One of the “No China Extradition” posters which were common during the anti-extradition bill protests in Hong Kong, which started in June 2019. Image Credit: kowloonsingjai via Facebook
Civil unrest in Hong Kong, which entered its eighth month in February 2020, was initially triggered by a now-rescinded bill that would have allowed for the Special Administrative Region to extradite fugitive offenders to countries with whom Hong Kong does not have an extradition treaty, including mainland China. At the heart of these protests is a fundamental distrust for China’s judicial system among Hong Kong people.
China has one of the highest conviction rates in the world; less than one percent of people brought to trial are acquitted. China’s judicial system routinely violates due process, and prisoners are known to have been subjected to torture and inhumane treatment.
Distrust of the mainland’s justice system deepened in November 2019 when former British consulate employee Simon Cheng spoke out for the first time about his 15 days of administrative detention in Shenzhen. Cheng, a supporter of the anti-extradition bill protests, was detained for “soliciting prostitutes” in late August. He dismissed the accusation and claimed that he had been tortured and forced to make two confession videos. Many observers believe that the charge against Cheng was fabricated and/or politically motivated.
While distrust for the legal system is widespread, some Hong Kong people do legitimately run afoul of mainland law as more of them have traveled, lived, or worked there since China resumed sovereignty over the former British colony in 1997. According to information provided by the Chinese authorities to the Hong Kong government, from 2001 to 2015, 9,400 Hong Kong people were subjected to criminal compulsory measures — summons for questioning, determination of bail, residence surveillance, detention, and arrest — in China. Most of them were detained in Guangdong for fraud, smuggling ordinary goods, or drug-related charges under Chinese law.
Releasing the number of detainees, their whereabouts, and the nature of their offences via the so-called reciprocal notification mechanism is within the Hong Kong government’s power. However, it is unclear how many Hong Kong people are left to the mercy of Chinese courts because such figures are not available. Citing incomplete information from the Correctional Services Department, then-Secretary for Security Ambrose Lee estimated that 1,250 Hong Kong people were serving sentences in Chinese prisons in 2011, of whom 800 were doing so in Guangdong. This was the last year for which the Hong Kong government provided an estimate of the number of Hong Kong people serving sentences in Chinese prisons.
In a display of judicial transparency not exhibited in Hong Kong, the Supreme People’s Court (SPC) of China sheds some light on this subject in its 12-volume Records of People’s Courts Historical Judicial Statistics: 1949-2016. The court records provide the numbers of “Hong Kong-related” criminal cases for a period of 18 years beginning in 1998.
This post, the third in a series that draws on the 12-volume set, discusses criminal cases involving Hong Kong people who have been tried by Chinese courts. However, the lack of clear criteria for what makes a case Hong Kong-related as well as apparent underreporting and unclear or arbitrary categorizations, sentencing, and stipulations continue to muddle a system that many in Hong Kong already view with distrust and skepticism.
Deciphering Hong Kong-Related Cases
Table 1. First-instance Hong Kong-related cases concluded in China, 1998-2016
Source: Records of People’s Courts Historical Judicial Statistics: (1949-2016), 2018.
Table 1. First-instance Hong Kong-related cases concluded in China, 1998-2016
All Criminal Cases
Endangering State Security
Smuggling Ordinary Goods or Articles
Table 1 shows that 2,987 criminal trials of first instance concluded in China from 1998-2016 were categorized as Hong Kong-related. Over forty percent, or 1,274, of these fell under the purview of the crime “undermining the order of socialist market economy.” Within this designation, smuggling ordinary goods or articles accounted for the biggest portion; 955 cases were Hong Kong-related.
What exactly are Hong Kong-related cases? The definition is not given in the court records. However, Chinese legal experts tend to agree that such cases encompass three scenarios. Legal Study and Research states that Hong Kong-related cases are:
- in the widest sense, where Hong Kong residents are put on trial as defendants in China;
- where Hong Kong residents are the offended parties (i.e. victims in a criminal case);
- where the criminal conduct, or consequences of such conduct, occurs in Hong Kong.
Deciphering Endangering State Security Cases
Understanding the nature of Hong Kong-related cases is further complicated when taking into account cases of endangering state security (ESS). Dui Hua’s Political Prisoner Database (PPDB), which tracks political and religious prisoners incarcerated in China since 1980, has information on more Hong Kong-related ESS cases than what is reported in the court records.
