.
Although the re-education system was designed for minor offenses that do not deserve penalties prescribed in the Criminal Law, re-education through labor can be more severe than what the law stipulates for crimes. This is a major injustice that has to be resolved.
The largely unrestrained latitude of the police in deciding the term of re-education, the lack of oversight, and absence of clearly defined procedures make suspects of minor offenses vulnerable. Some would rather face trial and serve a criminal sentence than be sent to re-education.
We strongly hope the widely anticipated draft can appear before the national lawmakers as scheduled. It is an imperative legislative task.
Disagreements are no reason for keeping it from legislative scrutiny. The NPC Standing Committee is the best place to address different opinions."
D. Dr Dillon's reports and oral evidence
"The court system in China has four levels. The Supreme People's Court which sits in Beijing is the highest judicial organ in China and is formally responsible to the National People's Congress (NPC) and its Standing Committee. It tries the most significant cases, hears appeals against the decisions of lower-level courts and supervises the operation of local courts and special courts. The second tier consists of approximately thirty Higher Courts which sit in provincial and autonomous region capitals and in the major cities which have been accorded independent municipal status.
The third tier courts are the 400 or so Intermediate People's Courts which are based in the administrative centres of prefectures, certain other towns and the districts of larger cities. Basic or primary-level People's Courts, of which there are over 3000, are the lowest level courts and sit in all counties and in many cities. They have the authority to establish People's Tribunals to handle local cases and it is estimated that there are as many as 20,000 such tribunals. Intermediate People's Courts try criminal cases and have jurisdiction in cases carrying the death sentence subject to appeal to the Higher Court."
From that summary it appeared that criminal cases belonged at least in the Intermediate People's Courts (in administrative centres, nominated towns and districts in larger cities), rather than in the People's Tribunals in rural areas which dealt with less serious offences.
"Although there have been many changes in the Chinese media since the 1980s, the State still exercises a great deal of control, particularly over matters which are judged to have an impact on national security. Serious and organised crime and its consequences fall into this category. Court cases are not routinely reported in the press in the way that they are in the West. They are only reported in the national and provincial level daily press when they are deemed to be of political significance and the government intends that a lesson should be drawn from them. There are often more detailed reports in the local daily and evening press and on local television stations, so a resident or visitor might have access to this information. Many, if not most, trials are effectively held in camera.
Local newspapers have always been formally classified as neibu (internal) rather than gongkai (open or public). These are classifications that have applied to all publications within the PRC since 1949 and reflect the military and clandestine political background of the regime. Although these designations are not adhered to as rigidly as they were, the option of declaring that documents are restricted is still open to the regime. Neibu approximates to "classified" or "restricted" in western concepts of document availability and although local newspapers are on sale publicly in the areas that they serve and have regularly made their way abroad, high profile cases, notably the case of Rebiya Kadeer, have demonstrated that the government views information in them as "State secrets". Collecting such newspapers to send out of China or publicising their contents outside China could be regarded as an offence. The transmission of "State secrets" to foreigners is considered to be a serious crime punishable by long terms of imprisonment. It should be noted that the south-eastern coastal province of Fujian from which many asylum seekers originate is an especially sensitive area in military and political terms, not only because of the recent history of illegal emigration, but also because it faces the island of Taiwan which has been in political (and occasionally military) conflict with China since 1949.
The authorities publicise the fact that individuals are charged with offences such as sending unauthorised material abroad by the selective reporting of such cases both in the press and on television.
There is considerable local variation in the application of legislation, up to and including the death penalty and the fact that there are agreements at national government level does not guarantee that the provisions of such agreements will be carried out at the local level. There is no provision for the monitoring of such agreements by western governments or NGOs.
There has been no attempt by the government of the PRC to make the criminal process more transparent and it would be fair to conclude that the processes of decision-making in the police, the procuracy and the courts are deliberately concealed from public view."
"It is difficult to see what evidence the Home Office could adduce to support the claim that Article 10 is not likely to be put into practice, or that it is only likely to be put into practice in limited circumstances, since it is impossible to gain access to reliable data on this matter."
"The confirmation that the FCO are unable to monitor Chinese citizens when they have returned to China is clearly accurate. Guarantees made by the police, legal or government authorities in China on re-prosecution or the treatment of returnees cannot be verified. There is no reason why the Chinese government should consider itself to be obliged to inform Western courts or governments about a re-prosecution. The presumption of the Chinese political system is one of secrecy or at least confidentiality. This is not restricted to the legal system: information is considered to be privileged and publication abroad of any material deemed sensitive is only approved when there is political advantage in doing so. Although there is considerably more openness now than there was twenty or thirty years ago, this attitude has not changed fundamentally."
"He would certainly belong to the category of person that the police would wish to monitor on the grounds that he would be likely to re-offend. It is possible, although unlikely, that he would be simply able to get on with his life. The authorities would wish to monitor him in some way but the precise method of supervision would depend on local conditions and local attitudes. The options available would include surveillance, re-prosecution or sending him to a laojiao camp, which would not require formal prosecution. It is not possible to know what has happened to convicted criminals who have been deported to China as that information is not openly available.
This risk is increased by the fact that the victims were Chinese nationals in the UK. Even if this crime has not been reported in the official media in China, news would have spread through unofficial channels and the authorities may well feel obliged to prosecute to demonstrate their concern for their own nationals abroad."
"The hukou system of household registration which was designed to control the rural areas and restrict the migration of peasants to the cities has come under great pressure since the growth of migrant labour in the 1980s and 1990s. It is currently being reformed and, in advance of these reforms, it is being implemented more leniently in some areas than others. The evidence suggests however that it is still being enforced in a draconian fashion in some rural areas where it suits the interests of local officialdom. Many people are relocating to other parts of China, mainly the cities, some legally but others illegally."
'It is perfectly clear to me that a large group of modernising lawyers are pushing for practical abolition of torture and are being heard in Government at present'.
E. Dr Sheehan's reports and oral evidence
"It is my strongly held view that it is not safe to assume from the absence of known examples of re-prosecution that it does not in fact take place in the PRC, or even that it is rare. Far too few cases of any kind are known to outsiders to make this a reasonable deduction." [Paragraph 6]
"10. The emphasis of the PRC authorities in dealing with snakehead cases has for some years now been on harsher punishment for those involved in organizing people-smuggling rather than for those actually migrating. The trend was noted in a 2001 report by Dr Pierre Picquart for the European Commission on Chinese illegal immigration, which referred to sharply increased sentences, up to life imprisonment, for snakeheads and their accomplices, with the death penalty always applied in cases where migrants had died while being smuggled abroad. The Canadian Immigration and Refugee Board provides similar evidence in a slightly older report which cites Chinese press sources to confirm that "the primary targets of the public security authorities are the organizers or 'snakeheads'". The state-run Xinhua News Agency similarly reported that: "The [senior Public Security Ministry] official said that the fight against snakeheads is the most important part of the battle and that they need to be given harsh penalties in accordance with the law", while interviews conducted by Canadian diplomatic staff with PSB officials in Fujian also confirmed that "penalties for smuggling … seem to increase in severity the greater the involvement of the accused with the organization of smuggling."
