Translator's Notes:
- The Chinese version was created by running images of the court judgment through OCR software. I have tried to proof the OCR version, but some errors in transcription may remain.
- Long Kehai is a Christian jailed for tweets that "insulted State leaders" and "denigrated the Party."
- Consistent with recent practice, the court said nothing about what content disturbed the peace, so below I have translated some of the last tweets he posted just before he was detained on August 1, 2022.
On June 12, 2022, Long was subjected to 10 days administrative detention for possession of materials that advocated terrorism and extremism for "viewing and commenting" on a video on WeChat. Shortly after his release he posted an image of the detention decision on Twitter saying:
"A video that exposes and criticizes the crimes of war against humanity is regarded as possessing items that promote violence and terror. This is putting every Internet user in mainland China in danger of being imprisoned at any time for no reason⚠️, it is really terrifying."
https://twitter.com/egdMcLfnT735D3z/status/1549285542529236992
On July 27, 2022, Long posted the following comment when someone tweeted a photoshopped image of Vladimir Putin and Xi Jinping engaged in a sex act:
"This kind of picture is indecent. One cannot let oneself be guided by hatred to live immersed in bitterness. Knowing Jesus Christ on the cross as the redemption sacrifice of love, the truth is in the love of the Lord! It is very valuable to have a brave and critical attitude towards any sinful people and things, but as a natural person, one should adopt a humanistic spirit of equality and respect for others. I'm an old fan! May the blessing of God and the love of Jesus Christ and the inspiration of the Holy Spirit be with you and your family!"
The following is Long's final tweet before his detention, posted on July 29, 2022:
"I just received a call. The State Security Bureau of Huixian County, Longnan, Gansu arrived in Baoji last night at one o'clock, and they're looking to arrange time to talk to me. What could be so urgent, its got me feeling uneasy. This kind of constant disturbance by the Party police has me at the end of my rope. Can't they let people in this country have some semblance of a normal life?"
https://twitter.com/egdMcLfnT735D3z/status/1552813095525171200
People's Court of Wei County, Gansu
Criminal Judgment
(2022) Gan 1227 Criminal First Instance No. 79
The public prosecution agency was the People's Procuratorate of Wei County.
Defendant Long Kehai, male, Han ethnicity, born June 1, 1996, resident identity card No. [INTENTIONALLY OMITTED], high school education, native of Jianyang, Sichuan, household registration No. 059, Jialing Village, Jialing Township, Huixian County, Longnan, Gansu, currently residing on the first floor of the staff building of Jialing Railway Station, Jialing Township, Huixian County, unemployed. On July 30, 2022, it was announced by the Public Security Bureau of Wei County that he was being taken into criminal detention on suspicion of committing the crime of disturbing the peace, and it executed taking him into criminal detention on August 1 of the same year. Based on an authorization by the People's Procuratorate of Wei County, he was arrested on August 12, 2022 by the Public Security Bureau of Wei County. He is currently being held in detention at the Wei County detention center.
On November 22, 2017, he was issued an administrative fine of 200 yuan by the Public Security Bureau of Wei County for making up fictitious facts that disrupted public order.
On June 28, 2018, he was subjected to 10 days administrative detention by the Public Security Bureau of Wei County for making up fictitious facts that disrupted public order.
On August 18, 2020, he was sentenced to a fixed term imprisonment of one year and six months by the People's Court of Weibin District, Baoji, Shaanxi for committing the crime of disturbing the peace. On September 20, 2020 he was released upon completion of his sentence.
On July 8, 2021, he was subjected to 10 days administrative detention by the Public Security Bureau of Wei County for making up fictitious facts that disrupted public order.
On June 12, 2022, he was subjected to 10 days administrative detention by the Public Security Bureau of Wei County for possession of materials that advocated terrorism and extremism.
Defense counsel Zhang Keke is a lawyer at the Hubei Penglai Law Firm.
