For more information about how this case shaped the future of China's jurisprudence around people's expressions of views relating to deceased individuals and historical events deemed by the Communist Party of China to be beyond reproach, see "Supreme People's Court Website Explains Why Courts Found Author Guilty of Defaming Dead Heroes " http://blog.feichangdao.com/2016/11/supreme-peoples-court-website-explains.html.
Intermediate People's Court of Guangzhou
Administrative Judgment
(2011) Sui Intermediate Judicial Administrative Final No. 570
Appellant (the plaintiff in the original trial ): Zhang Guanghong, residing in Guangzhou.
Entrusted Counsel: Zhang Peng, Beijing Zhongyingkai Law Firm.
Entrusted Counsel: Ge Yongxi, Guangdong Anguo Law Firm.
Appellee (the defendant in the original trial): The Yuexiu precinct of the Public Security Bureau of Guangzhou. Location: Guangzhou.
Legal representative: Cai Wei, Position: Director.
Entrusted Counsel: Hu Jiaqiang and Zhou Peixin are both civilian police officers of the precinct.
In connection with an administrative punishment case, appellant Zhang Guanghong did not accept the People's Court of Yuexiu's (2013) Sui Yue Judicial Administrative First Instance No. 368 administrative judgment, and raised an appeal with this Court. This Courtformed a collegial panel in accordance with the law and tried this case. The trial in this case has now concluded.
The case was tried by the original court which found: At about 12:15 am on August 27, 2013, the plaintiff in the original trial Zhang Guanghong was in Room 103, No. 1, Wenhuali, Yuexiu District, Guangzhou, and used his laptop to post a microblog on Sina Weibo (screen name: Nianhuaxiaofo223, address: http://weibo.com/lianhuaxiaofo223) with this content: "Teacher Yuan Tengfei was filming the movie 'The Five Heroes of Wolf Tooth Mountain' and went to the local area to learn the truth, and the villagers said: These five people are just a few stragglers traveling bravely along with the militia. After they came to the village, they called for food and drink, and they would beat people at the slightest provocation. Because several of them had guns in their hands, the villagers did not dare to provoke them. Later, someone figured out a way to secretly tell the Japanese their whereabouts. The Japanese came to surround them and put them down. The villagers deliberately led the five men to an escape route that would leave them cornered." After that, the plaintiff in the original trial pasted the content of the microblog into his Tencent Weibo (screen name: Nianhuashiping23_833, address: http://t.qq.com/lianhuaxiaoofo23). As of August 29, 2013, the content of the Sina Weibo of the plaintiff in the original trial had been forwarded more than 2,000 times with more than 300 comments, while the content of the Tencent Weibo has been forwarded many times with more comments.
At about 8:00 pm on August 29, 2013, defendant the Yuexiu precinct of the Public Security Bureau of Guangzhou apprehended the plaintiff in the original trial and seized a laptop computer at the scene. The defendant investigated the aforementioned facts and investigated the verified Sina Weibo "YuanTengfeiV" (URL: http://weibo.com/yuantengfei). No relevant remarks involving the "The Five Heroes of Wolf Tooth Mountain" were found, so it was determined that the plaintiff in the original trial was spreading rumors about the "The Five Heroes of Wolf Tooth Mountain," and that fictitious facts were disrupting public order, and informed the plaintiff in the original trial of the facts, reasons, and basis of the punishment decision that would be made, as well as his right to make a statement and defense.
On the 30th of the same month, on the basis of the provisions of Articles 25(1) and 11(1) of the "Public Security Administrative Punishments Law of the People's Republic of China," the defendant decided to impose a punishment of seven days administrative detention on the plaintiff in the original trial and confiscate the laptop computer used in this case. The plaintiff in the original trial did not accept the aforementioned punishment decision, and applied to the Public Security Bureau of Guangzhou for administrative reconsideration. That bureau issued the Sui Public Reconsideration Decision (2013) No. 154 "Administrative Reconsideration Decision" on October 30, 2013, and decided to sustain the aforementioned penalty decision made by the defendant.
