Special Declaration: This article is an original work by Attorney Shao Shiwei. It represents only the personal views of the author and does not constitute legal consultation or legal advice on specific matters. For article reprints, legal consultations, or professional exchanges, please add: sswls66.
Last night I had a dream that I was in court; it felt quite interesting, so I couldn't resist recording it.
Special Declaration: This story is purely fictional. Any resemblance is purely coincidental. No one should assume this refers to any specific individual or entity.
1
Case Background
One day, while project personnel from a certain virtual currency exchange were conducting an impassioned offline roadshow in a first-tier city in China, a large group of "police officers" suddenly rushed into the venue. Just like that, all members of the project team were "subdued" by the police and detained in a detention center in a fifth-tier city.
Why was the platform accused of suspected criminal activity? Because the local public security authorities believed that a module within this exchange constituted a gambling game using virtual currencies as stakes.
However, it must be said that there is significant controversy over whether the module involves gambling:
The defense (attorneys) argued that whatever amount of coins users deposited, the platform immediately returned the corresponding amount of coins to the users' accounts, meaning there was no possibility of loss. On what basis, then, could the platform be accused of involvement in gambling? (The argument for why the platform's model does not involve gambling is omitted here for brevity... but it must be said that the platform's founder who designed such a game model is indeed talented!)
The prosecution (prosecutors) argued, "I consider it a gambling game, so it is a gambling game. Didn't you admit this in your interrogation records?" (Yes, it was simple and crude... but it is said that during the initial interrogations, everyone was beaten.)
Life in the detention center was truly unbearable.Due to the significant controversy over the determination of gambling involvement, all defendants refused to plead guilty. The case underwent two returns for supplementary investigation by the procuratorate and two court hearings. After more than a year of detention for all individuals, the final hearing at the court of first instance finally arrived.
Since there were many defendants, each hearing was held in the largest courtroom of the court. Including the defendants, attorneys, judges, public prosecutors, and bailiffs, there were more than thirty people present, making for a grand procession.
2
Court Hearing Record
# Evidence Presentation and Cross-Examination Phase
This was the third hearing, and the attorneys noticed that the public prosecutor had changed to a new face.
After the judge took their seat, they declared, "The court is now in session. The public prosecutor will continue presenting evidence." The public prosecutor began reading from a script.
After finishing, the defense attorney asked, "Judge,why is the public prosecutor different from the previous two hearings?What is the situation here?"
The judge paused for two seconds and said, "Oh, dear defense attorneys, I am now informing you that they are indeed prosecutors from our office."
(Inner thoughts of the defense attorney: Changing the public prosecutor is significant information that may affect the defense. How is my right to know as an attorney not protected at all? Never mind, let's proceed with the hearing first.)
Public Prosecutor: Presenting the list of seized property (the RMB obtained from selling all the defendants' virtual currencies).
Defense Attorney:Without a court judgment, the parties' virtual currencies should not have been disposed of! It has not yet been clarified whether these coins are illicit gains involved in the case.The disposal actions by the public security authorities were procedurally illegal!
The judge asked: "Public Prosecutor, what is your opinion on the defense attorney's statement?"
Public Prosecutor:None.。
(The defense attorney was shocked, thinking internally: Are they not even pretending? Shouldn't they at least say a few words? Do they assume that since the seizure and disposal have already been carried out, it doesn't matter? Furthermore, regarding the ten or twenty questions raised by our attorneys last time, the previous prosecutor claimed ignorance on all counts and stated they would verify after the hearing. It has been several months; what is the status of that verification? There has not been a single word of response. Is this public prosecutor refusing to take responsibility for the mess left by their former colleague?)
Additionally, regarding the ten or twenty questions raised by our attorneys last time, the previous prosecutor claimed ignorance on all counts and stated they would verify after the hearing. It has been several months; what is the status of that verification? There has not been a single word of response. Is this public prosecutor refusing to take responsibility for the mess left by their former colleague?
