Friday, January 6, 2023

Translation: Wang Yuwen & Wang Liqin Inciting Subversion Court Judgment

Intermediate People's Court, Chuxiong Yi Autonomous Prefecture, Yunnan


Criminal Judgment


(2020) Yun 23 Criminal First Instance No. 48


The public prosecution agency was the People's Procuratorate of Chuxiong Yi Autonomous Prefecture.

Defendant Wang Yuwen, male, born [Intentionally Omitted], 1985, Han ethnicity, from Dayao County, Yunnan, junior college education, residing at Room 602, Unit 1, Building 1, Jiang'an Shangpin District, Donggua Town, Weichu Avenue, Chuxiong. On May 31, 2020, he was taken into criminal detention by the Public Security Bureau of Chuxiong Prefecture in connection with this case, and on July 3 of the same year he was arrested. He is currently being held in detention at the Chuxiong Detention Center.

Defense counsel Zhang Lei is a lawyer at the Beijing Tongling Zhengxin Law Firm.

Defendant Wang Liqin, female, born [Intentionally Omitted], 1984, Han ethnicity, from Gounan County, Jiangsu, high school education, residing at Room 602, Unit 1, Building 1, Jiang'an Shangpin District, Donggua Town, Weichu Avenue, Chuxiong. On June 17, 2020 she was taken into criminal detention by the Public Security Bureau of Chuxiong Prefecture, and on July 7 of the same year she was arrested. She is currently being held in detention at the Chuxiong Detention Center.

Defense counsel Zhang Tingyuan is a lawyer at the Chongqing Junrong Law Firm.

In the Chuzhou Procuratorate Second Division Criminal Indictment (2020) No. 11, the People's Procuratorate of Chuxiong Yi Autonomous Prefecture charged defendant Wang Yuwen and Wang Liqin committed the crime of inciting subversion of state power, and it filed a public prosecution with this Court on December 15, 2020. This Court formed a collegial panel in accordance with the law, and because this case implicated state secrets, on December 15, 2021 it tried this case in closed court. The People's Procuratorate of Chuxiong assigned Procurators Ma Xiaodou and Zhang Shaohong to appear in court in support of the public prosecution, and defendant Wang Yuwen and his defense counsel Zhang Lei and defendant Wang Liqin and her defense counsel Zhang Tingyuan appeared in court to participate in the proceedings. Following discussions and the decisions of this Court's adjudicative committee, the trial has now concluded.

The public prosecution agency charged that from 2016 to January 2020, defendant Wang Yuwen used manufacturing rumors and defamation to incite subversion of state power and overthrow the socialist order, made statements under the name "Wang Zang" on foreign websites and the Independent Chinese Writers PEN website that attacked the Party and the government, distributed articles that smeared the State regime socialist system, and on several occasions gave interviews to foreign media and distributed and reposted poems, articles, and images on foreign websites that attacked the Party and the government, and smeared the State regime and socialist system. Defendant Wang Liqin participated and helped Wang Yuwen organize some of the articles and materials that incited subversion of state power and the overthrow the socialist order, and took photos. The evidence determining the aforementioned facts has been proven by physical and documentary evidence, forensic opinions, crime scene investigations, investigation records, audio-visual materials, electronic data, and the defendants' statements and justifications.

The public prosecution agency alleged that defendants Wang Yuwen and Wang Liqin used manufacturing rumors and defamation to incite subversion of state power and overthrow the socialist order, and that the acts of these two individuals were the commission of an offense under the provisions of Articles 105, 25, 26, and 27 of the "Criminal Law of the People's Republic of China," that criminal facts are clear, the evidence is reliable and copious, and they should bear criminal liability for committing the crime of inciting subversion of state power. The two were joint offenders, with Wang Yuwen playing the primary role in the commission of the crime, and he was the principal offender. The public prosecution agency submitted a sentencing recommendation that Wang Yuwen be sentenced to a fixed term imprisonment of four years and deprivation of political rights, and that Wang Liqin be sentenced to a fixed term imprisonment of two years and deprivation of political rights.