"12. Chinese law does provide for early release from prison sentences in certain circumstances, though it is far from being the norm for convicted prisoners to be released approximately halfway through their sentence simply for avoiding further offending, obeying prison rules and cooperating with rehabilitation programmes where available, as is common in the UK. Chinese law and practice sets the bar for "good behaviour" somewhat higher, in Article 78 of the Criminal Law of 1997, requiring prisoners to inform on or prevent other major criminal activity, risk their lives coming to the aid of others, produce significant inventions or technological innovations, perform "remarkable actions" in combating natural disasters or major accidents, or "make other major contributions to the country or society." Even where such a reduction of sentence is granted, the prisoner must serve more than half the original sentence, or at least 10 years in cases of life imprisonment. The release of [this appellant] after serving only seven years of his sentence would increase the impression of UK leniency in the eyes of the Chinese authorities."
"13…Even where eye-witness testimony of guilt is available to the prosecution, a confession by the defendant is still seen as important in legitimizing conviction and punishment. Police and prosecutors put pressure on defendants through the practice of "leniency for those who confess, severity for those who resist" (tanbai congkuan, kangju congyan). It is also well documented that torture is frequently used within the Chinese legal system to obtain confessions. Confessions obtained by torture are still admissible as evidence in the Chinese courts, provided they are not the sole evidence on which a conviction rests. …
14. The Chinese authorities deny that the use of torture is systematic there, but they do admit that it is widespread. A September 2000 report from the Standing Committee of the National People's Congress based on inspection tours of six provincial-level administrations to assess how the revised Criminal Procedure Law was working in practice, found major flaws in its operation in three main areas: officials' disregard for detention time limits; defence counsel being prevented from performing their professional duties in criminal cases; and widespread use of torture, which had reached "epidemic proportions". Statements by top national officials such as the Minister for Public Security confirm the prevalence of torture, as do frequent reports in China's domestic state-controlled media. "China's top police official has acknowledged that law enforcement officials routinely use torture to obtain confessions", and that cases of death or injury from torture are covered up "so as not to 'tarnish the reputation of the security organs'". It should be noted that the definition of torture used in the PRC is not the same as that enshrined in the UN CAT to which China is a signatory, since it only refers to treatment resulting in permanent injury or disability or the death of a detainee. There is also some ambiguity in Chinese regulations against torture of detainees by "officials" as to who exactly should be classed as an "official". This loophole allows some categories of staff to commit acts of torture with impunity."
"18… The UK authorities will presumably need to apply to the Chinese embassy for a passport in his name, and computerised records systems have been in use at every international border crossing into the PRC, including even the more remote land borders with Central Asia, for at least 12 years. Since [the appellant] left China, the domestic police (who are not responsible for border security) have begun developing China's first national police computer network, which would also make it more difficult for him to evade notice. …"
"18… In the Chinese system decisions to prosecute and charges are generally decided by the police, rather than by the less-powerful Procuratorate, and the police can exercise significant influence over trials, e.g. by declaring a particular case "major or complex", resulting in a reduction in the suspect's rights and harsher punishment on conviction."
"19. … Disputes over changes in land use, inadequate compensation to farmers and/or corrupt diversion of compensation funds have become extremely common since the early 1990s, and now represent one of the most frequent causes of public protest in China. As Fujian was a pioneer province in economic reforms, one would expect these pressures to have been felt there earlier than e.g. in some of the interior provinces. It can be assumed that many more such incidents occur than are ever heard about outside China, although since they are now occasionally filmed or photographed on mobile phones, sometimes extreme examples such as the fatal shooting of three villagers in Dongzhou township, Shanwei, Guangdong province, in December 2005 are reported in e.g. Hong Kong."
F. Professor Fu's reports and oral evidence
"Illegal immigration is an embarrassment to China, and the Chinese authorities have been using criminal law extensively as an instrument of deterrence. [The appellant] was an illegal immigrant and committed a very serious criminal offence in the UK, the combined effect of these factors make a prosecution more likely upon [this appellant's] return to China. The national authority and/or authorities in Fujian are likely to have been aware of [this appellant's] case given his frequent contact with his family in Fujian. Since the local authorities have already shown interest in [the appellant's] case, the risk of prosecution in China increases drastically. [The appellant] is likely to be detained and prosecuted even without any notification by the Chinese Embassy in the UK."
"5. The rationale behind Article 10 of the CL is that China, as a sovereign state, refuses to recognize foreign penal judgments unless such recognition arises in accordance with any international agreement which China has signed. The rule against double jeopardy does not apply in China in principle.
6. Importantly, decisions to prosecute or re-prosecute offences committed overseas under both Article 7 and Article 10 are discretionary. Under Article 7, [CL] normally applies to a crime committed by a Chinese citizen overseas only if the offence is relatively serious (and attracts a maximum sentence of more than three years) unless the offender is a civil servant or a serviceman, in which case all offences may, in theory, be prosecuted.
7. Article 10 is intended to avoid a situation in which a foreign court treats a Chinese offender with undue lenience. The article gives the procuracy the discretion to prosecute or not to prosecute a Chinese citizen who was tried by a foreign court for an offence committed overseas depending on the seriousness of the offence committed and penalties imposed by the foreign courts. The Chinese procuracy may re-prosecute the offender for the same offence to compensate for the undue lenience. The same article also authorizes the court to exempt the offender, when re-prosecuted, from any further punishment in China and give only mitigated penalties depending on the seriousness of the overseas offence and the severity of the overseas penalty."
"15. (6) if other laws provide an exemption from investigation of criminal responsibility."
Professor Fu considered that Articles 7 and 10 of the CL constituted such an exemption, since their operation was discretionary.
"239 Whoever kidnaps another person for the purpose of extorting money or property or kidnaps another person as a hostage shall be sentenced to fixed term imprisonment of not less than 10 years or life imprisonment and also to a fine or confiscation of property; if he causes death to the kidnapped person or kills the kidnapped person he shall be sentenced to death and also to confiscation of property."
The penalty for kidnapping and extortion could therefore range between 10 years and death, depending on the circumstances. The seven years already served might be taken into account. Reduction of sentence was commonly used in China's prison sentence with about 20-35% of inmates receiving reduction of their prison terms and early release (conditional or unconditional) for good performance after half the term had been served.
"50. Traditionally, police paid special attention to special groups of population, including people with a serious crime record. Under the Regulation on Targeted People Management issued on 21 March 1989 and amended on 25 May 1998, "residents suspected of serious criminal activities" including "people suspected of having violated citizens' physical and personal rights through activities such as murder, rape, bodily injury, and trafficking of women and children" are put into the blacklist of targeted people of the local police and subjected to police surveillance. However, as Fei-Ling Wang noted, given the high mobility of people in contemporary China, police control over targeted people has become much more difficult and less effective. Additionally, according to Wang, factors such as "the changed social environment in China, which has led to the public increasingly despising secret dossiers, informants, intolerance, and persecution by association and suspicion" were considered by the police to be another significant reason undermining the effectiveness of the police in monitoring the targeted population. There is no longer an effective legal mechanism to monitor a person who is in the criminal process. Virtually, anyone can vanish in Chinese cities without being traced (even by the authorities) if he or she wishes to do so." [Emphasis added]
(a) For offences carrying a maximum prison term of five years, the limitation period was also five years;
(b) for 10 year sentences, it was 10 years;
(c) for fixed term imprisonment in excess of 10 years, the limitation period was 15 years; and
(d) for offences carrying a possible sentence of life imprisonment or death, it was 20 years.
