Man in China Convicted for Selling Herb Seeds
Kong Biao, a man born in Jiangsu Province in 1985, was taken away by police in Foshan City, Guangdong, for selling herb seeds and was detained for 427 days.
In the first instance, the Nanhai District Court of Foshan City held that Kong's behavior constituted the crime of illegally buying and selling the original plant of a controlled drug and sentenced Kong to imprisonment. Kong appealed, and the case was sent back for retrial. During the retrial, the Nanhai District Procuratorate withdrew the prosecution against Kong.
Kong Biao's defense lawyer Dai Guoliang said that
"..the plant could not be used directly as a drug. In this case, the public prosecution agency did not have evidence to prove that Kong Biao sold seeds of a controlled plant. "
A lesson of this case is that the police did not professionally identify the relevant plant seeds when handling the case and failed to clarify the difference between industrial plant seeds and a controlled plant.
On November 2, 2019, Kong Biao received the "State Compensation Decision" made by the Nanhai District Court. He received nearly 160,000 RMB ($25,000) in compensation for infringement of personal freedom, but his request for 100,000 RMB ($15,000) in spiritual comfort compensation and a public apology was not supported. Kong said that the case caused harm to his mental health and reputation, and he has decided to apply for reconsideration of the compensation decision.
Born in 1985, Kong Biao has been engaged in the seed business in Suqian City for many years. He is also the VP of the Shuyang County Seed Association. Kong Biao said that he opened a store and an online shop to sell herb seeds. On March 22, 2019, Kong Biao was taken away from his store by police from Foshan City, Guangdong, and was detained on the same day. A month later, Kong Biao was approved for arrest.
According to the press of the Foshan Public Security Bureau, the first case in the country was released on June 25, 2019. The article stated that in November 2018, during the investigation of a case involving the cultivation and use of a controlled plant, the Nanhai Public Security Bureau seized three plants, 10 grams of leaves, and five seeds. After interrogation, the suspect confessed that the seeds were purchased through Kong's online shop.
The police handled the case immediately. At the end of March 2019, the police arrested Kong Mou and his wife, Wu Mouling, a suspected seller of plant seeds in Suqian City, Jiangsu Province. They seized approximately 15 kilograms of suspected plant seeds. According to Kong's confession, the police subsequently arrested Zhang (male, 61 years old), who had supplied Kong's family at the Shuyang County Farmer's Market, Suqian City, and seized about 300 kilograms of suspected plant seeds on the spot. Zhang confessed that he purchased his herb seeds from Lunan Grain and Oil Exchange Market in Linyi City, Shandong Province. The police immediately went to the Lunan Grain and Oil Trading Market to investigate three shops selling plant seeds. On May 19, in conjunction with the Linyi Anti-drug Department of Shandong, they carried out a raid and searched six shops suspected of selling plant seeds.
Kong Biao recalled that a few years ago, he saw the plant, a kind of Chinese medicine, in the medicinal material market in other places. He believes that he sells plant seeds from an industrial fiber variety, not a drug-type plant, so he is not guilty.
In October 2019, the Nanhai District Procuratorate prosecuted the Kong Biao case. The Nanhai District Procuratorate alleges that starting from January 2018, Kong Biao repeatedly purchased 197.5 kg of inactivated plant seeds from Zhang for 10 RMB per kilogram and sold them through the online store and shops he operated at prices ranging from 9.6 RMB per 30 seeds, 27.44 RMB per 20 seeds, 29.4 RMB to 108.3 RMB per 100 grams, and 60.76 RMB per 250 grams.
In March 2020, the Nanhai District Court made a first-instance judgment on this case. The Nanhai District Court stated that after investigation, Kong Biao had repeatedly purchased 170 kilos of unactivated plant seeds from Zhang at 5 RMB per kilo since January 2018 and sold them through his online store and shop. On March 22, 2019, the police captured Kong and his wife and seized 1,5304.9 grams of plant seeds. The Court held that Kong illegally bought and sold plant seeds of a controlled drug in large quantities, and his behavior constituted the crime of illegally buying and selling the original plant of a controlled drug. Kong was sentenced to imprisonment for one year and two months and fined 12,000 RMB (18,000 USD).
Kong Biao refused to accept the judgment of the first instance and filed an appeal. In May 2020, the Foshan Intermediate People's Court made a criminal ruling on this case. It is believed that the facts of Kong Biao's crime of illegally buying and selling the seeds of the original plant of a controlled drug were unclear, and the evidence was insufficient. After discussion by the Court's adjudication committee, the Court revoked the first instance judgment made by the Nanhai District Court and sent the case back to the Nanhai District Court for a new trial.
In July 2021, the "Criminal Ruling" issued by the Nanhai District Court showed that during the retrial process of the Nanhai District Court, the Nanhai District Procuratorate filed a report with the Nanhai District Court on July 8, 2021, on the grounds of unclear facts and insufficient evidence. The report withdrew the prosecution against Kong. The Nanhai District Court held that the Nanhai District Procuratorate's application for withdrawal of the prosecution had sufficient grounds and complied with the law and allowed the Nanhai District Procuratorate to withdraw the prosecution against Kong Biao. When the case was in retrial, Dai Guoliang, Kong's defender, told The Paper that during the retrial, the Nanhai District Court had opened a trial to hear the case, and the Nanhai District Procuratorate later withdrew the prosecution.