Defendant Wang Yuwen argued that his speech was merely extreme, and it did not constitute the commission of a crime. His defense counsel proffered the defense opinion that Wang Yuwen's distribution of articles and poems on foreign websites and giving interviews to foreign broadcasters did not constitute the commission of the crime of inciting subversion of state power.

Defendant Wang Liqin argued that her speech was merely extreme, and it did not constitute the commission of a crime. Her defense counsel proffered these defense opinions:

1. Wang Liqin did not participate in Wang Yuwen's creation, use ,and release of the articles and materials involved in the case, and only provided general labor services.

2. In this case there were no case opening materials with respect to Wang Liqin. Therefore, the investigation activities in this case violated procedures, and the materials thus obtained should be excluded as illegal evidence.

3. The Seizure Decision stated that the public security agency only seized Wang Liqin's gold Apple mobile phone. However, the electronic data inspection records showed that Wang Liqin also holds a white Apple mobile phone, the source of which is unknown, and the electronic data inspection records cannot be used as the basis for concluding the case.

Wang Liqin's actions should not bear criminal liability, and if Wang Liqin is found to have committed a crime, she requests to be exempted from criminal punishment.

It was ascertained at trial that from 2016 to January 2020, defendant Wang Yuwen did, in an attempt to   incite subversion of state power and overthrow the socialist order, on many occasions distribute, repost, and disseminate articles, poems, and images under the name "Wang Zang" on foreign media including foreign broadcasters and the Independent Chinese Writers PEN website that attacked the State regime and socialist system and denigrated the Party and the government, and gave interviews to foreign media and made statements that smeared and denigrated the Party and the State. Wang Yuwen was also elected as the president of the Independent Chinese Writers PEN in June 2018. Under the instruction and guidance of Wang Yuwen, defendant Wang Liqin participated and helped Wang Yuwen organize and photograph some of the articles, poems, pictures, and photos inciting subversion of state power and the overthrow the socialist order.

The aforementioned facts were determined by the following evidence:
1. The case registration form, petition to open a case report, Decision to Open a Case, apprehension process, case clue origins and case resolution circumstances confirmed that on July 7, 2019, the Public Security Bureau of Chuxiong received a notification from its superiors that Wang Yuwen was suspected of posting harmful information attacking the Party and the government on a foreign website. It subsequently opened a case investigation and obtained evidence of defendants Wang Yuwen and Wang Liqin committing crimes. The public security civil police apprehended Wang Yuwen and Wang Liqin on May 30 and June 17, 2020, respectively.
2. The proof of household registration from the Kaifa District police precinct of the Public Security Bureau of Chuxiong and the household registration summary and proof of household registration of the Sankou police precinct of the Guannan Public Security Bureau in Jiangsu confirmed identities of defendants Wang Yuwen and Wang Liqin and that Wang Liqin had no criminal record of illegal crimes in her place of household registration.

3. The call list provided by Chuxiong Branch of China Mobile Communications Group Yunnan Co., Ltd., confirmed that on June 17, 2020  the mobile phone number used by Wang Liqin and seized by the public security agency in accordance with the law was used to call the number displayed as Washington, District of Columbia, USA.

4. The Judicial Forensic Institute of the Second People's Hospital in Chuxiong Prefecture's Chu Second Department Judicial Forensic Institute (2020) Forensic Determination No. 028 Judicial Forensic Opinion and Forensic Opinion Notice confirmed that based on a forensic diagnosis, defendant Wang Liqin had full criminal capacity in this case. The public security agency has already notified defendant Wang Liqin of the forensic opinion.