For potential capital or life sentence offences, if prosecution were considered necessary outside the 20-year limitation period, the Supreme People's Procuratorate would be asked to examine and approve any proposed prosecution.
(a) In the WC report (paragraph 12) Professor Fu's opinion had been that there was too little reporting of such prosecutions to enable a view to be formed as to when the Chinese authorities would use Article 10. In the main report (paragraph 21) he discussed evidential difficulties and the reluctance of the Chinese police to pursue matters which required foreign evidence to found the prosecution. The WC report had been written against the background of a number of high-profile cases in 2004 in the West, and no information from China. Professor Fu's explanation for the change in his view was a combination of more information (the evolution of Chinese law and available databases) and more time to consider his opinion in the intervening four years.
(b) In the WC report (again at paragraph 12) Professor Fu's opinion was that Article 10 re-prosecution was very likely because of the Chinese authorities' focus on illegal immigration. In 2007 (paragraph 23) he regarded it as an ordinary crime and, since the police were overloaded, considered it unlikely they would pursue the appellant. In his explanation for the difference, Professor Fu set out a chain of illegal migration deaths which had made it top of the Chinese authorities' agenda in 2004. In the meantime, interest had died down and the Chinese authorities were now very much more interested in their own corruption problem rather than migration issues which were much more of a problem for the host countries. They were having severe difficulties in getting corrupt officials returned from abroad and the attitude of the Chinese authorities had changed:
"To show its determination to combat the ever deteriorating situation of official corruption, in recent years the Chinese government has started to strengthen its cooperation with the international community in the hope of having greater chance to get back the fugitive corrupt officials. To secure the cooperation with foreign countries, and the western developed countries in particular, China has no choice but to accept certain international norms, such as, as I mentioned in my Opinion on the present case, the political offences exception and the death penalty exception. China has been insistent on not having an express death penalty exclusion clause in any document it signed with foreign countries. However, its attitude began to change in November 2005 when it signed its first bilateral extradition treaty that has an express death penalty exception clause with Spain. Thereafter, it also signed two similar agreements with France and Australia respectively in March and September of 2007. The above mentioned agreements apply to all criminal offences and are not limited to corruption.
As a result of the enhanced international cooperation in criminal matters, China has also agreed to comply with the rule against double jeopardy where there are bi-lateral treaties in place. It is therefore increasingly unlikely that China will re-prosecute offences that have occurred overseas in general, and inchoate offences in particular."
(c) In paragraph 14 of the WC report, Professor Fu opined that WC would be likely to confess under duress or even torture. In the main report in 2007 (paragraph 22) his opinion was more sanguine, observing that the Civil Procedure Law stated clearly that a mere confession was insufficient to convict an appellant –
"There have been important changes in the criminal justice practice since 2003/04. There was a new government and a new Minister of Public Security, which initiated a series of police reforms in response to a number of high-profile police scandals. In 2003, media exposures of police scandals were unprecedented in both quantity and quality. The public outcry was overwhelming and these were rare occasions in China in which public opinions led directly to government action. The reform under the new Minister was the most systemic in China since 1978, targeting particularly torture and unlawful detention. The reform was regarded as largely successful in reducing the incidents of torture during interrogation. While torture has always been a criminal offence in China, it is much less likely for police to use torture during interrogation after 2003/04 than before 2003/04. See Fu Hualing, "Zhou Yongkang and Recent Police Reform in China" (2005) Australian and New Zealand Journal of Criminology."
(d) Finally, Professor Fu commented on the change in his view of the risk of laojiao. He set out the levels of public protest and some legislative moves to limit laojiao. He did not consider the present appeal to be a situation where laojiao would be appropriate due to the serious nature of the index event.
"Most of the resources we get now are not from the Court website, but from an unofficial database from the university law school websites which are more systematic. They have the centralised resources to do it in the universities. They have the resources to build a really big database of Chinese decisions, 50,000 cases now on the website Chinalawinfo.com maintained by Peking University Law School. Last time I looked it was 50,000, and it is getting bigger all the time. I do not know how frequently they add cases but I know that they collect cases, classify them and put them there. There are less than 1 million criminal cases a year in China, about 700000, there are 7 million cases in Chinese Courts overall per year with criminal cases about 10%. The Chinalawinfo website database is a drop in the ocean? Yes, and I do not know their premise of case selection.
You have mentioned a number of cases in your main report from the Chinalawinfo website? Yes. Did you check city court websites? Yes, we checked the Supreme People's Court, larger city courts but not the county courts."
Chinalawinfo was the most comprehensive online database, containing government regulations, all the judicial decisions given by the courts, and full copies of all case reports.
1. The Foreign and Commonwealth Office 'double jeopardy' letter
"Following our recent correspondence, I am confirming our understanding that the concept of double jeopardy is addressed in Chinese law.
Article 10 of the 1997 Criminal Code of the PRC states that "If any person commits a crime outside the territory of the PRC for which according to this Law he would bear criminal responsibility, he may still be dealt with according to this Law, even if he has already been tried in a foreign country. However, if he has already received criminal punishment in the foreign country, he may be exempted from punishment or given a mitigated sentence."
Article 7 states "This law is applicable to any citizen of the PRC who commits a crime outside the territory of the PRC that is specified in this Law. However, if for that crime this Law prescribes a maximum punishment of fixed-term imprisonment of not more than three years, he may not be dealt with."
The circumstances under which an individual would be punished in China for a crime committed in a foreign country, for which he had already been punished in that country, are unstipulated. The Chinese authorities are more likely to take this action if the crime had received a lot of publicity in China, if the victims were well-connected in China, if there were a political angle to the original crime or if the crimes were of a particular type that the authorities wanted to make an example of [sic]. Our Embassy in Beijing is unaware of such instances. The specific inclusion in the Criminal Law of 'exemptions' from second punishment in China for crimes committed abroad suggests that the authorities would not take further action against ordinary criminal offences.
I can also confirm that we have no means of monitoring Chinese citizens once they have returned to China."
2. The arrest warrant and the Foreign and Commonwealth Office response
"39. In summary the principles set out in this determination are:
1. In asylum and human rights cases it is for an individual claimant to show that a document on which he seeks to rely can be relied on.
2. The decision maker should consider whether a document is one on which reliance should properly be placed after looking at all the evidence in the round.
3. Only very rarely will there be the need to make an allegation of forgery, or evidence strong enough to support it. The allegation should not be made without such evidence. Failure to establish the allegation on the balance of probabilities to the higher civil standard does not show that a document is reliable. The decision maker still needs to apply principles 1 and 2."
"However, a warrant which meets these criteria isn't necessarily authentic. There is no technical verification system, such as a watermark or bar code, making them relatively easy to forge. It would therefore be very difficult for an independent academic expert to give an opinion on the authenticity of a warrant, beyond commenting that the format appeared to be standard.
