【法规标题】最高人民检察院第五批指导性案例 【颁布单位】最高人民检察院 【发文字号】 【颁布时间】2014-9-15 【失效时间】 【法规来】http://www.spp.gov.cn/xwfbh/wsfbh/201409/t20140915_80170_2.shtml
Fifth Instalment of Guiding Cases of the Supreme People's Procuratorate
Supreme People's Procuratorate
The Chen Dengchang case of robbery, burglary and theft.
(Procuratorate Case No. 17)
Second Instance Trial, Procedure, Criminal Matters, Counter-appeal
Burglary, Theft, Supplemental Prosecution
[Basic case details]
Defendant Chen Dengchang, Male, from Guizhou province, born in 1989, unemployed.
Defendant Fu Zhiqiang, Male, from Guizhou Province, born in 1981, farmer.
At 15:00 on February 18, 2013, defendant Chen Dengchang carried a screwdriver and other criminal instruments to a rented residence at No. 1, Alley 10, Tianbien Street, Shitou Hou'er Village, Lanshi Town, Chancheng District, Foshan, Guangdong Province; and broke in and stole 100 yuan in cash, and then,, encountering victim Chen Nanjie in the living room, Chen Dengchang raised a metal hammer and threatened her not yell and then fled the scene.
1. On February 23, 2012, defendant Fu Zhiqiang carried criminal instruments to Rm 302, 398 Jingyi Village, Hecheng Sub-district, Gaoming District, Foshan, Guangdong Province, breaking into the room and stealing 300 yuan in cash.
2. On February 25, 2012, Defendants Fu Zhiqiang and Chen Dengchang conspired and then carried the criminal means to a rented residence Rm 502, 287 Jingyi Village, Hecheng Sub-district, Gaoming District, Foshan, broke in and stole an Asus notebook computer (valued at 2905 yuan). Later, the two sold it for 1300 yuan.
3. On February 28, 2012, defendant Fu Zhiqiang took criminal tools to Rm 402, 243 Jingyi Village, Hecheng Sub-district, Gaoming District, Foshan, broke in, entered, and then stole 1500 yuan in cash.
4. On March 3, 2012, defendants Fu Zhiqiang and Chen Dengchang conspired and then took a hex-key and other criminal instruments to Rm 401, 34 Guandang Village, Hecheng Sub-district, Gaoming District, Foshan, picked the lock, entered, and then stole 700 yuan in cash.
5. On March 28, 2012, defendants Chen Dengchang, Ye Qiyuan, and Wei Shenglun (the cases of the latter two have been handled separately and already sentenced) conspired and then carried criminal instruments to Rm 501, 31 Yuejin Road, Chancheng District, Foshan; with Ye Qiyuan as lookout, Chen Dengchang and Wei Shenlun picked the lock, entered, and stole 1 Lenovo computer (valued at 3928 yuan), an Nikon digital camera (valued at 1813 yuan) and 600 yuan in cash. Later, when discovered in the process of fleeing the scene, Chen Dengchang and the others abandoned the computer.
6. On April 3, 2012, defendant Fu Zhiqiang took criminal instruments to Rm 301, 283 Gangtoufeng Village, Hecheng Sub-district, Gaoming District, Foshan, picked the lock, entered, and stole 7000 yuan in cash.
7. On April 13, 2012, defendants Chen Dengchang, Ye Qiyuan and Wei Shenglun conspired and then took criminal instruments to Rm 303, Building 5, 63 Futian lane, Shiwanfenghuang Road, Chancheng District, Foshan, where Ye Qiyuan acted as lookout and Chen Dengchang and Wei Shenglun picked the lock, entered, and stole 6000 yuan, HK$900 and a Nokia cellphone (valued at 608 yuan).
On April 6, 2012, Fu Zhiqiang was taken into custody on suspicion of theft by the Gaoming District Branch Public Security Bureau of Foshan, Guangdong Province, and was formally arrested on May 9, 2012. On May 29, 2012, Chen Dengchang was taken into custody on suspicion of theft by the Gaoming District Branch Public Security Bureau of Foshan, Guangdong Province, and was arrested on July 2, 2012. On July 6, 2012, The Gaoming Branch Public Security Bureau of Foshan transferred the cases of Fu Zhiqiang and Chen Dengchang on suspicion of theft to the Gaoming District People's Procuratorate of Foshan to be reviewed for prosecution. On July 23, 2012, the Gaoming District People's Procuratorate filed their indictment of Fu Zhiqiang and Chen Dengchang on charges of theft with the Gaoming District People's Court of Foshan.
