Tuesday, October 28, 2003

Translation: State v. Zheng Enchong - Disclosing State Secrets

 NOTE: This post was published on December 6, 2020, but this post is dated the date the court judgment was issued in order to prevent confusion.

No. 2 Intermediate People's Court of Shanghai

Criminal Judgment

(2003) Hu No. 2 Intermediate Criminal No. 1361


The public prosecution agency was the People's Procuratorate of Shanghai Branch No. 2.

Appellant (defendant at trial) Zheng Enchong, male, born [INTENTIONALLY DELETED IN THIS CASEBOOK], 1950 in Shanghai, Han ethnicity, college graduate, formerly a worker at the Shanghai Minjian Law Firm, residing at [INTENTIONALLY DELETED IN THIS CASEBOOK], Shanghai, household registration at [INTENTIONALLY DELETED IN THIS CASEBOOK], Shanghai. He was taken into criminal detention on June 6, 2003 in connection with this case, and was arrested on June 18 of the same year. He is currently being held in custody at the Shanghai Detention Center.

Defense counsel Guo Guoting is a lawyer at the Shanghai Tianyi Law Firm.

Defense counsel Zhang Sizhi is a lawyer at the Beijing Wuluan Zhaoyan Law Firm.

In the Hu 2nd Division Criminal Indictment 1 (2003) No. 91 indictment the People's Procuratorate of Shanghai Branch No. 2 charged defendant Zheng Enchong with committing the crime of illegally providing state secrets, and on August 15, 2003 filed a public prosecution with this Court. This Court formed a collegial panel in accordance with the law, and because this case implicated state secrets, tried this case in closed court in accordance with the law. The People's Procuratorate of Shanghai Branch No. 2 appointed Procurators Yuan Hanjun and Wang Li, and Deputy Procurator Xu Jing to appear in court in support of the public prosecution. Defendant Zheng Enchong and his defense counsels Guo Guoting and Zhang Sizhi appeared in court to participate in the proceedings. The case was extended for one month in accordance with the law, and the trial has now concluded.

The People's Procuratorate of Shanghai Branch No. 2 charged:

In the latter part of May 2003, after defendant Zheng Enchong learned secrets from a police officer surnamed Xu that the Shanghai public security agency was dealing with emergencies arising from a sudden mass incident at the Shanghai Yimin Food Products Factory, he took notes, organized them, and on the morning of the 23rd, faxed a hand-written draft that included the aforementioned secrets from his residence at Puyuan Road to the organization Human Rights in China in New York. In order to ensure these secrets were received, that night Zheng Enchong also sent the aforementioned secrets to Human Rights in China via email. Based on the forensics of the State Secrets Bureau of Shanghai the aforementioned secrets are classified as "Confidential" state secrets.

On May 28, 2003, defendant Zheng Enchong, faxed a copy of the article "Forced Demolitions Lead to Clashes, Reporters Attacked While Conducting Interviews" copied from the Xinhua News Agency's "Internal Reference Selections" Issue 17, 2003, from his residence at Puyuan Road to Human Rights in China. On the copy it is clearly written in Zheng's own handwriting: "Xinhua News Agency internal material, I hope you can use it." Based on the forensics of the State Secrets Bureau of Shanghai the aforementioned secrets are classified as "Confidential" state secrets.

The People's Procuratorate of Shanghai Branch No. 2 transferred to this Court evidence confirming the aforementioned facts including documentary evidence, witness testimony, and defendant Zheng Enchong's statement, alleging that defendant Zheng Enchong's actions constitute an offense under the provisions of Article 111 of the "Criminal Law of the People's Republic of China," and requesting that he be held criminally liable for illegally providing state secrets to a foreign organization.

Defendant Zheng Enchong and his defense counsels do not dispute the facts charged by the public prosecution agency that Zheng provided the aforementioned documents to a foreign organization. They do, however, offer the defense that Zheng Enchong was not aware that the aforementioned documents were state secrets; that he did not have the intent to provide state secrets abroad, that the foreign organization did not actually receive the documents provided by Zheng, and given that there were no consequences, the crime the public prosecution agency charged Zheng Enchong with cannot be established.