The plaintiff in the original trial again did not accept this, and thereupon filed the lawsuit in this case.
The court in the original trial held that Article 25 of the "Public Security Administrative Punishments Law of the People's Republic of China" provides: "A person who commits one of the following acts shall be detained for not less than 5 days but not more than 10 days and may, in addition, be fined not more than 500 yuan; and if the circumstances are relatively minor, he shall be detained for not more than 5 days or be fined not more than 500 yuan: (1) intentionally disturbing public order by spreading rumors, making false reports of dangerous situations and epidemic situations or raising false alarms or by other means . . . " And Article 11(1) provides: "Contraband seized in dealing with cases of public security such as drugs and pornographic objects, gambling devices, money for gambling, devices used for ingesting or injecting drugs, and the instruments owned and directly used by the persons in their acts against the administration of public security shall be taken over, and shall be disposed of according to relevant regulations." In this case the plaintiff in the original trial submitted that the microblog about "The Five Heroes of Wolf Tooth Mountain" originated from "Teacher Yuan Tengfei," the content had been spreading for many years, and did not originate with the plaintiff in the original trial. Even if the fictitious content was not made up by plaintiff in the original trial, the defendant's investigation of the verified Sina Weibo "YuanTengfeiV" found no relevant remarks involving The Five Heroes of Wolf Tooth Mountain. Therefore, the defendant determined that the plaintiff in the original trial made up fictitious facts on Weibo, and the facts were clear and the evidence was copious that he had produced and spread rumors. The aforementioned illegal actions of the plaintiff in the original trial caused adverse effects on the Internet and disrupted public order. Therefore, the defendant's punishment decision made after the illegal facts of the plaintiff in the original trial were uncovered was found to comply with the aforementioned provisions. The plaintiff in the original trial has insufficient basis to request that the penalty decision be revoked, his computer be returned, and he receive compensation, and his requests should not be granted.
In summary, in accordance with the provisions of Article 56(4) of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Implementation of the 'Administrative Procedure Law of the People's Republic of China'" and Article 33 of the "Supreme People's Court Provisions on Several Issues Concerning Trials of Administrative Compensation Cases" the judgment of the court in the original trial was as follows: 1. The claims of the plaintiff in the original trial Zhang Guanghong were rejected； 2. The request for compensation of the plaintiff in the original trial Zhang Guanghong was rejected.
Appellant Zhang Guanghong did not accept this judgment in the original trial and appealed to this court as follows:
1. The trial of first instance ignored the facts of the case and hastily dismissed the appellant’s petition, and a correction is in order.
(i) In this case, the appellant was sentenced to seven days administrative detention on the grounds that the appellant spread rumors that violated historical facts. The court of first instance should find out what the historical facts involved in the case are, and if the facts underlying the history involved in this case cannot be determined, it is impossible to determine whether the content of the microblog posted by the appellant is a rumor. Since it cannot be judged whether the content of the microblog posted by the appellant is a rumor, the punishment decision imposed on the appellant is incorrect.
(ii) The appellant’s actions on Weibo did not cause any socially harmful consequences. The appellee believed that the appellant’s microblog disturbed public order, but in fact there was no evidence to prove that social order was disrupted by the appellant’s actions on Weibo, or by the appellee’s microblog being reposted more than 2,000 times and commented on more than 300 times. As for the determination that the appellant’s actions vilified the shining image of revolutionary martyrs, the appellant believed that the number of times the microblog was reposted and commented on was not an actual socially harmful consequence. If the social public order is disturbed, it will definitely show specific harmful consequences, such as causing casualties, forced landings, road blockages, and soaring prices, but the appellee did not produce any evidence to prove it. If social public order is disrupted, it will definitely manifest in specific harmful consequences, such as causing casualties, forced landings for airplanes, road blockages, and soaring prices, but appellee did not provide any evidence to prove this.
