So, you’re cruising down your favorite US highway in your brand new convertible at the cool rate of 80 MPH without a valid US drivers license. You roll down your window and begin crooning with a tune on the radio, only to be interrupted by the siren of a cop car, which is now tailgating you. The good news is, if you get pulled over in the US, it’s likely that you’ll have to deal with a sole police officer for half an hour tops and, with exception to a few bored rubberneckers, your “crime” will go largely unnoticed by the general public. You’ll likely get a ticket and, if it’s truly not your day, you’ll be read your rights, handcuffed and brought to the local police station for booking. You’ll probably have to sit around until someone bails you out or you receive a court date, and while you may not be surrounded by the best company, chances are that the majority of your cell mates will speak your language. Consider this a luxury and revisit the case of an American graphic designer who was pulled over in China, immediately arrested for driving without a license, and kept in jail for seven days. While the general outcome is largely the same (time behind bars) the circumstances surrounding that outcome are very different.

A few comparisons, with the above example in mind:

Justifications for detainment in China and the laws governing subsequent a arrest also differ from those in the US, as outlined in Articles 5 and 6 of the Regulations of the People’s Republic of China on Arrest and Detention:

Article 5] When a public security organ arrests an offender, it must hold an arrest warrant and announce the arrest to the person to be arrested. Within 24 hours after the arrest, the public security organ, the people’s procuratorate or the people’s court shall notify the family of the arrested person of the reason for arrest and the place of custody, except where notification would hinder the investigation or there is no way to notify them.

[Article 6] In any of the following emergency circumstances, a public security organ may first detain a major suspect or an active criminal who, on the basis of his crime, should be arrested:

(1) if he is in the process of preparing to commit a crime, is committing a crime or is discovered immediately after committing a crime;

(2) if he is identified as having committed a crime by the victim or by an eyewitness;

(3) if he is found to have criminal evidence on his person or at his residence;

(4) if, after committing a crime, he attempts to commit suicide or to escape or is already a fugitive;

(5) if he may possibly destroy or falsify evidence, or collude with others to devise a consistent story;

(6) if his identity is unclear and there is strong suspicion that he is a person who goes from place to place committing crimes; or

(7) if he is engaged in beating, smashing, looting or raiding and is gravely undermining work, production or public order.

So, given Chinese criminal law and their differences from those upheld in the US, what can this potentially mean for you?

1. If someone falsely claims that you are participating in illegal activities (for example, “under the table” practices, holding religious meetings in your apartment), these accusations, while highly unlikely, can result in your arrest.

2. If someone says that they saw you do something illegal, like steal a cell phone, you may be detained or arrested.

3. If the police can’t identify you because you’ve left your ID at home, you may be detained or arrested.

4. In the event of a confrontation with the PSB, you will likely not have an opportunity to plead your case in a manner that will be understood.

5. In an instance where the PSB happens to drop by, as was the case with Zachary Mexico, and you just happen to have something illegal in your home that they discover, you may be arrested.

8. You will not be put in a separate “expat jail.”

9. Most likely, you will not be able to “buy” your way out of jail. Even if you are able to buy your way out of jail, it’s not a good idea to put that option on the table.

10. If you are arrested, you have been already found guilty to some extent. You will probably “do the time,” even if you are “innocent.”

11. If you are arrested and placed in jail, you will likely be deported shortly following your release. There is a small chance that you will be blacklisted from China and unable to return (particularly if you are a journalist, high-profile person or have connections with FG).

Witness to a Crime
As mentioned in Part 1, I have been unable to find any supplemental materials regarding the procedures for being a witness to a crime in China and can only share with you what I experienced several years ago while living in Shandong Province. In a nutshell, two of my colleagues had been stabbed and were subsequently hospitalized; I had left the scene a few minutes prior to the attack. Here is what I know.

Caveat: Even though I was not “a witness,” had not seen the perpetrators or any suspicious activity beforehand, and I had made it very clear to the PSB that I was unfit to be called as a witness because I did not in fact witness anything, I was determined to be an “official witness.”

Phase 1: Four PSB officers arrived at my place of employment to ask me a few questions but, since my Chinese wasn’t stellar, I had a Chinese coworker assist me in translating. Basically, the officers wanted to know:

• What time I left the scene
• How much alcohol I had consumed (I was asked this question several times)
• If I witnessed any suspicious activities prior to the incident
• If I saw who committed the crime
• How many people were involved in the attack

Phase 2: The police paid a “home visit”

• PSB officers arrived in the early afternoon
• Questions 1-5 from “Phase 1” were repeated several times over the course of two hours and a cursory inspection of the apartment was made. During this time, the officers smoked freely. (NOTE: never ask a PSB officer to put their cigarette out, even if they’re smoking in your own “home.”)
• Officers leave without further instructions.

Phase 3: Officers return to my place of employment to inform me that I will need to spend some time at the police station to assist them in identifying the perpetrator, even though I never saw the perpetrator.

Phase 4: Identification Process

• I report to the police station and am led into a dirt courtyard surrounded by a chain-link fence, adjacent to a high-traffic outdoor market.
• There are about a dozen men and women in the courtyard, and all appear to be in their teens to late twenties. Several of these “suspects” are laughing and making jokes- no one seems afraid. Note: there is no barrier separating me from the “suspects”- no glass, no bars, nothing.
• I am asked to tell the police who looks familiar to me. I tell them that I wasn’t a witness to the crime and didn’t see anyone. This dialogue continues throughout the day, during which I am offered several bottles of coca-cola and a few cigarettes.
• Finally, the PSB officers give up on me. Two of them hand me business cards and tell me to call if I remember anything.

