SPP Guiding Cases: Set 4

[This translation is being completed by the students and faculty of the Centre for Rights and Justice at the Chinese University of Hong Kong Faculty of Law as part of China Law Translate’s Supreme People’s Procuratorate Guiding Cases Translation Effort. This ongoing project provides an opportunity for groups from different schools, organizations and nations  to collaborate in providing valuable translations of these important documents. These documents provide concrete guidance to the nations procurators in handling cases and supervising the courts.]

（高检发研字[2014]2号　 2014年2月20日）

1. The Case of Liu Liguo et al for Production or Sale of Toxic or Harmful Food and Production of Sale of Fake or Shoddy Goods

2. The Case of Xu Xiaolun et al for Production or Sale of Toxic or Harmful Food

3. The Case of Sun Jianliang et al for the Production or Sale of Toxic or Harmful Food

4. The Case of Hu Lingui et al for the Production or Sale of Toxic or Harmful Food and Bribery; of Luo Mei et al for the Sale of Shoddy Goods; of Zhu Weiquan et al for the Production or Sale of Shoddy Goods; and of Li Dawen et al for accepting bribes and dereliction of duty in food regulation.

5. The Case of Sai Yue and Han Chengwu for Bribery and Dereliciton of duty in food regulation

The Case of Liu Liguo et al for the Production or Sale of Toxic or Harmful Food and Production or Sale of Fake or Shoddy Goods

(SPP Guiding Case No. 12)

[Keywords]

Production or sale of toxic or harmful food; Production or sale of fake of shoddy goods

[Main Ideas]

The party sold poor quality oil processed from kitchen waste oil (commonly known as “gutter oil”) to another party, despite knowing that the other party was an edible oil distributor, resulting in an inflow of poor quality oil into the edible oil market for human consumption and constituting the crime of production or a toxic or harmful food. The party sold poor quality oil processed from kitchen waste oil to another party despite knowing that the oil distributor sold soybean and other edible oils to fodder and pharmaceutical production companies, resulting in an inflow of poor quality oil into fodder and pharmaceutical production companies and constituting the crime of production or sale of fake or sub-standard products.

[Relevant Legislation]

Articles 144, 140, 141(1), Criminal Law of the People's Republic of China

[Basic case details]

Defendant Liu Liguo, male, of Shandong Province, born in 1975, is the former actual operator of Jinan, Shandong Province's Bohui Biotechnology Company (“Bohui Co.”) and Gelin Bio-Energy Company (“Gelin Co.”).

Defendant Lu Jun, male, of Shandong Province, born in 1968, formerly responsible for production at Bohui Co.

Defendant Li Shujun, male, of Shandong Province, born in 1974; former buyer for Bohui Co. and Gelin Co.

Defendant Liu Lihai, male, of Shandong Province, born in 1965; Formerly worked in administration and logistics at Gelin Co. and other companies.

Defendant Yu Shuangying, male, of Shandong Province, born in 1970; Former employee of Gelin Co.

Defendant Liu Fanjin, male, of Shandong Province, born in 1975; former driver for Bohui Co. and Gelin Co.

Defendant Wang Bo, male, of Shandong Province, born in 1981; former driver for Bohui Co. and Gelin Co.

The defendant Liu Liguo began operating an oil possessing plant in Kong Township, Pingyang County, Shandong Province beginning in 2003; it was later renamed as Zhongxing Fatty Acid Methyl Ester Plant and changed its business to processing recycled kitchen waste oil (commonly known as “gutter oil”). Liu Liguo registered and incorporated Bohui Co. and Gelin Co. in March 2009 and June 2010, respectively, in order to expand the scale of production, and further process and refine gutter oil into poor quality oil. Beginning in December 2007, Liu Liguo purchased gutter oil from Sichuan, Jiangsu, and Zhejiang and refined it into poor quality oil. He then made a profit by selling the poor quality oil, disguised as normal soybean or other edible oils, to others despite knowing that they would intend to sell that oil. Liu Liguo sold the processed and refined poor quality oil to companies engaged in the edible oil trade such as Changquan Grain and Oil Industrial Company of Liaocheng, Shandong Province, and Hongda Grain and Oil Trading Company of Zhengzhou, Henan Province. (This has been dealt with in another case.) The aforementioned companies were aware that the poor quality oil purchased from Liu Liguo had been processed from gutter oil, but they still sold the as edible oil, either directly as edible oil or after blending with other oils, to grain oil stores, restaurants, food processing plants, and school canteens, or they sold the low quality oil as soybean or other oils and to fodder and pharmaceutical production companies. Up to July 2011, when their actions came to light, the conduct of Liu Liguo et al resulted in poor quality oil valued at more than 9.26 million yuan entering the edible oil market for human consumption and oil valued at more than 90.65 million yuan entering the non-edible oil processing market.

During that time, as hired by defendant Liu Liguo, defendant Lu Jun was in charge of establishing and managing of Gelin Co; defendant Li Shujun was in charge of gutter oil procurement and worked at some point in Gelin Co.’s extraction plant; defendant Liu Lihai worked in logistics; defendant Yu Shuangying was in charge of equipment maintenance and managed the hydrolysis plant at Gelin Co.; defendant Liu Fanjin was a driver in charge of delivering the finished oil product; and defendant Wang Bo was a driver in charge of delivering semi-finished products and factory sewage, and he also provided his personal account to Liu Liguo to use to collect payment. The abovementioned defendants offered Liu Liguo their assistance despite being cognizant that he processed gutter oil into poor quality oil and sold it to other parties. Amongst them, Lu Jun and Yu Shuangying participated in the production and sale of more than 1.34 million yuan worth of the aforementioned poor quality oil to the edible oil market; Li Shujun in more than 7.65 million yuan; Liu Lihai in more than 4.57 million yuan; Liu Fanjin in more than 1.38 million yuan; and Wang Bo in more than 2.70 million yuan. Lu Jun and Yu Shuangying participated in the production and sale more than 6.99 million yuan worth of the aforementioned poor quality oil to the non-edible oil market; Li Shujun in 90.65 million yuan; Liu Lihai in more than 49.61 million yuan; Liu Fanjin in more than 22.21 million yuan; and Wang Bo in more than 65.34 million yuan.

[Procedural history]

Liu Liguo, Lu Jun, Li Shujun, Liu Lihai, Yu Shuangying, Liu Fanjin, and Wang Bo were criminally detained on suspicion the crime of production and sale of food that does not meet safety standards on July 5, 2011, and arrested on August 11, 2011.

