大午案法律团队:大午案第七日庭审简报(中英文)

大午案开庭至今已七日,历经周末加班、连续三日每日庭审时长超12小时后,目前已完成寻衅滋事罪、妨害公务罪、聚众冲击国家机关罪的法庭调查程序。

此三罪的指控,均与“8·4事件”相关。

“8·4事件”具体是指2020年8月4日,因徐水区公安局插手大午集团与国营农场的土地纠纷,过度执法,进而产生的一系列大午集团员工集体维权行为。2020年7月底,大午集团依据此前与郎五庄村签订的土地承包合同,为耕种、管理需要,在四家台地块上修筑围挡和活动板房。

2020年8月4日,国营农场在未提前通知、未合理交涉、未采取其他合法手段的前提下,通过一纸请示获得徐水区公安局派驻大量警力保护,于凌晨时私自拆除了大午集团价值18000元的围挡和活动板房。集团员工发现后,遂拦截国营农场一方的车辆,要求说明情况。因集团员工不让农场车辆驶离,已完成保护农场拆除任务、已离开现场的大批特警去而又返,使用警盾、警械推搡集团员工及村民,喷射辣椒水、催泪弹驱散人群。农场车辆顺利驶离后,因集团员工被踩踏需要治疗,特警仍未让步通行,双方继续对峙,特警再次向人群丢掷辣椒水及催泪弹,造成数位员工受伤。

基于徐水区公安局插手民事纠纷时明显的不公正、多名员工受伤的现实情况,结合保定市徐水地区曾有的案例及传言,大午集团在“大午采风”的微信公众号上发布了“徐水区公安局崔某是黑恶势力保护伞”的推文,孙大午在其个人微博中进行转载。同时,为诉说委屈、请求处理崔某,大午集团员工于8月4日下午去往区政府、区公安局门口请愿。

“8·4事件”中的前述三行为,即分别构成了所谓的“妨害公务罪”、“(网络)寻衅滋事罪”、“聚众冲击国家机关罪”。

第七日庭审主要围绕“(网络)寻衅滋事罪”、“妨害公务罪”展开法庭调查。

一、8·4寻衅滋事案

2013年两高发布《关于办理利用信息网络实施诽谤等刑事案件适用法律若干问题的解释》,将“利用信息网络辱骂、恐吓他人”、“编造虚假信息,起哄闹事,造成公共秩序严重混乱”的行为纳入寻衅滋事罪规制范畴。本案中公诉机关的指控逻辑即为涉案被告人编造虚假信息(“徐水区公安局某某是黑恶势力保护伞”),导致境外媒体转载,浏览阅读量达10万+,严重损害公安机关形象,故构成寻衅滋事罪。

但是,所谓“编造的虚假信息”至今尚未被证成或证伪,公诉机关所举示的证据也与此无关。孙大午在法庭中也详尽阐述了作出此合理怀疑的原因,并非纯粹的无事生非、起哄闹事。浏览阅读量亦非认定寻衅滋事罪的构成要件,而系刑事自诉的侮辱罪、诽谤罪判断标准。信息发布与损害公安机关形象没有必然的、直接的因果联系。因推文的主文内容,关于8月4日上午公安机关过度执法、造成大午集团员工受伤文字表述,以及受伤员工接受诊治的图片均为真实、客观的。境外媒体转载并非孙大午等人意志选择结果。

王誓华律师对于侦查机关委托某鉴定中心出具的17个境外网站鉴定意见进行了重点质证,他指出:证据的固定不属于司法鉴定中心的工作范围,而对这17个网站进行浏览、下载、打开时,鉴定中心所使用的软件无法翻墙,客观上难以完成证据固定。而将法定信息保护范围扩大化,无视民众合理怀疑的依据,势必会影响言论自由。

二、8·4妨害公务案

8月4日上午发生的农场在徐水区公安局保护下,私自拆除大午集团建筑物是引发公众号推文、当日下午至政府部门和平请愿的直接原因。

在此前庭审中,就曾有被告人提出:“当天徐水区公安局特警向集团员工及村民喷射辣椒水和催泪弹的场面,就像美国大片一样”。今日也有被告人当庭表示:当时现场十分混乱,真正造成双方对立的原因是警方在推搡集团员工让路时,数人使用警棍抽打员工腿部,导致多位女员工跌倒摔伤,发生踩踏事故。而据现场视频显示,甚至出现了五六名特警合力将一位员工扔到道路旁的沟渠中、员工不再拦截农场车辆后依然被多次喷射辣椒水及催泪弹的场景,导致多名员工受伤并接受医疗急救。此前辩护人曾多次向法院申请调取“8·4事件”受伤员工病历资料,但法院至今未予调取。今日辩护人正式向法庭递交从大午医院处调取的“8·4事件”中17名员工受伤就诊记录,其中伤情最重的一位确为肋骨骨折。公诉人未经调查核实,即当庭发表质证意见,认定病历记录与“8·4事件”无关联性。

