Inbound number.
Case of drug trafficking by Fan.
Determination of the number of new types of *** and application of criminal penalties.
Keyword. Criminal drug trafficking crimes, new types of drugs, quantity penalties apply.
Basic facts of the case. Between January and March 2019, defendant Fan Moumou purchased a total of 16 orders of 821 boxes (24 bottles per box) of "** water" containing oxybutyric acid from Chen Moumou (handled in a separate case) through Zhang Moumou (handled in a separate case) at a price ranging from 300 yuan to 380 yuan per box, and sent them from Foshan City, Guangdong Province to Tongling City through logistics. Fan Moumou sold the purchased "** water" to Liu, Yan, Ge, Ye (handled in a separate case) and others at ** ranging from 500 yuan to 1,000 yuan per box, of which 30 boxes were drunk by Fan Moumou and others.
After weighing, the net weight of a single bottle of "** water" is a minimum of 265 grams. Fan Moumou sold 791 boxes of "** water", a total of 18,984 bottles, weighing more than 5,000 kilograms. After sampling, "*water" contained hydroxybutyric acid with an average concentration of 286mg/ml。
According to another investigation, in 2012 and 2014, the defendant Fan Moumou was administratively punished for drug use. On May 12, 2015, Fan Moumou was sentenced to 1 year imprisonment with a 2-year suspended sentence for the crimes of picking quarrels and provoking troubles and illegal detention.
The public prosecution submitted a sentencing recommendation that Fan XX be sentenced to 15 years imprisonment and fined.
On August 20, 2020, the Intermediate People's Court of Tongling City, Anhui Province, rendered the (2020) Anhui 07 Xingchu No. 1 Criminal Judgment: Defendant Fan XX committed the crime of drug trafficking and was sentenced to life imprisonment, deprivation of political rights for life, and confiscation of all personal property. After the verdict was pronounced, Fan Moumou appealed. On November 20, 2020, the Anhui Provincial High People's Court rendered the (2020) Anhui Xingzhong No. 181 Criminal Ruling, rejecting the appeal and upholding the original judgment.
Reasons for the Adjudication. The effective judgment of the court held that: -Hydroxybutyrate (English name GAM-MA-hydroxybutyrate, abbreviated GHB, CAS number is 591-81-1) is an organic compound, which has a strong inhibitory effect on the central nervous system. These drugs are colorless, tasteless, odorless, and are a central depressant that is easily soluble in water and alcohol, and abuse can lead to temporary memory loss, and even rapid loss of consciousness, coma and death. The newly discovered abuse method is adding to beverages and alcohol to disguise itself as a drink to confuse the identification of abuse, and the abuse is mostly targeted at young people at parties, which can easily spread to serious public health and public safety problems. However, for new drug crimes, how to grasp the quantitative standards for conviction and sentencing, and how to implement the principle of balance between crime and punishment and the criminal policy of blending leniency and severity when applying criminal punishment, it is necessary to conduct research and research in combination with specific cases.
1. In handling cases of new types of crimes, except as otherwise provided in judicial interpretations or where the regular form of drugs is temporarily changed for the purpose of concealed transportation, the amount of drugs committed by the defendant shall be determined on the basis of the amount of drugs that has been verified to be true.
The quantity of drugs directly reflects the degree of social harm caused by drug crimes, and there is no doubt that the amount of drugs involved is one of the important indicators in the conviction and application of penalties for drug crimes. The amount of drugs involved in the case containing -hydroxybutyric acid is a type of drug that has recently been abused, and the purity of such drugs when dissolved in liquid is relatively low, and the amount of drugs involved in the case containing such drugs is usually relatively large. With regard to the determination of the quantity of drugs, the "Minutes of the National Symposium on the Trial of Drug Crimes in Courts" (hereinafter referred to as the "Minutes") stipulates that in handling drug crime cases, regardless of the purity of the drugs, the quantity of drugs verified to be true shall generally be determined as the quantity of drug crimes, and the applicable statutory punishment range shall be determined accordingly, except as otherwise provided in judicial interpretations or where the conventional form of drugs is temporarily changed for the purpose of concealed transportation. The minutes reiterate the criminal law's criteria for determining that the quantity of drugs is not converted by purity, and at the same time, based on the consideration of the complexity of drug crimes in judicial practice, special provisions are made for the determination of the quantity of drug crimes in two special circumstances. In the first case, according to paragraph 2 of Article 1 of the Drug Interpretation, "if the first-class product or psychotropic drug produced by the state-designated production enterprise in accordance with the standard specifications is used for drug crimes, the quantity of the drug involved in the case shall be determined according to the content of the drug components in the drug"; In the second case, the conventional form of the drug is temporarily changed for the purpose of concealed transportation. Accordingly, for new types of drug crimes, as long as they do not fall under the two circumstances provided for in the Minutes, the purity conversion cannot be carried out when determining the quantity of drugs, and the quantity of drug crimes should be determined according to the quantity of drugs verified to be true, and the purity of the drugs does not affect the characterization of the case, the determination of the quantity of drugs, and the determination of the statutory punishment range. Where the purity of the drugs is clearly low compared to the same type of drugs, the defendant shall be given a lighter or heavier punishment within the corresponding legally-prescribed range of punishment on the basis of the amount of drugs verified to be true. It should be noted that the purity of different types of drugs and the purity of drugs in different ways of abuse are not comparable, and when judging the purity of drugs, they should be compared among similar drugs, and different types of drugs or drugs with different ways of abuse cannot be mechanically compared, and the purity of drugs is obviously low only from the perspective of disparity in values, and this is to be used as a reason for lenient punishment for the defendant.
