Lu Gengsong’s Criminal Appeal Judgment (CECC Full Translation)

The following is a translation prepared by the Congressional-Executive Commission on China of the criminal appeal judgment issued by the Zhejiang Provincial High People's Court in the Lu Gengsong inciting subversion of state power case. The Chinese text was retrieved from the Boxun Web site on April 7, 2008.

Zhejiang Provincial High People’s Court

Criminal Written Judgment

(2008) Zhe High Criminal Second Final Document Number 43

Public prosecutorial agency Zhejiang Province Hangzhou Municipal People's Procuratorate

Appellant (the Defendant in the original trial) Lu Gengsong, male, born January 7, 1956, Han nationality, of Hangzhou Municipality, Zhejiang Province, college graduate, unemployed, residing at Room 108, Number 110, Building 31, Jiulian New Residential Quarter, Xihu District, Hangzhou Municipality. On suspicion of the crimes of inciting subversion of state power and illegally possessing state secrets, he was detained on August 24, 2007. On suspicion of the crime of inciting subversion of state power, he was formally arrested on September 29 of the same year. He is currently being held in the Hangzhou Municipality Xihu District Detention Center.

Defense attorneys Mo Shaoping and Ding Xikui, lawyers at the Mo Shaoping Law Firm in Beijing.

The Hangzhou Municipal Intermediate People’s Court heard the case brought by the Hangzhou Municipal People's Procuratorate charging defendant Lu Gengsong with committing the crime of inciting subversion of state power and on February 5, 2008, issued the (2008) Hang Criminal Preliminary Document Number 29 Criminal Judgment. Lu Gengsong refused to accept the decision and raised an appeal. This court constituted a bench hearing in accordance with the law, and, after reviewing the files, questioning the defendant, and hearing the defense’s opinions, concluded that the facts in the case are clear and decided not to open a court session to hear the case. The hearing has now concluded.

The original ruling determined that starting from 2004, defendant Lu Gengsong, at his home, sent electronic mail submissions or used encoded proxy software to access foreign Web sites in order to directly post, or relied on other means, to openly publish his writings on “Duowei Blog,” “Boxun.com,” “Future China Forum,” and other foreign Web sites. His writings included: “Democracy Advances Westward -- Emotionally Moved By Chen Shuibian’s Singing of the National Anthem,” “6/4 and China’s Military -- Another Discussion on Military Nationalization,” “‘Socialist Harmonious Society’ Slaps Itself in the Face,” “Discussing the Nationalization of State Machinery,” “Public Security or Private Security -- Discussing the Nationalization of the Police” “Reflections on the Democracy Movement and Rights Defense,” “How Did Chen Shuqing ‘Incite Subversion of State Power’?,” “White Paper on Dictatorship,” “From the Xiao Libin Incident, Looking at China’s ‘Multi-Party Cooperation System’,” “From the Hangzhou Suburban Farming Village Elections, Looking at Wen Jiabao’s ‘The Conditions for Direct Elections Are Not Ripe’,” “Ding Yougen’s Bribery Election and the Chinese Citizens’ Non-Cooperation Movement,” “Zhang Dejiang and Zhang Jingyao, Zhao Erfeng,” “How To Eliminate Divisions in the Citizen Rights Defense Movement,” “Struggling for Freedom and Human Rights Is a Common Conviction of both Christians and Democracy Movement Activists -- a Discussion With Mr. Yu Jie,” “Discussing the Social Foundations of China’s Contemporary Criminal Underworld,” “Critique of the Chinese Communist Party's New Government Reform Outline,” “What Kind of Troops Are China's Armed Police? -- Another Discussion on Nationalization of the Police,” “China's Largest Spy Agency -- Political-Legal Committees,” and other signed essays.

