Essentials of Judgment
1. The core landmark in a scenic area shall be deemed as "a place of historical and cultural interest under the state protection" according to Article 324 of the Criminal Law. Any destructive activity carried out on the world natural heritage in the core scenic area such as rock nailing, which seriously damages the naturalness, primitiveness, integrity and stability of the natural heritage, with comprehensive consideration of characteristics of relevant geological heritage, and the severity of the damage, etc., can be determined as "in serious circumstance" of intentional damage to the place of historical and cultural interest under state protection.
2. Where a specialized issue in a criminal case needs to be appraised but there is no appraisal institution, a person with the expertise can be designated or appointed to give a report on the specialized issue in the case, which may be adduced as evidence in the criminal procedure.
Around April 2017, the accused, ZHANG Yongming, MAO Weiming, and ZHANG Lu contacted on WeChat and agreed to go to the Sanqing Mountain National Park to climb the "Gigantic Python Rising in the Mountain" (also known as the Python Peak). At around 4 am on 15 April 2017, ZHANG Yongming, MAO Weiming, and ZHANG Lu brought an electric drill, pitons (expansion bolts made of stainless steel), a hammer, ropes and other tools to the foot of the Python Peak. The accused ZHANG Yongming climbed first, and the other two defendants MAO Weiming and ZHANG Lu pulled the ropes to protect ZHANG Yongming's safety. When climbing, ZHANG Yongming hammered pitons in dangerous places, drilled holes into the rock mass with an electric drill, drove the pitons into the holes with a hammer, tightened them with a wrench, and then attached the rope to the pitons. In this way, ZHANG Yongming climbed to the top of the Python Peak at about 6:49 am in the morning. MAO Weiming followed ZHANG Yongming all the way to protect him by pulling the rope, and climbed to the top of the Python Peak at around 7:00 am along the rope laid by ZHANG Yongming. At the top of the Python Peak, ZHANG Yongming gave extra tools to MAO Weiming, who got down from the Peak along the rope, took extra tools back to the hotel, and then returned to the Python Peak. When climbing for more than 10 meters on the Python Peak, MAO Weiming was noticed by the staff of the Sanqing Mountain Management Committee, and was controlled by the police after getting down from the Python Peak. When ZHANG Yongming and MAO Weiming began to climb, ZHANG Lu was pulling the rope to protect them. Then, ZHANG Lu returned to the hotel to collect a drone and went back to the Python Peak. She reached the top of Python Peak at around 7:30 am with the rope laid by ZHANG Yongming, and filmed by the drone on the top. Under the persuasion of the staff, ZHANG Lu and ZHANG Yongming reached the foot of the Peak at around 9:00 am and 9:40 am, respectively, and were put under control by the police. Through on-the-spot investigation, ZHANG Yongming hammered 26 pitons into the rock mass of the Python Peak. According to the Expert Opinions, the acts of the three defendants have caused serious damage to the geological heritage site of the Python Peak.
The Intermediate People's Court of Shangrao City of Jiangxi Province rendered the criminal judgment (2018) Gan 11 Xing Chu No. 34 on December 26, 2019 that: Ⅰ. The accused ZHANG Yongming is sentenced to one-year imprisonment and fined 100,000 Yuan for the crime of intentional damage to the place of historical and cultural interest. Ⅱ. The accused MAO Weiming is sentenced to six-month imprisonment with one-year probation, and fined 50,000 Yuan for the crime of intentional damage to the place of historical and cultural interest. Ⅲ. The accused ZHANG Lu commits the crime of intentional damage to the place of historical and cultural interest and is exempt from criminal punishment. Ⅳ. Criminal tools being detained in the case, including four mobile phones, a drone, two intercom devices, rock-climbing ropes, a hammer, an electric drill and pitons, etc., are confiscated. After announcement of the judgment, ZHANG Yongming instituted an appeal. Jiangxi High People's Court made the criminal verdict (2020) GAN XING ZHONG No. 44 on May 18, 2020, dismissing the appeal lodged by the defendant ZHANG Yongming and upholding the original judgment.