In this case, Fan Moumou sold "** water" containing -hydroxybutyric acid, which was directly ingested and abused in the consumption process, and this kind of drug did not belong to the *** products or psychotropic drugs produced by the state-designated production enterprises in accordance with standard specifications, nor did it belong to the form of drugs that the defendant temporarily and deliberately changed for covert transportation. Therefore, according to the provisions of the "Minutes", the amount of Fan's drug crime cannot be determined by the converted amount of the purity of -hydroxybutyric acid contained in "** water", and the amount of "** water" sold by him should be determined according to the amount of "** water" that is verified to be true, and the statutory punishment range should be determined accordingly. Regarding the judgment of the purity of the drugs involved in the case, the average content of -hydroxybutyric acid in the "** water" sold by Fan Moumou was 286mg ml, which is indeed far lower than the content of common conventional drugs. However, the abuse method of "* water" is disguised as a drink orally, and the amount of a single dose is large, and the characteristics of this abuse method determine that its safe dose range is very small, and excessive dose may cause fatal harm. Therefore, the common content of drugs containing oxybutyric acid must be much lower than the content of traditional solid drugs such as methamphetamine, and only the low content can not only meet the pursuit of drug use by the abusing object, but also avoid the poisoning death caused by excessive drug intake. Therefore, the content of oxybutyric acid in this case was determined by the way it was abused, and it was not possible to make a simple comparison to conclude that the purity of the drugs was obviously low, and the defendant was given a substantial lenient punishment on this ground.
It should be noted that in the first class of psychotropic drugs and the "Drug Interpretation" listed in the national "Catalogue of Psychotropic Drugs (2013 Edition)" (hereinafter referred to as the "Catalogue"), the Chinese names of psychotropic drugs with the English name gamma-hydroxybutyrate, the abbreviation GHB, and CAS number 591-81-1 are expressed as -hydroxybutyric acid and -hydroxybutyric acid, while in practice, the appraisal opinions in some places describe such drugs involved in the case as hydroxybutyric acid. Because the appraisal opinion is not completely consistent with the description of the drug name in the list of controlled drugs and the judicial interpretation, the defendant and his defender often question that -hydroxybutyric acid and the controlled drug-oxybutyric acid are not the same substance, and put forward a defense and defense opinion of innocence on this ground. In this regard, after consulting the authoritative identification department, the reason for the different Chinese names of the chemical substances with the English name gamma-hydroxybu- tyrat is that the current identification department of suspected -hydroxybutyric acid drugs is based on the meteorological chromatography-mass spectrometry and liquid chromatography-tandem mass spectrometry detection methods of -hydroxybutyric acid in biological samples of the People's Republic of China public safety industry standard GA T 1074-2013. Therefore, the appraisal opinion usually states the name of the drug involved in the case as -hydroxybutyric acid in accordance with the identification norms and methods; Although this Chinese expression is not completely consistent with the expression of the list of controlled drugs and judicial interpretations, the CAS number (CAS registry number, the unique numerical identification number for determining a certain chemical substance, commonly known as the "ID number" of chemical substances) is 591-81-1, and the English name and abbreviation are the same, so hydroxybutyric acid and hydroxybutyric acid are the same chemical substance, and the different Chinese name expressions are caused by the naming methods under different specifications. In other words, the compounds expressed as hydroxybutyric acid in the appraisal opinion are the first class of psychotropic drugs listed in the Catalogue and -hydroxybutyric acid in the Drug Interpretation, and the different names do not affect the determination of the nature of the drugs involved in the case.
II. When applying criminal punishment to defendants in new types of drug crimes, the range of lenient circumstances should be strictly grasped, and where the people's procuratorate's sentencing recommendation is clearly improper and the sentencing recommendation is not adjusted, the people's court shall make a judgment in accordance with law.
