【Basic Facts】
After public trial, the People's Court of District C of City B ascertained that DefendantS A and B (handled in a separate case) were boyfriend and girlfriend, and that the two parties lived together in a certain community in District D of City B, Province B, which B leased. B pays the rent and repays the debt for defendant A. In April 2018, B brought back a lot of methamphetamine from X and hid it in his rented accommodation. During B's absence, A delivered a total of 4.4g of drugs to C who purchased drugs from B five times in accordance with B's request, and C paid the drug money to B.
On May 9, 2018, B was arrested by the police of the C Branch of the B Municipal Public Security Bureau in a residential area of District D of B City. The police seized 13 bags of suspected methamphetamine and suspected magu bags packed in plastic bags and crisper boxes from the room on the spot, with a total net weight of 2947.07g. According to the identification of the B Municipal Public Security Bureau Physical Evidence Laboratory, the total net weight of 2 bags of suspected methamphetamine is 1913.58g, and the remaining 12 bags contain methamphetamine with a total net weight of 1034.49g. On the same day, the police arrested defendant A in the sales department of X New Era in District D of B City.
【Case Focus】
Whether drugs seized in the joint rental accommodation of defendant A and co-defendant B can be counted as the quantity of drugs sold for defendant A.
【Summary of The Court of Justice】
After trial, the People's Court of District C of City B, A Province, held that Defendant A, knowing that others were selling drugs, repeatedly helped him claim to take 4.4g of the drug methamphetamine and delivered it to the drug buyer, and his conduct constituted the crime of drug trafficking. Defendant A's act of knowingly knowing that B was selling drugs and using disguised methods to package drugs and assist in drug trading was confirmed by witness testimony, WeChat chat records, and corroborated by Defendant A's confession at the investigation and trial stages, which is sufficient to determine that the defender's defense opinion that Defendant A constitutes the crime of transporting drugs is inconsistent with the facts and is not accepted by this court. Defendants A and B learned during their cohabitation that they were engaged in drug dealing, and accepted B to use the proceeds of drug trafficking to repay his debts and pay part of the living expenses of cohabitation, forming an economic and living relationship. Defendant A knew the fact that B had brought back a large amount of drugs from X and hid them in the rented accommodation, but still assisted B in claiming to take drugs and trade drugs on many occasions, and the drug methamphetamine seized by the public security organs from the rented residence of the two people should be determined as the quantity of drugs sold by Defendant A, so the number of drugs sold by Defendant A was 1038.89g. This court supports the facts of the crime and the conviction of the crime alleged by the public prosecution organ. Defendant A plays a supporting role in the joint crime and is an accessory, and is given a mitigated punishment in accordance with law.
The People's Court of District C of City B of Province A rendered the following judgment in accordance with the first paragraph of article 347, paragraph 2, paragraph 1 of article 25, paragraph 1 of article 27, paragraph 1 and article 64 of the Criminal Law of the People's Republic of China:
1. Defendant A commits the crime of drug trafficking and is sentenced to 12 years' imprisonment and confiscation of property of RMB 20,000;
2. Drugs seized by public security organs shall be confiscated. A appealed with the original defense. The court of second instance agreed with the judgment of the court of first instance.
【Lawyer's Legal Statement】
The focus of the dispute in this case was whether the drugs seized from B's residence could be counted in the quantity of drug trafficking in A. On May 18, 2015, the Supreme People's Court issued the Minutes of the National Symposium on the Trial of Drug Crimes in Courts (hereinafter referred to as the "Wuhan Minutes"), which adopts the method of proof of presumption of facts, and clearly stipulates the nature of drugs seized from the residences of drug traffickers, etc., that is, based on the fact that the perpetrators sold drugs and seized drugs from their residences, etc., it was presumed that the seized drugs were used for trafficking.