After the investigation was concluded, their case was transferred to Ningbo People’s Procuratorate of Zhejiang Province for examination before prosecution. As a result of their investigation, Ningbo People’s Procuratorate of Zhejiang Province argued that defendants Liu Liguo, Lu Jun, Li Shujun, Liu Lihai, Yu Shuangying, Liu Fanjin, and Wang Bo had violated state regulations on food management. They collaborated to produce and process kitchen waste oil and other non-food materials, and refined it into non-edible oil which contained poisonous and harmful components which they passed off as edible oil to be sold to the public and be consumed, which seriously threatened peoples’ health and safety. Their behavior violated Article 144 of Criminal Law of People’s Republic of China without exception. The facts of the crime are unambiguous and evidence ample and reliable. Their responsibility for the crime of the production and sale of toxic or harmful food should be investigated. Defendants Liu Liguo, Lu Jun, Li Shujun, Liu Lihai, Yu Shuangying, Liu Fanjin, and Wang Bo also violated Article 140 of the Criminal Law of People’s Republic of China. They collaborated to produce and processe kitchen waste oil and other non-edible materials, and refined it into non-edible oil which they passed off as edible oil which they then sold. They passed it off as the genuine product and sold it to fodder and medicine processing companies. The facts of the crime are clear and evidence sufficient and reliable. They responsibility for the crime of the production and sale of fake or sub-standard products should be investigated. On June 12, 2012, the Ningbo Municipal People’s Procuratorate submitted an indictment to the Ningbo Municipal Intermedia People’s Court against the defendants Liu Liguo et al on charges of the crime of production and sale of toxic and harmful food and the crime of production and sale of fake or sub-standard products.

On April 11, 2013, the Ningbo Municipal Intermediate People’s Court rendered a judgment in the first instance, finding that the defendant Liu Liguo was guilty of the crime of producing and selling toxic or harmful food and the crime of producing and selling fake or sub-standard products. He was sentenced to indefinite imprisonment as concurrent punishment for several crimes, deprived of his political rights in perpetuity, and all of his personal property was confiscated. Defendant Lu Jun was found to be guilty of the crime of producing and selling toxic or harmful food and the crime of producing and selling fake or sub-standard products. He was sentenced to 14 years in prison for several crimes concurrently and fined 400,000 RMB. Defendant Li Shujun was found guilty of the crime of producing and selling toxic or harmful food and the crime of producing and selling fake or sub-standard products. He was sentenced to 11 year in prison for multiple crimes concurrently and fined 400,000 RMB. Defendant Liu Lihai was found guilty of the crime of producing and selling toxic or harmful food and the crime of producing and selling fake or sub-standard products. He was sentenced to ten-and-a-half years in prison for several crimes concurrently and fined 400,000 RMB. Defendant Yu Shuangying was found guilty of the crime of producing and selling toxic or harmful food, and the crime of producing and selling fake or sub-standard products. He was sentenced to 10 years in prison for several crimes concurrently and fined 400,000 RMB. Defendant Liu Fanjin was found guilty of the crime of producing and selling toxic or harmful food and the crime of producing and selling fake or sub-standard products. He was sentenced to 7 years in prison for several crimes concurrently and fined 300,000 RMB. Defendant Wang Bo was found guilty of the crime of producing and selling toxic or harmful food and the crime of producing and selling fake or sub-standard products. He was sentenced to 7 years in prison and fined 300,000 RMB.

Liu Liguo, Lu Jun, Li Shujun, Liu Lihai, Yu Shuangying, Liu Fanjin, and Wang Bo appealed the first-instance verdict after it was announced.

In the second instance trial, the Zhejiang Higher People’s Court found that Liu Liguo's acts had constituted the crime of producing and selling toxic or harmful food as he had processed kitchen waste oil into low quality edible oil and sold it to grain, oil and food enterprises, causing the inferior oil to enter restaurants and homes and be consumed by people. Liu Liguo also knew that his low quality oil processed from kitchen waste oil that he passed off as soybean oil that was up to standard would be purchased, so he still produced and sold it, and it flowed into fodder and pharmaceutical processing companies. These acts constitute the crime of producing and selling fake or sub-standard products, and he should be punished for two crimes concurrently. Liu Liguo’s criminal acts of producing and selling toxic or harmful foods were of a long duration and impacted extensive geographic region, seriously jeopardizing food safety and people's health. The circumstances were particularly serious and should be punished according to law. Lu Jun, Li Shujun, Liu Lihai, Yu Shuangying, Liu Fanjin, and Wang Bo knew that Liu Liguo had processed kitchen waste oil into inferior oil and then allowed it to be sold, but they still actively participated. Their actions constitute the crime of producing and selling toxic or harmful foods and the crime of producing and selling fake or sub-standard products, respectively, and deserve concurrent punishment. In their joint crime, Liu Liguo played a main role, and is the principal culprit. Lu Jun, Li Shuhai, Liu Lihai, Yu Shuangying, Liu Fanjin, and Wang Bo were accessories who played secondary or auxiliary roles. As accessories, they were given mitigated punishment in the trial of the first instance. The convictions in the original judgment and law applied were correct; the sentencing was appropriate; and the judicial procedure was lawful. On June 4, 2013, the Zhejiang Provincial Higher People’s Court ruled to dismiss the appeal and upheld the verdict in the first instance.

The Case of Xu Xiaolun et al for the Production or Sale of Harmful Food

(SPP Guiding Case No. 13)

[Keywords]

Production or sale of harmful food

[Main Ideas]

When processing food, where a party who processes food using poisonous and harmful non-edible materials and then sell them to the public, they should be found guilty of the crime of producing and selling toxic or harmful food. Where a party knowingly purchases and sells a food despite knowing that another has processed it using non-edible materials, that party should be found guilty of the crime of selling toxic or harmful food.

