PAPER OF SENTENCE
SHANGHAI FIRST INTERMEDIATE PEOPLE’S COURT OF P.R. CHINA
(2010)Preliminary sentence. No. 34. First intermediate people’s Court. Shanghai
Public prosecutor: First Procuratorate of Shanghai P.R. China
Defendant HU SHITAI(Chinese name 胡士泰, the Australian Federal nationality, Passport
number E3021895): Male; Born in Tianjing on Nov. 22, 1956; Postgraduate degree; Chief
representative of Shanghai office of Singapore Rio Tinto Iron Mine Asia Co., Ltd(hereafter
referred to as Rio Tinto Singapore Company); He used to be chief representative of Shanghai
office of Australian Rio Tinto Co., Ltd(hereafter referred to as Rio Tinto Company); Lived in
Garden Villa K3, Xijiao Hotel Hongqiao Road No.2605, Shanghai. HU was detained on July
5 2009 and was arrested on Aug. 11 2009; Now, he is detained in Shanghai Detention House.
Defender Shi Keqiang, Shanghai Erli Law Firm.
Defender Jin Chunqing, Jiangsu Fangben Law Frim.
Defendant Wang Yong: Male; Born in Rizhao city, Shangdong province on Jan. 13, 1969;
Han nationality; University education background; Sales manager of Shanghai office of
Australia Robe(China) Co., Ltd(hereafter referred to as Robe company); He used to be sales
director of this office; Registered residence place: Domitory building of Jinan Iron and Steel
Factory, Shandong province; Lived in Room 12A04, Dagu Road No.186-2, Huangpu District,
Shanghai; Wang was detained on July 6 2009 and was arrested on Aug. 11 2009; Now, he is
detained in Shanghai Detention House.
Defender Zhang Peihong, Shanghai Zhaijian Law Firm.
Defender Yang Bailin, Shanghai Huazun Law Frim.
Defendant Ge minqiang: Male; Born in Shanghai city on June 8, 1975; Han nationality;
Postgraduate education background; Sale manager of Shanghai office of Rio Tinto Singapore
company; Ge used to be sales manager of Beijing office of Rio Tinto company; Registered
residence palce: No. 209, South Chongqing Road, Luwan District, Shanghai; Lived in Room
302, Kangding Road 445 No.15, Jingan District, Shanghai; Ge was detained on July 6 2009
and was arrested on Aug. 11 2009; Now, he is detained in Shanghai Detention House.
Defender Zhai Jian and Zhouqi, Shanghai Zhai Jian Law Firm.
Defendant Liu Caikui: Male; Born in Tianjin on Dec. 15, 1978; Hui nationality; Graduate
education background; Sales director of Shanghai office of Rio Tinto Singapore company;
Liu used to be Sales director of Shanghai office of Rio Tinto company; Registered residence
place: No. 302, Gate 2, Ruili Garden No.2, Baoshan Road, Tianjin; Lived in Room 1402,
Second Rihui Village, Xuhui District, Shanghai; Liu was detained on July 6 2009 and was
arrested on Aug. 11 2009; Now, he is detained in Shanghai Detention House.
Defender Tao Wuping and Zhao Hexuan, Shanghai Shenda Law Firm
By complaint bill No. (2010)10, first procuratorate of Shanghai accused the defendant HU
SHITAI, Wang Yong, Ge Minqiang and Liu Caikui guilty of non-state staff accepting bribes
and violating commercial secrets, and initiated prosecution to the court on Feb. 10, 2010.
The court formed a collegiate bench, held an open trial for the charge of non-state staff
accepting bribes, and held a private trial for the charge of violating commercial secrets
because this part of trial related to commercial secrets and the right-sholder asked it to be
private. First procuratorate of Shanghai assigned procurator Hewei and acting procurator
Xiaoyun and Hu Chunjian to support the prosecution. Defendant HU SHITAI and his
defender Shi Keqiang and Jin Chunqing, defendant Wangyong and his defender Zhang
Peihong and Yang Bailin, defendant Ge Minqiang and his defender Zhaijian and Zhouqi,
defendant Liu Caikui and his defender Tao Wuping and Zhao Hexuan attended the trial.
Since the defendant HU SHITAI is familiar with Chinese language and presented a written
notice to our court for not requiring an interpreter, our court decided not to provide any
interpreter. In the process of this trial, trial period was extended a month, which was
approved by Shanghai Higher People’s Court. Now, the trial is completed.
Frist procurtorate of Shanghai accused:
A. Crime of non-state staff accepting bribes
(a) From 2008 to early 2009, defendant HU SHITAI was chief representative of Shanghai
office of Rio Tinto Singapore company, and was responsible for selling iron ore in China and
developing long-term sales agreement(hereafter referred to as Changxie) client. He used the
above duty convenience to obtain profit for relevant units and illegally accepted one million
Yuan from Li Huiming(handled seperetely) of Hebei Jingye Iron and Steel Co.,
Ltd.(hereafter referred to as Hebei Jinye company), 798700 USD(equivalent to RMB
5462400 Yuan) for HK Guofeng Enterprise Development Co., Ltd., which is affiliate
company of Hebei Tangshan Guofeng Iron and Steel Co., Ltd.(hereafter referred to as
Tangshan Guofeng company). Totally, the above money is equivalent to RMB 6462400
Yuan.
(b) From 2003 to June 2009, defendant Wangyong was sales director and manager of
Shanghai office of Robe company, and was responsible for selling iron ore in China. He used
the above duty convenience to obtain profit for relevant units and illegally accepted or asked
three million Yuan from Zhang Xiangqing(handled seperately) of Tianjing Rongcheng
United Iron and Steel Group Co., Ltd.(hereafter referred to as Tianjing Rongcheng company),
nine million USD(evuivalent to RMB 65.2149 million Yuan) and RMB three million Yuan
from Du Shuanghua(handled seperately) of Shandong Rizhao Iron and Steel Holding Group
Co., Ltd.(hereafter referred to as Rizhao Iron and Steel company), 115800 USD(equivalent
to RMB 791600 Yuan) from Bai Wenhui(handled seperately) of Shandong Huaxin Industrial
and Trade Co., Ltd.(hereafter referred to as Shandong Huaxin company), 385400
USD(equivalent to RMB 2.6333 million Yuan) from Wang Dongsheng(handled seperately)
of Shandong Rizhao Zhongrui Product Co., Ltd.(hereafter referred to as Rizhao Zhongrui
company), RMB 500000 Yuan from Zhangqi(handled seperately) of Hebei Puyang Iron and
Stell Co., Ltd.(hereafter referred to as Puyang Iron and Steel company). Totally, the above
money is equivalent to RMB 75.1443 million Yuan.
(c) From 2007 to June 2009, defendant Ge Minqiang was sales manager of Rio Tinto
company Beijing office and Rio Tinto Singapore company, and was responsible for selling
iron ore in China. He used the above duty convenience with others to obtain profit for
relevant units and illegally accepted RMB 2.12 million Yuan and 437000 USD(euqivalent to
RMB over 2.9982 million Yuan) from SINOCHEM INTERNATIONAL CO.(hereafter
referred to as Sinochem International), within which Ge accepted RMB 350000 Yuan and
400000 HK dollars(equivalent to RMB 352900 Yuan); accepted RMB 300000 Yuan from Li
Huiming of Hebei Jingye company, within which Ge accepted RMB 200000 Yuan; Accpeted
RMB 600000 Yuan from Jiang Chaoying, within which Ge accepted RMB 300000 Yuan;
accpeted 135900 USD(equivalent to RMB 927100 Yuan) form Wuxiang(handled seperately)
of China National Building Materials & Equipment Import & Expoort Corporation(hereafter
referrred to as CNBM International), within which Ge accepted RMB 400000 Yuan. Totally,
the above money Ge accepted with others is RMB 6.9453 million Yuan.
(d) From 2007 to July 2009, defendant Liu Caikui was sales director of Rio Tinto company
Shanghai office and Rio Tinto Singapore company Shanghai office, and was responsible for
selling iron ore in China. He used the above duty convenience to obtain profits for relevant
units and illegally accepted RMB 200000 Yuan from Guan Shusheng(handled seperately) of
Henan Anyang Baotaiying Business and Trade Co., Ltd.(hereafter referred to as Anyang
Baotaiying company), RMB 300000 Yuan from Zhangrui(handled seperately) of Shanxi
Jianbang Group Co., Ltd.(hereafter referred to as Shanxi Jianbang company), 150000
USD(equivalent to RMB 1.0289 million Yuan) from Gaoxiang(handled seperately) of HK
Pan-asia Mine Co., Ltd.(hereafter referred to as Pan-asia company), RMB 390000 Yuan from
Guo Quande(handled seperately) of Shanxi Antai Group Co., Ltd.(hereafter referred to as
Shanxi Antai company), 40000 USD(equivalent to RMB over 273400 Yuan) from
Huangmin(handled seperately) of Shanghai Mingfuqing International Trade Co.,
Ltd.(hereafter referred to as Shanghai Minfuqing company), 20000 USD(equivalent to RMB
136500 Yuan) from Li Xiaopeng(handled seperately) of HK Laibao Materials Co.,
Ltd.(hereafter referred to as HK Laibao company), an omega watch which worth RMB
137600 Yuan from Caowei(handled seperately) of Shandong Wanbao Trade Co.,
Ltd.(hereafter referred to as Shandong Wanbao company), RMB 150000 Yuan from Zhang
Xianghai(handled seperately) of Shangdong Guangfu Group Co., Ltd.(hereafter referred to
as Shangdong Guangfu company), RMB 900000 Yuan from Liqiang(handled seperately) of
Shanxi Jincheng Fusheng Iron and Steel Co., Ltd.(hereafter referred to as Jincheng Iron and
Steel company), RMB 270000 Yuan from assistant manager Gong Yuanyuan(handled
seperately) of Shandong Chuanyang Group Co., Ltd.(hereafter referred to as Shandong
Chuanyang company). Totally, the above money is equivalent to RMB 3.7864 million Yuan.
In July 2009, defendant HU SHITAI, Wangyong, Geminqiang and Liu Caikui Confessed the
above crimes, which was not known to the investigative organization.
II. Crime of Infringing on Business Secrets
From April 2005 to June 2009, defendants Hu Shitai, Wang Yong, Ge Minqiang and Liu
Caikui have obtained business secrets of Chinese steel enterprises for many times by bribery
and other illegal means through Tan Yixin, general manager of China Shougang International
Trade & Engineering Corp. (hereinafter abbreviated as Shougang International Trade
Corporation) (which shall be judged in separate case), Wang Hongjiu, manager of
international shipping department of Shandong Laigang International Trade Co., Ltd.
(hereinafter abbreviated as Laigang Company) (which shall be judged in separate case) and
others in order to get more sales profits for Lituo Company and seek for higher positions and
personal benefits. Details are listed as follows:
At the night on April 18, 2005, defendant Wang Yong got information related to the meeting
on iron ore import negotiation held in Wuxi, Jiangsu by China Iron & Steel Association
(hereinafter abbreviated as CISA) from Fang Zeshan, director of foreign trade department of
Shandong Shiheng Special Steel Group Corporation （hereinafter abbreviated as Shandong
Shiheng Special Steel Company）(which shall be judged in separate case) and provided such
information to the chief representative of Shanghai Representative Office of Luobo
Company at the next day.
On November 29, 2005, defendant Hu Shitai obtained such information, previously provided
by Tan Yixin to Wang Lizhong, chief representative of Beijing Representative Office of
Hamersley (China) Co., Ltd. of Australia (hereinafter abbreviated as Hamersley China)
(which shall be judged in separate case), from Wang Lizhong that Shougang International
Trade Company and BHP Billiton Ltd. would negotiate the purchasing price of iron ore.