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In the above essays, defendant Lu Gengsong slandered our country’s state power, declaring: “This kind of multi-party cooperation system lengthens the life of the Chinese Communist Party dictatorship, and thus is a kind of wrongdoing against China,” “If this is considered cooperation, then we would rather not have this ‘multi-party cooperation system,’ because it’s not as simple and clear as fascism.” He also slandered our country’s state power as an illegitimate state power: “If one must find a ‘one and only legal government,’ then from a historical perspective and from the aspect of legally constituted authority, this ‘one and only legal government’ can only be the government of the Republic of China, and not the government of the People’s Republic of China,” “The government established by the Chinese Communist Party is of course China’s illegitimate government, just like the ‘Manchukuo’ and Wang Jingwei’s Nanjing government of the past.” Lu Gengsong also said in his essays, “No matter if it’s rights defenders, members of the democracy movement, members of Falun Gong, freedom intellectuals, or religious activists, they should all join hands, work in concert, unite as one, and aim the spearhead at the vicious autocratic system. These forces should merge together within this great movement, finally forming a popular force that is sufficient to contend with the autocratic authorities on equal terms,” “The convergence of the three big forces and the escalation of the citizen rights defense movement will create a strong shock to the precarious political power of the Communist Party. This rotten and decayed old empire is like an old house that has fallen into disrepair. With only a fierce stomp on the threshold, the whole house will collapse;” and so on, brazenly inciting the subversion of state power and the overthrow of the socialist system by spreading rumors, slanders, and other means.

The original trial, based on the above criminal facts, and in accordance with Article 105, Paragraph 2, Article 56, Paragraph 1, Article 55, Paragraph 1, and Article 64 of “The People’s Republic of China Criminal Law,” came to the following decision: (1) the defendant Lu Gengsong committed the crime of inciting subversion of state power, is sentenced to four years in prison and one year deprivation of political rights; (2) the tool used in the crime, a computer hard drive (brand: Seagate, model number: S/N: 5J330J) is confiscated and turned over to the state depository.

Lu Gengsong did not object to the facts determined in the original ruling, but his appeal said that publishing his essays constituted an exercise of his right to freedom of speech, that the essays he wrote were grounded in a large number of facts, historical evidence, and scientific academic arguments, that he did not use the means of spreading rumors and slander to attack state power, and that he did not harm the national interest. His defense argued that the content of the essays used as examples in the first decision were merely Lu Gengsong’s own personal viewpoint, opinions, and evaluations, and not fabricated facts, and this constituted an issue of value judgment and not factual judgment. The defense further argued that in determining if his actions constituted a crime, the first ruling relied on only 18 of the many essays Lu Gengsong had published on the Internet, which were taken out of context and used to generalize to the whole. The appeal and the defense both called for proclaiming Lu not guilty. In addition, the defense also raised objections about procedural issues in the second trial, such as whether the second trial should have opened a court session and constituted a bench trial.

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Through verification at the hearing, the original decision determined that the criminal facts of Lu Gengsong’s case were confirmed by evidence, such as the Hangzhou Municipal Public Security Bureau Xihu District Branch Bureau’s registration form for accepting a criminal case, case filing decision document, case transfer notice, search warrant, search records and video footage, photographs, inventory of seized articles and documents, inventory of returned articles, on-site search records and photographs; the Hangzhou Municipal Public Security Bureau Public Information and Internet Security Supervision Division’s electronic data authentication document (Hang Public Information Security Authentication Document [2007] Number 00015, Number 00014), the circumstance of the online information verification, remote testing work record and computer screenshot record, and computer hard drive (brand: Seagate, model number: S/N 5J330J). Defendant Lu Gengsong confessed to the fact and did not try to conceal that he had written and used the means of electronic mail submission or encoded proxy software to post writings on foreign Web sites, and openly published on foreign Web sites “Democracy Advances Westward -- Emotionally Moved By Chen Shui-bian’s Singing of the National Anthem,” “Reflections on the Democracy Movement and Rights Defense,” “6/4 and China’s Military -- Another Discussion On Military Nationalization,” and other signed essays. His confession corresponds with the situation reflected by the aforementioned evidence.

