Intermediate People's Court of Suzhou, Jiangsu
Criminal Ruling
(2020) Su 05 Criminal Final No. 6601
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Translator's Summary: The court found Zhu guilty on the grounds that he "used foreign Internet platforms to disseminate a large amount of false information relating to significant domestic events that seriously damaged the image of the country and seriously harmed national interests, creating a disturbance, confusing public opinion, causing severe disruption of public order." The court specifically cited Zhu for using "Twitter and Facebook to maliciously sensationalize major domestic events such as the "Jiansanjiang Incident," "Qing'an Incident," and the "Lei Yang Incident," all of which occurred at least two years prior to Zhu's arrest.
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The original public prosecution agency was the People's Procuratorate of Wuzhong District, Suzhou.
Appellant (defendant in the original trial) Zhu Chengzhi, male, born [INTENTIONALLY DELETED], 1950, resident registration ID No. [INTENTIONALLY DELETED], Han ethnicity, junior high school education, unemployed, residing at [INTENTIONALLY DELETED] Baoqing East Road, Baodong Community Residents Committee, Shuangqing District, Shaoyang, Hunan. On June 8, 2012, he was subjected to 10 days administrative detention by the Public Security Bureau of Shaoyang, Daxiang Division for obstructing a government agent in the execution of their duties. On October 11, 2016, he was subjected to seven days administrative detention by the Public Security Bureau of Shaoyang, Shuangqing Division for disrupting public order. On April, 30, 2018 he was placed under residential confinement at a designated location (having been taken into custody on the 29th of the same month) by the Public Security Bureau of Suzhou, Wuzhong Division on suspicion of committing the crime of disturbing the peace. On October 29, 2018 he was taken into criminal detention by the Public Security Bureau of Suzhou, Wuzhong Division on suspicion of committing the crime of inciting subversion of state power. On November 12, 2018 he was arrested on suspicion of committing the crime of disturbing the peace. He is currently being held in detention at the Suzhou No. 1 Detention Center.
Defense counsel Zhang Lei is a lawyer at the Beijing Tongzhenghan Law Firm.
Defense counsel Liu Hai is a lawyer at the Huayi Law Firm, Beijing.
The People's Court of Wuzhong, Suzhou tried the case of the People's Procuratorate of Wuzhong, Suzhou charge that the defendant in the original trial Zhu Chengzhi committed the crime of disturbing the peace, and on July 31, 2020 issued the (2019) Su 0506 Criminal First Instance No. 537 criminal judgment. After the judgment was announced, the defendant in the original trial Zhu Chengzhi did not accept it, and submitted an appeal. After this Court docketed the case it formed a collegial panel in accordance with the law. Based on a reading of the case file, interrogatories with the appellant, and hearing the opinions of the People's Procuratorate of Suzhou and defense counsel, found the facts in this case are clear, and decided not to hold hearings at trial. The trial has now concluded.
The judgment in the original trial held that, since 2010, defendant Zhu Chengzhi used the foreign Internet platforms Twitter and Facebook to disseminate a large amount of false information that seriously damaged the image of the country and seriously harmed national interests, created a disturbance, confused public opinion, and caused a severe disruption of public order. The specific facts are as follows:
1. Since March 2010, over a long period of time defendant Zhu Chengzhi used his registered account on the foreign Internet platform Twitter, to denigrate China's political system, publishing false statements and pictures that seriously damaged the image of the country and seriously endangered national interests. These included more than 140 posts with false information directly attacking China's State leaders and political system, which were reposted more than 700 times and liked more than 1,290 times.
2. Since 2014, over a long period of time defendant Zhu Chengzhi used his registered account on the foreign Internet platform Facebook to denigrate China's political system, publishing false statements and pictures that seriously damaged the image of the country and seriously endangered national interests. These included more than 50 posts with false information directly attacking China's State leaders and political system, which were shared and commented on more than 40 times and liked more than 150 times.
3. Defendant Zhu Chengzhi used his aforementioned registered accounts on the foreign Internet platforms Twitter and Facebook to maliciously sensationalize major domestic events such as the "Jiansanjiang Incident," "Qing'an Incident," and the "Lei Yang Incident," and after official information had been publicized he still fabricated rumors, distorted facts, and posted a large number of false statements and pictures.
Among these, on April 28, 2016, defendant Zhu Chengzhi went to Mudu Town, Wuzhong District, Suzhou and logged in to his Facebook account in Mudu Town, Wuzhong District on the 30th of the same month, and published posts attacking state agencies.
