Quick Take: Was a Shanghai Man retroactively given an 8 month sentence

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Last week, a Shanghai man was sentenced to 8 months in prison for throwing garbage from his upstairs apartment and injuring a woman below. As a warning to others who might carelessly chuck things off their balconies, the story was publicized as an early enforcement of the new crime of ‘throwing things from heights’ – recently added to the Criminal Law by its 11th Amendment.

On Twitter, however @bobbyfungmr keenly noticed that the crime occurred on February 10 before the amendment was effectively incorporated on March 1.

Was this a retroactive application of the new law?

Yes and No.

Analysis

Article 12 of China’s Criminal Law prohibits the retroactive application of crimes. This means that you should only be punished for acts that were crimes at the time they were made, and can’t be punished for something that was legal at the time, just because the law later changes to make it illegal.

The exception to the prohibition on retroactive application is where applying the new law would be beneficial to the defendant. This includes cases where the conduct was UN-criminalized or where the punishment was reduced for something that was already an offense. Such a situation won’t alter a judgment that has already taken effect, but it can impact ongoing investigations or trials.

While Amendment 11 to the criminal law added the independent offense of ‘throwing things from heights’, (CL 291-2), it was already a criminal act. A Nov. 2019 Judicial interpretation of the Criminal Law lays out the possible charges that might result in consideration of different case facts such as the motive, the harm caused, the location, and the nature of the items thrown. Possible charges include endangering public safety, negligent infliction of harm or homicide, intentional infliction of harm or homicide, or causing major at-fault accidents.

In this case, the offender had thrown a trash bag containing sharp pieces of broken cups and caused an injury requiring stitches. Under the previous law and accompanying judicial interpretation the most mild offense ‘endangering public safety through dangerous means’ would likely have been applied. It is punishable by 3-10 years imprisonment, substantially more than the new separate offense of throwing things from heights, which is only punishable by up to 1 even where the circumstances are considered serious. As the new offense has a lighter penalty, it can be retroactively applied in the ongoing case.

Chinese media have an affirmative obligation to educate the public on new laws. Using reports on the ‘first applications’ of new laws are a popular way to fulfill this obligation, but as reporters don’t always understand the law very well, it’s not uncommon to see a mistake or an incomplete explanation.

I’ve yet to see the actual judgment documents, but the above explanation likely explains the ruling.

About Jeremy Daum 108 Articles
Jeremy Daum is a Senior Fellow of the Yale Law School Paul Tsai China Center, based in Beijing, with over a decade of experience working in China on collaborative legal reform projects. His principal research focus is criminal procedure law, with a particular emphasis on protections of vulnerable populations such as juveniles and the mentally ill in the criminal justice system, and is also an authority on China’s ‘Social Credit System’. Jeremy has spoken about these issues at universities throughout China and in the U.S.; and has co-authored a book on U.S. Capital Punishment Jurisprudence for Chinese readers. He is also the founder and contributing editor of the collaborative translation and commentary site Chinalawtranslate.com, dedicated to improving mutual understanding between legal professionals in China and abroad. He translates, writes, edits, does web-design, graphic design, billing, tech support, and social media outreach for China Law Translate.

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