而在公诉人所举示的证据材料中,有一份书证极为重要,王誓华律师将其视为具有“案眼”性质的证据,认为这份证据就能够解释知名企业家孙大午如今坐庭候审的原因。

这份证据就是《保定市徐水区公安局【2020】1号会议纪要》,这份会议纪要显示:2020年8月3日,国营农场拟自行清除障碍物,请示徐水区公安局安排警力维持现场秩序。公安局经决议决定将于8月4日5点前到达拆除现场。而保定农场请求警力保护的方式就是在8月2日向公安局递交了一份书面材料,主要内容即为说明8月4日拟清除围挡和活动板房。

多名辩护人均对此份证据进行了重点质证,王誓华律师提出国营农场的书面材料并非报案书。这种请求警力保护的方式,以及警方插手民事行为的违法性显而易见。“若我今天认为我在高碑店开庭有人身危险,请求公安局派驻警察保护我,这也是可以的吗?当然不可以。因为我代表的是私权,而警力只能用于保护公共事务和公权力”。此外,会议纪要与农场请示的书面材料都形成于“8·4事件”之前,“这就是在请君入瓮。我们到今天审来审去的就是一个民事案件”。

张鹏律师对这份纪要的真实性也提出了质疑,指出会议纪要可能是事后补做的伪证:“第一,该份纪要文号为2020年1号,在2020年已经过去了大半年,徐水区公安局才作出了第一个会议纪要,完全不符合常理;第二,会议纪要没有签参会人员姓名,不能证明这些人员真实地参加了这个会议;第三,会议纪要完全不符合党政机关有关文书的规定,没有写明需要抄送的下属部门。因此,可以认定这份会议纪要本身的违法性和虚假性。而伪造这份证据的目的在于证明这次所谓的执法存在合法依据”。

该份会议纪要若真系伪造,无非只为“师出有名”。但事实上,徐水区公安局违法介入民事纠纷,无论如何,已成事实。

辩护人们还通过其他在案证据对徐水区公安局实施的所谓“公务”行为的合法性、正当性、合理性提出了质疑。杨学林律师指出两份当日拆除活动板房的工作人员证人证言,就能够证明拆除事件是在偷偷摸摸进行的。两位证人在拆除前根本不知道工作内容。而私自拆除价值18000元的建造物,本身早已涉嫌故意毁坏财物罪。学林律师忍不住提出疑问:“公安机关现在是在执法吗?这种执法光不光彩呢?请求法庭直接否定公安机关执法的合法性”。

今日庭审于晚19时35分结束,明日上午九时,庭审继续。

大午案法律团队

2021年7月21日

Dawu-8.4-incident-1
Riot police at the site of disputed land on August 4, 2020.

The Dawu trial has been in session for seven days. After working overtime on weekends and with three consecutive days of 12-hour or longer sessions, the court has now completed its investigation of the crime of “picking quarrels and provoking trouble,” the crime of “obstructing officers in the discharge of duties,” and the crime of “gathering a crowd to assault state organs.”

The three charges are all related to the “August 4 [2020] incident.”

The “August 4 incident” specifically refers to a series of collective rights’ protection actions by Dawu Group employees on August 4, 2020, when the Xushui District Public Security Bureau (徐水区公安局) intervened with excessive force in the land dispute between Dawu Group and a state-owned farm.

At the end of July 2020, the Dawu Group built fences and prefabricated mobile houses on the Sijiatai (四家台) lot for farming and management needs in accordance with the land contract signed with Langwuzhuang village (郎五庄).

On August 4, 2020, the state-owned farm obtained the protection of a large number of police from the Xushui District Public Security Bureau (PSB) through a mere written request without prior notice to Dawu Group, without negotiating with Dawu or taking other legal approaches. The state farm personnel unilaterally demolished Dawu’s enclosure and mobile houses valued at 18,000 yuan. After the Dawu Group’s employees found out what happened, they intercepted vehicles owned by the state-owned farm and demanded an explanation. Because the Dawu Group employees did not permit the state farm’s vehicles to leave, a large number of riot police, who had already completed their assignment to protect the demolition by the state-owned farm personnel and left the scene, returned. They used shields and other police gear to push Dawu employees and villagers; they used pepper spray and tear gas to disperse the crowd. The state-owned farm vehicles drove away successfully. Many Dawu employees who had been trampled on needed medical treatment, but the riot police still did not allow them to pass through and the two sides continued to confront each other. The riot police sprayed tear gas and pepper spray at the crowd again, causing several Dawu employees to be injured.