Table 1 shows that only two ESS cases were Hong Kong-related: one for espionage in 2006 and another in 2016 for stealing, secretly gathering, purchasing, or illegally trafficking in state secrets or intelligence for foreign entities.
The 2006 ESS case likely concerns Ching Cheong (程翔), a veteran journalist in Hong Kong who was sentenced to five years’ imprisonment in Beijing. The espionage charge stemmed from his attempts to obtain a manuscript copy of interviews with Zhao Ziyang, a reformist Chinese Communist Party leader who opposed the armed suppression of student protests in 1989.
Ching was accused of obtaining “classified” documents from Lu Jianhua (陆建华), a former sociologist at the Chinese Academy of Social Sciences who was sentenced to 20 years’ imprisonment for illegally providing state secrets for foreign entities in 2006. Lu, who is not a Hong Kong resident, received what appears to be the harshest sentence given to an individual involved in an ESS case related to Hong Kong after 1997. Lu has not been granted any sentence reductions 15 years into his sentence and is scheduled for release from Beijing’s Chaobai Prison in April 2025.
Dui Hua’s research into online judgments revealed that the 2016 case involved Ou Jiaming (欧家铭), who was sentenced in Beijing to 12 years’ imprisonment for illegally providing state secrets for foreign entities, with a supplemental three years’ deprivation of political rights sentence. Ou is scheduled for release in August 2023 following a seven-month sentence reduction granted to him in November 2019.
It is unclear why the following cases are not classified as Hong Kong-related in the court records despite all the defendants being Hong Kong residents:
- Xu Zerong (徐泽荣) is a mainland-born Hong Kong permanent resident who was sentenced to 13 years’ imprisonment in Shenzhen in 2001 for illegally trafficking in state secrets for foreign and illegal business entities (read “Cracking Down on Dissenting Versions of History” for a more in-depth dissection of Xu’s case). Xu was detained in Guangzhou in August 2000 while working as a university researcher. He was released in June 2011, following three sentence reductions totaling 24 months.
- Chen Zhaolu (陈兆禄), born in 1917, was one of the oldest ESS prisoners with close connections to Hong Kong. Sentenced to 13 years’ imprisonment at the age of 87 in 2004 in Guangzhou for an unspecified ESS crime, Chen was also a Xinhua News Agency employee with residency in Hong Kong. He was accused of collecting intelligence, this time for Taiwan. Due to his advanced age, Chen was released on medical parole in 2009. Dui Hua has not received any updates about Chen following the expiry of his prison sentence on October 24, 2014.
- Chen Yulin (陈瑜琳) and Wei Pingyuan (魏平元), are former employees of Xinhua News Agency, which served as China’s de facto embassy in Hong Kong before the handover. They were sentenced in 2004, when state propaganda started describing the former British colony as a “nest of spies.” The court found that they had provided information for the British Secret Intelligence Service during the years leading up to the handover in 1997. Both men are still in prison despite multiple sentence reductions; they are due for release in 2020.
The impending release of Chen and Wei prompts question as to where they will serve their supplemental deprivation of political rights (DPR) sentences. Chen was given a supplemental seven years’ DPR sentence in 2007, when his life sentence was first commuted to 19 years and six months. DPR sentences entail surveillance and bar individuals from giving interviews, publishing articles, and voting.
In January 2020, a Chinese government source informed Dui Hua that individuals serving DPR sentences are not allowed to leave the mainland and will be sent back to public security should they attempt to cross the border. However, previous events suggest that authorities in China may exercise discretion allowing Hong Kong residents to return home before their DPR sentences expire. For instance, Ching Cheong returned to Hong Kong on February 5, 2008, just one day after he was released on parole. Ching had a one-year DPR sentence to serve, which expired in 2009.
The leniency given to Ching, however, does not appear commonplace because his case was expedited by international attention. Less publicized cases may not enjoy the same swiftness. In 2011, the Hong Kong Federation of Trade Unions, a pro-Beijing political party, reportedly received seven complaints from Hong Kong people who had been barred from returning to Hong Kong while they were serving DPR sentences. Their Hong Kong identification documents had not been returned to them after the completion of their prison sentences.
Table 1 shows that 24 illegal business cases from 1998-2016 were Hong Kong-related. This non-ESS offense is noteworthy because the following case involving two booksellers from Hong Kong is highly political.
