“364. Subject to paragraph 380, while each case will be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation. The Secretary of State will consider all relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport. The aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects. In the cases detailed in paragraph 363A deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained without authority.... 380. A deportation order will not be made against any person if his removal in pursuance of the order would be contrary to the United Kingdom's obligations under the Convention and Protocol relating to the Status of Refugees or the Human Rights Convention.”
“364. Subject to paragraph 380, while each case will be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation…”
“…5. On3 January 2007 , this appeal came before me. There were different representatives on that day. I directed that the stage 1 reconsideration be listed before me as soon as possible, with a view to setting up a country guidance hearing on the double jeopardy point, having regard to the Foreign and Commonwealth Office evidence. The appellant undertook to indicate within 14 days whether the credibility issue was pursued; that was not done. The Tribunal’sArticle 8 ECHR findings and findings under the Immigration Rules are unchallenged, as is the decision regarding general risk on return (outwith the double jeopardy point). 6. I heard submissions from the appellant. He argued that the Tribunal had failed to deal with the Foreign and Commonwealth Office evidence, although it had been on notice that he relied upon it. A response to an information request from the Country of Origin Information Unit quoted part of that letter. The PRC had a statute permitting double jeopardy prosecutions and his evidence had not been properly weighed. The Tribunal had overlooked the Adam point; in that decision, exceptionally, Schiemann LJ held that where the new evidence was in the hands of the Home Office throughout, the burden of showing that it could not be relied upon was upon the respondent. He asked the Tribunal to look at paragraphs 45 and 51 of WC which deal with the monitoring of returnees. [paragraphs cited] 7. The authorities with which the Tribunal was dealing all refer to lack of evidence for double jeopardy prosecutions of offences committed entirely overseas. That is not the position of this appellant, whose offence was committed in both countries. It was a serious offence. The Secretary of State has only latterly disclosed a paragraph from a letter from the Foreign and Commonwealth Office. The whole letter must now be disclosed. It was not before the Tribunal in WC and SC and in failing to deal with it at all in their determination, there is no doubt that the Tribunal made a material error of law. The appeal must be reheard.”
“It seems to me that it is not a matter for this Court to decide whether or not [the defendants if deported] face execution, or trial again, in China; that is a matter for the Secretary of State and his advisers. In this sort of case, which is organised crime, I have no hesitation – and that one reason is enough in my view – to recommend all of you, where appropriate, for deportation once these sentences have come to an end…. After your release you will be subject to supervision on licence until the end of three quarters of the total sentence. You will be liable to be recalled to prison if your licence is revoked, either on the recommendation of the Parole Board or, if it is thought expedient in the public interest, by the Secretary of State.”
“… [The appellant] was seen to be part of an organised Chinese gang called the ‘snakeheads’ who were trying to take over the business of a rival gang. They were holding the rival gang’s group of immigrants to ransom for£12000 each. I understand it was alleged that some violence was used although no weapons were used.”
“6.1 If [the appellant] had been granted leave to remain in this country and home circumstances had been investigated by the home area, with them supporting release, then I would recommend [the appellant] for parole. Clearly, to recommend him for parole in the current circumstances is infeasible.”