Based on the obvious unfairness of the Xushui District PSB’s involvement in a civil dispute and the fact that multiple Dawu employees were injured, also given that there had been other cases and rumors around the Xushui District in Baoding City [about police protecting thugs and gangsters], the Dawu Group issued a post on their public WeChat account, “Dawu Caifeng” (大午采风, Dawu Snapshots), stating “Officer Cui of Xushui District PSB is an umbrella who is protecting criminal gangs,” and Sun Dawu (孙大午) reposted it on his personal Weibo account. At the same time, in order to air their grievances and request that Officer Cui be held accountable, Dawu employees headed to the Xushui district government and the Xushui District PSB to petition on the afternoon of August 4. The aforementioned three acts [confrontation at the demolition scene, Dawu post of the incident, and Dawu protest in front of Xushui District government and Xushui PSB] in the “August 4 incident” constituted the so-called “crime of obstructing officers in the discharge of duties,” the “crime of picking quarrels and provoking trouble (online),” and the “crime of gathering a crowd to assault state organs” respectively.

The seventh day of the trial, the court focused on investigating the “crime of picking quarrels and provoking trouble (online)” and the “crime of obstructing officers in the discharge of duties.”

Dawu-田边横幅
Dawu banners protesting Xushui State Farm’s illegal use of Langwuzhuang’s land for 60 years.

1. The case of ‘picking quarrels and provoking trouble’ in the ‘August 4 incident’

In 2013, the Supreme People’s Court and the Supreme People’s Procuratorate issued “An Interpretation on Several Issues Regarding the Application of Law in Criminal Cases of Using Information Networks for Defamation,” which defines the following actions to be within the scope of the crime of “picking quarrels and provoking trouble”:  “using information networks to insult and intimidate others,” “fabricating false information, instigating disturbances, and causing serious public disorder.” In this case, the logic of the prosecution’s allegations was that the defendants fabricated false information (i.e., “Officer Cui of Xushui District PSB is an umbrella who is protecting criminal gangs “), resulting in reposting by overseas media as well as more than 100,000 views, and causing serious damage to the image of the PSB. Therefore it constituted the crime of “picking quarrels and provoking trouble.”

However, the so-called “fabricated false information” has not yet been proven to be true or false, and the evidence presented by the procuratorate has not attempted to prove that it is false. In court, Sun Dawu also elaborated on the reasons for raising this reasonable suspicion [of the unfair nature of the Xushui PSB’s handling of the incident], and it was not intended to provoke disturbances out of nothing. Further, the number of views was not a constitutive requirement for the determination of guilt for “picking quarrels and provoking trouble,” but a standard for judging the severity of insult and defamation in a private criminal prosecution. There is no inevitable and direct cause-and-effect relationship between information release and the image of the public security agency being damaged. The descriptive content of the Dawu Group’s public account’s posting regarding the use of excessive use of force by the police and the resulting injuries of Dawu employees, as well as photos of injured employees receiving medical treatment were all true and objective. Reposting by overseas media outlets was not the result of any voluntary action by Sun Dawu and others.

The cross-examination of Lawyer Wang Shihua (王誓华) focused on the evaluation of 17 overseas websites made by an authentication center engaged by the investigative agency. Lawyer Wang pointed out that the determination of evidence was not within the scope of the judicial authentication center. When browsing, downloading, and opening these 17 websites, the software used by the authentication center was unable to scale the firewall, and the center therefore could not have objectively completed the determination of evidence. Meanwhile, expanding the legally-defined scope of information protection and ignoring the basis of reasonable suspicion by the public will inevitably erode freedom of speech.

Dawu-8.4-incident-2
Dawu employees gathered in front of Xushui District PSB in the afternoon on August 4, 2020. Screenshot from Epoch Times report.

2. The case of ‘obstructing officers in the discharge of duties’ on August 4 [2020]

In the morning of August 4th, personnel of the state-owned farm, under the protection of Xushui District PSB, unilaterally demolished Dawu Group’s structures. This incident was the direct cause of Dawu Group’s public account’s posting and the peaceful demonstration in front of government buildings in the afternoon of the same day.

