On the afternoon of January 5, 2023, on the train, I received the news that the second instance of the Fan Qiang case in Guizhou had been significantly overturned, and his sentence was reduced by a total of 9 and a half years.
At that moment, I was very emotional, and even my eyes were a little moist.
First instance: Fan Qiang was sentenced to 11 and a half years for the crime of bribery.
Fan Qiang, born in April 1975, is from Xingren City, Qianxinan Buyi and Miao Autonomous Prefecture, Guizhou Province. He used to do “used car” business, and later became a financial intermediary, mainly helping Xingren City, a county-level city, to raise funds and repay the government platform enterprise debts that were due.
In January 2022, the Xingren City Supervision Commission detained Fan Qiang on suspicion of the crime of bribery.
After the Supervision Commission finished the investigation, it handed the case over to the procuratorate.
The Xingren City People’s Procuratorate alleged:
From March 2019 to June 2021, in order to solve the government’s debt problem, the Xingren City government asked Fan Qiang to help solve the loan financing, and discussed with the three government platform companies of Xingren City, Guizhou Donghu New Urban Construction Investment Co., Ltd. (hereinafter referred to as: Donghu City Investment), Guizhou Hengchuang Investment Development Co., Ltd. (hereinafter referred to as: Hengchuang Investment), and Guizhou Fangmaping Cultural Tourism Investment Co., Ltd. (hereinafter referred to as: Fangmaping Tourism Investment), to receive loans and pay interest.
“In order to avoid the provisions of national laws on high interest rates for financing, the method of signing an intermediary contract to pay financing service fees to achieve high interest rates for financing”, Fan Qiang carried out 10 financing businesses with the aforementioned three companies, with a financing amount of 348.7 million yuan. He obtained 141 million yuan in financing service fees for the investors, and Fan Qiang received 30.5543 million yuan from it.
The procuratorate also alleged that in order to smoothly carry out financing business, Fan Qiang repeatedly bribed Tan Linbo, the then chairman of Fangmaping Tourism Investment Company, Tian Maosheng, a member of the board of directors of Donghu City Investment Company, Yang Wen, the deputy general manager, and Lan Jun, the person in charge of the financing department of Hengchuang Investment Company. A total of 246,000 yuan and 2 bottles of Moutai wine were bribed.
These 246,000 yuan were actually 170,000 yuan in cash, plus the depreciation of two used cars, one worth 57,000 yuan and the other worth 19,000 yuan.
Fan Qiang also said that he did not actively send the money and used cars, but was demanded by the above-mentioned people in various names. In the business of lending money to the government, he was actually the “Party A”, and the local party and government leaders took the initiative to ask him for help, asking him to find money to “plug” the “holes” of the local government. The persons in charge of these platform companies also had no decision-making power on how much money to borrow, how long to borrow, and what the interest rate was.
After being detained for a year and a half, in June 2023, the Xingren City Court made a first-instance judgment.
The judgment result was:
Fan Qiang was convicted of the crime of forging and selling official documents and certificates of state organs, and was sentenced to 1 and a half years in prison, with a fine of 20,000 yuan; he was convicted of the crime of bribery and sentenced to 11 and a half years in prison, with a fine of 1.5 million yuan. The two crimes were combined and decided to be executed for 12 years in prison, and a fine of 1.52 million yuan.
The total amount of bribery was 250,000 yuan, and he was sentenced to 11 and a half years!
Second instance: Fan Qiang’s sentence was changed, and his total sentence was reduced by 9 and a half years.
I have been involved in various criminal cases, including economic crimes and duty-related crimes, for more than ten years.
As far as I can see, in crimes such as bribery and accepting bribes, although the state has repeatedly proposed “investigating bribery and accepting bribes together”, the bribing party is often lightly punished, and most of them are not transferred to judicial prosecution; a few that are transferred are mostly given a suspended sentence – even if the amount of bribery reaches tens of millions of yuan; very few will be severely punished.
After Fan Qiang’s first-instance judgment came down, I asked no less than 10 senior legal professionals, including lawyers, prosecutors, judges, and officials from the Discipline Inspection Commission and Supervision Commission.
I asked them to guess how many years they would be sentenced for bribing 250,000 yuan?
Most said a suspended sentence, at most one or two years; some said they would be exempt from criminal punishment.
When I said that he was sentenced to 11 and a half years, everyone was very, very surprised, even shocked!
The reason given by the Xingren City Court was that because of Fan Qiang’s bribery, the Xingren City government platform company gave high financing service fees – that is, borrowed 348.7 million yuan and gave 141 million yuan in financing service fees, thus causing “significant losses to national interests”.