The original trial found that evidence of the aforementioned facts included the apprehension process, seize materials, document lists, electronic evidence investigation work records, electronic data investigation work records, collection records, remote crime scene investigation work records, the testimony of witnesses Wang Mingxian and Ni Jinfang, proof of household registration, and the Administrative Punishment Decision. The court in the original trial found defendant Zhu Chengzhi used foreign Internet platforms to disseminate a large amount of false information relating to significant domestic events that seriously damaged the image of the country and seriously harmed national interests, creating a disturbance, confusing public opinion, causing severe disruption of public order, and his actions constitute the commission of the crime of disturbing the peace. In accordance with the provisions of Article 293(1)(iv) of the "Criminal Law of the People's Republic of China," it sentenced defendant to a fixed term imprisonment of three years and six months for committing the crime of disturbing the peace.
The appeal rationales and defense opinions of appellant Zhu Chengzhi and defense counsel are:
1. The Suzhou Wuzhong District judiciary does not have jurisdiction in this case.
2. There were no eyewitnesses to the remote crime scene investigation in this case, there were no approval procedures for some of the remote crime scene investigation, and the procedures for collecting evidence violated the provisions of the Criminal Procedure Law and should not be used as a basis for a judgment.
3. Appellant did not fabricate information or continue to spread it knowing that it is false information, and the content posted falls within the category of freedom of speech. Facebook and Twitter are not not public venues with respect to the crime of disturbing the peace. Appellant's actions did not cause serious chaos in public order.
To sum up, it is requested that the judgment for appellant Zhu Chengzhi be changed to not guilty.
The opinion produced by the People's Procuratorate of Jiangsu holds that the facts determined in the judgment in the original trial were clear, the evidence was reliable and copious, the trial procedures were legal, the sentence was appropriate, and the appeal grounds for appeal are not established. It recommends the appeal be rejected and the judgment in the original trial be upheld.
The facts ascertained by the trial of second instance are consistent with the facts found in the original judgment, and all of the evidence that was produced and examined in court in the original trial can be mutually corroborated, and are therefore probative, and are affirmed by this Court.
With respect to the opinions raised by Appellant and defense counsel, based on a comprehensive review of facts and evidence of the whole case, this Court's comprehensive evaluation is as follows:
With respect to the relevant opinions raised by Appellant and defense counsel that "The Wuzhong District judiciary did not have jurisdiction in this case," an investigation found that appellant Zhu Chengzhi logged in to his Facebook account on April 30, 2016 and made a post attacking State agencies. The location was displayed in the city of Wuzhong District, Mudu Township. Wuzhong District was the location where appellant Zhu Chengzhi's accessed the network to commit a cybercrime.
In accordance with the provisions of the "Criminal Procedure Law of the People's Republic of China" and the "Opinions of the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security on Several Issues Concerning the Application of Criminal Procedures in the Handling of Cybercrime Cases," Wuzhong District was the location of the criminal activity in this case, and the local judiciary has jurisdiction in this case.
With respect to the relevant opinions raised by Appellant and defense counsel that "the evidence collection procedure in this case violated the provisions of the Criminal Procedure Law and cannot be used as the basis for a judgment," this Court finds:
First, the issue of the approval of the remote crime scene investigation. An investigation found that during hearings in the trial of first instance, the public prosecutor produced as evidence the corresponding petition approval report for the remote crime scene investigation work record used to produce evidence.
Second, the issue of remote crime scene investigation eyewitnesses. In accordance with the provisions of the "Provisions of the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security on Several Issues Concerning the Collection, Examination, and Assessment of Electronic Data Collected in Criminal Cases," if it is not possible for a qualified person to act as a witness for objective reasons, a note as to the circumstances shall be made in the relevant transcripts, and a video recording of the entire process of impounding the original storage medium shall be made.
This Court finds, because the information involved in this case related to the denigration of the national Party and government system, the presence of eyewitnesses would inevitably cause unnecessary secondary dissemination, which falls within the category of "objective reasons" as set forth in the "Provisions."
The aforementioned situation has been recorded and explained in the work record of the remote crime scene investigation in this case. At the same time, the entire process of the remote crime scene investigation was carried out in conjunction with synchronized screen recordings, with verification established using checksums, which is able to ensure the authenticity of the remote crime scene investigation process and collected data. Therefore, there is nothing in the remote crime scene investigation that "affected the authenticity of electronic data" under Article 28 of the "Provisions," and it can be used as the basis for a judgment.
