Friday, June 25, 2021

Translation: Judgment in Case of Man Jailed Seven Months for T-Shirt Commemorating Tiananmen

Details of this case, including photographs of Dong Zehua's activities in Tiananmen Square, can be found in this article from the Los Angles Times:  "He Tried to Commemorate Erased History. China Detained Him, Then Erased That Too" - https://www.latimes.com/world-nation/story/2021-06-24/china-world-history-erasure-youth-censorship

See also: "Judgment in Case of Woman Jailed Six Months for T-Shirt Commemorating Tiananmen" - http://blog.feichangdao.com/2021/06/woman-jailed-commemorating-tiananmen-judgment.html.

People's Court of Dongcheng District, Beijing
Criminal Judgment
(2019) Jing 0101 Criminal First Instance No. 789


The public prosecution agency was the People's Procuratorate of Dongcheng.

Defendant Dong Zehua, male, born May 7, 1991 in Xi'an, Shaanxi, Citizen ID No. XXX, Han ethnicity, undergraduate degree, unemployed, household registration location: Weiyang District, Xi'an, Shaanxi. On June 4, 2019, he was detained on suspicion of committing the crime of disturbing the peace. He was taken into custody on June 4, 2019, and was arrested on July 12 of the same year. He is currently being held in custody at the Beijing Dongcheng District Detention Center.

Defense counsel Qi Jie is a lawyer at the Beijing Weiheng Law Firm.

Defendant Yuan Shuai, male, born July 27, 1995 in Manzhouli, Inner Mongolia Autonomous Region, Citizen ID No. XXX, Han ethnicity, undergraduate degree, an employee of the Zhongshi Jinxin Advertising Co., Ltd. before the incident, household registration location: Manzhouli, Inner Mongolia Autonomous Region, now residing in Haidian District, Beijing. On June 4, 2019, he was detained on suspicion of committing the crime of disturbing the peace. He was taken into custody on June 4, 2019, and was arrested on July 12 of the same year. He is currently being held in custody at the Beijing Dongcheng District Detention Center.

Defense counsels Zhu Kefei and Rong Fangqing (trainee lawyer) are lawyers at the Beijing Contemporary Law Firm.

In the Jing Dong Procuratorate Public Criminal Prosecution (2019) No. 1698 indictment the People's Procuratorate of Dongcheng charged defendants Dong Zehua and Yuan Shuai with committing the crime of disturbing the peace, and on October 11, 2019 filed a public prosecution with this Court. In accordance with the law this Court utilized simplified procedures, held a single trial, and tried the case in open court. The People's Procuratorate of Dongcheng assigned Procurator Tong Jie to appear in court in support of the public prosecution, and defendant Dong Zehua and his defense counsel Qi Jie and defendant Yuan Shuai and his defense counsels Zhu Kefei and Rong Fangqing appeared in court to participate in the litigation. The trial has now concluded.

The public prosecution agency charged:

At 9:00 am on June 4, 2019, defendant Dong Zehua was wearing a T-shirt with sensitive markings on it and took photos in Tiananmen Square and posted the photos online. Defendants Dong Zehua and Yuan Shuai interviewed foreigners in Tiananmen Square and made inquiries into sensitive topics. After being taken into police custody, he voluntarily and truthfully made a statement about his crimes.

The public prosecution agency applied the procedure of pleading guilty and accepting punishment in referring the case to this Court, and proposed in writing that defendants Dong Zehua and Yuan Shuai should be punished with a sentence of a fixed term imprisonment of six months to one year.

Defendant Dong Zehua and his defense counsel raised no objections to the aforementioned facts during hearings at trial. In addition, these facts were substantiated by the process of how the defendant came into police custody, stolen goods recovery reports, job descriptions, witness Gao Doe's testimony, identification transcripts, Seizure Decisions, seizure transcripts, seized items lists, search transcripts; forensic opinions, on-site inspection reports, drug test processing forms, audiovisual materials, and defendants Dong Zehua's and Yuan Shuai's statements and household registration materials, which are sufficient to reach a determination.

Dong Zehua's defense counsel's defense opinion: After being taken into police custody defendant Dong Zehua was able to make a truthful statement of the criminal facts and confess his crime in court. He is a penitent first-time offender, and it is recommended he be shown leniency.

Yuan Shuai's defense counsels' defense opinion; After being taken into police custody defendant Yuan Shuai was able to make a truthful statement of the criminal facts and confess his crime in court. He has adopted a good attitude and is a first-time offender and in the joint crime he played a subordinate role, and it is recommended he be shown leniency.

This Court finds defendants Dong Zehua and Yuan Shuai disregarded national law, caused a disturbing incident in a public venue, and created serious chaos in a public venue. Their actions disrupted normal social management order, and constitute the commission of the crime of disturbing the peace, and in accordance with the law shall be punished.

The facts charged by the People's Procuratorate of Dongcheng are clear, the evidence it produced is reliable and copious, the offense charged is established, and the recommended sentence is appropriate.

With regards to defense counsel's defense opinion that defendant Yuan Shuai played a subordinate role in a joint crime, this Court finds that after the two defendants met they formed a joint criminal intent, the only distinction was a mere division of labor into different tasks, and they were both active participants in the commission of the joint crime. It would be inappropriate to distinguish between who was the leader and who was the subordinate, and that defense opinion is not accepted by this Court.