A more reliable way of checking would be through the prosecutor's office which issued the warrant. That office would be able to verify it by checking the warrant number against their records. However, this would require a Formal Mutual Legal Assistance request."
3. Home Office Country of Origin Information Report on China 2007
29.08 As reported by Ronald Skeldon of the University of Sussex, writing on Chinese migration in April 2004:
"… any simple correlation between the total population of China and the number of Chinese overseas is deceptive, because the majority of the latter trace their roots to a very few regions within China. The three southern coastal provinces of Guangdong, Fujian, and Zhejiang have dominated the emigration, and within those provinces, a limited number of districts and even villages. These areas were marginal to the Chinese state and weak in terms of their resource base. However, most importantly, these areas were the earliest and most intensively affected by the seaborne expansion of European colonial powers, which linked them to a wider global system. Furthermore, in contrasting numbers of Chinese overseas with the base population of China, Chinese ethnicity must not be confused with Chinese migration, because many of the Chinese overseas were born outside China in the lands chosen by their parents and grandparents."
29.12 As reported by in the Guardian newspaper on 7 February 2004, "People from Fujian have a long history of seeking their fortune overseas. In extreme cases some villages have 80% of families with someone living overseas."
Snakeheads (people smugglers)
29.13 As reported by Channel News Asia on the 13 February 2004:
"The network of snakeheads, or human smugglers, operating in China's Fujian province is 'huge', meeting demand from locals attracted by the potential of earning 10 times an average Chinese wage in Europe, according to a report. 'Many snakeheads belong to one family, and others are friends,' a man who worked as a snakehead for 10 years told the China Daily. 'They cooperate with each other, take charge of different areas of human smuggling, and get rich by sharing money from the stowaways.' The issue has been thrown into the spotlight by the drowning of 19 presumed Chinese picking cockles a week ago in Britain's Morecambe Bay. Fifteen of them are believed to be from Fuqing city in Fujian, natives of which have a long history of illegally entering other countries." …
29.15 According to Dr Frank N. Pieke in his paper entitled Chinese Globalization and Migration to Europe, published on 9 March 2004:
"American research (Chin 1999; Zhang and Chin 2000) on Chinese human smugglers has revealed that snakeheads are not triad-like criminal organizations that can be countered by conventional law-enforcement methods aimed at eliminating the organization's leadership. Rather, snakeheads are independent and highly specialized entrepreneurs enmeshed in loose networks, only cooperating on specific consignments. Consequently, countering snakeheads should focus on spoiling their market, both by raising the risks and costs of their operations and by taking away the demand for their services. The key issue then becomes how many Fujianese a country should admit under a program of migration to make a sufficient number of snakeheads abandon their trade for something less risky and more profitable."
29.16 As reported by the US State Department (USSD) Report 2006, published on 6 March 2007, "When arrested and brought to court, human smugglers received five to ten-year jail sentences and fines up to $6,000 (RMB 48,000). In very serious cases, courts imposed life imprisonment or the death penalty". As reported by CEME (Cooperative Efforts to Manage Emigration), which brought together the findings of week-long visit to Fujian undertaken in June 2004, "Persons convicted of organizing smuggling or trafficking can be fined or, if convicted, sentenced to 2, 5, 10 years or life imprisonment." "
Respondent's submissions on the appellant's case and the background evidence
"…must not exclude any matters from its consideration when it is assessing the future unless it feels that it can safely discard them because it has no real doubt that they did not in fact occur (or, indeed, that they are not occurring at present). Similarly, if an applicant contends that relevant matters did not happen, the decision-maker should not exclude the possibility that they did not happen (although believing that they probably did) unless it has no real doubt that they did in fact happen."
"We would accept that the correct approach to the application of the Chahal test is that described in Karanakaran. The decision-maker should take a holistic approach; it should take account of all the relevant evidence and risk factors, giving to each matter such weight as it warrants, bearing in mind its importance in the context of the case and the extent to which it has been satisfactorily proved. It will be proper to exclude from consideration those matters which it can safely discard because it has no real doubt that they did not occur. The decision-maker should also take account of the absence of satisfactory information relating to matters of importance. If no evidence or information can be discovered on a matter of importance, its absence will be relevant to the assessment of future risk."
Appellant's submissions on the appellant's case and the background evidence (Mr Mackenzie)
2. Although the SSHD has disputed some aspects of the Appellant's account, much of what has happened to him, both before and after his arrival in the UK, is not in dispute. The principal focus of the hearing is therefore on the risk of the following if [this appellant] is returned to China:
i. Breach of the Refugee Convention and/or Articles 2, 3, 5, 6 and/or 8 ECHR on account of his involvement in rural protests before leaving China;
ii. Breach of Articles 3, 5 and/or 6 ECHR as a result of the risk of double punishment in China for the offence of which he was convicted in the UK.
3. Points previously pursued before the Tribunal relating to his illegal departure from China and his relationship with his sister were not subject to an application for reconsideration and the Appellant recognises that they cannot be pursued now.
"The system of national household registration (hukou) underwent further change during the year, as the country accumulated a more mobile labor force. Rural residents continued to migrate to the cities, where the per capita disposable income was more than quadruple the rural per capita cash income. Nonetheless, many could not officially change their residence or workplace within the country. Government and work unit permission were often required before moving to a new city. Most cities had annual quotas for the number of new temporary residence permits that would be issued, and all workers, including university graduates, had to compete for a limited number of such permits. It was particularly difficult for peasants from rural areas to obtain household registration in economically more developed urban areas.
The household registration system added to the difficulties rural residents faced in changing to urban residency, even when they have already relocated to urban areas and found employment. There remained a floating population of between 100 and 150 million economic migrants who lacked official residence status in cities. Without official residence status, it was difficult or impossible to gain full access to social services, including education. Furthermore, law and society generally limited migrant workers to types of work considered least desirable by local residents, and such workers had little recourse when subjected to abuse by employers and officials. Some major cities maintained programs to provide migrant workers and their children access to public education and other social services free of charge, but migrants in some locations reported that it is difficult to qualify for these benefits in practice. Many cities and provinces continued experiments aimed at abolishing the distinction between urban and rural residents in household registration documents."
"55. ...But it is the Secretary of State who is likely to have the most comprehensive knowledge of conditions in foreign countries, not least through diplomatic and consular channels, and if decisions with the enhanced status of Country Guidance cases are to be made about those countries it might seem appropriate for the Secretary of State directly to contribute that knowledge."
"45. As to evidence, such as the letters from the British High Commission, it is true to say that High Commissions and Embassies come within the auspices of the Foreign and Commonwealth Office. That, like the respondent, is an arm of the executive. In this case the evidence in the letters has been obtained at the specific request of the respondent. Little is known about the information-gathering process, where the raw data came from, or the extent to which it has been filtered. It is also unclear whether more than one source was consulted and, whether competing views were sought. That all goes to how much weight can properly be put on the evidence. Immigration judges should be slow to find bad faith on either side, even though they must approach the evidence with an open and enquiring mind as to the appropriate weight to be put upon it. We comment further on the BHC material later in this decision."