In the Wei Procuratorate Criminal Indictment (2022) No. 65 indictment the People's Procuratorate of Wei County charged defendant Long Kehai committed the crime of disturbing the peace, and on October 20, 2022 it filed a public prosecution with this Court. Following an examination this Court applied standard procedures in accordance with the law and held public hearings at trial in this case. People's Procuratorate of Wei County Procurator Sang Yun appeared in court in support of the public prosecution. Defendant Long Kehai and his defense counsel Zhang Keke was in court to participate in the proceedings. The trial has now concluded.
The People's Procuratorate of Wei County charged: Since March 13, 2022, defendant Long Kehai used a Twitter account registered with his personal phone number 13892709912, nickname: "Long Kehai 3," account number @egdMcLfnT735D3z, to post tweets (posting and reposting in Twitter are both tweets) and comments that attacked and insulted the Communist Party of China, former State leaders, current State leaders, the socialist system with Chinese characteristics and the legal system, human rights in China, and the Chinese government's epidemic prevention policy, denigrating the Party and the government.
As of 19:18 on August 26, 2022, Long Kehai was following 180 people and there were 218 followers of Long Kehai's account.
Long Kehai sent a total of 67 tweets (texts) insulting the Communist Party of China, State leaders, the socialist system with Chinese characteristics and the legal system, and human rights in China, and 17 tweets (texts) attacking and insulting the Chinese government's epidemic prevention policy. Of these 84 articles (texts) with pictures and words, 78 were retweets of other people's articles (texts). The retweeted articles were quoted 425 times, and were retweeted 16,920 times and liked 52,650 times. Long Kehai’s twitter account’s original articles had 5 screenshots and 6 articles, which were quoted 23 times, retweeted 16 times, and liked 91 times.
Long Kehai commented on other people's Twitter articles a total of 47 times, and of these 42 articles attacked and insulted the Communist Party of China, State leaders, the socialist system with Chinese characteristics and the legal system, and human rights in China. These 42 articles were quoted 2,916 times, retweeted 6,927 times, and liked 20,478 times.
Defendant Long Kehai's Twitter comments were quoted 6 times, retweeted 4 times, and liked 76 times.
The evidence determining the aforementioned facts is as follows:
1. Physical evidence: One OPPOR11 mobile phone.
2. Documentary evidence: Case Acceptance Registration Form, Decision to Open a Case, Notice of Jurisdiction Designation, Detention Warrant, Detention Decision, Arrest Authorization Decision, Arrest Warrant, 11 pages of Twitter screenshots and an investigation report on tweets and comments posted by Long Kehai from the National Security Brigade of the Public Security Bureau of Wei County, screenshots of tweets and comments posted by Long Kehai, administrative punishment decisions, criminal judgment, ruling documents, Proof of Release Upon Sentence Completion, pre-custodial medical examination certificate, the process of how the defendant came into police custody, proof of household registration, search warrants, and evidence transfer materials.
3. Defendant Long Kehai's statement and justification.
4. Electronic investigation records and photos, 125 transcripts and web page screenshots collected online from the Internet by the Cyber-Security Brigade of the Public Security Bureau of Wei County, and screenshots of Twitter posts.
5. Audio-visual materials: 8 optical disks, including 6 optical disks of recorded interrogations, and 2 optical disks of Twitter data collected of Long Kehai forwards and comments.
In order to vent his emotions, defendant Long Kehai did, on multiple occasions, utilize information networks to insult former and current State leaders and others, and denigrate the Party and the government, that the circumstances were offensive, undermined social order, and his actions were the commission of an offense under the provisions of Article 293(2) paragraph 2 of the "Criminal Law of the People's Republic of China." The criminal facts are clear,evidence is reliable and copious, and he should bear criminal liability for the crime of disturbing the peace.
Defendant Long Kehai is a recidivist, and in accordance with the provisions of Article 65(1) of the "Criminal Law of the People's Republic of China" he should be given a heavier punishment.
In accordance with the provisions of Article 176 of the "Criminal Procedure Law of the People's Republic of China" a public prosecution is filed, and it is requested to pass sentence in accordance with the law.
Defendant Long Kehai argued: All of the indictment's charges against me fail to meet the requirements of the law. I was not insulting, I was merely exhorting. I do not admit that I committed a crime.