Both the courts of first and second instance held that because B and A were cohabiting boyfriends and girlfriends, A knew that B used a small amount of drugs every day, but stored a large amount of drugs at home. Before the incident, A owed more than 300,000 yuan in debt, and B repaid more than 100,000 yuan of debts for him under the condition of fixed work income, and said that the money was exchanged for his life, based on which it can be inferred that A knew that the drugs stored by B in his home were used for trafficking. In addition, A's act of delivering drugs to the drug buyer C in a highly concealed way such as packaging drugs in candy paper and mixing drugs into masks after following B's instructions can also confirm the fact that A knowingly believes that it is drugs and repeatedly assisting B in delivering drugs to drug buyers. During the period of cohabitation, A and B learned that they were engaged in drug trade and accepted that B used the proceeds of drug trafficking to pay off his debts and pay for the living expenses of cohabitation, and the two parties became financially and living dependent. A knows where B stores the drugs and may claim them from them at any time to be delivered to others, in other words, he also has the right to dispose of the drugs in the rented accommodation. According to the spirit of the Wuhan Minutes, in the case that B and A cannot provide evidence to prove that the seized drugs are kept by others for consumption, harbored for other criminals, possessed ancestral drugs, picked up, used for treatment, etc., the drugs seized by the two people in renting their accommodation should be regarded as the quantity of drug trafficking in A and B.
On December 1, 2008, the SPC's Minutes of the Symposium on the Trial of Drug Crime Cases in Some Courts Across the Country ("Dalian Minutes") stipulates that the distinction between principal offenders and accessories shall be based on the status and role of each co-offender in the joint drug crime. It is necessary to compare the status and role of the co-offenders in the joint crime in terms of the intention to commit the crime, the division of labor in specific acts, the amount of money contributed and the amount of drug stolen goods actually shared, and the interrelationship between the accomplices. In a drug-related crime, the principal offender, the principal offender, the drug owner, or the intended, planning, gathering, organizing, hiring, instructing others to participate in the crime, and others who play a major role; Where a person is hired or instructed to commit a drug crime, he or she shall be specifically identified as the principal or accessory on the basis of the role he actually played in the crime. Where there is evidence to prove that they played a secondary or auxiliary role in a joint crime, they cannot be identified as accessories because the other co-offenders have not yet arrived at the case, or even identified as principal offenders or punished as principal offenders. As long as it is found to be an accessory, regardless of whether the principal offender is present in the case or not, the punishment shall be mitigated, mitigated or exempted in accordance with the provisions of the Criminal Law on accessory.
In the process of jointly committing the crime of drug trafficking with B, B is the main funder and also an active perpetrator of drug trafficking, and should be identified as the main offender according to law; A mainly delivers drugs to drug buyers according to B's instructions, and the initiative and independence of drug trafficking are relatively weak, and according to the facts, nature, circumstances of the crime, and their position and role in the joint crime, they are determined to be accessories according to law. In terms of sentencing, taking into account factors such as A's initiative and independence in drug trafficking, the degree of profitability, subjective malignancy, and personal danger, A will be given a mitigated punishment in accordance with law.
About Lawyer Sun Wei
Partner of Tianjin Zonghui Law Firm
He is a member of the Litigation Law Branch of Tianjin Law Society
He is a member of the rule of law think tank of Tianjin Xiqing District Government
Member of the Working Committee of the Young Pro Bono Legal Think Tank (PROBONO).
Special guest of Tianjin Television's science and education channel "Lawyer Consultation"
Practical tutor of the Department of Law and Politics, Binhai College, Nankai University
Practice tutor outside the law school of Tianjin University of Commerce
External tutor of master's degree graduate students of Tianjin University of Commerce
Practical tutor of the Law School of civil aviation university of China
Graduated from the China Criminal Police College, he has served in a unit directly under the Municipal Bureau for more than ten years. During this period, he won many awards. Since engaging in lawyer work, he has handled many major criminal cases and achieved good defense results. In particular, he has accumulated rich experience in the fields of illegal fund-raising crimes, job-related crimes, and tax-related crimes, and has formed his own unique case-handling style. He is good at combining past work experience with the strategic skills of criminal defense, pays attention to pre-prevention and in-process disposal, and provides customers with professional and reasonable advice to prevent criminal risks in economic activities.