Translation:People v Wu Dawei (2020)

Yangzhou Economic and Technological Development Zone People’s Court Yangzhou, Jiangsu, PR China

Criminal Judgement

[2020] Su 1091 Xing Chu No 3

Prosecution Authority: the People’s Procuratorate of Yangzhou Economic and Technological Development Zone (the ‘Prosecution’).

The Defendant, Wu Dawei, male, born on 19 June 1987 in Yangzhou, Jiangsu, ID No: [redacted], Han Chinese, bachelor’s degree, unemployed, resides at [redacted]  , Yangzhou, with household registration location at [redacted]  , Yangzhou Development Zone. On suspicion of committing the crime of picking quarrels and provoking trouble, the Defendant was criminally detained on 11 September 2019 by the Development Zone’s Branch of the Yangzhou Public Security Bureau. On 16 October 2019, the Prosecution approved the formal arrest of the Defendant, which was conducted by the aforesaid PSB Branch on the same day. He is now detained in Yangzhou Detention Centre.

Defence counsel: Dong Yawei, a lawyer with Jiangsu Renfang Law Firm.

Defence counsel: Sun Teng, a lawyer with Jiangsu Renfang Law Firm.

On 9 January 2020, the Prosecution filed the present case with this Court by the Indictment [2020] Yang Kai Jiansu Xingsu No 2 against the Defendant for committing the crime of picking quarrels and provoking trouble. Upon receipt of this case, this Court then formed a collegial panel in compliance with the law, applied the ordinary procedure, and held a closed hearing of the case. Assigned by the Prosecution, Prosecutor Ren Gui appeared in court on behalf of the People to present the case. The Defendant and his defence counsel appeared before the court to attend the proceedings. The trial of the case has now been concluded.

The Prosecution has charged the Defendant as follows:

In February 2019, the Defendant used VPN software to bypass the internet blockade and accessed the overseas social platform ‘Twitter’, registered a ‘Twitter’ account using his mobile phone with the phone number [redacted] (UID: @Rockyin5588, display name: ‘Shenyin’). From 11 February to 6 September 2019, the Defendant used the aforesaid account to post on ‘Twitter’ many times of tweets that insulted the main leaders of the state, defamed the Chinese Communist Party, as well as remarks maliciously published claiming that he, on behalf of the people of Yangzhou, supports the independence of Taiwan and the Hong Kong riots; among which, seventy-three (73) tweets were insulting the main leaders of the state, two hundred and twenty (220) tweets were defaming the Chinese Communist Party, forty-four (44) tweets were extending support for the independence of Taiwan, with another fifty-five (55) supporting the Hong Kong riots, amounting to three hundred and ninety-two (392) tweets in total.

After the crime was committed, the Defendant voluntarily turned himself in and truthfully confessed to his criminal offences.

To substantiate the aforesaid facts, the Prosecutor interrogated the Defendant in court, presented evidence as the ‘Confession of the Defendant’, ‘Photos of and Statement on the Identity of the Defendant’, ‘Course of Detection of the Case’, ‘Decision on the Distrainment of Articles’, ‘Inventory of Distrained Articles’, ‘List of Accepted Evidence Materials’, ‘Contents of the Remarks on Twitter’, ‘Twitter Screenshots’, ‘Witness Testimony of Shen Hongxia’, ‘Record of Electronic Evidence Examination’, ‘Record of Online Data Extraction’, ‘Identification Record’, and such.

The Prosecution holds that the Defendant used his mobile phone and, with the help of internet blockade circumvention tools, accessed the overseas social platform Twitter. He then registered an account and used it to post remarks many times that insulted the main leaders of the state, in which the circumstances were execrable. The Defendant repeatedly posted remarks on the internet that opposed the Party and the state system and expressed support for the independence of Taiwan and the chaos in Hong Kong, creating disturbances in cyberspace and causing serious public disorder; he then, therefore, shall be held criminally responsible for the crime of picking quarrels and provoking trouble. The Defendant voluntarily turned himself in after committing the crime and truthfully confessed to his criminal facts, which constituted voluntary surrender and thereby is eligible for a lighter or mitigated punishment. In summary, the Prosecution suggests that the Defendant be sentenced to fixed-term imprisonment of one (1) year to one (1) year and six (6) months.

The Defendant holds no objection to both the facts and the name of the offence charged in the Indictment and voluntarily pleads guilty and expresses willingness to accept the punishment.

