Appellant (defendant in the original trial) Qiu, male, born on June/KOOC-0/977/KOOC-0/2/KOOC-0/2, with ID number of 359002/KOOC-0/9770/KOOC-0/65438. On June 5, 2006+10/October 5, 2006, he was criminally detained by the Anti-smuggling Bureau of Shenzhen Customs and arrested on February 22 of the same year. He is currently detained in Shenzhen No.3 Detention Center.
Reasons for appeal:
On August 6th, 2008, the Intermediate People's Court of Shenzhen City, Guangdong Province sentenced the appellant 15 years' imprisonment and fined RMB18890165438.
Appeal request:
Request the Guangdong Higher People's Court to correct the erroneous identification of the appellant's criminal facts, the appellant's principal offender in a joint crime, and the appellant's meritorious service in the original judgment, and instead identify the appellant as an accessory to this case, which constitutes meritorious service, and reduce the punishment for the appellant according to law.
The facts and reasons on which the appeal is based:
First, the original judgment found that there were serious errors in the facts.
(1) The original judgment found that "... Defendants Qiu Jinlai and Qiu Jinlai each contributed RMB 700,000 ... Defendants Qiu Jinlai and Qiu Jinlai earned RMB 700,000 from smuggling in 2003 ... and both of them became investments in 2004 ..." (See page 2/kloc-0 of the original judgment for details) This is wrong.
The appellant was invited by Lu Chengpin, Lu Chengdian and others in 2004 to do some accounting work for them under the leadership of Lu Chengdian. Therefore, there is no fact that the appellant shared the smuggling profit of 700,000 yuan in 2003 and turned it into investment in 2004. The fact that the appellant did not contribute 700,000 yuan can be completely confirmed in the dividend summary table made by Lu Chengdian. The dividend summary table only records the appellant's dividend of 420,000 yuan, and there is no record of the appellant's contribution, which is the best proof. Because, the so-called investment of 700,000 yuan is similar to the fact that some unscrupulous businessmen in the society gave performance shares to corrupt officials, and it was given to the appellant by Lu Chengpin, Lu Chengdian and others. In fact, the appellant did not contribute a penny;
(2) The original judgment stated: "On the identification of the capital contribution of the defendant Lu Chengpin and others. Defendants Lu Chengpin and Qiu confessed in the investigation stage that the five brothers Lu each contributed 4 million yuan, and Qiu contributed 700,000 yuan ... Qiu and Qiu Jinlai's profit of 700,000 yuan was directly converted into their contribution in 2004 ... "(See page 59 of the original judgment for details), and it was wrong to conclude that the appellant made a profit of 700,000 yuan in 2003.
At the investigation stage of this case, the appellant did not make any statements and explanations mentioned in the review of the original judgment. Even if the appellant had such a statement and explanation, it was not as stated in the original judgment that the appellant invested 700,000 yuan in a false way. As mentioned above, the so-called contribution of 700,000 yuan is only an imaginary number given to the appellant by Lv Chengpin and Lv Chengdian, and it is a benchmark figure for Lv Chengpin and Lv Chengdian to pay the appellant in the future.
(3) The original judgment found that the appellant was responsible for managing the funds of Lu Chengpin and Lu Chengdian smuggling gangs (see pages 22 and 26 of the original judgment for details), which was wrong.
The appellant only works for Lu Chengpin and Lu Chengdian smuggling gangs. Lu Chengdian is the actual and real manager and dominator of smuggling gang funds and the person in charge of accounts. The general ledger of the gang was made by Lu Chengdian, and his accounting entries included the name of the "shareholder", the amount of shares, the profits shared, the quantity and variety of goods, and so on. The appellant was directly led by Lu Chengdian from beginning to end, and those who assisted him in his work accepted his supervision. The accounts I recorded are only preliminary, and the final result needs Lu Chengdian's approval. The appellant's bookkeeping, account reconciliation, calculation of profit sharing, account reconciliation with Lin Jinzhou, Lin Zenghui and others, collection and payment of payment for goods, and payment of wages were all carried out according to Lu Chengdian's instructions. The appellant strongly demanded handwriting identification to eliminate the improper identification of the appellant in the original judgment;
(4) The original judgment found that "Lu Chengpin contributed money on behalf of the appellant Lu Chengdian and others, and engaged in cigarette smuggling activities with Lin Jinzhou, Cai and others in Huiyang sea area", which was wrong. (See page 26 of the original judgment for details). The appellant had no idea that Lu Chengpin had invested in cigarette smuggling activities in Huiyang Sea with Lin Jinzhou, Cai and others in his name, and shared the smuggling profits with Lin Jinzhou, Cai and others in proportion. As mentioned above, the appellant's actions were carried out in accordance with Lu Chengdian's instructions, in order to assist Lu Chengdian;
(5) The appellant has never seen the goods involved. How can it be said that the tax evasion involved in the appellant's cigarette smuggling is 1,188,901,107.70 yuan?
