Dehehantong successfully defended: The amount involved in intellectual property crimes was reduced and he was granted probation

01. Content Summary

This article takes the case of selling counterfeit registered trademarked goods represented by Chen Shilei, a senior partner of the Shanghai office of Dehehantong, and Ma Keting, a lawyer from the Shanghai office, as an example to focus on analyzing the impact of changes in the amount involved in the audit report in cases of selling counterfeit registered trademarked goods on defense. In this case, the audit report was adjusted several times, and the amount involved gradually decreased from the initial 6.96 million yuan to 960,000 yuan. This change provided a key breakthrough point for the defense work. The defense team seized this key point and successfully secured a favorable outcome for the defendant, which was a fixed-term imprisonment with probation. This not only safeguarded the rights and interests of the client but also provided valuable experience for the defense of similar cases, highlighting the crucial role of precise review of audit reports in criminal defense. And this case was selected in September for the LegalOne Merits Remarkable (outstanding) project rating.

02. Case Facts and Background

(1) Basic facts of the case

From April 2022 to March 2024, A, B and others sold counterfeit clothing of the above-mentioned brands through the Weidian "XX Online Store" without the authorization of trademark rights holders such as Moncler AG, Croton Co., Ltd. and Louis Vuitton Maretti. The defendants worked in collaboration and division of labor, forming a complete criminal chain. The sales scope was wide, the involved amount was huge, seriously infringing upon intellectual property rights and disrupting market order. In 2024, A, B and three others were arrested by the police. On the same day, D was captured and brought to justice. C surrendered himself. All six defendants truthfully confessed their criminal facts after being arrested.

(2) Overview of the Involved Personnel

1.A: Female, residing in Shanghai, the actual operator of the involved online store "XX Online Store", responsible for the main affairs such as controlling the store's funds, coordinating with suppliers for purchasing goods, paying for goods, recruiting employees and distributing salaries.

2.B: Male, spouse of A, involved in the operation of the online store, responsible for shipping, after-sales service, packaging goods and other work.

3.C and other four people: In the online store, they are respectively responsible for online customer service, cutting thread ends, sorting and categorizing, repackaging, as well as receiving and sending express deliveries, picking up and returning items and other auxiliary work.

03. Adjustments to Audit Reports and Their Impact on Cases

During the investigation stage of the case, Shanghai Gongxin Certified Public Accountants Co., Ltd. was entrusted by A certain branch of the Shanghai Public Security Bureau to conduct a judicial accounting appraisal on the case of A suspected sale of counterfeit registered trademarked goods, and successively issued three audit reports. There were changes in the determination of the sales amount involved in the three reports, which had a significant impact on the course of the case.

(1) The Key Role of the defense attorney

The defense attorney played an indispensable role in the adjustment process of the audit report. Firstly, the defense attorney keenly perceived the irrationality of the screening conditions in Report One, actively communicated with the judicial authorities, and proposed that multiple factors such as the transaction volume should be comprehensively considered to more accurately define the amount involved in the case, which prompted Report Three to adjust the screening conditions. Secondly, the defense attorney conducted an in-depth investigation and discovered the key clue of the record of order manipulation. They suggested that the judicial authorities request the appraisal institution to reduce the amount involved in the case based on this, successfully lowering the amount involved by over 540,000 yuan. In addition, the defense counsel also pointed out that the amount involved in the case could be determined by referring to the employee's salary payment records, providing a new perspective for Report Three and making the determination of the amount involved in the employee's case more accurate and reasonable. Finally, the defense raised doubts about the calculation method of the seized goods amount and urged Report Three to adopt a more scientific approach to recalculate it. Through the above work, the defense attorney not only demonstrates professional qualities but also effectively safeguards the legitimate rights and interests of the parties involved, laying a solid foundation for the subsequent defense of the case.

(2) Main Adjustment contents of the Audit Report

1. Change of screening conditions: Report One uses the order status as "Completed", the settlement status as "Settled" and "quantity not less than 3" as statistical conditions to determine the involved sales amount. Report Three changed the screening conditions to order status as "Completed", settlement status as "Settled" and "quantity less than 3", and re-tallied based on Record A. The sales amounts of each brand were all adjusted. Here, the meaning of screening the quantity as 3 is that if 3 items are purchased or dispatched, it is identified as order rigging; if 3 items are deleted, the amount of order rigging is deleted, thereby reducing the amount of the crime.

2. Deduction of order rigging records: In Report Three, order rigging records were introduced and matched with sales records. The amount of order rigging was calculated and the portion of order rigging was deducted when calculating the involved amount. Eventually, the involved amount of 961,972.96 yuan was obtained.

3. Association of employee salary payment records: Report Three added salary payment records, tallied the salary incomes of employees C, D, E, F, etc., and based on this, reconfirmed the sales amounts of the involved stores during their tenure, all adjusted to 961,972.96 yuan.

4. Adjustment of the calculation method for the amount of seized goods: Report One calculates the amount of seized goods based on the lowest purchase price stated by the person involved in the case. Report Three calculates the new amount of seized goods based on the lowest selling unit price of the same or similar category of goods that have been sold.