The Gaoming District People's Procuratorate discovered upon an additional investigation during the first trial that three criminal incidents by Chen Dengchang had been overlooked. On September 24, 2012, the Gaoming District People's Procuratorate supplemented the indictment in accordance with the law by changing defendant Chen Dengchang's burglary charge to one count of robbery and two counts of joint theft committed with Ye Qiyuan and Wei Shenglun.
On November 14, 2012, The Foshan City, Gaoming District People's Court found in the first instance that the facts were clear, that the evidence was credible and sufficient, and that the crimes were established in prosecutors charges that the defendant Chen Dengchang was guilty of robbery and theft, and that defendant Fu Zhichang was guilty of theft. Defendant Chen Dengchang was discovered after the burglary and, to resist being caught, used a weapon to make threats; this conduct meets the requirements for changing to robbery, and conviction and punishment should be for robbery, but not for entering a building for robbery. The reason is that Chen Dengchang's goal in entering the home was not to commit robbery and that violent threats were only improvised when inside and did not cause any harm to the victim, and that judgment in accordance with law is that: the defendant Chen Dengchang was sentenced to 3 years imprisonment and fined 4000 yuan for robbery; and sentenced to 1 year and nine months imprisonment and 2000 yuan for robbery; with a decision to enforce 5 years imprisonment and a fine of 6,000 yuan. Defendant Fu Zhiqiang was guilty of theft, sentenced to 2 years imprisonment, and fined 2000 yuan.
On November 19, 2012, The Foshan City Gaoming District People's Pprocuratorate found that there was error in the first-instance judgment's application of la resulting in improper sentencing, and submitted a counter-appeal to the Foshan Intermediate People's Court, in accordance with law. On March 21, 2013, the Foshan City Intermediate People's Court's second instance judgment adopted the counter-appeal opinion, and revoked the portions of the original judgment on sentencing defendant Chen Dengchang for robbery and on combined enforcement, and changed the judgment in accordance with law.
【Grounds for counter-appeal】:
After the first-instance verdict, the Foshan City Gaoming district People's Procuratorate found that the first instance judgment had not determined that Chen Dengchang's acts were "entering a household for robbery", and that this was an error of law, which resulted in improper sentencing and should be corrected; and therefore submitted a counter-appeal to the Foshan City intermediate people's Court in accordance with law. protested;, Foshan City people's Procuratorate supported the protest. The reasons for the counter-appeal and its being supported were:
1. A deviation in the the original judgment's understanding of 'entering a household for robbery'. The original judgment did not find that Chen Dengchang's robbery included the circumstance of 'entry', reasoning that although violent acts occurred inside, they were not for the goal of carrying out a robbery but were improvised threats of violence while inside and did not cause any harm to the victim. According to the July 2005, "Supreme People's Court Opinion on Several Issues on the Applicable Law in Criminal Cases of Robbery and Theft" 's provisions on identifying "burglary", the "entry" must be for the purpose of committing a theft. However, the illegality of the 'purpose' here is not limited to robbery, and should also include stealing and other crimes.
2．Error in the original judgment's application of law. The second paragraph of the first article of the November 2000 "Supreme People's Court Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Robbery Cases" (hereinafter referred to as the "Interpretation, provides that " for burglary where violence or threats of violence are used because of being discovered, it shall be considered entering a household for robbery. On the basis of the relevant provisions of the Criminal Law and the "Interpretation ", defendant Chen Dengchang's entry to steal in this case and his use of violent threats after being discovered at the scene shall be considered 'entering a household for robbery'
3．The error in the original judgment's application of law led to improper sentencing. "Households" to the average citizen, are viewed as the safest of places. "Entering a household for Robbery" is not only of gross violations of citizens ' right of property ownership, but it more importantly also endangers citizens ' personal safety. Because the victim is in a closed place and often unable to cry for help, the victim can be subject to a more severe shock or harm b, both physically and mentally, as compared with an ordinary outdoor robbery. According to the provisions of Criminal Law Article 263, "entering a household for robbery" shall be punished by imprisonment of at least ten years, indefinite imprisonment or the death penalty, and given a fine or confiscation of property. The original judgment's sentence of Chen Dengchang to three years and nine months for for robbery is an error in application of law resulting in improper sentencing.
