- 46 in extremely serious cases, this will be punished pursuant to the provisions of paragraph 4 of [article] 151 of this Law […].197 (Underlining added) Then, paragraph 4 of article 151 stipulates: In the case of the offenses mentioned in paragraphs 1 and 2, if they are extremely serious, they 198 will be punished by life imprisonment or the death penalty, and seizure of personal property. (Underlining added) 147. According to the expert witness in Chinese criminal justice, Bingzhi Zhao, “[b]efore the eighth amendment, a trial against Wong Ho Wing for his offense, would fall within the third category that ranges from more than 10 years’ imprisonment to life imprisonment or the death penalty.”199 However, in May 2011, the eighth amendment to the Criminal Code of the People’s Republic of China, promulgated in February 2011, came into force,200 and this eliminated the possibility of the death penalty for smuggling ordinary merchandise for which Wong Ho Wing’s extradition had been requested.201 148. The pertinent part of this amendment establishes: Amendments to the Offense of Smuggling Section XXVII The first clause of article 153 of the Criminal Code is amended as follows: Anyone who shall smuggle merchandise and objects that are not mentioned in articles 151, 152 and 347 of this law shall be punished pursuant to the following provisions, according to the severity of the case: […] c. Anyone who shall smuggle merchandise and objects where the amount of the duty evaded is extremely high or in very serious cases, shall be punished by more than 10 years’ imprisonment or life imprisonment and fines of from 100% to 500% of the duty evaded [or] seizure of personal property.202 (Underlining added) 197 Official translation of the Criminal Code of the People’s Republic of China (evidence file, folio 1628). 198 Official translation of the Criminal Code of the People’s Republic of China (evidence file, folio 1627). 199 Statement made by Bingzhi Zhao during the public hearing held in this case. Similarly, a legal opinion prepared by the Max Planck Institute explains that the first paragraph of article 153 establishes the application of the death penalty “if the circumstances are especially serious.” This opinion explains that “[a]ccording to a ‘judicial interpretation’ adopted by the People’s Supreme Court in 2008, ‘especially serious circumstances’ include the fact that the amount of the payable duty evaded or avoided is more than 2.5 million yuans.” Opinion of Experts in Chinese Criminal Law with regard to money-laundering, bribery, smuggling and customs duty evasion in the case of Wong Ho Wing (merits file, folio 815 and 816). 200 According to an opinion of the Max Planck Institute, the eighth amendment eliminated 13 non-violent economic offenses from the list of 68 offenses punishable with the death penalty under the Criminal Code of the People’s Republic of China. However, the death penalty continues to be applicable for smuggling ‘weapons and ammunition”or “nuclear material,” or “counterfeiting currency” in especially serious circumstances. Cf. Opinion of Experts in Chinese Criminal Law with regard to money-laundering, bribery, smuggling and customs duty evasion in the case of Wong Ho Wing (merits file, folios 813, 815 and 816). 201 Cf. Statement made by Bingzhi Zhao during the public hearing held in this case, and Report of Experts on Chinese Criminal Law on money-laundering, bribery, smuggling and customs duty evasion in the case of Wong Ho Wing (merits file, folios 815 and 816). 202 Eighth amendment to the Chinese Criminal Code (evidence file, folio 7555). Expert witness Bingzhi Zhao explained that, in the case of Wong Ho Wing, “owing to the amount involved, it falls within the third category of imprisonment under article 153, which is imprisonment ranging from 10 years to life”; however, “in the trial of his [presumed] accomplices […] they were sentenced to 13 years’ imprisonment, thus […] the court will take into consideration the effects on his accomplices for the same offense and the same amount in order to decide his sentence.” Statement made by Bingzhi Zhao during the public hearing held in this case.