# Court Debate Phase
Judge: "The evidence presentation and cross-examination in this case have already undergone two hearings. We now enter the court debate phase. The public prosecutor is invited to present their prosecutorial opinions first."
Public Prosecutor: ... (Read from the indictment for 2 minutes, then concluded.）。
(The defense attorney was shocked, thinking internally: This is a major case involving the disposal of tens of millions in virtual currencies, and all defendants are pleading not guilty. After three days of hearings, given the significant controversy over whether the platform involves gambling and the numerous loopholes in the evidence, Public Prosecutor, you... are done??)
Judge: "The defense attorneys are now invited to present their debate opinions."
Defense Attorney: ... (Passionate speech, omitting tens of thousands of words here)
However, while the defense attorney was presenting their opinions, the presiding judge and their colleagues sitting on either side were chatting and laughing cheerfully.
At first, the defense attorney endured it, but after a few minutes, as the laughter grew louder, they could no longer tolerate it. With a smile and a friendly demeanor, the defense attorney said, "Presiding Judge, could you please listen carefully to the defense attorney's opinions?" The presiding judge instantly lost their smile and glared fiercely at the defense attorney.
After all defense attorneys finished presenting their opinions, approximately one hour had passed.
Judge: "Do both the prosecution and defense require another round of debate?"
The public prosecutor replied instantly: "No need!"
The judge immediately followed up: "Very well, the court debate is hereby concluded!"
(The defense attorney was shocked again,It is rare to encounter a public prosecutor who is so introverted and taciturn.
Additionally, it feels quite regrettable. This case is highly controversial. A not-guilty defense represents a clash of ideas between attorneys and prosecutors at the intellectual level. Whether the model involves gambling is a topic our legal team discusses heatedly, brainstorming potential arguments the prosecutor might raise and how we should rebut them. Who would have expected to encounter such a reticent prosecutor? It is truly regrettable.
Looking at the prosecutor across the way, who hardly lifted their head for most of the day, the defense attorney thought internally:Speak up, please speak up. Why won't you speak? Why do you think the platform involves gambling? Don't just read legal provisions; provide some argumentation!）
# Other · The Founder's Responsibility
During a meeting at the detention center the day before the hearing, I asked, "During the recess at noon in the last hearing, were you provided with food?"
The client smiled bitterly: "They gave us a lump of rice. Fortunately, the boss asked about it during the hearing; otherwise, we would have gone without food again (just like during the noon recess of the first hearing)."
During the hearing, two employees attempted to shift all blame onto the boss to prove their own innocence, stating in court, "The boss did everything; I knew nothing! I believe the boss committed a crime, but I am innocent!"
Since several defendants shared one microphone during the hearing, and the microphone was somewhat distant from the employees, the boss, despite wearing handcuffs, held the microphone with both hands to help the employees speak louder. His expression was calm, looking at them as one would look at children.
Sigh, this scene evoked complex emotions. Truly a leader with emotional stability and a sense of responsibility.
3
Finally, the Verdict
After more than a year and following the third hearing, the verdict of the first instance was finally delivered.
First, I turned to the last page of the judgment to check the sentencing. Wow! Finally,effective defense！
Recalling previous communications with the prosecutor, she indicated thatthe boss should receive eight to nine years, and others five to six years,which placed significant pressure on us. However, during the three hearings, we indeed exerted our utmost effort to argue the procedural illegality in this case and the lack of evidence to constitute the crime. Therefore, although the first instance still found them guilty, the sentences for all individuals werecut in half or even lower than those sought by the procuratorate.。
However, the defense attorneys believe that this result remains unfair to the defendants, so they will appeal.
After reviewing the sentencing, I began to carefully study the judgment. I found that although the judge wrote dozens of pages, it lacked substantive content, merely copying the confessions made by the defendants during the public security investigation phase. That aside, what was laughable was that
the judgment mysteriously stated, "This Court holds that XX Exchange's provision of perpetual contract trading in virtual currencies constitutes illegal financial activities."
