Ma Shengjian and other drug trafficking cases
1. Basic facts of the case
Defendant Ma Shengjian, male, born on September 28, 1968, Zhuang nationality, early Chinese, farmer. He was arrested on 31 May 2001 on suspicion of drug trafficking.
Defendant Luo Jiapai, male, born on October 12, 1963, Han nationality, early Chinese, farmer. He was arrested on 31 May 2001 on suspicion of drug trafficking.
Defendant Hu Zechuan, male, born on September 23, 1948, Han ethnicity, primary school education, farmer. He was arrested on 31 May 2001 on suspicion of drug trafficking.
The Nanning City People's Procuratorate of the Guangxi Zhuang Autonomous Region filed a public prosecution with the Nanning City Intermediate People's Court on the grounds that defendants Ma Shengjian, Luo Jiapai, and Hu Zechuan were guilty of drug trafficking.
The Nanning City Intermediate People's Court ascertained through open trial that after the defendant Ma Shengjian, whose home is in Guangxi, was running a liquefied gas station in Wenshan County, Yunnan Province, and met the defendant Luo Jiapai, a local resident, he often talked with Luo about selling drugs for profit. In mid-April 2001, Luo Jiapai became acquainted with Wang Zifu (a special agent of the public security), and when he mentioned this matter, Wang Zifu said that he could provide the drug heroin. Luo Jiapai then informed Ma Shengjian of the situation and asked Ma to contact the drug buyer. Ma Shengjian immediately notified the defendant Hu Zechuan, who lived in Binyang, Guangxi, to help find a buyer. After Luojiapai and Wang Zifu arrived in Nanning City, they notified Ma Shengjian to rush to Nanning City. On April 24, "Yalong" (who is at large), a drug buyer with whom Hu Zechuan was in contact, rushed from Binyang County to Longan County to meet with Ma Shengjian, Luo Jiapai, and Wang Zifu, who were already waiting there. "Yalong" and Wang Zifu agreed on a price of 130,000 yuan per kilogram of heroin, and "Yalong" paid a deposit of 10,000 yuan to Wang Zifu first, and then carried out a "spot" transaction in Nanning City after "Yalong" returned to Binyang to raise all the money. On the 28th, "Yalong" handed over 50,000 yuan to Hu Zechuan in Binyang County, asked him to go to Nanning to conduct drug transactions, and brought the drugs back to Binyang County for inspection. On the same day, Hu Zechuan, Ma Shengjian, and Luo Jiapai rushed to Nanning from Binyang County and were arrested by public security officers, and 50,000 yuan of money used to purchase drugs was seized from Luo Jiapai.
The Nanning Intermediate People's Court held that the defendants Ma Shengjian, Luo Jiapai, and Hu Zechuan clearly knew that others were engaged in drug heroin trading, but still actively introduced, contacted, and assisted in the transaction, and their conduct constituted the crime of drug trafficking. Although Ma Shengjian, Luo Jiapai, and Hu Zechuan were not directly involved in the drug transaction, they all subjectively had the intention of helping others sell drugs, and objectively they also cooperated with each other, introduced each other, and assisted others in drug trafficking, so they were accomplices (aiders) in the crime of drug trafficking. In the joint crime of drug trafficking, Ma Shengjian, Luo Jiapai, and Hu Zechuan played an auxiliary role and were accomplices. Based on the facts, nature, and circumstances of the crime, the degree of harm to society, and the impact of the special circumstances on the occurrence of this case, Ma Shengjian, Luo Jiapai, and Hu Zechuan may be given commuted punishments. On March 27, 2002, in accordance with the provisions of Article 347, Paragraph 2 (1), Article 55, Paragraph 1, Article 56, Paragraph 1, Article 25, Paragraph 1, and Article 27 of the Criminal Law of the People's Republic of China, it was decided that the defendant Ma Shengjian was guilty of drug trafficking and sentenced to 11 years' imprisonment and deprivation of political rights for one year; and a fine of RMB 10,000. Defendant Luo Jiapai committed the crime of drug trafficking and was sentenced to 11 years imprisonment and deprivation of political rights for one year; and a fine of RMB 10,000. Defendant Hu Zechuan committed the crime of drug trafficking and was sentenced to 10 years imprisonment and deprivation of political rights for one year; and a fine of RMB 10,000.