[Relevant Legislation]

Articles 144 and 141(1), Criminal Law of the People’s Republic of China

[Basic case details]

Defendant Xu Xiaolun, male, of Guizhou Province, born 1969, employed in business

Defendant Jia Changrong, female, of Guizhou Province, born 1966, employed in business

Defendant Xu Tibin, male, of Guizhou Province, born 1986, employed in business

Defendant Ye Jianyong, male, of Guizhou Province, born 1980, employed in business

Defendant Yang Yumei, female, of Anhui Province, born 1971, employed in business

Since March 2010, defendants Xu Xiaolun and Jia Changrong used heated industrial rosin to to remove body hair from raw pig heads at a processing center at 12 Yuying Street, Qianbei Village, Baotian, Rui’an City. They then separated these processed pig heads into several parts including pig's head meat, ears, tongues and lard and sold them to prepared food stalls in the local markets, making a net sale of around 610,000 yuan. Defendants Xu Tiben, Ye Jianyong, and Yang Yumei knew that Xu Xiaolun used industrial rosin to remove hair from the pig heads, and yet still purchased them, cooked them, and sold them in the prepared food stalls that they operated. Xu Tibin made a net sales value of 34,000 yuan from the meat, and Ye Jianyong and Yang Yumei made a net sales value of about 25,000 yuan. On August 8, 2012, Xu Xiaolun, Jia Changrong and Xu Tibin were captured by public security and the Rui’an Municipal Animal Health Supervision Institute at the processing site in Rui’an. Moreover, 50 hog heads (already separated), 600 kgs of ears and head meat, 10 kgs of rosin, and sales receipts were seized. After appraisal, the seized rosin was identified as an industrial rosin that was not included in chemical substances categorized as food additives and contained the heavy metal lead. Lead concentration increased after repeated high-heat exposure. Prolonged consumption of poultry and meats processed with industrial rosin could be harmful to the body. Xu Tibin assisted the police in arresting the other two suspects after the crime came to light.

[Procedural history]

Xu Xiaolun and Jia Changrong were criminally detained on suspicion of the crime of producing and selling toxic or harmful food on August 8, 2012, then were arrested on September 15, 2012. On August 8, 2012, Xu Tibin was detained on suspicion of the crime of producing or selling toxic or harmful food, then released on bail pending trial on August 13, 2012, and arrested on March 12, 2013. On September 27, 2012, Ye Jianyong and Yang Yumei were released on bail pending trial on suspicion of the crime of producing or selling toxic or harmful food, then arrested on March 12, 2013.

After the Zhejiang Provincial Rui’an Municipal Public Security Bureau completed its investigation, the case was sent to the Rui’an Municipal People’s Procuratorate for examination before prosecution. After review, the Rui’an Municipal People’s Procuratorate believed that defendants Xu Xiaolun and Jia Changrong had laced foods with harmful substances during the producing and selling process, that defendants Xu Tibin, Ye Jianyong and Yang Yumei had knowingly sold foods laced with harmful substances, and that defendants Xu Xiaolun and Jia Changrong had committed other serious acts. The procuratorate believed that their actions violated Article 144 of the Criminal Law of the People’s Republic of China, that the facts of the crime were clear and the evidence concrete and sufficient, and that defendants Xu Xiaolun and Jia Changrong should be held criminally responsible for the crime of producing or selling toxic or harmful food, and defendants Xu Tiben, Ye Jianyong and Yang Yumei for the crime of selling harmful food. Defendants Xu Xiaolun, Jia Changrong, Xu Tiben, Ye Jianyong and Yang Yumei gave factual testimonies of their crimes after being taken in, and are therefore eligible to received reduced penalties. On January 1, 2013, the Rui’an Municipal People’s Procuratorate filed indictments with the Rui’an Municipal People’s Court against defendants Xu Xiaolun and Jia Changrong for the crime of producing or selling toxic or harmful food, and against defendants Xu Tiben, Ye Jianyong and Yang Yumei for the crime of selling toxic or harmful food.

On May 22, 2013, the Rui’an Municipal People’s Court found in its decision in first instance of the case that defendants Xu Xiaolun and Jia Changrong had injected harmful substances to foods when producing or selling them, as well as other serious acts, and that their actions were a violation of criminal law constituting the crime of producing and selling harmful foods. The court also found that Xu Tiben, Ye Jianyong and Yang Yumei knowingly had sold foods laced with harmful substances, and that their actions were a violation of criminal law constituting the crime of selling harmful foods. Defendants Xu Xiaolun and Jia Changrong had processed and sold pig heads at their jointly operated pig head processing factory; their crimes were a joint offence. Xu Xiaolun had played the major role in the joint offence, therefore he was classified as the principal. Jia Changrong had played a secondary role, therefore she was classified as an accessory to the crime and received a reduced penalty in accordance with the law. Defendants Jia Changrong, Xu Tiben and Ye Jianyong had given factual testimonies of their crimes, and therefore received reduced penalties in accordance with the law. Defendant Xu Tiben had rendered meritorious service, therefore he was eligible for lenient punishment in accordance with the law. According to relevant provisions of the Criminal Law and the judicial interpretations, defendant Xu Xiaolun was convicted of the crime of producing and selling harmful foods, and sentenced to a fixed-term imprisonment of 10 years and 6 months and a fine of 1,250,000 yuan; defendant Jia Changrong was convicted of producing and selling harmful foods and sentenced to a fixed-term imprisonment of 6 years and a fine of 600,000 yuan; defendant Xu Tiben was convicted of selling harmful foods and sentenced to a fixed-term imprisonment of 1 year and 6 months and a fine of 70,000 yuan; defendant Ye Jianyong was convicted of selling harmful foods and sentenced to a fixed-term imprisonment of 1 year and 6 months and a fine of 50,000 yuan; defendant Yang Yumei was convicted of selling harmful foods and sentenced to a fixed-term imprisonment of 1 year and 6 months and a fine of 50,000 yuan.

Xu Xiaolun, Jia Changrong and Yang Yumei appealed the first-instance verdict after it was announced.

On June 21, 2013, the Wenzhou Municipal Intermediate People’s Court of Zhejiang Province dismissed the appeals, upholding the Rui’an Municipal People’s Court’s decision.

The Case of Sun Jianliang et al for the Production or Sale of Toxic or Harmful Food

(SPP Guiding Case No. 14)

[Keywords]

Production or sale of toxic or harmful food; Joint crimes

[Main Ideas]

A person who knows that clenbuterol hydrochloride (commonly known as “lean meat powder”) is a drug prohibited by the state from being used in animal fodder and drinking water and feeds it to animals bred for human consumption and sells these animals should be regarded as having committed the crime of producing and selling toxic or hazardous foods. A person who knows that clenbuterol hydrochloride is a drug prohibited by the state from being used in animal fodder and drinking water and buys and sells it or buys it for others and then supplies it for others to feed to animals bred for human consumption should be regarded as an accomplice to the crime of producing and selling toxic or hazardous foods.

