Witnesses who had an interest in the case and whose testimony contradicted documentary evidence were acquitted of bribery

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Source: China Judgment Documents Network

Information on the parties

The former public prosecution organ was the People's Procuratorate of Longgang District, Huludao City.

The appellant (defendant in the original trial) Wang Haiquan, male, born on September 4, 1973, a native of Suizhong County, Liaoning Province, Han ethnicity, undergraduate education, formerly director of the Construction Engineering Administration Bureau of Dongdaihe New District, Liaoning Province, where his household registration is located in Suizhong County, Liaoning Province, and now lives in Suizhong County. He was criminally detained on July 6, 2018, and arrested in accordance with the law on July 20, 2018, for this case. He was released on bail on July 5, 2020.

Defenders Li Yang and Zhang Zhinan are lawyers at Beijing Jinglin Law Firm.

Proceedings

On August 26, 2019, the Longgang District People's Court of Huludao City, hearing the case of the People's Procuratorate of Longgang District of Huludao City accusing defendant Wang Haiquan of accepting bribes, rendered the (2019) Liao1403 Xingchu No. 44 Criminal Judgment, and the defendant Wang Haiquan was not satisfied and appealed to this court. On December 10, 2019, this court rendered the (2019) Liao 14 Xing Zhong No. 218 Criminal Ruling, ruling to revoke the original judgment and remand for retrial. On December 30, 2020, the Longgang District People's Court of Huludao City rendered the (2019) Liao1403 Xingchu No. 250 Criminal Judgment. After the verdict was pronounced, defendant Wang Haiquan was still not satisfied and appealed to this court again. After accepting the case, this court formed a collegial panel in accordance with law and heard the case in public on March 30, 2021. Huludao Municipal People's Procuratorate procurators Hua Wenqiang and Ren Jingwei appeared in court to perform their duties, and appellants Wang Haiquan and his defenders Li Yang and Zhang Zhinan attended the court to participate in the proceedings. The trial is now closed.

The court of first instance ascertained

The original judgment found that defendant Wang Haiquan served as deputy station chief (presiding over the work) of the construction engineering quality supervision station in Liaoning Dongdaihe New Area from July 2011 to November 2013, and as director of the Construction Engineering Management Bureau of Liaoning Dongdaihe New District since December 2013. In the second half of 2012, the construction unit of Liaoning Dongdaihe Cloud Base Academician Sea Project began, the construction unit was Liaoning Cloud Base Real Estate Co., Ltd., and the construction unit was Liaoning Dongdaihe New District Zheng Mou Construction Engineering Co., Ltd. During the construction of the project, defendant Wang Haiquan took advantage of his position to repeatedly make it difficult for the construction unit by verbally or in writing ordering the suspension of construction and delaying the handling of relevant construction procedures. Defendant Wang Haiquan demanded a bribe of RMB100,000 from the construction unit from late July 2013 to August 2013.

The main evidence in the original judgment to determine the above facts is: the testimony of witnesses Yang X, Feng X, Zhang X1, Li X, Yao X1, Qi X, and Zhang X2, the confession and defense of defendant Wang Haiquan, as well as documentary evidence such as the source of the case, Wang Haiquan's identity certificate, household registration certificate, cadre appointment and removal approval, notice of appointment and removal of cadres, notice of appointment and removal of posts, cash detailed accounts, accounting vouchers, and rectification notices.

The Court of First Instance held that

The court of first instance held that defendant Wang Haiquan, as a state functionary, took advantage of his position to extort property from others in a relatively large amount, and his conduct violated the provisions of article 385 of the Criminal Law of the People's Republic of China and constituted the crime of accepting bribes. Defendant Wang Haiquan is asking for a bribe and should be given a heavier punishment. Defendant Wang Haiquan demanded a bribe of 100,000 yuan, and there were direct corroborations such as the testimony of witnesses Yang X, Feng X, Zhang X1, and Li X, and the accounting vouchers of Zheng X Construction Company, and the evidence corroborated each other, and the facts of the crime could be determined, so the innocent defense opinion of defendant Wang Haiquan and his defender was not supported. In accordance with articles 93, 383, 385 and 386 of the Criminal Law of the People's Republic of China, and articles 1 and 19 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Corruption and Bribery, the judgment is that defendant Wang Haiquan has committed the crime of accepting bribes and is sentenced to two years' imprisonment and a fine of RMB 100,000.

