The PRC government sentenced Wang Jiangfeng (王江峰) to two years imprisonment (later reduced to 22 months) for the crime of "disturbing the peace" (寻衅滋事, also translated as "picking quarrels and provoking troubles") for posting text and images on WeChat and QQ that, it claimed "berated and denigrated" Mao Zedong and Xi Jinping.
Some noteworthy aspects of the judgment:
- The court neither provided any examples of what Wang posted, nor explained how his posts resulted in any actual disturbance of the peace.
- The government seized Wang's Huawei phone, and when they found that the phone had a lock screen password and they could not access it, they used "technical means to crack the password" and unlock the screen and open the phone.
- The court adopted a rule that is the opposite of the US NYT v. Sullivan - namely that concerns for social stability demand public figures like Mao Zedong and Xi Jinping are are entitled to extra protection for their reputations: "[D]ue to the special identities of Mao Zedong and Xi Jinping as deceased and current State leaders, the denigration of their personal reputations and images will inevitably cause adverse perceptions of the Communist Party of China, the socialist system, and the People's Democratic Dictatorship State regime in the minds of the masses, which is very likely to cause confusion among the people and social unrest."
This not the first time people in the PRC have been imprisoned for merely ridiculing Mao and Xi:
- In 2018 a court found that police did not violate Feng Zhouguan's (冯周管) rights by subjecting him to five days administrative detention for referring to Xi Jinping as "fat pig," "steamed bun," and "spendthrift" in WeChat posts. The court rejected Feng's claim that "If the country's leader or his appointed attorneys want to play at litigation with [Feng] then [the police] should maintain a neutral stance because the [police] are agents of the country's judiciary."
- In 2019 a court sentenced a man surnamed Wang to One year and three months imprisonment for posting the following statements on Twitter: 'Hitler, Mao Doe and Pol Pot Conquered in Order to Commit Massacres" and "Mao Colluded with the Japanese Army."
- In 2020 a court found police did not violate Yang Tianqiao's rights by subjecting him to 12 days administrative detention for a single WeChat post criticizing Mao Zedong and the Cultural Revolution.
People's Court of Zhaoyuan, Shandong
Criminal Judgment
(2017) Gao 0685 Criminal First Instance No. 9
The public prosecution agency was the People's Procuratorate of Zhaoyuan
Defendant Wang Jiangfeng, male, born [INTENTIONALLY DELETED], 1970 in Zhaoyuan, Shandong, citizen I.D. No. [INTENTIONALLY DELETED], Han ethnicity, college education, unemployed, residing at [INTENTIONALLY DELETED] Yingbin Road, Zhaoyuan. On May 26, 2003, he was sentenced to six months in prison and one year of probation by the People's Court of Zhaoyuan for the crime of occupational embezzlement. On January 6, 2013, he was sentenced to one year re-education through labor by the Yantai Labor Re-education Committee for disturbing social order in the Beijing embassy district on April 16, 2012, and was granted an early release in July 2013. On September 9, 2016, he was taken into criminal detention on suspicion of disturbing the peace, and he was arrested on October 15 of the same year. He is currently being held in detention at the Zhaoyuan Detention Center.
Defense counsel Li Yongheng is a lawyer at the Shandong Taicheng Law Firm.
Defense counsel Zhu Shengwu is a lawyer at the Shandong Xinchang Law Firm.
In the Zhao Procuratorate Public Prosecution Criminal Indictment (2017) No. 1 indictment the People's Procuratorate of Zhaoyuan charged defendant Wang Jiangfeng with committing the crime of disturbing the peace, and on January 9, 2017 filed a public prosecution with this Court. After an examination this Court established a case on the same day, and formed a collegial panel, and tried this case with hearings in open court. The People's Procuratorate of Zhaoyuan assigned procurator Wang Yan to appear in court in support of the public prosecution. Defendant Wang Jiangfeng and his defense counsels Li Yongheng and Zhu Shengwu appeared in court to participate in the litigation. The trial has now concluded.
The People's Procuratorate of Zhaoyuan charged: From June to September 9, 2016, defendant Wang Jiangfeng did on many occasions use WeChat and QQ social media platforms to publicly or privately chat with unspecified objects in the form of text and images to distribute or repost a large number of statements that berated or denigrated the deceased State leader Mao Zedong and the current State leader Xi Jinping, intentionally belittling the reputation of the State leaders and undermining social order.
The public prosecution agency submitted relevant evidence to the court to confirm the aforementioned criminal facts. The public prosecution agency believed that defendant Wang Jiangfeng's actions violated the provisions of Article 293, Paragraph 1, Item (2) of the “Criminal Law of the People's Republic of China” and constituted the crime of disturbing the peace, and requested this Court pass sentence in accordance with the law.
Defendant Wang Jiangfeng made a full confession to the public prosecution agency's allegations that he had posted statements on WeChat Groups and the QQ social media platform that berated and denigrated deceased State leader Mao Zedong and current State leader Xi Jinping, but argued that the content of his posts was reposted by him from others, and were not original. He reposted these inappropriate statements because he was dissatisfied with a court judgment and had been punished administratively on many occasions during his petitioning process. There were reasons for what he did, and it did not constitute the crime of disturbing the peace.
His defense counsel Li Yongheng argued that the defendant's use of information networks to distribute remarks involving the degradation of Mao Zedong’s and Xi Jinping's personal character was not an attack on their personal character, but was to express dissatisfaction with major national political events such as the Hangzhou Summit and foreign aid. In the crime of disturbing the peace in my country's criminal law, "berate" and "intimidate others" refers to ordinary natural persons, and should not include political leaders and politicians. The defendant's inappropriate statements in Friends Groups and QQ Groups were inappropriate, the circumstances were still within the scope of freedom of speech that my country can tolerate, and should not be punished by criminal law.