The “Criminal Law” stipulates: “Those who commit the crime of bribery shall be sentenced to imprisonment of not more than five years or criminal detention; those who seek improper benefits through bribery, if the circumstances are serious, or cause significant losses to national interests, shall be sentenced to imprisonment of not less than five years but not more than ten years; if the circumstances are particularly serious, shall be sentenced to imprisonment of not less than ten years or life imprisonment, and may be sentenced to confiscation of property.”
The “Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Corruption and Bribery” also stipulates that “for the purpose of seeking improper benefits, bribing state functionaries, and causing economic losses of more than five million yuan”, should be recognized as “causing particularly significant losses to national interests”.
The Xingren Court thus believed that Fan Qiang belonged to “causing particularly significant losses to national interests”, and therefore “the circumstances were particularly serious”.
The Xingren Court also ruled that the 30 million yuan in financing service fees that Fan Qiang received was “criminal proceeds” and “should be confiscated and turned over to the state treasury according to law”.
Why did the Xingren City government ask Fan Qiang to help borrow those more than 300 million yuan? How long were those loans borrowed for? What was the interest rate or financing service fee? Was it because Fan Qiang bribed the managers of the four government platform companies that they paid out the 141 million yuan in “financing service fees”? And why did Xingren City “handle” Fan Qiang like this?
Fan Qiang’s side said:
“The Xingren Municipal Party Committee and Municipal Government (the then leaders) proactively contacted Fan Qiang and the business contacts of the fund providers dozens of times on the grounds of preventing explosions, poverty alleviation, and filling warehouses, and they did not hesitate to repeatedly visit and beg, and even directly signed guarantees in their own names, and used Fan Qiang to conduct short-term fund borrowing to solve the urgent need for funds… The ten short-term fund borrowings recognized in the judgment of the Fan Qiang case were all contacted by the then leaders of the Xingren Municipal Party Committee and Municipal Government to Fan Qiang or the fund providers, and proactively requested loans.”
His partner, the legal representative of an investment guarantee company, told me that the ten short-term fund borrowings recognized in the judgment of the Fan Qiang case were all proactively sought by the Xingren City government departments to Fan Qiang and her, “These all belong to ‘bridge funds’, with a cycle of 10-15 days and an interest rate of 3‰-5.5‰ per day, which was the normal ‘market price’ at the time. And because this is ‘bridge funds’, the interest rate level cannot be measured according to the general lending interest rate level.”
“Under normal circumstances, 347.7 million yuan of ‘bridge funds’ would never generate more than 100 million yuan in interest, but because the Xingren City borrower repeatedly defaulted and long-term defaulted, and also proactively proposed to increase the interest rate. If 350 million yuan of funds are all calculated at a 15-day cycle and an interest rate of 5.5‰, the interest would be only more than 28 million yuan, less than 30 million yuan. But the Xingren government defaulted many times, and repeatedly defaulted. Sometimes it was agreed to borrow for ten days and a half months, and the longest was extended to three months before repayment, of course the interest was very high. As our fund intermediary, we do not want them to default or postpone. Because we also have to work for the real investors and explain, and even have to pay the interest for those days in advance. The investors also do not want the people who borrow money to default, which means that the funds have already produced risks and also delayed the efficiency of use.”
Some written materials I saw were also quite interesting:
In April 2019, Donghu City Investment Company borrowed 55 million yuan through Fan Qiang for a term of 12 days. After failing to repay the debt when it was due, the Xingren City government issued a special meeting minutes (Renfu Zhuan Yi {2019} No. 129), agreeing to extend the repayment, and the daily interest rate was increased from the original 3‰ to 5‰.
On June 5, 2020, in a 40 million yuan loan obtained by Fangmaping Tourism Investment Company, Wang Suihong, the then Standing Committee Member of the Xingren City Party Committee and Deputy Mayor, signed a “Irrevocable Joint Guarantee Commitment” in his personal name.
The content of the commitment is: “(Wang Suihong) provides a guarantee scope for the principal of the loan (subject to the actual amount of the loan), interest, liquidated damages, and litigation costs and attorney fees incurred by your party (the fund lender, the reporter’s note) to realize the creditor’s rights (calculated at 3% of the litigation amount), etc.”
At the same time, I also called and sent text messages to 6 leaders of the Xingren City Party Committee and Municipal Government at the time, hoping to get a response. But they basically ignored me.