(VI) The original judgment held: "On the evidence validity of data recovery of the U disk of the defendant Qiu bookkeeping. ..... The U disk account should be included in the scope of documentary evidence, and the obtained evidence is legal and confirmed by the co-defendants. It is closely related to the criminal facts of this case, fully conforms to the characteristics of evidence, has evidential effect, and should be accepted. " (See page 58 of the original judgment for details.) The appellant thinks that this judgment and determination are wrong.
The two USB flash drives are not direct physical evidence (cigarettes). The appellant entered the contents of two USB flash drives according to the written materials provided by Lu Chengdian, and the appellant could not confirm their authenticity. However, in the investigation stage, in the face of strong investigators and obviously weak appellants, it is impossible to confirm the contents of the two USB flash drives without following the requirements of investigators.
It should also be pointed out that there are unreadable parts in the two USB flash drives. Is there anything beneficial to the appellant here? Now that Lu Chengdian is at large, it is impossible to verify the authenticity, and this possibility is not ruled out. Without the seizure of smuggled goods, that is, cigarettes, it is not enough to prove that the appellant's crime amount is 1,188,901,107.70 yuan only by two USB flash drives and the appraisal conclusion.
Second, it was wrong that the original judgment determined that the appellant was the principal offender in this case. The appellant is an accessory to this case and should be given a mitigated punishment according to law.
(1) From the subjective aspect of the crime, the appellant did not intentionally participate in the smuggling crime. The appellant's involvement in smuggling activities in this case is entirely due to the rallying, seduction and instigation of Lu Chengdian and Lu Chengpin. This fact is objectively confirmed in the prosecution opinions of the investigation organ and the indictment of the public prosecution organ, and the court investigation of the court of first instance has also been verified, which is enough to confirm that the appellant does not play a major role in the subjective aspect of the crime;
(2) From the objective aspect of the crime, the appellant was appointed by Lu finished products to be responsible for bookkeeping, reconciliation, calculation of smuggling profit share, reconciliation with Lin Jinzhou and Lin Zenghui, collection and payment of goods, and payment of wages. Moreover, the appellant's actions were carried out under the supervision of Lu Chengdian, and everything the appellant did should be finally approved by Lu Chengdian and be responsible for Lu Chengdian. Page 9 and page 14 of the prosecution opinion in this case respectively have such a determination: "Lu Chengdian will account for the registration of smuggled funds, the calculation of profits in all aspects of smuggling and dividends." "In the dividend table of illegal smuggling income recorded by Lu Chengdian in 2005, the dividends of real estate investment have been calculated ..." "The above criminal facts are supported by documentary evidence such as the dividend table of illegal smuggling income recorded by Lu Chengdian ..."
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To sum up, the appellant's role in the criminal activities of smuggling with * * * is secondary and should be regarded as an accessory according to law.
Three, the original judgment denied the defendant meritorious service is wrong.
The judgment of the original trial found: "The defendant Qiu truthfully confessed the smuggling accounts during the investigation stage, which is helpful for the detection of this case. Although it does not constitute meritorious service in accordance with the law, it is a performance of pleading guilty and repenting, and it can be given a lighter punishment. " (See page 67 of the original judgment for details). In this regard, whether the appellant has rendered meritorious service should be based on the degree of the appellant's positive role in this case. In the investigation stage and even the trial stage of this case, the appellant's explanation of relevant accounts, especially the explanation of two "U disks", played a decisive role in finding out the facts of this case, which should be regarded as meritorious service according to law and should be given a lighter punishment according to law. It is wrong for the original judgment to only make the appellant "confess", which is fair to the appellant in obvious unfairness.
To sum up, the appellant believes that the original judgment found that the appellant invested 700,000 yuan to participate in the smuggling activities of Lu finished products and others in 2003, and made a profit of 700,000 yuan, and then converted the 700,000 yuan into investment in 2004; The appellant is responsible for managing the funds of Lu finished products and Lu Chengdian smuggling gangs; On behalf of the appellant, Lu Chengdian, Lin Jinzhou and Cai invested in cigarette smuggling activities in Huiyang sea area, and on the basis of two USB flash drives without physical objects, it was determined that the appellant participated in the smuggling activities of Lu Chengpin and Lu Chengdian smuggling gangs and evaded taxes 1, 188,901,18. Both found the facts and the judgment improper, and sentenced the appellant to fixed-term imprisonment of 15 years, and fined RMB 1, 18890 1, 107.70 yuan, which obviously belonged to excessive sentencing (including fines for principal punishment and supplementary punishment). Based on the above facts and reasons, the appellant filed a special appeal, requesting the Guangdong Higher People's Court to re-determine the facts of this case, and not to consider the appellant as an accessory to this case, with meritorious service. At the same time, he also implored the Higher People's Court of Guangdong Province to fully consider the appellant as the only source of livelihood for the whole family from a humanitarian standpoint, his wife Qiu Yinglan is unemployed, and two young children (one is 6 years old and the other is 2 years old) have yet to be raised. The parents of husband and wife are over 60 years old and over 80 years old, respectively. They are in poor health and need long-term medical treatment. The appellant still needs to fulfill his duty of support, and so on. According to the actual situation, the appellant shall be given a lighter punishment as appropriate.
I am here to convey
Guangdong Provincial Higher People's Court