# Legal question (Canadian crime, Chinese time?)
**URL:** https://boards.straightdope.com/t/legal-question-canadian-crime-chinese-time/356588
**Category:** Factual Questions
**Created:** [May 13, 2006, 3:08am UTC](https://boards.straightdope.com/t/legal-question-canadian-crime-chinese-time/356588 "2006-05-13T03:08:19Z")
**Posts on this page:** 17
**Page:** 2
### Author:  [@Monty](https://boards.straightdope.com/u/Monty)
#### Post date: [May 15, 2006, 1:34am UTC](https://boards.straightdope.com/t/legal-question-canadian-crime-chinese-time/356588/21 "2006-05-15T01:34:15Z")
I’m suggesting that China doesn’t really have a judicial system. It has a parody of one, a sad one at that.
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### Author:  [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)
#### Post date: [May 15, 2006, 2:33am UTC](https://boards.straightdope.com/t/legal-question-canadian-crime-chinese-time/356588/22 "2006-05-15T02:33:38Z")
> [@Northern Piper](#):
>
> That was my first thought as well. Double jeopardy is prohibited under our Charter, so it would seem to me that he could make an argument that deportation to be punished again for the same crime raises an issue. Don’t know if it’s ever come up before. We may have to wait 15 years to find out, since he’s not eligible for parole until then.
Disregarding the double jeopardy issue, wouldn’t the Chinese have to issue some sort of assurance that the death penalty wouldn’t be sought? I seem to recall a Supreme Court case coming down against extradition in cases where execution is a possibility.
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### Author:  [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)
#### Post date: [May 15, 2006, 3:25am UTC](https://boards.straightdope.com/t/legal-question-canadian-crime-chinese-time/356588/23 "2006-05-15T03:25:23Z")
That’s so for extradition: [United States v. Burns](http://www.lexum.umontreal.ca/csc-scc/en/pub/2001/vol1/html/2001scr1_0283.html). However, in this case, once he serves out his time in Canada, he will have long out-stayed his visa, and therefore would likely be deported under immigration laws, without the PRC having to apply to extradite. He would then have to try to make some sort of refugee pitch to try to avoid deportation, on the grounds that he would be punished a second time for the same crime, possibly with death. I don’t know if that would be a solid refugee claim or not. Who knows what our refugee law will look like, 15 years from now?
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### Author:  [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)
#### Post date: [May 15, 2006, 3:28am UTC](https://boards.straightdope.com/t/legal-question-canadian-crime-chinese-time/356588/24 "2006-05-15T03:28:01Z")
plus, something else I just thought of. what if he never applies for parole? he might conclude after 15 years that it’s better to stay in a federal pen in Canada than apply for parole, get it, be deported to China, and take a bullet in the back of his head shortly after his return. Wonder if the Correctional Act allows for deportation of a prisoner who has not been paroled?
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### Author:  [@China\_Guy](https://boards.straightdope.com/u/China_Guy)
#### Post date: [May 15, 2006, 4:25am UTC](https://boards.straightdope.com/t/legal-question-canadian-crime-chinese-time/356588/25 "2006-05-15T04:25:38Z")
> [@Monty](#):
>
> I’m suggesting that China doesn’t really have a judicial system. It has a parody of one, a sad one at that.
as someone that actually uses the chinese court system both personally and professionally, i disagree with that broad sweeping statement. actually the legal system is hit and miss with areas that are quite good and others with big gaps. it’s also improved considerably and expected to keep doing so.
ask any poor person their views on the us legal system
i’m certainly not aware that china is a signatory to some kind of international law against double jeopardy.
does anyone know what would happen to say a US citizen doing 20 years in a thai prison for heroin smuggling or some other major crime. on return to the US would they be completely free, have a record, be subject to probation or monitoring?
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### Author:  [@Throatwarbler\_Mangrove](https://boards.straightdope.com/u/Throatwarbler_Mangrove)
#### Post date: [May 15, 2006, 5:21am UTC](https://boards.straightdope.com/t/legal-question-canadian-crime-chinese-time/356588/26 "2006-05-15T05:21:59Z")
> [@](#):
>
> I’m suggesting that China doesn’t really have a judicial system. It has a parody of one, a sad one at that.
As someone who, like **China Guy** , has also used the Chinese legal system, I am sure that you are mistaken. China doesn’t have a _western_ style independent judiciary branch, so the goverment and the communist party is above the law, but that is irrelevent in a case like this. Seems to me you brought it up soley as a jab at the Chinese regime, which merited or not isn’t relevent to the OP’s question.