The Guangdong Province Foshan City Intermediate People's Court's second-instance trial found that, for first instance trial's determination that defendant Chen Dengchang committed robbery and that defendants Chen Dengchang and Fu Zhiqiang committed theft, the facts were clear and the evidence was credible and sufficient., Chen Dengchang, after committing burglary was discovered by the victim and, seeking to resist capture, used violence to threaten the victim and not allow her to cry out, and then fled the scene of the crime; and this shall be determined to be 'entering a household for robbery' in accordance law. The original judgment's not finding that Chen Dengchang's robbery had the element of entering a household, was an error in application of law, and should be corrected. The procuratorate organs counter-appeal opinion is sustained and adopted. Accordingly, it is lawfully judged that: the portions of the first instance judgement on sentencing Chen Dengchang for robery and on combining enforcement of penalties are revoked, and is ruled that Chen Dengchang is sentenced to 10 years imprisonment and a fine of 10,000 yuan for robbery, and sentenced to 1 year and nine months imprisonment and fined 2,000 yuan for theft, and it is decided that enforcement will be for 11 years imprisonment with a fine of 12,000 yuan.
1. Where burglars use violence or threats of violence during the crime because they were discovered, it shall be found to be 'entering a household for robbery'.
2. Where before judgement is announced by a people's court, a people's procuratorate discovers that the defendant has criminal conduct which was omitted but may be prosecuted and tried together, the indictment may be supplemented.
3. Where a people's procuratorate finds that a first instance judgment by a people's court at the same level has given a light sentence for a serious crime,or applied the law manifestly improperly, it shall submit a counter-appeal.
【Relevant Legal Provisions】
"People's Republic of China Criminal Law" Articles 263, 264, 269, 25, and 69; "People's Republic of China Criminal Procedure Law" Articles 217 and 225(2).
The Guo Mingxian case of participating in a mafia-type organized crime group, intentional homicide and intentional injury
（Procuratorate Case No. 18）
Second Instance Trial, Procedure, Criminal Matters, Counter-appeal
Intentional homicide, extremely serious offenses, death sentence with immediate enforcement
[Basic case details]
First defendant Guo Mingxian, Male, from Sichuan Province, was born in 1972, unemployed. Was found guilty of theft in September 1997 and sentenced to five years and six months imprisonment; released in December 2001.
On May 7, 2003, LI Ze-Rong (whose case was handled separately and has already been sentenced) and others had a dispute with, He Chun, the boss of [karaoke club] "Classic Song City" in Santai County, Sichuan Province, when settling the bill; together with Li Zerong, Wang Chengpeng and Wang Guojun (all handled spearately and already sentenced) smashed the venue, and Guo Mingxian carried a knife and cut people, causeing serious injury to He Chun and minor injury to customer Wu Qibin.
On January 1, 2008, Min Sijin (tried separately and already sentenced) and Wang Yuanjun had an accident in Li Cheng village, Santai County of Sichuan province, and a dispute occurred between the parties over compensation because Min Sijin's motorcycle had been damaged. Wang Yuanjun notified victims Lan Jin, Li Xixiu et al, by telephone, and Min Siyong called Guo Mingxian and Chen Qiang (handled separately and already sentenced) and others to come over. Min Siyong and friends Dai Anqaun and Lan Zaiwei , were first to the scene, and because Dai Anquan and Lan Zaiwei knew both parties in the dispute they began to intervene and things had largely quieted down. Then, Guo Mingxin, Chen Qian and others also separately arrived at the scene by motorcycle. After Min Sijin pointed out Lan Jin to Guo Mingxian, Guo Mingxian took a kitchen knife and hacked at Lan Jin, but was held back by victim Lan Jiyu (aged 26 at time of death) who was passing by and tried to stop the fight; Guo Mingxian violently hacked at Lan Jiyu's head, causing severe cranial-cerebral injury resulting in death. Upon seeing this, Lan Jin, Li Xixiu and others took wooden sticks and attacked Guo Mingxian, and Guo Mingxian swung wildly with the kitchen knife causing serious injury to Lan Jin, and minor injury to Li Xixiu. Then, Guo Mingxian boarded the motorcycle driven by Min Siyong and escaped.
