Translation:People v Yao Yongsheng (2020)

Dalian Development Area People’s Court Dalian, Liaoning, PR China

Criminal Judgement

[2020] Liao 0291 Xing Chu No 200

Prosecution Authority: the People’s Procuratorate of Dalian Development Area (the ‘Prosecution’).

The Defendant, Yao Yongsheng, male, born on 8 May 1977, Han Chinese, bachelor’s degree, worked as a network engineer at the City College of Dalian University of Technology, and resides in Ganjingzi District of Dalian (household registration location: Dalian Development Area). Following the decision of the Development Area Branch of Dalian Public Security Bureau, the Defendant was criminally detained by the aforesaid PSB Branch on 18 December 2019 on suspicion of committing the crime of picking quarrels and provoking trouble. Upon the approval of the Prosecution, the Defendant was formally arrested on 19 January 2020 by the aforesaid PSB Branch. As decided by this Court, the Defendant was released on bail pending trial on 17 June 2020.

Defence counsel: Guo Rongqing, a lawyer with Beijing Yingke (Dalian) Law Firm.

Defence counsel: Wang Dong, a trainee lawyer with Beijing Yingke (Dalian) Law Firm.

On 15 May 2020, the Prosecution filed the present case with this Court by the Indictment [2020] Da Kai Jiansu Xingsu No 86 against the Defendant for committing the crime of picking quarrels and provoking trouble. This Court then formed a collegial panel in compliance with the law and held a public hearing of this case (with the evidence cross-examination stage converted to a closed one). Assigned by the Prosecution, Prosecutor Zhou Minting 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 alleges that: The Defendant was a staff member of the City College of Dalian University of Technology. Due to the dissatisfaction he felt with his living situation, the Defendant developed a sense of discontent towards the political system of the state and the state leader. From July 2012 to the present, the Defendant used a circumvention tool named ‘SSR’ to bypass the internet blockade, signed in to the social application Twitter and copiously posted and reposted tweets of false and harmful remarks that involved undermining the national image, endangering the national interests, and insulting the leader of the Party and the state. Upon the inspection conducted by the Development Area Branch of Dalian Public Security Bureau on the Twitter account of the Defendant, a total of twenty-nine (29) retweets were found that fell within the aforesaid description. On 18 December 2019, the Defendant appeared at the police station in response to a phone-call summons from the local police officer.

The Prosecution holds that the Defendant has picked quarrels and acted provocatively, the circumstances were execrable, and his acts have constituted the crime of picking quarrels and provoking trouble. Given that the Defendant voluntarily surrendered, a lighter or mitigated punishment may be applicable. Therefore, a fixed-term imprisonment of six (6) months is suggested by the Prosecution to be given to the Defendant.

The Defendant has no objection to both the crime name and the criminal facts charged and accepted the sentencing recommendation made by the Prosecution.

The defence counsel holds that there is room for debate as to whether the Defendant’s acts have constituted a crime. And even if they have, his criminal circumstances were significantly minor, posing little harm to society. Furthermore, based on the Defendant’s stance and motives in this case, it cannot be proven that he had a subjective intent to disrupt social order. His act of ‘retweeting’ is even less likely to cause social disorder. The Twitter account of the Defendant has only a few followers, and there is no evidence to suggest that those followers of him had retweeted his tweets. Therefore, it is difficult to establish that his acts have created a widespread ‘influence’, much less to amount to the extent of ‘causing a serious disorder in a public place’, as stipulated by law. Finally, the Defendant has sincerely pleaded guilty and expressed remorse. And considering that the Defendant is the sole breadwinner of his family, the defence counsel is, therefore, pleading with the Court for a more lenient punishment.

The Court, upon trial of this case, ascertains that: The Defendant has been working with the City College of Dalian University of Technology as a network engineer since July 2005. From July 2012 up until December 2019, that is before he was summoned by the police, the Defendant used a circumvention tool named ‘SSR’ to bypass the internet blockade, signed in to the overseas social application ‘Twitter’, followed some Twitter accounts like ‘The New York Times Chinese Website’, ‘The US Embassy and Consulates in China’, and ‘Radio Free Asia’ that have large numbers of followers and receive significant attention, as well as some accounts that frequently release untrue remarks. The Defendant read the tweets of false remarks posted by these aforesaid accounts that involved undermining the national image, endangering the national interests, and insulting the leader of the Party and the state, and retweeted them with his own Twitter account. Upon the inspection conducted by the investigation authority, the Defendant had retweeted twenty-eight (28) tweets and posted one (1) original tweet that contained contents that met with the aforesaid description, which amounted to twenty-nine tweets (29) in total.