[Relevant Legislation]

Article 144, Criminal Law of the People's Republic of China

[Basic case details]

Defendant Sun Jianliang, male, Tianjin resident, born 1958, farmer.

Defendant Chen Lin, male, Tianjin resident, born 1964, farmer.

Defendant Hao Yunwang, male, Tianjin resident, born 1973, farmer.

Defendant Tang Lianqing, male, Tianjin resident, born 1946, farmer.

Defendant Tang Min, male, Tianjin resident, born 1971, farmer.

In May 2011, defendants Chen Lin, HaoYunwang, Tang Lianqing and Tang Min initiated a transaction for clenbuterol hydrochloride (commonly known as ‘lean meat powder’) while knowing that it is a drug prohibited by the state from being used in animals fodder and drinking water, with Hao Yunwang purchasing 3 boxes of clenbuterol hydrochloride tablets (100 packs per box, 1000 pieces per pack) from Tang Lianqiang and Tang Min. Afterwards, Chen Lin purchased one box of the tablets for himself and one box of the tablets for defendant Sun Jianliang from Hao Yunwang. Sun Jianliang fed beef cattle on his farm the clenbuterol hydrochloride tablets that Chen Lin had purchased from Hao Yunwang. On December 3 2011, Sun Jiangliang sold 9 heads of beef cattle that had been fed clenbuterol hydrochloride, which were seized by Animal Health Supervision Institute of Baodi District, Tianjin. The cattle were tested, and the level of clenbuterol in the urine samples of 4 of the 9 beef cattle were found to be in excess of the nationally-stipulated standard. Hao Yunwang, Tang Lianqing and Tang Min surrendered themselves to the public security organ on their own initiative.

[Procedural history]

On December 14, 2011, Sun Jianliang was criminally detained on suspicion of the crime of producing or selling toxic or hazardous food. Sun was released on guarantee pending further investigation on January 9, 2012, and arrested on October 10, 2012. On December 21, 2011, Chen Lin was criminally detained on suspicion of producing or selling toxic or harmful food. He was released on guarantee pending further investigation on January 9, 2012, and arrested on October 25. On December 20, 2011, Hao Yunwang obtained a guarantee pending further investigation on suspicion of producing or selling toxic or harmful food; he was arrested on October 25, 2012. On December 28, 2011, Tang Lianqing and Tang Min obtained a guarantee pending further investigation on suspicion of committing the crime of producing or selling toxic or harmful food.

The case was transferred to Baodi District People’s Procuratorate of Tianjin for examination and prosecution after the conclusion of the Baodi Branch of the Tianjin Public Security Bureau’s investigation. In its investigation, the Baodi District People’s Procuratorate found that the defendant Sun Jianliang had fed beef cattle clenbuterol hydrochloride, an illegal drug, and sold beef cattle fed by clenbuterol hydrochloride. It also found that defendants Chen Lin, Hao Yunwang, Tang Lianqing and Tang Min were found to have bought and sold clenbuterol hydrochloride while knowing that it was prohibited from being fed to animals for human consumption. People’s Procuratorate in Bao Di District of Tianjin held that Sun Jianliang, Chen Lin, Hao Yunwang, Tang lianqing and Tan Min’s behaviors all violated the regulations in Article 144, Criminal Law of the People's Republic of China and that all the defendants should be investigated for criminal responsibility based on the crime of producing and selling toxic and hazardous foods. On August 15 2012, People’s Procuratorate in Bao Di District of Tianjin initiated a public prosecution to People’s Court in Bao Di District on the basis of defendants Sun Jianliang, Chen Lin, Hao Yunwang, Tang Lianqing and Tang Min’s committing the crime of producing and selling toxic and hazardous foods.

On October 29 2012, People’s Court in Bao Di District, in its first-instance judgment, held that the defendant Sun Jianliang’s behaviors to use the illegal drug, clenbuterol to feed beef cattle and to sell the beef cattle fed by clenbuterol constituted the crime of crime of producing and selling toxic and hazardous foods. Defendants Chen Lin, Hao Yunwang, Tang Lianqing and Tang Min’s behaviors to buy or sell clenbuterol for others’ feeding beef cattle for human consumption amounted to a joint crime. Chen Lin, Hao Yunwang, Tang Lianqing and Tang Min shall be punished, ipso jure, based on the crime of producing and selling toxic and hazardous foods. In the joint crime, Sun Jianliang being the principal played a major role. Defendants Chen Lin, Hao Yunwang, Tang Lianqing and Tang Min who played secondary crimes in the joint crime were accomplices and should be given light penalties according to laws. Since defendants Hao Yunwang, Tang Lianqing and Tang Min surrendered themselves to the public security organs initiatively and truthfully presented their offenses after the incident, these defendants could be given light penalties according to laws and such behaviors amounted to surrender. Since defendants Sun Jiangliang and Chen Lin truthfully presented their offenses after the incident, they could also be given light penalties and such behaviors amounted to confession. In accordance with relevant provisions of the criminal law, the decision was as follows: defendant Sun Jiangliang committed the crime of producing and selling toxic and hazardous foods and he was sentenced to two-year imprisonment with an extra penalty of 75,000 yuan; defendant Chen Lin committed the crime of producing and selling toxic and hazardous foods and he was sentenced to one-year imprisonment with an extra penalty of 20,000 yuan; defendant Hao Yunwang committed the crime of producing and selling toxic and hazardous foods and he was sentenced to one-year imprisonment with an extra penalty of 20,000 yuan; defendant Tang Lianqing committed the crime of producing and selling toxic and hazardous foods and he was sentenced to half-year imprisonment with a one-year reprieve, with an extra penalty of 5,000 yuan; defendant Tang Min committed the crime of producing and selling toxic and hazardous foods and he was sentenced to half-year imprisonment with a one-year reprieve, with an extra penalty of 5,000 yuan.

Hao Yunwang appealed the first-instance verdict after it was announced.

On December 12, 2012, the Tianjin Municipal No.1 Intermediate People's Court ruled to dismiss the appeal and upheld the verdict in the first instance.