On January 17, 2008, under the instruction of Hu Shitai, defendants Ge Minqiang and Wang
Yong provided information on the meeting held by CISA in Nanning, Guangxi about taking
measures for providing stock to Chinese market by Lituo Company obtained from Shen
Qiang, director of commercial operation section of Hebei Handan Steel Group Co., Ltd.
(hereinafter abbreviated as Handan Steel Company) (which shall be judged in separate case),
and others to Hu Shitai. Ge Minqiang also asked for relate materials about above meeting
from Shen Qiang on January 21, 2008.
At the afternoon on October 19, 2008, defendant Liu Caikui provided related information on
production & management seminar of CISA and output reduction of Shougang International
Trade Company obtained by him to Hu Shitai.
In the middle of December 2008, defendant Hu Shitai instructed his employee to collect
related information on CISA meeting. On December 18, defendant Ge Minqiang obtained
information on CISA meeting held on December 17 about the issuance price of letter of
credit in 2009 at Jiangsu Shagang Group Co., Ltd. (hereinafter abbreviated as Jiangsu
Shagang Company) from Li De, sales supervisor of Shanghai Representative Office of Lituo
Singapore Company (which shall be judged in separate case), and provided such information
to Hu Shitai at the next day.
At the last 10 days of April, 2009, Hu Shitai instructed employees of the representative office
to collect the iron ore certificate issuance of CISA in 2009. In the morning on April 29, Liu
Caikui asked for copies of Notice on Certificate Issuance for Commercial Contract on Iron
Ore Import of CISA from Wang Hongjiu of Laigang International Trade Company and
provided it to Hu Shitai at that day. Hu Shitai provided such document to the chief
negotiation representative of Lituo Company.
At the night on June 8, 2009, defendant Hu Shitai instructed Ge Minqiang to arrange an
interview with Tan Yixin for him, and obtained related information on CISA meeting about
iron ore import negotiation held in the afternoon of that day from Tan Yixin, and provided
such information to the chief negotiation representative of Lituo Company at the next day.
In the afternoon on June 17, 2009, defendants Hu Shitai and Wang Yong obtained
information on negotiation of iron ore import price between CISA and VALE of Brazil
(hereinafter abbreviated as VALE) held in June, 2009 respectively, and provided such
information to senior managers of Lituo Company.
Such behaviors of defendants Hu Shitai, Wang Yong, Ge Minqiang and Liu Caikui impacted
and damaged the competition benefits of Chinese steel enterprises greatly, got them into
disadvantaged position in the negotiation for importing iron ore, and resulted in the abrupt
interruption of negotiation on iron ore price between Chinese steel enterprises and Lituo
Company in 2009. Chinese steel enterprises suffered great economic losses for that. More
than 20 companies, including Shougang International Trade Company and Laigang
International Trade Company, have paid an excessive advance payment of 1.018 billion
RMB. The interest losses have amounted to 11,703,000 RMB only in the latter half year of
2009.
The public prosecution authority provided the following evidences to support above charges:
testimonies of witnesses Fang Zeshan, Shen Qiang, Du Shuanghua and Li Tao, e-mails,
assets assessment reports, judicial authentication letters and other documented evidences,
authentication conclusions and confessions of defendants Hu Shitai, Wang Yong, Ge
Minqiang and Liu Caikui.
According to these evidences, it is believed by the public prosecution authority that
defendants Hu Shitai, Wang Yong, Ge Minqiang and Liu Caikui took their duty convenience
to seek for benefits for others, have asked for or received huge amount of illegal gains; Hu
Shitai, as the chief leader, Wang Yong, Ge Minqiang and Liu Caikui, as other direct
responsible leaders sought for business secrets through bribery and other illegal means,
which has resulted in serious impacts. The behaviors of above defendants has violated
Article 163, clause 1.1 of Article 219, Article 220 of the Criminal Law of the People’s
Republic of China and it shall claim against them for criminal liabilities for bribery crime of
non-national officials, crime of infringing business secrets. For charge on bribery crime of
non-national official, Hu Shitai, Ge Minqiang and Liu Caikui surrendered voluntarily. Wang
Yong denied main facts of crime at court, which shall not be deemed as voluntary surrender
by law.
The defendant Hu Shitai claims that: (1) for charge on bribery crime of non-national official:
he has no objection to accused charges, facts and evidences; (2) for charge on infringement
of business secrets: firstly, he has not collected related information on purchasing of iron ore
at increased price by Shougang International Trade Company Limited and output reduction
of Beijing Shougang Company (hereinafter abbreviated as Shougang Company) limited
through bribe and other illegal means as accused in section 2, section 4 and he received it
passively; secondly, he did not know anything about the negotiation between Chinese side
and VALE as accused in Section 8. Therefore, it shall not deem that he involved in such
crime.
The defender of Hu Shitai agrees with above opinions of Hu Shitai and the defender also
claims: 1) for charge on bribery crime of non-national official: he has no objection on the
accusation, and request to mitigate the punishment for Hu based on his voluntary surrender,
admitting of crimes, remorse and return the bribe actively; (2) for charge on infringement of
business secrets: firstly, existing evidences are not sufficient to prove that related business
secrets as indicated in the case resulted in losses as determined in the accusation; secondly,
Hu were informed of many of the business secrets, among the seven, passively, it shall not
deem that Hu has obtained related trade secretes through bride or other illegal means; thirdly,
Hu Shitai has not involved in all charges as indicated in Section 8. So he shall not assume
criminal responsibilities for all losses as resulted by infringing the eight business secrets
determined in the accusation.
The defendant Wang Yong defends that (1) for charge on bribery crime of non-national
official: the determination on him for receiving 9 Million USD and 3 million RMB from Du
Shuanghua in Rizhao Steel Co., Ltd was wrong. The 9 million USD was borrowed to Rizhao
Jie’an Economic and Trade Company (hereinafter referred to as Rizhao Jie’an Company)
and Rizhao Dahai Mechanical and Electrical Engineering Co., Ltd (hereinafter referred to as
Rizhao Dahai Company) operated by his brother, Wang Wei. The funds originated from the
iron ore trade income of above two companies and were transferred to the bank account in
Hong Kong of Wang Yong under the help of Du Shuanghua. 3 million RMB was bought
from Du Shuanghua for housing purchase. (2) for charge on infringement of business secrets:
firstly, he, subjectively, did not know that the three information as indicated in the accusation
were business secrets; secondly, he did not obtain business secrets through bribe and other
illegal means. Specifically speaking, for facts accused in Section 1, he only performed his
role to report related information, provided by Fang Zeshan, on the Wuxi meeting of CISA to
his superior; for facts accused in Section 3, he did not know the information on Nanning
meeting and only transmitted related email sent by Li De to Hu Shitai; for facts accused in
Section 8, related information on the negotiation between Chinese side and VALE was
disclosed by Tan Yixin actively in the meeting. The director of Shanghai Representative
Office of Luobo Company was also presented at that time. He only performed his role to
record and report related information to the superior.
The defender of Wang Yong agrees with above opinions of Wang Yong and the defender also
claims: 1) for charge on bribery crime of non-national official: firstly, Shanghai
Representative Office of Luobo Company has no operational qualifications and is not a legal
company, enterprise according to Chinese laws. So it shall not deem Wang Yong as the
subject of crime of bribery crime of non-national officials; secondly, according to Article 7
of Amendment VI to PRC Criminal Law Act, the bribery crime of non-national officials
committed by “workers of other units” does not have a tracing back force. So, the bribery
performed by Wang Yong before 2006 shall not be identified as crime; thirdly, for the charge
on Wang Yong receiving 3 million RMB from Tianjin Rongcheng Company, the testimony
of witness Zhang Xiangqing was not conform to the confession of Wang Yong on purchasing
benefits, and there were no such related proof as remittance voucher, trading contract on iron
ore. So, there are no clear evidences and sufficient evidences to determine the crime; fourthly,
Wang Yong did not deny the accusation for receiving money from Tianjin Rongcheng
Company and other four companies and only defended for his nature of behavior, which has
no impact on the establishment of voluntary surrender on bribery crime of non-national
officials. (2) for charge on infringement of business secrets: firstly, there is no causal effect
between the three information involved by Wang Yong and the losses determined in the
accusation; secondly, for facts accused in Section 1, related information on Wuxi meeting of
CISA has been published in related websites before Wang get to know it and it belongs to
public information. So it cannot regard the information as trade secret; thirdly, the accused
infringement of trade secret was unit crime. However, Wang Yong and Hu Shitai worked for
different companies and the public prosecution authority did not identify that the unit where
Wang Yong works commits crime. So, it was illegal procedure to charge Wang Yong for unit
crime.
The defendant Ge Minqiang defends that (1) for charge on bribery crime of non-national
official: firstly, he has no accused duty convenience; secondly, he did not know specific
amount and process received by Li Tao and others from related units. The amount received
by Ge Minqiang actually shall be 2.45 million RMB; (2) for charge on infringement of
business secrets: firstly, for facts accused in Section 5, he just passed on words about
Shagang meeting of CISA, obtained by others, to Hu Shitai, and he did not collect it through
bribe and other illegal means; secondly, for facts accused in Section 7, he did not know the
meeting purpose and what they talk between Hu Shitai and Tan Yixin, so he did not commit
crime as indicated in this section.
The defender of Ge Minqiang agrees with above opinions of Ge Minqiang and the defender
also claims: 1) for charge on bribery crime of non-national official: firstly, Shanghai
Representative Office of Lituo Company is not a company, enterprise as regulated by bribery
crime of non-national officials, and Ge Minqiang does not qualify as the subject of crime;
secondly, during the trading process between the four companies, including Sinochem
International Co., Ltd, and Lituo Company, there were intermediary services and the amount
received by Litao and others were intermediary service charges paid by above companies,
which shall be deducted from the total bribe amount received by Ge Minqiang; (2) for charge
on infringement of business secrets: firstly, the three information involved by Ge Minqiang
did not qualify as business secrets and it shall not deem the information as business secrets;
secondly, Ge Minqiang only passed on words about information obtained by others and
arranged meeting for Hu Shitai and Tan Yixin, and he did not get related information through
bribe and other illegal means; thirdly, existing evidences are not sufficient to prove that there
is causal effect between the three information involved by Ge Minqiang and losses
determined in the case, and this is a consequential crime. So, Ge Minqiang shall be deemed
as innocent.
The defendant Liu Caikui defends that (1) for charge on bribery crime of non-national
official: the 200,000 RMB and 40,000 USD received by Liu Caikui from Anyang Baotaiying
Company, Shanghai Mingfuqin Company are intermediary service charges for providing
related information on iron ore trade and Liu did not use his duty convenience for this. Liu
has no objection to facts accused in Section 8; (2) for charge on infringement of business
secrets: firstly, the information concerning output reduction of Shougang Company is not
trade secret and there is no evidence to prove the specific means to get the information.
The defender of Liu Caikui agrees with above opinions of Liu Caikui and the defender also
claims: 1) for charge on bribery crime of non-national official: firstly, Liu Caikui did not take
his duty convenience when receiving 150,000 USD from Hong Kong Pan Asia Company and
it is charge for intermediary services, which shall be deducted from the total bribe amount of
Liu Caikui; (2) for charge on infringement of business secrets: firstly, the information on
output reduction of Shougang Company is public and it shall not be deemed as trade secret;
secondly, Liu Caikui took his personal relationship with Wang Hongjiu to get No. 66
document of CISA on the Notice on Issuing Certificate for Commercial Contract on
Importing Iron Ore, and did not get it through bribe and other illegal means; thirdly, the
assessment results for losses as determined in the case is not objective and there is no
evidence to prove that it is caused by the two information involved by Liu Caikui; fourthly,
even if Liu Caikui committed crime, he has also made confession actively on related
business secrets that investigatory authority does not know. It shall be deemed as voluntary
surrender. In one word, it suggests mitigating punishment for Liu Caikui for bribery crime of
non-national official and a lenient punishment within three years for the infringement of
business secrets.