His defense counsel Zhu Shengwu argued that the defendant’s posting of inappropriate statements in cyberspace does not fall within the category of posting in public venues. The nature of speech in a Friends Group is different from that in a public venue. Criticism, negative evaluations, and insults against politicians do not constitute a crime. The defendant’s speech was justified, and his statements were related to his personal experience, and all the statements were based on specific political events. The defendant’s statements were reposts, not original. The defendant’s statements did not constitute offensive circumstances and did not constitute a crime.
It was ascertained at trial that between June and September 9, 2016, defendant Wang Jiangfeng did on many occasions utilize WeChat and QQ social media platforms, repeatedly using his registered WeChat number wangjiangfeng2015 (nickname "Turned Lotus"), WeChat number zywjf2016 (nickname "Turned Lotus2"), QQ number [INTENTIONALLY DELETED] (nickname "Maple Leaf Red"), and QQ number 1824759041 (nickname "Red Cloud Turned Lotus"), to utilize texts, images, and other forms to send messages such as "Chilled to the Heart," "Tomorrow Will Be Better," "Fate Brings Us Together and Separates Us" to specific targets, or to repost approximately 30 messages to berate and denigrate the deceased State leader Mao Zedong and the current State leader Xi Jinping to unspecified targets in his WeChat Groups, WeChat Friends Groups, QQ Groups, QQ Spaces, etc., intentionally belittling the State leaders’ reputation and undermining social order. From August to September 2016, defendant Wang Jiangfeng used his WeChat account "Turned Lotus2" to post 5 messages insulting and defaming Mao Zedong and Xi Jinping and 8 messages denigrating the ruling Party in the "Yantai Citizen Friendship Circle" (a group with more than 70 members), and 6 messages insulting and defaming Mao Zedong and Xi Jinping and more than 10 messages denigrating the ruling Party in his WeChat Circle (which had 360 members).
The aforementioned facts have been confirmed by the following evidence submitted by the public prosecution agency and presented and affirmed in court:
1. Witness Testimony and Related Documentary Evidence and Photos
(1) Hao Guiqing confirmed that he had joined two public WeChat Groups, one of which was "Yantai Citizen Friendship Circle." This group had 77 people, and he knew Wang Jiangfeng, Wang Shuxin, Zhang Enguang, and Zhang Xueshan in the group. Wang Jiangfeng's first WeChat account was "wangjiangfeng2015" and his WeChat nickname was "Turned Lotus." After this account was blocked, Wang Jiangfeng used the WeChat nickname "Turned Lotus2," his WeChat account was "zywjf2016," and his mobile phone number was 138****3179. He also pointed out that the person in the demographic information photo of Wang Jiangfeng in this case was the Wang Jiangfeng he knew. There were 5 photos of some information about the "Yantai Citizen Friendship Group" WeChat Group on his mobile phone, and it was confirmed that the WeChat nicknames used by Wang Jiangfeng in the WeChat Group were "Turned Lotus" and "Turned Lotus2," and from the order in which the photos were displayed, Wang Jiangfeng was the group owner of the WeChat Group.
(2) Zhang Xueshan confirmed that he had a WeChat Group called "Yantai Citizen Friendship Group," Wang Jiangfeng was his WeChat friend, and his WeChat ID was: wangjiangfeng2015, and it was Wang Jiangfeng who pulled him in. Wang Jiangfeng had two WeChat nicknames in the "Yantai Citizen Friendship Group," first "Turned Lotus" and later "Turned Lotus2." This group was a group that promoted democracy, constitutionalism, human rights, and criticized current politics, and Wang Jiangfeng made remarks in that regard. He also pointed out that the person in the demographic information photo of Wang Jiangfeng in this case was the Wang Jiangfeng he knew. There were 4 photos of some information about the "Yantai Citizen Friendship Group" WeChat Group on his mobile phone, and it was confirmed that in this WeChat Group, "Turned Lotus" and "Turned Lotus2" were both Wang Jiangfeng's WeChat IDs, and "Turned Lotus2" was the group owner.
(3) Chen Guangwei confirmed that he had joined a public WeChat group called "Yantai Citizen Friendship Group." The group owner was a person named "Turned Lotus2" on WeChat, whom he did not know. There were 4 photos of information on the WeChat group "Yantai Citizen Friendship Circle" on his mobile phone, showing that the group owner was "Turned Lotus2." Both "Turned Lotus2" and "Turned Lotus" had the same WeChat signature: "Beasts feast upon their stipends amongst the palaces, and men with wolves’ hearts and dogs’ behavior hold power."
(4) Wang Jinghong confirmed that she knew Wang Jiangfeng and added two QQ numbers of Wang Jiangfeng successively. The numbers were [INTENTIONALLY DELETED] with the nickname "Maple Leaf Red" and 1824759041 with the nickname "Red Cloud Turned Lotus." Her QQ number was 60552**** with the nickname "Wind and Rain." She also pointed out that the person in the demographic information photo of Wang Jiangfeng in this case was the Wang Jiangfeng she knew. There were 4 information photos about the QQ numbers "Maple Leaf Red" and "Red Cloud Turned Lotus" on her mobile phone. Among them, the signature of "Maple Leaf Red" is "Beasts feast upon their stipends amongst the palaces," and the signature of "Red Cloud Turned Lotus" was"Men with wolves’ hearts and dogs’ behavior hold power." In addition, the "Maple Leaf Red" QQ number distributed in the space, which contained insults to Mao Zedong and Xi Jinping.