In May 2008, during the period at which Guo Mingxian was on the run, he accepted his co-defendant (sentenced to 14 years imprisonment for organizing or leading a mafia-type organization, intentional harm and other crimes) Li Jin's invitation to go to Anxian County in Sichuan province's Mianyang City, to participate in the criminal organization organized and lef by co-defendant Wang Shuhua (sentenced to 12 years imprisonment for organizing or leading a mafia-type organization, intentional harm and other crimes) as a thug. Because Yu SHuhua was unhappy with Hu Jian, he had Li Jin arrange for Hu Jian and his underlings to be taught a lesson. On May 17, 2009, Li Jian saw Hu Jian and two underlings, Fan Ping and Zhang Xuanhui, eating at the JiangJi Barbecue stand in Huagai town of An County, and called Guo Mingxian on the phone. Upon their being pointed out, Guo Mingxian, masked and carrying a kitchen knife, attacked Fan Ping and Zhan Xuanhui, causing minor injuries to the two of them.
On July 28, 2009, Guo Mingxian was taken into custody on suspicion of intentional harm by the Sichuan Proving, Mianyang City, An County Public Security Bureau, and on August 18 of the same year, he was arrested, and upon investigation, Guo Mingxian was also became a suspect in the series of crimes by the mafia-type organization by Wang Shuhua et al. After the Public Security Bureau for An County, Mianyang City, Sichuan province, concluded its investigation, it transferred the case to the people's procuratorate for An County, Mianyang City, Sichuan province, to be reviewed for prosecution. The procuratorate accepted the case, and on January 3, 2010, reported it to the Mianyang City, Sichuan province people's procuratorate to be reviewed for prosecution. On July 19, 2010, the people's procuratorate for Mianyang City, Sichuan Province submitted an indictement against Wang Shuhua et al in the Mianyang Intermediate people's court, for a series of crimes of participating in a mafia-type organization, including the charges in the case against defendant Guo Minxian for participating in a mafia-type organization, intentional harm and intentional homicide.
On December 17, 2010, the Mianyang City intermediate people's Court first instance trial found that defendant Guo Mingxian had been sentenced to a prison term in 1997 for theft , and after being released on December 26, 2001 at the completion of his term, and in 2003 committed intentional harm and in 2008 committed intentional homicide and participated in a mafia-type organization; should be sentenced to a term of imprisonment or higher, and that he was a recidivist who shall be punished severely. Lawfully ruling: Defendant Guo Mingxian was sentenced to two years for participation in a mafia-type organization; sentence to death with a two year suspension of enforcement and lifetime deprivation of political rights for intentional homicide , and five years imprisonment for intentional harm. Joining punishment for the several crimes, it was decided to enforce the death penalty with two year suspension of enforcement and lifetime deprivation of political rights.
On December 30, 2010, the Sichuan province, Mianyang City people's procuratorate found that first-instance judgments sentencing of defendant Guo mingxian was abnormally light, and raised a counter-appeal to the Sichuan province high people's Court in accordance with law. On April 16, 2012, the Sichuan Province High People's Court's second instance judgment adopted the counter-appeal opinion and changed first Mingxian's sentence to death with immediate execution. On October 26, 2012, the Supreme People's Court ruled and approved the Sichuan Province high people's court's death sentence judgment for defendant Guo Mingxian. November 22, 2012, the defendant Guo Mingxian was executed.
【Grounds for counter-appeal】:
After the first instance verdict was released, the Sichuan Province, Mianyang City people's procuratorate found upon review that the original judgment gave defendant Guo Mingxian an unusually light sentence, and in accordance with law submitted a counter-appeal to the Sichuan High People's Court. The reasoning for the counter-appeal and for its support was: The first instance judgment sentencing defendant Guo Mingxian to death with a two year suspension, was an abnormally light sentence. In 1997, Guo Mingxian was sentenced to five years and six months imprisonment for theft, and after being released at the completion of his sentence in December 2001, did not reform and continued committing crimes. On May 7, 2003, along with others, he wrecked the Santai County 'Classic Song City' and used a knife to attack and cause serious injuries to one person and minor injuries to another; this conduct constituted the crime of intentional harm. During the period in which he was on the run, on January 1, 2008, he used a knife in Santai County Licheng village to kill one person, seriously injure one person and cause minor injuries to another; this conduct constitutes the crimes of intentional homicide and intentional harm. Since then, he has participated in a mafia-type organization, acting as muscle for others, and on May 17, 2009, following the organization's instruction, he wore a mask and used a knife to attack others causing minor injury to two people; this conduct constitutes the crimes of participation in a mafia-tupe organization and intentional harm. On the basis of the facts and evidence of this case, the criminal actions of defendant Guo Mingxian were extremely serious, his criminal means were cruel and the consequences of the crimes were serious, his subjective malice was extremely large and according to the principal of punishment in proportion to culpability, he shall be sentenced to death with immediate execution.