It was ascertained at trial:

On May 28, 2003, defendant Zheng Enchong, at his residence at Puyuan Road, wrote "Xinhua News Agency internal material, I hope you can use it. Zheng" on  a copy of the article "Forced Demolitions Lead to Clashes, Reporters Attacked While Conducting Interviews" that he had obtained from the Xinhua News Agency's "Internal Reference Selections" Issue 17, 2003. Afterwards he faxed it to the organization "Human Rights in China" in New York, USA. The copy was obtained by public security agencies after the case commenced, and based on the forensics of the State Secrets Bureau of Shanghai the "Forced Demolitions Lead to Clashes, Reporters Attacked While Conducting Interviews" material is classified as "Confidential" state secrets.

In addition, in the latter part of May 2003, defendant Zheng Enchong organized and wrote up information he had obtained regarding Shanghai public security agencies dealing with sudden mass incidents and faxed and emailed them to a foreign organization.

Evidence substantiating the aforementioned facts:

Witness Xue Minchun confirmed that, because Zheng Enchong gave Xue an article about Zheng being interviewed to provide to foreign media, in January 2003 Xue sent the article to the organization "Human Rights in China" in New York, USA, and thereafter received a faxed reply from the organization with Liu Qing's signature. Xue Minchun showed Zheng this fax and informed Zheng that the organization "Human Rights in China" in New York, USA would contact him, and Zheng made a copy and kept it.

A copy of the fax with the marginalia  "Liu Qing, 2003.1.29" from the organization "Human Rights in China" in New York, USA, displayed the organization's phone number, fax number, and that Liu Qing's assistant is a Mr. Jiao.

The State Security Bureau of Shanghai produced the "Materials Relating to the Identification of Human Rights in China, Human Rights in China Chairperson Liu Qing, and his assistant Jiao Baigu" which confirmed that Human Rights in China was established and has an office in New York, USA, Liu Qing is its Chairperson, and Jiao Baigu is assistant to the Chairperson.

Witness Zhao Hanxiang confirmed that at approximately 3 pm on May 28, 2003, he went to Zheng Enchong's residence and gave him a copy of Xinhua News Agency's "Internal Reference Selections."

Defendant Zheng Enchong's stated that "Internal Reference Selections" is an internal reference document, and may only be seen by high level public officials. Zheng also stated he contacted "Human Rights in China" and Jiao Baigu's phone numbers, fax numbers, and Jiao Baigu's email address. In addition, Zheng Enchong fully confessed to the fact that on May 28, 2003, he faxed a copy of the article "Forced Demolitions Lead to Clashes, Reporters Attacked While Conducting Interviews" from the Xinhua News Agency's "Internal Reference Selections" from his residence to the organization "Human Rights in China."

The public security agencies' "Search Record" and "Inventory of Seized Items and Documents" confirm that it found the Xinhua News Agency's "Internal Reference Selections" (Issue 17) article "Forced Demolitions Lead to Clashes, Reporters Attacked While Conducting Interviews" (with a handwritten notation on the top: "Jiao: Xinhua News Agency internal material, I hope you can use it. Zheng") at Zheng Enchong's residence at [INTENTIONALLY DELETED IN THIS CASEBOOK].

The Public Security Bureau of Shanghai "Documentary Investigation Forensic Report" confirmed that the handwriting on the aforementioned document copies has been verified as belonging to Zheng Enchong.

The "Evidentiary Materials" produced by the Xinhua News Agency Shanghai Bureau confirmed that that the article "Forced Demolitions Lead to Clashes, Reporters Attacked While Conducting Interviews" was written by the Bureau's reporters and was published in Issue 17 of the Xinhua News Agency's "Internal Reference Selections" on April 30, 2003.

The State Secrets Bureau of Shanghai confirmed in its "Manual for Secret Classification" that the material "Forced Demolitions Lead to Clashes, Reporters Attacked While Conducting Interviews" which Zheng Enchong transmitted abroad was derived from "Internal Reference Selections" (Secret) Issue 17,  2003, and was classified as state secrets at the level "Confidential."