(iii) The content of the microblog at issue in this case was not the appellant’s original content, but was what the appellant saw on a microblog called "Teacher Yuan Tengfei." This microblog was a Netease Weibo. The appellee took no steps whatsover to examine the "Teacher Yuan Tengfei" microblog and instead went and examined a microblog called "Yuan Tengfei V." With respect to this, the appellant's entrust counsel repeatedly emphasized in the trial of first instance that "Teacher Yuan Tengfei" microblog and the "Yuan Tengfei V" microblog are two fundamentally different microblogs.
(iv) In posting the microblog the appellant did not deliberately disturb public order. When the appellant was questioned by the appellee, he made it very clear that he posted the microblog because he believed that the content of the microblog might be true, and had not desire to disturb the social order.
(v) The administrative punishment decision made by the appellee has the following problems: the case acceptance procedure, the summoning procedure, the inspection procedure, and the seizure procedure were illegal, the time for interrogation and verification exceeded the time limit, the appellantwas not informed of his rights and obligations at the time of the summons or before the interrogation, the police handling the case did not sign the inquiry transcript.
(vi) The appellee seized the plaintiff’s laptop computer without any factual basis. Even if the appellant’s microblog posting was a violation of public security administration, when the appellee seized one of his laptop computers, it should also have checked whether the seized silver-white 14-inch Shenzhou laptop with the model EUS5 was the computer directly used to post the "Five Heroes of Wolf Tooth Mountain" microblog, and should have ascertained whether the computer was directly owned by Zhang Guanghong himself. The appellee did not do any of this.
2. The appellee applied the law incorrectly. The legal basis cited by the appellee and the court of first instance in this case was the provisions of Article 25(1) of the "Public Security Administration Punishments Law of the People’s Republic of China." However, according to that article, "A person who commits one of the following acts shall be detained for not less than 5 days but not more than 10 days and may, in addition, be fined not more than 500 yuan; and if the circumstances are relatively minor, he shall be detained for not more than 5 days or be fined not more than 500 yuan: (1) intentionally disturbing public order by spreading rumors, making false reports of dangerous situations and epidemic situations or raising false alarms or by other means." The appellant believes that the following conditions must be met to apply the first clause of that law: (i) There must be evidence to prove that the punished person fabricated and spread rumors; (ii) The content of the rumors must be terrorist information that is capable of causing the public to panic as well as cause disruption in the social order; and (iii) The publisher of the rumors intended to disturb public order. In this case, these three conditions were not met. Obviously, the appellee's application of the law in the trial of first instance was entirely incorrect.
In summary, the judgment in the trial of first-instance was rendered without ascertaining the facts of the case and applying the law incorrectly. Therefore, the appeal requests: 1. Revoke the (2013) Sui Yue Judicial Criminal First No. 368 Administrative Judgment, and amend the judgment in accordance with the law to sustain the entiriety of the appellant's petition filed in the trial of first instance; 2. The litigation costs of the first and second instance trials of this case be borne by the defendant.
Appellee the Yuexiu precinct of the Public Security Bureau of Guangzhou argues:
1. The facts of the appellee's administrative punishment decision on the appellant are clear and the evidence is conclusive. At 12:15 am on August 27, 2013, Appellant Zhang Guanghong was in Room 103, No. 1, Wenhuali, Yuexiu District, Guangzhou, using his laptop computer to access Sina Weibo. He spread rumors about "The Five Heroes of Wolf Tooth Mountain" on the Internet, intentionally disrupted public order, and afterwards was taken into custody. The aforementioned facts were confirmed by relevant evidentiary materials such as the offender's statement and defenses, physical evidence, and inspection transcripts.
2. The punishment decision procedure made by the appellee was legal, the law was applied correctly, and the punishment was appropriate. Based on the aforementioned facts and evidence, the appellee believes that the deeds of the "Five Heroes of Wolf Tooth Mountain" are well-known historical facts. Appellant Zhang Guanghong nevertheless used his own Sina Weibo to spread rumors and posts about the "Five Heroes of Langya Mountain" and twisted the image of those revolutionary martyrs. The rumors were reposted more than 2,500 times, and commented on more than 300 times, which caused a bad influence on the Internet and disrupted public order. Appellant Zhang Guanghong's actions violated Article 25 of the "Public Security Administrative Punishments Law of the People's Republic of China," constitute acts of spreading rumors that disturbed public order, and should be punished in accordance with the law.