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### Author:  [@Derleth](https://boards.straightdope.com/u/Derleth)
#### Post date: [May 15, 2006, 8:38am UTC](https://boards.straightdope.com/t/legal-question-canadian-crime-chinese-time/356588/27 "2006-05-15T08:38:26Z")
> [@China Guy](#):
>
> ask any poor person their views on the us legal system
Is a [tu quoque](http://www.fallacyfiles.org/tuquoque.html) the best you can come up with here? I’m only bothering pointing this out because you have demonstrated an ability to make your case to some extent, and you probably have the knowledge to make it a lot better, but falling back on fallacies will kill you around here.
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### Author:  [@Monty](https://boards.straightdope.com/u/Monty)
#### Post date: [May 15, 2006, 1:33pm UTC](https://boards.straightdope.com/t/legal-question-canadian-crime-chinese-time/356588/28 "2006-05-15T13:33:05Z")
> [@kawaiitentaclebeast](#):
>
> As someone who, like **China Guy** , has also used the Chinese legal system, I am sure that you are mistaken. China doesn’t have a _western_ style independent judiciary branch, so the goverment and the communist party is above the law, but that is irrelevent in a case like this. Seems to me you brought it up soley as a jab at the Chinese regime, which merited or not isn’t relevent to the OP’s question.
Do you see the bit where you said “so the goverment [sic] and the communist [sic] party is above the law?” Why, I do. So, what it always boils down to, because of that one thing alone, is whatever the Party decides is best is what the ruling will be.
Now, the US legal system certainly has its problems, but guilty verdicts ordered by the government in power aren’t one of them.
So, your impression of why I brought it up is mistaken.
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### Author:  [@Throatwarbler\_Mangrove](https://boards.straightdope.com/u/Throatwarbler_Mangrove)
#### Post date: [May 15, 2006, 1:53pm UTC](https://boards.straightdope.com/t/legal-question-canadian-crime-chinese-time/356588/29 "2006-05-15T13:53:33Z")
And why, pray tell, would the goverment “order” a verdict in this particular case? Are you seriously expecting this to happen?
Why is it so hard for some people to grasp that there are murderers and child molestors in other countries too? There isn’t any special “communist” method used to deal with them.
In any case, your question has been answered (There’s no reason to expect the Chinese judicial system to rule “unfairly” in this case), so I will end the hijack here.
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### Author:  [@Monty](https://boards.straightdope.com/u/Monty)
#### Post date: [May 15, 2006, 7:06pm UTC](https://boards.straightdope.com/t/legal-question-canadian-crime-chinese-time/356588/30 "2006-05-15T19:06:06Z")
> [@kawaiitentaclebeast](#):
>
> And why, pray tell, would the goverment “order” a verdict in this particular case? Are you seriously expecting this to happen?
Where did I suggest t hat I expect it to happen? Now, at the time the idnividual in question returns to China, if the Chinese government is still like the one it has and if that government decides that it wants to “send a message,” then of course i t could very well happen.
> [@](#):
>
> Why is it so hard for some people to grasp that there are murderers and child molestors in other countries too? There isn’t any special “communist” method used to deal with them.
Pulled that one out of t hin air, didn’t you?
> [@](#):
>
> In any case, your question has been answered (There’s no reason to expect the Chinese judicial system to rule “unfairly” in this case), so I will end the hijack here.
Refer to my comment upthread about GD.
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### Author:  [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)
#### Post date: [May 15, 2006, 8:04pm UTC](https://boards.straightdope.com/t/legal-question-canadian-crime-chinese-time/356588/31 "2006-05-15T20:04:56Z")
> [@kawaiitentaclebeast](#):
>
> China doesn’t have a _western_ style independent judiciary branch, so the goverment and the communist party is above the law, but that is irrelevent in a case like this.
Quite so. You agree that the party and the government are above the law. Let’s think through what that means. Among other things, it means that the party and the government can order courts to crack down and condemn more people to death, not because more accused are guilty, or because more warrant the death penalty, but for political reasons (e.g. - anti-corruption campaigns) the government needs to be seen to be getting tough.
From the Amnesty International Report: [Executed “according to law”? The death penalty in China](http://web.amnesty.org/pages/chn-220304-feature-eng)
> [@](#):
>
> **Law unto itself**
>
> Behind these facts lies a criminal justice system which cannot and does not guarantee a fair trial under international law to defendants. Often defendants are denied their right to legal representation until after they have been interrogated, and even then, access in practice is strictly limited. The period of pre-arrest or pre-trial detention is often arbitrary, lasting in one extreme case for 28 years. Torture by police in China is rife, but there is no provision under Chinese law to exclude from court ‘confessions’ or other ‘evidence’ extorted through torture. In practice, there is no presumption of innocence.