“This Law shall be applicable to any citizen of the People’s Republic of China who commits a crime prescribed in this Law outside the territory and territorial waters and space of the People’s Republic of China. However, if the maximum punishment to be imposed is fixed-term imprisonment of not more than three years as stipulated in this Law, he may be exempted from the investigation for his criminal responsibility. This Law shall be applicable to any State functionary or serviceman who commits a crime prescribed in this Law outside the territory and territorial waters and space of the People’s Republic of China.” 3. This provision reflects the personality principle and allows the extra-territorial application of the CL. Because of this application, the CL follows Chinese citizens wherever they go, and Chinese courts always have jurisdiction to punish Chinese citizens who have committed crimes overseas upon their return. 4. Even if a Chinese citizen has already been tried (and punished) in a foreign country, Chinese government can re-prosecute the relevant citizen upon his return. Article 10 of the CL provides: “Any person who commits a crime outside the territory and territorial waters and space of the People’s Republic of China, for which according to this Law he should bear criminal responsibility, may still be investigated for his criminal responsibility according to this Law, even if he has already been tried in a foreign country. However, if he has already received criminal punishment in the foreign country, he may be exempted from punishment or given a mitigated punishment.” 5. The rationale behind Article 10 of the CL is that China, as a sovereign state, refuses to recognize foreign penal judgments unless such recognition arises in accordance with any international agreement which China has signed. The rule against double jeopardy does not apply in China in principle. 6. Importantly, decisions to prosecute or re-prosecute offences committed overseas under both Article 7 and Article 10 are discretionary. Under Article 7, CL normally applies to a crime committed by a Chinese citizen overseas only if the offence is relatively serious (and attracts a maximum sentence of more than three years) unless the offender is a civil servant or a serviceman, in which case all offences may, in theory, be prosecuted. 7. Article 10 is intended to avoid a situation in which a foreign court treats a Chinese offender with undue lenience. The article gives the procuracy the discretion to prosecute or not to prosecute a Chinese citizen who was tried by a foreign court for an offence committed overseas depending on the seriousness of the offence committed and penalties imposed by the foreign courts. The Chinese procuracy may re-prosecute the offender for the same offence to compensate for the undue lenience. The same article also authorizes the court to exempt the offender, when re-prosecuted, from any further punishment in China and give only mitigated penalties depending on the seriousness of the overseas offence and the severity of the overseas penalty.” “This Law shall be applicable to any citizen of the People’s Republic of China who commits a crime prescribed in this Law outside the territory and territorial waters and space of the People’s Republic of China. However, if the maximum punishment to be imposed is fixed-term imprisonment of not more than three years as stipulated in this Law, he may be exempted from the investigation for his criminal responsibility. This Law shall be applicable to any State functionary or serviceman who commits a crime prescribed in this Law outside the territory and territorial waters and space of the People’s Republic of China.” “Any person who commits a crime outside the territory and territorial waters and space of the People’s Republic of China, for which according to this Law he should bear criminal responsibility, may still be investigated for his criminal responsibility according to this Law, even if he has already been tried in a foreign country. However, if he has already received criminal punishment in the foreign country, he may be exempted from punishment or given a mitigated punishment.”
“Yet we can expect robust law reform efforts to continue in China, even in the field of criminal justice. The PRC is still considering whether or not to ratify the International Covenant on Civil and Political Rights (ICCPR), which it signed in 1998. Ratification would commit the PRC to changes in law and practice in the criminal justice area as profound as those changes in economic law and practice required by the PRC’s entry into the WTO. Regardless of ICCPR ratification, the Chinese Government, under strong domestic pressures to eliminate some of the most glaring defects in the CPL [Criminal Procedure Law] and some of the worst distortions of the CPL in practice, has already made clear its determination again to revise the CPL. Although optimists predict that the newly-revised CPL might appear by next year, we should not underestimate the magnitude of the task. A multitude of controversial issues awaits the NPC, and achieving a meaningful reconciliation of the conflicting views of the Ministry of Public Security, the Ministry of State Security, the Ministry of Justice, the Supreme People’s Court, the Supreme People’s Procuracy, the All China Lawyers Association, influential academic experts and relevant Party organizations will require enormous legislative skill, time and energy. Pending comprehensive revision of the CPL, the NPC may decide to make certain urgently-needed reforms earlier. For example, should the NPC do something about “re-education through labor” (“laojiao”)? It is an administrative punishment that is not authorized by NPC legislation (as now required by other NPC legislation) and that is dispensed by the police, who can send someone to labor camp for three or four years without the participation of lawyers or the approval of the procuracy or the courts. Although the Ministry of Public Security has been waging a public relations and lobbying campaign to retain “laojiao”, even conducting limited experiments to allow lawyers into the proceeding in an effort to avoid losing this major sanction, its continuing existence is blatantly inconsistent with the premises of the CPL and the Law on Legislation, as well as perhaps the Constitution itself, as many Chinese judges, officials, lawyers and academic experts have pointed out. Perhaps we can also expect an expanded role for the courts, and further strengthening of the courts and the legal profession in order to enable the courts to play this expanded role. The Chinese Government is plainly facing a domestic crisis of confidence caused by the failure of its institutions to deal adequately with a rising tide of public grievances relating to environmental pollution, real estate manipulation, unauthorized local financial demands, corruption, discrimination and other official abuses. Increasingly, interest groups, fueled by a shared sense of injustice, are taking to the streets and even rioting. These protests threaten political, economic and social stability and indeed the common people’s belief in the legitimacy of Communist rule. Too often, for example, the courts, instead of enforcing national laws against lawless local officials or conflicting local regulations, serve as the instruments of the local elite against the victimized populace. And lawyers brave enough to assist the protesters in their efforts to resort to courts in order to vindicate their rights are often detained or intimidated by the local police and prosecutors.”