Prior to rendering the administrative punishment decision, the appellee had notified appellant Zhang Guanghong of the facts, reasons, and basis for the administrative penalty decision, and informed him of his legal rights. On August 30, 2013, the appellee rendered the Sui Public Yue Administrative Punishment Decision (2013) No. 03759 "Administrative Punishment Decision" in accordance with Articles 25(1) and 11(1) of the "Public Security Administrative Punishments Law of the People's Republic of China" deciding to subject appellant Zhang Guanghong to seven days administrative detention and to confiscate a laptop computer used as a tool in commission of the offense. In summary, the Sui Public Yue Administrative Punishment Decision (2013) No. 03759 "Administrative Punishment Decision" rendered by the appellee was based clear facts, conclusive evidence, legal procedures, appropriate punishments, and correct application of laws. The facts determined in the judgment of the trial of first instance were clear, the procedures were legal, and the application of the law was correct. It is requested the court reject the appellant’s claims in accordance with the law.
It was ascertained at trial that, the facts determined in by the court in the original trial were clear and were substantiated by corresponding evidence, and are affirmed by this Court. Upon further examination, the appellant submitted two new items of evidence in the trial of second instance hearing proceedings:
1. A report from Caijing Net, to prove that even the appellee's claims about the Five Heroes of Wolf Tooth Mountain in elementary school textbooks are not consistent with the facts; and
2. The appellant's searches for comments about the Five Heroes of Wolf Tooth Mountain on Sina Weibo.
The appellee issued a cross-examination opinion in court, stating that according to the Supreme People’s Court's "Regulations on Several Issues of Evidence in Administrative Litigation," the aforementioned evidence was not new evidence and should not be accepted, and the aforementioned evidence could not be seen clearly, and could not be cross-examined by the appellee.
This Court finds that Article 25 of the "Public Security Administrative Punishments Law of the People's Republic of China" provides: "A person who commits one of the following acts shall be detained for not less than 5 days but not more than 10 days and may, in addition, be fined not more than 500 yuan; and if the circumstances are relatively minor, he shall be detained for not more than 5 days or be fined not more than 500 yuan: (1) intentionally disturbing public order by spreading rumors, making false reports of dangerous situations and epidemic situations or raising false alarms or by other means." Article 11(1) provides: "Contraband seized in dealing with cases of public security such as drugs and pornographic objects, gambling devices, money for gambling, devices used for ingesting or injecting drugs, and the instruments owned and directly used by the persons in their acts against the administration of public security shall be taken over, and shall be disposed of according to relevant regulations."
In this case, at 12:15 am on August 27, 2013, the appellant was in Room 103, No. 1, Wenhuali, Yuexiu District, Guangzhou, and used his laptop computer to post a microblog on Sina Weibo (screen name: Nianhuaxiaofo223, address: http://weibo.com/lianhuaxiaofo223) to post a microblog about "The Five Heroes of Wolf Tooth Mountain." After that, he pasted the content of the microblog into his Tencent Weibo (screen name: Nianhuashiping23_833, address: http://t.qq.com/lianhuaxiaoofo23). As of August 29, 2013, the content of the Sina Weibo of the plaintiff in the original trial had been forwarded more than 2,000 times with more than 300 comments, while the content of the Tencent Weibo has been forwarded many times with more comments.
The appellee believes the appellant used the Internet to post a made up story about "The Five Heroes of Wolf Tooth Mountain," twisted the image of revolutionary martyrs, causing adverse effects online, and this constitutes an act of spreading rumors and disturbing public order, and should be punished for his involvement in the case in accordance with the aforementioned provisions. In addition, in accordance with the law before rendering the administrative punishment decision, the appellant notified appellant Zhang Guanghong of the facts, reasons, and basis for the administrative punishment decision, and informed him of his legal rights in accordance with the law. Therefore, the court in the original trial was justified in finding insufficient basis to grant the appellant's request to revoke the administrative punishment, return the computer and provide compensation, and this is sustained by this Court.
