This is a follow-up to my post of last October [The China Collection | Chinese Law Notes] about the police ignoring Chinese law—or in effect making up their own law—in imposing sanctions under the Security Administration Punishment Law (SAPL) for drug use abroad that is discovered upon testing in China.
To recapitulate briefly: The SAPL allows police to impose penalties for ingesting drugs (吸毒 xidu). It also says that it applies only to acts (行为 xingwei) committed within the territory of the People’s Republic of China. The question, then, is whether it is reasonable, and consistent with the intent of the law, to deem the ingesting of drugs outside of China as an act committed within the territory of the PRC, or whether instead the police are arbitrarily expanding their power beyond what was authorized by the National People’s Congress. Here it is useful to recall that under Chinese law, only the National People’s Congress or its Standing Committee can provide for detention as a punishment for anything. Lower-level administrative and legislative bodies cannot.
I put this question to the members of Chinalaw, a listserv I maintain dedicated to Chinese law issues, hoping to get more information and to discover if I’d missed something in my analysis. I got back a number of comments and sources from generous members, which I’ll discuss below. Bottom line: I don’t see any reason to change my analysis.
The discussion made clear that a few points need to be clarified—or more accurately, it needs to be clarified that these points are not in dispute, and do not answer the question I have put in boldface font above. Since some readers may have similar thoughts, I’ll note the points here.
1. It is permissible under international law for a country to penalize the effects within its own territory of an act committed abroad. Yes, absolutely. This point is not in dispute. The question is whether the SAPL does in fact penalize effects instead of just acts.
2. China’s Criminal Law in some circumstances penalizes the effects within China of an act committed abroad. Again, yes. This point is not in dispute, either. China’s Criminal Law specifically spells out the circumstances in which the effects of an act occurring within China are sufficient to trigger criminal liability. But the question here is not about what the Criminal Law says. It’s about what the SAPL says.
3. Other countries penalize acts committed abroad. Again, yes, but again, irrelevant. The question is whether the SAPL does so.
4. It would be a good idea to penalize drug use committed abroad. It might well be. But again, the question is whether China, via the SAPL, has in fact done so.
There is no question that the current practice of the police is widespread, fairly well known, and at least arguably in accordance with their own rules.
That it’s widespread and well known is clear from a number of online articles and warnings posted about it. Lawyers have written about it here, here, and here. China embassy in Thailand posted a warning about it on its website in 2022. And NYU Shanghai warns students about this in a special supplement to NYU’s general student conduct policy.
The rules relied on by the police are in a 2008 Approval Reply (批复 pifu)—a very low-level type of bureaucratic document—issued by the Ministry of Public Security to the Shanghai Public Security Bureau entitled 关于对查获异地吸毒人员处理问题的批复 (Approval Reply on the Issue of Handling Persons Discovered to Have Ingested Drugs in Another Location). Here “another location” means “outside the jurisdiction of a particular police agency”.
This document states that “the place where an unlawful act is committed (行为发生地) includes the place where the act is undertaken (行为实施地) [and] the place where the effect of the act occurs (行为结果发生地).” Let us suppose for the sake of argument that having traces of drugs in your hair counts as an effect of the act of ingesting drugs abroad. It would seem at first glance that this document covers that.
But not so fast. Here’s why I said only “arguably” above. A closer reading of the document reveals that it’s about drug use inside China. While the act takes place outside the jurisdiction of one police agency, it is assumed to have taken place within the jurisdiction of another Chinese police agency. This is clear from the sentence stating: “If the public security organ of the place of the actual occurrence of the drug-ingesting act has already dealt with the drug-ingesting person according to law, then the public security organ of the place of discovery may not impose a punishment decision for the same act.” (如果吸毒行为实际发生地的公安机关已对吸毒人员依法处理的，发现地公安机关则不得对同一行为作出处理决定.) It’s really, really a stretch to imagine that “public security organ” is intended to include police in foreign countries. The document is simply about figuring out who has the authority in such cases to decide on punishment.
It’s incidentally also worth nothing that the document implicitly acknowledges the fictional character of its redefinition of where an act occurs when it speaks of “the place of the actual occurrence” (as opposed to the fictional occurrence) of the act of drug-ingesting.
Even if you don’t buy the above argument, however, and believe that the police are acting within the scope of their own rules, the fact remains that if the police originally lack authority, they can’t bootstrap themselves into having authority through issuing rules themselves.
So do they originally lack authority? They do unless “act” can be read to include “effects”. This is an unnatural reading. But don’t take my word for it. It’s so unnatural that the National People’s Congress, when drafting and passing China’s Criminal Law, assumed “act” could not be so read, and thus added language specifically about criminalizing effects. The clear implication of the Criminal Law’s specifically discussing effects as well as acts is that the latter does not include the former, and that a law that does not discuss effects, such as the SAPL, cannot therefore be read as doing so.
The three comments by Chinese lawyers that I linked to above (here, here, and here) all agree as well: for the police to detain under the SAPL using this expanded definition of “act” to include effects is without a proper basis in law.
Finally, there is a fascinating Shanghai case from 2020. In that case, a Mexican woman resident in Shanghai was punished, and her visa cancelled, for drug ingestion under the SAPL after she tested positive shortly after returning from a visit to Mexico. She brought an administrative lawsuit against the police in an attempt to invalidate the punishment. Her claim was that she had ingested CBD oil, which contained trace amounts of THC, while in Mexico, but she insisted she had not ingested any drugs in China.
Under the “effects” theory, all this is of course irrelevant; her admission that she had ingested in Mexico a substance that is illegal to ingest in China was all the evidence that was necessary. But the court found in her favor on the grounds that the police had insufficient evidence that she had ingested drugs in China. In short, the court implicitly rejected the “effects” theory of the 2008 Approval Reply. Indeed, the “effects” theory was not even discussed; everyone seemed to take it for granted that if the substance had not actually been ingested in China, there was no case.
Let’s put everything together, then:
- The plain language of the SAPL talks about the act, not about its effect.
- The language of the Criminal Law treats effects as distinct from an act and as something that needs a separate and specific rule.
- An internal Ministry of Public Security document cannot provide authority where it does not already exist.
- In any case, the language of the 2008 Approval Reply shows it is meant to apply to domestic drug ingestion, not ingestion of drugs outside of China.
- The three Chinese lawyers I have found who have commented on the issue all agree that the police have illegitimately expanded the scope of acts to include effects.
- The Shanghai No. 2 Intermediate Court, in a system where courts typically defer to police, has implicitly rejected the “effects” theory.
That’s why I’m sticking with my original conclusion.