“A large number of Chinese criminal justice experts from the judiciary, the procuracy, the defense bar, the Ministry of Justice, the Ministry of Public Security, the NPC staff and academic life have been making impressive efforts to develop a national consensus on a broad range of understandably contentious issues. Should suspects generally be granted bail during the investigation period instead of languishing in detention as at present? Should they have a right to keep silent and not incriminate themselves? Should a presumption of innocence be confirmed and its implications spelled out? Should defense lawyers be allowed to monitor police interrogations, conduct their own investigation prior to indictment and freely meet detained clients? What steps should be adopted to make defense lawyers available to accused who more often than not go unrepresented? What protections should be enacted to reduce the likelihood that suspects will be tortured and to curb widespread overtime detentions? What measures should be prescribed to strengthen the current insignificant legislative barriers to arbitrary search and seizure? Should all illegally-obtained evidence be excluded from trials? Should plea bargaining be fostered? Should prosecution witnesses be required to appear at trial in order to make meaningful the existing right to cross-examine one’s accusers? What kind of appellate review should replace the current perfunctory procedure? None of these issues, which have long cried out for legislative resolution, is likely to be dealt with by the NPC in the near future. Nor does the NPC seem ready to abolish the notorious, supposedly “non-criminal”, administrative punishment of “re-education through labor” (RETL), which allows the police unilaterally to ship people off to three or even four years of confinement in circumstances that are similar to those of the conventional criminal punishment of “reform through labor”
“10. There is, however, an absence of reported cases of re-prosecution under Article 10 of the revised Criminal Law of the PRC, 1997. This reflects, in my view, not an absence of such cases but, rather, a problem of reporting – reflecting in part the problem of the secrecy that pervades important areas in the operation of the legal system in the PRC. Secretiveness is part of a general approach to law and governance in the PRC, and the failure of the PRC government to acknowledge and deal with the SARS epidemic reflected, continued close control over and censorship of the media by the PRC authorities. Legal reforms in the PRC have prompted the Chinese legal system to become a little more open and transparent than it was two decades ago. However, secrecy continues to be a critically important feature of the operation of the Chinese legal system. Very important is the secretive nature of the workings of the court adjudication committee, despite its active involvement in trial decision-making.”
“11…Discussing sources of law with reference to the role of the courts under the heading “The Emergence of Case Law”, one of the leading authorities on Chinese law in North America, Stanley Lubman, has recently pointed to the particular and limited role given to “case law” in the PRC: Chinese doctrine firmly rejects the doctrine of precedent (panli), denying any binding force to judicial decisions. Although the prior cases may be considered instructive examples (anli), they are not binding and are not supposed to be considered a source of law. In practice the Supreme People’s Court has been publishing decisions in its Gazette since 1985 for their “reference and educational value”
“Most of the cases reported in the [Supreme People’s Court] Gazette are from decisions of lower courts which reach the Supreme Court through “the internal reporting channel”
“…although it is impossible to say to what extent he is at risk, and even though the offences for which he has been convicted in [the United Kingdom] do not carry the death penalty.”
“… From a state sovereignty point of view, immediate abolition of Article 10 of the Criminal Law is not likely appropriate. Consideration must be given to both the protection of human rights and the maintenance of state sovereignty, and it might be reasonable to revise Article 10 of the CL 1997 from the doctrine of negative recognition to the doctrine of positive recognition. The so-called doctrine of positive recognition stipulates that criminal judgments handed down by foreign courts must be recognized by courts in China, except when the judgment is apparently partial for some unlawful reasons.”
“142(2) With respect to a case that is minor and the offender need not be given criminal punishment or need be exempted from it according to the Criminal Law, the People's Procuratorate may decide not to initiate a prosecution.”