The Case of Hu Lingui et al Involving the Production and Sale of Hazardous Foodstuffs and Bribery, of Luo Mei et al of the Sale of Substandard Products, of Zhu Weiquan et al of the Production and Sale of Inferior Products, and Li Dawen et al of Bribery and Food Supervision Malfeasance

(SPP Guiding Case No. 15)

[Keywords]

Production and Sale of Hazardous Foodstuffs; Production and Sale of Inferior Products; Food Supervision Malfeasance; Bribery

[Main Ideas]

One who produced and sold hazardous foodstuffs, and offered bribes to state personnel entrusted with the responsibility to supervise and manage food safety so as to escape investigation and treat, shall be convicted of production and sale of hazardous foodstuffs and bribery on the basis of joinder of punishments for plural crimes.

State personnel, who was entrusted with the responsibility to supervise and manage food safety but abused his power to tip off criminals who produced and sold hazardous foodstuffs so as to help them escape punishment, shall be convicted of food supervision malfeasance. One who took bribes during the process of malfeasance shall be convicted of food supervision malfeasance and bribery on the basis of joinder of punishments for plural crimes.

[Relevant Legislation]

Articles 144, 140, 408(1), 385, 389 of “Criminal Law of the People’s Republic of China”

[Basic case details]

Defendant Hu Lingui, male, born in 1968, from Chongqing City, was originally a shareholder of Yuxiang Cured Food Company Limited in Dongguan City, Guangdong Province

Defendant Liu Kangqing, male, born in 1964, from Chongqing City, was originally a shareholder of Yuxiang Cured Food Company Limited in Dongguan City, Guangdong Province

Defendant Ye Zaijun, male, born in 1954, from Chongqing City, was originally a shareholder of Yuxiang Cured Food Company Limited in Dongguan City, Guangdong Province

Defendant Liu Guofu, male, born in 1976, from Chongqing City, was originally a shareholder of Yuxiang Cured Food Company Limited in Dongguan City, Guangdong Province

Defendant Zhang Yongfu, male, born in 1969, from Chongqing City, was originally a shareholder of Yuxiang Cured Food Company Limited in Dongguan City, Guangdong Province

Defendant Ye Shike, male, born in 1979, from Chongqing City, was originally a driver of Yuxiang Cured Food Company Limited in Dongguan City, Guangdong Province

Defendant Luo Mei, female, born in 1977, from Chongqing City, was originally a sales staff of the Xinli Agricultural Products Wholesale Market in Dalingshan Town, Dongguan City, Guangdong Province

Defendant Liu Kangsu, female, born in 1971, from Chongqing City, was originally a sales staff of Jiangnan Agricultural Products Wholesale Market in Zhongtang Town, Dongguan City, Guangdong Province

Defendant Zhu Weiquan, male, born in 1958, from Guangdong Province, Unemployed

Defendant Zeng Weizhong, male, born in 1971, from Guangdong Province, Unemployed

Defendant Li Dawen, male, born in 1973, from Guangdong Province, was originally the deputy director of Economic and Trade Office (ETO) of Zhongtang Town, Dongguan City, Guangdong Province; head of Food and Drug Supervision Station of Zhongtang Town; deputy director and office director of Food Safety Commission of Zhongtang Town

Defendant Wang Weichang, male, born in 1965, from Guangdong Province, was originally the head of the inspection team of Zhongtang Central Abattoir in Dongguan City, Guangdong Province

Defendant Chen weiji, male, born in 1982, from Guangdong Province, was originally a member of the inspection team of Zhongtang Central Abattoir in Dongguan City, Guangdong Province

Defendant Yu Zhongdong, male, born in 1953, from Hunan Province, was originally the head of storage and processing management department of Jiangnan Market Operation and Management Company Limited in Dongguan City, Guangdong Province

1. In June 2011, defendants Hu Lingui, Liu Kangqing, Ye Zaijun, Liu Guofu, Zhang Yongfu et al, each contributing 20,000 RMB, rented the Processing Zone of Jiangnan Agricultural Products Wholesale Market in Zhongtang Town, Dongguan City, to establish a processing factory, without industrial and commercial business license and hygiene license. They used ill, dead or residual pigs as raw material, and sodium nitrite, industrial salt, etc. as seasonings, to produce cured sausages and meat. They sent the cured sausages and cured meat produced to a fixed stall in the Agricultural Products Wholesale Market in the city for sale. They sold, on average, around 500 kg of the products every day. Hu Linggu was mainly responsible for purchasing ill, dead or residual pigs. Liu Kangqing was responsible for sales. Liu Guofu et al were responsible for processing production. Zhang Yongfu, Ye Zaijun et al were responsible for chores and collaboration. The factory also employed Ye Shike et al for transportation, Luo Mei and Liu Kangsu et al for sale of the cured sausages and meat produced by the mentioned processing factory. Luo Mei and Liu Kangsu had been employed as sales staff since August 2011 and September 2011 respectively.

On 17 October 2011, due to public report, the law enforcement authority investigated and treated the processing factory. Items seized on the spot included: 500kg of cured sausages, 500 kg of cured meat, 2 tons of unchecked semi-finished cured meat, 24 packs of industrial salt (50kg per pack), 8 bottles of “Dibaichong”(trichlorfon), 11 bottles of sodium nitrite, etc. On 25 October, the public security organ seized 7980kg of semi-finished pork stored in the fixed stall in Agricultural Products Wholesale Market by Hu Linggui et al. The sampling test by Guangdong Provincial Quality Supervision and Testing Center reflected that the amount of poisonous substances, such as Dibaichong (trichlorfon), contained in the semi-finished pork seriously exceeded the allowed figure.

2. From December 2010 to June 2011, defendants Zhu Weiquan, Zeng Weizhong et al, purchased and butchered ill, dead or residual pigs without authorization. They operated 20 days per month and sold the 500 kg of pork produced each day to defendants Hu Lingui, Liu Kangqing et al. Later, Zeng Weizhong withdrew from the business. From September 2011 till the incident, Zhu Weiquan et al continued selling to the cured meat processing factory operated jointly by Hu Lingui et al around 500 kg of pork made from ill, dead or residual pigs each day.

3. Defendant Li Dawen had served as a member of Zhongtang Township Product Quality and Food Safety Leading Group, the Deputy Director of Economic and Trades Office, the Deputy Director and Office Director of Zhongtang Township Food Safety Commission, and the Station Head of Food and Drug Supervision Station since 2008; he was responsible for the supervision and management of food safety in Zhongtang Township, including performing the comprehensive coordination function regarding food safety of Zhongtang Township and organising law enforcement departments to investigate food safety reports in accordance with the law. Defendant Yu Zhongdong had been the person-in-charge of the Storage and Processing Management Department of Jiangnan Market Operation and Management Limited of Dongguan City.