In view of the fact that after being taken into police custody the two defendants made truthful statements and voluntarily plead guilty in court, and that they are both first-time offenders, this Court will show leniency to the two defendants.

This Court accepts the public prosecution agency's leniency recommendation and the defense counsels' relevant defense opinions. Accordingly, in accordance with the provisions of Articles 293(1), 25(1), 67(3), and 64 of the "Criminal Law of the People's Republic of China" and Article 5 of the "Supreme People's Court's Interpretation Regarding Certain Questions About the Specific Laws to be Used in Adjudicating Criminal Cases of Illegal Publications," this Court's judgment regarding defendants Dong Zehua and Yuan Shuai is as follows:

1. Defendant Dong Zehua committed the crime of disturbing the peace, and is sentenced to a fixed term imprisonment of seven 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 June 4, 2019 to January 3, 2020.)

2. Defendant Yuan Shuai 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 June 4, 2019 to December 3, 2019.)

3. The tools used in the commission of the offense that were seized shall be confiscated by the agency responsible for seizing them in accordance with the law.

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 No. 2 Intermediate People's Court of Beijing. A written appeal should be submitted with one original and two copies of the appeal brief.

Adjudicator        Bai Chongwei

October 30, 2019

Clerk            Luo Yejun

北京市东城区人民法院
刑事判决书
(2019)京0101刑初789号


公诉机关北京市东城区人民检察院。

被告人董泽华,男,1991年5月7日出生于陕西省西安市,公民身份号码:XXX,汉族,大学本科文化,无业,户籍所在地:陕西省西安市未央区。因涉嫌犯寻衅滋事罪,于2019年6月4日被羁押,同年7月12日被逮捕,
现羁押在北京市东城区看守所。

辩护人齐捷,北京市炜衡律师事务所律师。

被告人原帅,男,1995年7月27日出生于内蒙古自治区满洲里市,公民身份号码:XXX,汉族,大学本科文化,案发前系中视金鑫广告有限公司员工,户籍所在地:内蒙古自治区满洲里市,现住北京市海淀区。因涉嫌犯寻衅滋事罪,于2019年6月4日被羁押,同年7月12日被逮捕,现羁押在北京市东城区看守所。辩护人朱克非、荣方情(实习律师),北京市当代律师事务所律师。

北京市东城区人民检察院以京东检公诉刑诉[2019]698号起诉书指控被告人董泽华、原帅犯寻衅滋事罪,于2019年10月11日向本院提起公诉。本院依法适用简易程序,实行独任审判,公开开庭审理了本案。北京市东城区人民检察院指派检察员佟捷出庭支持公诉,被告人董泽华及其辩护人齐捷、被告人原帅及其辩护人朱克非、荣方情到庭参加了诉讼。现已审理终结。

公诉机关指控:

2019年6月4日9时许,被告人董泽华身穿带有敏感标志的T恤衫,在天安门广场拍摄照片,并将照片发到网上。被告人董泽华、原帅在天安门广场,采访外国人询问敏感话题,并拍摄视频,后被民警抓获。二被告人到案后自愿如实供述自己的罪行。

公诉机关适用认罪认罚程序将本案诉至本院,并书面建议对被告人董泽华、原帅在有期徒刑六个月至一年幅度内判处刑罚。

上述事实,被告人董泽华及其辩护人在开庭审理过程中无异议,并有到案经过,起赃报告;工作说明;证人高某的证言;辨认笔录;扣押决定书、扣押笔录、扣押物品清单、搜查笔录;鉴定意见;现场检测报告书、毒检流程表;视听资料;被告人董泽华、原帅的供述及户籍材料予以证实,足以认定。

董泽华辩护人的辩护意见:被告人董泽华到案后能够如实供述犯罪事实,当庭认罪、悔罪且系初犯;建议法庭对其从轻处罚。

原帅辩护人的辩护意见;被告人原帅到案后能够如实供述犯罪事实认罪态度良好且系初犯,在共同犯罪中起辅助作用;建议法庭对其从轻处罚。

本院认为,被告人董泽华、原帅无视国法,在公共场所制造事端起哄闹事,造成公共场所秩序严重混乱,其行为妨害了正常的社会管理秩序,均已构成寻衅滋事罪,依法应予惩处。北京市东城区人民检察院指控的事实清楚,举证确实、充分,指控的罪名成立,量刑建议适当。辩护人关于被告人原帅在共同犯罪中起辅助作用的辩护意见,本院认为二被告人见面后产生共同犯意,只是分工不同,在共同犯罪中均积极主动,不宜区分主从,此点辩护意见本院不予采纳。鉴于二被告人到案后均能如实供述,当庭自愿认罪,均系初犯,本院对二被告人从轻处罚。公诉机关的量刑建议及辩护人相关辩护意见,本院予以采纳。据此,本院对被告人董泽华、原帅依照《中华人民共和国刑法》第二百九十三条第一款第(四)项,第二十五条第一款,第六十七条第三款,第六十四条及最高人民法院、最高人民检察院《关于办理寻衅滋事刑事案件具体应用法律若干问题的解释》第五条之规定,判决如下:

一、被告人董泽华犯寻衅滋事罪,判处有期徒刑七个月。
(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6月4日起至2020年1月3日止。)

二、被告人原帅犯寻衅滋事罪,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6月4日起至2019年12月3日止。)

三、在案扣押的作案工具,由扣押机关依法没收。

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北京市第二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,副本二份。

审判员        白崇伟

二0一九年十月三十日

书记员        罗也君

 

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