Translation:People v Jiang Kun (2019)

Jagdaqi District People’s Court Daxing’anling Prefecture, Heilongjiang, PR China

Criminal Judgement

[2019] Hei 2701 Xing Chu No 71

Prosecution Authority: the People’s Procuratorate of Jagdaqi District of Daxing’anling Prefecture (the ‘Prosecution’).

The Defendant, Jiang Kun, male, born on 8 February 1983 in Jagdaqi District, Daxing’anling Prefecture, Heilongjiang, bachelor’s degree, with no fixed occupation, resides in Jagdaqi District, Daxing’anling Prefecture, Heilongjiang. The Defendant was administratively detained for the present case on 3 April 2019. On 17 April 2019, the Defendant was criminally detained by the Public Security Bureau of Jagdaqi District on suspicion of committing the crime of defamation. On 30 April 2019, the Prosecution approved the formal arrest of the Defendant on suspicion of committing the crime of defamation, which was executed by the Public Security Bureau of Jagdaqi District on the same day. The Defendant is now detained in Jagdaqi Detention Centre.

On 18 June 2019, the Prosecution filed the present case with this Court by the Indictment [2019] Da Jia Jiansu Xingsu No 71 against the Defendant for committing the crime of defamation. On 29 September 2019, A ‘Decision on Making Revisions to the Indictment’ (cite as: [2019] Da Jia Jiansu Xing Biansu No 7) was issued by the Prosecution, accusing the Defendant for committing the crime of picking quarrels and provoking trouble. This Court then lawfully applied the ordinary procedure, formed a collegial panel in compliance with the law and held a closed hearing of this case. Assigned by the Prosecution, Deputy Chief Prosecutor Wang Lianshan appeared in court on behalf of the People to present the case. The Defendant appeared before the court to attend the proceedings. The trial of the case has now been concluded.

The Prosecution alleges the Defendant of the charges set out in the Indictment as follows: The Defendant has been perennially using circumvention tools to bypass the internet blockade for the purpose of browsing the overseas website Twitter. Starting in 2014, the Defendant began to follow some accounts of anti-China forces on Twitter. As the result of his frequent viewing of videos and essays posted by anti-China forces overseas that attacked and vilified the leader of the Party and the state, the Defendant has developed a mindset of animosity towards the Chinese Communist Party and the state leader. Commencing from 2014 up to the present time, the Defendant used his computers and mobile phone to disseminate 1,434 pieces of harmful information with his account on the overseas website Twitter that vilified and attacked the leader of the Party and the state, which has seriously undermined the national image, severely endangered the national interests, causing a baneful impact internationally.

The ‘Decision on Making Revisions to the Indictment’ alleges the Defendant as follows: The Defendant has been perennially using circumvention tools to bypass the internet blockade and browse the overseas website Twitter. Starting in 2014, the Defendant began to follow some accounts of anti-China forces on Twitter and regularly viewed videos and essays posted by anti-China forces overseas that attacked and vilified pertinent systems and policies of the state, and therefore has developed a mindset of animosity towards the current social system of our country. Commencing from 2014 up to the present time, the Defendant used his computers and mobile phone to sign in to his account on the overseas website Twitter and disseminated 1,434 pieces of comments, essays, and harmful information that vilified and attacked the Party and the state. The Defendant fabricated false information to attack the Socialist system and state policies of the People’s Republic of China and disseminated such information on the internet, causing serious public disorder.

Upon investigation, the Defendant was captured by the Public Security Bureau of Jagdaqi District in a bungalow located at No 2511 Tiedong Street.

On 19 July 2019, the public security organ lawfully conducted a psychiatric evaluation on the Defendant. And upon evaluation, it was established that the Defendant was capable of criminal responsibility at the time of committing the crime.

The Prosecution holds that the Defendant has fabricated false information to attack the Socialist system and state policies of the People’s Republic of China and disseminated such information on the internet, causing serious public disorder. His acts thus have violated the provisions set out in Items 2 and 4 of Paragraph 1 of Article 293 of The Criminal Law of the People’s Republic of China. The criminal facts are clear, the evidence is reliable and sufficient, and therefore, the Defendant shall be held criminally responsible for the crime of picking quarrels and provoking trouble. The Prosecution then provided corresponding evidence in court and pleaded for a judgement according to law.

The Defendant admits to the criminal facts charged by the Prosecution and has made no justification.

The Court, upon trial of this case, ascertains that beginning in 2014, the Defendant used circumvention tools to bypass the internet blockade and browsed the overseas website Twitter. The Defendant then followed some accounts of anti-China forces on Twitter, viewed videos and essays posted by anti-China forces overseas that attacked and vilified pertinent systems and policies of the state, and therefore developed animosity towards the current social system of our country. Commencing from 2014 up to the present time, the Defendant used his computers and mobile phone to sign in to his account on the overseas website Twitter and disseminated 1,434 pieces of comments, essays, and harmful information that vilified and attacked the Party and the state. The Defendant fabricated false information to attack the Socialist system and state policies of the People’s Republic of China and disseminated such information on the internet, causing serious public disorder.

Upon investigation, the Defendant was captured by the Public Security Bureau of Jagdaqi District in a bungalow located at No 2511 Tiedong Street.