(5) Fan Guiqiang confirmed that Wang Jiangfeng's QQ nickname was "Red Cloud Turned Lotus," his account number is 1824759041, his QQ number was 475406940, and his nickname was "Jinduyuan." After he and Wang Jiangfeng became QQ friends, they chatted a few times through QQ. Wang Jiangfeng sent him messages through QQ a few times, but he saw that the content of these messages was unhealthy and not positive, so he did not reply. The three evidence photos of his friend nicknamed "Red Cloud Turned Lotus" on his mobile QQ were consistent with the content confirmed by Fan Guiqiang's testimony. He also pointed out that the person in the demographic information photo of Wang Jiangfeng in this case was Wang Jiangfeng, whom he knew.
(6) Yan Fang confirmed that she had the QQ number of Wang Jiangfeng, whose nickname was "Maple Leaf Red," and that Wang Jiangfeng added her as a QQ friend. There were two photos of the information of "Maple Leaf Red" on her computer QQ friend. From her QQ, she checked some of the photos of Maple Leaf Red's space and found that "Turned Lotus2" and "Maple Leaf Red" were both Wang Jiangfeng. She also pointed out that the person in the demographic information photo of Wang Jiangfeng in this case is the Wang Jiangfeng she knew.
(7) Wang Jiangfeng's wife Sun Wenjuan confirmed that the police seized a black Gionee candy bar non-smartphone from her home, which was carried by Wang Jiangfeng; and a dark gray Huawei phone, which was Wang Jiangfeng's phone and was used exclusively by him. She and her son had never used it. They also seized a Lenovo computer, her mother's SIM card, a router, an internet modem, and some of Wang Jiangfeng's materials. She didn't use the computer at home, which was usually used by Wang Jiangfeng. Her mother didn't have WeChat or QQ, and her phone number was 131****1129.
2. Physical Evidence
(1) A seized mobile phone card with the number 131****1129.
(2) A seized black Huawei mobile phone with the number used by Wang Jiangfeng in this case.
3. Documentary evidence
(1) The Case Registration Form confirmed that the police discovered Wang Jiangfeng's suspected crime during the execution of their duties.
(2) Household registration information confirmed that defendant Wang Jiangfeng had reached the age of full criminal responsibility when he committed the crime.
(3) The Case Handling Explanation issued by the Public Security Bureau of Zhaoyuan’s Cyber Security Brigade confirmed: When Civil Police inspected a Huawei phone seized from Wang Jiangfeng's residence, they found that the phone had a lock screen password and could not access the system. They used technical means to crack the password and successfully unlocked the screen and opened the phone.
(4) The Analysis Explanation issued by the Public Security Bureau of Zhaoyuan’s Cyber Security Brigade confirmed: On September 9, 2016, the Luofeng Police Station sent 4 mobile phones and 1 desktop computer for inspection. QQ and WeChat chat records were obtained from one of the smartphones (which should be the Huawei phone with a password mentioned above).
(5) IP usage records and broadband account information, etc. issued by the China Mobile Yantai Laishan Branch confirmed: Wang Jiangfeng opened a broadband account using the mobile phone number 138****3179. He frequently logged into the Internet on many occasions between August and September 2016.
(6) The Case Handling Explanation No. 1 issued by the Luofeng Precinct of the Zhaoyuan Public Security Bureau confirmed: On the morning of October 3, 2016, Civil Police from the Public Security Bureau of Zhaoyuan investigated and questioned Gao Shaozhen. She confirmed the photo on Wang Jiangfeng’s demographic information and found Wang Jiangfeng’s WeChat ID: wangjiangfeng2015, nickname "Turned Lotus," and phone number 138****3179 in her WeChat mobile phone. She is Wang Jiangfeng’s QQ friend. Gao Shaozhen said that she and Wang Jiangfeng were not in a fixed group, but she often saw adverse information about petitioning and other aspects sent by Wang Jiangfeng on QQ spaces in the past. Civil Police took photos of the information about Wang Jiangfeng in Gao Shaozhen’s mobile phone to collect evidence and made a video CD of the whole process. Gao Shaozhen’s mobile phone photos showed that one of Gao Shaozhen’s WeChat friends was named "Turned Lotus," with WeChat ID wangjiangfeng2015 and phone number 138****3179; at the same time, the corresponding QQ nickname of this mobile phone number in Gao Shaozhen’s QQ friends was "Jiang Ge."
(7) The Case Handling Explanation No. 2 issued by the Luofeng Precinct of the Zhaoyuan Public Security Bureau confirmed: On the morning of October 3, 2016, Civil Police from the Public Security Bureau of Zhaoyuan questioned Sun Wenjuan, who said she did not know about her husband Wang Jiangfeng’s WeChat and QQ, and she had never used Wang Jiangfeng’s QQ and WeChat. Her mother had lived in her home for more than a month, and she could only dial a number on the phone, but could not use WeChat and QQ, and did not know Wang Jiangfeng’s QQ and WeChat numbers. This ruled out the possibility that Wang Jiangfeng’s wife or mother used Wang Jiangfeng’s WeChat or QQ account to surf the Internet to post distribute related comments.
(8) The Case Handling Explanation No. 3 issued by the Luofeng Precinct of the Zhaoyuan Public Security Bureau confirmed: On several occasions the Public Security Bureau of Zhaoyuan received Internet information intelligence involving Zhaoyuan Internet user Wang Jiangfeng from its commanding public security agency. The Cyber Security Brigade Civil Police then began to search the WeChat number, QQ number, and Weibo account involved in the information intelligence through the Internet and conducted remote inspections, and successively produced two CDs.
(9) Criminal record inquiries, a criminal judgment of the People's Court of Zhaoyuan, and a Re-education Through Labor Decision confirmed defendant Wang Jiangfeng's criminal punishment and re-education through labor.
