Supreme People's Procuratorate: When the circumstances of the crime of concealment are found to be serious, the number of times the stolen goods have been collected cannot be used as a criterion for judgment

Source: The 52nd batch of Guiding Cases of the Supreme People's Procuratorate

Case of Reconsideration and Review of Wang's Concealment and Concealment of Criminal Proceeds and Non-Approval of Arrest (Procuratorate Case No. 211)

【Keywords】

Covering up or concealing criminal proceeds Knowing Prosecution standard Serious circumstances Not approving arrest for reconsideration and review

【Abstract】

The determination of "knowingly" of the crime of covering up or concealing criminal proceeds or the proceeds thereof shall be a comprehensive judgment based on a comprehensive judgment such as the nature of the perpetrator's profession, cognitive ability, form of stolen goods, purchase price, and proceeds obtained. People's procuratorates handling cases of covering up or concealing criminal proceeds shall decide whether to prosecute and whether to find the 'circumstances serious' on the basis of the specific facts, circumstances, consequences, and degree of harm to society, combined with comprehensive judgments such as the nature of the predicate crime and the balance of sentencing for the upstream and downstream crimes. Where a higher-level people's procuratorate handling a review of a non-arrest case discovers that the lower-level people's procuratorate's reconsideration decision is in error, it shall correct it in accordance with law.

[Basic facts of the case]

Defendant Xu, male, born in January 1989, is a plumber and electrician at a construction site.

Defendant Wang, male, born in September 1988, is a self-employed person at a scrap yard.

From April to May 2021, Xu, who was engaged in hydropower work at the construction site of an industrial park in Mingguang City, Anhui Province, stole scaffolding fasteners from the construction site 24 times and sold them to Wang, who operated a waste collection station, on 29 occasions. Wang knew that the scaffolding fasteners were unknown, but he still purchased them at a low price and paid Xu more than 19,700 yuan. The victim called the police after discovering that the fasteners at the construction site were missing.

On May 15, 2021, Wang was arrested, and Xu received a call from the police to notify him of the case. The public security organs seized 1,201 stolen scaffolding fasteners and returned them to the victims. According to the price, the total value of the stolen scaffolding fasteners was 32,400 yuan. Later, Xu returned the stolen money.

[The process of performing duties by the procuratorate]

(1) Review of arrest

On May 15, 2021, the Public Security Bureau of Mingguang City, Anhui Province, filed a case for investigation of Xu on suspicion of theft, and the next day filed a case for investigation on Wang's suspicion of covering up and concealing criminal proceeds, and criminally detained the two. On May 21, Xu was suspected of theft, and Wang was suspected of covering up and concealing criminal proceeds, and submitted to the Mingguang Municipal People's Procuratorate for approval of arrest.

The Mingguang City People's Procuratorate found that Xu X committed the crime of theft, the amount was relatively large, and he might be sentenced to imprisonment or higher in accordance with the law, and that a new crime might be committed if he was not arrested, which was dangerous to society; Wang's conduct does not meet the four circumstances provided for in the first paragraph of article 1 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Covering Up or Concealing Criminal Proceeds or Proceeds of Criminal Proceeds" (hereinafter referred to as the "Interpretation"), and the provisions of paragraph 2 that "when a people's court hears a criminal case of covering up or concealing criminal proceeds or proceeds of crime, it shall be convicted and punished in accordance with law based on the nature of the predicate crime, the circumstances and consequences of covering up and concealing criminal proceeds and their proceeds, and the degree of harm to society". Under the specific standards, it cannot be determined that Wang's conduct constituted the crime of covering up or concealing criminal proceeds. On May 28, 2021, the Mingguang Municipal People's Procuratorate decided to approve the arrest of Xu, making a decision not to approve the arrest on the grounds that Wang did not constitute a crime, and served a statement of reasons for not approving the arrest to the public security organs. Wang was released on the same day.

(2) Not approving arrest for reconsideration review

On May 31, 2021, the Mingguang Municipal Public Security Bureau filed a reconsideration, holding that Wang clearly knew that the scaffolding fasteners sold to him by Xu were of unknown origin, but still purchased them 29 times, which met the provisions of Article 3, Paragraph 1 (2) of the Interpretation, which stipulates that "covering up and concealing criminal proceeds and the proceeds generated by them more than 10 times is a serious circumstance". According to the provisions of Article 312 of the Criminal Law, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. Where the procuratorate's decision not to approve arrest on the grounds that it does not meet the criteria for conviction, it shall approve the arrest. The Mingguang Municipal People's Procuratorate separately appoints a procurator for review. After review, and with the approval of the Prosecutor General, on 7 June, the prosecutor decided to uphold the original decision not to approve the arrest on the same grounds.