Defendant Long Kehai's defense counsel argued:
1. Defendant Long Kehai's conduct did not disturb the peace. The indictment charged Long Kehai's conduct was the commission of an offense under the provisions of Article 293(1) paragraph 2. Looking at this clause, the offense of disturbing the peace refers to conduct that makes trouble in a public venue, creates a disturbance, causing severe chaos in public venue order; pursuing, obstructing, berating, or intimidating another party under offensive circumstances; or extorting or willfully damaging or appropriating public or private property where the circumstances are severe. First, the regulation refers to public places rather than a network environment. Second, cyberspace is not what is meant as a public venue under criminal law. Third, Long Kehai did not and could not have caused disorder in a public venue.
2. The indictment repeatedly charged Long Kehai with conduct that was insulting and denigrating, and this is completely divorced from the facts. First, Long's Twitter mainly consisted of reposts, with few comments. Second, its content has yet to be determined or confirmed to have statements that were fake, concocted, defamatory, or berating. Third, it did not name names or target specific individuals, and it was basically aimed at ordinary people or unspecified groups of people.
3. As regards jurisdiction, given the perpetrator crossed Chengdu, Hainan, and Baoji, Shaanxi, the Public Security Bureau of Longnan should have reported to the inter-provincial Ministry of Public Security to decide which investigative agency would accept it. The Public Security Bureau of Longnan had no authority to determine the jurisdiction of a case that may be investigated by Baoji, Shaanxi, where he generally resides.
It was ascertained at trial that: Since March 13, 2022, defendant Long Kehai used a Twitter account registered with his personal phone number 13892709912, nickname: "Long Kehai 3," account number @egdMcLfnT735D3z, to post tweets (posting and reposting in Twitter are both tweets) and comments that attacked and insulted the Communist Party of China, former State leaders, current State leaders, the socialist system with Chinese characteristics and the legal system, human rights in China, and the Chinese government's epidemic prevention policy, denigrating the Party and the government.
As of 19:18 on August 26, 2022, Long Kehai was following 180 people and there were 218 followers of Long Kehai's account.
Long Kehai sent a total of 67 tweets (texts) insulting the Communist Party of China, State leaders, the socialist system with Chinese characteristics and the legal system, and human rights in China, and 17 tweets (texts) attacking and insulting the Chinese government's epidemic prevention policy. Of these 84 articles (texts) with pictures and words, 78 were retweets of other people's articles (texts). The retweeted articles were quoted 425 times, and were retweeted 16,920 times and liked 52,650 times. Long Kehai’s twitter account’s original articles had 5 screenshots and 6 articles, which were quoted 23 times, retweeted 16 times, and liked 91 times.
Long Kehai commented on other people's Twitter articles a total of 47 times, and of these 42 articles attacked and insulted the Communist Party of China, State leaders, the socialist system with Chinese characteristics and the legal system, and human rights in China. These 42 articles were quoted 2,916 times, retweeted 6,927 times, and liked 20,478 times.
Defendant Long Kehai's Twitter comments were quoted 6 times, retweeted 4 times, and liked 76 times.
The evidence determining the aforementioned facts is as follows:
1. Physical evidence: One OPPOR11 mobile phone.
2. Documentary evidence: Case Acceptance Registration Form, Decision to Open a Case, Notice of Jurisdiction Designation, Detention Warrant, Detention Decision, Arrest Authorization Decision, Arrest Warrant, 11 pages of Twitter screenshots and an investigation report on tweets and comments posted by Long Kehai from the National Security Brigade of the Public Security Bureau of Wei County, screenshots of tweets and comments posted by Long Kehai, administrative punishment decisions, criminal judgment, ruling documents, Proof of Release Upon Sentence Completion, pre-custodial medical examination certificate, the process of how the defendant came into police custody, proof of household registration, search warrants, and evidence transfer materials.
3. Defendant Long Kehai's statement and justification.
4. Electronic investigation records and photos, 125 transcripts and web page screenshots collected online from the Internet by the Cyber-Security Brigade of the Public Security Bureau of Wei County, and screenshots of Twitter posts.
5. Audio-visual materials: 8 optical disks, including 6 optical disks of recorded interrogations, and 2 optical disks of Twitter data collected of Long Kehai forwards and comments.