This includes Fang Jun, the then Secretary of the Xingren City Party Committee, Fang Xianhong, the then Mayor of Xingren City, Feng Zijian, the then Deputy Secretary of the Xingren City Party Committee, Yang Rui, the then Standing Committee Member of the Xingren City Party Committee and Deputy Mayor, Wang Suihong, the then Standing Committee Member of the Xingren City Party Committee and Deputy Mayor, and Wang Changgui, the then Deputy Mayor of Xingren City.
What attracts me more attention in the Fan Qiang case is:
If it is said that because of Fan Qiang’s bribery, “significant losses to national interests” were caused, then the four bribe takers are not even more sinful?
According to the “Criminal Law” and the “Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Corruption and Bribery”, if the amount of bribes accepted is more than 30,000 yuan but less than 200,000 yuan, it belongs to “a relatively large amount”, and shall be sentenced to imprisonment of not more than three years or criminal detention, and shall be fined; and if the amount of bribes accepted is more than 10,000 yuan but less than 30,000 yuan, but “causes a bad influence or other serious consequences”, it should also be recognized as “other more serious circumstances”, and shall be sentenced to imprisonment of not more than three years or criminal detention.
The specific situations of the four bribe takers are:
Tan Linbo received 50,000 yuan in cash and a used car worth 57,000 yuan from Fan Qiang.
Tian Maosheng received 70,000 yuan in cash and a used car worth 19,000 yuan from Fan Qiang.
Lan Jun received 40,000 yuan in cash from Fan Qiang.
Yang Wen received 10,000 yuan in cash and 2 bottles of Feitian Moutai wine from Fan Qiang.
From this, it can be seen that Tan Linbo, Tian Maosheng, and Lan Jun all accepted bribes of more than 30,000 yuan, which belongs to “a relatively large amount”, and should be sentenced to imprisonment of not more than three years or criminal detention, and shall be fined.
Yang Wen accepted bribes of more than 10,000 yuan but less than 30,000 yuan. However, referring to the Xingren Court’s judgment on Fan Qiang, it also belongs to “causing a bad influence or other serious consequences”, and should also be recognized as “other more serious circumstances”, and should be sentenced to imprisonment of not more than three years or criminal detention.
But the fact is that of these 4 people, except for Tian Maosheng, the other 3 were not held accountable, and even one person is still an official.
Tian Maosheng was found to have accepted bribes from 8 people, totaling more than 600,000 yuan – this includes the 70,000 yuan from Fan Qiang, plus a used car worth 19,000 yuan.
In December 2022, Tian Maosheng was therefore convicted of the crime of accepting bribes by the Xingren Court and sentenced to 3 years in prison; he was convicted of the crime of dereliction of duty by personnel of state-owned companies and sentenced to 6 months in prison. After the two crimes were combined, he was sentenced to 3 years and 2 months in prison. It is worth noting that this “crime of dereliction of duty by personnel of state-owned companies” committed by Tian Maosheng has nothing to do with Fan Qiang.
I also contacted Lan Jun, Yang Wen, and Tan Linbo.
Lan Jun and Yang Wen said that they had respectively resigned from Hengchuang Investment Company and Donghu City Investment Company.
Tan Linbo did not answer my phone calls and did not reply to my messages. In the Fan Qiang case, Tan Linbo appeared as a witness, and he introduced himself as the deputy general manager of Fangmaping Tourism Investment Company. However, the industrial and commercial registration data shows that as of January 7, 2024, Tan Linbo was still the legal representative, chairman and general manager of Fangmaping Tourism Investment Company.
I also contacted the Xingren City Procuratorate, which handled the Fan Qiang bribery case and the Tian Maosheng bribery case. A staff member told me that they could not find information about the cases of Tan Linbo, Lan Jun, and Yang Wen in the internal system of the procuratorate.
Regarding this judgment, Fan Qiang was not satisfied and filed an appeal.
His second-instance defense lawyers were two well-known criminal defense lawyers, namely Zhou Ze, the founder of Beijing Zebo Law Firm, and Shen Yachuan, a senior partner of Shanghai Huiye Law Firm.
On August 4, 2023, I first published this story on the Economic Observer/Economic Observer website. On August 19, Southern Weekend; on August 25, Yicai Daily, also made long reports respectively.
Prior to this, lawyers Zhou Ze and Shen Yachuan also actively spoke out for the Fan Qiang case on social media. The article “Xingren Is Not Benevolent” written by lawyer Zhou Ze, and the article “The Honest Briber” written by lawyer Shen Yachuan, had a great influence.