>
> **Political pressure and interference**
>
> Trials and the process of appeal are often summary. Furthermore, there is no independence of the judiciary in China. \*\*The ruling Chinese Communist Party influences the judicial process at every level of proceedings with courts in particular being monitored and run by Party bodies.
>
> Political pressure on the judicial process is particularly acute during officially designated “strike hard” campaigns, where police, prosecutors and judges are under pressure to demonstrate speed and resolve at the expense of rigour and justice.\*\*
So if the Chinese government decides, for political reasons, that the murderer of a Chinese girl abroad needs special punishment to show China’s committment to its expatriate population, they have the power to ensure that the person accused of the murder will die. The absence of a " ‘western’ style independent judiciary branch" is not just a little cultural difference - it goes to the core of a fair judicial system. Now, maybe some non-western countries have come up with an alternative way to ensure a fair trial and fair treatment for the accused, even without an independent judiciary, but the AI article certainly doesn’t suggest the PRC has done so. Can you explain to us what protections there are for the accused in a system without an independent judiciary, and where you agree that the party and the government are above the law?
I think that is the concern that **Monty** is expressing - one that I share.
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### Author:  [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)
#### Post date: [May 15, 2006, 8:08pm UTC](https://boards.straightdope.com/t/legal-question-canadian-crime-chinese-time/356588/32 "2006-05-15T20:08:51Z")
> [@China Guy](#):
>
> Just read the end of the PPT document. Guy has been in jail for 2 years. He was sentenced to life in prison. The prosecuters made clear that if this murderer got parole, then he would be subject to deportation and arrest and trial in China for this crime. This is what seems to be the current case.
>
> Does anyone think this guy should be let back on the streets of Shanghai after 2 years in a Canadian jail? Does it sound like his rights are being violated? Or that his debt to society, the dead girl, her parents, etc has been paid?
That’s not going to happen. He’s been in gaol for two years awaiting trial. He was sentenced to life, with no parole eligibilty for 15 years. So he won’t be let out of the Canadian jail until at least 15 years time, and there is no guarantee even of that - parole eligibilty does not automatically equal making parole. He still has to persuade the Parole Board to release him.
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### Author:  [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)
#### Post date: [May 15, 2006, 8:14pm UTC](https://boards.straightdope.com/t/legal-question-canadian-crime-chinese-time/356588/33 "2006-05-15T20:14:08Z")
> [@China Guy](#):
>
> > [@Monty](#):
> >
> > I’m suggesting that China doesn’t really have a judicial system. It has a parody of one, a sad one at that.
>
> as someone that actually uses the chinese court system both personally and professionally, i disagree with that broad sweeping statement. actually the legal system is hit and miss with areas that are quite good and others with big gaps. it’s also improved considerably and expected to keep doing so.
> [@kawaiitentaclebeast](#):
>
> As someone who, like China Guy, has also used the Chinese legal system, I am sure that you are mistaken.
I’m curious - can either of you share your experiences? in particular, what areas of the law have you used the Chinese courts? civil or criminal? if criminal, have either of you experience defending an accused in the Chinese criminal courts? have you been an accused in the Chinese criminal courts?
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### Author:  [@Amok](https://boards.straightdope.com/u/Amok)
#### Post date: [May 15, 2006, 9:21pm UTC](https://boards.straightdope.com/t/legal-question-canadian-crime-chinese-time/356588/34 "2006-05-15T21:21:01Z")
Here’s a thread from a few months ago that’s sort of on topic:
> **[Being tried twice for the same crime by different countries](https://boards.straightdope.com/sdmb/showthread.php?t=350664)**
>
> So, back in 1985, Mohammed Ali Hamadi was part of some Hezbollah partisans who hijacked a TWA flight from Athens to Rome. During the course of the hijacking the plane touched down in Beirut, and the body of an American was dumped onto the runway. ...
Basically, a Lebanese man killed an American citizen during a plane hijacking back in the 80s. He was captured and tried in Germany where he served 19 years in prison. And then, on his release in 2005, he returned to Lebanon. The US is now seeking to extradite him from Lebanon, to try him for the same crime he was convicted for and served time for in Germany. So far, as far as I know, nothing has come of the extradition request, but the US hasn’t dropped it.
There is no double jeopardy issue from being tried by two different sovereigns. Extradition treaties often forbid extraditing someone for a crime he’s already been convicted of in the first country, but that’s not a bar for trying the person if he’s captured in the second country (or they get ahold of him in whatever fashion). At least as far as the US is concerned (see UNITED STATES v. WHEELER where a man was tried by both an American Indian tribal court and a federal court for the same crime). I don’t know about China, but I imagine they’d feel the same way.