The defence opinions raised by the defence counsel are as follows: 1. They have no objection to the facts and the name of the offence charged in the Indictment; 2. Given the Defendant’s mitigating circumstance of voluntary surrender and being a first-time offender, the defence counsel thereby pleads for a lighter punishment to be given to him and suggests the application of a suspended sentence.

The Court, upon trial of this case, ascertains that:

In February 2019, the Defendant used VPN software to bypass the internet blockade and accessed the overseas social platform ‘Twitter’, registered a ‘Twitter’ account using his mobile phone with the phone number [redacted] (UID: @Rockyin5588, display name: ‘Shenyin’). From 11 February to 6 September 2019, the Defendant used the aforesaid account to post on ‘Twitter’ many times of tweets that insulted the main leaders of the state, defamed the Chinese Communist Party, as well as maliciously published remarks supporting the independence of Taiwan and the Hong Kong riots; among which, seventy-three (73) tweets were insulting the main leaders of the state, two hundred and twenty (220) tweets were defaming the Chinese Communist Party, forty-four (44) tweets were extending support for the independence of Taiwan, with another fifty-five (55) supporting the Hong Kong riots, amounting to three hundred and ninety-two (392) tweets in total, drawing a large number of online onlookers and provoking exchanges of insults among internet users of different political stances.

After the crime was committed, the Defendant voluntarily turned himself in and truthfully confessed to his criminal offences.

It is furthermore ascertained that one (1) black Huawei mobile phone was distrained from the Defendant on 10 September 2019 by the public security organ.

The aforesaid facts are substantiated by the evidence presented, cross-examined in court and confirmed by this Court as follows:

I. Documentary evidence.

1. ‘Photos of and Statement on the Identity of the Defendant’ confirms the basic identity information of the Defendant.

2. The ‘Course of Detection of the Case’ confirms that on 10 September 2019, upon a telephone notice from the public security organ, the Defendant voluntarily turned himself in to the public security organ and truthfully confessed to his criminal facts.

3. The ‘Decision on the Distrainment of Articles’, ‘Inventory of Distrained Articles’, and ‘List of Accepted Evidence Materials’ confirm that one (1) black Huawei mobile phone was distrained from the Defendant on 10 September 2019.

4. The ‘Contents of the Remarks of the Defendant’s Twitter Account’ and ‘Twitter Screenshots’ confirm that among the remarks posted by the Defendant on Twitter, two hundred and twenty (220) of them involved opposition to the Communist Party, seventy-three (73) of them involved insults to the main leaders of the state, forty-four (44) of them involved supporting the independence of Taiwan, fifty-five (55) of them involved supporting the Hong Kong chaos.

II. The ‘Witness Testimony of Shen Hongxia’ confirms that she, the witness, is a receptionist at the Hanting Youjia Hotel on Xingcheng East Road of the Yangzhou Development Zone and on 10 September 2019, at about 12:00 noon, the Defendant asked her to help take care of a Huawei mobile phone.

III. The ‘Confession and Justification of the Defendant’ confirms that in February 2019 (with the exact time claimed cannot be recalled), the Defendant, while residing at [redacted], used his Huawei mobile phone and by using VPN software to bypass the internet blockade, registered an account on the overseas chat software Twitter with the UID of ‘@rockyin5588’ and display name by ‘Shenyin’. And from approximately mid-February 2019, the Defendant began to post remarks opposing the Chinese Communist Party and verbally abusing the state leaders. Among the tweets the Defendant posted on Twitter, some were originally posted by himself, some were reposted tweets from others, some were comments replying to others, which amounted to one thousand six hundred and twelve (1,612) tweets in total and mainly involved remarks that insulted the main leaders of the state, defamed the Chinese Communist Party, and extended support to the independence of Taiwan as well as the Hong Kong riots.

IV. The ‘Record of Electronic Evidence Examination’ confirms that on 15 September 2019, the Electronic Evidence Examination and Authentication Centre of the Yangzhou Public Security Bureau issued an electronic evidence inspection record with the citation of ‘[2019] Yang Gong (Wang) Jianzi No 203’, stating that forty-six (46) contacts, as well as electronic data relating to QQ, WeChat, Telegram, and Twitter accounts, were extracted from the Huawei mobile phone possessed by the Defendant, confirming the display name of his Twitter account is ‘Shenyin’.

