Di Wu
On January 17, 2020, the Supreme People’s Court and the Supreme People’s Procuratorate issued the Reply on Whether a Person on Probation Should be Deemed Recidvist After Committing an Offense Punishable by an Imprisonment Sentence within Five Years after the Expiration of the Probation Period (the “Reply”) in response to inquiries on the subject from the higher people’s courts and people’s procuratorates of certain provinces, autonomous regions and municipalities directly under the jurisdiction of the State Council.
Under Article 65 of the Criminal Law, an offender who commits another offense punishable by imprisonment within five years after having fully served another prison sentence shall be deemed as recidivist and is subject to greater punishment, except for cases of negligence and crimes committed by persons under 18 years of age. The Reply holds that for criminals who commits an offense punishable by a prison sentence within five years of the end of the probation period after they had a previous offense punishable by a prison sentence commuted to probation, as the prison sentence for the previous offense was never actually implemented, the requirement that “the sentence has been carried out” under Article 65 of the Criminal Law has not been met, thus they shall not be deemed as recidivist. However, there is discretion in considering such as an aggravating circumstance in determining the sentence for the new crime.