Chinese authorities ignoring Chinese law again
Can they lawfully impose a sentence of 10 days' administrative detention for consuming cocaine outside of China? No.
This is kind of dog-bites-man news, but here we go again. A German executive resident in China has been deported after serving a 10-day sentence of administrative detention for using cocaine while in Thailand. (AP report here.) He was tested after returning to China. These don't seem to be contested facts, but if someone knows otherwise, please correct me.
The sentence was apparently imposed under the Security Administration Punishment Law (治安管理处罚法) (SAPL), which in Article 72 does indeed provide for the possibility of ten days' detention for ingesting drugs:
Article 72: Any of the following acts shall be punished by detention of between 10 and 15 days, and may be concurrently fined up to 2,000 RMB; where the circumstances are relatively minor, the punishment shall be detention for up to 5 days or a fine of up to 500 RMB:
(1) illegally possessing less than 200 grams of opium, less than 10 grams of heroin or methamphetamine, or other small amounts of drugs;
(2) providing others with drugs;
(3) ingesting or injecting drugs.
(4) Coercing or tricking medical personnel into prescribing narcotic or psychotropic drugs.
Cocaine use would certainly seem to fit fairly within subparagraph 3. But that's not the end of the story. You might be forgiven for wondering, "Really? Can China punish you for taking drugs outside of China?" Here we have to distinguish between criminal punishments and so-called administrative punishments, of which this case is an example.
What the Criminal Law says is complicated and I won't go into it -- it depends on things like citizenship, whether it's also an offense in the foreign country, and the maximum potential sentence. Fortunately, none of those things matter in the SAPL. It unequivocally says "No" in Article 4:
Unless there is a law stipulating otherwise, this law shall apply to actions violating security administration that occur within the territory of the People's Republic of China. 在中华人民共和国领域内发生的违反治安管理行为，除法律有特别规定的外，适用本法。
Maybe you're thinking, "Aha. But the drug test took place within Chinese territory." Yes, but failing a drug test, or having traces of illegal drugs in your body, is not an offense under the SAPL.
The AP article states (without, regrettably, providing a link to the original source) that the Chinese embassy in Thailand "has warned that if Chinese tourists consume marijuana abroad and are 'detected upon returning to China, it is considered equivalent to using drugs domestically. As a result, you will be subject to corresponding legal penalties.'" Maybe they did indeed say that. But that's not how Chinese law works. Neither the Chinese embassy, the Ministry of Public Security, or even the State Council has the authority to just make up laws about detention of the person. Only the National People's Congress or its Standing Committee can do that. They have spoken. And they specifically excluded actions taken outside of China from the purview of the SAPL. Thus, the detention seems to have no legal basis.