On 19 July 2019, the public security organ lawfully conducted a psychiatric evaluation on the Defendant. And upon evaluation, it was established that the Defendant was capable of criminal responsibility at the time of committing the crime.

The aforesaid criminal facts are charged by the Prosecution, provided with the following evidence that has been subjected to cross-examination in court and verified to be true, and thereby is confirmed by this Court:

1. Physical evidence: one (1) desktop computer, one (1) laptop computer, and one (1) mobile phone;

2. Documentary evidence: ‘Decision on Case Filing’, ‘Course of Apprehension’, ‘Clues Report’, ‘Household Registration Certificate’, and ‘Statement of Circumstances of the Online Data Extraction of a Web Account on Twitter’ and ‘Online Extraction Report’ issued by the Cyber Security Guard Detachment of the Public Security Bureau of Daxing’anling Prefecture Administrative Commission;

3. ‘Confession and Justification of the Defendant’;

4. ‘Forensic Evaluative Opinions’;

5. ‘On-Site Inspection Log’ issued by the Public Security Bureau of Jagdaqi District.

This Court holds that the Defendant had fabricated false information and spread and disseminated such information on the internet, which had created disturbances, undermined the national image, and caused serious public disorder; his acts have thus constituted the crime of picking quarrels and provoking trouble. The facts and the name of the offence charged by the Prosecution are established, and are therefore supported by this Court according to law. After committing the crime, the Defendant pleaded guilty and expressed remorse, for which a lighter punishment can be given to him. In accordance with Items 2 and 4 of Paragraph 1 of Article 293, Article 64 of The Criminal Law of the People’s Republic of China, and Paragraph 2 of Article 5 of The Supreme People’s Court and the Supreme People’s Procuratorate’s Interpretation on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Defamation and Other Such Crimes Involving the Use of Information Networks, the Court hereby rules that:

I. The Defendant committed the crime of picking quarrels and provoking trouble and is sentenced to fixed-term imprisonment of eight (8) months;

(The term of imprisonment shall be counted from the date of execution of the judgement. Where the Defendant is detained on remand prior to the execution of the judgement, one day of such detention shall be credited as one day of the sentence. Thus, the term of imprisonment begins on 3 April 2019 and ends on 2 December 2019.) and

II. The one (1) Lenovo laptop computer, one (1) desktop computer with black and white chassis, and one (1) Nokia smartphone that were transferred to the Court with the case are deemed instruments of crime and are to be confiscated and turned over to the state treasury in compliance with the law.

If the Defendant refuses to accept the present judgement as final and binding, a petition for appeal may be submitted through this Court or directly to the Intermediate People’s Court of Daxing’anling Prefecture within ten (10) days commencing on the day following the day of receipt of this judgement. In case of a written appeal, one (1) original copy and two (2) duplicate copies of the petition shall be submitted.

The legal provisions on which this judgement is relied:

The Criminal Law of the People’s Republic of China (excerpts)

Article 293 (crime of picking quarrels and provoking trouble) Whoever commits any of the following acts of causing disturbances, thus disrupting public order, shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention, or public surveillance:

(1) Beating another person at will and to a flagrant extent;

(2) Chasing, intercepting, or hurling insults to and threatening another person to a flagrant extent;

(3) Forcibly taking or demanding, wilfully damaging, destroying or occupying publicly-owned or privately-owned money or property to a serious extent; or

(4) Creating disturbances in a public place, thus causing serious disorder in the place.

Whoever musters others to repeatedly commit any act mentioned in the preceding paragraph, thus seriously undermining social order, shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years and may be concurrently fined.

Article 64 (disposal of articles of crime) All money and property illegally obtained by a criminal shall be recovered, or compensation shall be ordered; the lawful property of the victim shall be returned without delay; contraband and articles of the criminal’s own property that are used in the commission of the crime shall be confiscated. All the confiscated articles and fines shall be turned over to the state treasury, and no-one may misappropriate or privately dispose of them.

The Supreme People’s Court and the Supreme People’s Procuratorate’s Interpretation on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Defamation and Other Such Crimes Involving the Use of Information Networks (excerpts)

Article 5 Whoever uses the information network to insult or intimidate others, if the circumstances are serious enough to disrupt public order, shall be convicted and punished for the crime of picking quarrels and provoking trouble in accordance with Item 2 of Paragraph 1 of Article 293 of the Criminal Law.

Whoever fabricates false information and disseminates or organises or directs others to disseminate on the information network, or disseminates or organises or directs others to disseminate such information on the information network with full knowledge of its falsity, if creates disturbances and causes serious disorder in a public place, shall be convicted and punished for the crime of picking quarrels and provoking trouble in accordance with Item 4 of Paragraph 1 of Article 293 of the Criminal Law.

The Supreme People’s Court’s Interpretation on the Application of ‘The Criminal Procedure Law of the People’s Republic of China’ (excerpts)

Article 365 The name, amount, quantity, location of storage, and disposition of the properties that have been sealed, distrained or frozen, and the fructus thereof, shall be clearly stated in the judgement. Where the number of properties involved in the case is relatively large and not suitable for detailed listing in the main text of the judgement, an inventory may be separately attached. The judgement shall clearly set out if there were properties involved in the case that have not been transferred with the case, and it shall also clearly state that the organ that sealed, distrained or froze such properties is responsible for further disposal.