The aforementioned evidence was provided by the prosecution, and the evidence was examined in court. Defendant Long Kehai and his defense counsel objected to some of the evidence. This Court finds the evidence provided by the public prosecution agency was of legal provenance, the content was objectively factual, was capable of forming a complete chain of evidence, has evidentiary force, is affirmed in accordance with the law, and can be used as the basis for a judgment.
This Court finds: In order to vent his emotions, defendant Long Kehai did, on multiple occasions, utilize information networks to insult former and current State leaders and others, and denigrate the Party and the government, that the circumstances were offensive, undermined social order, and his actions were the commission of an offense under the provisions of Article 293(2) paragraph 2 of the "Criminal Law of the People's Republic of China." The criminal facts are clear,evidence is reliable and copious, and he should bear criminal liability for the crime of disturbing the peace. The offense charged by the public prosecution agency is established, and shall be sustained.
Regarding the issue of evidence collection by the public security agency raised by defense counsel, based on an investigation, an investigating agency collected the evidence involved in the case, there was nothing inappropriate, and this defense opinion is not accepted.
Regarding the opinion of defendant Long Kehai and his defense counsel that Long Kehai's actions do not constitute the commission of crime, based on the evidence in this case, in order to vent his emotions defendant Long Kehai did, on multiple occasions, utilize network information to insult former and current State leaders and others, and denigrate the Party and the government. He flouted State laws and social morals, the circumstances were offensive, his actions constitute the commission of the crime of disturbing the peace, and therefore this defense opinion is not accepted.
Defendant Long Kehai is a recidivist, and in accordance with the law he should be given a heavier punishment.