After the first-instance verdict was announced, Ma Shengjian, Luo Jiapai, and Hu Zechuan were all dissatisfied and appealed separately. Ma Shengjian appealed: 1. The drugs traded in this case did not exist, and Wang Zifu fabricated that he could provide drugs, which was a trap to lure criminals. The drug trade did not take place at all, and it was a crime that was not stated. 2. In this case, one of the two parties to the drug transaction is at large, and the other is missing, and the evidence on which the conviction and judgment are based is insufficient and the facts are unclear. 3. In this case, the drug transaction did not take place, and the drugs that Wang Zifu said could provide were fictitious, and the amount of drugs used as the sentencing standard did not exist and was wrong. 4. I am an accomplice or attempt, and my conduct is not a real harm to society, and the original sentence was excessive. Luo Jiapai appealed, arguing that he, Ma Shengjian, and Hu Zechuan were dragged into a criminal trap by special circumstances by the public security organs, and although he subjectively had the intention of assisting others in introducing and selling drugs, the facts, nature, and circumstances of the crime did not bring harm to society, and the original judgment imposed an excessively heavy sentence on them. Moreover, he did not know the situation of Wang Zifu's negotiations with Ma Shengjian, Hu Zechuan, "Yalong" and others about drug deals, and that the money was brought to Nanning by Hu Zechuan from Binyang County and then transferred to Wang Zifu by him. Hu Zechuan appealed, saying that he did not know Wang Zifu and Luo Jiapai, and was only responsible for introducing "Yalong" to Ma Shengjian, and did not know that "Yalong" and Wang Zifu discussed drug deals. When he returned to Nanning from Binyang, "Yalong" gave him 50,000 yuan just to let him be responsible for bringing it to Nanning, and did not say to him that he would buy 1,000 grams of drugs, and the money was handed over to Luo Jiapai after arriving in Nanning. The original sentence was excessively severe. After trial, the Guangxi Zhuang Autonomous Region High People's Court held that the facts ascertained in the original judgment were clear and the evidence was credible.
Appellants Ma Shengjian, Luo Jiapai and Hu Zechuan actively participated in and lived in the first division to introduce drug transactions, and their acts constituted the crime of drug trafficking. Moreover, the amount of drugs to be sold is huge, and it should be punished according to law. In the joint crime, Ma Shengjian, Luo Jiapai, and Hu Zechuan all played an auxiliary role. is an accomplice, and punishment shall be mitigated, commuted, or waived; When Ma Shengjian, Luo Jiapai, and Hu Zechuan went to carry funds to engage in drug transactions, they failed to succeed due to reasons other than their will, which is an attempt to commit a crime, and may be mitigated or commuted by comparison with the completed offense; According to the specific circumstances of this case, Ma Shengjian, Luo Jiapai, and Hu Zechuan can all be given commuted punishments. This was reflected in the original sentence at sentencing. As for Ma Shengjian's grounds for appeal, after verification, the drug transaction in this case did not actually occur, and the original judgment has affirmed this; Ma Shengjian, Luo Jiapai, and Hu Zechuan carried drug funds to trade drugs, and had the subjective intention and objective conduct of assisting others in drug trafficking, and the fact that the drug buyer "Yalong" in this case was at large and did not prosecute Wang Zifu, a special agent of the public security, did not affect the conviction of Ma Shengjian, Luo Jiapai, and Hu Zechuan; Although the drug transaction in this case did not actually take place, Wang Zifu and "Yalong" had discussed and determined the quantity and price of the drugs traded, and finally Ma Shengjian, Luo Jiapai, and Hu Zechuan carried out the transaction, and the existing evidence in this case fully confirmed the quantity of drugs they knew they wanted to trade, so the original judgment was not improper in the determination of facts and the application of the quantitative standard of sentencing. With regard to the grounds for appeal raised by Luo Jiapai, after verification, it was found that Luo Jiapai, Ma Shengjian, and Hu Zechuan subjectively had the intention of helping others sell drugs, and objectively also actively carried out the acts of intermediary introduction and assistance