The latest twist in the Schellenberg case

A case that has dragged on for years looks set to drag on for more years

The New York Times reported yesterday that the death sentence imposed on Robert Schellenberg, a Canadian accused of drug offenses, had been voided upon review by China’s Supreme People’s Court (SPC). According to Schellenberg’s lawyer, the case has been sent back for retrial. This is a permissible outcome under applicable law; Article 250 of the Criminal Procedure Law also gives the SPC the option of directly changing the sentence itself, but they chose not to do this.

What happens now is not yet clear, because I don’t know whether the SPC sent the case back to (A) the Liaoning High People’s Court (at the provincial level), which upheld the sentence on appeal, or to (B) the Dalian Intermediate People’s Court, which imposed the original sentence. Either is possible. (See Supreme People’s Court Rules on Several Issues in the Review of Death Penalty Cases (2007), arts. 8-10.)

Under option (A), the Liaoning High Court can either take the case itself or send it back down to the Dalian Intermediate Court. If it takes the case itself, it can change the judgment or keep it unchanged. I believe (but am not sure) that if the Liaoning High Court, as the 2nd instance (appeal) court, takes the case itself, then there is no appeal (上诉) as such, although a death sentence, like all death sentences, would have to go back to the SPC for mandatory review.

Under option (B), where the case is sent back to the original 1st-instance court (the Dalian Intermediate Court), then any judgment (like virtually all 1st-instance judgments) would be appealable as of right. And any death sentence upheld on appeal would again by subject to mandatory review by the SPC.

Long story short: it’s possible this case could drag on for more years. At the same time, it’s possible it could be settled quickly. It depends on whether this new development is a politically-driven result of the Carney visit. The case has in the past borne the marks of political influence; it has also borne the marks of doubts about his guilt. Here’s a recap (parts of which are taken from things I’ve written previously here and here).

• Robert Schellenberg entered China in November of 2014 and was detained the following month on charges of planning to smuggle almost 500 pounds of crystal methamphetamine from China to Australia.

• The original trial was on March 15, 2016. Given that Schellenberg was detained more than a year earlier, on Dec. 3, 2014, that already represents an unusual delay in China’s usually speedy criminal procedure system. (In the case of Yang Jia, for example, in which the defendant was charged with premeditated murder of six police officers, less than two months elapsed between the date of the offense and the date of the trial, and those proceedings were actually delayed because of the Beijing Summer Olympics.)

• The sentence—15 years’ imprisonment—was not pronounced until more than 32 months later, on Nov. 20, 2018.

China’s Criminal Procedure Law says that sentencing should normally be within two months of the trial, and at most three months. That period may be extended a further three months for various reasons with the permission of the court above the one that conducted the trial. Any further extension requires the sentencing court to apply to and receive specific permission from the Supreme People’s Court, China’s top judicial body. Was that obtained? And why was there a delay in the first place, both before the trial and between trial and sentencing?

Usually this kind of delay is a sign of internal controversy within the judicial system, and suggests that the case in question is not open-and-shut. Perhaps the evidence of Schellenberg’s guilt was weak. In such cases, the court doesn’t want to embarrass police and prosecutors by acquitting, but it is also reluctant to convict, so it just sits on the case.

At this point, politics came into the case. Meng Wanzhou, the CFO of Huawei (and daughter of Huawei founder Ren Zhengfei) was detained in Canada on December 11 [typo: should be Dec. 1], 2018 at the request of the United States. This was followed immediately by the detention of the Two Michaels on December 10, and also by developments in the Schellenberg case.

• On December 29, 2018, the Liaoning High People’s Court heard Schellenberg’s appeal. They didn’t just hear it; the State Council Information Office invited the international press to the hearing. Why? China had 1.3 million criminal cases in 2017, of which about 110,000 were drug cases. No doubt the numbers for 2018 are roughly similar. What was so special about this case? Moreover, while decision-making at previous stages of the case had taken literally years, the decision this time took a mere twenty minutes.

The court’s decision was odd in many ways.

First, it decided to send the case back for retrial. That’s rare in appeals; usually the court makes a direct decision. On the basis of a quick-and-dirty calculation using available statistics, I found that in 2017, re-trials were ordered in at most two percent of criminal appeals.

Second, the grounds for retrial were the court’s belief that the sentence may have been too light. When cases are sent back for retrial, it is generally because clearing up unclear facts is expected to benefit the defendant. A knowledgeable colleague agreed that he had never heard of a case being sent back for retrial on the grounds that clearing up unclear facts might show that a heavier punishment was merited.

Third, despite all the delays in previous cases, the retrial was scheduled with extraordinary speed: for Jan. 14, 2019, a mere 16 days after the appeal decision. This is barely time for the minimum 10 days’ notice of trial required by China’s Criminal Procedure Law (Art. 187), and it is not clear that notice was in fact provided on or before Jan. 4 as required.

• On January 14th, 2019, at the retrial proceedings in the Dalian Intermediate People’s Court, the same court that had previously taken 32 months after the hearing to reach a decision this time returned with a decision in only one hour. Guilty; death sentence.

• Schellenberg appealed; on August 9, 2021, the Liaoning High People’s Court upheld the sentence. That sentence, like all death sentences, was then subject to mandatory review by the Supreme People’s Court.

• On February 6, 2026, four and a half years later, the SPC finally got around to deciding the case, rejecting the death penalty and sending it back for retrial. And that brings us back to the top of today’s post. [Added after first posting this: I forgot to note that unlike other elements of criminal procedure, SPC death penalty review has no time limit. Back in 2012, the Supreme People’s Procuratorate issued some rules (here, Art. 604) providing that if the SPC had not made a decision on death penalty review within a year, the relevant provincial procuratorate could ask the Supreme People’s Procuratorate to do some “supervision” (presumably meaning just to prod the SPC to hurry up, since the SPP has no power over the SPC). This suggests that people generally thought a year was a reasonable outside limit. But that particular rule was removed when the document was revised in 2019 (here, revised Art. 604).]

This is why I say the ultimate decision could be slow or could be fast. It seems that when politics are in the picture, the Chinese court system can move with extreme speed—very likely the result of external directions. But when politics are not involved, it seems that at least some people in the decision-making process had severe doubts about either Schellenberg’s guilt or the appropriate sentence, with the result that the case stayed in limbo for a long time. It may well stay there for a long time to come unless some promise was made to Carney.