The second-instance case went to the Qianxinan Prefecture Intermediate People’s Court.
At first, the Qianxinan Prefecture Intermediate Court stated that the second instance would be tried in open court. And, the court appointed Vice President Yang Zaiguan as the presiding judge of the second instance.
I also planned to go to Qianxinan Prefecture to attend the hearing of this case when the second instance was opened.
As a result, on January 4, 2024, I received the news that the next day, the judgment of the Fan Qiang case would be announced, and it would be announced in the detention center where he is currently detained.
I was a little surprised and guessed whether the second-instance result would be “remanded for retrial”? Fan Qiang’s lawyer guessed that it would either be remanded for retrial or be changed.
The next day, January 5, 2024, the second instance was pronounced.
The result was somewhat beyond our expectations.
In terms of the most controversial sentencing for the crime of bribery of Fan Qiang, the Qianxinan Prefecture Intermediate Court believed that: the first-instance court’s “determination that the Xingren City government platform company paid high financing service fees, resulting in particularly significant losses to national interests, was caused by Fan Qiang’s bribery was not sufficiently supported by evidence, so the sentencing was too heavy“, and therefore “was amended according to law”.
The Qianxinan Prefecture Intermediate Court finally ruled:
Fan Qiang was convicted of the crime of bribery and sentenced to 1 year and 2 months in prison, with a fine of 100,000 yuan; he was convicted of the crime of forging and selling official documents and certificates of state organs and sentenced to 1 year and 6 months in prison, with a fine of 20,000 yuan. The two crimes were combined and decided to be executed for 2 years and 6 months in prison, and a fine of 120,000 yuan.
Compared with the first-instance sentence, in terms of the crime of bribery, Fan Qiang’s sentence was reduced by 10 years and 4 months. After the two crimes were combined, the total sentence was reduced by 9 years and 6 months, and the fine was reduced by 1.4 million yuan.
At the same time, the first-instance court believed that the 30 million yuan in financing service fees that Fan Qiang received was “criminal proceeds” and ruled that “it should be confiscated and turned over to the state treasury according to law”, which was also rejected by the Qianxinan Prefecture Intermediate Court. Therefore, it is equivalent to Fan Qiang reducing his sentence by 9 and a half years, and also reducing a total of more than 31 million yuan in economic losses.
The difficulty of correcting errors in the second instance of criminal cases
As of today, I have not met Fan Qiang himself, but I have seen his appearance in the photos given to me by his family.
In October 2021, Fan Qiang and his daughter, who was less than three years old at the time. Three months later, he was taken away and detained by the Xingren City Supervision Commission. Photo: Provided by Fan Qiang’s family
At that moment when I heard the news that his total sentence was reduced by 9 and a half years, I was very emotional, and even my eyes were a little moist.
I was emotional because this unfamiliar middle-aged man “won” back 9 and a half years of his life; his children and his family had 9 and a half more years to spend with him freely.
I was emotional because all of this did not come easily, and even a little “lucky”.
I have been engaged in news work for more than 20 years, and I have also been paying attention to and reporting on rule-of-law events for more than ten years. I know how low the rate of second-instance sentence changes is in Chinese cases, especially criminal cases.
According to the main data of judicial trial work of the national courts released by the Supreme People’s Court, it can be roughly inferred that in the first half of 2023, the error correction rate (i.e., sentence change or remand for retrial) of criminal cases in China was about 1.6%, less than 2%. The data of previous years are also basically close to this.
In other words, in every 100 criminal cases, less than 2 will be corrected in the second instance.
Therefore, I have also seen that many top lawyers generally do not accept the second-instance defense of criminal cases, even if the lawyer’s fees can be given up to 3 million yuan, 5 million yuan, or even higher.
In the past few years, the sentence changes in the second instance of criminal cases that I have reported or assisted in reporting are also few and far between.
I can only remember these few.
In May 2019, Yang Xingyuan, a businessman from Zhejiang, was sentenced by the Gao’an City Court of Yichun, Jiangxi Province, in the first instance for the crimes of fraud and bribery of non-state functionaries, and was sentenced to 15 years in prison for the two crimes.
In October 2019, the Yichun Intermediate Court directly changed the sentence and acquitted Yang Xingyuan.
Do you know how low the proportion of acquittal is in criminal cases in China?
I have checked the judicial statistics bulletins of the Supreme People’s Court in recent years.
In 2019, there were 1,661,235 defendants in China, and the judgments in criminal cases took effect, of which 1,388 were acquitted, which is equivalent to only 8.4 people out of 10,000 defendants being acquitted.