V. The ‘Record of Online Data Extraction’ confirms that on 3 September 2019, the Cyber Security Guard Detachment of the Yangzhou Public Security Bureau conducted a data extraction on all past tweets posted in the Defendant’s Twitter account up to 17:00 of 3 September 2019. Five hundred and forty-eight (548) screenshots were made, with a total of four hundred and ninety-one (491) tweets (including tweets replying to others) extracted. On 17 September 2019, the Cyber Security Guard Detachment of the Yangzhou Public Security Bureau conducted another data extraction, extracting all the tweets, including tweets replying to others, posted from 3 to 17 September 2019 in the Defendant’s Twitter account. Eight (8) screenshots were made, with a total of eighteen (18) tweets (including tweets replying to others) extracted.

VI. The ‘Identification Record’ confirms that upon identification by witness Shen Hongxia, she affirms that the person who handed her a mobile phone to take care of was indeed the Defendant.

VII. The ‘Forensic Evaluative Opinions’ confirms that the Defendant, to wit, the evaluatee, is clearly diagnosed with dysthymia. After he registered an account on Twitter with the help of internet blockade circumvention tools, he exhibited some behaviour, such as verbally abusing the state leader, under the influence of others. But he was able to see the nature and consequences of his behaviour afterwards and to recognise the reason was that he was credulous to others and brainwashed by the media. Therefore, there is no correlation between his committal of crime and his depressive mood. His ability to recognise and control exists, and therefore, it is determined that he should bear full criminal responsibility.

The aforesaid evidence has been presented in court and subjected to cross-examination, the sources of which are lawfully acquired, the contents of which are objective and true and of relevance to this case, and is thereby confirmed by this Court.

This Court holds that the Defendant used his mobile phone and, with the help of internet blockade circumvention tools, accessed the overseas social platform Twitter. He then registered an account and used it to post remarks many times that insulted the main leaders of the state, in which the circumstances were execrable. The Defendant repeatedly posted remarks on the internet that opposed the Party and the state system and expressed support for the independence of Taiwan and the chaos in Hong Kong, creating disturbances in cyberspace and causing serious public disorder; he acts, therefore, have constituted the crime of picking quarrels and provoking trouble. Given that the Defendant voluntarily turned himself in after committing the crime and truthfully confessed to his criminal offences, which constituted voluntary surrender, a lighter punishment, therefore, is to be given according to law. The Defendant pleaded guilty and consented to accept the punishment; he is, therefore, to be dealt with leniently according to law. The criminal facts charged by the Prosecution against the Defendant for committing the crime of picking quarrels and provoking trouble are clear, the evidence is reliable and sufficient, the name of the offence charged is correct, the reasons raised for the Defendant to be given a lighter and more lenient punishment are established, and are thereby supported by this Court. As for the defence opinions raised by the defence counsel, to wit, ‘the Defendant has a mitigating circumstance of voluntary surrender, pleaded guilty and consented to accept the punishment, for which the defence counsel pleads for a lighter punishment be given to him and suggests the application of a suspended sentence’, this Court, upon examination, ascertains that, albeit the Defendant’s mitigating circumstance of voluntary surrender, guilty plea, and willingness to accept punishments, the circumstances, to wit, his past remarks posted on the internet that opposed the Party and the state system, expressed support for the independence of Taiwan and the chaos in Hong Kong, as well as his repeatedly released remarks that verbally abused the main leaders of the state, were execrable, and therefore, the eligibility criteria for a suspended sentence are not met, and thereby, this part of the defence opinions raised by the defence counsel, to wit, the suggestion of a suspended sentence be applied to the Defendant, is not supported. Based on the said grounds, and in accordance with Items 2 and 4 of Paragraph 1 of Article 293, Paragraph 1 of Article 67, Paragraph 64 of The Criminal Law of the People’s Republic of China, Item 1 of Article 3, 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 Picking Quarrels and Provoking Trouble, and Article 5 of the 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 one (1) year;

(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, that is, the term of imprisonment begins on 11 September 2019 and ends on 10 September 2020.) and

II. The instrument of crime, to wit, the one (1) black Huawei mobile phone distrained by the public security organ, is to be confiscated and turned over to the state treasury according to 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 Yangzhou Intermediate People’s Court of Jiangsu 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) duplicated copies of the petition shall be submitted.