Overseas offences prosecutions (including re-prosecutions) in China
"47. Now, however, evidence has been adduced to the effect that there have been re-prosecutions. Extending the net to cover both points raised before the Adjudicator and since, it appears there are five possible candidates for case examples.
(1) The possible case of three people who had returned to China after having served sentence in Hong Kong pre-1997 and it was suspected they were considered not to have served enough imprisonment and may have been imprisoned or sent to a re-education camp. This possible case was considered by the Adjudicator at paragraph 25 where he observed that in his oral testimony Professor Palmer accepted he did not know whether in fact the convictions in this case were for other offences committed in China. It was not, therefore, a concrete case.(2) The possible case of Mr Chen Xiangui said by Professor Palmer in his July 22, 2003 statement to have been convicted of offences in which he caused financial losses to a Chinese company in Kuwait, and to have been sentenced by the court in Kuwait to a term of imprisonment, as his conduct was considered to have had an adverse impact on China's reputation abroad, the Jintong Xiaon (Sichuan) Basic Leave Court deciding to reconvict him for those offences under Chinese law and for him to serve an additional three years imprisonment. However, before the Tribunal the Professor conceded that he was mistaken in describing this as a re-prosecution case.(3) The possible case of Wu Xun who committed burglary in Japan and was tried and sentenced to eleven years' imprisonment in Shanghai even though under Japanese law the maximum penalty for the offence was only seven years. This case was also cited in Professor Palmer's 2 July 2003 letter. However, his own words in that letters were that: "It seems that he was not tried in Japan, although this is not altogether clear form (sic) the report". If he was not as it seemed tried in Japan, then this was not a case of re-prosecution or double punishment. In his evidence before the Tribunal the Professor confirmed this was not a case in point.
48. Professor Hu [sic] documented two further cases involving Mainland hijackers who had been repatriated from Taiwan to the Mainland.
(4) A Chinese couple, Luo Changua and Wing Yuing hijacked a flight from Mainland China to Taiwan in 1993. They were convicted of hijacking in Taiwan and sentenced to nine and seven years' imprisonment respectively. They were repatriated to the Mainland in 1999 and upon their return were sentenced to a further fifteen and ten years' imprisonment respectively by a local court on the mainland.(5) Huang Shugeng hijacked a flight to Taiwan also in 1993. He was convicted and sentenced, in Taiwan, Huang was repatriated to the Mainland in 1997. Upon his repatriation, he was reconvicted of hijacking and sentence to twenty years imprisonment.
49. We do not consider upon proper analysis these latter two cases exemplify the use of re-prosecution or double punishment of persons convicted in foreign courts. Even though there does exist an extradition agreement between PRC and Taiwan under Article 2(2) of the Golden Gate Agreement, and even though for limited purposes Taiwan is regarded by the international community as a separate country (i.e. by the World Trade Organisation), the PRC most emphatically does not recognise Taiwan as a separate state and in particular does not recognise the Taiwanese courts. Accordingly, we agree with Mr Underwood's final written submission that the hijackings were of flights of Chinese aircraft flying from China, and accordingly were not regarded by the Chinese authorities as constituting offences taking place outside Chinese territory as a matter of law.
Article 7 Prosecutions
a) In 1996, Chinese citizen Chen Xiangui worked for a Chinese construction company in Kuwait but became unhappy with the working and living conditions. According to the judgment, he incited workers to assault the managers, damaged property and caused disorder in the workplace. Chen was prosecuted, in China, for organising others in disrupting social order and causing substantial economic loss to the company. The court emphasized the aggravating factor of negative international impact that case might have and sentenced Chen to 2 years' imprisonment. (This case was also mentioned in WC).
b) In 2001, Chinese citizen Yao Ping, a caretaker of a Chinese monk who accompanied the monk to Nepal to work in a temple there, was prosecuted in China for theft from the monk during his work in the Nepalese monastery, of a notebook computer, video camera, a DVD player and a watch belonging to the monk. In convicting Yao, the court balanced the aggravating factor of "undesirable impact to the Buddhist community and internationally" that Yao's crime had created with the fact that Yao had returned all the stolen goods. The court finally sentenced Yao to 5 years' imprisonment and a fine of 1,500 RMB for theft.
c) In 2002, Chinese resident Xiang Jianhua was prosecuted in China for conspiracy with another Chinese citizen Chen Guanping to kidnap and falsely imprison Chinese resident Shen Hong, the offence being carried out in Yugoslavia, including instructing two other Chinese citizens to open bank accounts in false names in Wenzhou and Beijing to receive the ransom money. Shen was assaulted during the course of detention. Xiang's co-defendant telephoned Shen's family several times, threatening to kill Shen and demanding ransom in the amount of two million RMB, which was paid by Shen's father. The Yugoslavian Courts did not prosecute Xiang; he was returned to China (it is unclear how), prosecuted and tried under Article 7 of the CL, convicted of kidnapping and sentenced to 14 years' imprisonment, deprivation of political rights for 4 years and a fine of 300,000 RMB. Xiang appealed against the decision; the appeal was dismissed on 9 October 2003.
Article 10 Prosecutions
a) In 1990, Ning Hong was convicted of causing serious injury to another Chinese citizen in Kuwait in 1990 and sentenced to imprisonment (the term is unknown). A few months later, Iraq invaded Kuwait. The prison was attacked. Ning escaped and returned to China. After his return, he was identified by the person he attacked. The victim called the police and Ning was subsequently arrested, re-prosecuted, and re-convicted for the same offence in China (Professor Fu)
b) In June 1996, the Shandong PSB was considering investigating the criminal responsibility of a returned Chinese citizen (Yao Weiye) who had committed a crime and been tried and punished by a court in Ukraine. However, the prison term the citizen had served overseas might be taken into account by the Chinese authorities as a mitigating factor in determining his punishment. There is no further information as to how this case was handled eventually but the question of re-prosecution was at least considered. (Professor Fu and Dr Gechlik)
c) In July 2001, a news article identified the case of LIN Xuecheng, convicted in the United States of smuggling more than 60 illegal immigrants to the United States, tried, and sentenced to 30 months imprisonment. He served his sentence and returned to China; upon his return, he was arrested by the local Procuratorate. Again, the final outcome of this case is unknown. (Dr Gechlik);
d) In September 2007, a mainland Chinese citizen, surname Shi, a convicted arsonist who had been sentenced to 9 months' imprisonment in the United States and then deported with a warning as to his mental illness from the United States authorities to the Chinese authorities was given lenient treatment by the Border police. (Professor Fu)
e) In February 2007, a news article reported that a Mr. Yang was convicted of trafficking illegal drugs to Japan and was sentenced to five years imprisonment. He was released in late February 2007 and deported to China by the Japanese authorities. Immediately upon his return, he was "handled in accordance with relevant legal rules" by the authorities at the Shanghai border. It is not known whether that included re-prosecution. (Dr Gechlik)
Removal of Chinese snakehead defendants (some convicted with the appellant and some for factually similar offences)
General conclusions on the background evidence and expert reports, set against the issues identified
1. WC and SC
"41. It is plain that Chinese law does allow for the possibility of double punishment. Article 7 of the CL applies the criminal law to any citizen of the PRC who commits a prescribed crime outside the territory (and territorial waters) of the PRC. It is equally clear however, that its application is not mandated. ...