(10) Two Work Reports issued by the Public Security Bureau of Yantai’s Cyber Security Brigade dated September 3 and September 8, 2016 confirmed: According to the notification of the Ministry of Public Security and the Shandong Public Security Department, Yantai Internet user "Turned Lotus" (WeChat ID905794705), "Turned Lotus2" (WeChat ID1566529368, account name: zywjf2016, bound QQ number [INTENTIONALLY DELETED], mobile phone [INTENTIONALLY DELETED]), and QQ username "The Wind Blows JJ" (QQ number [INTENTIONALLY DELETED], the same as Turned Lotus2's bound QQ number) used WeChat and QQ from June to early September 2016 to post insults of State leaders, smears on the Communist Party of China, and attacks on the socialist system in WeChat Friends groups, WeChat Groups, and QQ Groups.
4. On Site Inspection Records
(1) Search records on September 9, 2016 confirmed the process by which the public security officers searched Wang Jiangfeng’s home and seized his computer, mobile phone and other tools that he suspected of using for criminal activities.
(2) List of Seized Items, List of Items Taken Into Temporary Custody、and photographs from the scene confirmed: On September 9, 2016, the Public Security Civil Police seized a black Nokia candy bar-type non-smartphone; a black Huawei TL00 smartphone; a white OPPO phone (which could not be turned on); a black Lenovo desktop computer; petition materials of petitioners Li Decheng, Xue Yushuang and others; and a black Gionee candybar-type non-smartphone at Wang Jiangfeng's residence. The Civil Police registered and photographed the items that were searched and seized.
(3) The search record and List of Seized Items of September 28, 2016 confirmed: The Civil Police’s search of Wang Jiangfeng’s Internet devices and mobile phone or mobile phone card number 131****1129 at Wang Jiangfeng’s residence on that day. They seized a mobile phone card (131****1299), a wireless Internet device, and a Unicom Internet device, as well as the characteristics of the above items.
5、Audio-Visual Materials and Electronic Data
(1) The Public Security Bureau of Zhaoyuan’s Electronic Data Inspection Record confirmed that professionals used professional equipment to inspect a Huawei mobile phone used by Wang Jiangfeng, extracted and fixed relevant content, generated an HTML format report, and burned the extracted evidence data into a CD numbered YTZY2016013-001, and took 5 photos and 6 screenshots at the same time.
(2) Video Materials
i. The CD made from the content obtained from Wang Jiangfeng's Huawei mobile phone confirmed that Wang Jiangfeng's QQ account number 1824759041 with the nickname "Red Cloud Turned Lotus" and QQ account number [INTENTIONALLY DELETED] with the nickname "Maple Leaf Red" contained a large number of statements that berated and belittled the late State leader Mao Zedong and the current State leader Xi Jinping, in addition to remarks attacking the ruling Party and the current regime.
WeChat account "Turned Lotus2," WeChat ID zywjf2016, associated QQ number [INTENTIONALLY DELETED], and associated mobile phone [INTENTIONALLY DELETED]. This WeChat account sent statements that berated and belittled the late State leader Mao Zedong and the current State leader Xi Jinping to 21 WeChat friends.
The WeChat account distributed statements in the "Yantai Citizen Friendship Circle" with more than 70 members that berated and belittled the late state leader Mao Zedong and the current state leader Xi Jinping 5 times and 8 messages attacking the current regime.
The WeChat account had distributed statements in the Friends Group (with 360 members), that berated and belittled the late state leader Mao Zedong and the current state leader Xi Jinping 6 times and 10 messages attacking the current regime.
ii. Wang Jiangfeng's public opinion feedback CD and remote inspection CD were records made by the public security agencies when monitoring Wang Jiangfeng's relevant statements distributed by the WeChat account "Turned Lotus." They show that Wang Jiangfeng was dissatisfied with the handling of his crimes and illegal acts, and did on many occasions post statements that denigrated and berated the current state leader Xi Jinping in WeChat groups using the WeChat account "Turned Lotus."
iii. The evidence CD retrieved from Shenzhen Tencent confirmed the account information of Wang Jiangfeng's WeChat ID "Turned Lotus" and "Turned Lotus2."
iv. The video discs of the searches confirmed that the public security officers went to Wang Jiangfeng's home to search and seized the relevant items in accordance with the law.
v. The content of the CD of Gao Shaozhen’s questioning was consistent with the Case Handling Explanation No.1 issued by the Luofeng Precinct of the Zhaoyuan Public Security Bureau and the four photos of Gao Shaozhen's cell phone information.
vi. The CD of Sun Wenjuan’s questioning confirmed the process by which the Public Security Civil Police questioned Sun Wenjuan.
vii. A CD made from the relevant evidence of the Ministry of Public Security's monitoring system, and a video made based on Wang Jiangfeng's online statement issued by the Ministry of Public Security. The content of the video is consistent with the content described on pages 121-127 of the investigation volume.
6、Defendant’s Statements
Defendant Wang Jiangfeng made a full confession of the facts relating to his utilization of WeChat, QQ, and other platforms to distribute statements through text, images, and other means that berated and denigrated former and current State leaders. In summary, the facts in this case were clear and the evidence was reliable and copious, and is sufficient to make a determination.
This Court finds that between June and September 9, 2016, defendant Wang Jiangfeng did on many occasions utilize WeChat, QQ, and other platforms to distribute statements through text, images, and other means that berated and denigrated former and current State leaders and undermining social order. The circumstances were offensive and his actions constitute the crime of disturbing the peace. The public prosecution agency’s charges are established.He was previously sentenced to fixed-term imprisonment for the crime of occupational embezzlement, has a criminal record of intentional crime, and has a relatively high level of subjective malice, so he should be given a heavier punishment.
