Hot Water in China? Don’t Get Burned: Part I
No one ever expects to get arrested, extradited, questioned, detained or otherwise entangled in a snafu when visiting or residing in a foreign country, particularly if you’ve put forth a best effort to understand that country’s rule of law and follow it by the book. China’s legal intimidations are enough to keep most people in line; the international press has done a good job of broadcasting China’s strictest punishments. Sure, if you head over to China to protest your support for religious activities or have decided to make a quick buck selling foreign secrets to Chinese government agencies, then you should expect a mess before you even get on the plane. I am not about to condone a dismissal of China’s laws, customs and political systems and I’m certainly not going to write a post on how to get away with breaking the rules.
In truth, I felt safer in China then I’ve ever felt anywhere. I rode my bike on back roads well after midnight without worrying about issues like robbery or assault, I backpacked for a few months alone without ever being harassed or intimidated, and I generally experienced a sense of security not found in my home city of New York. Surprisingly, I still felt this way even after two of my expatriate friends fell victim to a violent attack while living in Shandong Province (more on that later). China’s tough stance on crime has, in fact, made it a pretty secure place to roam. On the flip side, it’s a lot easier to find oneself in legal hot water, even by proxy or mistake. What are some of the less obvious risks and how can you avoid them? What should you do if you find yourself in the back of the police car and can’t understand a word that’s being said? As a foreigner, what are your rights in China? Regarding more serious instances and lengthy detainment in a Chinese prison, what protections are offered to you by your home country and how much will your own government get involved? In this three part series, I’ll explore these questions and offer a bit of guidance through personal experience, research and firsthand accounts. In Part 1, I’ll explore a few real cases where foreigners have been arrested in China for “vague crimes,” and offer a list of lesser mentioned behaviors and activities that should be avoided while residing in China.
Mistakes happen. Sometimes we find ourselves in the wrong place at the wrong time. Perhaps we assume our immunity as foreigners for activities like trespassing, driving without a license, or walking out of the house for a night on the town without bringing along our passports. Let’s face it- most of us have slipped up at one time or another without much consideration for our actions or the potential consequences. I’m generally law-abiding: I don’t touch illegal drugs, I’ve never gotten behind the wheel of a car with a drop of alcohol in my system, I’ve never been arrested or even received a speeding ticket, and I always file my taxes on time. That stated, I spent a few weeks dealing with the police in China as a “witness” to a crime and I unknowingly stepped into a situation while living there which escalated into a cross-border predicament and required a bit of homework on my part. Go figure- I’m not the only one:
This firsthand account of an expat woman in Shanghai details what appears to be a setup; erroneously accused by a Chinese man on the street for stealing his mobile phone and unable to communicate in Mandarin, she soon finds herself forcibly restrained by her accuser and…
put in the back of a police car and taken to the station. My accusers have disappeared. They went home to root up evidence that the phone was theirs and they will bring it to the station, I’m told. The police speak no English. The situation is confusing. The police are not sure what to do with me. Hours pass, my accuser does not return. It seems to be taking them longer than expected to find evidence. I’m wondering if I will have to spend the night at the police station.
Another story involves an American graphic designer who bought a motorbike from another expat in China and decided to take it for a spin without a China-issued drivers license (he did have a US drivers license and a motorcycle permit). The outcome? He was arrested and detained in a Chinese prison for seven days. Here’s an excerpt from his video account, which you can watch here and here.
The cell was lit with bright fluorescent lighting and everyone was sitting on the ground. There were no chairs, no beds, no pillows. I was hoping that they weren’t hardened criminals. Immediately, they wanted to let me know what I was in for… The consulate had come to visit me. I was told they would visit me within 48 hours, but it took 4 days. I was put in on a Friday, and on Tuesday they came to visit. They brought me my glasses (note: the Chinese police had taken his contact lenses) and a clean shirt. I was so grateful to see someone and just to be able to talk as well. When I was taken back to the police station, it was a pretty quick affair. One of the guys who was there when I was arrested comes out and hands me my passport and it’s open to a page. I look at the bottom of the page and [the cop] points to it and it says “Must leave China within ten days.”
