It seems that criminal cases involving foreigners are getting increased attention from the public. Recently, our criminal lawyers at DaWo have received quite a lot of inquiries regarding PRC Criminal Laws and its application to foreigners, and we believe it would be useful to share some frequently asked questions.
Part 1 – General Knowledge
Q1: Is PRC Criminal Law applicable to foreigners in China?
A1: Yes. PRC Criminal Law applies to anyone who commits a crime within the territory of PRC. Under certain circumstances, PRC Criminal Law may even be applicable to foreigners outside PRC territory who commit crimes against the PRC state or against its citizens. Long story short, being a foreigner, or not knowing the specific provisions of the PRC Criminal Law, is never an excuse.
Q2: Will Chinese courts treat foreigners differently?
A2: No. In principal, everybody is treated identically under the law. While there are various considerations that might call for heavier or lighter punishment, being a foreigner is not one of them, and courts will impose the same punishment on a foreigner as if a Chinese citizen had committed the crime.
Q3: What sort of punishments might I face if I commit a crime under PRC law?
A3: There are 2 types of punishments under PRC Criminal Law: principal punishment and supplementary punishment. Principal punishments include public surveillance (similar to supervised probation, from 3 months to 2 years), criminal detention (from 1 to 6 months), fixed-term imprisonment (from 6 months to 20 years), life imprisonment, and the death penalty. Supplementary punishments include fines, deprivation of political rights, and confiscation of property. In addition to the above-mentioned punishments, deportation may be imposed independently or as a supplemental punishment upon foreigners.
It is important to note that, under the principle of equal treatment mentioned in Q2, the death penalty is also applicable to foreigners. So, if the crime committed by a foreigner is severe enough, the death penalty may be imposed, and we have seen such cases in recent years.
Part 2 – Crimes Frequently Committed by Foreigners in China
Q1: What crimes do foreigners in China frequently commit?
A1: Based on DaWo’s long experience with such matters, the crimes committed by foreigners in China usually involve alcohol and drugs.
Q2: What is the most common alcohol-related crime?
A2: The most common alcohol-related crime is “Dangerous Driving”. If you drive a vehicle while intoxicated (legal alcohol limit is established at 80mg/100ml in blood), you may have committed the crime of dangerous driving, and will face criminal detention and fines.
Q3: What if I caused a serious accident while driving under influence, or in violation of traffic regulations?
A3: If you cause an accident while driving under influence, or in violation of traffic regulations, which results in serious injuries or deaths, or heavy losses of public or private property, you are very likely to have committed the “Crime of Traffic Casualties” and may be sentenced to criminal detention or imprisonment of no more than 3 years.
If you engage in a “hit-and-run,” or there are other serious circumstances, the penalty will be escalated to 3 to 7 years of imprisonment, or even more if the escape results in the death of the victim. Therefore, in case of a traffic accident, our advice is to immediately call the police and wait.
Q4: What if I have a fight with someone while I am drunk?
A4: If you seriously injure somebody during a drunken fight, it may constitute the crime of “Intentional Injuries”. The penalty varies from public surveillance, detention or imprisonment from 3 to 10 years, up to life imprisonment, and even the death penalty, depending on the severity of the injuries of the victim and other circumstances of the case.
Even if the injuries of the victim caused in a fight that you picked are relatively light, you may still have committed the crime of “Creating Disturbances”, especially for a fight involving multiple people in a public place, causing a serious disturbance. The punishment for this crime varies from public surveillance, criminal detention or fixed-term imprisonment of not more than five years, depending on the circumstances of the case.
Q5: What is the attitude of China towards drugs?
A5: Unlike other jurisdictions, China has “Zero Tolerance” towards drugs. You will face criminal charges if you smuggle, traffic in, transport, or manufacture drugs, regardless of the quantity of the drugs. These crimes are punished quite severely under PRC Criminal Law, and the death penalty could be applicable.
Possessing large quantities of drugs is also criminally punishable. Furthermore, if you shield, harbor, transfer, or cover up for drug related offenders, whether related to the drugs themselves, or their gains from such criminal activities, you may be sentenced to a fixed-term imprisonment of 6 months up to 10 years.
It is very important to note that in China “drugs” under PRC Criminal Law include opium, heroin, methamphetamine(ice), morphine, marijuana, cocaine, and other narcotic and psychotropic substances that are considered addictive are controlled under State regulations.
Q6: What will be my liability in drug-related incidents If I consume drugs?
A6: Consuming drugs in China is not punished by Criminal Law, even though you may face administrative detention (from 5 to 15 days), fines, and/or a departure order if you test positive for drugs. However, in addition to such consequences, there are cases in which you might commit a drug related crime without realizing it.
For example, if you provide shelter by letting your friends or others consume drugs at your residence, you are potentially committing the crime of “harboring others to take drugs,” exposing yourself to a maximum of 3 years of imprisonment.
Under certain circumstances, helping your friends acquire drugs, for example by introducing your friends to your drug dealer or acting as an intermediary, may also constitute the crime of Drug Trafficking even you did not make any profit from it.
Inducing, abetting, or deceiving others into taking drugs is also a crime in China, especially if the person you induced, abetted, or deceived is a minor.
Q7: Will I go to jail for stealing a cell-phone?
A7: Yes, it is possible. In China, petty theft or shoplifting may be criminally punishable if the property or merchandise stolen is more than 1,000 RMB in value, which is a quite low bar. However, do not feel comfortable stealing property worth less, since getting caught three times in one year constitutes theft under PRC Criminal Law. The penalty for theft varies from criminal detention to life imprisonment.
Please also keep in mind that there are many surveillance cameras in the streets and shops of China, and that the police are more than happy to catch and punish thieves. So, don’t take any chances.
