【Lead Attorney: Wang Tengfeng】

I. Basic Case Facts

On April 7, 2005, the Shenzhen People's Procuratorate filed a public prosecution with the Shenzhen Intermediate People's Court [Indictment No. Shen Jian Xing San Su (2005) 80]: On September 1, 2004, the defendant, Cai XX, transported cultural relics and other antique items purchased in Guangzhou to Taifei Freight Forwarding Company, entrusting the company's manager, Gao XX, to export the goods to Taiwan as an agent. After inspecting the defendant's goods, Gao XX packed them into four boxes numbered AB44, AB45, AB46, and AB47, and charged the defendant, Cai XX, an agency fee of 25 New Taiwan Dollars per kilogram. The goods were then subcontracted by Gao XX to another agent and declared for export to customs on September 4, 2004, under general trade procedures. On September 6, 2004, during an inspection of the goods at Shekou Customs, a batch of cultural relics was discovered. Subsequently, experts from the Guangdong Provincial Cultural Relics Appraisal Committee identified 18 items in boxes AB45, AB46, and AB47 consigned by the defendant, Cai XX, as cultural relics prohibited from export by the state, including 2 second-grade museum collection items and 4 third-grade museum collection items.

The procuratorate submitted physical evidence, documentary evidence, customs inspection records, seizure lists, the defendant's confession, appraisal certificates, witness testimony, and identification records regarding the above facts. Based on this, the procuratorate held that the defendant Cai XX committed the crime of smuggling cultural relics and requested punishment according to law.

As the defendant Cai XX is from Taiwan and operates an arts and crafts business, when the case reached a stalemate in court proceedings, Chief Attorney Wang Tengfeng served as the defense counsel for the defendant Cai XX.

II. Disputed Focus

The main points of contention in this case are:

1. Whether the defendant knew that the consigned goods contained cultural relics prohibited from export by the state;

2. The type and grade of the cultural relics seized in the case.

III. Judgment

After three (supplementary) appraisals, the Shenzhen Intermediate People's Court issued a first-instance judgment on December 19, 2005 [(2005) Shen Zhong Fa Xing Er Chu Zi No. 180]:

1. The defendant constitutes the crime of smuggling cultural relics.

2. Because the appraisal document issued by the National Cultural Heritage Identification Committee is procedurally illegal and its content contradicts previous appraisal conclusions, it cannot be used as a basis for judgment. The court ultimately determined that the defendant's seized goods included 18 pieces of cultural relics prohibited from export by the state, among which 5 were third-grade museum collections, and sentenced the defendant to six years in prison, which significantly differs from the charges brought by the public prosecution.

3. IV. Case Analysis

4. Adhering to the principle of taking facts as the basis and law as the criterion, defense attorney Wang Tengfeng, the lead counsel, closely focused on the key disputes of the case and clearly pointed out:

5. (1) The defendant was not "aware" that the consigned goods contained cultural relics prohibited from export by the state.

6. The defendant, Cai XX, is from Taiwan and has very limited knowledge and understanding of mainland cultural relics. The defendant is not a professional dealer in cultural relics, let alone a cultural relic expert, and lacks the relevant knowledge and ability to identify cultural relics.

Defendant Cai XX frequently traveled between Mainland China and Taiwan, dealing in tea and handicraft products. Combined with other established facts of the case, such as the defendant using his real name and address to consign the goods, the low price of the goods, the lack of special packaging or deliberate concealment, and the defendant personally coming to Mainland China after the incident to understand the situation, these fully demonstrate that the defendant actually consigned the cultural relics as handicrafts.

Thus, defendant Cai XX lacked the subjective intent to smuggle cultural relics, and the alleged crime cannot be established. Due to well-known reasons, the court did not adopt this defense opinion and held that the defendant's actions constituted the crime of smuggling cultural relics.

(2) The types and grades of the seized cultural relics involved in the case must be appraised according to law; only by obtaining scientific, truthful, and lawful appraisal conclusions can a fair judgment be rendered against the defendant.

1. The appraisal procedure for the cultural relics involved in the case was seriously illegal.

Although the cultural relics involved in the case underwent three appraisals, all were commissioned by the investigative authorities. Particularly during the trial stage, when significant discrepancies existed in the previous appraisal conclusions, the third review appraisal was still entrusted by the prosecution to the original investigative authorities for commissioning. The procedure was clearly erroneous, the operation was severely unfair, and as a result, the appraisal conclusion, which should have been scientific and rigorous from the National Cultural Heritage Administration, was seriously illegal in form and even more absurd in content. The illegality of the appraisal procedure and the bizarre nature of the appraisal conclusion inevitably raise doubts about the truthfulness and reliability of the appraisal conclusion.

2. The form of the appraisal conclusion was illegal, the content was contradictory, and the result was even more absurd.

The appraisal conclusion made by the State Administration of Cultural Heritage is procedurally unlawful, lacking the appraiser's signature, the basis for the conclusion, and reasoning explanations. It lacks the necessary rigor and standardization and does not comply with regulations. Moreover, among the three appraisal conclusions for the cultural relics involved in the case, the grading of the relics was handled casually and arbitrarily, without strictly following scientific appraisal standards. The difference between "Grade II" and "Grade III" is just one word, but its impact on the defendant's sentencing is vastly different.

3. The appraiser failed to appear in court as required by law, and the authenticity, legality, and relevance of the appraisal conclusion could not be cross-examined in accordance with the law. Therefore, the appraisal conclusion cannot serve as the basis for determining the facts.

Article 11 of the "Decision of the Standing Committee of the National People's Congress on the Management of Judicial Appraisals" clearly stipulates: "In litigation, if a party has objections to the appraisal opinion, the appraiser shall appear in court to testify upon the lawful notice of the people's court." However, during the cross-examination of the appraisal conclusion at the Shenzhen Intermediate People's Court, the appraiser did not appear in court to read the appraisal conclusion, preventing the defendant and their defense counsel from exercising their lawful litigation rights—they could not question the appraiser, cross-examine the authenticity, legality, and relevance of the appraisal conclusion, or learn from the appraiser the reasons and basis for the conclusion. This rendered the cross-examination process meaningless and severely unfair to the defendant!

The court ultimately adopted this defense argument from the defense counsel. The judgment [(2005) Shen Zhong Fa Xing Er Chu Zi No. 180] states: "The defense counsel's argument that the appraisal document issued by the National Cultural Heritage Appraisal Committee does not comply with the provisions of the 'Decision of the Standing Committee of the National People's Congress on the Management of Judicial Appraisals' is legally grounded, and this court adopts it." This resulted in a more favorable judgment for the defendant. Looking at the entire case, it was precisely the defense counsel's dedicated and meticulous professional attitude and persistent advocacy for justice that secured a lawful and reasonable judgment for the defendant.