Regarding the issue of the appellant’s claim that the seizure of his laptop computer was without factual basis, an investigation found that the appellant had stated in the questioning transcript that he used his own laptop computer to go online and post the microblog in question and that he was the only person to use that laptop computer in his home. This Court does not sustain the appellant’s afformentioned claims. Regarding the appellant’s opinion that the appellee violated relevant regulations in the process of receiving the case, summons, inspection, seizure, inquiry and verification, etc., an investigation found that the appellee had submitted relevant evidence to prove the legality of the administrative punishment involved in the case, whereas the appellant did not provide sufficient evidence to substantiate his claim, and this Court does not accept it.
As regards the two new pieces of evidence submitted by the appellant in the trial of second instance, Article 7 of the "Provisions of the Supreme People's Court on Several Issues Concerning Evidence in Administrative Litigation" provides: "A plaintiff or a third party shall provide evidence before the hearing or on the day of the exchange of evidence designated by the People's Court. Those who apply for an extension for providing evidence due to legitimate reasons may be granted permission by the People’s Court in court investigations. If evidence is provided after the deadline, the right to submit evidence is deemed to have been waieved. Where a plaintiff or the third party in the first trial proceedings submits evidence in the second trial proceedings which was not submitted in the first trial without legitimate reason, the People's Court will not admit it." An investigation found that the appellant in the trial of second instance submitted new evidence. That evidence existed prio to the proceeding in the trial of first instance, and the appellant did not submit the aforementioned evidence udring the trial of first instance and did not have any justification. Therefore, the two pieces of aforementioned evidence are not deemed to be new evidence, and in accordance with the law this this Court does not accept them.