In 2020, 1040/1528034, which is equivalent to only 6.8 people out of 10,000 defendants, that is, less than 7 people, being acquitted.
In 2021, 894/1715922, which is equivalent to only 5.2 people out of 10,000 defendants being acquitted.
In 2022, 631/1431585, which is equivalent to only 4.4 people out of 10,000 defendants being acquitted.
Have you noticed?
In recent years, the acquittal rate of our criminal cases has been getting lower and lower…
The Li Ning case.
In January 2020, Li Ning, an academician of the Chinese Academy of Engineering, was sentenced to 12 years in prison by the Songyuan City Intermediate People’s Court of Jilin Province for the crime of corruption.
In December 2020, the Jilin Provincial High Court changed the sentence in the second instance, and Li Ning’s sentence was 10 years.
The Gao Xianhua and Meng Xiangsong case.
In March 2021, Gao Xianhua, an entrepreneur from Hubei, and his subordinate Meng Xiangsong, were sentenced to 6 months in prison by the Jizhou District Court of Hengshui, Hebei Province, in the first instance for the crime of forging state seals.
In July 2021, the Hengshui Intermediate Court changed the sentence in the second instance, and Gao Xianhua and Meng Xiangsong were both exempt from criminal punishment.
In addition, there is a bizarre case, the Yang Gang case, where the person has been “out” for nearly 2 years, but there is still no second instance result.
Guangdong Foshan private entrepreneur Yang Gang sued the administrative case and won against the Nanhai District Public Security Bureau of Foshan City, but as a result, he was criminally investigated by the Nanhai District Public Security Bureau on suspicion of picking quarrels and provoking trouble, and he was arrested.
In August 2021, the Nanhai District Court sentenced Yang Gang to 1 year and 2 months in prison for the crime of picking quarrels and provoking trouble.
Yang Gang was not satisfied and appealed.
On March 17, 2022, according to the judgment of the first instance court, Yang Gang was released after serving his sentence and regained his freedom.
But as of today, January 7, 2024, the second instance result of Yang Gang, the Intermediate People’s Court of Foshan City, has not yet been pronounced…
In addition, the Cao Chenggang case also left a deep impression on me.
In December 2016, Cao Chenggang, a calligraphy and painting merchant, was sentenced by the Beijing No. 1 Intermediate People’s Court in the first instance, found guilty of contract fraud, and sentenced to 12 years in prison.
Cao Chenggang appealed.
In the summer of 2017, the second instance of the Cao Chenggang case was held in the Beijing High Court. I attended this case.
In April 2018, the Beijing Higher People’s Court ruled in the second instance, dismissing Cao Chenggang’s appeal and upholding the original judgment.
Cao Chenggang and his family did not give up.
In January 2022, nearly 4 years after the second instance, the Beijing Municipal Procuratorate issued a “Criminal Appeal Review Notice” (Jing Jian Shen Jian Xing Shen Fu Tong [2022] No. 21) to express its position on the case:
“The original trial’s determination of facts was unclear, the evidence was insufficient, and it was impossible to rule out reasonable doubt in determining that the original defendant Cao Chenggang and He Xin constituted the crime of contract fraud. In order to safeguard judicial justice, this court decided to issue a ‘Retrial Procuratorial Suggestion’ to the Beijing Higher People’s Court, suggesting that the Beijing Higher People’s Court initiate a trial supervision procedure to correct the case in accordance with the provisions of Article 254 of the ‘Criminal Procedure Law of the People’s Republic of China.'”
This is equivalent to the Beijing Municipal Procuratorate, which was responsible for the public prosecution during the second instance, admitting that it was wrong.
Unexpectedly, a few months later, the Beijing Higher People’s Court rejected the Beijing Municipal Procuratorate’s suggestion to “safeguard judicial justice” and initiate a retrial to “correct” the case.
As far as I know, despite this, Cao Chenggang and his family are still working hard to appeal and have not given up…
Written at the end
In recent years, when I have been in contact with the families of some criminal case defendants, I always “pour cold water” on them:
The possibility of being found not guilty is very small, and the possibility of a second instance reversal is even smaller, even if you have put in a lot and a lot of effort.
At the same time, I still want to say:
In criminal cases, finding a reliable and responsible good lawyer is very important. If you feel that there is indeed injustice, and the injustice is significant, it is equally important to seek news media to report it publicly.
Of course, finding a good lawyer and reporting through the media, these may not necessarily be “useful”; but if you don’t make these efforts, then there may be even less hope…
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