The State Secrets Bureau "Response to Questions Regarding the State Secrets Bureau of Shanghai's Confirmation of the Classification of Secrets in the Zheng Enchong Case" confirmed that the aforementioned secret classification remains in effect.

Witness Xue Lili confirmed that on May 28, 2003 at Zheng Enchong's residence, he helped Zheng send multiple copies of the materials to a recipient surnamed Jiao.

The information in the Residential Telephone Registration Register provided by the Security Department of Shanghai Telecom Ltd. confirmed that the telephone number [INTENTIONALLY DELETED IN THIS CASEBOOK] is registered to Zheng Enchong and is installed at 8[INTENTIONALLY DELETED IN THIS CASEBOOK].

The telephone customer communications records produced by the Fixed Telephone Line Department of China Unicom Ltd. confirms that on May 28, 2003 there were multiple connections established between the telephone number [INTENTIONALLY DELETED IN THIS CASEBOOK] and the telephone number of the organization "Human Rights in China" in New York.

All of the foregoing evidence was produced, examined, and verified as factual in court, and is affirmed by this Court.

This Court finds that defendant Zheng Enchong illegally transmitted state secrets to an organization abroad, and that his actions constitute the commission of the crime of illegally providing state secrets under relatively minor circumstances. The offense charged by the public prosecution agency has been established.

In light of defendant Zheng Enchong's level of education, knowledge of society, and his profession, combined with Zheng's actions to draw other's attention such as his additional message "Xinhua News Agency internal material, I hope you can use it" faxed with the aforementioned article to the organization "Human Rights in China" in New York, as well as Zheng's statement after the case began that "Internal Reference Selections" is an internal reference document, and may only be seen by high level public officials, Zheng had the subjective intent to illegally provide state secrets abroad.

This Court gives no credence to the justifications and defense opinions proffered by Zheng and his defense counsels that Zheng did not clearly know that these were state secrets and that he did not intentionally transmit state secrets abroad.

Defendant Zheng Enchong's act of providing state secrets were socially harmful and considerations such as whether or not the foreign organization received them, or whether or not there was any actual harmful consequences to national interests do not influence the establishment of a crime. Therefore, the justifications and defense opinions proffered by Zheng and his defense counsel that the foreign organization never received the article provided by Zheng Enchong and as a result his actions did not have any consequences and do not constitute the commission of a crime are not accepted.

In order to maintain social order and safeguard national security, and in accordance with Articles 111, 56(1), 55(1), and 64 of the "Criminal Law of the People's Republic of China," and Articles 1, 4, and 5 of the "Supreme People's Court's Explanations Regarding Certain Questions Concerning the Specific Laws to be Used in Adjudicating Cases of Foreign Theft or Spying to Obtain, or Providing Illegally, State Secrets or Intelligence," the judgment is as follows:

1. Defendant Zheng Enchong committed the crime of illegally providing state secrets to a foreign organization and is sentenced to a fixed term imprisonment of three years and one year deprivation of political rights. (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 June 6, 2003 to June 5, 2006).

2. Tools verified as having been used in the commission of the crime and material implicating state secrets shall be 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 Shanghai. A written appeal should be submitted with one original and one copy of the appeal brief.

October 28, 2003

Chief Adjudicator: Shen Xingkai
Adjudicator: Wang Yuzhan
Acting Adjudicator: Jiang Zhengyu

Clerk: Dong Wei
Clerk: Li Shu

上海市第二中级人民法院

刑事判决书

(2003)沪二中刑初字第136号


公诉机关上海市人民检察院第二分院。

被告人郑恩宠,男,1950年[INTENTIONALLY DELETED IN THIS CASEBOOK]出生于上海市,汉族,大学文化程度,原系上海市敏鉴律师事务所工作人员,住本市[INTENTIONALLY DELETED IN THIS CASEBOOK],户籍所在地本市[INTENTIONALLY DELETED IN THIS CASEBOOK]。因本案于2003年6月6日被刑事拘留,同年6月18日被逮捕;现羁押于上海市看守所。