In accordance with the provisions of Articles 293(1) paragraph 2, 65, and 64 of the "Criminal Law of the People's Republic of China," Article 3(1) of the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in the Handling of Disturbing the Peace Cases," and Article 5(1) 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," and based on the research conclusions of this Court's adjudicative committee, the judgment is as follows:
1. Defendant Long Kehai committed the crime of disturbing the peace,and is sentenced to a fixed term imprisonment of two years; (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 30, 2022 to July 29, 2024.)
2. One OPPOR11 mobile phone used as an instrument in the commission of the crime is confiscated and destroyed 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 Intermediate People's Court of Longnan, Gansu. A written appeal should be submitted with one original and two copies of the appeal brief.
Chief Adjudicator Lin Fuqiang
Adjudicator Wang Dongwen
Adjudicator Luo Aijun
December 28, 2022
Judge's Assistant Li Panpan
Clerk Yin Yuzhao
甘肃省徽县人民法院
刑事判决书
(2022)甘1227刑初79号
公诉机关徽县人民检察院。
被告人龙克海,男,汉族,1966年6月1日出生,居民身份证号码622630196606011472,高中文化程度,籍贯四川省简阳市,户籍地甘肃省陇南市徽县嘉陵镇嘉陵村059号,现住徽县嘉陵镇嘉陵火车站职工楼一楼,无业。因涉嫌寻衅滋事罪,于2022年7月30日被徽县公安局宣布刑事拘留,同年8月1日被执行刑事拘留;经徽县人民检察院批准,于2022年8月12日被徽县公安局逮捕,现羁押于徽县看守所。2017年11月22日,因虚构事实扰乱公共秩序被徽县公安局行政罚款200元;2018年6月28日,因虚构事实扰乱公共秩序被徽县公安局行政拘留十日:2020年8月18日,因犯寻衅滋事罪被陕西省宝鸡市渭滨区人民法院判处有期徒刑一年六个月,2020年9月20日刑满释放;2021年7月8日,因虚构事实扰乱公共秩序被徽县公安局行政拘留十日;2022年6月12日,因非法持有宣扬恐怖主义、极端主义的物品被徹县公安局行政拘留十日。
辩护人张科科,湖北朋来律师事务所律师。
徽县人民检察院以徽检刑诉[2022]65号起诉书指控被告人龙克海犯寻衅滋事罪,于2022年10月20日向本院提起公诉。本院审查后,依法适用普通程序,公开开庭审理了本案,徽县人民检察院检察员桑云出庭支持公诉。被告人龙克海及其辩护人张科科到庭参加了诉讼,现已审理终结。
徽县人民检察院指控:2022年3月13日以来,被告人龙克海通过本人使用电话号码13892709912注册推特账号,昵称为:“龙克海3”,账号为@egdMcLfnT735D3z,通过发推(推特中发布和转发同为发推)和评论,攻击、辱骂中国共产党、前国家领导人、现国家领导人、中国特色社会主义制度及法制体系、中国人权和中国政府防疫政策,诋毁党和政府。截止2022年8月26日19时18分,龙克海关注他人180人,龙克海账号粉丝218人。龙克海共发送推辱骂中国共产党、国家领导人、中国特色社会主义制度及法律体系、中国人权发推67篇(张),攻击、辱骂中国政府防疫政策发推17篇(张)。该84篇(张)图文中,其中转推他人文章78篇(张),转推文章被引用共425次,被转推16920次,喜欢52650次;龙克海推特账号原创文章截图5张6篇,被他人引用共23次,被转推共16次,喜欢共91次。龙克海评论他人推特文章共47次,其中攻击、辱骂中国共产党、国家领导人、中国特色社会主义制度及法制体系、中国人权文章42篇。该42篇文章被他人引用共2916次,被转推共6927次,喜欢共20478次。被告人龙克海的推特评论被他人引用共6次,被转推共4次,喜欢共76次。
认定上述事实的证据如下:
1、物证:OPPOR11手机1部;
2、书证:受案登记表、立案决定书、指定管辖通知书、拘留证、拘留决定书、批准逮捕决定书、逮捕证、徽县公安局国保大队对龙克海的推特截图11页、对龙克海发表推文和评论的调查报告、龙克海发布推文、评论截图、行政处罚决定书、刑事判决书、裁定书、刑满释放证明书、羁押前体检书、到案经过、户籍证明、搜查证、外调证据材料等;
3、被告人龙克海的供述与辩解;
4、电子数据检查笔录及照片,徽县公安局网安大队网络在线提取笔录及网页截屏125张、推特发推截图等;
5、视听资料:光盘8张,其中讯问同录光盘6张,提取龙克海转发、评论推特数据光盘2张。