5. Search records, search site orientation diagrams, search photos, and search lists confirmed that on May 30, 2020 public security civil police conduct a search at the residence of Wang Yuwen and Wang Liqin at Chuxiong Room 602, Unit 1, Building 1, Jiang'an Shangpin District, Donggua Town, Weichu Avenue, Chuxiong and seized 1 power bank, 1 CD, 2 SIM unlock cards, 3 SIM cards, 1 portable computer, 1 wallet, 1 purse, 1 "Lenovo" mobile phone, 1 "Laolefu" player , a rose gold iPhone 6S Plus, iPhone X with white back, an iPhone X with rose gold back, an iPhone 6A1586 with gold back, a white Samsung G9280, and a "Lenovo" mobile phone.

6. Identification records and photos confirmed that based on defendant Wang Yuwen's identification of 10 different mobile phones, he identified that the No. 2 and No. 5 Apple mobile phones were used by himself. Among them, the Apple 6S Plus mobile phone marked No. 2 was the mobile phone he used to accept foreign radio interviews, forward tweets, and publish poems.

7. Electronic data investigation records, crime scene investigation inspection photos, and remote crime scene investigation work records, confirmed that the public security agency collected relevant electronic data from the multiple mobile phones possessed by defendants Wang Yuwen and Wang Liqin, as well as on websites and other communications, businesses, and emails.

8. The Ministry of Public Security's Physical Evidence Forensic Center's Forensic Matter Affirmation, Public Physical Evidence Forensic (2020) No. 1183 Forensic Report, and Forensic Opinion Notification confirmed that based on forensics, the speaker in the sample audio file submitted for inspection was Wang Yuwen. The public security agency has notified defendant Wang Yuwen of the forensic opinion.

9. Defendants Wang Yuwen and Wang Liqin's identification of screen shots confirmed that the collected social media accounts and pages were those used by Wang Yuwen, that Wang Yuwen had given interviews to foreign broadcasters, and that the Independent Chinese PEN Center 2016 Award acceptance speech article was written by him.

10. Defendant Wang Yuwen's statement: I climbed the wall to the foreign Internet to browse information, and register on social media platforms. I now use two mobile phones and have two WeChat accounts. I gave interviews to foreign media many times under the name of the poet "Wang Zang." I posted photos on foreign social media that were taken by Wang Liqin at my behest using my phone. I am dissatisfied with the current social system in China. The acceptance speech of the Independent Chinese PEN Center was stored for me by Wang Li on the phone she was using. I published poems on my personal page under the name of "Wang," and Wang Liqin used her mobile phone to save them for me with goal of sharing these poems. She knew that I wrote articles and poems to be distributed on foreign media. The poems and drawings I published reflected my political stance and expressed my dissatisfaction with the Party and the State.

In addition, a letter of guarantee, a letter of repentance, a letter of remorse, and a letter of further repentance and reflection written by the other defendant Wang Yuwen confirmed that from July 2019 to August 2020, Wang Yuwen personally wrote a letter of guarantee and letters of repentance expressing his voluntary repentance and guaranteeing that he would abide by the law.

11. Defendant Wang Liqin's statements: I use two mobile phones and two WeChat accounts, my WeChat name is "Wang Li." In January, 2020, during Covid-19, because Wang Yuwen repeatedly posted negative news about the epidemic on foreign websites, the police went to Wang Yuwen's house and Wang Yuwen refused to open the door. Wang Yuwen asked me to take a video of the whole process with my mobile phone, and I posted this video in my WeChat circle of friends. The background photo of Wang Yuwen supporting Hong Kong's Occupy Central on the foreign website was taken by me for him. I share an ID with Wang Yuwen, which stores the materials I help Wang Yuwen organize. Everything that is in his phone is in my phone

The aforementioned evidence has been presented and examined in court, and its provenance was legal, the content was objectively factual and able to be mutually corroborated. It is affirmed by this Court and is sufficient to reach a determination.

