Hefei People's Procuratorate

Criminal protest

He Jian Gong Yi Shen Xing Kang [2016] No. 2

The Intermediate People's Court of Hefei City, Anhui Province, in its criminal judgment (2015) HXCZ No. 00129, sentenced the defendant Gong Wei to the crime of illegal possession of drugs and the crime of allowing others to take drugs, the defendant Wang Heguang to transport drugs and the defendant Lu Yilin to take drugs illegally. The defendant Gong Wei was sentenced to eight years' imprisonment for the crime of illegal possession of drugs and the crime of allowing others to take drugs, Sentenced to one year of fixed-term imprisonment, and decided to execute eight years and six months of fixed-term imprisonment; The defendant Wang Heguang was sentenced to eight years' imprisonment for the crime of transporting drugs; The defendant Lu Yilin was sentenced to four years' imprisonment for the crime of illegal possession of drugs. After reviewing according to law, the Court believed that the application of law in this judgment was wrong and the sentencing of the defendants Wang Heguang, Lu Yilin and Gong Wei was obviously improper. The reasons are as follows:

1、 The defendant Wang Heguang was a direct perpetrator of drug transportation. The court of first instance determined that he was an accessory and decided to give him a mitigated punishment, which was a mistake in the application of law, resulting in obviously improper sentencing

The defendant Wang He was invited by others. Subjectively, he still accepted the invitation and drove the drugs from Shenzhen to Hefei in order to obtain high freight when he clearly knew that the drugs he was asked to transport were drugs. Although he is instigated by others to transport drugs, the instigated crime is not necessarily an accessory, but should be classified according to his position and actual role in the joint crime. In this case, Wang Heguang's act of transporting drugs is a relatively independent link between his family's drug trafficking and his family's illegal possession of drugs, and he is the only direct perpetrator, who is the principal offender, obviously plays a major role in the process of transporting drugs, not a secondary or auxiliary role, and cannot be identified as an accessory offender. At the same time, it transports 411.75 grams of methamphetamine, a large amount of drugs, and the statutory punishment is fifteen years' imprisonment, life imprisonment or death penalty, and confiscation of property. The court of first instance determined that he was an accessory and decided to reduce the punishment, sentenced him to eight years of fixed-term imprisonment only because he was ordered by others to transport drugs without considering his status and actual role in the implementation of the crime. It was obviously improper, and it was a mistake in applying the law, which led to obvious improper sentencing.

2、 The court of first instance decided to significantly reduce the punishment of the defendant Lu Yilin as an accomplice and sentenced him to four years of fixed-term imprisonment, which was a mistake in the application of law and resulted in obviously improper sentencing

In this case, the defendant Lu Yilin first helped Gong Wei to remit money to the seller, and then, before Gong Wei arrived in Hefei, contacted Wang Heguang, who had already transported drugs to Hefei, to receive the drugs and hide them. The effect is obvious. Although it can be identified as an accomplice, attention should be paid to the extent of lighter or mitigated punishment. He illegally holds 411.75 grams of methamphetamine, a large amount of drugs, and the statutory punishment is more than seven years' imprisonment or life imprisonment, with a fine. He has refused to plead guilty after arriving at the case, without any repentance, which should be considered when sentencing. The court of first instance only reduced the punishment to a large extent and sentenced him to four years of fixed-term imprisonment on the basis that he was an accomplice, but did not consider the facts of the case and his attitude of confession and performance of repentance. It was obviously improper, and it was a mistake to apply the law, which led to obvious improper sentencing.

3、 The court of first instance found that the defendant Gong Wei had improper circumstances of meritorious service, which was a mistake in the application of law, resulting in improper sentencing

Although the defendant Gong Wei said in the report materials that Shen was "gathering people to take drugs", he did not provide a clear clue to the crime of Shen allowing others to take drugs, and the basic information he provided about Shen was not a hidden clue that the public security organs could not obtain by normal means, Now the evidence does not prove that the clues provided by Gong Wei played a practical role in the investigation of Shen's suspected drug taking crime. Therefore, Gong Wei's behavior cannot constitute the constitutive elements of meritorious service stipulated in the Criminal Law. Without verification, the court of first instance directly determined that Gong Wei had improper circumstances of meritorious service. Gong Wei illegally holds 411.75 grams of methamphetamine, a large amount of drugs, and is the principal criminal in a joint crime. His statutory punishment is not less than seven years' imprisonment or life imprisonment, and he is also fined. The court of first instance gave him a lighter punishment and sentenced him to eight years' imprisonment, which was improper.

To sum up, we believe that the Hefei Intermediate People's Court (2015) HXCZ No. 00129 Criminal Judgment is wrong in the application of law, the sentencing is obviously improper, and the punishment for crime is not appropriate. In order to punish crimes and safeguard judicial justice, we hereby lodge a protest in accordance with the provisions of Article 217 of the Criminal Procedure Law of the People's Republic of China and apply for a sentence according to law.

Sincerely

Anhui Higher People's Court

Hefei People's Procuratorate of Anhui Province

May 12, 2016