The adjudication of the Sandy Phan-Gillis case by the Nanning Intermediate People’s Court has drawn attention to the supplemental punishment of deportation under Chinese law. Ms. Phan-Gillis, a prominent American businesswoman, was convicted of espionage by the court on April 25, 2017. She was sentenced to three and one-half years in prison and deportation. She was deported on April 28 without serving her prison sentence.
Expulsion is one of four supplemental punishments in China’s Criminal Law, the others being deprivation of political rights, fines, and confiscation. Article 35 of the Criminal Law as amended states that expulsion can be a stand-alone punishment or a supplemental punishment. (In common usage, expulsion and deportation are synonymous. They both refer to the compulsory removal of a foreigner from the territory of a sovereign state.)
Deportations of foreigners are carried out in accordance with the Joint Regulations of the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of Justice, and the Ministry of Finance Regarding the Implementation of Compulsory Deportation of Foreigners. The regulations were jointly issued on July 31, 1992. Despite being nearly 25 years old, the regulations remained in force as of 2013, according to a Supreme People’s Procuratorate source (see also a 2016 discussion on deportation on a Chinese law firm website). There is no record of the regulations having been amended or replaced.
Although the joint regulations do not mention the role of the State Security Ministry in carrying out deportation of foreigners, the 1993 National Security Law and the Counterespionage Law, passed in 2014, authorize state security bureaus to carry out deportations of foreigners for state security violations and espionage. (The 2015 National Security Law does not mention deportation of foreigners.) Provincial and municipal state security bureaus have issued regulations that deal with deporting foreigners in state security cases (see, for example, the document issued by the Shanghai State Security Bureau that defines the scope of its administrative authority.)
A source in Beijing familiar with the case relates that the deportation of American citizen Xue Feng in 2015 was the first time that the Beijing State Security Bureau had carried out a deportation. More than a dozen officers were involved. Xue was flown back to New York instead of to his home town of Houston. No one from the American Embassy in Beijing could speak to him before he was put on a plane for the United States.
Dui Hua’s translation of the 1992 joint regulations ("deportation regulations") can be found below. The foundation welcomes comments and suggestions for improvement.
Review of Court Judgement Websites
A search of judgements on the Supreme People’s Court Judgement Website yields 34 sentences of deportation of foreigners in criminal cases covering the years 2014-2016. This is not an exhaustive listing of all deportation sentences for foreigners during these years. Several deportation sentences, including that of the Canadian citizen Kevin Garratt, convicted of espionage and deported in September 2016, are not to be found on the website.
Of the 34 deportation sentences found on the court website, five were stand-alone sentences and the rest were supplemental sentences. Three of the five stand-alone deportation sentences handed down by the court of first instance were appealed by the procuratorate, thereby delaying the effective date of judgment and deportation (see Chapter II Article 1 of the deportation regulations.) Two of the sentences were upheld by the court of second instance. The stand-alone deportation sentence for drug trafficking handed down for Nigerian citizen Ukaegbu Kingsley Chinonso by the Hunan Hengyang Intermediate People’s Court on August 20, 2015 was overturned by the Hunan High People’s Court on November 21, 2016. The latter court sentenced Chinonso to 15 years in prison, confiscation of property valued at RMB 50,000, and deportation.
Deportation as a Criminal Penalty in Endangering State Security Cases
Seven citizens of the United States and Canada have been convicted of espionage or state secret crimes, both crimes of endangering state security, since 1995. All were sentenced to be deported.
Of the seven citizens of the United States and Canada convicted of endangering state security and ordered by the court to be deported, one was given a stand-alone deportation sentence, three were sentenced to prison and were deported upon completion of the sentences (including reductions), and three were sentenced to prison and deported without serving the prison sentence. The seven cases, six of which involve naturalized American citizens of ethnic Chinese descent:
Harry Hongda Wu, an American citizen and human rights activist, was detained on June 3, 1995 by officers of the Wuhan Public Security Bureau on suspicion of trafficking in state secrets and fraud. He was convicted by the Wuhan Intermediate People’s Court and given a combined sentence of 15 years in prison and deportation on August 24, 1995. He was deported the same day. His deportation came weeks before First Lady Hillary Clinton visited Beijing to attend an international conference.
