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 Mr. 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

黄世科非法利用网络信息案判决

新疆维吾尔自治区高级人民法院伊犁哈萨克自治州分院
刑 事 判 决 书
(2017)新40刑终78号

原公诉机关伊宁县人民检察院。

上诉人(原审被告人):黄世科,男,1968年4月24日出生,回族,小学文化程度,无固定职业,户籍所在地新疆察布查尔锡伯自治县。2016年8月24日因涉嫌聚众扰乱社会秩序犯罪被刑事拘留,同年9月6日被逮捕。现羁押于伊宁县看守所。

伊宁县人民法院审理伊宁县人民检察院提起公诉的被告人黄世科犯聚众扰乱社会秩序罪一案,于2016年12月12日作出(2016)新4021刑初388号判决。宣判后,被告人黄世科不服,向本院提出上诉。本院依法组成合议庭,经阅卷审查,讯问上诉人,认为本案的事实清楚,决定不开庭审理。本案经合议庭评议,现已审理终结。

原判认定,2016年6月左右,被告人黄世科建立名为”穆斯林礼拜”的微信群,通过语音在该微信群中教他人做礼拜,该微信群有一百多人。2016年8月,黄世科在名为”梁堡道堂文化学习”的微信群中讲解《古兰经》里有关古尔邦节宰牲的目的的内容,该微信群里有一百多人。

原判认定上述事实依据的主要证据有:被告人黄世科的供述;证人黄某的证言;电子证物勘验报告等。

根据上述事实和证据,原判以被告人黄世科犯聚众扰乱社会秩序罪,判处有期徒刑二年。

宣判后,黄世科上诉称,其不知道自己的行为是违法行为,自己只是在微信群中讲经、教经,其行为没有实际危害国家和社会,请求二审法院公正判决。

本院经审理查明,原判认定上诉人黄世科犯罪的事实清楚,本院予以确认。认定上诉人黄世科犯罪事实的证据有:

1、上诉人黄世科供称,其于2016年月左右建立了名为”穆斯林礼拜”的微信群,群里有一百多人,主要是其亲戚和友人;这些亲戚和友人和其一起做礼拜(乃麻孜),有一次,其在该微信群里教他人如何做礼拜(乃麻孜)。”梁堡道堂文化学习”微信群是谁建的,其不知道,群里有一百多人;有一天群主让其在该微信群里讲一讲古尔邦节宰牲的内容,其就讲解了《古兰经》里有关古尔邦节宰牲的目的的经文内容。

2、证人黄某(系上诉人黄世科的女儿)证实,其父亲黄世科建立了”穆斯林礼拜”微信群,其家亲戚加入了该微信群,其中有不会做礼拜(乃麻孜)的,其父亲就教他们如何做礼拜(乃麻孜);群里有人让他教,他就教。

3、证据保全清单和决定书证实,黄世科所使用的黑蓝色OPPO牌手机被公安机关依法提取、保全。

4、检查笔录和电子证物勘验报告证实,通过对黄世科使用的OPPO牌手机里的微信聊天记录的内容进行勘验、分析,发现黄世科在微信群里从事了内容如上所述的非法讲经、教经活动。

本院认为,上诉人(原审被告人)黄世科明知微信群里人数众多;微信群并非宗教活动场所,在非宗教活动场所不能从事宗教活动,却私建微信群,进行讲经、教经等非法宗教活动,扰乱了正常的宗教活动管理秩序,违反了我国有关宗教事务管理的法律法规的规定,且其行为情节严重,社会危害性大,构成非法利用信息网络罪。

原判认定其犯罪的事实清楚,证据确实、充分,但适用法律不当,定罪不准,应予纠正。聚众扰乱社会秩序罪在客观方面必须是”情节严重”、”致使工作、生产、营业和教学、科研、医疗无法进行”和造成”严重损失”三个条件同时具备,缺一不可。上诉人黄世科的行为并不具备”致使工作、生产、营业和教学、科研、医疗无法进行”等条件,因此,其行为不构成聚众扰乱社会秩序犯罪。

上诉人黄世科关于不知道自己的行为属于违法行为,希望二审法院公正判决的上诉不能成为免除其刑事责任的理由;其关于只是在微信群里讲经、教经,其行为没有实际危害国家和社会的上诉,应予驳回,因为其在非宗教活动场所从事教经、讲经的宗教活动,扰乱了正常的宗教管理秩序,具有严重的社会危害性。

依据《中华人民共和国刑法》第二百八十七条之一第一款第(一)、(三)项和《中华人民共和国刑事诉讼法》第二百二十五条第一款第(二)项之规定,判决如下:

上诉人(原审被告人)黄世科犯非法利用信息网络罪,判处有期徒刑二年(刑期自本判决执行之日起计算,判决执行以前先行羁押的,羁押一日折抵刑期一日,即自2016年8月24日起至2018年8月23日止)。

本判决为终审判决。

审判长 洪  流
审判员 李 精 简
审判员 莫扎帕尔

二〇一七年三月十日

书记员 王 继 华