“Rushing an immature draft into law is not in our interest. But we cannot afford any more foot-dragging on this one. We badly need a substitute for the re-education-through-labor mechanism. Through its existence since 1957, re-education-through-labor institutions have contributed to maintaining order and preventing crime. The system's inadequate concern for civil rights as well as lack of jurisprudence protection have made it increasingly out of step with the country's progress in protecting human rights. Re-education through labor is a Chinese invention that applies to minor law violations that do not constitute crimes or qualify for criminal punishment. Since police authorities can independently decide to send a citizen for such re-education and the terms of re-education can be as long as four years, there have been legitimate worries as well as examples of abuse. Although the re-education system was designed for minor offenses that do not deserve penalties prescribed in the Criminal Law, re-education through labor can be more severe than what the law stipulates for crimes. This is a major injustice that has to be resolved. The largely unrestrained latitude of the police in deciding the term of re-education, the lack of oversight, and absence of clearly defined procedures make suspects of minor offenses vulnerable. Some would rather face trial and serve a criminal sentence than be sent to re-education. We strongly hope the widely anticipated draft can appear before the national lawmakers as scheduled. It is an imperative legislative task. Disagreements are no reason for keeping it from legislative scrutiny. The NPC Standing Committee is the best place to address different opinions.”
“The court system in China has four levels. The Supreme People’s Court which sits in Beijing is the highest judicial organ in China and is formally responsible to the National People’s Congress (NPC) and its Standing Committee. It tries the most significant cases, hears appeals against the decisions of lower-level courts and supervises the operation of local courts and special courts. The second tier consists of approximately thirty Higher Courts which sit in provincial and autonomous region capitals and in the major cities which have been accorded independent municipal status. The third tier courts are the 400 or so Intermediate People’s Courts which are based in the administrative centres of prefectures, certain other towns and the districts of larger cities. Basic or primary-level People’s Courts, of which there are over 3000, are the lowest level courts and sit in all counties and in many cities. They have the authority to establish People’s Tribunals to handle local cases and it is estimated that there are as many as 20,000 such tribunals. Intermediate People’s Courts try criminal cases and have jurisdiction in cases carrying the death sentence subject to appeal to the Higher Court.”
“Although there have been many changes in the Chinese media since the 1980s, the State still exercises a great deal of control, particularly over matters which are judged to have an impact on national security. Serious and organised crime and its consequences fall into this category. Court cases are not routinely reported in the press in the way that they are in the West. They are only reported in the national and provincial level daily press when they are deemed to be of political significance and the government intends that a lesson should be drawn from them. There are often more detailed reports in the local daily and evening press and on local television stations, so a resident or visitor might have access to this information. Many, if not most, trials are effectively held in camera. Local newspapers have always been formally classified as neibu (internal) rather than gongkai (open or public). These are classifications that have applied to all publications within the PRC since 1949 and reflect the military and clandestine political background of the regime. Although these designations are not adhered to as rigidly as they were, the option of declaring that documents are restricted is still open to the regime. Neibu approximates to “classified” or “restricted” in western concepts of document availability and although local newspapers are on sale publicly in the areas that they serve and have regularly made their way abroad, high profile cases, notably the case of Rebiya Kadeer, have demonstrated that the government views information in them as “State secrets”
“It is difficult to see what evidence the Home Office could adduce to support the claim that Article 10 is not likely to be put into practice, or that it is only likely to be put into practice in limited circumstances, since it is impossible to gain access to reliable data on this matter.”
“The confirmation that the FCO are unable to monitor Chinese citizens when they have returned to China is clearly accurate. Guarantees made by the police, legal or government authorities in China on re-prosecution or the treatment of returnees cannot be verified. There is no reason why the Chinese government should consider itself to be obliged to inform Western courts or governments about a re-prosecution. The presumption of the Chinese political system is one of secrecy or at least confidentiality. This is not restricted to the legal system: information is considered to be privileged and publication abroad of any material deemed sensitive is only approved when there is political advantage in doing so. Although there is considerably more openness now than there was twenty or thirty years ago, this attitude has not changed fundamentally.”
“He would certainly belong to the category of person that the police would wish to monitor on the grounds that he would be likely to re-offend. It is possible, although unlikely, that he would be simply able to get on with his life. The authorities would wish to monitor him in some way but the precise method of supervision would depend on local conditions and local attitudes. The options available would include surveillance, re-prosecution or sending him to a laojiao camp, which would not require formal prosecution. It is not possible to know what has happened to convicted criminals who have been deported to China as that information is not openly available. This risk is increased by the fact that the victims were Chinese nationals in the UK. Even if this crime has not been reported in the official media in China, news would have spread through unofficial channels and the authorities may well feel obliged to prosecute to demonstrate their concern for their own nationals abroad.”