Li Shaomin, an American citizen and scholar, was taken into custody in late February 2001 in Shenzhen and subsequently charged with spying for Taiwan. He was tried by the Beijing Intermediate People’s Court on July 14, 2001 and sentenced to deportation as a stand-alone penalty. He was deported on June 25, 2001.
Fong Fuming, an American citizen and business consultant, was sentenced to five years’ imprisonment and deportation in March 2002 by the Beijing Intermediate People’s Court for the crimes of trafficking in state secret and bribery. He was released 22 months early on October 27, 2003 and deported the same day to the United States.
David Dong Wei, an American citizen and businessman, was taken into custody in September 2003 on suspicion of spying for Taiwan. He was convicted and sentenced to 13 years in prison and deportation by the Guangzhou Intermediate People’s Court in April 2005 for the crime of espionage. After sentence reductions totaling four years, David Dong Wei was released in September 2012. He is believed to have been deported to the United States shortly after his release.
Xue Feng, an American citizen and geologist, was placed under residential surveillance in a designated location in 2007. He was convicted in 2010 of trafficking in state secrets and sentenced to eight years in prison, confiscation of RMB 200,000 worth of property, and deportation. He served his full sentence, minus a sentence reduction of 10 months, and was deported on April 3, 2015, returning to the United States the same day.
Sandy Phan Phan-Gillis, an American citizen and businesswoman, was taken into custody in March 2015. She was convicted of spying for the United States and sentenced to three and one-half years in prison, deportation, and confiscation of personal property on April 25, 2017. Her deportation and return to the United States on April 28, 2017 came six weeks after American Secretary of State Rex Tillerson visited Beijing to prepare for the summit between Chinese President Xi Jinping and American President Donald Trump held on April 6-7, 2017 in Florida.
Kevin Garratt, a Canadian citizen detained in 2014, was convicted of spying for Canada and sentenced to eight years in prison, a fine of Canadian Dollar 20,000 (in RMB equivalent), and deportation in September 2016. His deportation on September 15 came several days after Canadian Prime Minister Justin Trudeau finished a state visit to China.
There is no clear basis under Chinese law for executing a deportation sentence prior to a defendant serving his or her imprisonment sentence. In all three cases where deportation was carried out prior to the defendant serving his or her sentence, the case had become a political issue affecting relations between the home countries and China, and the foreigners who were deported were the subjects of intense media attention, civil society advocacy, and high-level interventions by leaders of the home countries.
Deportation as an Administrative Penalty in Politically Sensitive Cases
Chapter Six of the Entry and Exit Administration Law of the People’s Republic of China (2014) and both the 1993 National Security Law of the People’s Republic of China and the Counterespionage Law, which took effect on January 1, 2015, provide for public security organs and state security organs, respectively, to carry out deportation of foreigners following detention and investigation, but prior to indictment and trial.
In April 2001, American citizen Wu Jianmin was detained by agents of the Guangdong State Security Bureau on suspicion of spying for Taiwan. According to the Xinhua News Agency, he was expelled from China on September 29, 2001, and returned to the United States the same day.
More recently, Swedish citizen and human rights worker Peter Dahlin was taken into custody on January 3, 2016 and placed under residential surveillance in a designated location. He was investigated for violating Article 23 of the Criminal Law, using foreign funding for subversive activities, and, following the airing of a taped confession, deported on January 24, 2016. His property was confiscated and he was banned from entering China for 10 years.
China’s public security organs have detained, investigated, and deported foreign missionaries who have engaged in proselytizing in China on several occasions in recent years. Most have received little or no media attention.
It is likely that espionage cases involving both Chinese citizens and foreigners will increase following the release of local state security bureaus’ measures that provide rewards to citizens who report espionage activities. The Beijing measures, announced on April 10, 2017, provide rewards on a sliding scale up to a maximum of RMB 500,000 for deterring and preventing espionage activities. If enacted, the National Intelligence Law, released on May 17, 2017 for public comment, will increase scrutiny of the activities of foreigners and foreign institutions in China.