In summary, the facts found in the original judgment were clear, the law was applied correctly, the procedures were legal, and are sustained by this Court. The appellant’s reasons for appeal are not established and are rejected by this Court. In accordance with the provisions of Article 89(1) of the "Administrative Procedure Law of the People’s Republic of China," and after discussion and decision by the adjudicative committee of this Court, the judgment is as follows:
The appeal is rejected, and the judgment in the original trial is sustained.
The trial of second instance case acceptance fee is 50 yuan, which shall be borne by appellant Zhang Guanghong.
This judgment shall be the final judgment.
Chief Adjudicator: Zhu Lin
Adjudicator: Xiao Xiaoli
Acting Adjudicator Yao Wei
May 20, 2015
Clerk Zhou Wenjing
广东省广州市中级人民法院
行 政 判 决 书
（2011）穗中法行终字第570号
上诉人（原审原告）：张广红，住广州市。
委托代理人：张鹏，北京众赢凯律师事务所律师。
委托代理人：葛永喜，广东安国律师事务所律师。
被上诉人（原审被告）：广州市公安局越秀分局。住所地：广州市。
法定代表人：蔡巍，职务：局长。
委托代理人：胡佳强、周培新，均系该分局民警。
上诉人张广红因行政处罚一案，不服广州市越秀区人民法院（2013）穗越法行初字第368号行政判决，向本院提起上诉。本院依法组成合议庭，审理了本案。本案现已审理终结。
案经原审法院审理查明：2013年8月27日0时15分许，原告张广红在广州市越秀区文化里1号103房内，使用其本人笔记本电脑在新浪微博（网名：拈花笑评223，地址：http：／／weibo.com／lianhuaxiaofo223）上发布一篇微博，内容为：“老师袁腾飞拍‘狼牙山五壮士’电影编剧，邢某去当地了解实情，村民说：这五人只不过是几个散兵游勇土八路，来村里后要吃要喝，稍不如意就打人。由于几人手上有枪，村民们也不敢惹。后来有人想出了个办法，偷偷地把他们的行踪告诉日本人。日本人就来围剿了。村民故意引5人绝路逃跑。”之后，原告又将该微博内容粘贴至其腾讯微博（网名：拈花时评23_833，地址：http：／／t.qq.com／lianhuaxiaofo23）。至2013年8月29日止，原告的新浪微博中该条微博内容被转发二千多次，评论三百多条，其腾讯微博中该条微博内容被转发多次，评论多条。2013年8月29日22时许，被告广州市公安局越秀区分局将原告抓获，现场缴获笔记本电脑一台。被告经调查查明上述事实并查阅了新浪认证微博“袁腾飞V”（网址：http：／／weibo.com／yuantengfei），未有发现涉及狼牙山五壮士的相关言论，遂认定原告散布关于“狼牙山五壮士”的相关谣言，虚构事实扰乱公共秩序，告知原告拟作出处罚决定的事实、理由、依据及陈述和申辩的权利。同月30日，被告依据《中华人民共和国治安管理处罚法》第二十五条第（一）项及第十一条第一款之规定，作出穗公越行罚决字（2013）第03759号《行政处罚决定书》，决定对原告处以行政拘留七日，收缴作案工具笔记本电脑一台。原告对上述处罚决定不服，向广州市公安局申请行政复议。该局于2013年10月30日作出穗公复决字（2013）154号《行政复议决定书》，决定维持被告作出的上述处罚决定。原告仍不服，遂提起本案诉讼。
