Tuesday, October 20, 2020

Translation: Judgment in Case of US University Student Jailed for Twitter Postings

People's Court of Wuchang District, Wuhan, Hebei


Criminal Judgment


(2019) E 0160 Criminal First Instance No. 10871


The public prosecution agency was the People's Procuratorate of Wuchang District, Wuhan, Hubei.

Defendant Luo Daiqing, male, born [INTENTIONALLY DELETED], 1999, Han ethnicity, studying in Humanities Department of the University of Minnesota in the United States, household registration in the Honghan District of Wuhan, currently residing in the Wuchang District of Wuhan. On July 12, 2019 he was summoned to appear on suspicion of the crime of disturbing the peace, and on the same day it was decided he would subjected to 10 days in administrative custody. On July 22, 2019, he was taken into criminal detention by the Public Security Bureau of Wuchang District, Wuhan, and on August 29 of the same year he was arrested. He is currently being held in custody in the Wuchang District Detention Center.

Defense counsel Hu Jibin is a lawyer at the Hubei Lingfeng Law Firm.

In the Chang Procuratorate First Division Criminal Indictment (2019) No. 127 indictment the People's Procuratorate of Wuchang District, Wuhan, Hubei charged defendant Luo Daiqing with committing the crime of disturbing the peace, and October 11, 2019 filed a public prosecution with this Court. This Court utilized ordinary procedures in accordance with the law, and formed a collegial panel and on October 29, 2019 tried this case in closed court. The People's Procuratorate of Wuchang District, Wuhan, Hubei assigned Procurator Chen Honglin to appear in court in support of the public prosecution, and defendant Luo Daiqing and his defense counsel Hu Jibin appeared in court to participate in the proceedings. The collegial panel has held deliberations on this case, and the trial has now concluded.

The People's Procuratorate of Wuchang District, Wuhan, Hubei charged that in September and October of 2018, while studying at the University of Minnesota in the United States, defendant Luo Daiqing posted 40 statements and inappropriate memes that ridiculed the image of State leaders through his Twitter account on a foreign website in order to attract the attention of others. This drew the attention of others and created a pernicious social influence. On July 12, 2019, defendant Luo Daiqing was taken into custody and brought to justice by public security agencies.

The aforementioned facts have been substantiated by relevant evidence submitted by the public prosecution agency including documentary evidence, witness testimony, audio-visual materials, and statements of the defendant. Based on these it alleges defendant Luo Daiqing utilized information networks to post fake images and statements that ridiculed the nation's image, disrupted social management order, that the circumstances were severe, that he violated  the provisions Article 293 of the "Criminal Law of the People's Republic of China," and should bear criminal liability for the crime of disturbing the peace.

Defendant Luo Daiqing and his defense counsel did not object to any of the criminal facts and the crime charged by the public prosecution agency. In court Luo Daiqing expressed remorse for his offenses and asked to be shown leniency. Defense counsel believes that Luo Daiqing is a first offender who is ordinarily well behaved,  that once he became involved in the case he made truthful statements and plead guilty. They asked that he be shown leniency during sentencing.

It was ascertained at trial that while studying at the University of Minnesota in the United States in September and October of 2018, defendant Luo Daiqing posted 40 statements and inappropriate memes that ridiculed the image of State leaders through his Twitter account on a foreign website in order to attract the attention of others. This drew the attention of others and created a pernicious social influence. On July 12, 2019, defendant Luo Daiqing was taken into custody and brought to justice by public security agencies.

The evidence proving the aforementioned facts includes:

1. The process of how the defendant came into police custody produced by the Shuiguohu Police Precinct of the Public Security Bureau of Wuchang District, Wuhan, the explanation of circumstance produced by the Public Security Bureau of Xuzhou's Cyber Security Detachment confirmed process by which Luo Daiqing was taken into custody: On October 20, 201, while a Ma Doe was assisting in an investigation at the Xuzhou Police Precinct, they reported to the police that someone had stolen their identity to register on Twitter and other foreign Internet social media platforms, and had posted over 50 statements and inappropriate memes that ridiculed the nation's image and that were drawing unwanted attention and creating a pernicious social influence. An investigation found that the suspect was Luo Daiqing, and based on certain leads, on July 12, 2019, the Public Security Bureau of Wuchang District, Wuhan detained Luo Daiqing at Hongshan Side Road, Xiaohongshan Western District, Wuchang District, who stated that he undertook the aforementioned actions in order to attract online attention. The case was considered solved.

The Public Security Bureau of Xuzhou's Cyber Security Detachment confirmed that said detachment conducted online evidence retrieval with respect to the "mianq12 " Twitter account in this case, and recorded it in fixed form on a disc.

2. The Public Security Bureau of Xuzhou's online collection work record and volume of evidence collected from the Internet information content.

3. The written testimony of witness Ma Doe confirmed that someone used the Internet in their name to post images and statements that insulted the nation's image: I am an anime author, and owing to some online interpersonal contradictions I got involved in many flame wars with online trolls, and I offended many people and was attacked by them. I had registered the  nickname "Eastern Footbath" in many places online, and had also registered it on Twitter, but I had never used it, and had lost that account. None of the images that insulted State leaders that were posted online under the names Ma Doe and "Footbath" were posted by me.  I was framed.

