Defendant Liang Hao, male, 2 1 year old, unemployed. 1On July 25th, 992, he was reeducated through labor for three years for stealing and taking drugs.
The case of Hong Yan and Liang Hao, the defendants, dealing in drugs was investigated by the Public Security Department of Kaiyuan Railway in Sichuan Province and transferred to the Kaiyuan Railway Transport Procuratorate for examination and prosecution. On September 9, 1996, kaiyuan railway transportation procuratorate filed a public prosecution with kaiyuan railway transportation court. The indictment finds that the facts of the case are as follows:
1one day in April 1996, the defendant Liang Hao asked the defendant Hong Yan to help him buy heroin 500 yuan from him. Hong Yan went to the vicinity of the Workers' Cultural Palace in Kaiyuan City and bought 1 g heroin and gave it to Liang Hao. He shared a small amount of heroin for himself. The defendant divided the heroin into several small packets and sold them to drug addicts such as Huang, Sun Yanan, Zheng Meng, etc. Selling drugs with * * * many times (the proceeds have been squandered).
1one day in June, 1996, Li Jun (who had been arrested and dealt with separately) asked Hong Yan to help him buy heroin worth 1030 yuan. On the same day, the defendant bought 2 grams of heroin from Qingnian Road Tea Shop in Kaiyuan City and gave it to Li Jun, who sold it several times.
Kaiyuan Railway Transport Procuratorate believes that the defendants Hong Yan and Liang Hao, who ignored national laws and sold heroin, both committed the crime of drug trafficking. If the defendant Hong Yan commits a new crime within three years after his release from prison, he is a recidivist and should be given a heavier punishment in accordance with the provisions of the first paragraph of Article 65 of the Criminal Law of People's Republic of China (PRC).
1996101On 24 October, the Kaiyuan Railway Transport Court held that the prosecution accused the defendant Liang Hao of drug trafficking. However, the defendant Hong Yan could not be convicted of drug trafficking because Hong Yan did not know that Liang Hao and Li Jun were also selling drugs before helping to buy heroin, and Hong Yan did not participate in drug trafficking afterwards, that is, he did not have the subjective elements of drug trafficking. In order to maintain the state's control over the purchase and sale of drugs and protect citizens' health rights from illegal infringement; At the same time, in order to ensure that innocent people are not prosecuted by law, according to the provisions of the third and fifth paragraphs of Article 2 and Article 12 of the Decision of the National People's Congress Standing Committee (NPCSC) on Drug Control, it is decided that:
1. Defendant Liang Hao was convicted of drug trafficking and sentenced to one year and six months in prison;
2. Declare the defendant Hong Yan not guilty;
3. 0.17g of heroin transported with the vehicle, and those with self-made scales shall be confiscated.
After the verdict was pronounced in the first instance, the Kaiyuan Railway Transport Procuratorate held that the first instance judgment wrongly determined that the defendant Hong Yan was innocent, which was a wrong judgment. Therefore, he requested the superior procuratorate to protest according to law. 1996165438+1On October 8th, the branch of Chengdu Railway Transport Procuratorate of Sichuan Province lodged a protest with Chengdu Railway Transport Intermediate Court. Reasons for protest: The judgment found that Hong Yan didn't know that Liang Hao and Li Jun were selling heroin besides smoking before buying heroin, and didn't participate in the trafficking afterwards, that is, the subjective elements of the crime of drug trafficking were not available and the charge could not be established, so the defendant Hong Yan was acquitted. The error of this judgment lies in; "The determination of the judgment and the third and fifth paragraphs of Article 2 of the National People's Congress Standing Committee (NPCSC)'s Decision on Drug Control and the first paragraph of Article 2 of the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of NPC Standing Committee's Decision on Drug Control stipulate that drug trafficking refers to the illegal sale or illegal purchase of drugs for the purpose of trafficking. "On the contrary. The verdict only takes a literal one-sided understanding of "helping to buy" and ignores the nature of drug trafficking. Judging from the facts of this case, Liang and Li's money was taken first, and then the heroin they bought was given to others ... At this time, Hong Yan's behavior of buying and selling drugs had been completed. As for whether he made a profit in the process of buying and selling drugs, whether the defendant knew that Liang and Li bought heroin for smoking and selling did not affect the establishment of the crime of drug trafficking. Defendant Yan Hongming knew that he bought heroin and sold it to Liang Hao and Li Jun respectively, which enabled the drug to spread and spread, and his behavior had caused harm to society. Defendant Hong Yan's subjective intention of drug trafficking is clear, and the objective elements are available, which has constituted the crime of drug trafficking. In addition, the defendant Hong Yan was sentenced to five years' imprisonment for drug trafficking in June 1992, and only sold drugs once every 10 months after he was released from prison. According to the first paragraph of Article 65 of the Criminal Law of People's Republic of China (PRC), he is a recidivist and should be given a heavier punishment. The court of first instance ruled that the defendant Hong Yan was not guilty, which was obviously a wrong judgment.
Chengdu Railway Transport Procuratorate Branch believes that the court of first instance violated relevant laws and regulations in the process of hearing the case. The Organic Law of the People's Procuratorate stipulates: "If a people's court sues a case and thinks that the main criminal facts are unclear, the evidence is insufficient or there are illegal circumstances, it may return it to the people's procuratorate for supplementary investigation or notify the people's procuratorate to correct it." The Organic Law of the People's Court has also made relevant provisions. Article 108 of the Criminal Procedure Law promulgated by 1979 stipulates that "if there is no need for sentencing, the people's procuratorate may be requested to withdraw the prosecution", but the court did not exchange views with the procuratorate before the hearing. During the trial, neither the defender nor the defendant raised any objection to Hong Yan's accusation of drug trafficking, and the collegial panel did not advocate the defendant Hong Yan's innocence in court. After trial, the court of first instance ignored the facts ascertained by the court investigation and sentenced the defendant Hong Yan to innocence without authorization, which violated the relevant provisions of the Criminal Procedure Law.
On March 26th, 1997, Chengdu Railway Transport Intermediate Court of Sichuan Province held that the protest reason of Chengdu Railway Transport Procuratorate Branch was established and should be adopted; Defendant Yan Hongming knew that heroin was a drug prohibited by the state, but he still bought it for others, while Liang Hao and Li Jun sold it, which did great harm to society. Hong Yan's behavior has constituted the crime of drug trafficking, and he is a recidivist and should be severely punished. It was wrong for the court of first instance to acquit the defendant Hong Yan. In accordance with the provisions of the second paragraph of Article 189 of the Criminal Procedure Law of People's Republic of China (PRC) and the third, fifth and twelfth paragraphs of Article 2 of the Criminal Law of People's Republic of China (PRC), the verdict is as follows:
1. Defendant Liang Hao was convicted of drug trafficking and sentenced to one year and six months in prison.
2. Defendant Hong Yan was convicted of drug trafficking and sentenced to three years' imprisonment.