Second-instance trial requests

The appellant Wang Haiquan and his defender submitted that the original judgment found that Wang Haiquan's reason for asking for bribes did not exist, the facts of the bribes were not clarified, the evidence collection procedure in the case was seriously illegal, the reasonable suspicion of false accusations of framing Wang Haiquan could not be discharged, and it was simply impossible to draw the conclusion that Wang Haiquan accepted bribes of 100,000 yuan, and Wang Haiquan should be sentenced to innocence according to law. The main reasons are:

1. The original judgment found that Wang Haiquan's reason for demanding bribes was not in line with the facts. The original judgment found that Wang Haiquan was wrong to ask for bribes on the grounds that he had ordered the suspension of construction, delayed the handling of construction procedures, and intervened in supervision without supervision. Item 13 of the Decision of the People's Government of Liaoning Province on Canceling and Delegating a Number of Projects with Administrative Authority on August 17, 2013 clearly states that the Liaoning Provincial Department of Housing and Urban-Rural Development has delegated the issuance of construction permits to the municipal government, so Wang Haiquan and the monitoring station where he is located have no right to apply for construction permits at all, and the premise of not handling the construction permit for bribery does not exist; the formalities for handling the construction permit and ordering the notice to stop construction occurred after the bribery time in this case, which could not constitute the reason for the bribery claim as determined by the original judgment The premise of intervening in supervision but not supervising does not exist, the cloud base has no relevant construction materials and does not have the conditions to apply for construction supervision, and Wang Haiquan and his unit take the initiative to intervene in supervision is an illegal act. However, these just show that Yang Mou and others shown in the "20160416" recording did not approve the construction without formalities, illegal construction, resulting in the inability to accept after completion, so they formed a grudge with Wang Haiquan.

2. The facts of bribery determined in the original judgment are unclear, and the facts of accepting bribes do not exist. (1) There is no direct evidence that Wang Haiquan received 100,000 yuan in cash. In the absence of retrieving the telephone records of Yang and Wang Haiquan and the complete coincidence of the time when Yang paid the bribe and the time of repaying Chen Jun's 100,000 yuan loan, it could not be proved that the 100,000 yuan of cash that Yang withdrew from Yao Qi was the bribe paid to Wang Haiquan instead of 100,000 yuan deposited into Chen Jun's account; (2) The bribery time contradicted the time when Wang Haiquan knew Yang in the recording of "20160416". The original judgment was not responded to and corroborated by the recording, the original carrier could not be provided, and the authenticity could not be determined to exclude the recording, which is a practice of presumption of guilt, the Criminal Procedure Law does not require the defendant to prove his innocence, let alone force the defendant to provide the original carrier of the recording evidence to prove himself innocent, the court of first instance did not exclude the recording evidence through the way of retrieving objective evidence such as call records, but only through simple speculation and imagination To exclude the recording evidence is both illegal and has no legal basis.

3. The court of first instance found that the evidence of Wang Haiquan's bribery was contradictory and could not exclude the reasonable suspicion that Wang Haiquan was framed by false accusations. In this case, Yang X, Feng X, etc. contradicted the testimony of Du X 1, Qian X and Lu X 2. Du Mou1 and Qian Mou's testimony corroborated each other, proving that Yang Mou found two people to make false testimony and frame Wang Haiquan for accepting bribes of 100,000 yuan. However, the original judgment excluded his testimony on the grounds that it could not be verified, had no relevance to the case, and was not objective, and according to the logic of the original judgment to exclude evidence, it should even exclude the testimony of Feng X, Yang X, and others. Because the two are witnesses, victims, and whistleblowers, which are directly related to the outcome of this case, the testimony of the four people is extremely unreasonable and consistent in the content of their testimony, and compared with Qian and Du1, it is even more untrue and less objective. Taking a step back, even if it cannot be verified to be true, the original trial cannot make a presumption of guilt against Wang Haiquan on the grounds that it does not conform to objective logic, but in accordance with the law makes a presumption that there is a favorable interest to the defendant. In addition, the investigation procedure in this case was seriously illegal, and there was a high degree of reasonable suspicion that many people had jointly falsely accused Wang Haiquan.

4. The original judgment illegally lowered the standard of proof in criminal cases, and after discharging the testimony of Qian X and Du X1 through the presumption of guilt and the audio recording submitted by the defender, Wang Haiquan was judged to constitute a crime, on the contrary, in the case that the evidence of Yang X and other testimonies used for conviction was not true and insufficient, and under the circumstance that the reasonable suspicion that Wang Haiquan was falsely accused of framing could not be excluded, the forced conviction of Wang Haiquan violated the clear provisions of Article 55 of the Criminal Procedure Law of the People's Republic of China and relevant judicial interpretations.

The procuratorial organ appeared in court to comment that the appellant's appeal request and reasons had no factual basis or legal basis, that the original trial had found that the facts and applicable law were correct, that the sentence was appropriate, and that the original judgment be upheld.