“The [senior Public Security Ministry] official said that the fight against snakeheads is the most important part of the battle and that they need to be given harsh penalties in accordance with the law”, while interviews conducted by Canadian diplomatic staff with PSB officials in Fujian also confirmed that “penalties for smuggling … seem to increase in severity the greater the involvement of the accused with the organization of smuggling.”
“19. … Disputes over changes in land use, inadequate compensation to farmers and/or corrupt diversion of compensation funds have become extremely common since the early 1990s, and now represent one of the most frequent causes of public protest in China. As Fujian was a pioneer province in economic reforms, one would expect these pressures to have been felt there earlier than e.g. in some of the interior provinces. It can be assumed that many more such incidents occur than are ever heard about outside China, although since they are now occasionally filmed or photographed on mobile phones, sometimes extreme examples such as the fatal shooting of three villagers in Dongzhou township, Shanwei, Guangdong province, in December 2005 are reported in e.g. Hong Kong.”
“5. The rationale behind Article 10 of the CL is that China, as a sovereign state, refuses to recognize foreign penal judgments unless such recognition arises in accordance with any international agreement which China has signed. The rule against double jeopardy does not apply in China in principle. 6. Importantly, decisions to prosecute or re-prosecute offences committed overseas under both Article 7 and Article 10 are discretionary. Under Article 7, [CL] normally applies to a crime committed by a Chinese citizen overseas only if the offence is relatively serious (and attracts a maximum sentence of more than three years) unless the offender is a civil servant or a serviceman, in which case all offences may, in theory, be prosecuted. 7. Article 10 is intended to avoid a situation in which a foreign court treats a Chinese offender with undue lenience. The article gives the procuracy the discretion to prosecute or not to prosecute a Chinese citizen who was tried by a foreign court for an offence committed overseas depending on the seriousness of the offence committed and penalties imposed by the foreign courts. The Chinese procuracy may re-prosecute the offender for the same offence to compensate for the undue lenience. The same article also authorizes the court to exempt the offender, when re-prosecuted, from any further punishment in China and give only mitigated penalties depending on the seriousness of the overseas offence and the severity of the overseas penalty.”
“15. (6) if other laws provide an exemption from investigation of criminal responsibility.”
“239 Whoever kidnaps another person for the purpose of extorting money or property or kidnaps another person as a hostage shall be sentenced to fixed term imprisonment of not less than 10 years or life imprisonment and also to a fine or confiscation of property; if he causes death to the kidnapped person or kills the kidnapped person he shall be sentenced to death and also to confiscation of property.”
“50. Traditionally, police paid special attention to special groups of population, including people with a serious crime record. Under the Regulation on Targeted People Management issued on21 March 1989 and amended on25 May 1998 , “residents suspected of serious criminal activities” including “people suspected of having violated citizens’ physical and personal rights through activities such as murder, rape, bodily injury, and trafficking of women and children” are put into the blacklist of targeted people of the local police and subjected to police surveillance. However, as Fei-Ling Wang noted, given the high mobility of people in contemporary China, police control over targeted people has become much more difficult and less effective. Additionally, according to Wang, factors such as “the changed social environment in China, which has led to the public increasingly despising secret dossiers, informants, intolerance, and persecution by association and suspicion” were considered by the police to be another significant reason undermining the effectiveness of the police in monitoring the targeted population. There is no longer an effective legal mechanism to monitor a person who is in the criminal process. Virtually, anyone can vanish in Chinese cities without being traced (even by the authorities) if he or she wishes to do so.” [Emphasis added]
“Most of the resources we get now are not from the Court website, but from an unofficial database from the university law school websites which are more systematic. They have the centralised resources to do it in the universities. They have the resources to build a really big database of Chinese decisions, 50,000 cases now on the website Chinalawinfo.com maintained by Peking University Law School. Last time I looked it was 50,000, and it is getting bigger all the time. I do not know how frequently they add cases but I know that they collect cases, classify them and put them there. There are less than 1 million criminal cases a year in China, about 700000, there are 7 million cases in Chinese Courts overall per year with criminal cases about 10%. The Chinalawinfo website database is a drop in the ocean? Yes, and I do not know their premise of case selection. You have mentioned a number of cases in your main report from the Chinalawinfo website? Yes. Did you check city court websites? Yes, we checked the Supreme People’s Court, larger city courts but not the county courts.”