During court hearing, the defender of Hu Shitai provided the following documented
evidences, to support above defending opinions, “CISA made a ‘writ’ to reduce the price of
iron ore to the level in 2007 this year”, Self-disciplinary Convention on Trading Orders for
Importing Iron Ore of Steel Industry; the defender of Wang Yong provided the testimonies
from witnesses Ma Ning, Xu Xuelu, Song Suyu, Wang Wei, Purchase and Sales Contract,
Import Agency Agreement, Purchase and Sales List; the defender of Liu Caikui provided the
following documented evidences: Directors’ Report of Shougang Company Limited
(2005-004), “A Director of Shougang revealed everything about moving: to extinguish blast
furnaces in Beijing by 2010” published in Beijing Evening News, “Beijing Zone of
Shougang reduced an output of 4 million tons and the remaining industrial sites after moving
shall be self-developed by Shougang” published in Capital Construction News, “CISA: the
advance payment for iron ore of Chinese steel enterprises is reduced to 60%” published in
Finance and Economics Website, “CISA refused the price reduction by 20% and claimed that
the price is too low” published in First Financial Daily.
It has proved thorough trial that:
Shanghai Representative Office of Lituo Company was established in May 2003, and
defendant Hu Shitai assumed the chief representative of it from December 2004 to February
2009; Shanghai Representative Office of Lituo Singapore Company was established in
February 2008, and defendants Hu Shitai, Ge Minqiang, Liu Caikui assumed the chief
representative, sales manager, sales director of it respectively. In addition, Ge Minqiang, Liu
Caikui also assumed the sales manager of Beijing Representative Office of Lituo Company,
Sales Director of Shanghai Representative Office of Lituo Company respectively. Shanghai
Representative Office of Luobo Company was established in September 2001, and defendant
Wang Yong assumed the sales director, sales manager of it successively.
The defendant Hu Shitai was mainly responsible for market development, product
recommendation and development of long-term contracting customers of iron ore;
defendants Wang Yong and Ge Minqiang was mainly responsible for iron ore sales and
recommending long-term contracting customers; defendant Liu Caikui was mainly
responsible for iron ore sales.
Above facts have been proved by following evidences:
The industrial and commercial register, registration materials of Shanghai Representative
Office of Lituo Company, Shanghai Representative Office of Lituo Singapore Company
certify the establishment of above two representative offices and the appointment of
defendant Hu Shitai.
The industrial and commercial register, registration materials of Shanghai Representative
Office of Luobo Company certify the establishment of its representative office.
The confessions made by defendants Hu Shitai, Wang Yong, Ge Minqiang, Liu Caikui
certify the appointment and scope of responsibilities of above defendants.
Bribery facts of non-national officials
From 2008 to the beginning of 2009, defendant Hu Shitai took his duty convenience as chief
representative of Shanghai Representative Office of Lituo Company and for selling iron ore
and recommending long-term contracting customers in China to seek for benefits for two
companies, including Hebei Jingye Company, and received illegal gains equal to 6.4624
million RMB. Specific facts are as follows:
Under the request of Li Huiming, director of Hebei Jingye Company, defendant Hu Shitai
took his duty convenience to help that company to sign a long-term contract with Lituo
Singapore Company. On November 3, 2008, Hu Shitai received 1 million RMB from Li
Huiming at Shanghai Hongqiao Marriott Hotel located at Hong Qiao Road 2270, Shanghai.
The above facts are proved by the following evidences:
Witness Li Huiming testifies that: Hu Shitai was the chief representative of Shanghai
Representative Office of Lituo Singapore Company and has the right to recommend
domestic steel enterprise to become long-term contracting customer. In order to become a
long-term contracting customer of Lituo Company, Liu Huiming decided, under the
suggestion of Gao Bo, to provide commission gains to Hu Shitai. In November 2008, Li
Huiming gave Hu Shitai 1 million RMB, which has been drawn by Li Huiming from the
financial department of Hebei Jingye Company and was placed in a grey coded case. In
December 2008, a long-term contract with a term of five years and 1 million tons for each
year was signed by and between Hebei Jingye Company and Lituo Singapore Company.
According to accommodation document obtained by investigatory authority, Li Huiming
checked in Shanghai Hongqiao Marriott Hotel on November 3, 2008.
Witness Gao Bo (manager of Shanghai Ganglian E-Commerce Co., Ltd ) testifies that: since
the long-term contracting price of iron ore is lower than spot price, all domestic steel
enterprises want to become the long-term contracting customer of Lituo Company. In June
2008, Li Huiming asked Gao Bo to use his relationship with Lituo Company and help Hebei
Jingye Company to become a long-term contracting customer of Lituo Company. Therefore,
Gao Bo suggested Li Huiming providing commission gains to Hu Shitai etc.
Witness Liu Huixiao (financial personnel of Hebei Jingye Company) testifies that: by the
end of October 2008 or at the beginning of November 2008, Li Huiming drew 1 million
RMB in cash and put the cash into a grey coded case and gave him a receipt. By the end of
November 2008, the financial supervisor, Liu jinwen, instructed Liu Huixiao to credit such
payment in other names and the receipt has also been destroyed.
The testimony of witness Liu Jinwen and related vouchers provided supplementary
evidences for the fact of balancing the withdrawal of involved 1 million RMB.
Related sales agreement on iron ore proved that: there are business contacts between Hebei
Jingye Company and Lituo Singapore Company.
The defendant Hu Shitai confessed above facts and also confessed that he took duty
convenience to recommend Hebei Jinye Company as a long-term contracting company of
Lituo Company. He kept the 1 million RMB provided by Li Huiming in the safe at his home.
Witness Zhu Xiaoli (the wife of Hu Shitai) testifies that: Hu Shitai kept 1 million RMB in
the safe, which is not the salary income of Hu Shitai.
According to related document: the investigatory authority has withheld 1 million RMB
from the residing place of Hu Shitai On August 26, 2009.
Defendant Hu Shitai accepted the request of Tangshan Guofeng Company and took his duty
convenience to help that company to engage in a long-term contract with Lituo Singapore
Company. On January 14, 2009, Hu Shitai accepted illegal gains of 798,860 USD, equal to
5.4624 million RMB from Hong Kong Guofeng Enterprise Development Co., Ltd. an
affiliated enterprise of Tangshan Guofeng Company in the name of consult fees and through
the company of his friend Cheng Qifeng, Hong Kong Fengsheng International Company.
Above facts have been proved by following evidences:
Witness Zhangzhen (General manager of Tangshan Guofeng Company) testifies that:
Tangshan Guofeng Company and Lituo Singapore Company signed iron ore sales agreement
in 2008. During the negotiation process, Hu Shitai proposed that he should take 30% of the
purchasing price for iron ore as commission. So, Zhang Zhen instructed the deputy general
manager of Tangshan Guofeng Company to handle it. Since it is a seller’s market in iron ore
industry, Tangshan Guofeng Company must keep a good relationship with Hu Shitai if it
wants to get long term and stable iron ore import. It is only possible to develop long term
business cooperation between Tangshan Guofeng Company and Lituo Company by
providing benefits to Hu Shitai.
Witnesses Fu Guanghua, Lu Xing (director of Hong Kong Guofeng Enterprise Development
Co., Ltd) testify that, and according to such evidences as long-term strategic cooperation
agreement, distribution agreement, payment vouchers, profit confirmation letter, receipt: Hu
Shitai got 798,655 USD in the name of “profit” based on above agreements. On January 14,
2009, Hong Kong Guofeng Enterprise Development Co., Ltd, an affiliated company of
Tangshan Guofeng Company, remitted the above amount to Hong Kong Fengsheng
International Company operated by Cheng Qifeng.
According to related iron ore sales agreement: there are business contacts between Tangshan
Guofeng Company and Lituo Singapore Company.
The defendant Hu Shitai confessed above facts and also confessed that he has recommended
Tangshan Guofeng Company to become a long-term contracting company of Lituo Company.
Tangshan Guofeng Company wanted to pay commission to him for expressing their gratitude,
but Hu SHitai worried the risk of getting it directly. So he signed a so-called “consultation
agreement”, which is only a form, with the affiliated enterprise of Tangshan Guofeng
Company in the name of Hong Kong Fengsheng International Company operated by his
friend, Cheng Qifeng. After receiving 790,000 USD, Hu Shitai asked friend to withdraw
300,000 USD in cash and kept in the safe at his home and borrowed 130,000 USD to his
former boss, Lei Ailun.
Witness Ren Qingping testifies that, and according to related e-mails, bank statements: in
June 2009, Cheng Qifeng remitted 300,000 USD to Ren Qingping’s personal account and
Ren withdraw cash from it and then gave it to Hu Shitai.
Witness Lei Ailun testifies that: in June, July 2009, Hu Shitai lent him 130,000 USD.
Witness Zhu Xiaoli testifies that: Hu Shitai brought 300,000 USD to home, which is not the
salary income of Hu.
According to related document: the investigatory authority has withheld 300,000 USD from
the residing place of Hu Shitai on August 26, 2009.
According to the foreign exchange quotation: 798,655 USD is equal to 5.4624 million RMB
based on the foreign exchange rate on January 14, 2009.
From 2003 to June 2009, defendant Wang Yong took his duty convenience as sales director,
sales manager of Shanghai Representative Office of Luobo Company and for selling iron ore
and recommending long-term contracting customers in China to seek for benefits for five
companies, including Tianjin Rongcheng Company, and asked for or received illegal gains
equal to 75.1443 million RMB. Specific facts are as follows:
From 2003 to 2004, defendant Wang Yong took his duty convenience to seek for benefits for
Tianjin Rongcheng Company in iron ore business and received 3 million RMB from Zhang
Xiangqing, president of Tianjin Rongcheng Company, in the name of housing purchase.
Above facts have been proved by following evidences:
Witness Zhang Xiangqing testifies that: by the end of 2003 or at the beginning of 2004,
Wang Yong provided help to Tianjin Rongcheng Company in iron ore business. In order to
keep a good cooperation with him, Zhang Xiangqing gave him 3 million RMB after Wang
Yong has implied to purchase housing for many times. Under the request of Wang Yong, 2
million RMB was remitted to several bank accounts of him, including his account of Bank of
China and 1 million RMB was remitted to his account of the Industrial and Commercial
Bank of China.
Defendant Wang Yong confessed that: Wang Yong provided help to Tianjin Rongcheng
Company in iron ore business in 2003. He implied Zhang Xiangqing, president of Tianjin
Rongcheng Company, to pay commission gains to him under the pretext of buying housing
at the latter half of the year in 2003 and provided related bank accounts to Zhang Xiangqing.
Zhang Xiangqing remitted 3 million RMB to him successively. 1 million RMB of it was
transferred into his account of the China Construction Bank to fulfill the deposit goal of his
brother-in-law, Chen Dexiang, and part of the remaining 2 million RMB was used to buy
funds.
Witness Chen Dexiang (vice president of China Construction Bank Rizhao Lanshan Branch)
testifies that: from 2004 to 2005, Chen Dexiang asked Wang Yong to make deposit in order
to fulfill his deposit goal. Wang Yong deposited more than 1 million RMB in China
Construction Bank Rizhao Lanshan Branch. The deposit book of China Construction Bank
withheld by the investigatory authority also provided supplementary evidence to above facts.
Related bank inquiry bills proved the remittance of involving money into Wang Yong’s bank
account.
