Liability of Chinese citizens for crimes committed overseas: the Ting Ye case

I just heard from a friend about the Ting Ye case (reported here and here). Ye, a 26-year-old Chinese national, was driving at speeds estimated to be around 90 to 100 mph in the early morning hours when she crashed. First responders were not called to the scene until about 45 minutes later when people noticed the crash (remember it occurred around 3:45 a.m.). Ye was sent to the hospital but her fellow passenger, a 27-year-old male with a Chinese name, was apparently already dead. First responders reported smelling alcohol on her breath.

The hospital discharged Ye earlier than the police expected and did not notify police. Ye had someone drive her to Canada, and is suspected of then having fled to China.

China and the US have no extradition treaty. There are, of course, many countries that do, so even if she is safe from prosecution in China (as she no doubt imagines), her travel options are now limited. But is she safe from prosecution in China? No!

Under Article 7 of China’s Criminal Law, Chinese citizens are criminally liable for acts committed abroad if (a) the act would be a crime in China, and (b) the maximum punishment under Chinese law is at least three years’ imprisonment. Negligent homicide satisfies both those conditions. It is a crime under Article 233 of the Criminal Law, and the maximum punishment is seven years’ imprisonment. Moreover, intoxication is not a defense (Art. 18).

Thus, it is entirely possible for Ye to be prosecuted in China, either by the authorities or in a private prosecution brought by the family under Art. 210(3) of China’s Criminal Procedure Law, assuming that the next of kin fall within the definition of “victim” when the actual victim is dead and therefore unable to bring a private prosecution himself.

If the Chinese authorities are telling the Americans, “Sorry, we won’t extradite without a treaty,” that’s understandable. But if they’re saying, “Sorry, there’s nothing we can do,” that’s not accurate. They can prosecute if they want.

Posted in: Law