In a previous trial session, there were defendants who already pointed out: “The scene where the riot police of Xushui District PSB pepper sprayed and tear gassed a group of employees and villagers was like an American blockbuster.” A defendant also stated in court today: “The scene was very chaotic. The confrontation escalated when the police forcefully pushed Dawu employees to back off and get out of the way, and several police officers used batons to beat employees on the legs, injuring multiple female employees and causing them to fall, beginning a stampede. According to live video, five or six riot police officers even threw an employee into a ditch beside the road. The police sprayed employees with tear gas and pepper spray repeatedly, even after the employees stopped trying to block the farm vehicles. Several employees were injured and received emergency first aid.

Prior to this, the defense lawyers had repeatedly requested that the court subpoena the medical records of injured employees in the “August 4 incident,” but the court has not yet procured them. Today the defense lawyers formally submitted to the court the records of 17 employees injured in the “August 4 incident” retrieved from Dawu Hospital. Among them, the person with the worst injury suffered a rib fracture. However, without investigation or verification, the prosecutor issued a cross-examination opinion in court, and determined that the medical records were not relevant to the “August 4 incident”.

Of the evidence presented by the public prosecutors, there was one piece of written evidence of special importance. Lawyer Wang Shihua regarded it as “the eye of the case” (“案眼”), evidence of a “case-critical” nature, and believed that this evidence alone could explain why the well-known entrepreneur Sun Dawu is standing trial today. This evidence is the “Minutes of the Public Security Bureau [2020] No. 1 Meeting of Xushui District Public Security Bureau of Baoding Municipality.” The minutes of the meeting show: On August 3, 2020, the state-owned farm, planning to clear the Dawu Farm’s structures on its own initiative, requested Xushui District PSB to provide police presence to maintain order at the scene. Xushui District PSB decided that the police force would arrive at the demolition site before 5 a.m. on August 4. Yet the manner in which the Baoding Farm requested police protection was no more than a written document submitted to the PSB on August 2, and its main content simply stated that the farm planned to demolish the fencing and mobile houses erected by the Dawu Group on August 4.

Several defense lawyers focused their cross-examination on this piece of evidence. Lawyer Wang Shihua pointed out that the written request of the state-owned farm was not a report of criminal conduct. The illegality of requesting police protection in such a manner, as well as the police force’s intervention in a civil dispute, is obvious. “If I believe I face physical danger while defending a client in court in Gaobeidian today, and I ask the PSB to send policemen to protect me, is that acceptable? Of course not. Because I represent private interests, and the police can only be used to protect public affairs and public power.” In addition, given that the minutes of the PSB meeting and the state farm’s written request were both created before the August 4 incident, “it is a trap set up for Dawu. The case we are going through such lengths trying today is no more than a case involving a civil dispute.”

Lawyer Zhang Peng (张鹏) also questioned the authenticity of the minutes, pointing out that the minutes of the meeting may very well be false evidence created ex post, after the event: “First, the document number of the minutes is No. 1, 2020. By then, more than half of 2020 had passed, and it is completely unreasonable that Xushui District PSB only had its first minutes of the year then; second, the names of the participants were not signed under the minutes, meaning the document could not prove that any of these people were actually in attendance; third, the minutes of the meeting did not comply at all with Communist Party and government provisions regarding official document formatting, and did not specify the subordinate departments to which the document needed to be copied. Therefore, it can only be concluded that the meeting minutes themselves are illegal and false. The purpose of forging this evidence is to prove that this instance of law enforcement had a legal basis.”

If the minutes of the meeting were indeed forged, its sole purpose was to provide justification for the police intervention. The fact that Xushui District PSB has illegally intervened in a civil dispute, in any case, is undeniable.

By referencing other evidence in the case, the defense lawyers also questioned the legitimacy, legality, and rationality of the so-called “official duties” carried out by Xushui District PSB. Lawyer Yang Xuelin (杨学林) pointed out that the two witness testimonies by demolition workers of the mobile houses proved that the demolition was carried out in a surreptitious manner. The two witnesses were not informed of their work assignments was to demolish the Dawu structures; meanwhile, unilaterally demolishing 18,000 yuan worth of structures was already allegedly committing the crime of deliberately destroying property. Lawyer Yang Xuelin couldn’t help asking: “Are the public security enforcing the law? Isn’t this kind of law enforcement shameless? I ask the court to directly reject the alleged legality of the PSB’s law enforcement actions in this incident.”

The trial today adjourned at 19:35 p.m., and will resume at 9 a.m. tomorrow.

Dawu Legal Team

July 21, 2021

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