Self-defence in dispute again: a woman born in the 1990s kills a knife-wielding intruder

Case summary

On 8 February 2019, the fourth day of the Lunar New Year, Tang Xue, a woman born in the 1990s, had been at a friend's birthday party and was being driven home when a drunken man, Li, blocked their car on the road. Li was pulled away by the people with him and Tang Xue got out and walked home, but Li came after her and abused her. She ignored him and kept walking.

When she reached home she had no key, so she telephoned her father, Tang Jiayong, to open the door, and mentioned in passing that Li had abused her. Her father then took her to confront Li. In the course of the argument Li kicked Tang Jiayong, and the three of them then came to blows. Li was eventually pulled away by his friends and taken home. After he got home, his family and friends took him back to the Tangs' house to apologise for what had happened, but after apologising Li turned round and demanded that Tang Jiayong answer for the injuries Li had suffered. Li was then pulled home by those with him.

Unexpectedly, at one o'clock in the morning on 9 February Li came back to the Tangs' house carrying a knife and hacked at the front door with a cleaver. Halfway through, the cleaver was seized and thrown away by his friend Luo, who had come to restrain him.

Meanwhile Tang Xue, hearing the hammering on the door, got up, went to the kitchen, took a red peeling knife and a black fruit knife, and went out to see what was happening. When she opened the door and stood outside, Li kicked her. Tang Xue then closed with Li and they struggled at close quarters. In the fight she first used the red peeling knife, but kept getting the worst of it, so she switched to the black fruit knife and struck at Li with it. The two were eventually pulled apart by others, and as Li ran out of the alley he suddenly collapsed. Those who had been restraining him found him on the ground injured and took him to hospital at once, where he died despite emergency treatment. The post-mortem examination showed that Li died from a sharp instrument wound to the right chest that injured the ascending aorta, causing acute haemorrhagic shock.

On 10 February Tang Xue was placed in criminal detention by the Yongsheng County Public Security Bureau, and on 25 February the procuratorate approved her arrest; she is held at the Lijiang City detention centre. The police concluded their investigation and on 13 March transferred the case to the procuratorate for review and prosecution on suspicion of intentional injury. The Yongsheng procuratorate accepted the case and referred it to the Lijiang City procuratorate, which assigned it back to Yongsheng for handling. Because the facts were unclear and the evidence insufficient, the case was twice returned to the police for supplementary investigation, and the police supplemented and resubmitted it each time. The procuratorate considers that in the course of the struggle with Li, Tang Xue deliberately injured another person with a knife, causing death, which contravenes Article 234 of the Criminal Law and should be pursued as intentional injury; and that the circumstances in Article 20(2) of the Criminal Law apply, so the punishment should be reduced or remitted.

Article 20(2) of the Criminal Law provides that where self-defence clearly exceeds the limits of necessity and causes substantial harm, criminal liability is borne, but the punishment shall be reduced or remitted.

Analysis: why was Tang Xue charged with intentional injury rather than treated as acting in self-defence?

Under the Criminal Law of the People's Republic of China, acting in self-defence requires the following five conditions.

1. The cause: there must objectively exist an unlawful infringement.

2. Timing: the unlawful infringement must be in progress.

3. The subjective condition: there must be an awareness of defending, that is, the defender must realise that an unlawful infringement is in progress and must act in order to stop it and protect lawful rights.

4. The target: the defensive act must be directed against the person committing the unlawful infringement.

5. The limit: the defensive act must not clearly exceed what is necessary to stop the infringement, failing which the defence is excessive.

The procuratorate's view is that when Li arrived with a knife, Tang Xue had ample time and opportunity to call the police, but instead took the fruit knife and the peeling knife and went out to fight.

Article 14 of the Criminal Law of the People's Republic of China, headed "intentional crime", provides that an act is an intentional crime where the person clearly knows that his conduct will produce a harmful result for society and hopes for or is indifferent to that result, and the conduct therefore constitutes a crime.

Moreover, by the time of the fight Li's cleaver had already been thrown away by his friend, which means that Li was fighting Tang Xue empty-handed. In those circumstances, her cutting him and causing his death should be regarded as defence at the wrong time. Looking at the whole sequence of events, her conduct was a counter-attack in self-protection after being infringed, but it plainly exceeded the necessary and reasonable limit.

Establishing self-defence is complicated

Self-defence has repeatedly become a focus of public debate in China. In judicial practice it is relatively rare for a court to accept a defendant's claim of self-defence. The most troublesome and least favourable point for the defender is the assessment of the subjective condition: the prevailing view in Chinese criminal law is that the defender must be aware that his purpose is to stop the infringement, and must not intend to harm another. Conduct carried out with a purpose of revenge shows an intent to harm, and the subjective condition is then judged to involve only a criminal intent and no defensive intent, so self-defence cannot be established.

The subjective condition is therefore not easy to establish, and must be inferred from the defender's own statements together with the other objective evidence.

On 19 December 2018 the Supreme People's Procuratorate's twelfth batch of guiding cases further clarified the protection of the right of self-defence, providing a reference for procuratorial work. In an article on certain questions of procuratorial work, Procurator-General Zhang Jun observed that since 2018 a series of cases involving self-defence had attracted public attention, and that if the usual way of thinking and the traditional judicial approach had been followed, those typical cases might all have been treated by the judicial organs as criminal through investigation, arrest, review and prosecution. That invites reflection on why public opinion and public feeling agreed in every one of those cases that the conduct was self-defence, while the judicial organs did not initially see it that way.

The guiding cases include the Kunshan case, in which Yu Haiming seized the knife of the man known as "Brother Long" and cut him to death. In that case the police initially considered that once Yu had picked up the knife Brother Long had lost the capacity to continue the attack, so Yu's conduct looked like excessive defence. The procuratorate held that it was self-defence, on the basis that Yu subjectively believed that Brother Long, having run back to his car, might return with something more dangerous, and that the blows he struck in pursuit were delivered because he did not feel safe.

The Tang Xue case now attracts attention and is still being heard, with no final conclusion. Whether she acted subjectively to stop an unlawful infringement or formed an intent to injure in a moment of impulse depends on a comprehensive review of all the evidence, and must be judged by looking at her intention in counter-attacking, the way the counter-attack was carried out and its result. On 27 August 2019 the Yunnan Provincial People's Procuratorate announced that it took the case seriously, had sent officers to review the file, was examining the facts and evidence comprehensively in accordance with law and was guiding the handling of the case.