This Court finds that over a long period of time and on many occasions defendant Wang Yuwen gave interviews to foreign media, and distributed, reposted, and disseminated articles, poems, images, photos, and statements on foreign websites and media that attacked the State regime and socialist system, and smeared and defamed the State regime. At the instigation and arrangement of Wang Yuwen, defendant Wang Liqin participated and assisted Wang Yuwen in organizing some of articles and images and taking some relevant photographs with the intent to incite subversion of state power. The actions of these two individuals constitutes the commission of the crime of inciting subversion of state power, and the criminal facts and offenses charged by public prosecution agency are established.

In the commission of this joint crime Wang Yuwen played the primary role and is the principal offender. Wang Liqin played a secondary role and is an accessory, and should be given a lighter punishment.

Wang Yuwen and Wang Liqin proffered the justification that their speech was merely extreme, and it did not constitute the commission of a crime. Wang Yuwen's defense counsel proffered the defense opinion that Wang Yuwen's distributing articles, poems on foreign networks and giving interviews to foreign broadcasters did not constitute the commission of the crime of inciting subversion of state power. Wang Liqin's defense counsel proffered the defense opinion that Wang Liqin only provided general labor services, and did not participate in Wang Yuwen's creation, use ,and release of the articles and materials involved in the case. These do not comport with the facts ascertained at trial, and are not accepted by this Court.

Defendant Wang Liqin's defense counsel proffered the defense opinion that there were no case opening materials in Wang Liqin's case, and therefore the investigation activities in this case violated procedures, and any materials obtain from that is illegal evidence that should be excluded. Based on an investigation, during its investigation the public security agency discovered defendant Wang Liqin was suspected of being a criminal accessory, and combined this case with an ongoing investigation, and this complied with the provisions of Article 21(2)(ii) and (iv) of the "Public Security Agency Procedures for Handling Criminal Cases." This defense opinion cannot be established.

Defendant Wang Liqin's defense counsel proffered the defense opinion that Seize Decision stated that the public security agency only seized one of Wang Liqin's gold Apple mobile phones, but the electronic data inspection records showed that Wang Liqin also had a white Apple mobile phone, and the origin of that mobile phone is not clear, and the electronic data inspection records cannot be used as a basis for a case determination. Based on an investigation, that mobile phone was taken into custody by the public security agency at the second defendant's residence, and after examining the electronic data on the mobile phone, it was found that the device's name was "Wang Liqin iphone," and in it was a record of the second defendant's usage. The electronic data inspection is an objective record of crime scene investigation inspection results. This defense opinion cannot be established.

In accordance with Wang Yuwen's and Wang Liqin's criminal facts and sentencing circumstances, this Court adopts a portion of the sentencing recommendations proffered by the public prosecution agency for the second defendant, and does not accept the defense opinion of innocence or immunity from criminal punishment proffered by the defense counsel for the second defendant.

On this basis, and in accordance with the provisions of Articles 105(2), 55, 56(1), 25(1), 26(1) and (4), 27, and 64 of the "Criminal Law of the People's Republic of China," the judgment is as follows:

1. Defendant Wang Yuwen committed the crime of inciting subversion of state power and is sentenced to a fixed term imprisonment of four years and two years deprivation of political rights. (The prison term is to be calculated starting on the day the judgment is executed, with one day of the sentence to be offset for each day being held in custody prior to the execution of this judgment, that is from May 31, 2020 to May 30, 2024.)

2. Defendant Wang Liqin committed the crime of inciting subversion of state power and is sentenced to a fixed term imprisonment of two years and six months, and one year deprivation of political rights. (The prison term is to be calculated starting on the day the judgment is executed, with one day of the sentence to be offset for each day being held in custody prior to the execution of this judgment, that is from June 17, 2020 to December 16, 2022.)

