I. Introduction
Rosewood the hedgehog is known for its stable wood properties, not easy to deform, crack, resistant to rot, and not easy to grow insects. Furniture manufacturers make all kinds of furniture according to their nature, which is favored by the majority of consumers. On December 26, 2016, the mainland announced the revised Appendices I, II and III of the Convention under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (Johannesburg, South Africa) amended by the Convention, which listed rosewood the hedgehog in Appendix II of CITES (effective January 2, 2017), and the hedgehog rosewood is currently a restricted imported cargo. Without relevant permission, smuggling hedgehog rosewood will be suspected of committing a crime.
In this case, Li Moumou, the boss of Jiangmen XX Furniture Company, was involved in the crime of smuggling goods and articles prohibited by the state for smuggling goods and articles prohibited by the state for importing and exporting goods and articles without obtaining an import license. The actual controller of the case, Li Mou, was jointly defended by Lawyer Zheng Yongbin and Yang Lingzhi Intern Lawyer of Beijing Yingke (Guangzhou) Law Firm, and the unit involved in the case, Jiangmen XX Furniture Company, was jointly defended by Lawyer Zhang Jinjiang and Luo Shiling Intern Lawyer. In the end, the court of the actual controller, Li Moumou, only sentenced him to 3 years and 6 months in prison, which was lightly sentenced.
II. Brief Introduction of the Case
The court found that defendant Li X was the actual operator and controller of the defendant unit Jiangmen XX Furniture Company, and was responsible for the daily operation and management of the company. From August 2019 to July 2020, defendant Li Moumou knew that the hedgehog rosewood in Nigeria belonged to the goods prohibited by the state, and still entrusted other smuggling customs clearance gangs to smuggle the hedgehog rosewood from the origin of Nigeria in the name of Jiangmen xx furniture company. The public prosecution organ alleged that the hedgehog rosewood involved in the case had 36 containers, and the declared value of the goods was 5.5572 million yuan, and after the lawyer intervened in the defense, the court finally identified 31 cabinets, and the declared value was also deducted to 4.8221 million yuan, and the accessory circumstances of Li Moumou were added.
3. Defense Strategies
Returning to this case, according to the logic of the indictment, the amount involved in Li Moumou's case is as high as 5.5572 million yuan and has not been identified as an accessory, and the parties may face a penalty of imprisonment of 5 years to 15 years. This result is difficult for both the family and the defendant himself to accept, and after discussion by the legal team, it was decided to adopt the strategy of "two-stage" defense, combining the defense of innocence and the defense of the light crime to ensure that the rights and interests of the parties can be protected to the greatest extent. The specific defense points are as follows:
(1) Lawyers make subjective and unclear defenses of innocence based on the parties' wishes
It is clear that Li Moumou is subjectively unaware. The lawyer emphasized that in the process of Li XX's procurement of the hedgehog rosewood involved in the case in the name of Jiangmen XX Furniture Company, the purchase method of "to the door" was adopted, that is, Li XX directly purchased from the buyer, and the goods were transported directly to the company. In addition, the 36 cases of hedgehog rosewood involved in the case all had a licensed export permit for hedgehog rosewood (not Nigeria) and an endangerment certificate for import, which was legal in form. Combined with the above and a series of objective circumstances in the case, the defender made it clear that Li Moumou actually had a clear understanding of the source of the rosewood involved in the case.
(2) Lawyers simultaneously clarify the issue of the indictment container and amount, and the wrongful determination of the main and subordinate offenders
1. Clarify the errors in the containers and amounts involved. The evidence involved in the 36 containers of rosewood the hedgehog originated in Nigeria is insufficient, and the evidence in the case cannot draw the unique conclusion that the hedgehog rosewood originated from Nigeria, and the shipping trajectory of the container in the case shows that the corresponding containers are on board, unloaded, packed and unpacking, but it cannot be confirmed that the identity of the goods in the containers is the same, so it cannot be determined that the goods in the containers are only from Nigeria. In addition, the evidence transferred by the public prosecution organ includes 5 containers of hedgehog rosewood without container shipping trajectory, and it is also impossible to rule out that the 5 containers of goods are from Ghana with reasonable suspicions, which should be eliminated according to law, and the corresponding illegal amount should also be deducted.