Wang Jianmin (王建民) and Guo Zhongxiao (呙中校) are both Hong Kong permanent residents. Wang and Guo were sentenced to prison for illegal business, bribery and bid rigging in 2014. Wang was sentenced to five years and three months, and Guo received two years and three months. Originally from the mainland, the duo was accused of earning around HK$7.8 million by publishing two magazines that featured political gossip in China, a small number of which were sold to the mainland.
Although Wang is an American citizen, he entered China on his Hong Kong documents. He did not benefit from American consular protections because his US citizenship was not recognized by China. American diplomats were not allowed to attend his trial nor were they allowed to visit him in prison.
Guo completed his prison sentence in August 2016. Wang was released from Guangdong’s Meizhou Prison in February 2019 and was reunited with his family in New Jersey the following month.
Since 2010, the Supreme People’s Court has released three regulations that assign to courts throughout the country the responsibility for publicly releasing judgments. The latest regulations, published in August 2016, require courts to release more information with greater detail. Smuggling ordinary goods and products is the most common crime committed by Hong Kong people in China. Most of these cases were not political: they dealt with cross-border parallel traders who procured electronics, foodstuffs, cosmetics, medicine, and infant formulas tax-free in Hong Kong to resell for profit in the mainland.
Table 1 indicates that there were 573 Hong Kong-related cases of smuggling ordinary goods and articles from 2012-2016. Based on information culled from online judgments, only 56 cases, slightly less than 10 percent, involving 62 Hong Kong residents as defendants were published online during the same period.
The court statistics do not provide information on the type and length of sentences meted out to Hong Kong residents. The graphs below illustrate the missing information based on the 62 Hong Kong residents who were sentenced in China from 2012-2016:
Most Hong Kong residents convicted of smuggling goods and products received criminal detention not exceeding six months, a sentence typically served in a detention center and carried out by public security. The Criminal Law states that individuals serving criminal detention are allowed to return home for one or two days each month. Given that cross-border law enforcement is not permissible, it is unclear whether Hong Kong residents can benefit from this provision.
Based on findings collected from online judgments, about one-third of Hong Kong people were sentenced to fixed-term imprisonment for smuggling goods from 2012-2016. Seven of them remain imprisoned at the time of writing. One of them was sentenced to 13 years’ imprisonment and will remain incarcerated until April 2033. He was given a combined sentence of 20 years’ imprisonment in Quanzhou, Fujian, for smuggling both ordinary goods and waste.
Yao Wentian, aged 78, a Hong Kong publisher who has
been imprisoned since 2014. Image credit: The Stand News
There was at least one highly political smuggling case involving a Hong Kong resident. Perhaps due to the sensitivity of the case, the judgment of Hong Kong publisher Yao Wentian (姚文田) has never been published online. Yao was sentenced in 2014 to 10 years’ imprisonment in Shenzhen for smuggling ordinary goods. However, he is widely believed to have faced reprisal for preparing to release a book critical of Xi Jinping. He earned his first sentence reduction of eight months in April 2019. Now aged 78, Yao still has three more years to serve before his sentence expires in March 2023. Dui Hua will continue to seek clemency for Yao through its Chinese interlocutors.
The Hong Kong government has yet to respond to public inquiries about Hong Kong prisoners incarcerated in the mainland. It is not known to have visited detention centers, prisons, or other carceral facilities in any of the cases discussed above. There is a pressing need for the government to conduct routine visits of those incarcerated in a judicial system that is vastly different from that of Hong Kong. The government’s inaction in this regard hardly inspires trust. Dui Hua’s Executive Director John Kamm has repeatedly urged Hong Kong officials and pro-Beijing legislators to do more to safeguard the rights of Hong Kong people in the mainland but has only received tepid responses.
Transparency is crucial to understand the legal process of controversial cases and to strengthen accountability for human rights violations. The disclosure of Hong Kong-related cases in the court statistics signals a welcome step in reducing the opacity of mainland China’s justice system. However, the fundamental question of how many Hong Kong people are imprisoned in the mainland remains largely ambiguous because of the lack of a definition of Hong Kong-related cases. The actual number of cases, especially those in connection to ESS, is likely to be higher than what is reported in the court statistics. Dui Hua’s findings on smuggling cases also suggest that China’s vow to improve judicial transparency leaves much to be desired.
Both China and Hong Kong should make regular disclosures about Hong Kong people imprisoned in the mainland, including their offenses, whereabouts, sentence reductions, parole status, and any form of clemency they receive. Judicial transparency could be a positive step to build trust in China’s justice system, a system that is widely criticized for being both oppressive and opaque.