Narcotics seriously endanger people's happiness and well-being, and criminal trials are an important part of anti-narcotics work, and the people's courts have always maintained a high-pressure posture against drug-related crimes. While adhering to the strike hard policy, emphasis is placed on precise crackdowns, emphasizing strengthening the crackdown on new types of drug crimes, severely punishing criminal acts that endanger the health of young people such as disguising new types of drugs as alcohol, beverages, and biscuits, and strictly grasping the scope of application of lenient circumstances when applying criminal punishment to defendants in new types of drug crimes. The defendant in this case, Fan XX, voluntarily pleaded guilty and accepted punishment during the people's procuratorate's review for prosecution phase, and signed a plea affidavit. When the people's procuratorate initiated a public prosecution, it submitted a sentencing recommendation that Fan XX be sentenced to 15 years imprisonment and fined for the crime of drug trafficking. On the basis of article 201 of the Criminal Procedure Law and relevant provisions, the people's courts should firstly always adhere to the principles of blending leniency and severity, proportionate punishment for crimes, and cooperation and restraint in the adjudication of evidence, as well as the cooperation and restraint of the three organs of the public procuratorate, procuratorate, and law, with respect for the review of the people's procuratorate's sentencing recommendation; Second, it is necessary to focus on reviewing whether the facts of the crime alleged by the people's procuratorate are clear, whether the evidence is credible and sufficient, whether there are exceptions to the people's procuratorate's sentencing recommendation that should generally be adopted, and whether the sentencing recommendation is clearly improper; Third, it is necessary to strengthen cooperation with the people's procuratorate on the basis of division of labor and responsibility, improve restraints, handle cases strictly in accordance with the law, ensure the fairness of sentencing, and maintain the authority of law.
In this case, the court of first instance held that the public prosecution's sentencing recommendation to sentence Fan to 15 years imprisonment and a fine was obviously improper based on the facts of Fan's crime, the nature and circumstances of the crime, and the degree of harm to society; The public prosecution organ did not adjust the sentencing recommendation after being notified, and the court of first instance did not adopt the public prosecution organ's sentencing recommendation and made a judgment in accordance with law. The specific analysis is as follows:
First, from the overall grasp of the sentencing circumstances, the law provides that defendants who admit guilt and accept punishment may be given leniency in accordance with law, and it should be based on comprehensive considerations such as facts, law, and criminal policies, and it is necessary to avoid one-sided severity and prevent blind leniency. The Supreme People's Court's "Sentencing Guiding Opinions on Common Crimes" (hereinafter referred to as the "Sentencing Guiding Opinions") stipulates that when determining the range of leniency for drug-related crimes and other crimes that seriously endanger public security, the scope of leniency shall be strictly controlled; For crimes where the circumstances of the crime are relatively minor, leniency shall be fully reflected. Oxybutyric acid belongs to the first class of psychotropic drugs included in the scope of national control, and compared with the second class of psychotropic drugs, it is highly addictive and harmful to society. In addition, the drug is colorless and tasteless, and can cause people to quickly produce a lethargic effect after taking it, and there is memory loss in the lethargy process after waking up, and it is often used as a product or drug by criminals, commonly known as "** water", "obedient water" or "** water". Therefore, the state implements strict control over -oxybutyric acid, and accordingly, the sentencing for such crimes should also be strictly controlled. In this case, Fan Moumou sold "** water" containing -hydroxybutyric acid, using common drinks as the carrier, simple to take, with stronger concealment and self-control, and easy to be abused by teenagers who lack drug identification and self-control, and the occurrence of such cases is gradually spreading, seriously endangering social security and citizens' health and safety. Therefore, when determining the scope of leniency for Fan XX's plea of guilt and acceptance of punishment, it should be strictly grasped in accordance with the provisions of the "Sentencing Guiding Opinions", and it must not be given leniency indiscriminately, otherwise the effectiveness of criminal punishment in curbing drug crimes will be weakened, it will not be conducive to the overall severe punishment of drug crimes, and it will be difficult to promptly curb the spread of new drugs.
