This is kind of dog-bites-man news, but here we go again. A German executive resident in China has been deported after serving a 10-day sentence of administrative detention for using cocaine while in Thailand. (AP report here.) He was tested after returning to China. These don’t seem to be contested facts, but if someone knows otherwise, please correct me.
The sentence was apparently imposed under the Security Administration Punishment Law (治安管理处罚法) (SAPL), which in Article 72 does indeed provide for the possibility of ten days’ detention for ingesting drugs:
Article 72: Any of the following acts shall be punished by detention of between 10 and 15 days, and may be concurrently fined up to 2,000 RMB; where the circumstances are relatively minor, the punishment shall be detention for up to 5 days or a fine of up to 500 RMB:
(1) illegally possessing less than 200 grams of opium, less than 10 grams of heroin or methamphetamine, or other small amounts of drugs;
(2) providing others with drugs;
(3) ingesting or injecting drugs.
(4) Coercing or tricking medical personnel into prescribing narcotic or psychotropic drugs.
Cocaine use would certainly seem to fit fairly within subparagraph 3. But that’s not the end of the story. You might be forgiven for wondering, “Really? Can China punish you for taking drugs outside of China?” Here we have to distinguish between criminal punishments and so-called administrative punishments, of which this case is an example.
What the Criminal Law says is complicated and I won’t go into it — it depends on things like citizenship, whether it’s also an offense in the foreign country, and the maximum potential sentence. Fortunately, none of those things matter in the SAPL. It unequivocally says “No” in Article 4:
Unless there is a law stipulating otherwise, this law shall apply to actions violating security administration that occur within the territory of the People’s Republic of China. 在中华人民共和国领域内发生的违反治安管理行为，除法律有特别规定的外，适用本法。
Maybe you’re thinking, “Aha. But the drug test took place within Chinese territory.” Yes, but failing a drug test, or having traces of illegal drugs in your body, is not an offense under the SAPL.
The AP article states (without, regrettably, providing a link to the original source) that the Chinese embassy in Thailand “has warned that if Chinese tourists consume marijuana abroad and are ‘detected upon returning to China, it is considered equivalent to using drugs domestically. As a result, you will be subject to corresponding legal penalties.'” Maybe they did indeed say that. But that’s not how Chinese law works. Neither the Chinese embassy, the Ministry of Public Security, or even the State Council has the authority to just make up laws about detention of the person. Only the National People’s Congress or its Standing Committee can do that. They have spoken. And they specifically excluded actions taken outside of China from the purview of the SAPL. Thus, the detention seems to have no legal basis.
Move along. Nothing to see here, folks.
Isn’t the embassy’s first job to summarize the practical application of Chinese law and give due warnings to incomers, so at least they can’t say they weren’t given notice? Besides, fairness obliges us to consider what defenses the Chinese authorities might make.
1) The MSS can argue that procedures exist for Administrative Reconsideration (Article 107) and judicial appeals, and of course the State Council and NPC have their own legal tools, should any of them feel unhappy about the application of the law. None have objected.
2) Substantively, it is an exaggeration to say SAPL Article 4 “unequivocally says” No. It is grammatically and stylistically feasible in Chinese to rearrange that phrase to match your English translation (除法律有特别规定的外，在中华人民共和国领域内发生的违反治安管理行为适用本法) which would have increased the stress on the jurisdiction issue without being awkward. But that was not the choice taken.
In the actual phrase the “unless there is a law stipulating otherwise” is between two commas in the middle, demoting it to being a secondary part. As written the main purpose of that phrase is to establish the principle, and secondarily to accept the priority of Lex specialis elsewhere that may cover new substantive requirements, exemptions or other issues – not just jurisdiction.
Since there is no Lex Specialis, the secondary portion may be ignored and the sentence read as “在中华人民共和国领域内发生的违反治安管理行为适用本法”. It establishes that Actions taken in the PRC are In, and everything else is to be interpreted as per the interpretive rules and customs in Chinese law.
3) The presumption that “not written” = “no” is observably weaker in PRC legal practice than most other jurisdictions. Remember it was felt necessary in Article 3 of the Criminal Law to suffix “法律没有明文规定为犯罪行为的，不得定罪处刑”, as if the first half didn’t sufficiently imply that. Further, to the extent that there is such a presumption, there are some rebuttals such as:
4) The sentence structure of Article 4 is virtually identical to Article 6 of the Criminal Law (凡在中华人民共和国领域内犯罪的，除法律有特别规定的以外，都适用本法), and the words 犯罪 in “plain reading” is usually interpreted to be an Action, making it an analog to 违反治安管理行为. Nevertheless, Art 6 Paragraph 3 clarifies that the consequences are also deemed to be 犯罪, and this can apply as analogical guidance in the correct interpretation of Article 4.
5) In addition, regardless of whether they are crimes or administrative offenses, the true objective is usually the consequences of actions, not the actions themselves. And in most cases, if the actions of an administrative offence are in China so would the consequences and vice versa.
Aggregating the above it is highly unlikely that the legislative intent is to excuse a case where only the consequences occurred in the PRC, and the phrasing of Article 4 should be understood as an attempt to keep things short and sweet for police officers who have to use the SAPL with limited training.
6) Finally, while Article 72(3) may specify ingesting or injecting drugs, in reality only in an extreme minority of cases would violators do either where it can be directly observed. Most of them just fail drug tests and the ingesting / injecting inferred. Thus, in actual practical application of the law it is indeed “failing the drug test” that becomes the offense and few if any had complained about this pragmatic kowtowing to reality – perhaps also because even if applying this as Article 72(3) fails, there’s still the chance to qualify it as Article 72(1) – 持有.
In aggregate, any hypothetical judicial appeal would seem to have a high probability of failure even before counting in deference, and by extension the reading is perhaps more defensible than this article suggests.