From 2010 to 2011, Li Dawen accepted eleven bribes, each of $5000 and totaling $55000, from defendants Liu Kangqing, Hu Lingui, Yu Zhongdong and others during the process of organizing law enforcement personnel to investigate the unlicensed cured meat and sausages processing den in Jiangnan Agricultural Products Wholesale Market; in which Hu Lingui, Liu Kangqing and Yu Zhongdong were involved in eleven, ten and six bribes totaling $55000, $50000 and $30000 respectively.

Defendant Li Dawen, after taking bribes from Defendants Liu Kangqing, Hu Lingui, Yu Zhongdong and others, abused his power and authority in supervising and managing food safety; he repeatedly notified Yu Zhongdong or Hu Lingui by telephone before organizing law enforcement personnel to inspect the Jiangnan Agricultural Products Wholesale Market so that Hu Lingui and others could prepare for the inspection and evade investigation by hiding the cured meat and sausages concerned as well as raw materials such as pork from diseased, dead and disabled pigs. As a result, Hu Lingui and others continuously produced cured meat and sausages, of which Dipterex and nitrite content substantially exceeded safety standards, and sold those products to canteens and restaurants in Dongguan City and other nearby cities in more than a year’s time.

Defendant Wang Weichang had served as head of Zhongtang Township Central Slaughterhouse Inspection Team since 2007. Defendant Chen Weiji had served as member of Central Slaughterhouse Inspection Team of Zhongtang Township since February 2009. They were responsible for inspecting unlicensed slaughters in Zhongtang Township. From July 2009 to October 2011, Wang Weichang and Chen Weiji accepted bribes from Liu Kangqing, Liu Guofu and others during law enforcement procedures. Wang Weichang and Chen Weiji collectively took bribes of $13100; Wang Weichang individually took bribes of $3000.

After accepting bribes, Wang Weichang and Chen Weiji abused their power and authority in supervising and managing food safety. They did not perform their investigation duties in leading several inspection operations knowing that Liu Kangqing and Liu Guofu were selling pork and spare ribs from dead pigs illegally. Wang Weichang also repeatedly notified Liu Kangqing by telephone before participating in joint enforcement operations organized by Zhongtang Township Food Safety Commission so that Liu Kangqing and others could evade investigation.

[Procedural history]

On October 22, 2011, Hu Lingui and Liu Kangqing were criminally detained for the offence of producing and selling toxic and harmful food; they were arrested on November 24, 2011. On October 23, 2011, Ye Zaijun, Liu Guofu, Zhang Yongfu, Ye Shike, Luo Mei and Liu Kangsu were criminally detained; they were arrested on November 24, 2011. On October 28, 2011, Zhu Weiquan and Zeng Weizhong were criminally detained for the offence of producing and selling toxic and harmful food; they were arrested on November 24, 2011. On March 6, 2012, Li Dawen was criminally detained for acceptance of bribes; he was arrested on March 20, 2012. On April 26, 2012, Wang Weichang and Chen Weiji were criminally detained for acceptance of bribes; they were arrested on May 10, 2012. On March 6, 2012, Yu Zhongdong was criminally detained for acceptance of bribes; he was arrested on May 20, 2012.

After Guangdong Province Dongguan City Public Security Bureau had concluded the investigation on the case of defendants Hu Lingui, Liu Kangqing, Ye Zaijun, Liu Guofu, Zhang Yongfu, Ye Shike, Luo Mei, Liu Kangsu, Zeng Weizhong and Zhu Weiquan regarding the suspected offence of producing and selling toxic and harmful food, it was transferred to Dongguan City No.1 District People’s Procuratorate to be reviewed for prosecution. After Dongguan City People’s Procuratorate had concluded the investigation on the case of defendants Li Dawen, Wang Weichang and Chen Weiji regarding the suspected acceptance of bribes and malfeasance in food regulatory, and the case of defendants Hu Lingui, Liu Kangqing and Yu Zhongdong regarding the suspected offence of bribery, it was transferred to Dongguan City No.1 District People’s Procuratorate to be reviewed for prosecution. Since the two aforementioned cases are related, Dongguan City No.1 District People’s Procuratorate decided to merge them for review purposes. Dongguan City No.1 District People’s Procuratorate found that, upon review, Defendants Hu Lingui, Liu Kangqing, Ye Zaijun, Liu Guofu, Zhang Yongfu and Ye Shike ignored the state laws and produced and sold food that was incorporated with toxic and harmful non-food raw materials. Hu Lingui and Liu Kangqing bribed Defendants Li Dawen, Wang Weichang, Chen Weiji and others to obtain illegitimate interests; such acts had violated article 144 and article 389 paragraph 1 of the Criminal Law of the People's Republic of China. The acts of defendants Ye Zaijun, Liu Guofu, Zhang Yongfu and Ye Shike had violated article 144 of the Criminal Law of the People's Republic of China. Defendants Luo Mei and Liu Kangsu passed substandard products off as qualified products in sales. The amount of sales by Luo Mei and Liu Kangsu exceeded $500000 and $200000 respectively. Their acts had violated article 140 of the Criminal Law of the People's Republic of China. Defendants Zhu Weiquan and Zeng Weizhong passed substandard products off as qualified products in production and sales. The amount of sales and production exceeded $500000. Their acts violated article 140 of the Criminal Law of the People's Republic of China. Defendants Li Dawen, wang Weichang and Chen Weiji took advantage of their positions as personnel of a state organization and repeatedly accepted bribes. Li Dawen, wang Weichang and Chen Weiji, as personnel of a state organization who were responsible for supervising and managing food safety, also abused their power and authority for the sake of obtaining illegitimate interests for Liu Kangqing and others and caused adverse social impact. Their acts violated articles 385 paragraph 1 and 408 paragraph 1 of the Criminal Law of the People's Republic of China. Defendant Yu Zhongdong repeatedly bribed defendants Li Dawen, Wang Weichang and Chen Weiji for the sake of obtaining illegitimate interests. His acts violated article 389 paragraph 1 of the Criminal Law of the People's Republic of China. On May 29, 2012, Dongguan City No.1 District People’s Procuratorate raised a public prosecution against defendants Hu Lingui and Liu Kangqing on suspicion of the offence of producing and selling toxic and harmful food and bribery, defendants Ye Zaijun, Liu Guofu, Zhang Yongfu and Ye Shike on suspicion of the offence of producing and selling toxic and harmful food, defendants Luo Mei and Liu Kangsu on suspicion of the offence of selling fake and defective products, defendants Zhu Weiquan and Zeng Weizhong on suspicion of the offence of producing and selling fake and defective products, defendants Li Dawen, Wang Weichang and Chen Weiji on the suspicion of acceptance of bribes and malfeasance in food regulatory, and defendant Yu Zhongdong on suspicion of bribery in Dongguan City No.1 People's Court.