“Following our recent correspondence, I am confirming our understanding that the concept of double jeopardy is addressed in Chinese law. Article 10 of the 1997 Criminal Code of the PRC states that “If any person commits a crime outside the territory of the PRC for which according to this Law he would bear criminal responsibility, he may still be dealt with according to this Law, even if he has already been tried in a foreign country. However, if he has already received criminal punishment in the foreign country, he may be exempted from punishment or given a mitigated sentence.”
“39. In summary the principles set out in this determination are: 1. In asylum and human rights cases it is for an individual claimant to show that a document on which he seeks to rely can be relied on. 2. The decision maker should consider whether a document is one on which reliance should properly be placed after looking at all the evidence in the round. 3. Only very rarely will there be the need to make an allegation of forgery, or evidence strong enough to support it. The allegation should not be made without such evidence. Failure to establish the allegation on the balance of probabilities to the higher civil standard does not show that a document is reliable. The decision maker still needs to apply principles 1 and 2.”
“However, a warrant which meets these criteria isn’t necessarily authentic. There is no technical verification system, such as a watermark or bar code, making them relatively easy to forge. It would therefore be very difficult for an independent academic expert to give an opinion on the authenticity of a warrant, beyond commenting that the format appeared to be standard. A more reliable way of checking would be through the prosecutor’s office which issued the warrant. That office would be able to verify it by checking the warrant number against their records. However, this would require a Formal Mutual Legal Assistance request.”
“Chinese migrants 29.08 As reported by Ronald Skeldon of the University of Sussex, writing on Chinese migration in April 2004: “… any simple correlation between the total population of China and the number of Chinese overseas is deceptive, because the majority of the latter trace their roots to a very few regions within China. The three southern coastal provinces of Guangdong, Fujian, and Zhejiang have dominated the emigration, and within those provinces, a limited number of districts and even villages. These areas were marginal to the Chinese state and weak in terms of their resource base. However, most importantly, these areas were the earliest and most intensively affected by the seaborne expansion of European colonial powers, which linked them to a wider global system. Furthermore, in contrasting numbers of Chinese overseas with the base population of China, Chinese ethnicity must not be confused with Chinese migration, because many of the Chinese overseas were born outside China in the lands chosen by their parents and grandparents.” … 29.12 As reported by in the Guardian newspaper on7 February 2004 , “People from Fujian have a long history of seeking their fortune overseas. In extreme cases some villages have 80% of families with someone living overseas.”
“The network of snakeheads, or human smugglers, operating in China’s Fujian province is ‘huge’, meeting demand from locals attracted by the potential of earning 10 times an average Chinese wage in Europe, according to a report. ‘Many snakeheads belong to one family, and others are friends,’ a man who worked as a snakehead for 10 years told the China Daily. ‘They cooperate with each other, take charge of different areas of human smuggling, and get rich by sharing money from the stowaways.’ The issue has been thrown into the spotlight by the drowning of 19 presumed Chinese picking cockles a week ago in Britain’s Morecambe Bay. Fifteen of them are believed to be from Fuqing city in Fujian, natives of which have a long history of illegally entering other countries.” … 29.15 According to Dr Frank N. Pieke in his paper entitled Chinese Globalization and Migration to Europe, published on9 March 2004 : “American research (Chin 1999; Zhang and Chin 2000) on Chinese human smugglers has revealed that snakeheads are not triad-like criminal organizations that can be countered by conventional law-enforcement methods aimed at eliminating the organization’s leadership. Rather, snakeheads are independent and highly specialized entrepreneurs enmeshed in loose networks, only cooperating on specific consignments. Consequently, countering snakeheads should focus on spoiling their market, both by raising the risks and costs of their operations and by taking away the demand for their services. The key issue then becomes how many Fujianese a country should admit under a program of migration to make a sufficient number of snakeheads abandon their trade for something less risky and more profitable.” 29.16 As reported by the US State Department (USSD) Report 2006, published on6 March 2007 , “When arrested and brought to court, human smugglers received five to ten-year jail sentences and fines up to$6,000 (RMB 48,000). In very serious cases, courts imposed life imprisonment or the death penalty”
“…must not exclude any matters from its consideration when it is assessing the future unless it feels that it can safely discard them because it has no real doubt that they did not in fact occur (or, indeed, that they are not occurring at present). Similarly, if an applicant contends that relevant matters did not happen, the decision-maker should not exclude the possibility that they did not happen (although believing that they probably did) unless it has no real doubt that they did in fact happen.”
