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
[Summary]
The Procuratorate believed that the defendant’s offense occurred during the probationary period for suspension of sentence. If this were true, the defendant would be subject to combined punishment for the current crime and the prior crime, resulting in a sentence of more than three years. Upon the defense counsel’s application to the court for investigation and evidence collection, the facts were clarified, and the defendant was ultimately sentenced to approximately one year of imprisonment.
[Indictment by the Public Prosecution Authority]
On a day in the summer of 2012, the defendant, Yu Mou, in a room at Baixing Hotel, Shanhu Subdistrict, Shengzhou City, with the intent to resell for profit, knowingly purchased from Zhang Mou, Wang Mou, and others (handled in separate cases) a bronze mirror that had just been excavated from an ancient tomb at xx location by Zhang Mou, Wang Mou, and others, for the price of RMB 12,000.
Subsequently, the defendant, Yu Mou, placed the bronze item for sale in his antique shop located at the Yue State Museum Market at No. xx, Shaoxing City. The current whereabouts of the bronze mirror are unknown. Upon appraisal, the ancient tomb was identified as a brick-chamber tomb from the Han Dynasty, possessing certain historical, artistic, and scientific value.
The Procuratorate held that the defendant, Yu Mou, colluded with others to knowingly purchase proceeds of crime, constituting serious circumstances. The facts of the crime were clear, and the evidence was reliable and sufficient. Criminal liability should therefore be pursued for the crime of concealing or disguising the proceeds of crime. As the defendant, Yu Mou, committed a new crime during the probationary period for suspension of sentence, the suspension of sentence should be revoked, and combined punishment for multiple crimes should be imposed.
The defendant, Yu Mou, was sentenced by a certain court on July 27, 2011, to two years and six months of fixed-term imprisonment with a three-year suspension of sentence for the crime of excavating ancient tombs (the probationary period for suspension of sentence ran from August 12, 2011, to August 11, 2014), and was fined RMB 5,000. He was criminally detained on September 16, 2014, due to this case.
Timeline
Summer of 2021
2011.8.12
Summer of 2012
2014.8.11
[Issue Raised]
If the judicial authorities determine that Yu Mou committed a new crime during the probationary period for suspension of sentence, the suspension of sentence for the original crime (excavating ancient tombs) will be revoked, and the original sentence will be executed. Furthermore, combined punishment for multiple crimes will be imposed for the new crime.
Is the time of the offense ascertained by the public prosecution authority truly accurate?
[Existing Evidence]
Five individuals—Xie, Wang, Chen, Zhang, and Ru—excavated a tomb in a certain village and unearthed a bronze mirror. Two or three days later, the five sold it to Yu Mou (the defendant) in a certain hotel. The statements from each party are as follows:
Xie, Chen, and Zhang stated that the tomb excavation occurred in May or June 2012.
Wang stated that in May or June 2021, he participated in the tomb excavation with the other four individuals. However, due to his mother’s critical illness, he left halfway through the excavation. His mother passed away two or three months later.
Yu stated that he could not recall the time of the offense due to the passage of time.
The Procuratorate has separately initiated public prosecution against Yu Mou’s co-defendants. In the indictment, the time of the offense adopted is based on Xie Mou’s statement, namely, that the offense occurred in 2012.
[Dilemma]
It is extremely difficult to overturn the facts already established in the indictment of the separate case. Moreover, the facts established in that indictment are not without basis, as Xie, Chen, and Zhang all stated that the tomb excavation occurred in May or June 2012.
[Strategy for Breakthrough · Defense Counsel’s Opinion]
I. Analysis of Statements
Although all three interrogation records stated that the time of the offense was May or June 2012, each record contained discrepancies regarding the process of the tomb excavation. This raises the possibility that the witnesses misremembered the time of the offense due to having participated in numerous tomb excavations.
Wang Mou abandoned the tomb excavation midway due to his mother’s critical illness. According to empirical rules, such an event would leave a deep and lasting impression on him; therefore, the accuracy of his statement is high.
II. Investigation and Evidence Collection
Applied to the court to obtain Wang Mou’s mother’s hospitalization records and death certificate, which confirmed: Wang Mou’s mother passed away in September 2021.
Applied to the court to obtain the hotel registration records of the five individuals involved in the tomb excavation, which confirmed: There were no registration records for these five individuals at the said hotel in 2012.
[Court’s Opinion]
The defense counsel’s objection regarding the time of the offense in this case is upheld. The defense’s assertion that the offense occurred in 2011 is accepted by this Court. The defense counsel’s opinion arguing against the revocation of the suspension of sentence and combined punishment for multiple crimes, and requesting leniency based on the defendant’s truthful confession of the main criminal facts after being brought to justice and voluntary guilty plea in court, is accepted by this Court.
The defendant, Yu Mou, is convicted of the crime of concealing or disguising the proceeds of crime and is sentenced to one year and one month of fixed-term imprisonment.
[Case Citation] (2015) Shao Sheng Xing Chu Zi No. 533; also refer to "Defense Counsel’s Views (Volume II)"