The court of second instance ascertained

According to the facts ascertained by the trial of the second instance, Liaoning Yunji Real Estate Co., Ltd., as the construction unit, contracted the Academician Sea Project of Liaoning Dongdaihe Cloud Base to the construction unit, namely Zheng Mou Construction Engineering Co., Ltd. of Liaoning Dongdaihe New District. The legal representative and chairman of Liaoning Yunji Real Estate Co., Ltd. at that time was Zhang Mou1, the general manager was Li Mou, and the deputy general manager was Feng Mou; the legal representative of Zheng Construction Engineering Co., Ltd. in Dongdaihe New District, Liaoning Province was Yang Mou. Liaoning Dongdaihe New District Zheng Mou Construction Engineering Co., Ltd. began construction in the second half of 2012 without going through the relevant procedures for the preliminary construction. After that, Yang began to complete the formalities and applied for a construction permit on August 13, 2015.

It was also ascertained that defendant Wang Haiquan served as deputy station chief (presiding over the work) of the Construction Engineering Quality Supervision Station of Liaoning Dongdaihe New District from July 2011 to November 2013, and as director of the Construction Engineering Administration Bureau of Liaoning Dongdaihe New District since December 2013.

The court of second instance held that

This court held that the facts of the original judgment finding that the appellant Wang Haiquan constituted the crime of accepting bribes were unclear and the evidence was insufficient. Specific reasons:

First, the authenticity of the direct evidence in this case is in doubt. The key witnesses in this case, Yang X, Feng X, Zhang X1 and Li X, had conflicts of interest with the case. Yang X, Zhang X1, Li X and Feng X, as the main responsible persons of the construction unit and the construction unit, respectively, have a common interest in handling the relevant construction procedures of the cloud base project, and in the process of handling the relevant construction procedures, there is a contradiction with the appellant Wang Haiquan; and the testimony of Yang X and Feng X proves that during Wang Haiquan's tenure as the director of the quality supervision station, he demanded a bribe of 200,000 or 300,000 yuan from Yang on the grounds that "the boss of the development company did not visit him, and it was not easy for him to have a group of little brothers below him, and people ate horses and chewed"; When Wang Haiquan saw that our company had not sent him money, he verbally issued a work stoppage rectification order to our company" and "After a while, when he saw that our company had not yet sent him money, he issued us a written order for work stoppage and rectification." The rectification notice states that the time is November 11, 2013 and July 22, 2014, respectively, and the time of the notice of order to stop the illegal act is also April 2, 2014. The above testimony is contradictory to documentary evidence, and its authenticity is questionable.

Second, the circumstantial evidence in this case is weak and fails to meet the standard of proof for reinforcement. According to the inventory cash details and accounting vouchers of Zheng Mou Construction Engineering Co., Ltd. in Dongdaihe New District, Liaoning Province (July 27, 2013), Yang borrowed 330,000 yuan, of which 100,000 yuan was borrowed on the grounds of "outreach". Although witness Yao X 1 (the signature on voucher No. 37 on July 27, 2013 was written by Yao X 1) proved that he knew about the gift of 100,000 yuan to Wang Haiquan, but it was heard by Yang X, it belonged to the evidence, and Yao X 1 was related to Yang X, and the probative power of his testimony was weak; in addition, Yang X deposited 100,000 yuan in cash into the account of Chen Jun, an outsider in the case, on August 2, 2013. It is doubtful whether the 100,000 yuan of cash lent to Yang by Qi, a cash clerk of Liaoning Zheng Construction Engineering Co., Ltd., is the same amount.

Third, the evidence provided by the defence cannot be ruled out as to the possibility of authenticity. The defender of the appellant, Wang Haiquan, provided a cd-ROM in which Wang Haiquan claimed that "if it were not for the request for the migrant workers' project funds, the two sides would not have contact", and the migrant workers' request for the project funds occurred in 2014, which was contradictory to the time when Yang and others pointed out that Wang Haiquan accepted bribes. Although the original carrier of the recording was not provided, it could not be denied that there was a real possibility, and reasonable doubt could not be ruled out; in addition, Du Mou1, a witness who appeared in the original trial, confirmed that Yang had let him prove that he had sent 100,000 yuan to Wang Haiquan; witness Qian X confirmed that Yang had let him say that he had given Wang Haiquan money. Although the veracity of the testimony of the second witness cannot be determined, the possibility of truthfulness cannot be ruled out, nor can reasonable doubt be ruled out.

In summary, the relevant witnesses in this case have an interest in the case, which may affect the objectivity of the testimony, and there are contradictions between the relevant testimony and documentary evidence, and a complete proof system has not been formed between the various evidences. In accordance with the provisions of article 236, paragraph 1, subparagraph (3) and article 200(3) of the Criminal Procedure Law of the People's Republic of China, and upon discussion and decision by the adjudication committee of this court, the judgment is as follows:

Results of the second-instance judgment

1. Revoke the Criminal Judgment of the Longgang District People's Court of Huludao City (2019) Liao 1403 Xingchu No. 250;

2. The appellant Wang Haiquan was acquitted.

This judgment is final.

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