4. Defendant Luo Daiqing's household registration, identification information and statement confirmed the circumstances of the crimes he committed: I am student in the Humanities Department of the University of Minnesota in the United States. I returned to China in May  2019 and have not yet graduated. I registered three Twitter accounts; "Soft Green," "Ma Doe," and "The Footbath." I logged into Twitter in the United State, and in order to attract the attention of followers I reposted images created by others that smeared some State leaders. I do not know Ma Doe, I saw many denounce him in a Telegram group, and I pretended to be him in order to go ahead and do this. I used the reputation of "Ma Doe" to post certain derogatory information, and it increased my followers (attracted attention) quite a bit. I was posting continuously from September to October 2018, adding some of my own writings. Afterwards I felt that it was not appropriate to post inappropriate information in the name of someone else, and it was linked to politics and did not really mean anything to me, so I deleted all of that content.

5. The thoughts and understandings set down in writing by Luo Daiqing confirmed the detailed circumstances of the crimes he committed and that his attitude was one of regret.

6. The Public Security Bureau of Wuchang District, Wuhan Administrative Punishment Decision confirmed that on July 13, 2019 it was decided to subject Luo Daiqing to 10 days of administrative detention for his actions in the aforementioned case.

All the foregoing evidence was submitted by public prosecution agencies, was presented and examined in court, defendant Luo Daiqing and his defense counsel raised no objections, and it was affirmed in court. The evidence is reliable, copious, and consistent, and this Court deems the facts charged by the public prosecution agency with respect to defendant Luo Daiqing committing the crime of disturbing the peace to be determinative.

This Court finds that defendant Luo Daiqing utilized information networks to promulgate false information that ridiculed the State's image (the original text of the document phrased it thus, not as ridiculing the image of State leaders), this caused a disturbance and attracted attention. It disrupted social management order, the circumstances were pernicious, and his actions constitute the commission of the crime of disturbing the peace. The facts in this case charged by the public prosecution agency are clear and the evidence is reliable and copious, the was applied correctly, the offense charged is established and is upheld by this Court.

After becoming involved in the case Luo Daiqing was able to honestly confess to the crimeand recognize his offense and show a relatively penitent attitude, so he may be shown leniency.

This Court does not accept the relevant opinions of defense counsel. This Court accepts as appropriate the opinion of the public prosecution agency recommending a sentence of between four months detention and a fixed term imprisonment of 10 months. In accordance with the provisions of Articles 293(1) and 67(3) of the "Criminal Law of the People's Republic of China" and Article 5 of the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in the Handling of Defamation Through Information Networks and Other Criminal Cases," the judgment is as follows:

Defendant Luo Daiqing committed the crime of disturbing the peace and is sentenced to a fixed term imprisonment of six months.

(The prison term is to be calculated starting on the day the judgment is executed, and each day in custody prior to the execution of the judgment shall count as one day of the prison term, that is from July 12, 2019 to January 11, 2020.)

If any party does not accept this judgment, they may within 10 days after the second day after receiving this written judgment bring an appeal through this Court or directly to the Intermediate People's Court of Wuhan, Hubei. A written appeal should be submitted with one original and three copies of the appeal brief,

Chief Adjudicator  Wei Xiaoxia
Adjudicator  Cheng Ping
People's Assessor  Bao Jianping

November 5, 2019

Clerk    Zhang Yanglan 

湖北省武汉市武昌区人民法院

刑事判决书

(2019)鄂0106刑初1087号


公诉机关湖北省武汉市武昌区人民检察院。

被告人罗岱青,男,1999年[INTENTIONALLY DELETED]出生,汉族,美国明尼苏达大学人文学院在读学生,户籍地武汉市江汉区,现住武汉市武昌区。因涉嫌寻衅滋事罪于2019年7月12日被传唤,次日决定行政拘留10日,2019年7月22日被武汉市公安局武昌区分局刑事拘留,同年8月29日被逮捕。现羁押于武汉市武昌区看守所。

辩护人胡继斌,湖北凌枫律师事务所律师。

湖北省武汉市武昌区人民检察院以昌检一部刑诉(2019)127号起诉书指控被告人罗岱青犯寻衅滋事罪,于2019年10月11日向本院提起公诉。本院本院依法适用普通程序,组成合议庭于2019年10月29日开庭不公开审理本案。武汉市武昌区人民检察院指派检察员陈红林出庭支持公诉,被告人罗岱青及其辩护人胡继斌到庭参加诉讼。案件经合议庭评议,现已审理终结。

湖北省武汉市武昌区人民检察院指控,被告人罗岱青于2018年9、10月间,在美国明尼苏达大学就读期间,为吸引他人关注,在境外网站上通过其推特账户,发布丑化国家领导人形象的言论及不雅拼装图片信息40余条,引发他人围观,造成恶劣社会影响。被告人罗岱青于2019年7月12日被公安机关抓获归案。