原审法院认为，《中华人民共和国治安管理处罚法》第二十五条规定：“有下列行为之一的，处五日以上十日以下拘留，可以并处五百元以下罚款；情节较轻的，处五日以下拘留或者五百元以下罚款：（一）散布谣言，谎报险情、疫情、警情或者以其他方法故意扰乱公共秩序的；……。”第十一条第一款规定：“办理治安案件所查获的毒品、淫秽物品等违禁品，赌具、赌资，吸食、注射毒品的用具以及直接用于实施违反治安管理行为的本人所有的工具，应当收缴，按照规定处理。”本案原告提出关于“狼牙山五壮士”的微博源自“老师袁腾飞”，内容已传播多年不是原告的原创，即使内容失实也不是原告虚构的，但经被告调查新浪认证微博“袁腾飞V”后未发现涉及狼牙山五壮士的相关言论，因此被告认定原告在微博中虚构事实，制作并发布谣言的事实清楚、证据充分。原告的上述违法行为在网络上造成了不良影响，扰乱了公共秩序，故被告查明原告该违法事实后作出的处罚决定符合上述有关规定，原告请求撤销该处罚决定并发还电脑及赔偿的理由不充分，应不予采纳。综上所述，依照《最高人民法院关于执行〈中华人民共和国行政诉讼法〉若干问题的解释》第五十六条第（四）项、《最高人民法院关于审理行政赔偿案件若干问题的规定》第三十三条的规定，原审法院判决如下：一、驳回原告张广红的诉讼请求；二、驳回原告张广红的赔偿请求。
上诉人张广红不服原审判决，上诉至本院称：一、一审罔顾本案事实，草率驳回上诉人的诉请，依法应当予以纠正。（一）本案中被上诉人以上诉人散布违背历史事实的谣言为由，对上诉人处以七日行政拘留，那么原审法院应当查明本案所涉的历史事实到底是什么，若不能查清本案所涉历史事实是什么，就无法判定上诉人所发的微博内容到底是谣言。既然不能判决上诉人所发的微博内容是不是谣言，那么对上诉人作出的处罚决定就是错误的。（二）上诉人发微博的行为，没有造成任何的社会危害后果。被上诉人认为上诉人发微博扰乱公共秩序，但实际上没有证据证明社会秩序因上诉人发微博的行为而产生混乱，被上诉人仅以上诉人的微博被转发了二千余次、评论三百多条，而认定上诉人的行为诋毁革命先烈的光辉形象，上诉人认为微博被转发、评论的次数不是实际的社会危害后果。若社会公共秩序被扰乱，那一定会表现出具体的危害后果，比如造成人员伤亡、飞机迫降、道路堵塞、物价飞涨等情形的发生，但被上诉人没有拿出任何的证据来予以证明。（三）本案所涉的微博内容不是上诉人的原创，而是上诉人在一个叫“老师袁腾飞，的微博上看到的，此微博是一个网易微博。被上诉人根本没有去查“老师袁腾飞”的微博，而去查一个叫“袁腾飞V”的微博，对此上诉人的代理人在一审时已经反复强调，“老师袁腾飞”与“袁腾飞V”，根本就是两个不同的微博。（四）上诉人在发该微博没有故意扰乱公共秩序的故意。上诉人在接受被上诉人询问时，已经说的很清楚，其发该微博的是因为其认为该微博的内容可能是真实的，而不是想扰乱社会秩序。（五）被上诉人作出的行政处罚决定存在以下问题：受案程序、传唤程序、检查程序、扣押程序违法，询问查证的时间超过了时限，未在传唤时或者询问前告知上诉人的权利义务，办案民警没有在询问笔录上签字。（六）被上诉人收缴原告的笔记本电脑一台没有任何的事实依据。即使上诉人发微博是违反治安管理的行为，被上诉人在收缴其笔记本电脑一台时，也应当查清楚被收缴的型号为EUS5的银白色14寸神舟笔记电脑是不是直接用于发有关于“狼牙山五壮士”微博的电脑，查明该电脑是不是直接为张广红本人所有，而被上诉人根本没有做这些。二、被上诉人适用法律错误。本案中被上诉人及一审引用的法律依据是《中华人民共和国治安管理处罚法》第25条第1款的规定，但根据该条规定“有下列行为之一的，处五日以上十日以下拘留，可以并处五百元以下罚款；情节较轻的，处五日以下拘留或者五百元以下罚款：（一）散布谣言，谎报险情、疫情、警情或者以其他方法故意扰乱公共秩序的”。上诉人认为，适用该法条第一项的规定，必须要具备以下条件：（1）、有证据证实被处罚人捏造、散布了谣言；（2）、谣言的内容必须是恐怖信息，能引起社会公众的恐慌，也能造成社会秩序的混乱。（3）、谣言的发布者有扰乱公共秩序的故意。而本案中根本不具备这三个条件，显然被上诉人及一审适用法律完全是错误的。综上，一审判决是在没有查明本案事实、适用法律错误的基础上作出的，故上诉请求：一、撤销（2013）穗越法行初字第368号行政判决书，依法改判支持上诉人在一审时提出的全部诉请；二、本案一、二审诉讼费由被告承担。