“We would accept that the correct approach to the application of the Chahal test is that described in Karanakaran. The decision-maker should take a holistic approach; it should take account of all the relevant evidence and risk factors, giving to each matter such weight as it warrants, bearing in mind its importance in the context of the case and the extent to which it has been satisfactorily proved. It will be proper to exclude from consideration those matters which it can safely discard because it has no real doubt that they did not occur. The decision-maker should also take account of the absence of satisfactory information relating to matters of importance. If no evidence or information can be discovered on a matter of importance, its absence will be relevant to the assessment of future risk.”
“55. ...But it is the Secretary of State who is likely to have the most comprehensive knowledge of conditions in foreign countries, not least through diplomatic and consular channels, and if decisions with the enhanced status of Country Guidance cases are to be made about those countries it might seem appropriate for the Secretary of State directly to contribute that knowledge.”
“45. As to evidence, such as the letters from the British High Commission, it is true to say that High Commissions and Embassies come within the auspices of the Foreign and Commonwealth Office. That, like the respondent, is an arm of the executive. In this case the evidence in the letters has been obtained at the specific request of the respondent. Little is known about the information-gathering process, where the raw data came from, or the extent to which it has been filtered. It is also unclear whether more than one source was consulted and, whether competing views were sought. That all goes to how much weight can properly be put on the evidence. Immigration judges should be slow to find bad faith on either side, even though they must approach the evidence with an open and enquiring mind as to the appropriate weight to be put upon it. We comment further on the BHC material later in this decision.”
“44. We cannot ignore the absence of evidence in this case. It is clear that experts such as Dr Dillon visit China regularly and read local newspapers and listen to local radio, yet he, like Professor Palmer who gave evidence in WC can point to no examples of re-prosecution where a person has been prosecuted abroad. Dr Dillon made the point that there was a distinction between there not being evidence of re-prosecutions and accepting or not accepting that there had been no cases of prosecutions, and we agree that there is a distinction there. But we have to be concerned with evidence of a real risk as opposed to speculation in coming to our conclusions. Much has been made of both the general attitude of the Chinese authorities to human rights, the secretive nature of that society and the control exercised over the media, in seeking to persuade us that the absence of evidence should be regarded as unsurprising and not stand in the way of the case being made out. In this regard however we consider it is also relevant to bear in mind the absence of any evidence concerning the co-conspirators of the Appellant who have been returned to China over the last twenty months or so and the absence of any indication as to what their fate may be. Dr Dillon no doubt properly raised the question as to whether there was proof that they were all right, but he is not a lawyer, and that ignores the obvious point that the burden of proof is on the Appellant. 45. In coming to our conclusions we do not ignore the profile of this case and the fact that there was clear cooperation between the Chinese and the United Kingdom authorities. Nor do we ignore the point of distinction that we have identified above at paragraph 34 between this case and the facts of WC. We also bear in mind the evidence concerning the preparedness of the Chinese state to act in defiance, if it may so properly be described, of the provisions of the CL in cases which it deems to be appropriate, and the apparent compliance of the Chinese courts with such an approach. These are clearly matters of significance which cannot properly be ignored, and in this regard we also bear in mind the points made concerning extrajudicial punishments such as labour camps which exist as a further option, it seems, to the authorities. But in the end we are not persuaded that the Appellant has shown a real risk of re-prosecution in China with regard to the offences for which he was convicted in the United Kingdom or prosecution for any other reason. …the facts in the evidence in this case are not such as to show a real risk to this Appellant on return of breach of Articles 3, 4, 5 and 6 of the Human Rights Convention. … 47. We agree with the Tribunal in WC that the ne bis in idem principle (i.e. the principle precluding retrial or re-punishment for an offence for which the person has already been finally convicted or acquitted) does not yet constitute a peremptory norm prohibiting the punishment of a person twice in two different states for the same offence. We do not however consider that if the appellant were sentenced to up to five years imprisonment in China on return (on the basis taken by the Tribunal at paragraph 35 in WC) even taken with the evidence of prison conditions in China, [that] would give rise to a real risk of breach of his human rights. The risk alluded to in paragraph 37 of WC of the appellant being made a public example of seems to us to be unnecessarily speculative, bearing mind the absence of any hard evidence before us of a 'strike hard' approach such as that referred to in that paragraph. ” [Emphasis added]