The Sichuan Province High People's Court's second instance trial found that, the facts of this case are clear and the evidence is credible and sufficient; the original trial's defendant Guo Minxian committed the crimes of participating in a mafia-type organization, intentional homicide, and intentional harm; he is a recidivist, and his subjective malice is extremely deep; In accordance with law he be given a heavy sentence. The procuratorate organs counter-appeal reasoning, finding that the original judgment's sentencing of Guo Mingxian was abnormally light, is sustained. Therefore, in accordance with law, the portion of the first instance judgment regarding defendant Guo Mingxian's sentencing is revoked, and Guo Minngxian's sentence is changed to two years imprisonment for participation in a mafia-type organization, death for intentional homicide and five years imprisonment for intentional harm; Joining the punishment for the several crimes, it is decided to carry out the death sentence and deprivation of political rights for life. Upon reporting to the Supreme People's Court for final review and approval, the death penalty has already been carried out.
The death penalty is only lawfully applied to criminals who have committed extremely serious criminal conduct. Where a people's court has not given a death sentence to defendants in a criminal case of Intentional homicide, intentional harm, kidnapping, bombing or other crimes involving gangs, terrorism, or violence; and where the offense is extremely serious, seriously endangers national security or public safety, seriously endangers citizens' right to life, or seriously endangers the social order; the people's procuratorate shall submit a counter-appeal in accordance with law.
【Relevant Legal Provisions】
"People's Republic of China Criminal Law" Articles 232, 234, 294; "People's Republic of China Criminal Procedure Law" Articles 217 and 225(2) .
The Case of Robbery by Zhang X, Shen XX and 5 others
(Procuratorate Case No. 19)
Second Instance Trial, Procedure, Criminal Matters, Counter-appeal
Joint crimes by minors and adults, Separate Prosecutions, Recidivism
[Basic case details]
Defendant Shen, male, born January 1995. Sentenced in March 2010 to six months in detention for robbery, with a suspended sentence of six months, and fined 500 yuan.
Defendant Hu, male, born April 1995.
Defendant Xu, male, born January 1993. Sentenced in June 2008 to a fixed term of six months for robbery and fined 500 yuan. Sentenced in January 2010 to a fixed term of seven months for theft and fined 1400 yuan.
The other four defendants were Zhang, Lu, Jiang, and Yang, all of who were adults.
Defendant Zhang introduced Shen, Hu, Lu, and Jiang for his own personal gain. Zhang instigated them to use force to rob a moped and supplied the instruments of the crime such as the machete(s). After the incident, Zhang was responsible for being the contact to fence the stolen property. In March 2010, the defendants Shen, Hu, Lu, and Jiang were called together by the defendant Zhang, and colluded with people including the defendants Xu and Yang. They mutually colluded in premeditation to rob mopeds in public places in Shanghai while wielding tools for committing the crime including machetes, bolt cutters, and crowbars. Of the defendants, Zhang, Shen, and Hu participated in four robberies; Lu and Jiang participated in three robberies; Xu participated in two robberies; and Yang participated in one robbery. The details are as follows:
1. At 11:00 on March 4, 2010, Shen, Hu, Lu, and Jiang carried machetes and went to the entrance of the GOME Electric Appliances store at 699 Changshou Rd, Shanghai. Lu and Shen tried to break into a black Benling moped that was parked there. When the injured party stopped them, Shen, Hu, and Jiang threatened the injured party with their machetes, and Shen slashed at the injured party, giving them a minor wound. Afterwards, Lu and Shen were unable to pick the moped's lock, and so they smashed the moped's body and fled. Upon appraisal, the moped was valued at 1930 yuan.