From 2005 to June 2009, defendant Wang Yong took his duty convenience to help Rizhao
Steel Company to sign long-term contract, increase stock supply, exchange ore types and
reduce purchasing costs. In 2007, Wang Yong asked Du Shuanghua, president of Rizhao
Steel Company, for 9 million USD. So, Du Shuanghua remitted 9 million USD to Hong
Kong bank account of DANKO TRADING LIMITED (hereinafter referred to as DANKO)
of Wang Yong in the form of payments for goods on December 31, 2007 and March 26, 2008
successively, which is equal to 65,219,400 RMB. In addition, in June 2009, Wang Yong also
received 3 million RMB from Du Shuanghua at the parking lot of Shanghai Mart located at
Yanan Xilu 2299, Shanghai.
Above facts have been proved by following evidences:
Witness Du Shuanghua testifies that: Wang Yong has the right to choose and recommend
long-term contracting customers within domestic steel enterprises for Luobo Company, and
under the help of Wang Yong, Rizhao Steel Company became a long-term contracting
customer of Luobo Company in 2005. In addition, Wang Yong also provided help to Rizhao
Steel Company in stock supply, shipping schedules, freight adjustment etc. In November
2007, Wang Yong asked for 9 million USD from Du Shuanghua under the pretext of
gambling. So, Du Shuanghua remitted 7 million USD and 2 million USD, in the form of
payment for goods, into the account of DANKO in Hong Kong Standard Chartered Bank
designated by Wang Yong respectively through overseas company. Actually, the payment has
nothing to do with gabling and loan. In 2009, Wang Yong proposed to buy housing and Du
Shuanghua arranged drivers Liu Lei, Xuan Yunxiang to carry 3 million RMB in cash to
Wang Yong in June 2009.
Witnesses Liu Lei, Xian Yunxiang testify that: on June 30, 2009, they drove to Shanghai to
carry two small paper boxes containing cash to Wang Yong according to arrangement.
According to related bank remittance vouchers, statements and request issued by Rizhao
Steel Company: it has remitted 9 million USD, in the form of payment for goods, to the bank
account in Hong Kong Standard Chartered Bank of DANKO from Rizhao Steel Company
through its overseas company on December 31, 2007 and March 26, 2008 respectively.
According to the financial vouchers, statements issued by Rizhao Steel Company: Du
Shuanghua has bought more than 3 million RMB in cash from the Company in 2009.
According to related materials of DANKO, it was established on October 24, 2007 and Wang
Yong was the only shareholder of it.
According to related iron ore trading contract, invoice, transfer voucher, letters on changing
contract price, there are business contacts between Rizhao Steel and Luobo Company.
According to related arrival/departure record, Wang Yong and Du Shuanghua arrived and
departed Hong Kong, Macao at the same time for 14 times from 2006 to 2007.
According to the working record and related documents obtained by investigatory authority:
there were more than 81.92 million Hong Kong dollars in Wang Yong’s Swiss Bank account
in Hong Kong, and an equivalent of more than 17 million RMB in the form of USD and
Hong Kong dollars in Wang Yong’s eight bank accounts, including Hong Kong HSBC bank,
CityBank, Standard Chartered Bank. The investigatory authority withheld 2.2 million RMB
of Wang Yong on August 28, 2009.
Defendant Wang Yong confessed during the investigation that: Wang Yong has provided
great help to Rizhao Steel Company on long-term contracting, stock supply, freight
adjustment, exchange of ore types. In 2007, Wang Yong asked for 9 million USD from Du
Shuanghua under the pretext of gambling in Macao and Du Shuanghua remitted the amount
indicated above into the Hong Kong bank account designated by Wang Yong. In 2009, Wang
Yong asked for 3 million RMB from Du Shuanghua under the pretext of buying housing in
2009. Du Shuanghua instructed drivers to send above amount to Wang Yong in June 2009.
According to foreign exchange quotations: the 7 million USD and 2 million USD are equal
to 65,219,400 RMB based on the foreign exchange rate on December 28, 2007 and March 26,
2008.
The defendant Wang Yong, under the request of Shandong Huaxin Company, took his duty
convenience to help it to buy iron ore. On June 5, 2009, Wang Yong received more than
115,800 USD from Bai Wenhui, general manager of Shandong Huaxin Company, through
remittance, which is equal to 791,600 RMB.
Above facts have been proved by following evidences:
Witness Bai Wenhui testifies that: since the market for iron ore is a seller’s market, it is very
hard for domestic steel companies to purchase stock in trade and so he proposed purchasing
request to Wang Yong for many times. Wang Yong proposed that he can transfer a ship of
stock of DANKO to Shandon Huaxin Company, but it should charge commission according
to standard. Shandong Huaxin Company agreed with that and purchased the stock, remitted
more than 110,000 USD to the account of DANKO in Hong Kong Standard Chartered Bank
designated by Wang Yong.
According to related remittance vouchers, account notice: it remitted more than 115, 800
USD from Shandong Huaxin Company to DANKO’s account in Hong Kong Standard
Chartered Bank on June 5, 2009.
According to related iron ore trading contract: there are business contacts between Shandong
Huaxin Company and Luobo Company.
Defendant Wang Yong confessed above facts.
According to foreign exchange quotations: 115,800 USD is equal to 791,160 RMB based on
the foreign exchange rate on June 5, 2009.
Defendant Wang Yong, under the request of Rizhao Zhongrui Company, took his duty
convenience to help it to purchase iron ore. Wang Yong received more than 385,530 USD
from Wang Dongsheng, general manager of Rizhao Zhongrui Company from April to June
2009, which is equal to 2,633,300 RMB.
Above facts have been proved by following evidences:
Witness Wang Dongsheng testifies that: since iron ore trade has a seller’s market, it is very
hard for domestic enterprise to purchase stock in trade. Under the recommendation of Wang
Yong, Rizhao Zhongrui Company joined the customer group of Luobo Company and
purchased iron ore stock directly without participating the bidding for it. In 2009, according
to previous agreement, Wang Dongsheng remitted more than 385,300 USD into the account
of DANKO in Hong Kong Standard Chartered Bank designated by Wang Yong.
According to related remittance vouchers: it has remitted more than 385,300 USD from
Rizhao Zhongrui Company to the account of DANKO in Hong Kong Standard Chartered
Bank on April 22, May 5 and June 9, 2009 respectively.
According to related iron ore trading contract:, invoices: there are business contacts between
Rizhao Zhongrui Company and Luobo Company.
Defendant Wang Yong confessed above facts.
According to foreign exchange quotations: 385,300 USD is equal to 2,633,300 RMB based
on the foreign exchange rate on April 22, May 5 and June 9, 2009
Defendant Wang Yong, under the request of Puyang Steel Company, took his duty
convenience to help it to purchase iron ore. Wang Yong received 500,000 RMB from Zhang
Qi, manager of iron ore import department of Puyang Steel Company, at Xiaonanguo Hotel
located at Donghu Road 9, Shanghai at a day between April to June 2009.
Above facts have been proved by following evidences:
Witness Zhang Qi testifies that: under the help of Wang Yong, Puyang Steel Company singed
a purchase and sales contract for five ships of iron ores. Zhang Qi gave Wang Yong 500,000
RMB at Xiaonanguo Hotel in Shanghai at May, June 2009.
According to related payment vouchers: Zhang Qi withdrew 500,000 RMB from Company
on April 22, 2009.
According to related iron ore trading contract, payment vouchers: there are business contacts
between Puyang Steel Company and Luobo Company.
Defendant Wang Yong confessed above facts.
（三）From 2007 to 2009, defendant Minqiang Ge made use of his position as the sales
manager of Rio Tinto Beijing Representative Office, as well as Shanghai Representative
Office of Rio Tinto Singapore Company which had the power to handle the sale of iron ores
in China and recommend long-term association customers and so on, to seek benefits for
Sinochem International Corporation and other four companies. He together with others
illegally accepted a total amount which was equivalent to RMB694.53 million, and the
actual share he got personal was RMB245.74 million. Specific facts were as follows:
1. From November 2007 to 2008, the defendant Minqiang Ge took advantage of his position
to help Sinochem International Corporation to purchase iron ores. After that he received
totally RMB21.2 million, USD437.000(equivalent to more than RMB2.9982 million) from
Sinochem International Corporation in the name of consulting fee respectively through his
friends Tao Li and Bo Li, Minqiang Ge obtained a personal share of RMB350.000、
HKD400,000 (more than RMB352.,900) as well as USD125,000 (equivalent to
RMB854.500).
Evidences of the above facts are:
(1)The testimony of witness Ruodong Liang（the general manager of mineral business
department
of
metallurgy and energy business headquarters
of
Sinochem
International Corporation）confirmed: In 2007, Ruodong Liang got in touch with Minqiang
Ge through the introduction of Tao Li and expressed the intention of purchasing iron ores for
Sinochem International Corporation. In August of the same year, Sinochem International
Corporation signed an iron ore trade contract with Rio Tinto, and paid the corresponding
expenses in the name of “consulting fee” to the company which designated by Tao Li and Bo
Li. The money mentioned above was paid for Minqiang Ge, since he was in charge of the
specific business between Sinochem International Corporation and Rio Tinto，paying the
money was to maintain the business relationship of the two companies.．
The testimony of witness Zenggen Zhang (the general manager of Sinochem International
Corporation）provided a corroborating evidence for the payment of “consulting fee”.
(2)The testimony of witness Tao Li confirmed: As Minqiang Ge knew the spot base price of
Rio Tinto; he revealed it to Ruodong Liang who came from Sinochem International
Corporation before the tender, and therefore, Sinochem International Corporation won the
bid under the help of Ge. After that, an “intermediary contract” was signed by the company
where Tao Li from and Sinochem International Corporation, which in essence is a platform
through which Minqiang Ge could receive benefits. The specific allocation was decided by
Ge, he obtained RMB350, 000 from Tao Li.
(3)The testimony of witness Bo Li verified: Bo Li took place of Tao Li’s job to receive
“consulting fee” of Sinochem International Corporation in July and August in 2008. It was
also confirmed in Bo Li’s testimony that the actual share of Minqiang Ge was USD146, 5000
and HKD400, 000.
(4) It was proofed by Consultant list, intermediary agreement, payment voucher as well as
other documentary evidences that: From November, 2007 to the end of 2008, the “consulting
fee” paid by Sinochem International Corporation accumulated to RMB2.12 million and
USD437, 000.
(5)It was confirmed by distribution lists, receipts and other documentary evidences that: The
actual amount Minqiang Ge received from Bo Li was USD125, 000 as well as HKD400,
000.
(6) The relevant documentary evidences such as iron ore trade contract verified: There was
business contact between Sinochem International Corporation and Rio Tinto Singapore
Company.
(7)The defendant Minqiang Ge confessed about the above facts.
(8)It was confirmed by foreign exchange rate table that: according to the exchange rates of
relevant time period,USD4.37 million was equivalent to RMB2.9982 million, USD125,000
was equivalent to RMB854,500, and HKD400，000 was equivalent to RMB352,900.
2. Through the introduction of Bo Gao, the defendant Minqiang Ge accepted Huiming Li,
who came from Hebei Jingye Group, to help them sign a long-term association agreement
with Rio Tinto Singapore Company. In October 2008, Minqiang Ge received RMB300, 000
from Huiming Li in Garden Hotel, 58# Southern Maoming Rode, Shanghai, and he gave
RMB100, 000 of it to Bo Gao.
Evidences of the above facts are:
(1)The testimony of witness Huiming Li confirmed: Huiming Li received RMB300, 000 in
cash from his company in 2008, and gave it to Minqiang Ge on one day of October in the
café shop of Shanghai Garden Hotel. Minqiang Ge had the authority to recommend the
long-term association customer to his superior， Hebei Jingye Group signed a long-term
association agreement with Rio Tinto Singapore Company in December, 2008 under the help
of Minqiang Ge.
(2)The testimony of witness Bo Gao proved: Minqiang Ge had the authority to recommend
Hebei Jingye Group as the long-term association customer of Rio Tinto. Bo Gao told
Minqiang Ge that Hebei Jingye Group wanted to become a long-term association customer.
