Analysis of the Cultural Relics Smuggling Case of Taiwanese Businessman Cai XX

I'm ready to help translate your Chinese legal content into professional English for the Shenzhen Zhiming Law Firm website. Please provide the Chinese text you'd like me to translate. I. Basic Case Facts

On April 7, 2005, the People's Procuratorate of Shenzhen City initiated a public prosecution with the Intermediate People's Court of Shenzhen City [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 Tai Fei Freight Forwarding Company, and entrusted the company's manager, Gao XX, to arrange for the goods to be exported to Taiwan as an agent. After inspecting the defendant's goods, Gao XX packed them separately into four boxes numbered AB44, AB45, AB46, and AB47, and collected an agency fee from the defendant Cai XX at the rate of NT$25 per kilogram. Subsequently, the batch of goods was transferred by Gao XX to another person for agency handling, and on September 4, 2004, it was declared to customs for export under general trade procedures. On September 6, 2004, when Shekou Customs inspected the batch of goods, a number of cultural relics were discovered. Following appraisal by experts from the Guangdong Provincial Cultural Relics Appraisal Committee, 18 pieces of cultural relics prohibited from export by the state were found in boxes AB45, AB46, and AB47 consigned by the defendant Cai XX, including 2 pieces of second-grade collection cultural relics and 4 pieces of third-grade collection cultural relics.

The procuratorial organ submitted relevant evidence regarding the above facts, including physical evidence, documentary evidence, customs inspection records, seizure lists, the defendant's confession, appraisal certificates, witness testimony, and identification records. Accordingly, the procuratorial organ believes that the defendant Cai XX committed the crime of smuggling cultural relics and requests punishment according to law.

Given that the defendant Cai XX is from Taiwan and operates a handicraft business, among other actual circumstances, during the stalemate phase of the court proceedings, Attorney Zhiming served as the defense counsel for the defendant Cai XX.

The focus of the dispute between the parties in this case is mainly on:

1. Whether the defendant knew that the goods consigned for transport included cultural relics whose export is prohibited by the state.

2. The types and grades of the cultural relics seized in connection with the case.

III. Judgment

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

The defendant is guilty of the crime of smuggling cultural relics.

2. The appraisal certificate issued by the National Cultural Relics Appraisal Committee was procedurally unlawful, and its content contradicted previous appraisal conclusions, rendering it inadmissible as evidence for the case. The court ultimately determined that the defendant's seized goods included 18 cultural relics prohibited from export by the state, among which 5 were third-grade museum-collected relics, and sentenced the defendant to six years' imprisonment, which differed significantly from the charges brought by the prosecution.

3. IV. Case Analysis

Based on the principle of taking facts as the basis and law as the criterion, defense counsel Attorney Zhi Ming closely focused on the key points of dispute in the case and unequivocally pointed out:

(i) The defendant did not "knowingly" ship cultural relics whose export is prohibited by the state among the consigned goods.

Defendant Cai XX is from Taiwan and has very limited knowledge and understanding of cultural relics on the mainland. The defendant is not a professional dealer in cultural relics, nor an expert in this field, and lacks the relevant knowledge and ability to authenticate cultural relics.

The defendant, Cai XX, frequently traveled between Mainland China and Taiwan for business in tea and handicrafts. Combined with other established facts of the case, such as the defendant using his real name and address to ship the goods, the low prices 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 shipped the cultural relics as handicrafts.

It is evident that the defendant Cai XX lacked the subjective intent to smuggle cultural relics, and thus the charged crime cannot be established. However, due to reasons that are well known to all, the court did not adopt this defense argument and held that the defendant's conduct constituted the crime of smuggling cultural relics.

(2) The types and grades of the cultural relics seized in connection with the case must be appraised in accordance with the law. Only when a scientific, authentic, and lawful appraisal conclusion is reached can a fair judgment be rendered against the defendant.

1. The appraisal procedure for the cultural relics involved in the case seriously violated the law.

Although the cultural relics involved in the case underwent three appraisals, all were commissioned by the investigating authorities. Particularly during the trial phase, given the significant discrepancies in the previous appraisal conclusions, the third review appraisal was still entrusted to the original investigating authorities designated by the prosecution, resulting in clearly flawed procedures and severely unfair handling. This led to an appraisal conclusion that, despite being issued by the State Administration of Cultural Heritage and expected to be scientific and rigorous, was seriously unlawful in form and even more absurd in content. The illegality of the appraisal procedures and the bizarre nature of the appraisal conclusion inevitably cast doubt on the authenticity and reliability of the appraisal result.

2. The appraisal conclusion is formally illegal, its contents are contradictory, and the results are even more absurd.

The appraisal conclusion issued by the National Cultural Heritage Administration is procedurally unlawful, lacking the appraiser's signature and any explanation of the basis and reasoning for the appraisal result, which fails to meet the required rigor and standards. Furthermore, across the three appraisal conclusions concerning the cultural relics in question, the grading of the relics was handled perfunctorily and arbitrarily, without strictly adhering to scientific appraisal criteria. The difference between "Grade II" and "Grade III" is merely a single character, yet its impact on the sentencing of the defendant is vastly significant.

3. If the expert witness fails to appear in court as required by law, the authenticity, legality, and relevance of the expert conclusion cannot be properly examined through cross-examination, and therefore the expert conclusion cannot serve as the basis for determining the facts of the case.

Article 11 of the "Decision of the Standing Committee of the National People's Congress on the Administration of Judicial Appraisal" explicitly stipulates: "In litigation, if a party raises an objection to an appraisal opinion, the appraiser shall appear in court to testify upon legal notice from the people's court." However, during the court session for cross-examination of the appraisal conclusion at the Shenzhen Intermediate People's Court, the appraisers did not appear in court to read out their appraisal conclusion, thereby depriving the defendant and their defense counsel of the litigation rights lawfully entitled to them—they were unable to question the appraisers, unable to cross-examine or challenge the authenticity, legality, and relevance of the appraisal conclusion, and unable to learn from the appraisers the reasons and basis for reaching the appraisal conclusion. As a result, the cross-examination procedure became a mere formality, causing serious injustice to the defendant!

The court ultimately adopted the defense counsel's argument on this point. The judgment document [(2005) Shenzhen Intermediate People's Court Criminal Division No. 2, First Instance No. 180] states: The defense counsel for defendant Cai XX argued that the appraisal report issued by the National Cultural Heritage Appraisal Committee did not comply with the provisions of the "Decision of the Standing Committee of the National People's Congress on Issues Concerning Judicial Appraisal Management." Upon review, the court found this defense argument to be legally well-founded and adopted it. This resulted in a more favorable judgment for the defendant. Looking at the case as a whole, it was precisely the defense counsel's diligent and meticulous professional attitude, along with their unwavering commitment to speaking up for justice, that secured a lawful and reasonable judgment for the defendant.