in trafficking, which was harmful to society and should be punished; The available evidence in this case proves that Luo Jiapai actively participated in the drug transaction with Ma Shengjian, Hu Zechuan, "Yalong" and others, knowing that Wang Zifu was discussing drug dealings, and that 50,000 yuan of drug money was also seized from him. With regard to the grounds of appeal raised by Yu Hu Zechuan, upon verification, it was found that he did only know Ma Shengjian and did not know Wang Zifu and Luo Jiapai, but he contacted "Yalong" to discuss drug transactions with Wang Zifu, and "Yalong" was also present when he discussed drug transactions with Wang Zifu, and was well aware of the content of the negotiations; When he returned to Nanning from Binyang, "Yalong" handed him 50,000 yuan to take to Nanning, and had already told him that he would buy 1,000 grams of drugs. In summary, the grounds of appeal put forward by Ma Shengjian, Luo Jiapai, and Hu Zechuan respectively cannot be sustained and are not adopted. The original conviction was accurate and the sentence was appropriate. The trial proceedings were lawful.
In accordance with Article 189 (1) of the Criminal Procedure Law of the People's Republic of China, on 27 March 2002, it was ruled that the appeal was rejected and the original judgment was upheld.
Second, the main issues
How to deal with intermediary behavior in drug trafficking crimes?
III. Reasons for the Adjudication
There must be two basic parties to the drug trade, that is, the drug seller and the drug buyer, but in judicial practice, not all drug sales activities are directly concluded and completed by the drug seller and the drug buyer. Sometimes drug sellers who possess drugs don't know who needs to buy them, and people who want to buy drugs don't know who has drugs for sale. Therefore, brokering and brokering in drug trading activities is relatively common. According to the role of intermediaries in drug trading activities, they can be roughly divided into the following three basic forms: first, finding and introducing drug sellers for drug buyers; the second is to find and introduce drug buyers for drug sellers; The third is to have both the act of seeking and introducing drug sellers for the buyers and drug sellers. As far as drug buyers in the drug trade are concerned, there are generally two purposes for purchasing drugs: first, for their own consumption; The second is to buy for sale. Persons who purchase drugs for personal consumption are generally not treated as crimes, except in specific circumstances where criminal liability may be pursued for the crime of illegal possession of drugs, but those who purchase drugs for the purpose of trafficking and those who sell drugs must be punished as drug trafficking as long as they have one of them. In view of the complexity of the above situations, the act of intermediary in the drug trade should also be considered separately:
1. Intermediaries introduce drug users to drug sellers and help drug users buy drugs. In this case, although the act of the intermediary introducer objectively played a role in helping the drug seller's drug trafficking activities and facilitated the drug transaction, which had a certain degree of social harm, from a subjective point of view, the intermediary did not have the intention of helping the drug seller to sell drugs, but only to help the drug addict to buy drugs so that he could achieve the purpose of consuming drugs. Therefore, in principle, it cannot be punished as an accomplice to the crime of drug trafficking. In this regard, the Minutes of the National Symposium on the Trial of Drug Crime Cases by Courts issued by the Supreme People's Court in 2000 also clearly pointed out that if there is evidence to prove that the perpetrator did not purchase drugs for others solely for consumption for the purpose of making profits, and the quantity of drugs does not exceed the minimum quantity standard provided for in Article 348 of the Criminal Law, and a crime is constituted, the consignor or the purchaser shall constitute the crime of illegal possession of drugs. This provision makes it clear that even if a drug is purchased from a drug trafficker on behalf of a drug addict, as long as it is not for the purpose of making a profit from the price increase, he cannot be punished as an accomplice to the crime of drug trafficking. If it is necessary to convict and punish, criminal responsibility can only be pursued for the crime of illegal possession of drugs.