3. The 4 mobile phones transferred along with the case as the criminal tools are confiscated.

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 High People's Court of Yunnan. A written appeal should be submitted with one original and two copies of the appeal brief.
November 7, 2022

Chief Adjudicator Huang Nuxiong
Adjudicator Du Mei
Adjudicator Xu Xuelin

Judge's Assistant Chen Yunjiang
Clerk Wang Yanhong

云南省楚雄彝族自治州中级人民法院

刑事判决书

(2020)云23刑初48号


公诉机关楚雄彝族自治州人民检察院。

被告人王玉文,男,1985年8月12日出生,汉族,云南省大姚县人,大专文化,住楚雄市东瓜镇威楚大道江岸尚品小区1幢1单元602室。因本案于2020年5月31日被楚雄州公安局刑事拘留,同年7月3日被逮捕。现羁押于楚雄市看守所。

辩护人张磊,北京市同翎正函律师事务所律师。

被告人王利芹,女,1984年8月4日出生,汉族,江苏省灌南县人,高中文化,住楚雄市东瓜镇威楚大道江岸尚品小区1幢1单元602室。因本案于2020年6月17日被楚雄州公安局刑事拘留,同年7月24日被逮捕。现羁押于楚雄州看守所。

辩护人张庭源,重庆君融律师事务所律师。

楚雄彝族自治州人民检察院以楚州检二部刑诉[2020]11号起诉书指控被告人王玉文、王利芹犯煽动颠覆国家政权罪一案,于2020年12月15日向本院提起公诉。本院依法组成合议庭,因本案涉及国家秘密,于2021年12月15日不公开开庭审理了本案。楚雄州人民检察院指派检察员马晓斗、张绍宏出庭支持公诉,被告人王玉文及其辩护人张磊、被告人王利芹及其辩护人张庭源到庭参加诉讼。经本院审判委员会讨论决定,现已审理终结。

公诉机关指控,2016年至2020年1月,被告人王玉文以造谣、诽谤的方式煽动颠覆国家政权,推翻社会主义制度,在境外网站、独立中文作家笔会网站以“王藏”的名义发表散布攻击党和政府的言论,发表污蔑国家政权和社会主义制度的文章,并多次接受境外媒体采访,在境外网站发表和转载诗歌、文章、图片等攻击党和政府,污蔑国家政权和社会主义制度;被告人王利芹参与和帮助王玉文整理了部分煽动颠覆国家政权,推翻社会主义制度的文章、材料,拍摄了照片。认定上述事实的证据有物证、书证、鉴定意见、勘验、检查笔录、视听资料、电子数据、被告人供述和辩解等证据证明。

公诉机关认为,被告人王玉文、王利芹以造谣、诽谤的方式煽动颠覆国家政权,推翻社会主义制度,二人行为触犯了《中华人民共和国刑法》第一百零五条、第二十五条、第二十六条、第二十七条之规定,犯罪事实清楚,证据确实、充分,应当以煽动颠覆国家政权罪追究刑事责任;二人属共同犯罪,王玉文在犯罪中起主要作用,系主犯;王利芹在犯罪中起次要作用,系从犯。公诉机关还提出对王玉文判处有期徒刑四年,剥夺政治权利;对王利芹判处有期徒刑二年,剥夺政治权利的量刑建议。

被告人王玉文辩称其只是言语偏激,不构成犯罪。其辩护人提出:王玉文在外网上发表文章,诗歌,接受境外电台采访,不构成煽动颠覆国家政权罪的辩护意见。

被告人王利芹辩称其只是言语偏激,不构成犯罪。其辩护人提出:

1.王利芹没有参与王玉文的创作、使用和发布涉案文章、材料的行为,仅提供了一般性劳务工作。

2.本案没有王利芹的立案材料,故该案的侦查活动违反程序,由此获得的材料应作为非法证据予以排除。

3.扣押决定书中載明公安机关仅扣押了王利芹一部金色苹果手机,但电子数据检查记录显示王利芹还持有一部白色苹果手机,该手机来源不明,电子数据检查记录不能作为定案依据。王利芹的行为不应被追究刑事责任,并提出若认定王利芹构成犯罪,请求对其免予刑事处罚的辩护意见。