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Regarding the grounds for the appeal and defense, through the hearing it was determined that:
(1) Lu Gengsong, in the essays he openly published on foreign Web sites, slandered [by saying] “The government established by the Chinese Communist Party is China’s illegitimate government, just like the ‘Manchukuo’ and Wang Jingwei’s Nanjing government of the past.” He also brazenly announced that the one lawful government could only be the government of the Republic of China and not the government of the People’s Republic of China. He slandered the ruling party as a party with the nature of a cult and a sinister gang, inciting [by saying] “No matter if it’s rights defenders, members of the democracy movement, members of Falun Gong, freedom intellectuals, or religious activists, they should all join hands, work in concert, unite as one, and aim the spearhead at the vicious autocratic system. These forces should merge together within this great movement, finally forming a popular force that is sufficient to contend with the autocratic authorities on equal terms.” In his essays, Lu Gengsong denied the people’s democratic dictatorship, and incited subversion of state power and the socialist system. This has ceased to purely be a personal expression of his viewpoint, opinion, or evaluation. As grounds for appeal, Lu's mention that the essays’ viewpoints have a factual basis also shows that he doesn’t consider the essays’ content to be just a matter of value judgment. The first trial ruling, based on the aforementioned facts, found that the defendant Lu Gengsong, through spreading rumors, slander and other means, incited the masses to subvert state power and overthrow the socialist system. There is nothing improper about [the ruling]. Therefore, the objection raised by the defense that Lu Gengsong was merely expressing his own personal viewpoint and as such, is a matter of value judgment, is inconsistent with the facts, is untenable, and cannot be accepted.

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(2) Our country's Constitution, at the same time that it stipulates freedom of speech as a citizen’s basic right, also stipulates that “Citizens must abide by the law, and when exercising their freedoms and rights must not infringe upon the interests of the state, of society, and of the collective, or upon the lawful freedoms and rights of other citizens.” Lu Gengsong, in the many essays he openly published, slandered and defamed state power and the socialist system. This behavior violated the Constitution and laws and regulations, and seriously infringed upon the interests of the state and society. Therefore, Lu Gengsong’s grounds for appeal, which was that publishing the essays was an exercise of his right to freedom of speech and that he did not use rumors or slander to attack state power, are untenable and are not accepted.

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(3) The first trial ruling found that the nature of the 18 essays, as well as the words used in them, was proven through trial. Further, Lu Gengsong confessed to this and did not try to conceal it. He affirmed that he had written the essays, and that they embodied the viewpoints and objectives he wished to express. Looking generally at the distinct viewpoint expressed in the 18 essays’ overall structure as well as in key phrases, it reflects Lu Gengsong’s true intention and core ideology to incite subversion of state power. Therefore the defense’s claim that the original ruling quotes items out of context and uses a part to generalize to the whole is inconsistent with the facts and is untenable.

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(4) As to the second trial's decision to constitute a bench hearing for this case, and issues regarding notification of whether or not to open a court session and the appeal decision, all were formulated in accordance with the law and judicial interpretations, and the defense’s procedural dispute is untenable and is not accepted. Altogether, the appeal and the defense’s grounds for such are untenable and are not accepted. The original ruling’s finding of the facts is clear and the evidence is reliable and sufficient.

This court finds that the actions of defendant Lu Gengsong, through his use of the Internet to publish essays, and by spreading rumors, slander, and other means to incite the masses to subvert state power and overthrow the socialist system, constitute the crime of inciting subversion of state power, and should be punished in accordance with the law. The grounds for Lu Gengsong’s and his defense’s request that he be proclaimed not guilty, and the defense’s objections, are all untenable and are not accepted. The original ruling’s finding of fact and application of law are correct, the severity of the punishment is appropriate, and the original trial’s trial procedure was legal. In accordance with Article 189, Paragraph 1 of “The Peoples Republic of China Criminal Procedure Law,” the judgment is as follows:

Appeal is denied, original ruling upheld.
This ruling is the final ruling.

Presiding Judge Mi Xiaoping
Acting Judge Guan Youjun
Acting Judge Zheng Xiaohong

April 7, 2008
Zhejiang Provincial High People’s Court (seal)

Secretary Wang Yaobin