hao Chunhua never imagined that she would spend her 51st birthday, January 7, in a detention house awaiting her appeal. Four days previously, she had met her lawyer Xu Xin at the Hebei district detention house in the municipality of Tianjin.
Timid and confused, Zhao could not understand why the toylike guns that fire plastic bullets used on her balloon-shooting gallery could be deemed illegal firearms by the authorities.
On December 27, 2016, she was sentenced by a court in Tianjin to three and a half years in jail for illegal firearm possession. According to the verdict, Zhao, a single mother, had operated the illegal shooting gallery from August to October 2016.
However, after her retrial, she was handed a three-year suspended sentence by Tianjin Intermediate Court on January 26, 2017. Both sentences shocked the public and ignited widespread debate over the criteria used for defining guns.
On October 12, 2016, Zhao was arrested along with 13 other shooting gallery owners. According to a 2007 Ministry of Public Security (MPS) document on the identification of firearms, unlicensed guns able to fire bullets with a force equal to or above 1.8 joules per square centimeter are considered illegal firearms.
According to the court, the force of the six guns owned by Zhao ranged from 2.17 to 3.14 joules per square centimeter, exceeding the statutory standard. “My mother and I had no idea that these imitation guns we often see on stalls could be classed as firearms,” Zhao’s daughter told the media, adding that they were nothing but model guns firing plastic pellets and that she would lodge an appeal.
Zhao’s case is not unique. In April 2015, Liu Dawei, 19, was sentenced to life imprisonment by the Quanzhou Intermediate Court in Fujian Province for smuggling weapons. Liu had bought 24 imitation guns online from Taiwan. According to the court, 20 of these guns could cause injury powered by compressed gas, the mechanism for the guns.
Zhou Yuzhong, Liu Dawei’s lawyer, told NewsChina that in comparison with other similar cases in which heavy penalties were dished out to the defendants but didn’t manage to make the headlines, Zhao Chunhua was lucky to receive widespread public support.
He said that at least six people had been sentenced to life imprisonment for the same crime. He added that many gun crime defendants were military aficionados from all sorts of backgrounds such as college students, government employees and even some police officers and judges.
According to Chinese Criminal Law, anybody involved in gun crime including the manufacturing, selling, transportation and possession of firearms could be sentenced to three to 10 years in prison, through to life imprisonment or even the death sentence. Statistics from chinalawinfo.com, a law website run by Peking University, showed that gun crime hit 408 cases in the month of March 2013, up from 313 cases in October 2007.
Ji Jun, a researcher at the technological department of Nanjing Public Security Bureau, who had participated in the drafting of the document on firearms identification, pointed out that the 1.8 joule standard was set as the definition of a gun because at that level a weapon is able to cause serious injury or blindness if shot at a person’s eyes within a range of 30 centimeters.
This measure, however, has been questioned by many scholars since its introduction who have argued that it is way too low, unreasonable and vague, and to date no authority has given a clear description of the resulting force of injury. They added that virtually all hard objects including a self-made slingshot, a pencil or even the stub of a piece of chalk could cause more harm than a “gun” under this standard.
They said that because of the low standard, many people who bought, sold or possessed low-powered, toylike guns that pose no threat to social stability and security have been tried as criminals. This fills up courts and wastes police time.
Zhou Yuzhong told our reporter that the power of a gun lies in its capability to cause an injury from an intermediate and long distance. “In close proximity, a kitchen knife or a brick is sufficient to cause casualties,” he told our reporter.
On April 30, 2015 Liu Dawei shouted himself hoarse in court after hearing he was sentenced to life imprisonment. “Please shoot me with the guns I bought. If I die, I will plead guilty.”
Unlucky for Some
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.