Extradition to China

The prosecution of Chinese banker Yu Zhendong has begun in China.^[1] Mr. Yu is the former head of a Bank of China branch, and he is accused of helping embezzle $485 million.^[2] He fled to the United States, and under a plea agreement, in which he pleaded guilty to racketeering charges in federal court, he was returned to China with assurances that he would not be executed or tortured.^[3]

There is no formal extradition treaty with China, though there is one with Hong Kong.^[4]

Mr. Yu’s wife, Yu Xuhui, who also goes by the name Fion Yu, pleaded guilty to unlawfully obtaining United States citizenship and naturalization.^[5] By the terms of the plea agreement, she agreed to cooperate with investigators in Hong Kong, the United States, China, and Canada, who are investigating Yu Zhendong’s alleged embezzlement.^[6]

On February 18, 2004, Mr. Yu pleaded guilty specifically to conspiring to embezzle more than $500 million from the Bank of China, and then laundering the proceeds through myriad shell companies based in China and Hong Kong, and into the United States and Canada.^[7] In April of 2004, Mr. Yu was sentenced to 12 years in prison and then voluntarily returned to the People’s Republic of China, to be tried there for bank embezzlement.^[8]

The investigation of Mr. Yu was conducted under the auspices of the Agreement on Mutual Legal Assistance in Criminal Matters.^[9] This treaty allows for greater information sharing between countries in such ways as serving documents, taking testimony, locating persons, and transferring persons in custody for giving evidence or assisting investigations.^[10] Assistance can be denied in certain situations, such as: the requested assistance relates to conduct which is not an offense in the requested country; the assistance relates to purely military offenses; the requested assistance would infringe the sovereignty of the requested country; or the offense is political in nature.^[11]

[Update:] To make it clearer how Mr. Yu was transferred under the terms of the MLAT, simply look at Article 12 of the treaty which says "[a] person in the custody ... whose presence ... is sought for purposes of assistance under this Agreement may be transferred from the Requested Party to the Requesting Party for that purpose if the person consents and if the Central Authorities of both Parties agree."^[12] Because American prosecutors were able to obtain consent from Mr. Yu, his "extradition" was made possible.

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[1] China Prosecutes Former Bank Official, Forbes.com, Aug. 17, 2005, available here.
[2] Id.
[3] Id.
[4] See Extradition Treaty, Dec. 20, 1996, U.S.-H.K., S. Treaty Doc. No. 105-3 (1997).
[5] Dept. of Justice, Press Release: Chinese National Pleads Guilty to Fraudulently Obtaining U.S. Citizenship, Apr. 26, 2005, available here.
[6] Id.
[7] Id.
[8] Id.
[9] Agreement on Mutual Legal Assistance in Criminal Matters, Jun. 19, 2000, U.S.-P.R.C., 40 I.L.M. 1496. [hereinafter MLAT]. See also Clark T. Randt. Jr., The Amer. Emb. in China, Joint Liaison Group Opening Plenary Remarks, Feb. 23, 2005, available here.
[10] MLAT, supra note 9, art.1, para. 2.
[11] Id. art. 3, para. 1.
[12] MLAT, supra note 9, art. 12, para. 1 (emphasis added).