(3) Not approving arrest for review and review

On June 8, 2021, the Mingguang Municipal Public Security Bureau submitted a review to the Chuzhou Municipal People's Procuratorate. The Chuzhou Municipal People's Procuratorate appoints the head of the department for review. The procurator reviewed the entire case file and listened to the opinions of the public security organs and the Mingguang City People's Procuratorate. After review, it was found that although Wang's conduct did not meet the four circumstances provided for in the first paragraph of Article 1 of the Interpretation, it should be comprehensively considered whether it constituted a crime in accordance with the provisions of the second paragraph. As the upstream theft crime, Xu stole property worth 32,400 yuan, the facts of the crime have been ascertained and arrested, and the downstream Wang has been engaged in the acquisition of waste products for a long time, purchasing at low prices, and many of the fasteners are packaged, it can be determined that he clearly knew that they were criminal proceeds, and purchased them at low prices for many consecutive times in order to obtain illegal benefits, and the amount far exceeded the amount standard of 3,000 yuan to more than 10,000 yuan stipulated in the "Interpretation" before the amendment, and has been suspected of constituting the crime of covering up and concealing criminal proceeds. Considering that Wang truthfully confessed the facts of the crime after being brought into the case, voluntarily admitted guilt and accepted punishment, and was willing to return the stolen goods, after a comprehensive assessment of his danger to society, and with the approval of the chief procurator, on June 18, a review decision was made not to approve arrest without danger to society, and the reasons were explained to the public security organs in person.

(4) Handling results

On June 24, 2021, the Mingguang Municipal Public Security Bureau transferred Xu to the Mingguang Municipal People's Procuratorate for review and prosecution on suspicion of theft and Wang on suspicion of covering up and concealing criminal proceeds.

The Mingguang Municipal People's Procuratorate found that Wang was suspected of constituting the crime of covering up and concealing criminal proceeds, but it did not belong to the "serious circumstances". The determination of "serious circumstances" cannot be judged purely from a formal point of view, and Wang's multiple acquisitions of the same type of stolen items from the same victim unit in a relatively short period of time based on the general intention of covering up and concealing should not be mechanically determined to be "serious circumstances". On July 23, the Mingguang Municipal People's Procuratorate prosecuted Xu on suspicion of theft and Wang on suspicion of covering up and concealing criminal proceeds.

On August 19, 2021, the Mingguang Municipal People's Court sentenced Xu to one year and six months in prison and a fine of 18,000 yuan for theft; Wang was sentenced to seven months imprisonment and fined 8,000 yuan for the crime of covering up and concealing criminal gains. After the verdict was pronounced, neither of the two defendants appealed, and the judgment has taken effect.

【Guiding significance】

(1) In handling cases of covering up or concealing criminal proceeds, a decision on whether to prosecute shall be made on the basis of a comprehensive review of the specific circumstances, consequences, and degree of harm to society, as well as the nature and harmful consequences of the predicate crime. When determining "knowingly", a comprehensive judgment shall be made based on the nature of the actor's profession, cognitive ability, form of stolen goods, purchase price, and income obtained. When determining that the "circumstances are serious", the number of times the stolen goods were received cannot simply be used as the criterion for judgment, but shall be combined with a comprehensive judgment such as the perpetrator's intentional content, the number of times the stolen goods were collected, the value of the stolen goods, the duration, the target of the crime, the harmful consequences, and the balance of sentencing for the upstream and downstream crimes.

(2) Where a higher-level people's procuratorate handles a review case, it should correct it in accordance with law if there is an error in the decision not to approve arrest or the reconsideration decision. In cases submitted for review by the public security organs, the people's procuratorate shall comprehensively review whether the facts ascertained in the decision not to approve arrest, whether the application of law was correct, whether the handling was appropriate, whether legally-prescribed procedures were violated, whether the use of documents was accurate, whether there were errors or omissions in the citation of legal provisions, whether the interpretation of the law and reasoning were sufficient, whether new facts and evidence were presented for reconsideration, and so forth. Where the reasons for the public security organ's request for review are correct, it shall be adopted in accordance with law, and the improper decision of the lower court shall be corrected.

【Relevant Provisions】

Article 312, Paragraph 1 of the Criminal Law of the People's Republic of China

Article 67, paragraph 1, article 81, paragraphs 1 and 2, and article 92 of the Criminal Procedure Law of the People's Republic of China (2018 revision).

Article 86, Article 128, Paragraph 1, Article 134, Article 290, and Article 291 of the Rules of Criminal Procedure of the People's Procuratorate (revised in 2019).

Paragraph 2 of Article 1 and Paragraph 2 of Article 3 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Covering Up or Concealing Criminal Proceeds or the Proceeds of Criminal Proceeds (Fa Shi [2015] No. 11, amended on April 7, 2021, effective as of April 15, 2021).