On September 9, 2012, the fist-instance trial of the Dongguan City First People’ s Court found that, defendants Hu Lingui, Liu kangqing, Ye zaijun, Liu guofu, Zhang kangyong, Ye shike, had disregarded the national laws, infiltrated toxic, harmful non-food raw materials to produce food and sold them, their conduct met the requirements for the crime for Production and Sale of Toxic and Hazardous Foodstuffs, and is of a serious one. Defendants Luo mei, Li kangsu, as sellers, used unqualified products posing as qualified products. Among the two, the gross sale of defendant Luo mei was between 500,000 yuan and 2000,000 yuan; The gross sale of defendant Liu kangsu was between 200,000 yuan and 500,000 yuan, their conduct had constituted the crime of Production and sale of Toxic and Hazardous Foodstuffs and Substandard Goods. Defendants Zhu weiquan, Zeng weizhong, used unqualified products posing as qualified products during the production and selling process, involving between 500,000 yuan and 2000,000 yuan, their conduct had constituted the crime of Production and sale of Toxic and Hazardous Foodstuffs and Substandard Goods. Defendant Li dawen, as a national official, Defendant Wang wechang, Chen weiji, as persons who are authorized by state organ to perform public services, accepted bribes many times by taking advantage of their position. At the same time, Defendant Li dawen, Wng weichang, Chwn weiji breached their duty in food safety supervision and management, abused their power by seeking illegal interests for Liu Kangqin and others, causing serious consequences. The conduct of defendants Li dawen, Wang weichang, Chen weiji had already constituted the bribery and the Crime of Food Supervision Malpractice; Defendants Hu lingui, Liu kangqin, Yu zhongdong bribed Li dawen, Wang weichang, Chen weiji and others many times for gaining improper interests. The acts of the above three had already constituted the bribery. In regard of the above defendants’ criminal behavior, punishments shall be given in accordance with the law, gave concurrent punishment to defendants Hu linhui, Liu Kangqin, Li dawen and Wang weichang in accordance with the law. Defendant Liu Kang Qing is a recidivist, severer penalty shall be given in accordance with the law; Liu kangqin voluntarily confessed bribery before prosecution; a more lenient punishment shall be given in accordance with the law. Liu Kangqin also reported the fact that Hu lingui bribed Li dawen 5000 yuan and this was verified, a more lenient punishment shall be given for this meritorious behavior. As defendants Li Dawen, Wang Weijing, and Chen Weiji had already forfeitted all their illicitly obtained monies to the investigative authorities after being arrested and brought to trial, they were penalized relatively leniently. Defendants Hu linhui, Liu kangqin, Zhang yongfu, Ye shike and Yu zhongdong truthfully confessed the crime after arrestment, the attitude in pleading guilty was quite good, he shall be given a more lenient punishment according to the actual situations. In according to relevant provisions of criminal policy, the court held:

1. Defendant Hu lingui had committed the Crime of Production and Sale of Toxic and Hazardous Foodstuffs and bribery, sentences 9 years and 9 months imprisonment and fines 100,000 yuan for all offences committed. Defendant Liu Kangqing committed the Crime of Production and Sale of Toxic and Hazardous Foodstuffs and bribery, sentences 9 years imprisonment and fines 90,000 yuan for all offences committed. Defendants Ye zaijun, Liu guofu, Zhang yongfu, Ye shike committed the Crime of Production and Sale of Toxic and Hazardous Foodstuffs, sentence 8 years and 6 months imprisonment and fines 100,000 yuan; 8 years and 6 months imprisonment and fines 100,000 yuan; 8 years and 3 months imprisonment and fines 100,000 yuan; 7years and 9 months imprisonment and fines 50,000 yuan separately. Defendants Luo mei , Liu kangsu committed the crime of Sale of Substandard Products, sentences 7 years and 6 months imprisonment and fines 30,000 yuan; 6 years imprisonment and fines 20,000 yuan separately.

2. Defendants Zhu weiquan, Zeng weizhog committed the Crime of Production and Sale of Toxic and Hazardous Foodstuffs, sentences 8 years imprisonment and fines 70,000 yuan; 7 years and 6 months imprisonment and fines 60,000 yuan separately.

3. Defendant Liu dawen committed bribery and Food Supervision Malpractice, concurrent punishment of 7 years and 6 months imprisonment and confiscates personal property 10,000 yuan in total. Defendant Wang weichang committed bribery and Food Supervision Malpractice, concurrent punishment shall be given, sentences 3 years and 3 months imprisonment. Defendant Chen weiji committed bribery and Food Supervision Malpractice, concurrent punishment shall be given, sentences 2 years and 6 months imprisonment. Defendant Yu Zhongdong committed bribery, sentences 10 months imprisonment.

After the judgments were laid down by the Court of First Instance, defendants Hu linhui, Liu kangqin, Ye zaijun, Liu guofu, Zhang yongfu, Y shike, Luo mei, Liu kangsu, Zeng weizhong, Li dawen, Wang weichang, Chen weiji appealed.

On August 21, 2012, the second-instance of Dongguan Intermediate People's Court, Guangdong Province dismissed the appeal and affirmed the original judgment.

The Case of Sai Yue and Han Chengwu Involving Bribery and Food Supervision Malpractice

(SPP Guiding Case No. 16)

[Keywords]

Bribery; the crime of dereliction of duty on food supervision and management

[Main Ideas]

National officials whom bear the responsibility of food safety supervision and management and abuse their powers or malpractice which led to occurrence of serious food safety incidents or other serious consequences, shall be guilty for the crime of dereliction of duty on food supervision and management. Those who accept bribes during dereliction, concurrent punishment for dereliction of duty on food supervision and management and bribery shall be given.