42. It is not in dispute in this case that under Chinese law the offences which the appellant committed in the UK would be regarded as serious. In China, as already noted, the offences of kidnapping, false imprisonment and blackmail carry sentences of ten years or more. …
45. At the date of hearing the position was this. Both Professor Palmer and Mr Becquelin as well as UNHCR accepted that there had been no cases of prosecution where a person has been prosecuted abroad. Since Professor Palmer also accepted that there had been persons convicted abroad who had returned, this in our view was a very significant piece of evidence. ...
60. Our principal conclusions are as follows. Firstly, although we have to consider evidence not all of which was before the Adjudicator, we do not consider that the appellant has established that on return he faces a real risk of re-prosecution or double punishment for offences committed in the UK. Secondly, although we do accept he would be apprehended by the authorities on return and would face conviction and punishment for illegal exit, we do not consider that this would result in treatment contrary to Article 3 or a flagrant denial of any other fundamental human rights. "
"44. We cannot ignore the absence of evidence in this case. It is clear that experts such as Dr Dillon visit China regularly and read local newspapers and listen to local radio, yet he, like Professor Palmer who gave evidence in WC can point to no examples of re-prosecution where a person has been prosecuted abroad. Dr Dillon made the point that there was a distinction between there not being evidence of re-prosecutions and accepting or not accepting that there had been no cases of prosecutions, and we agree that there is a distinction there. But we have to be concerned with evidence of a real risk as opposed to speculation in coming to our conclusions. Much has been made of both the general attitude of the Chinese authorities to human rights, the secretive nature of that society and the control exercised over the media, in seeking to persuade us that the absence of evidence should be regarded as unsurprising and not stand in the way of the case being made out. In this regard however we consider it is also relevant to bear in mind the absence of any evidence concerning the co-conspirators of the Appellant who have been returned to China over the last twenty months or so and the absence of any indication as to what their fate may be. Dr Dillon no doubt properly raised the question as to whether there was proof that they were all right, but he is not a lawyer, and that ignores the obvious point that the burden of proof is on the Appellant.
45. In coming to our conclusions we do not ignore the profile of this case and the fact that there was clear cooperation between the Chinese and the United Kingdom authorities. Nor do we ignore the point of distinction that we have identified above at paragraph 34 between this case and the facts of WC. We also bear in mind the evidence concerning the preparedness of the Chinese state to act in defiance, if it may so properly be described, of the provisions of the CL in cases which it deems to be appropriate, and the apparent compliance of the Chinese courts with such an approach. These are clearly matters of significance which cannot properly be ignored, and in this regard we also bear in mind the points made concerning extrajudicial punishments such as labour camps which exist as a further option, it seems, to the authorities. But in the end we are not persuaded that the Appellant has shown a real risk of re-prosecution in China with regard to the offences for which he was convicted in the United Kingdom or prosecution for any other reason. …the facts in the evidence in this case are not such as to show a real risk to this Appellant on return of breach of Articles 3, 4, 5 and 6 of the Human Rights Convention. …
47. We agree with the Tribunal in WC that the ne bis in idem principle (i.e. the principle precluding retrial or re-punishment for an offence for which the person has already been finally convicted or acquitted) does not yet constitute a peremptory norm prohibiting the punishment of a person twice in two different states for the same offence. We do not however consider that if the appellant were sentenced to up to five years imprisonment in China on return (on the basis taken by the Tribunal at paragraph 35 in WC) even taken with the evidence of prison conditions in China, [that] would give rise to a real risk of breach of his human rights. The risk alluded to in paragraph 37 of WC of the appellant being made a public example of seems to us to be unnecessarily speculative, bearing mind the absence of any hard evidence before us of a 'strike hard' approach such as that referred to in that paragraph. "
2. Double jeopardy: assessing the experts and their evidence
"37. As Collins J said in Slimani, experts can vary in their independence and expertise to a very large degree. Some are well known as reliable, others perhaps equally well known as unreliable. In the centre ground comes the majority. It is the task of the Tribunal to decide what evidence they accept and what weight they can put upon the evidence they receive. … In fact, in this jurisdiction, experts are not merely the providers of raw data but they can be the interpreters of it as well. Their interpretation, and any opinion based on that interpretation, can only be as good as the raw data itself. By that we mean not only the quality of the data, but the selection or filtering, of it.
38. We agree with the concept of the expert as a filter of evidence. A real problem arises in this jurisdiction from the use of the word "expert". In this context an "expert" is merely a witness giving factual, hearsay and opinion evidence. No witness is prohibited from doing that. The question is not therefore the admissibility of the evidence (as it would be in the criminal and civil courts) but the weight to be given to it. The task for us is therefore to decide, simply, how much weight is to be put on the conclusions and/or the filtered evidence that is put before us. The fact that it is demonstrably wrong may help to assess it. However, the fact that it is not demonstrably wrong does not engender reliance upon it, whether or not the person giving the evidence is, or claims to be an "expert". Additionally, in order to accept an expert as a competent and reliable filter mechanism it is necessary to trust the expert and to have confidence that he or she has filtered the evidence objectively and independently, not partially. The extent to which that trust can be established may depend on a number of factors including the reputation of the expert, and any established track record. It may also depend on the quality of the sources and whether there is a variety of sources. …The age of the source material and the number of sources is also important. An expert may not have any track record with the Tribunal, in which case particular care is needed in assessing the weight to be put on the evidence, and any opinion said to be derived from it."
In what circumstances will re-prosecution occur?
'… if he is deported he faces arrest and trial under Chinese law for this crime. He will receive an indeterminate sentence until the state determines he is fit to return to society, on Counsel's submission. There is a high level of certainty that he will receive additional time with his liberty restricted as a result of this crime, a fact that can be considered in determining the issue I have to deal with today, although there is an element of uncertainty with respect to what will happen in the future.'
"26. On the evidence relating to re-prosecution and the risk to the second Appellant if he were returned to China, the evidence was more complex and more voluminous. The Adjudicator clearly looked at it with some care. Whilst taking seriously the evidence of breaches of human rights including executions in China, she noted that the risk of re-prosecution appeared to be more theoretical than real. In her determination, she pointed out that in the materials before her there was "not one cited case on detention or prosecution on a returning Chinese citizen on account of any criminal or other offence that citizen may have committed abroad".
27. It appears to us that the evidence before the Adjudicator on this issue might well have been sufficient to enable her to reach a conclusion different from that which she did reach: but we are entirely unpersuaded by the grounds of appeal or by anything Mrs Sood said to us that the conclusion that she did reach was a conclusion which materially erred in law. Indeed, in the course of her submissions, Mrs Sood very frankly and properly said that her position was that the Adjudicator could have reached a different conclusion. We especially asked her whether she had said "could" or "should" and she emphasised "could". That, as we say, may well be so; but it does not amount to an allegation of error of law. For this and the other reasons given above, our conclusion is that in the second Appellant's case the Adjudicator made no material error of law and we order that the Adjudicator's determination shall stand."