辩护人郭国汀,上海市天易律师事务所律师。

辩护人张思之,北京市吴栾赵阎律师事务所律师。

上海市人民检察院第二分院以沪检二分刑诉一字(2003)第91号起诉书指控被告人郑恩宠犯为非法提供国家秘密罪,于2003年8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,依法进行了不公开开庭审理。上海市人民检察院第二分院指派检察员袁汉钧、王利、代理检察员许靖出庭支持公诉,被告人郑恩宠及辩护人郭国汀、张思之到庭参加诉讼。本案依法延长审限一个月,现已审理终结。

上海市人民检察院第二分院指控:

被告人郑恩宠于2003年5月下旬,从民警徐某处获悉本市公安机关处置上海益民食品一厂突发性群体事件出警情况的秘密后,作了记录、整理,并于同月23日上午在其晋元路住处,以手写稿的形式将上述秘密传真给在美国纽约的"中国人权"组织。郑恩宠为确保该秘密送达,又于当晚将上述秘密以电子邮件的方式发送给"中国人权"组织。经上海市国家保密局鉴定,上述秘密属机密级国家秘密。

2003年5月28日,被告人郑恩宠在其晋元路住处,将新华社2003年第17期《内参选编》中的《强行拆迁引发冲突,记者采访遭遇围攻》一文的复印件传真给"中国人权"组织,并在该复印件上亲笔注明"新华社内参稿,望引用"。经上海市国家保密局鉴定,上述文件属秘密级国家秘密。

上海市人民检察院第二分院想本院移送了证实以上事实的书证、证人证言和被告人供述等证据,认为被告人郑恩宠的行为已触犯《中华人民共和国刑法》第一百一十一条的规定,提请以为境外非法提供国家秘密罪追究起刑事责任。

被告人郑恩宠及其辩护人对公诉机关指控郑将上述文稿提供给境外组织的事实不持异议,但均辩称郑恩宠不明知上述文稿属于国家秘密,也没有向境外提供国家秘密的故意,且境外组织并未收到郑提供的文稿,所以未造成后果,公诉机关指控郑恩宠的罪名不能成立。

经审理查明:

2003年5月28日,被告人郑恩宠在晋元路住处,在获得的新华社出版的《内参选编》2003年第17期中《强行拆迁引发冲突,记者采访遭遇围攻》一文的复印件上,加注"新华社内参稿,望引用。郑"等文字后,传真给在美国纽约的"中国人权"组织。该复印件在案发后被公安机关查获,经上海市国家秘密局鉴定,《强行拆迁引发冲突,记者采访遭遇围攻》的材料,属秘密级国家秘密。

此外,被告人郑恩宠还于2003年5月下旬,将获得的本市公安机关处置群体事件的出警情况整理成文,通过传真和以电子邮件的方式发送给境外机构。

证实上述事实的证据有:

证人薛民春证实,因郑恩宠把一篇有关郑的采访文章交薛民春向境外媒体提供,薛遂于2003年1月将该文章传真给了在美国纽约的"中国人权"组织,随后收到了该组织署名刘青的回复传真。薛民春便将该传真送给了郑恩宠看,并告知郑在美国纽约的"中国人权"组织会与其联系,郑复印了一份留下。

落款为"刘青2003.1.29"、在美国纽约的"中国人权"组织传真复印件上载明了该组织的电话号码、传真号码、刘青的助手是焦先生。

上海市国家安全局出具的《关于"中国人权"组织及"中国人权"主席刘青、主席助理焦柏固的证明材料》证实,"中国人权"组织是在美国纽约成立和办公的组织,由刘青任主席,焦柏固任主席助理。