Ge indicated that he wanted commissions according to usual practice, and then Bo Gao
relayed his intention to Huiming Li. After that Minqiang Ge obtained the benefits from
Huiming Li and he distributed RMB100, 000 to Bo Gao.
(3)It was proved by iron ore sales agreement and other relevant documentary evidences that
there was business relation existed between Hebei Jingye Group and Rio Tinto Singapore
Company.
(4)The defendant Minqiang Ge confessed about the above facts.
3.Through the introduction of Bo Gao as well as Chaoying Jiang, the defendant Minqiang
Ge accepted asking from Tianjin Metallurgical No.1 Iron& Steel Group(hereinafter
abbreviate as Tianjin Metallurgical No.1 Group) to help them sign a long-term association
agreement with Rio Tinto Singapore Company. Minqiang Ge received RMB600, 000 from
Chaoying Jiang through Bo Gao in Tianjin Binhai International Airport, and Bo Gao
obtained a share of RMB300, 000.
Evidences of the above facts are:
(1)The testimony of Chaoying Jiang (the legal representative of Tianjin Port Rail Freight
Forwarding Limited Corporation) confirmed: The chairman of Tianjin Metallurgical No.1
Group Zhaoqin Meng sent Chaoying Jiang to find fixed supply of iron ores, and then Jiang
got in touch with Minqiang Ge through Bo Gao. On October 3, 2008, Chaoying Jiang gave
RMB6000, 000 in cash, which was hidden in a dark green plastic box, to Bo Gao in the
Tianjin Airport Terminal. After that, Tianjin Metallurgical No.1 Group signed a long-term
association agreement with Rio Tinto, and Zhaoqin Meng gave Chaoying Jiang RMB600,
000 for reward.
A relevant note provided by Chaoying Jiang verified: It was recorded in the notebook that
“paid Bo Gao, Shanghai RMB600, 000 on October, 3, 08.”
(2)The testimony of witness Bo Gao confirmed: Tianjin Metallurgical No.1 Group found Bo
Gao through Chaoying Jiang, they wanted to sign a long-term association agreement with
Rio Tinto. Since Minqiang Ge was directly responsible for the iron ore sales of Rio Tinto in
Tianjin and Hebei Region, he had the authority to suggest which company could be
developed as long-term association customers of Rio Tinto, therefore, Bo Gao went to
Minqiang Ge for help. One day in October 2008, Bo Gao received RMB600, 000 from
Chaoying Jiang in Tianjin Airport, which was hidden in a dark green plastic box. A few days
later, Bo Gao gave RMB300, 000 of it to Minqiang Ge in Ge’s office.
(3)The testimony of witness Zhaoqin Meng proved: Tianjin Metallurgical No.1 Group knew
Minqiang Ge and Shitai Hu through Chaoying Jiang, and signed a long-term association
agreement with Rio Tinto on January, 17, 2009. After that, Zhaoqin Meng gave Chaoying
Jiang RMB600, 000 as provision.
(4)The defendant Minqiang Ge confessed about the above facts.
4. Through the introduction of Bo Gao, the defendant Minqiang Ge accepted asking from
China National Building Materials & Equipment Import & Export Corporation to help them
to purchase iron ores. Minqiang Ge received USD135, 800 from Xiang Wu who was the
general manager of CNBM International, Shanghai Company through Bo Gao, which was
equivalent to RMB927, 100, and Ge obtained a share of RMB400, 000.
Evidences of the above facts are:
(1)The testimony of witness Xiang Wu confirmed: CNBM International got in touch with
Minqiang Ge through Bo Gao, and purchased spot iron ores from Rio Tinto under the help of
Minqiang Ge in 2009; after that, CNBM International paid a total of USD130, 000 benefit
fee to Bo Gao to the designated account of Hong Kong company on the basis of prior
agreement.
(2)The testimony of witness Bo Gao provided a corroborating evidence for the facts stated
above, at the same time it proved: When the commissions credited into account, Bo Gao
withdrawn RMB400,000 in cash from his China Bank account, which was packed in a
reusable bag, and gave to Ge at Minqiang Ge’ s home.
(3)It was confirmed by domestic remittance application, collection notices and other
documentary evidences that CNBM international remitted USD135, 890 in the bank account
designated by Bo Gao on May, 4, 2009.
(4)Account transaction history list confirmed: Bo Gao withdrawn RMB400, 000 from China
Bank account on May, 14, 2009.
(5)It was confirmed by relevant documentary evidences such as iron ore trade contract that
there was business contact between CNBM International and Rio Tinto Singapore Company.
(6) The defendant Minqiang Ge confessed about the above facts.
（7）It was confirmed by foreign exchange rate table that: According to foreign exchange
rate on4 May, 2009, US$135,890 was equivalent to RMB927, 100.
（四） From 2007 to the July of 2009, the defendant Caikui Liu took advantage of his
position as sales supervisor of Rio Tinto Beijing Representative Office, as well as Shanghai
Representative Office of Rio Tinto Singapore Company which had the power to handle the
sale of iron ores in China, made benefits for more than ten companies including City Anyang
Baotaiying Group, and illegally accepted a total amount money which was equivalent to
RMB3.7862.
1. The defendant Caikui Liu took advantage of his position to help City Anyang Baotaiying
Group to purchase iron ores. On November 22, 2007, Minqiang Ge received RMB200, 000
from Shusheng Guan, the chairman of City Anyang Baotaiying Group.
Evidences of the above facts are:
（1）The testimony of Shusheng Guan confirmed: City Anyang Baotaiying Group didn’t
own the qualification of direct import iron ores from foreign countries; it must rely on other
enterprises which had the qualification. In 2007, Caikui Liu told Shusheng Guan that
Shanxi Jianbang Group would purchase a boat of iron ores and City Anyang Baotaiying
Group could buy together with the same price. City Anyang Baotaiying Group bought more
than four tons of iron ores under the help of Caikui Liu. On about November, 22, 2007,
Shusheng Guan arranged his accountant Yufang Dong to remit RMB200, 000 to the bank
account Caikui Liu provided.
(2)It was proved by the testimony of witness Yufang Dong, deposit slip, remittance
documents and other documentary evidences: On November 21, 2007, according to the
instruction of Shusheng Guan, Yufang Dong took out RMB200, 000 in cash from company
earnings and deposited it in her personal account of Guangdong Development Bank firstly,
and then remitted it to Caikui Liu’s account of Merchants Bank.
(3)It was verified by the relevant iron ore trade contract, payment vouchers, invoices
and other documentary evidences that City Anyang Baotaiying Group purchased iron
ores.
(4)The defendant Caikui Liu confessed the above facts of receiving money.
2. Defendant Caikui Liu took advantage of his position to help Shanxi Jianbang
Group to buy iron ores. On November 28, 2007, Caikui Liu received RMB300, 000
from Rui Zhang who was the general manager of Shanxi Jianbang Group.
Evidences of the above facts are:
(1) The testimony of Witness Rui Zhang confirmed: In 2007, with the help of Caikui
Liu, Shanxi Jianbang Group imported a number of iron ore from Rio Tinto. In order to
maintain a long-term partnership with Rio Tinto, Rui Zhang arranged his cashier Xia
Cui to deposit RMB300, 000 to an account of Bank of China provided by Caikui Liu.
(2) The testimony of Witness Xia Cui, accounting documents, bank transfer
certificates and other documentary evidences confirmed: on November 28, 2007,
under the requirement of Rui Zhang, Xia Cui disbursed RMB300, 000 from the
company and then deposit it to the Bank of China account of Caikui Liu.
(3) Relevant iron ore trade contracts confirmed: Shanxi Jianbang Group had business
contact with Rio Tinto Singapore Company.
(4) Defendant Caikui Liu confessed the above facts, and confessed as well: In 2007,
with the help of Caikui Liu, Shanxi Jianbang Group entered into a tender and bidden
successful at last.
3. Defendant Caikui Liu took advantage of his position to help Hong Kong Pan-Asia
Company to purchase iron ores. In 2008, Liu received USD150, 000 from Xiang Gao,
the general manager of the Hong Kong Pan-Asia Corporation, which was equivalent
to RMB 102.88 million.
Evidences of the facts mentioned above are:
(1) The testimony of Xiang Gao confirmed: in 2007, Xiang Gao asked CaiKui Liu to
help him to purchase spot iron ores from Rio Tinto. As Hong Kong Pan-Asia
Corporation was not eligible to take participant in the iron ore tender, Xiang Gao was
Shandong Shiheng Special Steel Group. Before each tender, Liu would tell Xiang Gao
the reserve price and bid information of other buyers. After bidding successfully, in
the first half of 2008, Xiang Gao deposited USD150, 000, from his personal account
of HSBC and remitted it to the account of HSBC provided by Caikui Liu.
(2) The testimony of the witness Dong Li (the section manager of business operation
division of foreign economic department of Shandong Shiheng Special Steel Group),
iron ore trade contracts, agency agreements and other documentary evidences
confirmed: Caikui Liu told Shandong Shiheng Special Steel Group that it was helpful
for them to become a long-term association customer if they came forward to bid
while Hong Kong Pan-Asia Corporation operate the actual purchases. Then Hong
Kong Pan-Asia Corporation took participate in the spot iron ore tender of Rio Tinto in
the name of Shandong Shiheng Special Steel Group. After that, another company
which was actual owned by Xiang Gao signed an iron ore agency agreement with
Shandong Shiheng Special Steel Group.
(3) Defendant Caikui Liu confessed about the above facts,
(4) Foreign exchanges rate table confirmed: according to the relevant section of the
exchange rate, USD150, 000 was equivalent to RMB1.0288 million.
4.The defendant Liu Caikui helped Shanxi Antai Company to purchase the iron ore by
taking advantage of his position. From January 2008 to June 2009, Liu Caikui
received RMB 390 thousand Yuan given by Guo Quande, Vice General Manager of
Shanxi Antai Company.
The evidences that can confirm the above-mentioned facts include:
(1) Testimony of the witness Jiang Xiaodong (Vice Director of Finance Department of
Shanxi Antai Company) proves: on Jan. 25 and Apr. 7 of 2008, Guo Dequan, Vice
General Manager respectively gave RMB 100 thousand and 190 thousand Yuan to
Jiang Xiaodong in Financial Department and instructed him to remit the
above-mentioned money to the account of Liu Caikui in Bank of China, so Jiang
Xiaodong arranged Zhao Kemao, the financial personnel to handle this specific issue.
(2) Apart from giving indubitable proof to the aforesaid fact, the testimony of the
witness Zhao Kemao also proves: on Jun.12, 2009, Guo Quande gave another 100
thousand Yuan to Zhao Kemao and let Zhao remit to the bank account of Liu Caikui.
(3) The circumstance description presented by Shanxi Antai Company proves that: it
is known by the company through making self-investigation and inquiring out from
Guo Quande, under the help of Liu Caikui, Shanxi Antai Company signed the iron ore
purchase and sale contract with Rio Tinto Ltd.. Afterwards, Guo Quande gave Liu
Caikui a gratitude fee of RMB 390 thousand Yuan in total by three times according to
his authority of business supervisor.
(4) It is proved through inquiring about the documented evidences such as advice
notes of remittance and bank remittance vouchers, etc.: Zhao Kemao of Shanxi Antai
Company respectively remitted RMB 100 thousand, 190 thousand and 100 thousand
Yuan to the bank account of Liu Caikui on Jan.25, 2008, Apr. 7, 2008 and Jun.12,
2009.
(5) The documented evidences such as relevant iron ore trade contract, etc. prove that
Shanxi Antai Company and Rio Tinto Group, Sinapore had business transactions.