Regarding defendant Wang Jiangfeng’s justifications: "The content he posted was reposted by him from others, and was not original. He reposted these inappropriate statements because he was dissatisfied with a court judgment and had been punished administratively on many occasions during his petitioning process. There were reasons for what he did, and it did not constitute the crime of disturbing the peace." This Court finds that the distribution of any speech should be within the scope permitted by law and should not contain words that insult, defame, or attack others' personality. Although the defendant’s posts were not original, he did repost them on many occasions, which also shows that he had the subjective intention to insult others and spread it in cyberspace, seriously undermining social order. Therefore, his defense that "his actions did not constitute the crime of disturbing the peace" does not conform to the facts and legal provisions. and is not adopted by this Court.
Regarding defendant Wang Jiangfeng’s defense counsel Li Yongheng’s argument: "The defendant's use of information networks to distribute remarks involving the degradation of Mao Zedong’s and Xi Jinping's personal character was not an attack on their personal character, but was to express dissatisfaction with major national political events such as the Hangzhou Summit and foreign aid. "Berate" and "intimidate others" in the crime of disturbing the peace in my country's criminal law, refers to ordinary natural persons, and should not include political leaders and politicians." This Court finds, the defendant's speech contained a large number of insults and defamation of others, which went beyond the scope of commenting on political events. State leaders have dual identities of natural persons and politicians. The defendants reposted or distributed texts and images denigrating Mao Zedong and Xi Jinping through WeChat, QQ, etc. That information seriously belittled the personal reputations of Mao Zedong and Xi Jinping. At the same time, due to the special identities of Mao Zedong and Xi Jinping as deceased and current State leaders, the denigration of their personal reputations and images will inevitably cause adverse perceptions of the Communist Party of China, the socialist system, and the People's Democratic Dictatorship State regime in the minds of the masses, which is very likely to cause confusion among the people and social unrest. The nature of this is severe, the circumstances were offensive, severely undermining social order. Therefore, the defense counsel's relevant defense opinions do not comply with legal provisions, and are also not adopted by this Court.