Regarding the relevant opinions of Appellant and defense counsel that "the content posted falls under the scope of freedom of speech, and online platforms are not public venues with respect to the crime of disturbing the peace," this Court finds that freedom of speech is a basic right of citizens under China's Constitution, but the exercise of any rights must not exceed the boundaries of the law. Although network platforms are virtual spaces, their primary function is the interaction between people, which is inseparable from real society. Actions taken in cyberspace must necessarily also map to real society. Cyberspace and cyber-order are forms of public venues and public order. Over an extended period of time appellant Zhu Chengzhi used foreign Internet platforms to disseminate a large amount of false information relating to significant domestic events that seriously damaged the image of the country and seriously harmed national interests, creating a disturbance and confusing public opinion. This far exceeded the scope of freedom of speech, and can be deemed to have caused a severe disruption of public order.
This Court finds that the facts in the judgment in the original trial were clear, the evidence was reliable and copious, and the law was applied accurately, and the sentence was appropriate. Appellant's appeal rationale and defense counsel's defense opinions cannot be established, and are not accepted. The written opinions of the People's Procuratorate of Suzhou are correct and shall be sustained. In accordance with the provisions of Article 236(1)(i) of the "Criminal Procedure Law of the People's Republic of China, the ruling is as follows:
The appeal is rejected and the judgment in the original trial is upheld. This ruling shall be the final ruling.
Chief Adjudicator Jia Zan
Adjudicator Wang Meixin
Adjudicator Wang Hao
December 19, 2000
There are no discrepancies between this copy and the original.
Clerk Shen Qi
江苏省苏州市中级人民法院
刑事裁定书
(2020)苏05刑终660号
原公诉机关苏州市吴中区人民检察院。
上诉人(原审被告人)朱承志,男,1950年[INTENTIONALLY DELETED]生,居民身份证号码[INTENTIONALLY DELETED],汉族,初中文化,无业,住湖南省邵阳市双清区宝东社区居民委员会[INTENTIONALLY DELETED]。因阻碍执行职务于2012年6月8日被邵阳市公安局大祥分局行政拘留十日;因扰乱公共秩序于2016年10月11日被邵阳市公安局双清分局行政拘留七日。因涉嫌犯寻衅滋事罪,于2018年4月30日被苏州市公安局吴中分局指定居所监视居住(同月29日到案),2018年10月29日以涉嫌犯煽动颠覆国家政权罪被苏州市公安局吴中分局刑事拘留,2018年11月12日以涉嫌犯寻衅滋事罪被逮捕。现羁押于苏州市第一看守所。
辩护人张磊,北京市同正函律师事务所律师。
辩护人刘海,北京市华一律师事务所律师。