经审理查明,2016年至2020年1月,被告人王玉文在境外电台、独立中文作家笔会等境外媒体、网站以“王藏”的名义持续多次发表、转载、散布攻击国家政权和社会主义制度、诋毁党和政府的文章、诗歌、图片,接受境外媒体的采访,发表污蔑、诋毁党和国家的言论,企图煽动颠覆国家政权,推翻社会主义制度。王玉文还于2018年6月被选举为独立中文作家笔会会长。被告人王利芹在王玉文的授意、安排下,参与和帮助王玉文整理、拍摄了部分煽动颠覆国家政权,推翻社会主义制度的文章、诗歌、图片、照片、认定上述事实有下列证据:

1.受案登记表、呈请立案报告书、立案决定书、抓获经过、案件线索来源及侦破情况,证实2019年7月7日,楚雄市公安局接上级通报,王玉文涉嫌在境外网站上发布攻击党和政府的有害信息,后经立案侦查,获得被告人王玉文、王利芹的犯罪证据。2020年5月30日、6月17日,公安民警分别抓获王玉文、王利芹。

2.楚雄市公安局开发区派出所户口证明、江苏省灌南县公安局三口派出所户口摘抄及证明,证实被告人王玉文、王利芹的身份情况及王利芹在户口所在地没有违法犯罪记录。

3.中国移动通信集团云南有限公司楚雄市分公司提供的通话清单,证实公安机关于2020年6月17日依法扣押王利芹使用的苹果手机电话号码与归属地显示为美国哥伦比亚特区华盛顿的号码通话。

4.云南省楚雄州第二人民医院司法鉴定所楚二院司鉴所(2020)精鉴字第028号司法鉴定意见及鉴定意见通知书,证实经鉴定诊断,被告人王利芹在本案中具有完全刑事责任能力。公安机关已经将鉴定意见通知被告人王利芹。

5.搜查笔录、搜查现场方位示意图、搜查照片、扣押清单,证实2020年5月30日公安民警对王玉文、王利芹居住的楚雄市东瓜镇威楚大道江岸尚品小区1幢1单元602室进行搜查,扣押了充电宝1个、光盘1张、黑解卡2张、SIM卡3张、便携式电脑1部、钱夹1个、腰包1个、“联想”手机1部、“老乐福”播放器1部、玫瑰金苹果6Splus、背面为白色的苹果X、背面为玫瑰金的苹果X、背面为金色的苹果6A1586、白色三星G9280、“联想”手机各1部。

6.辨认笔录及照片,证实经被告人王玉文对10部不同手机进行辨认,辨认出2号和5号苹果手机是其本人使用,其中标号为2号的苹果6SPlus手机是其接受境外电台采访、转发推文和发表诗歌的手机。

7.电子数据检查笔录、勘验检查照片、远程勘验工作记录,证实公安机关对被告人王玉文、王利芹持有的多部手机和网站上以及其他通讯、商务、电子邮箱等提取相关电子数据。

8.公安部物证鉴定中心鉴定事项确认书、公物证鉴[2020]1183号鉴定书及鉴定意见通知书,证实经鉴定,送检的音频文件中说话人是送检样本中的王玉文。公安机关已经鉴定意见通知被告人王玉文。

9.被告人王玉文、王利芹对网页截图的辨认,证实提取的社交平台账号、主页系王玉文所用,王玉文曾多次接受境外电台采访,独立中文笔会2016年度获奖感言的文章是其撰写。

10.被告人王玉文供述:我翻墙到境外网络进行信息浏览,登陆社交平台。我现在使用两部手机,有两个微信,我以诗人“王藏”的名义多次接受境外媒体电话采访,在境外社交媒体上发由王利芹受我的指使使用我的手机拍摄形成的照片,我对中国现在的社会制度心存不满。独立中文笔会获奖感言是王利芹用自己使用的手机为我储存,我以“王”的名义在个人主页上发表了诗歌,由王利芹用手机为我储存,目的是为了共享该诗歌。她知道我撰写文章、诗歌是用来在境外媒体上发表的。我发表的诗歌、图画都反映了我的政治立场,表达我对党和国家的不满。