“37. As Collins J said in Slimani, experts can vary in their independence and expertise to a very large degree. Some are well known as reliable, others perhaps equally well known as unreliable. In the centre ground comes the majority. It is the task of the Tribunal to decide what evidence they accept and what weight they can put upon the evidence they receive. … In fact, in this jurisdiction, experts are not merely the providers of raw data but they can be the interpreters of it as well. Their interpretation, and any opinion based on that interpretation, can only be as good as the raw data itself. By that we mean not only the quality of the data, but the selection or filtering, of it. 38. We agree with the concept of the expert as a filter of evidence. A real problem arises in this jurisdiction from the use of the word "expert". In this context an "expert" is merely a witness giving factual, hearsay and opinion evidence. No witness is prohibited from doing that. The question is not therefore the admissibility of the evidence (as it would be in the criminal and civil courts) but the weight to be given to it. The task for us is therefore to decide, simply, how much weight is to be put on the conclusions and/or the filtered evidence that is put before us. The fact that it is demonstrably wrong may help to assess it. However, the fact that it is not demonstrably wrong does not engender reliance upon it, whether or not the person giving the evidence is, or claims to be an "expert". Additionally, in order to accept an expert as a competent and reliable filter mechanism it is necessary to trust the expert and to have confidence that he or she has filtered the evidence objectively and independently, not partially. The extent to which that trust can be established may depend on a number of factors including the reputation of the expert, and any established track record. It may also depend on the quality of the sources and whether there is a variety of sources. …The age of the source material and the number of sources is also important. An expert may not have any track record with the Tribunal, in which case particular care is needed in assessing the weight to be put on the evidence, and any opinion said to be derived from it.”
‘… if he is deported he faces arrest and trial under Chinese law for this crime. He will receive an indeterminate sentence until the state determines he is fit to return to society, on Counsel's submission. There is a high level of certainty that he will receive additional time with his liberty restricted as a result of this crime, a fact that can be considered in determining the issue I have to deal with today, although there is an element of uncertainty with respect to what will happen in the future.’
“26. On the evidence relating to re-prosecution and the risk to the second Appellant if he were returned to China, the evidence was more complex and more voluminous. The Adjudicator clearly looked at it with some care. Whilst taking seriously the evidence of breaches of human rights including executions in China, she noted that the risk of re-prosecution appeared to be more theoretical than real. In her determination, she pointed out that in the materials before her there was "not one cited case on detention or prosecution on a returning Chinese citizen on account of any criminal or other offence that citizen may have committed abroad". 27. It appears to us that the evidence before the Adjudicator on this issue might well have been sufficient to enable her to reach a conclusion different from that which she did reach: but we are entirely unpersuaded by the grounds of appeal or by anything Mrs Sood said to us that the conclusion that she did reach was a conclusion which materially erred in law. Indeed, in the course of her submissions, Mrs Sood very frankly and properly said that her position was that the Adjudicator could have reached a different conclusion. We especially asked her whether she had said "could" or "should" and she emphasised "could". That, as we say, may well be so; but it does not amount to an allegation of error of law. For this and the other reasons given above, our conclusion is that in the second Appellant's case the Adjudicator made no material error of law and we order that the Adjudicator's determination shall stand.”
“ 3.13 Prison conditions … 3.13.11 Conclusion. Whilst prison conditions in China are poor with overcrowding, and abuse by prison officials being a particular problem, conditions are unlikely to reach the Article 3 threshold. Therefore even where claimants can demonstrate a real risk of imprisonment on return to China a grant of Humanitarian Protection will not generally be appropriate. However, the individual factors of each case should be considered to determine whether detention will cause a particular individual in his particular circumstances to suffer treatment contrary to Article 3, relevant factors being the likely length of detention the likely type of detention facility and the individual’s age and state of health. Where in an individual case treatment does reach the Article 3 threshold a grant of Humanitarian Protection will be appropriate.”
“339D. A person is excluded from a grant of humanitarian protection under paragraph 339C (iv) where the Secretary of State is satisfied that: (i) there are serious reasons for considering that he has committed a crime against peace, a war crime, a crime against humanity, or any other serious crime or instigated or otherwise participated in such crimes;”