苏州市吴中区人民法院审理苏州市吴中区人民检察院指控原审被告人朱承志犯寻衅滋事罪一案,于2020年7月31日作出(2019)苏0506刑初537号刑事判决。宣判后,原审被告人朱承志不服,提出上诉。本院受理后,依法组成合议庭,通过阅卷,讯问上诉人,听取江苏省苏州市人民检察院检察员及辩护人的意见,认为本案事实清楚,决定不开庭审理。现已审理终结。
原判决认定,2010年以来,被告人朱承志通过境外网络平台Twitter和Facebook,大量散布严重损害国家形象、严重危害国家利益的虚假信息,起哄闹事,混淆视听,造成公共秩序严重混乱。具体事实如下:
1. 2010年3月以来,被告人朱承志利用其在境外网络平台Twitter注册的账号,长期诋毁我国政治制度,发布严重损害国家形象、严重危害国家利益的虚假言论或图片。其中直接攻击我国国家领导人和政治制度的虚假信息达140余条,累计转发700余次,累计点赞1290余次。
2. 2014年以来,被告人朱承志利用其在境外网络平台Facebook注册的账号,长期诋毁我国政治制度,发布严重损害国家形象、严重危害国家利益的虚假言论或图片。其中直接攻击我国国家领导人和政治制度的虚假信息达50余条,累计被分享、评论40余次,累计被点赞150余次。
3. 被告人朱承志利用上述其在境外网络平台Twitter和Facebook注册的账号,恶意炒作“建三江事件”、“庆安事件”、“雷洋事件”等国内重大事件,在官方消息公布之后,仍编造谣言、歪曲事实,发布大量虚假言论和图片。
其中,2016年4月28日,被告人朱承志至江苏省苏州市吴中区木渎镇,同月30日在吴中区木渎镇登录Facebook账号,并发出攻击国家机关的帖子。
原审认定上述事实的证据有抓获经过、扣押物品、文件清单、电子证物检查工作记录、电子数据检查工作记录、提取笔录、远程勘验工作记录、证人王明贤、倪金芳的证言、户籍证明、行政处罚决定书等。
原审法院认为,被告人朱承志在境外社交网络上大量散布涉及国内重大事件、严重损害国家形象、严重危害国家利益的虚假信息,起哄闹事,混淆视听,造成公共秩序严重混乱,其行为已构成寻衅滋事罪。依照《中华人民共和国刑法》第二百九十三条第一款第(四)项之规定,以寻衅滋事罪判处被告人朱承志有期徒刑三年六个月。
上诉人朱承志及辩护人的上诉理由及辩护意见为:1.苏州市吴中区司法机关对本案不具有管辖权。2.本案的远程勘验没有见证人,部分的远程勘验没有审批手续,收集证据的程序违反刑事诉讼法的规定,不应作为定案依据。3.上诉人没有编造信息或者明知是虚假信息继续散布,所发内容属于言论自由的范畴,Facebook和Twitter也不是寻衅滋事罪中的公共场所,上诉人的行为没有造成公共秩序的严重混乱。综上,请求改判上诉人朱承志无罪。
江苏省苏州市人民检察院检察员出具书面意见认为,原判认定事实清楚,证据确实、充分,审判程序合法,量刑适当,上诉人的上诉理由不成立,建议驳回上诉,维持原判。
经二审审理查明的事实与原审判决认定的事实一致,且全部证据均经原审庭审举证、质证,证据之间能够相互印证,具有证明效力,本院予以确认。
对上诉人及辩护人提出的意见,综合全案事实及证据,本院综合评判如下:
对上诉人及辩护人提出“吴中区司法机关对本案不具有管辖权”的相关意见,经查,上诉人朱承志在2016年4月30日登陆Facebook账号发出攻击国家机关的帖子,定位显示在本市吴中区木渎镇,吴中区系上诉人朱承志实施网络犯罪的网络接入地,根据《中华人民共和国刑事诉讼法》及《最高人民法院、最高人民检察院、公安部关于办理网络犯罪案件适用刑事诉讼程序若干问题的意见》的规定,吴中区是本案的犯罪地,属地司法机关对本案具有管辖权。
对上诉人及辩护人提出“本案的证据收集程序违反刑事诉讼法的规定,不能作为定案依据”的相关意见,本院认为:
第一,对远程勘验审批的问题。经查,一审庭审时公诉人已对作为证据使用的远程勘验工作记录举证出示了相应的呈请审批报告书。
第二,对远程勘验见证人的问题。根据《最高人民法院、最高人民检察院、公安部关于办理刑事案件收集提取和审查判断电子数据若干问题的规定》的规定,由于客观原因无法由符合条件的人员担任见证人的,应当在笔录中注明情况,并对相关活动进行录像。
本院认为,因涉案的发文信息涉及诋毁国家党政制度,由见证人在场不可避免会造成不必要的二次传播,属于《规定》中的“客观原因”范畴。在案的远程勘验工作记录中已对上述情况进行了记载和说明,同时对远程勘验的全过程进行了同步屏幕录像,并设置了校验码以供核验,能够保证远程勘验过程及提取数据的真实性,故本案的远程勘验不具有《规定》第28条“影响电子数据真实性”的情形,可以作为定案的依据。
对上诉人及辩护人提出“所发内容属于言论自由范畴以及网络平台不是我国寻衅滋事罪中的公共场所”的相关意见,本院认为,言论自由是我国宪法规定的公民的一项基本权利,但是任何权利的行使都不得超出法律的边界。网络平台虽为虚拟空间,但其重要功能是人与人之间的交互,与现实社会密不可分,在网络空间的行为也必将映射、影响到现实社会中来,网络空间和网络秩序属于公共场所和公共秩序的一种形态,上诉人朱承志长期在境外网络平台上大量散布涉及国內重大事件、严重损害国家形象、严重危害国家利益的虚假信息,起哄闹事,混淆视听,已远超言论自由的范畴,可以认定造成公共秩序严重混乱。
本院认为,原审判决认定事实清楚,证据确实、充分,适用法律准确,量刑适当,审判程序合法,上诉人的上诉理由及辩护人的辩护意见不能成立,不予采纳。江苏省苏州市人民检察院检察员的书面意见正确,应予支持。依照《中华人民共和国刑事诉讼法》第二百三十六条第一款第(一)项之规定,裁定如下:
驳回上诉,维持原判。本裁定为终审裁定。
审判长 贾赞
审判员 王美新
审判员 王浩
二00年十二月十九日
本往与原本该对无异
书记员 沈琦