另被告人王玉文书写的保证书、悔过书、悔罪思想检讨书、再次悔过及思想反省书,证实王玉文分别于2019年7月至2020年8月间多次亲笔书写保证书及悔过书,表示自愿悔罪,保证自己会遵纪守法。

11.被告人王利芹供述:我使用着两部手机、两个微信账号,微信名“王丽”。2020年1月,新冠病毒期间,因王玉文多次在境外网站发布涉及疫情的负面消息,民警到王玉文家被王玉文拒绝开门,王玉文让我用手机拍摄了整个过程,我将这个视频发在了自己的微信朋友圈内,王玉文在境外网站上支持香港占中的背景的照片是我帮他拍摄的。我和王玉文共用一个ID,里面存储着我帮王玉文整理的材料,他手机里有的东西我的手机里都有。

上述证据经当庭举证、质证,来源合法,内容客观真实,能相互印证,本院均予以确认,足以认定。

本院认为,被告人王玉文长期持续多次接受境外媒体采访,在境外网站、媒体上发表、转载、散布攻击国家政权和社会主义制度的文章、诗歌、图片、照片、言论,污蔑、诽谤国家政权;被告人王利芹在王玉文授意、安排下,参与、帮助王玉文整理部分企图煽动颠覆国家政权的文章、图片,拍摄相关照片,二人行为均已构成煽动颠覆国家政权罪,公诉机关指控的犯罪事实和罪名成立。在共同犯罪中,王玉文起主要作用,系主犯;王利芹起次要作用,系从犯,应当从轻处罚。王玉文、王利芹提出其只是言语偏激,不构成犯罪的辩解;王玉文的辩护人提出王玉文在外网上发表文章、诗歌,接受境外电台采访,不构成煽动颠覆国家政权罪的辩护意见;王利芹的辩护人提出王利芹仅提供了一般性劳务工作,没有参与王玉文创作、使用和发布涉案文章、材料行为的辩护意见,与审理查明的事实不符,本院不予采纳。被告人王利芹的辩护人提出本案没有王利芹的立案材料,故该案的侦查活动违反程序,由此获得的材料应作为非法证据予以排除的辩护意见。经查,公安机关侦查中发现被告人王利芹涉嫌共同犯罪,将案件并案侦查,符合《公安机关办理刑事案件程序规定》第二十一条第二款(二)(四)项的规定,该辩护意见不能成立。被告人王利芹的辩护人提出扣押决定书中载明公安机关仅扣押了王利芹一部金色苹果手机,但电子数据检查记录显示王利芹还持有一部白色苹果手机,手机来源不明,电子数据检查记录不能作为定案依据的辩护意见,经查,该手机系公安机关在二被告人住所现场查获,在对手机进行电子数据检查后发现设备名称为“王利芹iphone”,且其中有二被告人使用的记录,电子数据检查是对勘验检查结果的客观记录,该辩护意见不能成立。根据王玉文、王利芹的犯罪事实和量刑情节,本院部分采纳公诉机关对二被告人提出的量刑建议,对辩护人提出二被告人无罪或免予刑事处罚的辩护意见不予采纳。据此,依照《中华人民共和国刑法》第一百零五条第二款、第五十五条第一款、第五十六条第一款、第二十五条第一款、第二十六条第一、四款、第二十七条、第六十四条之规定,判决如下:

一、被告人王玉文犯煽动颠覆国家政权罪,判处有期徒刑四年,剥夺政治权利二年。(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2020年5月31日起至2024年5月30日止。)

二、被告人王利芹犯煽动颠覆国家政权罪,判处有期徒刑二年六个月,剥夺政治权利一年。(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2020年6月17日起至2022年12月16日止。)

三、随案移送的作案工具4部手机予以没收。

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云南省高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,副本二份.

二零二二年十一月七日

审判长 黄怒雄
审判员 杜梅
审判员 徐学林

法官助理 陈云江
书记员 王燕红