证人赵汉祥证实,2003年5月28日下午3时许,赵至郑恩宠住处交给其一份新华社《内参选编》的复印件。

被告人郑恩宠供述,《内参选编》是内部参考文章,非高级别的公务人员是看不到的。郑还供述了其与"中国人权"组织及焦柏固联系的电话号码、传真号码、焦柏固的电子邮箱地址。此外,郑恩宠对其于2003年5月28日在住处把新华社《内参选编》中《强行拆迁引发冲突,记者采访遭遇围攻》一文,传真给"中国人权"组织的事实供认不讳。

公安机关的《搜查笔录》、《扣押物品、文件清单》证实,从本市[INTENTIONALLY DELETED IN THIS CASEBOOK]郑恩宠住处查获了新华社《内参选编》第17期中《强行拆迁引发冲突,记者采访遭遇围攻》一文的复印件(标有"焦:新华社内参稿,望引用。郑"的手写字体)。

上海市公安局的《文检鉴定书》证实,上述复印件上的手写字迹均是郑恩宠所写。

新华通讯社上海分社出具的《证明材料》证实,《强行拆迁引发冲突,记者采访遭遇围攻》一文系该分社记者采写,刊登于新华社出版的《内参选编》2003年4月30日第17期上。

上海市国家保密局的《秘密鉴定书》证实,郑恩宠向境外提供的《强行拆迁引发冲突,记者采访遭遇围攻》的材料,系出自《内参选编》(秘密级)2003年第17期,属于秘密级国家秘密。

国家保密局的《关于上海市保密局对郑恩宠案所作密级鉴定有关问题的复函》确认了以上密级鉴定为有效。

证人薛利里证实,其于2003年5月28日在郑恩宠住处帮助郑发送过多材料,收件人姓焦。

上海市电信有限公司保卫处提供的住宅电话注册登记信息证实,电话号码[INTENTIONALLY DELETED IN THIS CASEBOOK]的用户名为郑恩宠,装机地址为[INTENTIONALLY DELETED IN THIS CASEBOOK]。

中国联合通信有限公司数据与固定通信业务部提供的电话用户通讯记录清单证实,2003年5月28日,电话号码63804774与在美国纽约的"中国人权"组织电话号码之间曾有多次通讯联系。

以上证据均经当庭出示、质证,查证属实,本院予以确认。

本院认为,被告人郑恩宠将国家秘密非法传真给境外组织,其行为已构成为境外非法提供国家秘密罪,尚属情节较轻。公诉机关指控的罪名成立。根据被告人郑恩宠的文化程度、社会阅历及其所从事的职业,结合郑向在美国纽约的"中国人权"组织传真前述文章时特意加注"新华社内参稿,望引用"等文字以引起对方重视的行为,以及郑到案后曾作的《内参选编》是内部参考文章,非高级别公务人员看不到的供述,郑主观上具有为境外非法提供国家秘密的故意。故对郑恩宠及其辩护人提出的郑不明知国家秘密及没有向境外提供秘密之故意的辩解和辩护意见不予采信。被告人郑恩宠向境外提供国家秘密的行为,具有社会危害性,至于境外组织是否收到,损害国家利益的实际后果是否产生,并不影响本罪的成立。因此对郑恩宠及其辩护人关于郑恩宠提供的文章境外组织未收到,没有造成后果,不构成犯罪的辩解和辩护意见不予采纳。为维护社会秩序,保卫国家安全,依照《中华人民共和国刑法》第一百一十一条、第五十六条第一款、第五十六条第一款、第五十五条第一款、第六十四条以及《最高人民法院关于审理为境外窃取、刺探、收买、非法提供国家秘密、情报案件具体应用法律若干问题的解释》第一条、第四条、第五条之规定,判决如下:

一.   被告人郑恩宠犯为境外非法提供国家秘密罪,判处有期徒刑三年,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,羁押翌日折抵刑期一日,即自二00三年六月六日起至二00六年六月五日止)。

二。查获的犯罪工具、涉及国家秘密的材料等予以没收。

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上海市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,副本一份。

审判长        沈行恺
审判员        王宇展
代理审判员    蒋征宇

二00三年十月二十八日

书记员        董  玮
书记员        李  姝


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