Hmm? Seeing the words "perpetual contracts," I was momentarily bewildered?? (An explanation is needed here: In cases across the country where virtual currency exchanges are accused of operating casinos, most involve the perpetual contract module within the exchange being deemed by judicial authorities as involving gambling. However, in this case, the exchange did not have a perpetual contract module. Neither in the defendants' confessions nor in the multiple hearings was this term mentioned by anyone. It is said that the local authorities had previously handled other exchange cases. Therefore, the inclusion of this wording in the judgment can only be guessed as the judge mindlessly copying and pasting content from other judgments without proper proofreading.)
Furthermore, this case clearly exhibits characteristics of "long-arm jurisdiction" and "profit-driven law enforcement." Thus, immediately upon arresting the parties, the local public security authorities transferred and sold off all the virtual currencies owned by the parties. Logically, the proceeds from the sale of these coins should have been confiscated as "illicit gains." However, the court judgment did not mention at all whether the tens of millions in coins constituted property involved in the case or how they should be characterized. It only subtly stated that the funds and properties involved in the case would be "handled in accordance with the law" by the seizing authority. So, what exactly does "in accordance with the law" mean in this context?
Therefore, the second instance trial should also be quite interesting. Let us wait and see.
4
Reflections on Case Handling
As an attorney, I have represented hundreds of cases, large and small, over the years. However, I firmly believe that for clients and their families,no criminal case is minor.。
Because if one is accused of a criminal offense, or even criminally detained, it imposes immense mental pressure on any family. If the detained individual is the primary breadwinner of the family, or if huge amounts of illicit gains need to be surrendered, the entire family will simultaneously facedual pressures, both economic and psychological.。
As the most severe punishment against individuals, criminal law proceedings should be serious and rigorous. This is specifically reflected in the compliance of investigative agencies in case handling and evidence collection. Cases should not be handled for "profit-seeking" purposes, interrogation records should not be taken from a presumption of guilt, and coerced confessions should certainly not be obtained.
When reviewing evidence and deciding whether to transfer a case to court, the procuratorate should responsibly examine whether "the facts of the case are clear and the evidence is reliable and sufficient" to convict the party. It should not be because the investigative agency has already disposed of the property involved in the case that the party is considered guilty; it should not be because "cases involving gambling here are always sentenced heavily" that this case must also receive a heavy sentence; it should not be assumed that because an arrest has been made, the case must result in a conviction, with no possibility of case dismissal or non-prosecution.
When adjudicating cases, the standard for determining whether a party constitutes a crime should be: "Facts for conviction and sentencing are supported by evidence; evidence used for conviction has been verified through statutory procedures; based on a comprehensive review of all evidence, reasonable doubt regarding the established facts has been excluded." It should not consider: "Since the prosecutor also determined the defendant is guilty, a guilty verdict must be rendered"; "Even if the case is controversial, ruling not guilty would cause our brother agencies to lose face"; nor should it determine the defendant is guilty because "if ruled not guilty, the party could apply for state compensation."
Although attorneys, prosecutors, and judges play different roles in criminal cases, I believe they share one common goal: upholding social fairness and justice, and ensuring the correct implementation of the law. If a party is innocent, their innocence should be restored; if a party is guilty, it must be ensured that they receive a fair judgment.
However, during the handling of this case, I couldn't help but recall a previously controversial statement: "The State does not allow Mom to lose."[1], which fills me with profound regret.
[1] The phrase "The State does not allow Mom to lose" comes from an article titled "Defense Attorney, Enough!" published on the WeChat official account of Lin Chundi, a prosecutor at the Hangzhou People's Procuratorate. On September 24, 2020, Lin Chundi published this article on her account "Happy Strange Power Circle." The article recorded a conversation with her daughter, who asked if she had "won the argument" in court. She replied, "Silly girl, the State does not allow Mom to lose." This statement sparked significant controversy.
Recommended Reading
After being arrested, is there still a chance to strive for acquittal/non-prosecution/probation?
The September 24 Notice is not law; on what basis do you claim I committed a crime?