（6） Besides confessing the above-mentioned facts candidly, the defendant Liu
Caikui also proved that: from 2007 to 2009, through Liu Caikui’s recommendation to
Hu Shitai, Shanxi Antai Company participated in 3 times of spot bidding and won the
bid. In December 2007, Guo Quande made the phone call on his initiative to Liu
Caikui to express to send him the gratitude fee, so Liu told Guo Quande his personal
bank account number by sending short message of mobile phone. During the period of
January 2008 to 2009, Liu Caikui received a gratitude fee totaling 390 thousand Yuan.
Because at that time, the supply fell short of demand on the iron ore market, if without
the recommendation of Liu Caikui, it would be difficult for Shanxi Antai company to
enter into the competitive bidding list, and also would be very difficult to get the high
quality iron ore from the Rio Tinto Company directly at a relatively cheap price as
compared with the market price.
5. Liu Caikui, the defendant, helped Shanghai Minfuqin Company purchase the iron
ore by taking advantage of his position. On Apr. 20, 2009, Liu Caikui received the
money of USD 40 thousand given by Huang Min, General Manager of Shanghai
Mingfuqin Company, which was equivalent to more than RMB 273.2 thousand Yuan.
The evidences that can confirm the above-mentioned facts include:
(1) Testimony of the witness Ming Gang (General Manager of Shandong Yongfeng
Iron and Steel International Trading Co., Ltd. ) proves: Liu Caikui handled
specifically the issue of purchasing 170 thousand tons of iron ore by Shandong
Yongfeng Iron and Steel International Trading Co., Ltd. from Rio Tinto company, of
which, half vessel of the cargo was resold to Shanghai Mingfuqin Company. Liu
Caikui also required Ming Gang to tell Huang Min that Liu would charge a
commission of USD 0.5 per ton, and then Shanghai Mingfuqin Company paid a
commission of USD 40 thousand.
(2) Testimony of the witness Huang Min proves that: Shang Mingfuqin Company
purchased half vessel of cargo from Ming Gang’s company. On Apr.20, 2009, this
company remitted a gratitude fee of USD 40 thousand to the account of Liu Caikui in
HSBC Hongkong.
(3) Relevant bank vouchers prove: on Apr. 20, 2009, USD 40 thousand was remitted
to the bank account of Liu Caikui.
(4) The documented evidences such as relevant iron ore trading contract, etc. prove
that: the conditions about the purchase of iron ore of Shanghai Mingfuqin Company.
(5) Liu Caikui, the defendant, confessed candidly the fact of receiving the
above-mentioned money, and also proved that: because the market price was
favorable, if without Liu Caikui who acted as the wire-puller, Shanghai Mingfuqin
Company was very difficult to get the spots from Rio Tinto company; in addition, this
company also wanted to foster good relations with Liu Caikui so as to get more iron
ore spots which would be cheaper in price and higher in quality from Rio Tinto
company in future.
(6) The table of foreign exchange quotation proves: according to the foreign exchange
rate of Apr. 20, 2009, USD 40 thousand was equivalent to more than RMB 273.2
thousand Yuan.
6. Required and entrusted by Hongkong Noble Company, Liu Caikui, the defendant,
helped this company purchase the iron ore by taking advantage of his position. On
May 19, 2009, Liu Caikui received USD 20 thousand which was equivalent to more
than RMB 136.5 thousand Yuan given by Li Xiaopeng, Manager of Ore Sand
Department of Beijing Representative Office of Hongkong Noble Company in
Shanghai Huadu Night Club which is located in 1268 Xietu Road, Shanghai.
The evidences that can confirm the above-mentioned facts include:
(1) Testimony of the witness Huang Min proves that: under the help of Liu Caikui,
Hongkong Noble Company purchased iron ore from Rio Tinto company. In 2009, Li
Xiaopeng drew more than RMB 100 thousand Yuan from personal payroll card and
exchanged it to USD 20 thousand through his friend and sent this money to Liu
Caikui in Shanghai Huadu Night Club on May 19 of the same year, which was the
gratitude fee given by the company to Liu. If without the help of Liu Caikui, it was
impossible for Hongkong Noble Company to get the iron ore spots of Rio Tinto
company.
(2) Detailed tables of relevant accounts prove: Li Xiaopeng drew a total sum of RMB
146 thousand Yuan of cash from his personal account in Bank of China respectively
on Jan.22, Jan.29 and Feb.24 of 2009.
(3) Relevant iron ore trade contracts prove that: Hongkong Noble Company and Rio
Tinto Group, Singapore had business transactions.
(4) Liu Caikui, the defendant, confessed candidly the above-mentioned facts.
(5) The table of foreign exchange quotation proves: according to the foreign
exchange rate of May 19, 2009, USD 20 thousand was equivalent to more than RMB
136.5 thousand Yuan.
7. Required and entrusted by Shandong Wanbao Company, Liu Caikui, the defendant,
helped this company purchase the iron ore by taking advantage of his position. On
Jun.8, 2009, Liu Caikui received an Omega watch which was worth more than RMB
137.6 thousand Yuan given by Cao Wei, General Manager of Shandong Wanbao
Company.
The evidences that can confirm the above-mentioned facts include:
(1) Testimony of the witness Huang Min proves that: in June 2009, under the help of
Liu Caikui, Shandong Wanbao Company purchased the iron ore spots from Rio Tinto
Company. Later, because Liu Caikui said the shipping expense was going to rise, Cao
Wei purchased two Omega watches which were worth 130 thousand and 80 thousand
Yuan respectively in a watch franchise shop in Shanghai and sent the watches to Liu
Caikui and his colleague, and had Liu coordinate the shipping expense issue.
(2) The invoices of relevant watches prove: the watches were purchased in Jun.8,
2009, and the watch sent to Liu Caikui was worth RMB 137.632 thousand Yuan.
(3) The documented evidences such as relevant iron ore trading contract, etc. prove
that: Shandong Wanbao Company and Rio Tinto company had business transactions.
(4) Liu Caikui, the defendant, confessed candidly the above-mentioned facts.
8. Liu Caikui, the defendant, helped Shandong Guangfu Company purchase the iron
ore by taking advantage of his position. In June, 2009, Liu Caikui received the money
of RMB 150 thousand given by Zhang Xianghai, General Manager of Shandong
Guangfu Company in Fulinxuan Restaurant located on the second floor of Hongkong
New Century Mansion in 300 Huaihai Middle Road of Shanghai.
The evidences that can confirm the above-mentioned facts include:
(1) Testimony of the witness Zhang Xianghai proves that: in May 2009, Shandong
Guangfu Company purchased the iron ore spots from Rio Tinto company under the
help of Liu Caikui. On Jun.20, 2009, Zhang Xianghai gave a bank card of Agricultural
Bank of China which contained RMB 150 thousand Yuan to Liu Caikui in Fulinxuan
Restaurant located on the second floor of Shanghai Hongkong New Century Mansion.
(2) Testimony of the witness Zhang Guanghua (Vice General Manager of Shandong
Guangfu Company) proves that: on Jun.17, 2008, Zhang Guanghua deposited RMB
150 thousand Yuan to the bank account of the bank card of Agricultural Bank of
China which he opened and later gave this card to Zhang Xianghai.
(3) Detailed table of bank account proves: Zhang Guanghua transferred RMB 150
thousand Yuan from his personal bank card of Agricultural Bank of China with the tail
number of 3910 to the bank card of Agricultural Bank of China with the tail number
of 8313.
(4) The search warrant, search record, properties arrested and document list prove that:
a bank card of Agricultural Bank of China with the account name of Zhang Guanghua
and the tail number of 8313 was ferreted out in the personal articles of Liu Caikui.
(5) The documented evidences such as relevant iron ore trading contract, etc. prove
that: Shandong Guangfu Company and Rio Tinto Group, Singapore had business
transactions.
(6) Liu Caikui, the defendant, confessed candidly the above-mentioned facts.
9. Required and entrusted by Jincheng Iron and Steel Company, Liu Caikui, the
defendant, helped this company purchase the iron ore by taking advantage of his
position. In June, 2009, Liu Caikui received RMB 900 thousand Yuan given by Li
Qiang, General Manager of Jincheng Iron and Steel Company in Le Royal Meridien
Shanghai which is located in 789 Nanjing East Road, Shanghai.
The evidences that can confirm the above-mentioned facts include:
(1) Testimony of the witness Li Qiang proves that: under the help of Liu Caikui,
Jincheng Iron and Steel Company purchased iron ore from Rio Tinto company. In
June 2009, Li Qiang drew RMB 900 thousand Yuan of cash from Finance Division
and sent this money to Liu Caikui in Le Royal Meridien Shanghai in the end of June
of the same year.
(2) Relevant financial books of accounts prove that: on Jun.28, 2009, Jincheng Iron
and Steel Company paid RMB 900 thousand Yuan under the title of “commission of
iron ore powder”.
(3) The documented evidences such as relevant iron ore trading contract, etc. prove
that: Jincheng Iron and Steel Company and Rio Tinto Group, Singapore had business
transactions.
(4) Liu Caikui, the defendant, confessed candidly the above-mentioned facts, and
meanwhile, he proved that the RMB 900 thousand Yuan he received was deposited in
his parents’ home to prepare for purchasing house.
(5) The circumstance description, remittance voucher and list of court order for
gathering evidences presented by Liu Sheng’an (father of Liu Caikui) prove: relatives
of Liu Caikui returned RMB 900 thousand Yuan of cash.
10. Liu Caikui, the defendant, helped Shandong Chuanyang Company purchase the
iron ore by taking advantage of his position. In July, 2009, Liu Caikui received the
money of RMB 270 thousand given by Gong Yuanyuan, Vice General Manager of
Shandong Chuanyang Company in the parking lot of Shanghai Jinjiang Tower Hotel
located in 161 Changle Road, Shanghai.
The evidences that can confirm the above-mentioned facts include:
(1) Testimony of the witness Zhang Xianghai proves: in May 2009, Shandong
Chuanyang Company purchased the iron ore spots of Rio Tinto company under the
help of Liu Caikui. In July of the same year, Gong Yuanyuan gave Liu Caikui a
shopping handbag which contained RMB 270 thousand Yuan in the parking lot of
Shanghai Jinjiang Tower Hotel. The purpose of sending the money was to express
gratitude to Liu so that the company could purchase the spots, and at the same time
they hoped to foster good relations with Liu for conducting further cooperation
between the two parties.
(2) Testimony of the witness Xu Yuwu (Vice General Manager of Shandong
Chuanyang Company) and documented evidences such as iron ore trade contract, etc.
prove that: Shandong Chuanyang Company and Rio Tinto Group, Singapore had
business transactions.
(3) Liu Caikui, the defendant, confessed candidly the above-mentioned facts.
It is otherwise found out through investigation that relevant case courses prove: in
July 2009, the defendants Hu Shitai, Wang Yong, Ge Minqiang and Liu Caikui gave
an account on their initiative of their bribery criminal facts as non-national officials
which were still unknown to the judicial authority when being investigated y relevant
departments.
II. Facts of infringing commercial secrets
From December 2008 to June 2009, the defendants Hu Shitai, Wang Yong, Ge
Minqiang and Liu Caikui got many commercial secrets of China’s iron and steel
enterprises about price negotiation on imported iron ore in 2009 by means of tempting
with personal gain and other improper means by making use of the advantageous
position of this company in iron ore trade in order to keep abreast of strategies of
China’s iron and steel enterprises to international negotiations on prices of iron ore in
2009 so that the Rio Tinto company which they served for could work out
corresponding countermeasures. In addition, the four defendants also illegally
gathered many commercial secrets of China’s iron and steel enterprises during the
period from April 2005 to October 2008 for Rio Tinto company to gain more sales
profits in the iron ore trade with China. The specific facts are as follows:
(I) On Dec. 18, 2008, Ge Minqiang, the defendant, got the information of China Iron
and Steel Association about import price of iron ore of China’s iron and steel
enterprises in 2009 announced in the meeting held by Jiangsu Shagang Group
(hereinafter referred to as Shagang meeting) on Dec. 17, 2008 from Li De, Sales
Manager of Shanghai Representative Office of Rio Tinto Group, Singapore, and sent
the information to the defendant Hu Shitai, etc. via email next day. It is identified that
the above-mentioned information belonged to commercial secret.