12. Miss Plimmer submits that the approach of the IAT in paragraph 16 of their determination is not supportable. The Country Assessment states in paragraph 5.69 that "the penalty for refusing to perform military service is a fine and up to three years imprisonment…" This document was produced by the Home Office and placed before the adjudicator by their representative. In those circumstances to place a burden on the appellant to show that there is a real risk that this penalty would be imposed on him is unfair. I agree. It may well be that circumstances can arise when a law is shown to be never enforced in which case there would be no real risk to a citizen that he would be imprisoned pursuant to it. But, for my part, I do not consider that it was open to the IAT to conclude from the evidence before it that the present was such a case.
The appellant, relying largely on Home Office evidence, showed that:
i) he was a member of a community suspected of supporting the opposition and regarded by the Government as legitimate targets for life threatening activities;
ii) there was a real risk that he would be discovered as having evaded military service;
iii) the penalty for refusing to perform military service is a fine and up to three years imprisonment;
iv) arbitrary as well as justified arrest and detention by security forces was common;
v) in practice the security forces torture and beat suspected opponents of the government;
vi) conditions in prisons are life-threatening.
14. In the light of the Country Assessment it seems to me that the evidential burden passed to the Home Office. If it was going to be part of the Home Office case that there is no real risk that the penalties prescribed by law would be exacted then they should have produced the relevant evidence in advance so that the appellant might know what case he had to meet. The statement in paragraph 5.69 of the Assessment that a deserter will usually be re-conscripted does not meet the point – particularly when the appellant is a member of a persecuted minority and might thus be expected to be a candidate for the unusual. To expect him to do more than point to the law is in my judgment unfair and unrealistic – c.f. Modinos v Republic of Cyprus ECtHR 22/04/1993 16 EHRR 485. "
" 3.13 Prison conditions …
3.13.11 Conclusion. Whilst prison conditions in China are poor with overcrowding, and abuse by prison officials being a particular problem, conditions are unlikely to reach the Article 3 threshold. Therefore even where claimants can demonstrate a real risk of imprisonment on return to China a grant of Humanitarian Protection will not generally be appropriate. However, the individual factors of each case should be considered to determine whether detention will cause a particular individual in his particular circumstances to suffer treatment contrary to Article 3, relevant factors being the likely length of detention the likely type of detention facility and the individual's age and state of health. Where in an individual case treatment does reach the Article 3 threshold a grant of Humanitarian Protection will be appropriate."
Summary of findings and general guidance
The Chinese legal system
(1) The Chinese Court system comprises four tiers: the Supreme People's Court in Beijing, which is the highest judicial organ, responsible to the National People's Congress and its Standing Committee, and which hears appeals from the lower Courts, supervising their operation, now including automatic reviews of all death sentences passed by the lower courts, with oral argument; approximately 30 Higher Courts (the City Courts) in provincial, municipal and regional capitals; about 400 Intermediate Courts based in administrative centres, towns, and larger cities and which try criminal cases, with exclusive primary level jurisdiction in capital cases, subject to review by the Supreme People's Court; and approximately 3000 People's Courts which try minor matters in all Chinese towns and cities. People's Courts can establish People's Tribunals (which are not regarded as Courts) to handle local cases.
(2) Judicial databases in China have followed much the same evolution as in the United Kingdom. Since the late 1990s, the Supreme People's Court has sponsored a database, Chinacourt which now contains about 25000 selected decisions, either from the SPC or referred by the lower Courts (approved, rewritten and with an appropriate headnote through an SPC reviewing Committee). The database contains selected cases and not all cases; the reported cases, as on the United Kingdom BAILII and other databases, represent the decisions which are considered to be of interest and not the vast majority of decisions. Reporting in these databases is for technical reasons not to 'make an example' of a particular individual.
(3) Chinese Universities maintain fuller databases with more cases and better indexing, in particular Chinalawinfo (Peking University Law School) which holds 50,000 decisions. They are available to members of the University and by subscription to the professions but not otherwise.
(4) If the authorities wish to make an example, that would be done by journalistic reports in the local and national printed and broadcast media but these publications are hard to access outside China. Only one witness spoke of such a report and that related to a different discretionary provision, Article 18 CL.
(5) The NPC website maintained by its Standing Committee publishes excerpts from textbooks written by SPC judges to give guidance on the application of rather sparsely written Chinese Criminal Law and Criminal Procedure Rules and has done so for Articles 7 and 10 CL.
(6) There is pressure in the legal profession, supported by articles written by judges and one in particular by two Supreme People's Court judges and a member of the Judicial Training College, to remove Article 10 from the statute book but it has not yet succeeded. A similar movement to reduce or abolish torture, which was and remains unlawful, has had only limited effect in the larger cities; the pressure on police to obtain convictions in the 90% levels very quickly means that they are still likely to torture to obtain confessions.
(7) Chinese border guards have computerised systems into which passport data is entered manually (name, date of birth, address and the usual information) which brings up information as to entry and exit visas, but is not yet linked into the hukou system.
Overseas offences prosecutions under Articles 7 and 10 CL
(8) Articles 7 and 10 deal with prosecutions for offences committed overseas ('overseas offences') and are discretionary in their application. Both are used, but very rarely. Article 7 permits prosecution of an overseas offence which was not the subject of a foreign prosecution. Article 10 permits re-prosecution even where the offender was prosecuted, convicted, and punished abroad. The experts were able to identify only a handful of instances of overseas offences prosecutions over a 17 year period, three involving Article 7 and five involving Article 10. Of the three Article 7 cases, one involved factually similar offences and attracted a sentence of 14 years. The others attracted sentences of 2 and 5 years respectively, and a fine. Of the five Article 10 cases, four of them did not indicate whether investigation had led to prosecution. The other, in 1990, had a political element and involved a man who had escaped from the sentence he was serving in Kuwait before completing it. He was re-prosecuted and re-sentenced to laogai in China but the term is not known.
(9) International agreements with a growing number of countries restrict or remove overseas offences prosecution for offences committed in those countries. There is no such agreement with the United Kingdom.
(10) Prosecution under Article 7 or 10 is a fresh prosecution. For both Articles, the Chinese authorities have a discretion whether to prosecute, which will be exercised in the light of their opinion as to whether the foreign jurisdiction dealt properly, and without undue leniency, with the offence. It can no longer be said that there is no information available on the use of that power: the Chinacourt database of cases and the NPC website guidance comes directly from the Chinese Government and provides guidance on the use of these powers.
(11) The procuracy and police are reluctant to prosecute in most cases because of evidential difficulties in establishing the necessary elements of the offence without access to the overseas proceedings and evidence. Where there is no agreement between the two Governments, the case can be pursued only where either there are sufficient witnesses and evidence in China, or where the evidence used in a foreign jurisdiction can be obtained by diplomatic channels.
(12) Foreign judgements are not recognised but, where available, evidence obtained and used to in overseas prosecutions may be used as the basis of a fresh investigation in China. Torture during such an investigation cannot be ruled out, though it is less likely in the higher courts than in People's Courts. Western governments are reluctant to cooperate in furnishing the evidence required from their own records because of China's record on the death penalty.