被上诉人广州市公安局越秀分局辩称：一、被上诉人对上诉人作出的行政处罚决定事实清楚，证据确凿。2013年8月27日0时15分许，上诉人张广红在广州市越秀区文化里1号103房内，使用其本人笔记本电脑在新浪微博上散布关于“狼牙山五壮士”的相关谣言，故意扰乱公共秩序，后被查获。上述事实有违法人的陈述和申辩、物证、检查笔录等相关证据材料予以证实。二、被上诉人做出的处罚决定程序合法、适用法律正确、处罚恰当。根据上述事实与证据，被上诉人认为“狼牙山五壮士”事迹是众所周知的历史事实，上诉人张广红却利用其本人的新浪微博，散布关于“狼牙山五壮士”的谣言帖子，歪曲革命先烈的形象。该谣言被转发两千五百余次，评论三百余条，在网络上造成了不良影响，扰乱了公共秩序。上诉人张广红的行为违反《中华人民共和国治安管理处罚法》第二十五的规定，构成散布谣言扰乱公共秩序的行为，依法应当受到处罚。在作出行政处罚决定前，被上诉人已依法向上诉人张广红告知拟作出行政处罚决定的事实、理由及依据，并告知其依法享有的权利。2013年8月30日，被上诉人根据《中华人民共和国治安管理处罚法》第二十五条第一项、第十一条第一款之规定，作出穗公越行罚决字（2013）第03759号《行政处罚决定书》，决定对上诉人张广红处以行政拘留七日，收缴作案工具笔记本电脑一台。综上所述，被上诉人做出的穗公越行罚决字（2013）第03759号《行政处罚决定书》事实清楚、证据确凿、程序合法、处罚适当、适用法律正确。一审判决认定事实清楚、程序合法、适用法律正确。请求法院依法驳回上诉人的诉讼请求。
经审理查明，原审法院认定事实清楚并有相应的证据予以证实，本院予以确认。另查，上诉人在二审审理过程中提交了两份新证据：一、财经网的报道，拟证明即使被上诉人主张小学课本的狼牙山五壮士也是与事实不符的；二、上诉人在新浪微博搜索狼牙山五壮士的评论。被上诉人当庭发表质证意见称，根据最高人民法院《关于行政诉讼证据若干问题的规定》，上述证据不属于新证据，应不予接纳，且上述证据无法看清，被上诉人不予质证。
本院认为，《中华人民共和国治安管理处罚法》第二十五条规定：“有下列行为之一的，处五日以上十日以下拘留，可以并处五百元以下罚款；情节较轻的，处五日以下拘留或者五百元以下罚款：（一）散布谣言，谎报险情、疫情、警情或者以其他方法故意扰乱公共秩序的；……。”第十一条第一款规定：“办理治安案件所查获的毒品、淫秽物品等违禁品，赌具、赌资，吸食、注射毒品的用具以及直接用于实施违反治安管理行为的本人所有的工具，应当收缴，按照规定处理。”本案中，上诉人于2013年8月27日0时15分许在广州市越秀区文化里1号103房内，使用其本人笔记本电脑在新浪微博（网名：拈花笑评223，地址：http：／／weibo.com／lianhuaxiaofo223）上发布一篇关于“狼牙山五壮士”的微博，后又将该微博内容粘贴至其腾讯微博上（网名：拈花时评23_833，地址：http：／／t.qq.com／lianhuaxiaofo23）。至2013年8月29日止，上诉人的新浪微博中该条微博内容被转发二千多次，评论三百多条，其腾讯微博中该条微博内容被转发多次，评论多条。被上诉人认为上诉人利用网络发布了虚构的“狼牙山五壮士”故事，歪曲革命烈士形象，在网络上造成了不良影响，构成散布谣言、扰乱公共秩序的行为，对其作出涉案处罚，符合上述规定。且被上诉人在作出行政处罚决定前，已依法向上诉人张广红告知拟作出行政处罚决定的事实、理由及依据，并告知其依法享有的权利。因此原审法院以上诉人主张撤销该行政处罚并发还电脑及赔偿的请求理据不足，并无不当，本院予以支持。对于上诉人主张收缴其笔记本电脑无事实依据的问题，经审查，上诉人在询问笔录中已陈述是用自己的笔记本电脑上网并发布涉案微博，该笔记本电脑在其家里只有其一人使用，故对于上诉人的上述主张，本院不予支持。对于上诉人认为被上诉人在受案、传唤、检查、扣押、询问查证等过程中违反相关规定的意见，经审查，被上诉人已提交相关证据证明其作出涉案行政处罚的合法性，而上诉人对其主张并未提供充分证据予以证实，对此，本院不予采纳。
关于上诉人二审提交的两份新证据，《最高人民法院关于行政诉讼证据若干问题的规定》第七条规定：“原告或者第三人应当在开庭审理前或者人民法院指定的交换证据之日提供证据。因正当事由申请延期提供证据的，经人民法院准许，可以在法庭调查中提供。逾期提供证据的，视为放弃举证权利。原告或者第三人在第一审程序中无正当事由未提供而在第二审程序中提供的证据，人民法院不予接纳。”经审查，上诉人二审提交的新证据，系一审诉讼之前形成，上诉人在一审期间并未提交上述证据，且无正当理由，因此，上述两份证据不属于新证据，本院依法不予采纳。
综上，原审判决认定事实清楚，适用法律正确，程序合法，本院予以支持；上诉人的上诉理由不成立，本院不予采纳。依照《中华人民共和国行政诉讼法》第八十九条第（一）项规定，并经本院审判委员会讨论决定，判决如下：
驳回上诉，维持原判。
二审案件受理费50元，由上诉人张广红负担。
本判决为终审判决。
审 判 长 朱 琳
审 判 员 肖晓丽
代理审判员 姚 伟
二〇一五年五月二十日
书 记 员 周文静