[Relevant Legislation]

Articles 385 and Article 408(1) of the Criminal Law of the People's Republic of China

[Basic case details]

Defendant Sai Yue, Male, from Yunnan Province, born in 1965, former director of Songming County Administration of Quality and Technology in Yunnan Province (abbreviated to Songming County AQT below)

Defendant Han Chengwu, Male, from Yunnan Province, born in 1963, former deputy director of Songming County AQT

On 17 September 2011, according to public tip-offs, Yunnan Fengrui Grain and Oil Industrial Co. Ltd (which lies in Yanglin Industrial Park in Songming County, Yunnan Province, which is abbreviated to Yanglin Fengrui Ltd below) produced gutter oil illegally. Sai Yue and Han Chengwu, who respectively were the director and deputy director of Songming County AQT, together with others, investigated Yanglin Fengrui Ltd on site, discovering that the company didn't have a license and in fact its processing equipment manufactured cooking oil in the name of “commissioning equipment”. There is 2244.912 metric tons of lard on the spot, some of whose external packing lacked labels or signs and didn’t meet safety standards. On 21 September, defendant Sai Yue and Han Chengwu did not calculate or check the quantity and source of the lard but only relied on the figure of 500 tons stated by staff from the company. They decided to seal 591.4 tons of lard, 30 tons of production-activated clay and 100 tons of unlicensed rapeseed oil. On 22 October, Han Chengwu suggested filing a case for investigation and penalty for the reason that “the total 59.143 tons of the purchased raw materials by Yanglin Fengrui Ltd do not meet the food safety standard”. Sai Yue approved it and called a case investigation meeting. After collective discussion, it was decided to give Yanglin Fengrui Ltd administrative penalty. On 24 October, Songming County AQT issued an administrative punishment notice to Yanglin Ruifeng Ltd, including destruction of raw materials which were below food safety standard and a fine of 1, 419, 432 yuan. It then sent the informing letter to the company. Afterwards, the company applied for a lighter penalty and mitigation of punishment. On 9 December in the same year, without collective discussion, Sai Yue and Han Chengwu made the decision to reduce the administrative penalty imposed to Yanglin Fengrui Ltd by reason of the business entity’s coordination with investigation and economic difficulty. On 12 December, Songming AQT made the administrative penalty decision that the raw materials which didn't meet the food safety standard shall be destructed and a fine of 200, 000 yuan be imposed upon Yanglin Fengrui Ltd. It also issued an order notice for correction, ordering the company to correct the illegal behavior that “the purchased raw materials of lard didn't meet the food safety standard” before 27 December 2011. On 13 December, Songming AQT lifted the seal of lard, activated clay and rapeseed oil but in fact, those materials were not destructed. Therefore, during November 2011 to March 2012, Yanglin Fengrui Ltd was able to use the seized materials in producing edible lard without any license, which flowed into society, leading to high risk of harm to people’s health and life.

Between October and November in 2011, defendant Sai Yue and han Chengwu accepted 100, 000 yuan and 30, 000 yuan respectively in office from Wu Qingwei of Yanglin Fengrui Ltd (handled as a separate case) during investigating process.

On 13 March 2012, the public safety organ filed a case and took on investigation because the company was suspected of being involved in manufacturing and selling poisonous and harmful food. On 20 March, on knowing the situation, Sai Yue and Han Chengwu changed relevant documents, destructed primary administrative penalty notice, falsified records of analysis and coordination meeting and case investigation meeting, forged the destruction certificate for the raw materials of lard in Yanglin Fengrui Ltd. They also deposited the 130, 000 bribes into account especially for fine.

[Procedural history]

On 4 May 2012, Sai Yue and Han Chengwu was charged with the crime of irregularities for favoritism so as not to turn over criminal case, the crime of accepting bribes and Songming County People’s Procuratorate in Yunnan Province filed the case for investigation. Han Chengwu was placed in criminal detention on 7 May and so was Sai Yue on 8 May. On 21 may, both of them were arrested.

After the investigation by the Anti-Malfeasance Bureau of Songming County People’s Procuratorate in Yunnan Province, the case was delivered to public prosecuting department under the basic procuratorate for examination and prosecution. According to Songming County People’s Procuratorate, defendant Sai Yue and Han Chengwu, as officials of the state organ responsible for food safety supervision and administration, failed to perform the duty with due diligence. Their dereliction of duty and malfeasance caused large amount of problematic lard to flow into the market, leading to extremely serious outcome. At the same time, the two defendants with their convenience in jobs, accepted bribes to seek profits for others. Their behaviours have breached Article 408 Section 1 and Article 385 Section 1 of the Criminal Law of the People’s Republic of China and criminal liabilities shall be imposed for the crime of food safety supervisory malpractice and the crime of accepting bribes. On 5 September 2012, Songming County People’s Procuratorate in Yunnan Province initiated public prosecution in Songming County People’s Court, charging defendant Sai Yue and Han Chengwu with the crime of food safety supervisory malpractice and the crime of accepting bribes.

On 26 November 2012, Songming County People’s Court in Yunnan Province during the first trial found that defendant Sai Yue and Han Chengwu took advantage of their positions as functionaries of state organ and acted in others’ interests, which constituted the crime of accepting bribes; As staff in Songming County AQT, defendant Sai Yue and Han Chengwu’s malfeasance and abuse of power in investigating the fact that Yanglin Fengrui Ltd produced poisonous and harmful lard without production license, caused the problematic lard to flow into society and led to serious result. Their behaviours also constituted the crime of food supervision malfeasance. After Yanglin Fengrui Ltd was investigated by the public safety organ, Sai Yue and Han Chengwu reported honestly the fact of accepting bribes to authorities and hand in the bribes as “fines” to the higher authority, which is surrender and their punishment could be mitigated and reduced. According to relevant articles and regulations in criminal law, Songming County People’s Court in Yunnan Province decided that defendant Sai Yue is convicted of the crime of accepting bribes and the crime of food supervision malfeasance, punishment shall be combined and he is sentenced to imprisonment of six years; Han Chengwu is convicted of the crime of accepting bribes and the crime of food supervision malfeasance, punishment shall be combined and he is sentenced to imprisonment of two years and six months.

After the first instance verdict, Sai Yue and Han Chengwu appealed.

On 20 April 2013, Kunming City People's Intermediate Court rejected the appeal and upheld the verdict of the lower court.