In 2022, a health hospital in henan province doctor li moumou, in the patient's family chen moumou to provide proof of identity and case materials (later confirmed by the public security organs of the identity card evidence and medical record materials are forged), over the dosage of pethidine hydrochloride tablets 12 times to chen moumou prescribed 1070 tablets, the court of first instance judgement found that li moumou violation of prescribing of anaesthesia constitutes the crime of trafficking in narcotics, was sentenced to 7 years of imprisonment. Tang Jianbin acted as the defender of Li Moumou in the second trial, and through professional and meticulous defence, the court of second instance found that Li Moumou helped Chen Moumou's drug trafficking, and that he was an accessory to the crime and should be mitigated, and then the sentence was changed to 4 years' fixed-term imprisonment.
Re-sentencing logic
although the first and second trial judgement of Li Moumou found that the crime of drug trafficking, but before and after the two found that the path is very different, ‘this drug trafficking’ is not ‘the crime of drug trafficking’. The court of first instance found that Li Moumou to drug traffickers Chen Moumou trafficking narcotic drugs, that is, Li Moumou as drug traffickers Chen Moumou's superiors, constitute the crime of drug trafficking. The defence ‘first break’ the court of first instance ‘Li Moumou and Chen Moumou constitute the drug trafficking of the upper and lower family trading relationship,’ the logic of the decision, in the second trial ‘after the establishment of’ Li Moumou as Chen Moumou Drug trafficking crime in the common crime of helping offenders, is an accessory. Not only corrected the first instance legal determination error, but also for the defendant for mitigated sentencing results, maintain the rule of law and fairness and justice.
Specific persons, without profit, illegally providing narcotic drugs constitute the incriminating logic of the drug trafficking offence: providing assistance to others in drug trafficking constitutes a joint offence of drug trafficking.
Article 355 of the Criminal Law (the offence of illegally supplying narcotic drugs and psychotropic substances) stipulates that the specified persons for this offence are those who are legally engaged in the production, transport, management and use of narcotic drugs and psychotropic substances under State control. If a specified person provides narcotic drugs or psychotropic substances controlled by the State and capable of causing addiction to criminals who smuggle or traffic in drugs, he or she shall be convicted and punished in accordance with the provisions of Article 347 of this Law (the crime of smuggling or trafficking in drugs).
As a doctor with the ability to prescribe narcotic drugs, Li Moumou has the status of a specific person as stipulated in Article 355 of the Criminal Law (the crime of illegally supplying narcotic drugs and psychotropic substances).
The first-instance judgement held that
Li Moumou sold the narcotic drugs to his next trafficker Chen Moumou in violation of the law, and that this act of trafficking narcotic drugs separately constituted the crime of trafficking in narcotic drugs.
The judgement of second instance held that
"regarding the role played by Li Moumou in the drug trafficking process. It was found that Li Moumou provided narcotic drugs to drug trafficker Chen Moumou and helped Chen Moumou obtain narcotic drugs of the narcotic drug class, and he carried out the act of helping, which constituted a joint crime of drug trafficking with Chen Moumou, but he did not take part in the main criminal aspects of drug trafficking, and was a helper, and could be found to be an accessory to the crime."
Conviction logic analysis of
the first instance referee of the concept of ‘trafficking’ and ‘profit-making’ elements to grasp improper. Usually drug trafficking refers to ‘the act of selling drugs illegally with the knowledge that they are drugs, or buying them illegally with the purpose of selling them’, and it is clear that the provision of anaesthetics to drug traffickers by a specific subject does not belong to the abovementioned situation. The price of drugs into hospitals and other units, not special subjects of their own sales behaviour, in fact, the hospital is the main body of transactions with drug buyers. Therefore, Li Moumou prescribing this kind of narcotic drugs to drug traffickers, does not constitute a separate drug trafficking offence, but constitutes aiding and abetting the drug traffickers to achieve the purpose of the drug offence. This is just like article 350 of the criminal law, knowing that other people manufacturing drugs still sell drug-making substances to them, no longer illegal trade in drug-making substances crime, but for the manufacturing of drugs as a joint criminal offence. Therefore, Li Moumou and drug trafficker Chen Moumou does not constitute the relationship of drug sale of the upper and lower families, but with Chen Moumou constitute the joint criminal relationship of drug trafficking.
Entry logic on the outstanding value of the defence of
the first instance judgement will be Li Moumou independently identified as a drug trafficking crime, and does not evaluate the main accessory, obviously still based on the doctor Li Moumou trafficking in narcotic drugs to Chen Moumou's erroneous determination of the facts, resulting in Li Moumou and Chen Moumou is the sale of drugs of the upper and lower family relationship, not based on the provision of narcotic drugs and thus found to be a joint criminal offence of trafficking in narcotic drugs for Chen Moumou. After clarifying the first instance judge's error, the defence lawyer advocated distinguishing between principal and subordinate offenders, and establishing the status of the prescriber as a helper in the joint crime, and obtained the effective defence result of mitigating the punishment in the second instance, and reduced the sentence by 3 years and the fine by 10,000 yuan.