On 18 December 2019, the Defendant turned himself in upon a phone-call summons made by the public security organ and then truthfully confessed to the main criminal facts, pleaded guilty, and expressed remorse.

Furthermore, it was ascertained that during the investigation process, the public security organ lawfully distrained one (1) mobile phone (a black OnePlus slate smartphone) that belonged to the Defendant and was used in the commission of the crime.

The aforesaid facts, substantiated by physical evidence, one (1) mobile phone (with ‘Inventory of Distrained Articles’ and ‘Decision on the Distrainment of Articles’ attached), and documentary evidence of ‘Household Registration Certificate’, ‘Source of the Case’, ‘Course of Appearance of the Suspect’, ‘Criminal Record Enquiry Log’, ‘Certificate of Employment’, ‘Statement of Remorse’, ‘Confession and Justification of the Defendant’, and ‘Inspection Record’, are sufficient to establish.

This Court holds that the Defendant had knowingly fabricated false information that undermined the national image, endangered the national interests, and insulted the leader of the Party and the state, or disseminated false information of the aforesaid contents on the information network with the full knowledge that such information was fabricated, thereby creating disturbances and seriously disrupting the public social order. His acts, therefore, conformed to the criminal constitution of the crime of picking quarrels and provoking trouble, and thus he shall be punished. The charges filed by the Prosecution are established. Given that the Defendant voluntarily turned himself in upon the public security organ’s phone-call summons, truthfully confessed to his main criminal facts thereafter, and entered a voluntary guilty plea in court, a lighter punishment is to be given. The instrument of crime distrained with the case shall be confiscated.

Cyberspace is not a lawless wilderness. Although it differs from the actual physical space, the acts performed within cyberspace are concrete, and the order on the internet is an essential component of public social order. Therefore, as one who worked as a network engineer at a university for over a decade, the Defendant should have the ability to distinguish false information. However, he utilised his expertise in information technology and employed professional circumvention software to bypass the internet blockade, accessed an overseas social platform, extensively read false information that undermined the national image, endangered the national interests, and insulted the leader of the Party and the state, and copiously reposted and promoted information of such. The subjective intent behind his acts is evident, and such acts of his played a fuelling role in helping those ‘internet celebrities’ to promote the aforesaid false information. Thus, the acts of his were sufficient to cause serious disruption to the order of the internet and public social order. Therefore, based on the aforesaid analysis, the defence counsel’s opinions that do not correspond to the analysis are not adopted by this Court.

In summary, in accordance with Article 293, Paragraphs 1 and 3 of Article 67, Article 64 of The Criminal Law of the People’s Republic of China, and 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 six (6) 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, that is, the term of imprisonment began on 18 December 2019 and ended on 17 June 2020.) and

II. The instrument of crime distrained in this case, the one (1) black OnePlus slate smartphone, is to be confiscated by the public security organ.

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 Dalian Intermediate People’s Court of Liaoning 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.

Appendix: Relevant legal provisions

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

Article 293 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 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.

Article 67 Voluntary surrender refers to the act of voluntarily delivering oneself up to justice and truthfully confessing one’s crime after one has committed the crime. Any criminal who voluntarily surrenders may be given a lighter or mitigated punishment. The ones whose crimes are relatively minor may be exempted from punishment. If a criminal suspect or a defendant under compulsory measures or a criminal serving a sentence truthfully confesses his other crimes that the judicial organ does not know, his act shall be regarded as voluntary surrender.

A criminal suspect who truthfully confesses to his crime may be given a lighter punishment even though there is no voluntary surrender, as mentioned in the preceding two paragraphs, and may be given a mitigated punishment if any especially serious consequence is avoided for his truthful confession.

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.