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### Author:  [@Throatwarbler\_Mangrove](https://boards.straightdope.com/u/Throatwarbler_Mangrove)
#### Post date: [May 16, 2006, 12:34am UTC](https://boards.straightdope.com/t/legal-question-canadian-crime-chinese-time/356588/35 "2006-05-16T00:34:47Z")
> [@](#):
>
> Quite so. You agree that the party and the government are above the law. Let’s think through what that means. Among other things, it means that the party and the government can order courts to crack down and condemn more people to death, not because more accused are guilty, or because more warrant the death penalty, but for political reasons (e.g. - anti-corruption campaigns) the government needs to be seen to be getting tough.
Right, but again, _in this particular case_, where we are almost 100% certain already that the defendent is guilty, and there isn’t anything politically charged about the circumstances, he’s going to get the death penalty and that will be “fair” under Chinese law. In another case where the guilt of the defendant was in doubt, or that there was some political motivation for the goverment to interfere, I might agree with you but not here.
> [@](#):
>
> So if the Chinese government decides, for political reasons, that the murderer of a Chinese girl abroad needs special punishment to show China’s committment to its expatriate population, they have the power to ensure that the person accused of the murder will die.
Perhaps, but again, that he will receive the death penalty is almost a foregone conclusion, had he commited the same crime in China and was tried under a Chinese court.
> [@](#):
>
> The absence of a " ‘western’ style independent judiciary branch" is not just a little cultural difference - it goes to the core of a fair judicial system. Now, maybe some non-western countries have come up with an alternative way to ensure a fair trial and fair treatment for the accused, even without an independent judiciary, but the AI article certainly doesn’t suggest the PRC has done so. Can you explain to us what protections there are for the accused in a system without an independent judiciary, and where you agree that the party and the government are above the law?
I don’t disagree that the independence of the judiciary branch is key to justice in general terms. What I am saying in this particular case is that there isn’t any political motivation, or really even any legal neccesity for the goverment to override the law. The fact that the Chinese goverment regularly uses the court system to it’s own advantage against legal challenges from the general populace is is irrelevent, since those circumstances are not present.
My experiences in Chinese law are a few civil/business disputes, and I have friends and relatives who are police officers, but I admit that I have no personal experience with the criminal system. I will say, and this is what I have heard and read from Westerned living and working there as well, that in mundane, non-political cases that make up the bulk of the court’s business, the Chinese court system is no more unfair or corrupt that similar courts in the west. Businesses still sue each other, thieves and bank robbers still get arrested and mostly brought to justice, etc. This case might not be mundane, but I don’t see any political reason that the goverment will feel the need to interfere.
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### Author:  [@China\_Guy](https://boards.straightdope.com/u/China_Guy)
#### Post date: [May 16, 2006, 4:53am UTC](https://boards.straightdope.com/t/legal-question-canadian-crime-chinese-time/356588/36 "2006-05-16T04:53:55Z")
if i might make a point, the government and party can & do wield undue influence in the courts. please note that for the most part, the gvt and party don’t care what happens in a cival court case. one is much more at risk from the other side bribing to influence the outcome.
whilst gvt may have potential to interfere in every case, for the most part they don’t have bandwidth or inclination to. indifference being the practice and interferrence the exception.
in this case, dude confessed and pled guilty in a canadian court. i really don’t see an international conspiracy to ‘railroad’ the guy.
i’m assuming the chinese authorities will look up the standard punishment for such crimes, go through the appeal/adjudication/extenuating circumstances process and then carry out the appropriate sentence. no cite for what that sentence would actually be and if a less than life sentence credit for time served.
i’ve personally been involved with a tenant dispute, employment contract dispute, redevelopment compensation and numerous corporate related that i cannot write about. i’ve had friends in jail for visa violations and fighting.
civil chinese legal system is designed for arbitration and to settle between parties rather than a court judgement. local police resolve a huge range of issues between parties, with official receipts. i’ve never seen nor needed to make a payoff. for example, the fender benders i’ve been involved with, the police determined who was at fault and negotiated repair fee. if it couldn’t be negotiated on the spot, it got referred up the department
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### Author:  [@China\_Guy](https://boards.straightdope.com/u/China_Guy)
#### Post date: [May 16, 2006, 5:01am UTC](https://boards.straightdope.com/t/legal-question-canadian-crime-chinese-time/356588/37 "2006-05-16T05:01:11Z")
oh, forgot the numerous times busted 20 years ago for being in restricted areas.
one time that entailed having passport taken away, 2 day escort back to a provincial capital, questioning and then released without writing a self confession or fined. but that was a completely different world back then.
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