Regarding defense counsel Zhu Shengwu’s argument "the defendant’s posting of inappropriate statements in cyberspace does not fall within the category of posting in public venues. The nature of speech in a Friends Group is different from that in a public venue." This Court finds that Supreme People's Court and the Supreme People's Procuratorate’s "Interpretation on Several Issues Concerning the Specific Application of Law in the Handling of Defamation Through Information Networks and Other Criminal Cases" clearly provides: "Where information networks are used to berate or intimidate others, with adverse circumstances and undermining social order, the person shall be convicted and punished in accordance with the provisions of Article 293(1)(ii) of the Criminal Law, and punished for the crime of disturbing the peace." Cyberspace also falls within the scope of public venues, so the defense counsel's defense opinion does not comply with legal provisions., and is not adopted by this Court. Regarding the defense opinion: "Criticism, negative evaluations, and insults against politicians do not constitute a crime. The defendant’s speech was justified, and his statements were related to his personal experience, and all the statements were based on specific political events. The defendant’s statements were reposts, not original. The defendant’s statements did not constitute offensive circumstances and did not constitute a crime." This is the same as defendant Wang Jiangfeng’s other defense counsel’s argument and defense opinion, and neither complies with legal provision, and is also not adopted by this Court.
Defendant Wang Jiangfeng was able to admit in court that he distributed inappropriate statements and expressed remorse, so he may be given a lighter punishment. In accordance with the provisions of Article 293(1)(ii) of the “Criminal Law of the People's Republic of China” and Article 5 of the "Supreme People's Court and the Supreme People's Procuratorate "Interpretation on Several Issues Concerning the Specific Application of Law in the Handling of Defamation Through Information Networks and Other Criminal Cases"" the judgment is as follows:
Defendant Wang Jiangfeng 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 September 9, 2016 to September 8, 2018).
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 Yantai. A written appeal should be submitted with one original and two copies of the appeal brief.
Chief Adjudicator Liu Yongwen
People’s Assessor Yuan Jingyuan
People’s Assessor Ding Hongyun
April 7, 2017
Clerk Ma Li
山东省招远市人民法院
刑事判决书
(2017)告0685刑初9号
公诉机关招远市人民检察院
被告人王江峰,男,1970年2月7日出生于山东省招远市,身份证号码:370624197002074417,汉族,大学文化,无业,住招远市迎宾路130号5号楼1单元301号。2003年5月26日因犯职务侵占罪被招远市人民法院判处有期徒刑六个月,缓刑一年;2012年4月16日因在北京使馆区扰乱社会秩序,于2013年1月6日被烟台市劳动教养委员会劳动教养一年,2013年7月提前放释。2016年9月9日因涉嫌犯寻衅滋事被刑事拘留,同年10月15日被逮捕,现羁押于招远市看守所。
辩护人李永恒,山东泰诚律师事务所律师。
辩护人祝圣武,山东信常律师事务所律师。
招远市人民检察院以招检公诉刑诉[2017]1号起诉书,指控被告人王江峰犯寻衅滋事罪,于2017年1月9日向本院提起公诉,本院审查后于同日立案,并依法组成合议庭,公开开庭审理了本案。招远市人民检察院指派检察员王岩出庭支持公诉。被告人王江峰及其辩护人李永恒、祝圣武到庭参加诉讼。现已审理终结。
招远市人民检察院指控:2016年6月份至9月9日期间,被告人王江峰多次利用微信和QQ社交平台,在多个微信群、微信朋友圈、QQ群,QQ空间等,采用文字、图片等形式对不特定对象公开或与不特定对象私聊,发表或转发了大量辱骂、诋毁已逝国家领导人毛泽东和现任国家领导人习近平的言论,故意贬损国家领导人声誉,破坏社会秩序。
公诉机关向法庭提交了相应的证据证实指控的上述犯罪事实。公诉机关认为,被告人王江峰的行为触犯了《中华人民共和国刑法》第二百九十三条第一款第(二)项之规定构成寻衅滋事罪,提请本院依法判处。
被告人王江峰对公诉机关指控的其在微信圈、QQ社交平台发布过辱骂人、诋毁已逝国家领导人毛泽东和现任国家领导人习近平的言论的事实供认不讳,辩称发布的内容都是他转发别人的,不是他原创的,他转发这些不当言论是因为自己因对法院的判决不服,在上访过程中多次被行政处罚,系事出有因,不构成寻衅滋事犯罪。
其辩护人李永恒辩称,被告人利用信息网络发表涉及到毛泽东、习近平个人人格降低的言论时并不是针对个人人品进行攻击,均是在向杭州峰会、对外援助这些重大国家政治事件中发表的不满言论,我国刑法寻衅滋事罪中辱骂、恐吓他人是指普通的自然人,不应当包含政治领袖和政治人物。被告人发表的不当言论,在朋友圈和QQ群里是不妥的,但其情节仍然在我国能够忍受的言论自由的范围之内,不应当受到刑法的惩罚。