The evidences that can confirm the above-mentioned facts include:
1. The evidences such as relevant emails, Judicial Expertizing Report issued by
Shanghai Hengping Judicial Authentication Center and list of articles and documents
withheld from the investigation authority, etc. prove that: the defendant Ge Minqiang
sent emails to Hu Shitai, etc. on Dec. 19, 2008 and reported the information of
Shagang meeting relating to iron ore import price of China’s iron and steel enterprises
in 2009.
2. The confession of the defendant Hu Shitai proves that: after gathering relevant
information of China Iron and Steel Association announced at the Shagang meeting in
December 2008, Ge Minqiang reported to Hu by email, and Hu reported to his
superior according to his work responsibility requirements. The contents of Shagang
meeting allow Rio Tinto company to keep abreast the relevant attitude of Chinese
party, and at that time, the iron ore price negotiation of 2009 already kicked off, so the
contents of this meeting was important to Rio Tinto company. In the course of
international negotiating on the iron ore price in 2009, Rio Tinto simultaneously
negotiated with the iron and steel enterprises of China and Japan, etc., and because the
demand of China’s market was big, Rio Tinto company originally planned to fix a
price with Chinese party, however after knowing the attitude of Chinese party on the
price of 2009, Rio Tinto deemed that it was no longer advisable to negotiate with
Chinese party, and finally, it fixed the international first fixed price of iron ore trade in
2009 with Japan iron and steel enterprise.
Hu Shitai also confessed that Shanghai Representative Office of Rio Tinto company
and its employees had the working responsibilities of gathering and reporting relevant
information of China iron and steel enterprises and contents of the meetings of China
Iron and Steel Association.
3. The confession of defendant Ge Minqiang proves that: in the evening of Dec. 18,
2008, Li De reported the information that China Iron and Steel Association held a
meeting in Jiangsu Shagang Group and the information about the iron ore import
price of China’s iron and steel enterprises in 2009 announced in the meeting, etc. to
Ge by telephone call. Next day, according to the practice of the company, Ge reported
the above-mentioned information to Hu Shitai, etc. via email. The information
announced in the Shagang meeting of China Iron and Steel Association was
confidential, and relevant contents could not be gotten through public ways; at that
time, it was during the period of negotiation on iron ore price, and through getting the
information about relevant meeting of China Iron and Steel Association, Rio Tinto
could keep abreast of the policies of the Chinese party and gain more leverage seek
more profits for themselves in the negotiation.
Ge Minqiang also confessed that according to the regulations of the company and the
requirements of Hu Shitai, etc., employees of Shanghai Representative Office of Rio
Tinto Group, Sinapore should gather as much as possible the internal information
about China iron and steel enterprises and the contents of the meetings of China Iron
and Steel Association, and especially during the key period of negotiation from
December of every year to the time prior to the close of iron ore price negotiation next
year, the contents of the relevant meetings of China Iron and Steel Association were
especially important to Rio Tinto company and should be collected.
4.Judicial Expertizing Position Paper given by Beijing Guoke Intellectual Property
Right Authentication Center proves that: the information about iron ore import price
in 2009 announced in Shagang meeting by China Iron and Steel Association recorded
in the emails sent by Ge Minqiang is identical to the relevant commercial secret
claimed by the right holders such as International Trading Company affiliated to
Capital Iron and Steel Corporation; which information was not generally known to the
public prior to Dec. 19, 2008 and had been kept in confidence by the right holder
via confidentiality measures; this information involves the basic scheme and price
base line of China iron ore import enterprises relating to iron ore price negotiation in
2009 and if the international suppliers of iron ore could get the information prior to
the formal announcement of the information, they would be able to get ready for the
countermeasures of negotiation in advance and thus it would place the China’s iron
ore import enterprises in an unfavorable condition in the negotiation and make them
suffer loss, so this information was of practical use. To sum up, this information
belonged to commercial secret.
5. The Circumstance Description and relevant confidentiality regulations presented by
the units such as International Trading Company affiliated to Capital Iron and Steel
Corporation and International Economic and Trade Company of Anshan Iron and
Steel Group, etc. prove that: relevant contents of Shagang meeting were commercial
secrets and had been kept in confidence via confidentiality measures by relevant
companies; if they were known by foreign party, the foreign party could keep abreast
the negotiation strategy and negotiation base price of Chinese party in advance, and
thus would bring huge loss to China’s iron and steel enterprises.
6. The Circumstance Description and Report Materials on Investigation Conditions
presented by China Iron and Steel Association prove that: China Iron and Steel
Association held the Shagang meeting on Dec. 17, 2008, and discussed the issues
such as iron ore import price of 2009, etc. in the meeting, which meeting’s contents
were kept in strict confidence to outside.
(II) In April 2009, the defendant Hu Shitai instigated employees of Shanghai
Representative Office of Rio Tinto company to collect the documents of China Iron
and Steel Association relating to import price of iron ore in 2009. The defendant Liu
Caikui then made inquiry to many domestic iron and steel enterprises, and on the 29th
day of the same month, Liu got the copy of Circular Concerning L/C Issuing Problem
for Business Contract of Import Iron Ore numbered ZhongGangXie[2009]No.66
(hereinafter referred to as No. 66 document) from Wang Hongjiu, Manager of
International Shipping Department of the long-term agreement customer Laigang
International Trading Company, and gave it to Hu Shitai on the very day, and then Hu
Shitai reported to executives of Rio Tinto company via emails. It is identified that
relevant contents of this document belonged to commercial secret.
The evidences that can confirm the above-mentioned facts include:
1. The evidences such as relevant emails, Judicial Expertizing Report issued by
Shanghai Hengping Judicial Authentication Center and list of articles and documents
withheld from the investigation authority, etc. prove that: on Apr.27, 2009, Hu Shitai
sent emails to Liu Caikui, etc. inquiring Liu whether he had gotten relevant
documents of China Iron and Steel Association and put forward that the name of the
recipient unit can be deleted on the copy of the document since the contents are
sensitive. On Apr. 28, 2009, Liu Caikui sent an email to Hu and expressed to Hu that
he could get a copy of the document and then send it to Hu, and explained that China
Iron and Steel Association required all of the recipient units to keep in confidence of
this document and destroy it after reading it. In the afternoon of Apr. 29, 2009, Liu
Caikui sent the scanned copy of the No. 66 document to Hu Shitai via email and
explained that the contents of the document are very sensitive and could not be
transmitted widely. After the crime was detected, the investigation authority
rummaged the copy of the No. 66 document without the fax header which was given
by Wang Hongjiu in the office of Liu Caikui.
2. The confession of the defendant Hu Shitai proves that: in April 2009, Hu assigned
the tasks to employees of Shanghai Representative Office of Rio Tinto company of
collecting relevant documents relating to iron ore import prices of China’s iron and
steel enterprises in 2009 announced by China Iron and Steel Association. Afterwards,
Liu Caikui sent the No.66 document via email to Hu Shitai. .
3. Confession of Liu Caikui, the defendant, proves that: in the middle and last ten
days of April of 2009, Hu Shitai convened the meeting attended by employees of
Shanghai Representative Office of Rio Tinto Group, Singapore including Liu and Ge
and assigned the task of collecting relevant written materials of China Iron and Steel
Association relating to import price of iron ore in 2009. Hu expressed in the meeting,
if relevant information was true, it would have direct impact on the sales strategy of
Rio Tinto Company. In the AM of the 29th day of the same month, Liu Caikui met
with Wang Hongjiu, etc. of International Trading Company affiliated to Laiyang Iron
and Steel Corporation and talked with them about the business, and while staying
separately with Wang Hongjiu, he asked for and got the copy of No. 66 document
from Wang, and at that time, Wang also detached the fax header from the document,
and reminded Liu not to transmit it to outside. Then, Liu sent the aforesaid document
via email to Hu and others according to the requirements of Hu after scanning the
document, and copied one copy of the document and sent it to Hu Shitai in the
afternoon of next day. Liu Caikui also explained in the confession that he knows
clearly that the No. 66 document belonged to confidential document.
Liu Caikui also confessed that according to the regulations of the company and the
requirements of Hu Shitai, etc., employees of Shanghai Representative Office of Rio
Tinto company have the working responsibilities of gathering internal information of
China iron and steel enterprises and contents of the meetings of China Iron and Steel
Association, and especially during the annual iron ore price negotiation period, Hu
Shitai would assign employees to get the information about the consideration of China
Iron and Steel Association on Rio Tinto from relevant China’s customers so as to
work out corresponding sales and negotiation strategies; in addition, the Rio Tinto
company has constraints over the issues such as whether to give the long-term
agreement customer qualification, goods delivery time and goods delivery quantity,
etc. to China’s iron and steel enterprises, so relevant staff of the enterprises usually
would hold an attitude of cooperation in giving the relevant information when it was
collected by employees of Shanghai Representative Office of Rio Tinto company in
order to maintain the relations with Rio Tinto company, and it was just out of the
above-mentioned consideration that Wang Hongjiu provided the No. 66 document to
it.
4. The confession of Ge Minqaing who is in the same case confirmed the fact that Hu
Shitai assigned the subordinate employees to collect relevant documents relating to
iron ore import price in 2009 announced by China Iron and Steel Association.
5. The confession of Wang Hongjiu, the person concerned in the case, proves that: on
Apr. 29, 2009, Wang Hongjiu met Liu Caikui in the International Trading Company
affiliated to Laiyang Iron and Steel Corporation, and when the two persons stayed
separately, Liu asked Wang whether he had relevant documents of China Iron and
Steel Association about iron ore negotiation in 2009, then Wang printed the scanned
document of the No. 66 document in his mail box and gave it to Liu, and at that time,
in order to hide the fact that this document was disclosed from International Trading
Company affiliated to Laiyang Company, Wang also tore off the fax header of the
document. The scanned document of the above-mentioned document was provided by
Wu Bingxin, colleague of the company to him via email. The purpose of Wang of
providing this document to Liu was because Rio Tinto company was in an
advantageous position in the iron ore trade, and had constraints over the aspects of the
quantity of goods delivery, etc. to China’s iron and steel enterprises, and therefore,
they needed to foster good relations with Liu; in addition, if Rio Tinto company could
obtain this copy of document, it would keep abreast of the price standards of China’s
iron and steel enterprises, and use the document to guide its negotiation strategy and
gain more profits in the negotiation, and on the other hand, China’s iron and steel
enterprises would suffer loss.
6.Testimonies of witnesses Gao Feng (Vice Director of Raw Material Procurement
Department of Stainless Steel Co., Ltd. affiliated to Shanxi Taiyuan Iron and Steel
Corporation) and Gao Bo (Manager of Shanghai Ganglian E-commerce Co., Ltd.)
respectively prove that: Liu Caikui once made phone calls to the two persons in April
2009 asking them to help collect the written document of No.66 document. Then Liu
made the phone call to Gao Bo expressing he already got the written document of No.
66 document from other way and no longer need their help.