2. Submit that the chief and subordinate of the prosecuting organ make mistakes in the logic of the accusation. It is clarified that Mr. Li was lured by profit to purchase the goods involved in the case, and he did not participate in the planning, production of false customs declaration documents, dismantling and assembling, concealing evidence, etc., and was also able to actively return the illegal gains, and he should be found to be an accessory.
IV. Conclusion
From the investigation stage to the trial stage, whether it is the subjective aspect of the characterization or the objective behavior, we will list the doubts at the fact and evidence level one by one, and put forward favorable arguments for the flaws in subjective cognition, freight trajectory, purchase behavior, import qualifications and other aspects of the corresponding legal provisions, question and cross-examine this series of facts, and extend and summarize them in the court debate link. In the post-trial stage, combined with the trial situation, we then focused on the quantitative defense, focusing on the number of containers involved in the indictment and the defects in the identification of the main accessory, and finally won the result of 3 years and 6 months imprisonment for the parties.
Remarks: The unit involved in this case, Jiangmen XX Furniture Company, was defended by lawyer Zhang Jinjiang and Luo Shiling's intern lawyer, and provided valuable opinions on the defense of this case.
5. Relevant laws and regulations
1. Criminal Law
Paragraph 3 of Article 151: Whoever smuggles rare plants, their products, or other goods or articles that the State prohibits from importing or exporting, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined or fined individually;
2. Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in the Handling of Criminal Smuggling Cases
Article 11, paragraph 1 (1): Whoever smuggles goods or articles whose import or export is prohibited by the State in any of the following circumstances shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention in accordance with the provisions of the third paragraph of Article 151 of the Criminal Law, and shall also be fined or fined individually:
(1) Smuggling five or more wild plants under national first-level protection and less than 25 plants, 10 or more wild plants under national second-level protection and less than 50 plants, or rare plants or rare plant products with an amount of more than 200,000 yuan and less than 1 million yuan;
Article 11, paragraph 2 (1): In any of the following circumstances, it shall be found to be "serious circumstances" as provided for in paragraph 3 of Criminal Law article 151:
(1) The quantity or amount of smuggling exceeds the standards provided for in the preceding six;
Article 21 stipulates: Where the import or export of goods or articles restricted by the State without permission constitutes a crime, it shall be convicted and punished in accordance with the provisions of Articles 151 and 152 of the Criminal Law on the crime of smuggling goods or articles that are prohibited from being imported or exported by the State;
3. "State Forestry Administration and Ministry of Public Security on the Jurisdiction and Filing Standards for Criminal Cases of Forests and Terrestrial Wildlife"
Article 2(5).
Smuggling of rare plants and rare plant products
Smuggling of rare plants or rare plant products that the State prohibits from importing or exporting shall be filed; smuggling of 2 or more rare plants with a value of 20,000 yuan or more is a major case; smuggling of 10 or more rare plants and a value of 100,000 yuan or more of rare plant products is a particularly major case.
4. Appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora
5. List of Wild Plants under National Key Protection (First Batch)
——About the Author——
Mr. Zheng Yongbin, Deputy Director of Yingke Guangzhou Criminal Department, Member of Guangzhou Lawyers Association Criminal Law Professional Committee, Master of Criminal Law, Undergraduate External Tutor of Law School of South China Normal University, Qualified to Practice Securities Investment Fund, Member of the Seventh and Ninth Advanced Criminal Defense Training Classes of Renmin University Lawyer College. He has won the 2021 and 2019 Yingke National Outstanding Criminal Defense Lawyers, the 2020 Yingke Guangzhou Outstanding Lawyers, the Guangzhou Lawyers Association 2019 Annual Business Achievement Award, the 2018 Annual Theoretical Achievement Award, the 2017 "Business Achievement Award" and the "Theoretical Achievement Award". With rigorous and meticulous, professional and practical work, he handled a number of major, difficult and complex cases, and achieved the ideal effect of being praised by the parties.
Lingzhi Yang, Master of Criminal Law, South China University of Technology, Paralegal.