Second, from the perspective of the specific circumstances affecting sentencing, the "Sentencing Guiding Opinions" stipulate that where 1,000 grams of opium, 50 grams of methamphetamine, or other drugs are smuggled, trafficked, transported, or manufactured, the starting sentence is 15 years imprisonment, except where a sentence of life imprisonment or higher shall be imposed in accordance with law. On the basis of the starting sentence, the sentence may be increased to determine the base sentence on the basis of the number of drug crimes, the number of drug offenders, the number of drugs, and other facts of the crime that impact the establishment of the crime. According to article 1 of the "Drug Interpretation", smuggling, selling, transporting, or manufacturing more than 2,000 grams of oxybutyric acid shall be found to be "a large quantity of other drugs" as provided for in item (1) of paragraph 2 of article 347 of the Criminal Law. Fan XX sold more than 5,000 kilograms of "** water" containing hydroxybutyric acid, far exceeding the drug quantity standard for the starting sentence of the main sentence provided for in paragraph 2 of Criminal Law article 347, and there are also sentencing circumstances that increase the sentence such as selling drugs to multiple people and selling drugs multiple times, it is no longer appropriate to use the starting sentence of 15 years imprisonment of the statutory sentencing range as a sentencing recommendation for Fan XX's proposed main sentence, so the public prosecution's sentencing recommendation for Fan XX's main sentence is inappropriate. With regard to the supplementary sentence to be given to Fan XX, the public prosecution organ's recommendation to impose a fine, combined with the sentencing recommendation for Fan XX's main sentence, is to be determined by the selection of the sentencing range provided for in paragraph 3 of Criminal Law article 347, that is, "where 200 grams or more of opium but less than 1 kilogram is smuggled, trafficked, transported, or manufactured, or between 10 grams and 50 grams of methamphetamine, or the quantity of other drugs is relatively large, a sentence of 7 or more years imprisonment and a concurrent fine is to be given." Based on this, the public prosecution actually made a sentencing recommendation for Fan Moumou to reduce the punishment. Regarding the grasp of leniency after admitting guilt and accepting punishment, the Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry **, and Ministry of Justice's "Guiding Opinions on the Application of the Plea Leniency System" provides: The handling of plea cases shall be in accordance with the basic principles of the Criminal Law and the Criminal Procedure Law, based on the facts, nature, and circumstances of the crime, and the degree of harm to society, combined with the legally-prescribed and discretionary sentencing circumstances, and comprehensively considering the specific circumstances of the plea, and lawfully determining whether and how to be lenient. Commutation or waiver of punishment shall have a basis in law; where there are no mitigating circumstances, a sentencing recommendation for a lighter punishment and sentencing shall be submitted within the legally-prescribed range. Looking at the facts and circumstances of Fan's entire case, although he pleaded guilty and accepted punishment, he did not have other mitigating circumstances, so the public prosecution's sentencing recommendation for an additional sentence and fine below the legally-prescribed sentencing range was not based on sufficient evidence, clearly deviating from the principle of proportionality of criminal responsibility and punishment and influencing the uniform application of law, and was obviously improper.
Thirdly, judging from the review procedures for the sentencing recommendation, the court of first instance found that the sentencing recommendation was obviously improper after trial, and informed the public prosecution organ in accordance with the relevant procedural provisions, and the public prosecution organ indicated that it would not adjust the sentencing recommendation. In accordance with the provisions of paragraph 2 of article 201 of the Criminal Procedure Law, the court of first instance did not adopt the sentencing recommendation of the public prosecution organ on the basis of the facts, nature, and circumstances of Fan's crime, and the degree of harm to society, and sentenced the defendant Fan XX to life imprisonment, deprivation of political rights for life, and confiscation of all personal property for the crime of drug trafficking. The court of first instance's review of the sentencing recommendation in a drug-related crime plea case not only adheres to the criminal law principle that the punishment is commensurate with the crime, but also embodies the policy grasp of severely punishing drug-related crimes.
The gist of the referee. -Oxybutyric acid is the first class of psychotropic drugs controlled by China, and it has recently been found that it has been added to beverages and alcoholic beverages to disguise itself as drinks, and the drug attributes are not recognizable, and it is easy to be abused by teenagers. Attention should be paid to strengthening the crackdown on new types of drug crimes, and severely punishing criminal acts that endanger the health of young people, such as disguising new types of drugs as drinks and food, in accordance with law. When applying criminal punishment to defendants in new types of drug crimes, the scope of application of lenient punishment circumstances should be strictly grasped, and where the people's procuratorate's sentencing recommendation is clearly improper and the sentencing recommendation is not adjusted, the people's court shall make a judgment in accordance with law.
Associate indexes. Article 357 of the Criminal Law of the People's Republic of China.
Article 201 of the Criminal Procedure Law of the People's Republic of China.
First instance: Anhui Province Tongling Intermediate People's Court (2020) Anhui 07 Xingchu No. 1 Criminal Judgment (August 20, 2020).
Second instance: Anhui Provincial High People's Court (2020) Anhui Xingzhong No. 181 Criminal Ruling (November 20, 2020).
Fifth Criminal Division).