2. On March 4, 2010 at about 12 o'clock, Shen xxx, Hu xxx, Lu xxx, and Jiang X carried machetes and went together to the entrance to a temporary vegetable market at the intersection of Old Lutai Road and Wanrong road in Shanghai, where Hu and Lu forced the lock of a white Yamaha moped; when victim 2 stopped them, Shen, Jiang and the others threatened them with machetes, and Shen hacked the victims, causing slight injuries, and then Lu and the others picked the lock and rode off with the bike. Upon appraisal, the moped was valued at 2058 yuan.
3. On March 11, 2014 at 14:00, Shen xx, Hu xxx, Lu xx, Jiang x, and Xu x and went together carrying machetes to the door of Oriental Pawn at 669 Shanhai Jiaozhou road, where Shen picked the lock of a black baodiao moped, and when the victim 3 stopped them, Hu, Jiang and Shen chopped at them with machetes forcing them into the Oriental Pawn store, and with Xu on one side, Lu came forward to assist with forcing the car lock and then Hu drove off with the vehicle. Upon appraisal, the moped was valued at 2660 yuan.
4. On March 18, 2010 at about 14:00 Shen xxx, Hu xxx, Xu x, and Yang x, as well as Wang x (male, 13 yrs old), carried machetes and went together to the parking lot at the line 7 subway station at the intersection of Shanghai City's Shangda Road and Lutai road, where Hu threatened the parking attendants there with a machete, and Yang directed Shen, Xu and others to steal 3 mopeds from the scene. Among these, victim Ding's black Everest moped was, upon appraisal, valued at 2090 yuan.
In March and April 2010, Zhang x, Lv x, Jiang x,and Yang x, as well as three minors three minors: Hu Shen, Xu , were taken into custody and then arrested on suspicion of robbery. On June 21, 2010, the Shanghai Municipal Public Security Bureau Jing'an branch completed its investigation of the case the seven persons suspected of theft, including, Zhang x, Shen xx, Hu xx, Lu x, Jiang x, Xu x, and Yang x, and transferred the case to the people's procuratorate for Jing'an District to be reviewed for prosecution. The Jing'an district people's procuratorate found upon review, that although this case was a joint crime between adults and juveniles, it was not suitable for separate prosecutions given that many of the juveniles in the case were principal offenders. On September 25, 2010, the Jing'an people's procuratorate submitted the indictment of the seven persons described above for robbery to the Jing'an district people's court.
On December 15, 201, the Jing'an district people's court's first instance trial found that the seven defendants actions constituted the offense of robbery, and that Xu x was a recidivist. It was ruled in accordance with law that: (1) Sentencing for the juvenile defendants was as follows: Shen's xx's probation was revoked on his sentence of five years and six months with a fine of 5000 yuan and it was decided he would serve five years and six months imprisonment and be fined 5000 yuan; Hu xx was sentenced to seven years imprisonment and a fine of 7000 yuan; and Xu x was sentenced to five years imprisonment and fined 5000 yuan. (2) Sentencing for the adult defendants was as follows: Zhang x was sentenced to 10 years imprisonment, two years deprivation of political rights and a fine of 5000 yuan; Lu x was sentenced to 12 years and six months imprisonment and one year deprivation of political rights and fined 12,000 yuan; Jiang x was sentenced to 12 years imprisonment, one year deprivation of political rights and fined 12,000 yuan; Yang x was sentenced to 2 years imprisonment and fined 2000 yuan.
On December 30, 2010, the Shanghai Jing'an District People's Procuratorate found that the first instance judgment erred in the application of law, sentencing for the juvenile defendants improperly, and thus submitted a counter appeal to the Shanghai No.2 Intermediate People's Court. Zhang x, reasoning that he did not participate in the robbery and that his sentence was too heavy, raised an appeal. On June 16, 2011, the Shanghai No. 2 Intermediate People's Court adopted the counter appeal opinion, rejected the appeal, and revoked the portions of the original judgment regarding defendant Shen XX, Hu x's sentences for robbery, changing the judgment in accordance with law.