(3) Impact on the case

The adjustment of the audit report has gradually reduced the amount of the involved goods, which is of great significance for the characterization and sentencing of the case. According to relevant laws and regulations, the sentencing standard for the crime of selling goods bearing counterfeit registered trademarks is closely related to the sales amount. Through the recalculation of the audit report, the involved amount was gradually adjusted from the initial 6,965,965.16 yuan (the sales amount of a single brand of goods in Report One) to the final 960,000 yuan (the sales amount recognized in Report Three), enabling each defendant to receive a relatively more objective and fair evaluation during sentencing and obtaining a more favorable penalty outcome for them. This process fully demonstrates the core position of evidence in criminal cases and the significance of conducting scientific and rigorous reviews of evidence.

04. Indictment Charges and Defense Strategies

(1) The indictment alleges

The People's Procuratorate of A certain district in Shanghai charged in the indictment that the defendants A, B, C, E, F and D sold goods bearing counterfeit registered trademarks, knowing they were counterfeit, and had other particularly serious circumstances. Their actions violated Article 214 and Article 25, Paragraph 1 of the Criminal Law of the People's Republic of China, and constituted the crime of selling goods bearing counterfeit registered trademarks. At the same time, based on the different roles each defendant played in the joint crime, A was respectively identified as the principal offender, and B, C, E, F and D as accessory offenders. According to the circumstances such as self-surrender, confession and acceptance of punishment of each defendant, corresponding sentencing suggestions were put forward.

(2) Defense Strategy

1. Defense for the determination of the charge

(1) Determination of subjective knowledge: Defense lawyers should carefully examine the evidence, with particular attention paid to the degree of the defendant's subjective knowledge that the goods sold were counterfeit registered trademark goods. In this case, for the major operators such as A and B, as they are directly involved in the purchasing and sales processes, they may have a relatively clear understanding of the counterfeit nature of the goods. However, for employees of Class C, who are mainly responsible for customer service, cutting, express delivery and other tasks, they may not be fully aware of the trademark ownership of the goods. Based on this, lawyers can strive for a relatively lower subjective fault determination for the employees, thereby influencing the sentencing.

(2) Determination of sales amount: In response to the adjustment of sales amount in the audit report, the defense lawyer should promptly analyze the scientificity and rationality of the report. In this case, the lawyer can emphasize that the sales amount of over 960,000 yuan as determined in the final audit report has significantly decreased compared to the initial report and is more in line with the actual situation of the case. Based on this, they can strive for favorable sentencing circumstances for the defendant.

2. Defense of status and role in joint crimes

(1) Distinguish between principal and accessory offenders: Defense lawyers should, based on the specific division of labor and degree of participation of each defendant in the criminal chain, emphasize their status and role in the joint crime. For A's defense, it is important to focus on the fact that as the actual operator of the online store, his dominant position in the crime is undeniable. However, by combining his positive attitudes such as pleading guilty and accepting punishment, as well as returning the stolen goods and making compensation, efforts can be made to strive for a lenient punishment. In the defense of B, it can be emphasized that although B is involved in the operation, its role is different from that of A. For the four employees including C, the defense lawyer should fully explain that they only provided auxiliary work and did not play a key role in the initiation and implementation of the crime, and thus met the criteria for being an accessory. In this way, efforts should be made to strive for a reduced punishment.

(2) Defense based on specific circumstances: Lawyers can also defend each defendant from aspects such as their criminal motives, the length of their working hours, and whether they were employed. For instance, for migrant workers like C who come to work in Shanghai from other places, they have little subjective malignancy, are semi-illiterate, have a relatively low cultural level, lack basic employment and livelihood skills, are economically strapped, and in order to make a living, they follow their bosses' every word and go astray.

3. Defense of sentencing circumstances

(1) Self-surrender and Confession: For C's act of voluntarily surrendering and truthfully confessing, the defense lawyer should emphasize the establishment of the self-surrender circumstance and, in accordance with the law, may impose a lighter or mitigated punishment. For A, B, E, F and D who truthfully confess their crimes after being taken into custody and constitute a situation of confession, lawyers should also promptly raise the issue to strive for lenient punishment.

(2) Confession and Acceptance of Punishment: All six defendants in this case have signed the "Confession and Acceptance of Punishment Agreement". Based on this, the defense lawyer can argue that the defendants have a good attitude of confession and repentance, actively cooperate with the judicial authorities' investigation, and can be given lenient treatment according to law.

(3) Return of ill-obtained gains and advance payment of fines: Defense lawyers should emphasize that the defendants' active return of illegal gains and advance payment of fines during the trial stage demonstrate their repentance, reduce social harm, and meet the conditions for a suspended sentence. They should request the court to apply a suspended sentence to them.