上述事实公诉机关提交相关书证、证人证言、视听资料,被告人的供述等证据证实,据此认为被告人罗岱青利用信息网络发布丑化国家形象的虚假图片、言论,破坏社会管理秩序,情节恶劣,触犯《中华人民共和国刑法》第二百九十三条的规定,应当以寻衅滋事罪追究刑事责任。

被告人罗岱青及其辩护人对公诉机关指控的犯罪事实及罪名均没有异议,罗岱青当庭表示认罪悔罪,请求从轻处罚;辩护人认为罗岱青系初犯,平时表现良好,到案后如实供述、认罪认罚,量刑时请求从轻处罚。

经审理查明,被告人罗岱青在美国明尼苏达大学就读期间,于2018年9、10月间,为吸引他人关注,在境外通过其本人的推特账户,发布丑化国家领导人形象的言论及不雅拼装图片信息40余条,引发他人围观,造成恶劣社会影响。被告人罗岱青后于2019年7月12日回国期间被公安机关抓获归案。

证明上述事实的证据有:

1、武汉市公安局武昌区分局水果湖街派出所出具的到案经过、徐州市公安局网安支队出具情况说明,证实罗岱青查获的过程:2018年10月20日马某在徐州市珠山派出所配合调查案件时,报警称被他人在境外冒用身份登录推特等网络社交平台,在网上发表丑化国家形象的言论、不雅图片50多条,引发起哄围观,影响恶劣。经查嫌疑人系罗岱青。2019年7月12日武汉市公安局武昌区分局根据线索,在武昌区洪山侧路小洪山西区查获罗岱青,其供述为吸引网络关注实施了上述行为。案件告破。

徐州市公安局网安支队证实,该队对涉案推特账号“mianq12”推文进行在线取证固定,并刻盘保存。

2、徐州市公安局在线提取工作记录及提取的网络信息内容在卷佐证。

3、证人马某的证词,证实他人以其名义通过网络发表有辱国家形象的图片言论:我是动画制作者,因为网络社交中的个人矛盾,与网络暴力圈的一些人发生过多次口角,得罪了很多人,被他们攻击。我在网上多处注册昵称为“东风洗脚盆”,也注册过推特,但没有使用过,账号已经丢了。网上以马某和“洗脚盆”的名义发布的侮辱国家领导人的照片,都不是我发表的,是嫁祸行为。

4、被告人罗岱青的户籍、身份信息及供述,证实其实施犯罪经过:我是美国明尼苏达大学人文学院学生,2019年5月回国、现在未毕业。我注册了三个推特账号分别是“绵青”“马某”“洗脚盆”。我在美国登录推特,为吸引粉丝关注,转发了别人制作的一些丑化国家领导人的图片信息。我不认识马某,在“电报群”里看到很多人声讨他,我想出头办这个事,就伪装成他,以“马某”的名义发布这些负面信息,涨粉(吸引关注)不少,2018年9月到10月一直在发,有些加上我自己写的文字。后来觉得冒充他人发这些不当信息的行为不正当,和政治挂钩,对我也没有实际意义,就把这些内容都删了。

5、罗岱青本人书写的思想认识,证实其实施犯罪的详细过程及悔罪态度。

6、武汉市公安局武昌区分局行政处罚决定书,证实罗岱青因上述涉案行为于2019年7月13日被决定行政拘留十日日。

以上证据均由公诉机关提交,经庭审举证质证,被告人罗岱青及其辩护人均无异议,当庭予以确认。证据确实、充分且吻合一致,公诉机关指控被告人罗岱青犯寻衅滋事罪的事实,本院予以认定。

本院认为,被告人罗岱青利用信息网络散布丑化国家形象(文书原文如此,并非丑化国家领导人形象)的虚假信息,起哄闹事、引发围观,破坏社会管理秩序,情节恶劣,其行为已构成寻衅滋事罪。公诉机关指控事实清楚,证据确实、充分,适用法律正确,指控罪名成立,本院均予以支持。罗岱青到案后能如实交代罪行,认罪悔罪态度较好,可以从轻处罚。辩护人相关意见本院予以采纳。公诉机关建议在拘役四个月至有期徒刑十个月之间量刑的意见,本院酌情采纳。依照《中华人民共和国刑法》第二百九十三条第一款,第六十七条第三款,及最高人民法院、最高人民检察院《关于办理利用信息网络实施诽谤等刑事案件适用法律若干问题的解释》第五条的规定,判决如下:

被告人罗岱青犯寻衅滋事罪,判处有期徒刑六个月。

(刑期从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2019年7月12日起至2020年1月11日止。)

如不服本判决,可在接到判决书的第二日起十日内,通过本院或者直接向湖北省武汉市中级人民法院提出上诉。书面上诉的,应当提交上诉状正本一份,副本三份。

审判长  魏筱霞
审判员  成萍
人民陪审员  鲍建平

二〇一九年十一月五日

书记员  张映兰