Dai said that one of the lessons of the case is that the relevant departments did not clarify whether the industrial fiber plant can be grown or sold online. The Nanhai police did not identify the relevant plant seeds professionally and failed to clarify the difference between the industrial fiber plant and a controlled drug when handling the case.
The plant is a kind of industrial crop, which has many uses and can be used as medical materials, textile materials, papermaking materials, etc. At present, China has legalized some places to grow the fiber variety, and online shopping platforms can still sell its seeds.
Dai said that the plant has no drug use value and cannot be taken directly as a drug. Foreign and Domestic Anti-Drug Provinces (such as Yunnan Province and Heilongjiang Province) classify the plant according to actual conditions and subdivide it into industrial fiber varieties and medical material varieties. The active-compound content of industrial fiber varieties is less than 0.3%, and the active-compound content of drug-type plants is greater than 0.3%. The seeds that Kong sold came from industrial fiber varieties, and the public prosecutor had no evidence to prove that Kong Biao sold a drug-type plant.
Dai noted that the public prosecutor failed to identify that the active-compound level in the seeds was above the 0.3% threshold and could not prove that the seeds came from a controlled plant or contained its ingredients. The seeds come from industrial fiber varieties, and the active compounds contained in the plant do not produce the characteristic effect.
Since being taken away by the police on March 22, 2019, and released on May 21, 2021, Kong Biao was detained for a total of 427 days.
In August 2021, Kong applied compensation to the Nanhai District Court, demanding 1,6059.9 RMB for infringement of personal freedom, 5,000 RMB for the loss of confiscated seeds, 100,000 yuan for spiritual comfort, and a public apology.
On November 2, Kong Biao received the "State Compensation Decision" issued by the Nanhai District Court. The decision shows that the Nanhai District Court held that Court should pay the compensation following the "Notice of the Supreme People's Court on the Application of the 2020 National Average Daily Wage Standards for National Workers in Making National Compensation Decisions". The claimant Kong Biao's compensation for violation of personal freedom was 15,9313.7 RMB (373.1 RMB × 427 days). Kong Biao requested 160059.9 RMB in compensation for infringement of personal freedom. The Court supported 159313.7 RMB but did not support the excess.
In response to Kong Biao's request for compensation of 100,000 RMB for spiritual comfort, the Nanhai District Court held that the "Market Access Negative List (2018 Edition)" issued by the National Development and Reform Commission and the Ministry of Commerce on December 21, 2018, stipulated that the planting, processing, and seed management of the plant are matters of "no specific plant planting and processing or the production, management, testing, import and export of seeds and seedlings without obtaining a license or qualification." According to evidence from the criminal case involved, Kong Biao publicly sold plant seeds online without permission. There were promotional texts such as "Indian plant variety" and "you can feel the effect" in the chat records, and the seeds sold may be used illegally. Kong Biao's behavior is neither in compliance with the above provisions nor in violation of Public Order and Good Customs. Article 3 of the "Interpretation of the Supreme People's Court on Several Issues concerning the Applicable Law for the Trial of State Compensation Cases to Determine the Responsibility for Mental Damage" Article 3. In one of the circumstances specified in Article 17, where the state should be liable for compensation following the law, the infringement may also be deemed to have caused a person's mental damage. However, the compensatory authority has evidence to prove that the citizen has no mental damage or that the mental damage is in violation. According to the provisions of "except for public order and good customs," it is not appropriate to determine Kong Biao's mental damage in this case.
In addition, although the media have reported the investigation of the criminal case involved in this case, the Court did not use Kong Biao's real name in the report, and the report time was before the procuratorate initiated the prosecution. There was no causal relationship with the Court's first-instance criminal judgment. To sum up, Kong Biao's request for mental damage is not justified, and the Court does not support it.
Because the request of Kong does not fall within the scope of the review of state compensation cases, the Nanhai District Court would not review and deal with this case in this case.
"I am depressed." After receiving the above-mentioned decision, Kong Biao's 100,000 RMB spiritual comfort request and a public apology were rejected by the Nanhai District Court. He has decided to apply for reconsideration.
Conclusion:
Is the plant used in ancient times in China the same thing as the plant used recreationally in the West?
From a geographical point of view, the industrial fiber plant and the drug-type plant are not the same plants.
The Chinese have legally grown the fiber plant for thousands of years, including using its fiber to weave cloth or spin threads, make ropes, weave fishing nets, and make paper. More than ten kinds of fiber and cooking oil varieties can also be extracted for beneficial uses in chemical, medicine, construction, etc.
The production of the drug-type plant grown in China (for pharmaceutical use) is also high, but the Chinese government strictly controls it. In China, illegal trafficking in the plant is a felony. A few years ago, actor Ke Zhendong and Jackie Chan's son Jaycee Chan were arrested and punished for using the plant, which became a sensation in the news.
So in short, growing or obtaining the drug-type plant is strictly prohibited, and there isn't any sign that China will legalize it.
References & Resources:
The Paper, Shengran S. “Plant seeds are not a controlled drug! Man convicted for selling plant seeds receives state compensation of 160,000 Yuan”