Phase 5: Signing Documents: a few days later, the same officers show up at my place of employment and request my signature on several documents, which are all typed in Chinese.

• I request an English translation. I am told that this is not possible.
• I request that my employer have it translated for me before I sign it. That’s not happening either.
• I procrastinate. A coworker states that, when I receive a copy of these documents, I can have it translated later.
• I sign several documents in Chinese that I cannot read. I never received a copy. I never had it translated. To this day, I have no idea what I signed.

Of course, protocols will differ depending on location and the department that you’re dealing with. It is important to note that the PSB may enter at your home at any time for any reason. Whether they’re investigating a murder, as in Zachary Mexico’s case, or interested in calling you as a witness to a crime, as in mine, keep in mind that you forfeit control over your domain as soon as they enter the door.

Court
If you do have the misfortune of getting into hot water for a criminal activity on Chinese soil, it is highly unlikely that you will be subjected to a ruling from the Intermediate People’s Court. If you do end up in front of a judge, then you’ve probably already spent a significant period of time in jail and well, the water isn’t hot, it’s scalding. Shanghai Nuodi Law Firm has this information to offer in their aptly named document “Foreigners Commit Crimes,” as paraphrased:

The Intermediate People’s Courts have jurisdiction over criminal cases in which the offenders are foreigners and where the defendant who has been caught shall exercise jurisdiction over the crimes specified in international treaties to which the PRC is a signatory state or with which it is a member. The judgment of sentencing a foreigner to death should be approved by the Supreme Court of PRC.

Criminal Law of the People’s Republic of China may be applicable to foreigners, who outside PRC territory, commit crimes against the PRC state or against its citizens, provided that this law stipulates a minimum sentence of not less than a three-year fixed term of imprisonment for such crimes.

The public security organs and the People’s Court should take the following measures and processes:

1. The public security organs should use the general languages. If the criminal suspect knows Chinese and does not need a translator, he should submit a written statement; if not, the public security organs should offer him a translator. The criminal suspect can employ a translator himself after the public security organs approve and bear the expense on his own.

2. If a criminal case involving a foreigner produces a significant effect or may give rise to a diplomatic negotiation, the public security organs related should report the case situation to the Ministry of Public Security. The Ministry of Public Security should notify the case situation to the Chinese overseas embassies and consulates separately or with the Ministry of Foreign Affairs.

3. If it is necessary to keep the foreigner in detention or subject him to residential surveillance or obtain a guarantor pending trial, it should be approved by the officer of the public security organ of a province level and should be reported to the Ministry of Public Security of the case situation within 48 hours after these compulsory measures.

4. If a foreigner is subject to residential surveillance or obtained a guarantor pending trial or be detained, arrested, the related public security organ should notify the name, sex distinction, entry time, passport or identity card number, case-happen time, address and related situation and the compulsory measures taken to the Foreign Embassies or Consulates belonging to his country in China.

5. Accompanied by the compulsory measures adopted to the foreign criminal suspect, it is necessary to detain his passport according to law and issue a detention certificate and report the related circumstances to the Ministry of Public Security promptly.

6. If the foreigner died during the investigation or due to punishment of the public security organs, the provincial public security organ should notify the Ministry of Public Security and the Foreign Embassies or Consulates belonging to his country in China.

7. If officers of the Foreign Embassies or Consulates in China enquire to visit their national citizen who is subject to residential surveillance or obtained a guarantor pending trial or be detained, arrested, the public security organ who investigates and files the case should arrange the related visiting affairs.

8.  During the period of investigation and custody, the foreign criminal suspect could meet his relatives, guardians and communicate with the outside under the approval of the public security organ.

9. The provincial public security organ should designate the municipal public security organ of the criminal’s locality to execute the punishment to the foreigner who is sentenced to deportation independently.

Has a US citizen ever been executed in post-Mao China or died while in a Chinese prison? Not to my knowledge. Have foreigners been incarcerated in China for long periods of time? Absolutely. You may have heard of Chinese-American entrepreneur, Jude Shao, who after being sentenced for tax evasion and fraud, was sentenced to a 16-year term in Shanghai’s Qingpu prison. Shao was released last year after serving more than ten years of his term.

As I’ve stated in Part 1, China is a pretty safe to roam, due in large part to severe penalties for criminal activities and a robust police force. On the other hand, if you’re doing something which may be interpreted as “illegal,” you’re in particularly dangerous territory. As China’s 60th anniversary celebration approaches, Beijing has made it very clear that a five-month campaign highlighting the “eradication and prevention of crimes” is in order. Now, more than ever, you’ll want to walk a straight line in China.

In Part 3, I’ll detail your rights, your protections, and how best to handle a bad situation.

Eyes Not Tired Yet? Want to Read More? Check out:
Hot Water in China? Don’t Get Burned: Part 1
Criminal Procedure Law of the People’s Republic of China
Criminal Law and Business in China—A Strong Caution

Be sure to leave your comments, questions, criticisms and corrections!

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