被告人龙克海为发泄情绪,利用信息网络多次辱骂前国家领导人、现国家领导人和他人、诋毁党和政府,情节恶劣,破坏社会秩序,其行为触犯了《中华人民共和国刑法》第二百九十三条第一款第(二)项规定,犯罪事实清楚,证据确实、充分,应当以寻衅滋事罪追究其刑事责任。被告人龙克海系累犯,根据《中华人民共和国刑法》第六十五条第一款之规定,应当从重处罚。根据《中华人民共和国刑事诉讼法》第一百七十六条的规定,提起公诉,请依法判处。
被告人龙克海辩称:起诉书对我的指控全部不符合法律要求,我不是辱骂,只是规劝,我不承认我犯罪。
被告人龙克海辩护人辩称:
1、被告人龙克海没有寻衅滋事行为,起诉书指控龙克海的行为触犯了刑法第二百九十三条第一款第(二)项之规定。纵观该条款,寻衅滋事罪指的是在公共场所无事生非,起哄闹事,造成公共场所秩序严重混乱的,追逐、拦截、辱骂、恐吓他人,强拿硬要或者任意损毁、占用公私财物,破坏社会秩序,情节严重的行为。首先,该规定指的是公共场所而非网络环境,第二,网络空间也非刑法意义上的公共场所,第三,龙克海没有造成也不可能造成公共场所秩序混乱。
2、起诉书反复指控龙克海有辱骂或诋毁行为,完全偏离事实,第一,龙的推特,主要是转载,鲜有评论。第二,其内容未被鉴定机构认定或证实属于虚假、捏造、诽谤、辱骂言论。第三,没有指名道姓没有指出特定人,基本是针对普通民众或不特定人群。
3、关于管辖权,陇南市公安局在行为人跨越成都、海南及陕西宝鸡多地,应该上报至跨省级的公安部来决定由哪个侦查单位受理,陇南市公安无权决定管辖可能由其经常居住地陕西宝鸡侦查的案件。
经审理查明:2022年3月13日以来,被告人龙克海通过本人使用电话号码13892709912注册推特账号,昵称为:“龙克海3”,账号为@egdMcLfnT735D3z,通过发推(推特中发布和转发同为发推)和评论,攻击、辱骂中国共产党、前国家领导人、现国家领导人、中国特色社会主义制度及法制体系、中国人权和中国政府防疫政策,诋毁当和政府。截止2022年8月26日19时18分,龙克海关注他人180人,龙克海账号粉丝218人。龙克海共发送推辱骂中国共产党、国家领导人、中国特色社会主义制度及法律体系、中国人权发推67篇(张),攻击、辱骂中国政府防疫政策发推17篇(张)。该84篇(张)图文中,其中转推他人文章78篇(张),转推文章被引用共425次,被转推16920次,喜欢52650次;龙克海推特账号原创文章截图5张6篇,被他人引用共23次,被转推共16次,喜欢共91次。龙克海评论他人推特文章共47次,其中攻击、辱骂中国共产党、国家领导人、中国特色社会主义制度及法制体系、中国人权文章42篇。该42篇文章被他人引用共2916次,被转推共6927次,喜欢共20478次。被告人龙克海的推特评论被他人引用共6次,被转推共4次,喜欢共76次。
认定上述事实的证据如下:
1、物证:OPPOR11手机1部;
2、书证:受案登记表、立案决定书、指定管辖通知书、拘留证、拘留决定书、批准逮捕决定书、逮捕证、徽县公安局国保大队对龙克海的推特截图11页、对龙克海发表推文和评论的调查报告、龙克海发布推文、评论截图、行政处罚决定书、刑事判决书、裁定书、刑满释放证明书、羁押前体检书、到案经过、户籍证明、搜查证、外调证据材料等;
3、被告人龙克海的供述与辩解;
4、电子数据检查笔录及照片,徽县公安局网安大队网络在线提取笔录及网页截屏125张、推特发推截图等;
5、视听资料:光盘8张,其中讯问同录光盘6张,提取龙克海转发、评论推特数据光盘2张。
上述证据均由控方提供,均经当庭质证,被告人龙克海及其辩护人对部分证据有异议,本院认为公诉机关提供的证据,来源合法,内容真实,能够形成完整的证据链,具有证据效力,依法予以确认,作为定案依据。
本院认为:被告人龙克海为发泄情绪,利用信息网络多次辱骂前国家领导人、现国家领导人和他人、诋毁党和政府,情节恶劣,破坏社会秩序,其行为触犯了《中华人民共和国《刑法》第二百九十三条第一款第(二)项之规定,犯罪事实清楚,证据确实、充分,应当以寻衅滋事罪追究其刑事责任,公诉机关指控罪名成立,应予支持。关于辩护人提出的公安机关取证问题,经查,侦查机关提取涉案证据,并无不当,对此辩护意见不予采纳。关于被告人龙克海及其辩护人就龙克海的行为不构成犯罪的意见,根据本案证据来看,龙克海为发泄情绪,利用网络信息多次在网络上辱骂前国家领导人、现国家领导人和他人、诋毁党和政府,藐视国家法律和社会公德,情节恶劣,其行为已构成寻衅滋事罪,故对该辩护意见不予采纳。被告人龙克海系累犯,依法应从重处罚。依据《中华人民共和国刑法》第二百九十三条第一款第(二)项、第六十五条第一款、第六十四条,《最高人民法院、最高人民检察院关于办理寻衅滋事案件适用法律若干问题的解释》第三条第(一)项,《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》第五条第一款之规定,并经本院审判委员会研究决定,判决如下:
一、被告人龙克海犯寻衅滋事罪,判处有期徒刑二年;(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2022年7月30日起至2024年7月29日止。)
二、作案工具OPPOR11手机1部依法予以没收销毁。
如不服本判决,可在接到判决书的第二日起十日内,通过本院或直接向甘肃省陇南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,副本二份。
审判长蔺富强
审判员王东文
审判员罗爱军
二〇二二年十二月二十八日
法官助理李盼盼
书记员尹宇昭