其辩护人祝圣武辩称,被告人在网络空间发布不当言论,不属于在公共场所。在朋友圈发表言论和在公共场所发表言论性质不一样。对政治人物的非议、否定性评价和谩骂言论不构成犯罪。被告人的言论是事出有因的,其言论和其自身人身经历有关系,这些言论都依托于具体的政治事件。被告人的言论均是转发的,而不是原创的。被告人的言论不构成情节恶劣,不构成犯罪。
经审理查明,2016年6月份至9月9日期间,被告人王江峰多次利用微信和QQ社交平台,先后使用其注册的微信号wangjiangfeng2015(昵称“转莲”)、微信号zywjf2016(昵称“转莲2”)、QQ号[INTENTIONALLY DELETED](昵称“枫叶红”)、QQ号1824759041(昵称“红霞转莲”),采用文字、图片等形式向特定对象“透心凉”、“明天更美好”“缘聚缘散”等微信好友或在其“烟台公民交友圈”微信群内、微信朋友圈、QQ群,QQ空间等,向不特定对象转发了约30条辱骂、诋毁已逝国家领导人毛泽东和现任国家领导人习近平的言论,故意贬损国家领导人声誉,破坏社会秩序。其中2016年8至9月份,被告人王江峰利用其“转莲2”微信号在“烟台公民交友圈”(群成员70余人)发布侮辱、诽谤毛泽东和习近平的信息5条及诋毁执政党的信息8条,在其微信圈(成员360人)发布侮辱、诽谤毛泽东和习近平的信息6条及诋毁执政党的信息10余条。
上述事实,有公诉机关提交并经法庭质证确认的下列证据予以证实:
1、证人证言及关联的书证、照片
(1)郝贵庆证实,他加入过两个公共微信群,其中一个是“烟台公民交友圈”。这个群有77个人,他认识群里的王江峰、王书信、张恩广、张学善。王江峰的第一个微信号“wangjiangfeng2015”,微信昵称是“转莲”。这个号被封后,王江峰用“转莲2”这个微信昵称,微信号是“zywjf2016”,手机号码是138****3179。并指出本案王江峰人口信息照片上的人就是他所认识的王江峰。其手机内“烟台公民交友群”微信群部分信息照片5张,证实王江峰在微信群里使用的微信昵称分别是“转莲”和“转莲2”,并且从照片显示顺序来看,王江峰系该微信群的群主。
(2)张学善证实,他有一个微信群是“烟台公民交友群”,王江峰是他的微信好友,微信号是:wangjiangfeng2015,是王江峰把他拉进去的。王江峰在“烟台公民交友群”有2个微信昵称,开始是“转莲”,后来是“转莲2”。这个群是宣扬民主、政宪、人权、抨击时政的群,王江峰发过这方面的言论。并指出本案王江峰人口信息照片上的人就是他所认识的王江峰。其手机内“烟台公民交友群”微信群部分信息照片4张,证实该微信群中,“转莲”和“转莲2”都是王江峰的微信号,且“转莲2”是群主。
(3)陈光伟证实,他加入过一个“烟台公民交友群”公共微信群,群主是一个微信名叫“转莲2”的人,这个人他不认识。其手机内“烟台公民交友圈”微信群信息照片4张,显示该群群主是“转莲2”,“转莲2”和“转莲”两个微信的个性签名都是“殿陛之间禽兽食禄,狼心狗行之辈纷纷秉政”。
(4)王敬红证实,她认识王江峰,先后加了王江峰的两个QQ号,号码分别是[INTENTIONALLY DELETED]昵称“枫叶红”,另一个是1824759041昵称“红霞转莲”。她的QQ号码是60552****昵称“风雨兼程”。并指出本案王江峰人口信息照片上的人就是她认识的王江峰。其手机内关于QQ号“枫叶红”“红霞转莲”的信息照片4张,其中“枫叶红”的个性签名为“殿陛之间,禽兽食禄”,“红霞转莲”的个性签名为“狼心狗行之辈滚滚当朝”。另外“枫叶红”QQ号在空间内发表的说说,内有侮辱毛泽东、习近平等内容。
(5)范桂强证实,王江峰的QQ昵称是“红霞转莲”,账号是1824759041,他的QQ号码是475406940,昵称“金都缘”。他和王江峰加入QQ好友以后,通过QQ聊过没几次。王江峰通过QQ给他发过几次信息,他看到这些信息的内容不健康,不是正能量,就没有回复。其手机QQ关于昵称为“红霞转莲”的好友取证照片3张,与范桂强证言证实的内容一致。并指出本案王江峰人口信息照片上的人就是他认识的王江峰。
(6)闫芳证实,她有王江峰的一个QQ号,QQ昵称是“枫叶红”,是王江峰加她为QQ好友。其电脑QQ好友“枫叶红”的信息照片2张,从其QQ查看枫叶红空间看到的部分照片信息,显示“转莲2”和“枫叶红”都是王江峰。并指出本案王江峰人口信息照片上的人就是她认识的王江峰。
(7)王江峰妻子孙文娟证实,公安机关到她家扣押的一部黑色金立直板非智能手机,是王江峰随身携带的;一部深灰色华为手机,是王江峰的手机,他专用的,她和儿子没有用过。扣押了一部联想电脑主机,还有她母亲的手机卡,一个路由器和一个上网猫,还有王江峰的一些材料,她家电脑她不使用,一般都是王江峰用。她母亲没有微信、QQ,手机号是131****1129。
2、物证
(1)扣押的手机卡一个,备注显示号码为131****1129。
(2)扣押的黑色华为手机一部,备注为王江峰作案所用。
3.书证
(1)受案登记表,证实本案是由民警在工作中发现王江峰涉嫌犯罪事实。
(2)户籍信息,证实被告人王江峰作案时已达完全负刑事责任年龄。
(3)招远市公安局网安大队出具的办案说明,证实民警在对从王江峰住处查扣的一部华为手机进行检验时,发现该手机有锁屏密码,无法进入系统,通过技术手段对该密码进行了破解,成功解锁屏幕打开手机。
(4)招远市公安局网安大队出具的检验说明,证实2016年9月9日,罗峰派出所送检4部手机,1台台式电脑主机。从其中1部智能手机(应为前述有密码的华为手机)中取证到QQ、微信聊天记录。
(5)由中国移动公司烟台莱山分公司出具的IP使用记录及宽带账户信息等,证实王江峰用138****3179的手机号开户的宽带账户,在2016年8月份到9月份期间,多次频繁登陆上网。
(6)招远市公安局罗峰派出所出具的办案说明一,证实2016年10月3日上午,招远市公安局民警对高绍珍调查询问,其对王江峰人口信息上的照片进行了确认,在其手机微信中找出王江峰的微信号:wangjiangfeng2015,昵称“转莲”,电话号码138****3179。其系王江峰的QQ好友。高绍珍称,其与王江峰不在固定群里,但是过去常能看见王江峰QQ空间发的关于上访等方面的负面信息。民警对高绍珍手机内关于王江峰的这些信息拍照取证,对整个过程制作视频光盘。高绍珍手机照片4张,显示高绍珍的一名微信好友微信名叫“转莲”,微信号是wangjiangfeng2015,电话号码是138****3179;同时该手机号码在高绍珍QQ好友里对应的QQ昵称是“姜哥”。
(7)招远市公安局罗峰派出所出具的办案说明二,证实2016年10月3日上午,招远市公安局民警在询问孙文娟过程中,其称不知道其丈夫王江峰微信、QQ等相关情况,她从来没有用过王江峰的QQ和微信。其母亲在她家里住了一个多月了,只会用电话简单拨号,不会用微信和QQ,也不知道王江峰的QQ和微信号。排除了王江峰妻子或母亲使用王江峰微信或QQ账号上网发表相关言论的情形。
(8)招远市公安局罗峰派出所出具的办案说明三,证实招远市公安局接到上级公安部门多次转发的互联网信息情报,涉及招远网民王江峰,网安大队民警遂开始对信息情报中涉及微信号、QQ号、微博通过网络搜索并远程勘验,先后制作光盘二张。
(9)前科查询、招远市人民法院刑事判决书、劳动教养决定书,证实被告人王江峰受刑事处罚、劳动教养的情况。