2. Intermediaries introduce drug sellers to drug buyers for the purpose of drug trafficking, and help them purchase drugs. In this case, as long as the intermediary introduces drug sellers for whom he or she is purchased, knowing that the purpose of the drug purchase is for the purpose of trafficking, and helps him to buy drugs, regardless of whether he profits from it, it shows that there is a common intention between him and the drug buyer for the purpose of drug trafficking, and he becomes an accomplice to the latter, and shall be punished as an accomplice to the crime of drug trafficking. On the other hand, if the intermediary does not know that the purpose of the drug purchase by others is to sell it, although the act of intermediary has objectively contributed to the drug trafficking activities between the two parties to the transaction, it cannot be established as an aider to the drug purchaser for the purpose of drug trafficking, nor can it be established as an aider to the drug seller, that is, it should not be punished as an accomplice to the crime of drug trafficking.
3. Where an intermediary introduces a drug buyer to a drug seller, and a bridge is made between the two to facilitate a drug transaction, regardless of whether the intermediary makes a profit from it, as long as the intermediary clearly knows that he is selling drugs, he or she may be established as an accomplice to the crime of drug trafficking.
In this case, the defendants Ma Shengjian and Luo Jiapai actively intermediated and introduced Wang Zifu to find a buyer when they learned that Wang Zifu was selling drugs; After being entrusted by Ma Shengjian, the defendant Hu Zechuan found the drug buyer "Yalong", and actively helped "Yalong" to buy drugs from him even though he knew that "Yalong" was going to buy drugs for the purpose of selling drugs. Ma Shengjian, Luo Jiapai, and Hu Zechuan jointly facilitated the meeting between Wang Zifu and "Yalong", and were also present when the two sides decided on the price, grazing amount, deposit payment, and time and place of the drug transaction. Subsequently, the three defendants also jointly carried the drug purchase funds delivered by "Yalong" to the agreed transaction place on time to assist in the drug seizure. Although the three defendants were not directly involved in the drug trade, their acts were all done. An aider who commits the crime of drug trafficking. Since the "drug sellers" in this case were special circumstances of the public security, the drug trade did not exist from the beginning, and it was an attempt that could not be committed, but this does not negate that the three defendants subjectively had the intention of brokering and selling drugs, and that they had carried out the objective act of brokering and selling drugs. As for the sentencing issue in this case, we believe that in terms of the comprehensive circumstances of this case, since each defendant in this case has two statutory leniency circumstances and one discretionary lenient circumstance at the same time, the range of mitigation can still be larger. The defendant in this case was not a party to the drug trafficking, but was only a matchmaker with others to trade drugs, and although he constituted an accomplice to the crime of drug trafficking, he was an accomplice and should be given a lighter, commuted, or waived punishment in accordance with law. Second, since the "drug sellers" in this case were special public security circumstances, the drug transaction did not exist from the beginning and could not have actually taken place, so for the defendant in this case, who brokered the sale of drugs, it was also an unacceptable attempt to commit the crime of drug trafficking. For attempted offenders, the punishment may be mitigated or commuted in accordance with law. Third, although there is no typical problem of special criminal intent inducement and quantitative inducement in this case, we can also see that the defendant in this case began to actively carry out the criminal act of intermediary introduction and assistance only when he expressed his possession of drugs and wanted to find buyers. In other words, the present case might not have occurred without the above-mentioned deception. This situation may be called "the lure of criminal opportunity". Criminal acts committed by defendants under special circumstances of "opportunity inducement" should also be considered in sentencing.