A third case- and a more common occurrence- is that of five foreigners who were detained after they were found living illegally in Beijing. This came following a special inspection where the PSB reportedly discovered that 23 foreigners either did not take or refused to show their residence certificates while hanging out in Sanlitun. An article excerpt is as follows:
In a special inspection campaign on the night of Sept. 21, the Chaoyang district branch of the Beijing Public Security Bureau found 23 foreigners did not take or refused to show their passports or residence certificates in Sanlitun, a bar area popular among both Chinese and foreigners in eastern Beijing.
The 23 people were taken to police department for interrogation as they had violated China’s entry and exit law, said the information office of the bureau.
Eighteen of them left the police department after showing their certificates. Five were detained after failing to provide proper certificates, the office said.
“The detention was a normal law enforcement act,” said the office.”
I’ve previously commented about Morgan Stanley’s China real estate man, Garth Peterson, who was fired after the company uncovered evidence that he may have violated the United States Foreign Corrupt Practices Act and will likely be facing some time in court. As a participant in “under the table” practices, Mr. Peterson probably never assumed that he’d get in hot water for what is a widely held business custom in China. There are undoubtedly thousands of other expats like him who are making the same mistakes and, in the process, breaking the law. China’s famous saying 入乡随俗 (the Western version of “when in Rome, do as the Romans do) does not always apply.
Want to steer clear of a legal snafu and avoid hanging out with the Public Security Bureau or other inmates at a local jail? Here are some things you may want to avoid, even if they’re not a big deal in your own country:
1. Driving without a Chinese drivers license
2. Leaving “home” without your residency permit and passport
3. Living or cohabitating illegally
4. Letting your visa expire, visa overstay
5. Participating in “under the table” deals in any way, shape or form
6. Carrying or doing drugs, even if it’s just a plant that you picked off the side of the road
7. Attempting to bring back large quantities of counterfeit goods to your home country
8. Mouthing off or being generally uncooperative with a Public Security Bureau officer
9. Taking pictures of military exercises, crime scenes or police activities
10. Bribing a police officer or official to “let you off the hook”
11. Use of GPS devices
12. Real-time blogging of protests or other police activities
13. Openly criticizing China’s government, politics and/or leadership
14. Conducting or operating a business without ALL of the necessary permits
15. Working “under the table”
Aside from arrest, being the “official witness” to a crime can also be jarring. From my preliminary research, I haven’t found any prior documentation on this process in China and how best to handle yourself if you are involved in a case. Drawing from personal experience, I had been named as an “official witness” following an incident where two of my work colleagues were seriously assaulted during an otherwise average night over beer, yang rou char and Hong Kong poker. Although I had left the scene several minutes prior to the attack, I was called into the police station and forced to participate in the identification of potential perpetrators from a line up of about a dozen young men and women. If the process sounds pretty straightforward, it wasn’t- and it also spanned the course of approximately two weeks. In China Underground, Zachary Mexico details a visit to his apartment (which he’d been living in illegally) by the authorities during an investigation of a murder. It was sudden, random and could have cost him his ability to remain in China. The bottom line- if you ever have to deal with the police in China- either because you’ve broken the law, you’ve been accused of breaking the law, or you’ve been called as the witness to a law-breaking activity, you might want to be prepared for what may be an intimidating, confusing and often lengthy ordeal. In Part 2 of this series, I’ll address this process and how it differs from what we might encounter in the US. Part 3 will detail your rights, your protections, and how best to handle a bad situation.
If you are a lawyer or have been involved in a legal situation in China, please lend your critiques, criticisms and comments to facilitate this discussion! Feedback is always appreciated.
NOTE: Dan Harris of China Law Blog contributed some very important additions to this post in “Avoiding Chinese Jails. I’m Talkin to You” For advice from an actual China law expert (and a savvy writer to boot) check his post out!