(13) The Foreign and Commonwealth Office cannot monitor Chinese citizens who are returned to China, save negatively; in the case of re-prosecution, they would be likely to be aware of diplomatic requests for the United Kingdom evidence.
Laogai and laojiao
(14) Laodong gaizao, commonly abbreviated to laogai (reform through labour) and laodong jiaoyan, abbreviated to laojiao (re-education through labour) are distinct concepts.
(15) Laogai equates to imprisonment after conviction and is reserved for more serious criminal cases. There are international concerns about China's trial system and prison conditions but it will be appropriate to review those in another determination where there is a greater likelihood of trial and imprisonment. China's reform efforts are proceeding but they are not yet at a level where the West can have confidence that all appropriate international norms (in particular Articles 5 and 6 ECHR) are met.
(16) Laojiao is much more controversial. It is an administrative penalty, originally limitless but now restricted to four years maximum, where for lesser offences a person may be incarcerated in prison-like conditions at the behest of any official or police officer (or even a child's school). There is a powerful movement against it within China. Its use is declining. All the experts except Dr Sheehan agreed that re-prosecution or prosecution under Articles 7 or 10 for a serious offence would not be dealt with under laojiao.
(17) The Tribunal is satisfied that there is a double jeopardy risk under Article 10 CL, but that absent particular aggravating factors, the risk falls well below the level required to engage international protection under the Refugee Convention, the ECHR, or humanitarian protection.
(18) Merely to have committed a crime overseas, been sentenced and punished for it will not be enough to entail a prosecution under Article 10 CL; nor under Article 7 CL is it sufficient to have escaped punishment for an overseas offence.
(19) The risk of prosecution or re-prosecution will be a question of fact in individual cases but is more likely where:
(a) there has been a substantial amount of adverse publicity within China about a case;
(b) the proposed defendant has significantly embarrassed the Chinese authorities by their actions overseas;
(c) where the offence is unusually serious. Generally, snakehead cases in China do not have the significance they have in the West and are regarded as ordinary (but serous) crimes requiring no special treatment;
(d) political factors may increase the likelihood of prosecution or re-prosecution;
(e) the Chinese Government is also particularly concerned about corruption of Chinese officialdom.
Application of the general conclusions to the appellant's case and decision
The s.72 certificate
"339D. A person is excluded from a grant of humanitarian protection under paragraph 339C (iv) where the Secretary of State is satisfied that:
(i) there are serious reasons for considering that he has committed a crime against peace, a war crime, a crime against humanity, or any other serious crime or instigated or otherwise participated in such crimes;"
"65. Plainly the effect of section 72(2), if applicable, is to put beyond argument the existence of a particularly serious crime, and the fact that the crime for which a sentence of three years was passed preceded the Act does not affect the application of the Act to it. …
67. If the specific definition of "a particularly serious offence" in section 72(2) includes offences which would not otherwise have been within the scope of Article 33(2), section 72(2) alters the law to that extent but in its effect is qualified by the rebuttable presumption as to dangerousness in subsection (6). Except to the extent that that alters the burden of proof, the dangerousness requirement would have to be satisfied conformably with the Convention thresholds. This ought to lead to the same result as before, except where the change in the burden of proof, if it is a change, would affect the outcome.
68. This provision does not have many of the objectionable features of retrospective changes to the law. It does not change the character of past transactions or arrangements; nor does it criminalise past conduct or increase the criminal penalties. But it changes the potential asylum consequences of a past criminal act and its sentence; it may affect a decision as to whether an appeal against sentence should be launched. ..."
Credibility and findings of fact
Double jeopardy and Article 10 re-prosecution
Continuing applicability of existing country guidance cases
The original Tribunal made a material error of law. The following decision is substituted:
Signed Dated: 12 May 2008
|1991||Nanping, Liu: "Legal Precedents" With Chinese Characters: Published Cases in the Gazette of the Supreme People's Court, Journal of Chinese Law, Volume 5 (1991) 107|
|27 May||Agreement between the People's Republic of China and the Republic of Bulgaria on Mutual Legal Assistance in Criminal Matters|
|1997||Nanping, Liu: Judicial Interpretation in China: Opinions of the Supreme People's Court (Excerpt, Sweet and Maxwell)|
|2003||Dr Mei Y Gechlik: "Improving Human Rights in China: Should Re-Education Through Labour be Abolished?" Columbia Journal of Transnational Law|
|8 April||Report of Professor Fu in WC Case|
|27 May||Agreement between the People's Republic of China and the Republic of Colombia on Mutual Legal Assistance on Criminal Matters.|
|December||Amnesty International: "Human Rights Defenders at Risk"|
|17 June||London `Times' article `Thugs kill farmers for their land'|
|26 July||United States Congressional-Executive Commission on China: Written evidence of Professor Jerome Cohen: "China's Legal System in Transition"|
|2 September||US Congressional-Executive Committee: "China's Household Registration (hukou) System: Discrimination and Reforms"|
|10 October||BBC News: "China village democracy skin deep"|
|14 November||Extradition agreement between People's Republic of China and the Kingdom of Spain|
|29 November||Home Office Operational Guidance Note on China|
|3 December||Guardian newspaper article : "Torture Still Widespread in China"|
|1 January||International Herald Tribune: "In rural China, a time bomb is ticking"|
|8 March||OHCHR Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, "Mission to China" (Advanced Edited Version)|
|10 March||US State Department Report on China for 2005|
|10 March||UN Economic and Social Council Report on China|
|27 March||Human Rights in China: "Rural Land Activists Detained after Petitioning over Corruption"|
|11 May||BBC News Online: "China's 'reforming' work programme"|
|14 May||Toronto Star newspaper article: "Is child Killer here to stay?"|
|19 June||AsiaNews.it article: `Beijing threatens lawyers: `Don't help anti-Government protestors'|
|18 July||Amnesty International report `People's Republic of China' `Human rights Defenders at Risk' (with update)|
|20 September||US Congressional-Executive Commission on China: Professor Jerome Cohen (written evidence): "Human rights and the Rule of Law in China"|
|20 November||Home Office Operational Guidance Note: China|
|1 March||China Daily article: "End Legal Black Hole"|
|6 March||US State Department Report: Human Rights Practices – China|
|15 March 2007
||UN General Assembly Report on implementation of General Assembly resolution 60/251, only in so far as it relates to China (pages 1-3 and 21-26),|
|29 June||ABC News Australia: "Chinese deportee tells of torture"|
|8 August||Dr Michael Dillon: Expert witness report on JC|
|7 September||Dr Jackie Sheehan: Country Expert Report in the case of JC|
|11 September||Dr Mei Y Gechlik (nee Veron Mei-Ying Hung): Expert witness report re JC|
|30 October||Professor Fu Hualing, Expert Report (Double Jeopardy), with Curriculum Vitae and annexes|
|12 November||Letter from Foreign and Commonwealth Office|
|3 December||Home Office Country of Origin Report: China|
|6 December||Guardian report: "Chinese police stage huge gang crackdown"|
|14 January||Respondent's Skeleton Argument|
|17 January||Dr Jackie Sheehan: "Remarks in addition to the Country Expert Report on JC" and appendices with translations|
|17 January||Comment of Professor Fu on WC report|