Opinion & Analysis

China: Foreigners Under the Law

As the world’s second-largest economy, China attracted tens of millions of foreign visitors each year before the pandemic. And increasing numbers of foreigners are finding themselves running foul of the Chinese legal system, and sometimes faced with serious charges. Law expert Dr Lili Song takes a closer look at some current issues around foreigners caught by Chinese criminal law. 

In 2019 alone, New Zealanders took 141,600 trips to China. Unfortunately, not all trips to China ended well. In the past decade, as the number of foreigners living in and visiting China was on the rise, there were increasing reports of foreigners being charged with criminal offences. 

According to information released by the New Zealand Ministry of Foreign Affairs and Trade, as of September 2019, 10 New Zealanders were held in prisons in China with another 3 in detention centres. Since 2012, at least two New Zealanders, including Peter Gardner, have been sentenced to death by Chinese courts for drug trafficking.

Last year in particular featured a number of high-profile cases of foreign citizens being detained, arrested, and tried for alleged criminal offences in China.

In February, the Chinese authorities formally arrested Chinese-born Australian citizen Cheng Lei on suspicion of illegally supplying state secrets overseas. 

In March, Canadian citizens Michael Kovrig and Michael Spavor, who were arrested in December 2018 following Canada’s arrest of Chinese citizen Meng Wanzhou, were tried on spying charges. Spavor was later sentenced to 11 years in jail, while Kovrig’s verdict was still pending when he and Spavor were allowed to go home following Canada’s release of Meng Wanzhou. 

A courtroom in Jiangsu Province, north of Shanghai/ photo Wikimedia

In May, Chinese-born Australian citizen Yang Hengjun was tried on espionage charges. 

In August, the High People’s Court of Liaoning Province upheld the death penalty for Canadian Robert Schellenberg, who was convicted for drug trafficking.

Late last year Americans Cynthia and Victor Liu and Daniel Hsu, having had been placed under exit bans in China for several years, were finally allowed to return to the US.

The increasing number of foreigners caught in the Chinese criminal justice system highlights the vital importance of consular assistance.

China is a party to the 1961 Vienna Convention on Diplomatic Relations and has bilateral consular relations agreements with more than 40 countries, including New Zealand, Australia, the US, Canada and South Korea.

The New Zealand-China consular relations agreement was signed in 2003, coming into force in 2006. It is worth noting that consular relations agreements normally cover only persons who have the nationality of the contracting countries, excluding permanent residents who are not citizens of the contracting countries.

For example, Mr Kim Kyung Yup, a South Korean citizen and New Zealand permanent resident who the New Zealand Supreme Court recently decided could be extradited to China to face a murder charge, is not covered by the New Zealand-China consular relations agreement.

He would, however, be covered by the South Korea-China consular relations agreement which was signed in 2014.

A thorny issue relating to consular assistance in China is consular attendance, or the lack thereof, at closed criminal trials..

According to current Chinese law, cases involving state secrets or personal privacy shall not be heard in public (s 188, the Chinese Criminal Procedure Law), and no person may observe the trial of cases that are not heard in public (s 222, the Supreme People’s Court Interpretation Regarding the Application of the Criminal Procedure Law).   

However, a 1995 Instruction on the Handling of Certain Problems in Foreign-Related Cases specifies that if a bilateral consular agreement clearly provides for a duty to allow consular attendance in foreign-related cases tried in closed sessions, such duty should be performed.

Consular relations agreements that China has entered into with New Zealand, Australia, the US, and Canada include a provision allowing consular attendance at trials of their own nationals. However, these agreements do not specify whether closed trials are included or excluded.

Renowned Chinese law scholar Jerome Cohen opined that as long as the consular agreement allows consular attendance at trial without excluding closed trials, consular attendance at closed trials should be permitted.

It has also been pointed out that Chinese courts had allowed consular attendance at closed trials following the 1995 Instruction.

Despite this, the current interpretation of the law in Beijing barred consular attendance in the trials of Michael Covrig, Michael Spavor and Yang Hengjun.  

Although, whether the consular relations agreements guarantee consular attendance at closed trials can be debated, Article 27 of the 1969 Vienna Convention on the Law of Treaties clearly says that a party to a treaty generally cannot use its domestic law to justify breaches of the treaty. 

Therefore, if there is a conflict between the provision of domestic Chinese laws and the provision of a bilateral consular agreement by which China is bound, the provision of the bilateral agreement should prevail.

Interestingly, in the 2014 China-South Korean consular relations agreement, the wording of the trial attendance provision differs from its New Zealand, Australian, US and Canadian counterparts, and explicitly allows consular attendance at trials “unless prohibited by the laws and regulations of the receiving state”.   

It is just a matter of time before the numbers of New Zealanders travelling to China ramp up again post-pandemic.

With ongoing tensions between China and the Five Eyes powers (Australia, Canada, New Zealand, the UK and the US) in recent years, it's important for New Zealanders to be aware of the consular assistance available, should they be in the unfortunate position of needing it.

- Asia Media Centre