【Grounds for counter-appeal】:
After the first instance judgment, The people's procuratorate for the Jing'an district of Shanghai found that the first instance judgment's sentencing of defendant Hu xx, who had relatively minor circumstances, to 7 years imprisonment was unbalanced, and that giving a lenient sentence of fines to the juvenile defendants Shen xx, Hu xx, and Xu xx, was an error in the application of law, and improper sentencing, and therefore submitted a counter appeal to the Shanghai No. 2 Intermediate people's court; and the second branch of the Shanghai people's procurate supported the counter appeal. The reasoning for the counter appeal and its support was:
1. A sentencing imbalance in the original judgment made the sentencing of defendant Hu overly severe. In this case, defendants Hu xx and Shen xx both participated in four robberies, and although both were principal offenders, defendant Hu xx's conduct was both less harmful to society and to persons as that of defendant Shen xx. Looking at the circumstances of the crime, during the course of performing robberies, Shenn xx directly used a knife to cause minor injuries to a victim and slight injuries to another; defendant Hu only used a knife to threaten and force a lock. Looking at their ages at the time of the crime, Shen xx was already 15 years old, and Hu xx was not yet 15. Looking to their personal dangerousness, Shen xx had been sentenced to six months of short-term detention on March 4, 210, for robbery, which was suspended for six months, and then committed another crime during the suspension period; and Hu xx was a first-time offender. The first instance judgment separately sentenced Hu xx to seven years imprisonment for robbery and Shen xx to 5 years and six months for robbery; which is improper sentencing.
2．一审判决适用法律错误，对未成年被告人罚金刑的适用既没有体现依法从宽，也没有体现与成年被告人罚金刑适用的区别。 On the basis of the provisions of the Supreme People's Courts "Provisions on Several Issues Regarding the Application of Property Punishments" and "Interpretation on Several Issues on the Specific Use of Law in the Trial Of Juvenile Criminal Case", judgments of fines against juvenile defendants shall be mitigated or commuted. 一审判决对未成年被告人判处罚金未依法从宽，均是按照同案成年被告人罚金的标准判处五千元以上的罚金，属于适用法律错误。
In addition, the December 21, 2010 first instance judgment finding that Xu x was a recidivist was correct, but after the judgment there were revisions to the Criminal Law. According to the relevant provisions of "Amendment 8 to the Criminal Law of the PRC" passed by the Standing Committee of the National People's Congress on February 2011 and the "Interpretation on Issues Iegarding the Efficacy Period of the Eighth Amendment to PRC Criminal Law", as defendant Xu xx was not yet 18 at the time he committed a crime, it does not constitute recidivism.
The second instance trial in the Shanghai No. 2 Intermediate court found that the facts were clear, the characterization correct, and the evidence credible and sufficient for the original judgments determination of robbery. In light of Hu xx's position and role in the robber being slightly lower than that of Shen xx, and that juvenile offenders' fines should be mitigated or commuted, and other such actual circumstances, the original judgment's primary sentence of Hu xx, and its fines against Shen xx, Hu xx, and Xu xx were improper sentencing and should be corrected. The counter appeal opinions of the procuratorate organs are correct and should be supported. It was separately found in accordance with law that Xu x was a recidivist. Accordingly, the judgment in accordance with law is that: The first instance judgment portion on sentencing of the three juvenile defendants, Shen xx, and Hu xx, and Xu x, is revoked; and the judgment is changed to sentence Shen xx to five years and six months imprisonment and a fine of 2000 yuan for robbery, with a decision to withdraw probation and enforce five years and six months imprisonment and a fine of 2000 yuan; Hu xx is sentenced to five years imprisonment and a fine of 2000 yuan for robbery; and Xu x is sentenced to four years imprisonment with a fine of 1500 yuan for robbery.
1. In handling cases of joint crimes by juveniles and adults, the juvenile and adult cases shall usually be separated for prosecution, but where the juvenile is a criminal gangs organizer or the principal offender in another joint crime, or where there are other circumstances making it unsuited for separate prosecutions, the case may be prosecuted without separation.
2. In handling cases of joint crimes by juveniles and adults, a lenient or mitigated punishment shall be given in accordance with law on the basis of the juvenile's position and role in the joint crime, and a comprehensive consideration of the juvenile's conduct, motives, age at time of the offense, where or not they were a first offender or a casual offender, their shows of repentance after the crime, their personal experience and upbringing, regular manner and other factors.
3. Crimes committed when a juvenile do not establish recidivism.
【Relevant Legal Provisions】
"People's Republic of China Criminal Law" articles 263, 25, 26, 61, 65 and 77; "People's Republic of China Criminal Procedure Law" articles 217, 225(2).