Grounds for Judgment
According to the valid judgment passed by the court, core matters in the case are:
Ⅰ. About Evidence Admissibility
In this case, the act of the three accused of hammering 26 pitons has caused serious damage to the Python Peak. Currently, there is no statutory judicial authentication and appraisal institution across the nation can appraise the degree of the damage. However, whether it constitutes serious damage is the key to whether the act of the defendants constitutes a crime. According to Article 87 of the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China, "Where a specialized issue in a case needs to be appraised but there is no statutory judicial authentication and appraisal institution, or such designated organs by law or judicial interpretations, a person with expertise can be designated or appointed to conduct such appraisal, and the appraising report can be used as reference for conviction and sentence. …If, upon notification by the people's court, the appraiser refuses to testify in court, the appraising report may not be used as reference for conviction and sentence." Therefore, it is sensible, reasonable and lawful to appoint those with expertise to appraise whether the act of hammering 26 pitons constitutes serious damage to the Python Peak. The four geoscience experts appointed in this case all have been engaged in geoscientific research for a long time with professional knowledge on geoscience, and have published a large amount of papers or literature on geoscience or presided over key research projects on geoscience, and thus are capable of appraising the specialized issue in the field of geoscience to measure the severity of the damage to the Python Peak. All the four experts are "persons with expertise", and are entrusted by the investigating organ with the authority to provide explicit Expert Opinions on the severity of the damage to the Python Peak from professional perspectives based on their expertise, field survey and evidence examination. Through in-depth discussion and analysis, all of them signed on the report. And, upon the notice by the court, two of the four experts appeared in court as appraisers, gave a detailed explanation of the formation of the Expert Opinions, and were cross-examined by both the prosecuting and the defending parties as well as the judges. The Expert Opinions have clear conclusions, lawful procedure and strong credibility. To sum up, the Expert Opinions in this case completely conform to the legal requirements from the substance to the procedure, and can be adduced as reference for conviction and sentence from the perspective of evidence, according to Article 197 of the Criminal Procedure Law concerning expert opinions, and Article 87 of the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China concerning the production of an appraising report by a person with specialized knowledge.
Ⅱ. About Damage
The Sanqing Mountain was listed as one of the national key scenic areas with the approval by the State Council in 1988, and incorporated into the List of the World Natural Heritage in 2008 and into the List of the UNNESCO Global Geoparks in 2012. As the core landmark of the Sanqing Mountain, the Python Peak is unique and precious, which is not only a non-renewable rare natural resource, but also a natural asset for sustainable utilization, with significant scientific, aesthetic and economic value for the mankind. The Python Peak is a giant granite column formed as a result of long-term natural weathering and gravity disintegration, with a vertical height of 128 meters and a diameter of only 7 meters at its smallest point. In this case, the four experts appointed by the investigating organ in accordance with law have provided Expert Opinions on values, cause of formation, and structural features of the geological heritage site of the Python Peak, and the severity of damage to the column of the Python Peak as a result of the acts of the three accused, based on field survey, evidence examination and scientific analysis. The four experts deem that the acts of the defendants' climbing by hammering pitons, have caused permanent damage to the Python Peak, a core landmark in a World Natural Heritage site, and have disrupted the naturalness, primitiveness, integrity and stability of the natural heritage. Especially, at least four pitons hammered into the vulnerable part of the column of the Python Peak exacerbate the vulnerability of its structure and therefore damage its stability. The 26 pitons will directly induce and aggravate its physical, chemical and biological weathering, give rise to new cracks, accelerate erosion of the granite column, and even cause collapse. As per Article 4.2.1 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues of Application of Laws in Criminal Cases Against Administration of Cultural Relics, with reference to the Expert Opinions, it is deemed that the acts of the three defendants have caused "serious damage" to the place of historical and cultural interest, and constituted the crime of intentional damage to the place of historical and cultural interest in violation of Paragraph 2 of Article 324 of the Criminal Law.
The core landmark in a scenic area is a place of historical and cultural interest protected by the Criminal Law. The Sanqing Mountain National Park has been on the List of the World Natural Heritage and that of the UNESCO Global Geoparks. The Python Peak is a precious landmark and the core part of the Sanqing Mountain, and is a non-renewable rare natural resource and a natural asset for sustainable utilization, with significant scientific, aesthetic and economic value. The accused ZHANG Yongming, MAO Weiming and ZHANG Lu, in violation of the social management order, climbed the Python Peak in a destructive manner by drilling holes and hammering 26 pitons into the granite column of the Python Peak, causing serious damage to the Python Peak. Their acts are serious in circumstances, and have constituted the crime of intentional damage to the place of historical and cultural interest that should be punished by law. The sentencing of the three accused in this case is not only a negative evaluation of their acts, but also a warning to the general public against destroying places of historical and cultural interest under the state protection, so as to guide the public to adopt a correct view of ecological civilization, and cherish and care for natural resources and ecological environment that the human beings rely on for survival and development. Given the positions, functions and sentencing circumstances of the three accused in the joint crime, the criminal punishment imposed by the court of first instance is not inappropriate. The appeal lodged by ZHANG Yongming and his defender for acquittal and other requests are not established, and therefore dismissed by the court. The original judgment is made with clear criminal facts of the three accused, irrefutable and sufficient evidence, and accurate conviction and appropriate sentences for the three accused, under lawful judicial procedure.