05. Court Judgment Results and Analysis

(1) Judgment result

The People's Court of a certain district in Shanghai City, after trial, made the following judgments on each defendant:

1.Defendant A is convicted of selling goods bearing counterfeit registered trademarks and is sentenced to three years in prison, suspended for three years, and fined 500,000 RMB.

2.Defendant B was convicted of selling goods bearing counterfeit registered trademarks and was sentenced to two years and three months in prison, suspended for two years and three months, and fined 150,000 RMB.

3.Defendant C is convicted of selling goods bearing counterfeit registered trademarks and is sentenced to one year in prison, suspended for one year, and fined 20,000 RMB.

4.Defendant E was convicted of selling goods bearing counterfeit registered trademarks and was sentenced to one year and six months in prison, suspended for one year and six months, and fined 30,000 RMB.

5.Defendant F was convicted of selling goods bearing counterfeit registered trademarks and was sentenced to one year and six months in prison, suspended for one year and six months, and fined 30,000 RMB.

6.Defendant D was convicted of selling goods bearing counterfeit registered trademarks and was sentenced to one year and six months in prison, suspended for one year and six months, and fined 20,000 RMB.

7.The illegal gains that have been returned to the case shall be confiscated, as well as the counterfeit registered trademarked goods, logos, criminal tools and personal property used for the crime that have been seized.

(2) Judgment Analysis

1. Correctness of the determination of the charges: The court, based on the behavioral characteristics, subjective intent, and sales amount of each defendant, determined that they were guilty of selling goods bearing counterfeit registered trademarks, which is consistent with the charges in the indictment and complies with the provisions of the Criminal Law of our country and relevant judicial interpretations.

2. The rationality of the determination of joint crime: In the judgment, the court clearly distinguished between the principal offender and the accessory offender, and imposed penalties respectively based on the status and role of each defendant in the crime. As the principal offender, A is punished according to all the crimes he has participated in, while B and other accessory offenders are given a mitigated punishment, which reflects the principle of proportionality between crime, responsibility and punishment.

3. Comprehensiveness of sentencing circumstances consideration: The court comprehensively considered the sentencing circumstances such as self-surrender, confession, guilty plea and acceptance of punishment, and return of ill-received gains and compensation of each defendant, and lawfully sentenced the defendants who met the conditions for the application of probation. This not only reflects the severe crackdown on intellectual property crimes, but also takes into account the defendants' repentance and the reduction of social harm, achieving the unity of legal and social effects.

06. Thoughts on Defense Work

(1).The importance of Professional Competence and meticulous analysis: When handling such cases, criminal lawyers must possess solid legal knowledge and rich practical experience, especially conducting in-depth research on the legal provisions, judicial interpretations, and sentencing standards related to intellectual property crimes. At the same time, a comprehensive and detailed analysis of the case materials should be conducted, and breakthroughs in defense should be sought from aspects such as the legality, relevance and authenticity of the evidence.

(2).Application of diversified defense strategies: Lawyers should formulate diversified defense strategies based on the specific circumstances of the case. Defense should be conducted from multiple perspectives such as the determination of the charge, the circumstances of the crime, and sentencing recommendations. Attention should be paid not only to issues at the substantive law level but also to the impact of procedural law on the case. Actively communicate with judicial authorities, submit written defense opinions, and strive to obtain the most favorable judgment result for the defendant.

(3).Guide the defendant to respond positively: Lawyers should fully explain the legal provisions and litigation procedures to the defendant, guide him to actively return the ill-gotten gains and make compensation, plead guilty and accept punishment, and strive for lenient treatment. At the same time, attention should be paid to the emotional changes of the defendant and his or her family members, and necessary legal aid and psychological support should be provided to help them smoothly get through the litigation stage.

(4).The Importance of Audit Reports and Key Points of Review: In judicial practice involving economic crimes, audit reports are often the key evidence for determining the facts of the case. The defense attorney should enhance the repeated verification and cross-examination of the audit report, and seek favorable defense points for the defendant from various aspects such as the legality of the appraisal procedures, the scientific appraisal methods, and the authenticity and reliability of the data sources.

07. Conclusion

This case, as a typical instance of an e-commerce platform selling counterfeit goods bearing registered trademarks, fully demonstrates the firm determination and strict law enforcement of judicial authorities in combating intellectual property crimes. The adjustments to the three audit reports reflect the dynamic changes in evidence during the case handling process and the rigor of judicial determination. From the accusations in the indictment to the final ruling in the judgment, it reflects the law's precise crackdown on joint crimes and its comprehensive consideration of different circumstances. In the era of booming e-commerce, this case reminds us that the Internet is not a lawless place. When conducting business activities on e-commerce platforms, one should abide by laws and regulations, respect intellectual property rights, and jointly create a healthy and orderly market environment. At the same time, this case also provides valuable practical experience for legal practitioners and rich research materials for legal researchers, further promoting the improvement and development of China's intellectual property protection legal system. We should take this case as an opportunity to strengthen theoretical research and practical exploration on intellectual property crimes, enhance the ability and level of all parties in handling such cases, and contribute more wisdom and strength to the cause of intellectual property protection in our country.