(10)烟台市公安局网安支队于2016年9月3日和9月8日出具的两份工作情况,证实根据公安部、山东省公安厅相关部门的通报,烟台市网民“转莲”(微信ID905794705)、“转莲2”(微信ID1566529368,账户名:zywjf2016,绑定QQ号[INTENTIONALLY DELETED],手机[INTENTIONALLY DELETED])、QQ网名“风吹JJ哦”(QQ号[INTENTIONALLY DELETED],与转莲2的绑定QQ号相同)通过微信和QQ,从2016年6月份至9月初,先后在微信朋友圈、微信群以及QQ群发布侮辱国家领导人、抹黑中国共产党、攻击社会主义制度等言论。
4、现场勘查记录
(1)2016年9月9日的搜查笔录,证实公安人员当天在王江峰家中依法搜查并扣押到其涉嫌用于犯罪活动的电脑、手机等工具的过程。
(2)扣押物品清单、暂管物品清单、现场照片,证实公安民警于2016年9月9日在王江峰住处扣押黑色诺基亚直板非智能手机一部;黑色华为TL00型号智能手机一部;白色OPPO牌手机一部(无法开机);黑色联想牌台式电脑主机一台;李德成、薛玉双等上访人上访资料一宗;黑色金立牌直板非智能手机一部。民警将搜查、扣押的相关物品予以登记并拍照。
(3)2016年9月28日的搜查笔录及扣押清单,证实办案民警当天在王江峰的住处搜查王江峰的上网设备和手机或手机卡号131****1129。扣押手机卡一个(131****1299),无线上网设备一个,联通上网设备一个的过程及上述物品的特征。
5、视听资料、电子数据
(1)招远市公安局电子数据检验笔录,证实经专业人员以专业设备,对王江峰使用的一部华为手机进行检验,提取并固定相关内容,生成了html格式报告1份,并将提取到的证据数据刻录在编号为YTZY2016013-001的光盘内,同时拍摄照片5张,截图6张。
(2)视频资料
i.根据从王江峰华为手机中取证到的内容所制作的光盘,证实王江峰QQ号1824759041昵称“红霞转莲”的QQ中,QQ号[INTENTIONALLY DELETED]昵称“枫叶红”的QQ中,除了攻击执政党和现政权的言论外,包含有大量辱骂、贬损已故国家领导人毛泽东和现任国家领导人习近平的言论。
微信“转莲2”,微信号zywjf2016,关联的QQ号码[INTENTIONALLY DELETED],关联的手机[INTENTIONALLY DELETED]。该微信号共向21名微信好友发送了辱骂、贬损已故国家领导人毛泽东和现任国家领导人习近平的言论。
该微信号在有70余名成员的“烟台公民交友圈”5次发表过辱骂、贬损已故国家领导人毛泽东和现任国家领导人习近平的言论及8条攻击现政权的信息。
该微信号在朋友圈(群成员360人)6次发表过辱骂、贬损已故国家领导人毛泽东和现任国家领导人习近平的言论及10余条攻击现政权的信息。
ii.王江峰舆情反馈光盘、远程勘验盘光盘,系公安机关在监控王江峰以“转莲”这个微信号发表的相关言论时做的记录,显示王江峰因对自己的犯罪和违法行为被处理不服,以“转莲”的微信号多次在微信群发布诋毁、辱骂现任国家领导人习近平的言论。
iii.从深圳腾讯公司调取的证据光盘,证实王江峰微信号“转莲”、“转莲2”的相关账户信息。
iv.搜查视频光盘,证实公安人员依法到王江峰家进行搜查并扣押相关物品的过程。
v.询问高绍珍光盘,内容与招远市公安局罗峰派出所出具的办案说明一及高绍珍手机信息照片四张所反映的内容一致。
vi.询问孙文娟光盘,证实公安民警询问孙文娟的过程。
vii.公安部监控系统的相关证据制作的光盘,根据公安部下发的王江峰网上言论材料制作的视频,视频显示的内容与侦查卷121-127页所说明的内容一致。
6、被告人供述
被告人王江峰对其利用微信、QQ等平台采用文字、图片等方式发表辱骂、诋毁已故或现任国家领导人的言论事实供认不讳。综上,本案事实清楚,证据确实充分,足以认定。
本院认为,被告人王江峰于2016年6月份至9月9日期间,多次利用微信、QQ等平台采用文字、图片等方式发表辱骂、诋毁已故或现任国家领导人的言论,破坏社会秩序,情节恶劣,其行为构成寻衅滋事罪。公诉机关指控的罪名成立。其曾因犯职务侵占罪被判处有期徒刑,系有故意犯罪前科,主观恶性较大,应对其酌予从重处罚。
关于被告人王江峰辩解:“其发布的内容都是他转发别人的,不是他原创的,他转发这些不当言论是因对法院的判决不服,在上访过程中多次被行政处罚,系事出有因,不构成寻衅滋事犯罪。”本院认为,发表任何言论都应该在法律许可的范围内,不能含有侮辱、诽谤他人,攻击他人人格的言辞,且虽然被告人发布的上述言论不是其本人原创,但他多次转发,亦体现其主观上具有辱他人的故意,且在网络空间传播,严重破坏社会秩序,故其关于“其行为不构成寻衅滋事罪”的辩解不符合事实和法律规定,本院不予采纳。
关于被告人王江峰的辩护人李永恒辩称,“被告人利用信息网络发表涉及到毛泽东,习近平个人人格降低的言论时并不是针对个人人品进行攻击,均是在向杭州峰会、对外援助这些重大国家政治事件中发表的不满言论,我国刑法寻衅滋事罪辱骂、恐吓他人是指普通的自然人,不应当包含政治领袖和政治人物。”本院认为,被告人发表的言论中,包涵大量侮辱、诽谤他人人格的言辞,已经超出了对政治事件进行评价的范畴。国家领导人同时具有自然人和政治人物的双重身份,被告人通过微信、QQ等形式转发或者发表诋毁毛泽东、习近平的文字、图片,这些信息严重贬损了毛泽东、习近平个人的声誉,同时由于毛泽东、习近平具有已故或者现任国家领导人的特殊身份,对他们个人声誉,形象的诋毁必然在群众心目中造成对中国共产党、对社会主义制度、对人民民主专政政权的负面认知,极易引起人心混乱、社会动荡,性质严重,情节恶劣,严重破坏了社会秩序。故辩护人的相关辩护意见不符合法律规定,本院亦不予采纳。
关于辩护人祝圣武辩称,“被告人在网络空间发布不当言论,不属于在公共场所。在朋友圈发表言论和在公共场所发表言论性质不一样。”本院认为,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》明确规定,“利用信息网络辱骂、恐吓他人,情节恶劣,破坏社会秩序的,依照刑法第二百九十三条第一款第(二)项的规定,以寻衅滋事罪定罪处罚。”网络空间同样属于公共场所的范畴,故该辩护人的相关辩护意见不符合法律规定,本院不予采纳。其关于“对政治人物的非议、否定性评价和谩骂言论不构成犯罪。被告人的言论是事出有因的,其言论和其自身人身经历有关系;这些言论都依托于具体的政治事件。被告人的言论均是转发的,而不是原创的。被告人的言论不构成情节恶劣,不构成犯罪”的辩护意见,与被告人王江峰及另一辩护人的辩解及辩护意见相同,均不符合法律规定,本院亦不予采纳。
被告人王江峰当庭能够承认自己发表的不当言论,并表示悔过,可对其酌予从轻处罚。依照《中华人民共和国刑法》第二百九十三条第一款第(二)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>》第五条之规定,判决如下:
被告人王江峰犯寻辞滋事罪,判处有期徒刑二年。(刑期自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2016年9月9日起到2018年9月8日止)。
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烟台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 刘永文
人民陪审 员敬远
人民陪审员 丁洪云
二0一七年四月七日
书记员 马丽
