Smuggling case legally punishable by fixed-term imprisonment of over ten years or life imprisonment, ultimately sentenced to two and a half years
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【Lead Lawyers: Wang Tengfeng, Liu Yi】I. Basic Case Facts
Defendant Mao, whose surname is Mao, was prosecuted by the Shenzhen People's Court on June 17, 2010, on suspicion of smuggling ordinary goods and articles. The indictment states that between June 30 and July 29, 2009, Mao maintained oil transport vehicles for a red oil processing plant and participated in smuggling 412 tons of red oil. The customs tariff department assessed the evaded tax amount at RMB 77,162.1. His conduct violates Article 153 of the Criminal Law of the People's Republic of China and should be criminally prosecuted for the crime of smuggling ordinary goods and articles. The co-defendants in this case include Xie, whose surname is Xie, and Ding, whose surname is Ding. Indictment Number: Shen Jian Gong Er Xing Su (2010) No. 145.
II. Focus Issues of This Case
Since the involved tax evasion amount exceeds 500,000 yuan, according to Article 153 of the Criminal Law, the penalty should be fixed-term imprisonment of not less than ten years or life imprisonment. The characteristics and related issues of this case are as follows: the involved links are complex, and there are numerous individuals involved, but only three have been prosecuted, all of whom participated in the land transportation and processing stages. The actual mastermind, principal offender, and personnel involved in other links have not been brought to justice; the accusation that Mao XX smuggled 412 tons of red oil is only based on the recorded quantity in Mao XX's personal notebook, with no other evidence to support it. This does not significantly affect the conviction but has a major impact on sentencing; Yin XX, who participated in processing 7,832.64 tons of red oil, was released during the investigation stage and has not been prosecuted.
III. Defense Opinions of the Lawyer
The client sought out Zhiming Law Firm upon reputation and requested legal assistance from Director Wang Tengfeng. After accepting the commission, Director Wang Tengfeng, together with his assistant lawyer Liu Yi, jointly defended Mao Moumou. To this end, they conducted a thorough study of the case, meticulously examined the evidence, and met with Mao Moumou multiple times. On July 15, 2010, the Shenzhen Intermediate People's Court held a public trial of this case. During the trial, the lawyer presented the following defense opinions:
(I) The accusation that the defendant Mao Moumou maintained fuel transport vehicles for a red oil processing plant and participated in smuggling a total of 412 tons of red oil is clearly insufficient in evidence. It cannot be used as a basis for conviction and sentencing in accordance with the law. According to the principle of "no punishment without proof," the court should render a verdict of not guilty due to insufficient evidence.
This case is different from ordinary joint crimes. The organizer arranged for multiple different individuals and vehicles to transport, process, and sell red oil. Its peculiarity lies in the fact that the drivers, vehicle owners, and escorts arranged and dispatched had no connection with one another; the organizer and arranger only communicated with and directed the aforementioned individuals separately. In this case, Xie Moumou, the person in charge of the red oil processing plant, stated in his confession on March 25, 2010, that he had asked Mao Moumou to transport red oil once. Among the other twelve witness testimonies, only Zheng XX mentioned that "the chubby driver Mao transported red oil and delivered white oil." No other witness provided testimony involving Mao Moumou maintaining oil transport vehicles or participating in smuggling. The defendant Ding Moumou's confession also contained no related content. The evidence against Mao Moumou came almost entirely from Mao's own four confessions and one (two copies) confirmation of the notebook contents. In the above evidence, Mao Moumou consistently stated roughly the following: at the factory, he only worked as a day-shift driver, responsible for repairing vehicles during the day and delivering "white oil" to customers; he only transported red oil twice, and that was because the regular driver had returned home due to his child's illness, so Mao was asked to temporarily fill in, completing two trips in one night. Apart from these two trips, the records in the notebook were all notes he made while idly following the oil transport vehicles to the seaside for fun. This conduct neither constituted carrying out tasks for the oil plant nor fell within the scope of his own duties. The accusation that the quantity recorded in the notebook represents records of Mao personally driving to transport oil has not been corroborated by the two drivers, Ye XX and Ye X, who actually drove the vehicles, or by the other two individuals who accompanied the vehicles. During this trial, Xie Moumou confirmed in court that Mao Moumou's work involved repairing vehicles during the day and delivering "white oil"
Therefore, the accusation that the defendant, Mao Moumou, "facilitated oil transport vehicles involved in smuggling 412 tons of red oil, evading taxes amounting to 771,662.1 yuan," is clearly lacking in evidence and cannot serve as the basis for conviction and sentencing! In accordance with the principle of "in dubio pro reo" (presumption of innocence when evidence is insufficient), the court should render a verdict of not guilty on the grounds of insufficient evidence.
Moreover, to reflect fairness and justice, witness Yin XX, who was involved in smuggling and processing 7,832.64 tons of red oil, was not deemed by the prosecution to have committed a crime and was not subject to criminal liability. Therefore, the defendant Mao XX, who was "involved in smuggling 412 tons," should also not be held criminally liable.
(2) Mao Moumou played a relatively minor role in this case and is an accomplice; therefore, according to law, he shall be given a lighter or mitigated punishment, or be exempted from punishment.
Since July 5, 2009, Mao So-and-so worked at a red oil processing plant and was arrested on July 29. Throughout the process, he appeared merely as an employee, hired by the plant and taking orders from Xie So-and-so. He neither conspired nor acted for profit, nor did he obtain any gains. His duties were limited to repairing vehicles during the day and delivering "white oil" to customers. Even if his actions constituted a crime, his role was extremely minor, and his status should be considered that of an accessory. According to Article 27 of China's Criminal Law, he should be given a lighter or mitigated punishment, or be exempted from punishment.
4. Court Judgment
On September 9, 2010, the Shenzhen Intermediate People's Court rendered a judgment, with the case number: (2010) Shen Zhong Fa Xing Er Chu Zi No. 176. The court adopted this lawyer's defense argument regarding the accessory, sentencing Mao XX to two years and six months in prison! Mao XX stated that he would accept the court's judgment and would not appeal! Thus, a smuggling case that originally should have been sentenced to more than ten years in prison was ultimately sentenced to two and a half years in prison!
V. Reflections on This Case
Although the probability of innocence is almost zero, the lawyer in this case will still defend Mao Moumou with a not-guilty plea. There are two reasons for this.
Firstly, in terms of evidence, there is only his own confession. The law stipulates that a confession alone, without other evidence to corroborate it, cannot be used as the basis for a verdict. At the same time, the group involved in the processing stage were not prosecuted.
Second, even if the lawyer's defense arguments are not accepted, the judge will still attach great importance to them and give them full consideration, which helps in imposing a lighter sentence on the suspect.
The court's judgment confirmed that the lawyer's defense direction in this case was correct.
