Tuesday, September 12, 2017

Man Jailed for Providing Islamic Instruction on Tencent’s WeChat Messaging Service

On June 12, 2017, the People's Court of China website posted the judgment of a court in Xinjiang which upheld a two year prison sentence for Huang Shike on the grounds that he violated Article 287-1 of China's Criminal Law (“illegal use of information networks”) when he used two WeChat (Weixin) groups to “carry out discussion and instruction of religious texts.” The court cited the following specific actions of Huang as grounds for his conviction:
  • He once taught others how to pray;
  • He discussed how there was support in the Koran for the animal sacrifices made at the Gadhimai Festival.
The court also stated that WeChat groups were “non-religious venues” and that “it is not permitted to engage in religious activities in non-religious venues.”

China’s Criminal Law was amended in November 2015 to add Article 287-1, which provides as follows:
Article 287-1 [The Crime of Illegal Use of Information Networks] 
1. whoever commits one of the following acts through the use of information networks shall, where the circumstances are serious, be punished with a sentence of not more than three years imprisonment or detention, and a fine: 
(i) Establishing a web site or communication group to commit illegal criminal activities such as fraud, teaching criminal methods, or producing or selling contraband or controlled substances;
(ii) publishing information regarding the making or selling of contraband or controlled substances such as narcotic drugs, firearms, obscene materials, or other illegal criminal information;
(III) publishing information for the purpose of committing illegal criminal activities such as fraud.

Source: http://wenshu.court.gov.cn/content/content?DocID=6740b8cd-bad8-4fae-b59c-a78c00c7e475

Judgment in the Case of Huang Shike's Illegal Use of Internet Information

Xinjiang Uighur Autonomous Region High People's Court of the Yili Kazakh Autonomous Prefecture

Criminal Judgment Document

(2017) Xin 40 Criminal Final No. 78

Prosecuting Agency in the First Instance Yining County People's Procuratorate.

Appellant (Defendant in the first instance): Huang Shike, male, born April 24, 1968, Muslim, grade school education, no fixed employment, registered address is Qapqal Xibe Autonomous County, Xinjiang. Criminally detained on August 24, 2016 on suspicion of assembling a crowd to disturb social order, and formally arrested on September 6 of the same year. Currently detained in the Yining County jail.

The Yining County People's Court tried the case of defendant Huang Shike, who had been indicted by the Yining County People's Procuratorate for the crime of assembling a crowd to disturb social order, and issued Judgment Document (2016) Xin 4021 Criminal First No. 388 on December 12, 2016. After the verdict was announced defendant Huang Shike expressed his objection and submitted an appeal to this court. This court convened a judicial panel and, based on a review of the investigation records and interrogations of the appellant, concluded that the facts in this case were clear, and made a determination not to hold a trial. Based on the assessment of the judicial panel, this trial is hereby concluded.

The court of first instance held that on or about June 2016, the defendant Huang Shike established a group on Wechat called "Muslim Worship," and tought people how to worship on that Wechat group using voice recordings. The Wechat group had over 100 members. In August 2016, Huang Shike lectured on the "Koran" in a Wechat group called "Bridge-Fortress-Path Culture Studies," in which he discussed how there was support in the Koran for the animal sacrifices made at the Gadhimai Festival. The Wechat group had over 100 members.

The primary evidence providing the factual basis for the first instance judgment included: depositions by defendant Huang Shike, testimony of witness Mr. Huang, and electronic evidence forensic reports.

Based on the foregoing facts and evidence, the first instance judgment sentenced defendant Huang Shike to two years imprisonment for assembling a crowd to disturb social order.

After the verdict was announced Huang Shike appealed on the grounds that he did not know that his behavior was illegal, and that he was merely discussing and teaching a holy text, and that his actions did not in fact harm the nation or society, and asked the court of second instance for a fair verdict.

This court upholds the first instance judgment's assessment that the facts of Huang Shike's crime are clear. The evidence supporting an assessment of the fact that Huang Shike committed a crime include:

1. On or about June 2016, the appellant Huang Shike established a group on Wechat called "Muslim Worship," and the Wechat group had over 100 members, mainly his family and friends. These family and friends prayed together with him (the Salah), and that one time he taught others how to pray (the Salah). He did not know who established the "Bridge-Fortress-Path Culture Studies" Wechat group, and the group had over 100 people. One day the group moderator allowed him to lecture about how in the Koran there was textual support for the animal sacrifices made at the Gadhimai Festival.

2. Witness Ms. Huang (the daughter of appellant Huang Shike) testified that her father Huang Shike established the "Muslim Worship" Wechat group, and his family and friends joined the Wechat group, and that among them were people who did not know how to worship (the Salah). Her father taught them how to worship (the Salah); and that he would teach anyone in the group who wanted to would let him.

3. Evidence preservation lists and the judgment document proves that the navy blue OPPO mobile phone belonging to Huang Shike was lawfully obtained and preserved by the public security officers.

4. Investigation records and electronic evidence forensic reports prove that, an examination and analysis of the content of Wechat chat records on the OPPO mobile phone used by Huang Shike uncovered that Huang Shike engaged in illegal discussion and instruction on holy texts as set forth above.

This court finds that the appellant (defendant in the first instance trial) Huang Shike clearly understood that notwithstanding there were many people in Wechat groups, that Wechat groups are not religious venues, that it is not permitted to engage in religious activities in non-religious venues, he nevertheless established Wechat groups in which he carried out discussion and instruction of religious texts and other illegal religious activities, which disturbed the normal administrative order of religious activities, and violated China's relevant laws and regulations on the administration of religious activities, that his actions were serious, caused severe harm to society, and constitute the crime of illegal use of information networks.

This court holds that the first instance judgment's facts were clear, and its evidence was definitive and sufficient. However, it applied the law inappropriately, was incorrect in determining assigning criminal liability, and it should be corrected. Objectively speaking, the crime of assembling a crowd to disturb social order must simultaneously meet three prerequisites: "serious circumstances," "resulting in an inability to carry out work, production, business or teaching, research, or medical treatment," resulting in "severe losses." Not a single prerequisite may be missing. The actions of appellant Huang Shike did lack the prerequisite of "resulting in an inability to carry out work, production, business or teaching, research, or medical treatment," and therefore his actions do not constitute the crime of assembling a crowd to disturb social order.

Appellant Huang Shike claim that he did not understand that his actions were illegal and his desire for this court of second instance to issue a just judgment cannot be used as justification for him to avoid criminal responsibility. This court rejects his claim that all he did was discuss and instruct on religious scriptures in a Wechat group and that there was no actual harm to nation or society, because he engaged in the religious activities of discussing and instructing on religious scriptures in a non-religious venue, thereby disturbing the normal religious administration order, which was severely socially harmful.

In accordance with Article 287 (1)(i)(a) and (c) of the Criminal Law of the People's Republic of China as well as Article 225(1)(ii) of the Criminal Procedure Law of the People's Republic of China, this court hereby rules as follows:

Appellant (defendant in the first instance) Huang Shike committed the crime of illegal use of information networks, and is sentenced to two years imprisonment (The sentence is to be calculated from the date of execution of this judgment, with the sentence to be reduced by one day for each day that he was in custody prior to the execution of this judgment. Therefore it shall run from August 24, 2016 to August 23, 2018).

This judgment shall be final.

Presiding Judge Hong Liu
Judge Li Jingjian
Judge Mozhapaer

March 10, 2017

Clerk Wang Jihua


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审判长 洪  流
审判员 李 精 简
审判员 莫扎帕尔


书记员 王 继 华