Zhao Chunhua told media earlier that she was very unlucky to have been arrested at a time when shooting galleries were operating in amusement parks nationwide. “Nobody is aware that toy guns might be [classed as] real guns and over the years these shooting galleries have cropped up everywhere,” she said. “Even in the big city of Tianjin, nobody warned me that these guns would be a problem and I even had to pay regular management fees [such as rent and park management costs].”
Xu Xin argued that Zhao had no subjective intention to commit a crime because she did not realize that her shooting gallery guns were considered real guns, nor did she know it might be illegal to run a shooting gallery. What’s more, he continued, the 2007 Ministry of Public Security document on firearms identification is a recommended standard rather than a mandatory standard and it is not legal for the MPS to put the standard into force.
Xu said it is the role of legislative and judicial organs to interpret criminal law and that it is not appropriate for the MPS to establish the legal standard to define a gun: “The law enforcement body [MPS] established a law by itself before enforcing it, which is contrary to the basic principles of legislation.”
He added that courts using the internal document of MPS as the legal basis to judge whether a defendant is guilty or not, is a violation of both the Constitutional Law and the Criminal Law.
According to Si Weijiang, another lawyer representing Zhao Chunhua, the process that devised the 1.8-joule standard had never been made public and the government organs involved never performed their duty of informing the public. In addition to the public, many lawyers, police officers and even judges are ignorant of the standard.
In 2014, Lü Hongwu, former judge of a county court in Zhejiang Province, was given a three-year suspended prison sentence after being found to be in possession of two imitation guns. In 2015, Qian Weiqiang, a senior police officer in the city of Shaoxing, Zhejiang Province, was arrested for buying an imitation gun. He delivered a resignation to the police station, saying that if he was convicted, he would file a lawsuit against the MPS to request the repeal of the firearm standard.
Xu Xin told NewsChina that the verdict given to Zhao Chunhua was, technically speaking, fair and had, in fact, been handled with leniency. Strictly speaking, based on the number of guns she possessed, he said, Zhao could have been given a heavier penalty.
“The fault of the judge lies in the mechanical attitude that classed toy and imitation guns as real guns before delivering the sentence. The judgment is an obvious violation of common sense,” he said.
In the opinion of lawyer Zhou Yuzhong, the increasing number of people being sentenced for possessing replica firearms is partly because of the differences in gun identification between the Chinese mainland, Taiwan and Hong Kong. He said the threshold that defines a gun is way higher in Taiwan and Hong Kong than on the mainland.
Zhou has recently filed proposals to legislative bodies in Taiwan and Hong Kong, hoping they could ban the sale of imitation guns above 1.8 joules to the mainland to reduce the number of people who are jailed for gun smuggling.
Since March 2011, Zhou has delivered several proposals to the State Council, China’s cabinet and the National People’s Congress (NPC), China’s highest legislative organ, proposing to abolish the gun identification standard and give a legislative interpretation. By March 2014, 46 lawyers and 105 citizens had delivered similar proposals to the two organs. The NPC supplied feedback, saying that withdrawing MPS documents is beyond their jurisdiction and such a move should be handled by the State Council. The State Council, however, did not respond to the proposals.
Xu Xin suggested solving the problem from the perspective of jurisdiction, and asked for the introduction of a judicial interpretation to distinguish the standard of conviction and punishment for imitation guns and real guns.
Shen Zhanming, a senior official of the Shijiazhuang Anti-Smuggling Bureau, Hebei Province, suggested that the Supreme Court could make public several typical cases involving imitation guns to establish the basic rules for making judgments, to reduce the arbitrariness of judgments between different courts and to maximize the unity of law enforcement.
Fujian Higher Court has recently announced that it is not appropriate to sentence Liu Dawei to life imprisonment for weapons smuggling and a collegial panel will soon start a retrial.