7.The testimonies of the witness Zhao Zenghai (Manager of Import Department of
International Trading Company affiliated to Laiyang Iron and Steel Corporation) and
Wang Bingxin (employee of Import Department of International Trading Company
affiliated to Laiyang Iron and Steel Corporation) and the screen interception image of
the No. 66 document sent to Wang Hongjiu which was printed out from the computer
of Wu Bingxin prove that: according to the instruction of leaders of the company, the
circulation scope of the No. 66 document is Hou Zhaoqiang, Vice General Manager in
charge of import of the company and employees including Wu Bingxin, etc. of the
Import Department. On Apr.20, 2009, Zhao Zenghai gave the copy of No. 66
document to Wu requiring Wu to scan it and send it to his mail box after transferring
it to the electronic file. In the afternoon of the same day, in response to the
requirement of Wang Hongjiu, Wu sent the electronic document of No. 66 document
to the private email box of Wang.
8. Judicial Expertizing Position Paper given by Beijing Guoke Intellectual Property
Right Authentication Center proves that: the scanned document of the No. 66
document in relevant emails sent by Liu Caikui is identical to the original document
of No. 66 document; relevant contents of this document were not generally known to
the public prior to Apr. 29, 2009 and had been kept in confidence by the right holder
via confidentiality measures; this document involves the negotiation strategy of
China’s iron and steel enterprises on iron ore import price in 2009, once being
disclosed, it would lead to loss of China’s iron and steel enterprises, so this
information was of practical use. To sum up, the relevant contents of No. 66 document
belonged to commercial secrets.
9. The Circumstance Description and Report Materials on Investigation Conditions
and the confidentiality regulations of the above-mentioned relevant enterprises
presented respectively by a dozen of units such as Qingdao Iron and Steel Import and
Export Company, etc. and China Iron and Steel Association prove that: No. 66
document belonged to commercial secret, and relevant enterprises had taken
confidentiality measures.
10. Testimony of the witness Fan Chenghai (General Manager of International
Trading Company affiliated to Laiyang Iron and Steel Corporation) proves that: the
No.66 document issued by China Iron and Steel Association was marked with the
words of “confidential document” and belonged to confidential document, and if this
document was disclosed, it would disclose the price base line of import of iron ore in
2009 of International Trading Company affiliated to Laiyang Iron and Steel
Corporation.
(III) On Jun. 8, 2009, the person concerned in the case Tan Yixin, Assistant to General
Manager of International Trading Company affiliated to Capital Iron and Steel
Corporation, attended the meeting of China Iron and Steel Association relating to next
step of iron ore negotiation work (hereinafter referred to as Jun. 8 meeting). In the
very evening, through the contact of the defendant Ge Minqiang, the defendant Hu
Shitai met Tan Yixin in China World Hotel Beijing. In the course of negotiation of the
two persons, Hu knew Tan’s idea of hoping to purchase iron ore from Rio Tinto and
got the information from him, by taking this chance, about next step of China Iron and
Steel Association of negotiation on iron ore in the Jun. 8 meeting. Next day, Hu Shitai
reported the above-mentioned information via email to his superior. Afterwards,
through the help of Hu Shitai, etc., International Trading Company affiliated to
Capital Iron and Steel Corporation purchased a vessel of Yangdi iron ore spots from
Rio Tinto company. The above information is identified as commercial secret.
The evidences that can confirm the above-mentioned facts include:
1. The evidences such as relevant emails, Judicial Expertizing Report issued by
Shanghai Hengping Judicial Authentication Center and list of articles and documents
withheld from the investigation authority, etc. prove that: on Jun.9, 2009, Hu Shitai,
the defendant, sent emails to his superior on Jun. 9, 2009 and reported relevant
information about Jun. 8 meeting of China Iron and Steel Association.
2. Confession of Hu Shitai, the defendant, proves that: on Jun. 8, 2009, Hu Shitai got
to know that China Iron and Steel Association held another meeting from Ge
Minqiang, and because at that time, China publicly expressed that it would not follow
the international first fixed price of iron ore trade in 2009 fixed by Rio Tinto company
and Nippon Steel Corp., Hu wanted to get to know the policy of China Iron and Steel
Association to next step of negotiation, he let Ge Minqiang to date and talk with Tan
Yixin. In the very meeting, through the contact of Ge Minqiang, Hu met Tan Yixin in
China World Hotel Beijing. In the talking course, Tan put forward his requirement of
purchasing a vessel of Yangdi iron ore, and disclosed the relevant information of the
Jun. 8 meeting of China Iron and Steel Association. Next day, Hu Shitai sent the
above-mentioned information via email to his superior. Hu Shitai also explained in his
confession that the purpose of Tan Yixin of disclosing the relevant information of the
Jun. 8 meeting of China Iron and Steel Association was for maintaining good relations
with him for smoothly conducting business in future in view of the advantageous
position of Rio Tinto company.
3. The confession of Tan Yixin, the person concerned in the case, written materials
about position description of Tan Yixin given by International Trading Company
affiliated to Capital Iron and Steel Corporation and testimonies of witnesses Su
Genqiang (Vice General Manager of International Trading Company affiliated to
Capital Iron and Steel Corporation) and Wu Zhenqi (Director of Organization and
Personnel Department of International Trading Company affiliated to Capital Iron and
Steel Corporation), etc. prove that: Tan Yixin was assistant to General Manager and
Director of Mining Department of International Trading Company affiliated to Capital
Iron and Steel Corporation who always participated in the work of China Iron and
Steel Association on behalf of the company. In the afternoon of Jun.8, 2009, Tan Yixin
attended the meeting of China Iron and Steel Association concerning the next step
negotiation on iron ore. In the evening of the same day, through the contact of Ge
Minqiang, Tan Yixin and Hu Shitai met in China World Hotel Beijing, and Tan
disclosed relevant information of China Iron and Steel Association about holding the
meeting of iron ore negotiation panel, and the above-mentioned information belonged
to commercial secret and could not be known by Rio Tinto company, otherwise, Rio
Tinto party would gain leverage in the negotiation. The reason of disclosing the
information to Hu Shitai was that International Trading Company affiliated to Capital
Iron and Steel Corporation needed the help of Rio Tinto company in purchasing raw
materials, and then the company got a vessel of Yangdi iron ore as desired, which was
related to Tan’s disclosure of relevant information of the Jun.8 meeting to Hu Shitai.
4. Confession of the defendant Ge Minqiang proves that: on Jun. 8, 2009, Tan Yixin
told Ge by telephone call that China Iron and Steel Association held a meeting in the
afternoon of the same day and said he had new information to tell Hu Shitai but could
contact with Hu and asked Ge to help to contact Hu, then Ge arranged Hu and Tan to
meet in China World Hotel Beijing in the evening of the same day. Ge also explained
in his confession that he believed that Tan intended to trade with Hu by providing
information so as to obtain a vessel of Yangdi iron ore. Afterwards, Hu instructed Ge
to provide a vessel of Yangdi iron ore to Tan.
5. Judicial Expertizing Position Paper given by Beijing Guoke Intellectual Property
Right Authentication Center proves that: the information recorded in the emails sent
by Hu Shitai is substantially identical to the relevant commercial secret of the
negotiation panel meeting of China Iron and Steel Association claimed by the units
such as International Economic and Trade Corporation affiliated to Wuhan Iron and
Steel Corporation (hereinafter referred to as International Trading Corporation of
Wuhan Steel) and International Trading Company affiliated to Capital Iron and Steel
Corporation, etc.; which information was not generally known to the public prior to
Jun. 9, 2009 and had been kept in confidence by the right holder via confidentiality
measures; if the international suppliers of iron ore could get the information prior to
the announcement of the information, they would be able to get ready for the
countermeasures of negotiation in advance and thus it would place the Chinese party
in an unfavorable condition in the iron ore negotiation and impair the interest of
China’s iron ore import enterprises in the import of iron ore, so this information was
of practical use to the enterprises such as International Trading Company affiliated to
Capital Iron and Steel Corporation, etc.. To sum up, this information belonged to
commercial secret.
6. The Circumstance Description and relevant confidentiality regulations presented by
the right holders such as International Trading Corporation of Wuhan Steel and Report
Materials on Investigation Conditions presented by China Iron and Steel Association
prove that: relevant contents of Jun.8 meeting of China Iron and Steel Association
belonged to commercial secrets and the right holders had taken confidentiality
measures.
(IV) In the afternoon of Jun.17, 2009, the defendant Wang Yu and principal of
Shanghai Representative Office of Luo Park Company and Tan Yixin, etc. held talks
with regard to the issue of iron ore import price. In the talking process, Wang got
relevant information relating to iron ore import price negotiation between China’s iron
and steel enterprises and Companhia Vale do Rio Doce. After the meeting, Wang Yong
reported the above-mentioned information via email to executives of Luo Park
Company and meanwhile he forwarded the email to the defendant Hu Shitai, and the
executives of Luo Park Company then asked Wang Yong and Hu Shitai to confirm the
above-mentioned information via email, because Hu already got relevant information
about iron ore import price negotiation between Companhia Vale do Rio Doce and
Chinese party on the 8th day of the same month from Tan, so he confirmed the
truthfulness of the above-mentioned information in reply email in the evening of the
same day. It is identified that the above-mentioned information belonged to
commercial secret.
The evidences that can confirm the above-mentioned facts include:
1. The evidences such as relevant emails, Judicial Expertizing Report issued by
Shanghai Hengping Judicial Authentication Center and list of articles and documents
withheld from the investigation authority, etc. prove that: the defendant Wang Yong
sent emails to executives of Luo Park Company and Hu Shitai, etc. in the afternoon of
Jun. 17, 2009 and reported the information about the iron ore import price negotiation
between Chinese party and Companhia Vale do Rio Doce, relevant personnel of Luo
Park Company then sent emails to Wang Yong and Hu Shitai to ask the two persons to
confirm the above-mentioned information, and Hu replied the email in the evening of
the same day expressing that he also had known similar information from a friend.
2. Relevant notes of Wang Yong prove that: Wang Yong knew relevant information
about the negotiation between the Chinese party and Companhia Vale do Rio Doce in
the course of talking of Tan Yixin, etc..
3. Testimony of the witness Ding Xiaojia (staff of International Trading Company
affiliated to Capital Iron and Steel Corporation) proves: on Jun. 17, 2009, Ding
Xiaojia companied Tan Yixin, etc. to talk with Wang Yong, etc. in Shanghai
Representative Office of Luo Park Company, and Ding was present on the scene in
the whole course of talking as an interpreter. In the talking process, Tan Yixin once
mentioned relevant information about the negotiation between Chinese party and
Companhia Vale do Rio Doce to the other party.
4. Confession of the defendant Wang Yong proves that: in the AM of Jun. 17, 2009,
Wang Yong received the email given by executives of Luo Park Company to Wang
Yong and Hu Shitai, etc. which asked them to get to know the information about the
negotiation on iron ore price between China’s iron and steel enterprises and
Companhia Vale do Rio Doce. In the afternoon of the same day, Tan Yixin, Shu Hong
and Ding Xiaojia of International Trading Company affiliated to Capital Iron and
Steel Corporation went to Shanghai Representative Office of Luo Park Company to
negotiate the issue about the temporary price of the iron ore trade with Wang Yong,
etc. In the negotiation, Tan Yxin disclosed the information about the negotiation on
iron ore import price between China’s iron and steel enterprises and Companhia Vale
do Rio Doce. After the meeting, Wang Yong reported the above-mentioned
information disclosed by Tan to the superior of his company and meanwhile
forwarded it to Hu Shitai, etc.. In order to protect the information source, Wang Yong
intentionally hided the name of Tan Yixin and said the information was obtained from
a friend. The superior of the company immediately replied the email asking Wang
Yong and Hu Shitai to confirm the truthfulness of the above-mentioned information.
In the evening of the same day, Wang Yong received the email sent by Hu Shitai, in
which Hu expressed he also got the same information.
Wang Yong also explained in the confession that besides the sales work in the
Shanghai Representative Office of Luo Park Company, Wang Yong was also
responsible for collecting relevant information of China iron and steel enterprises and
China Iron and Steel Association.
5. Confession of the defendant Hu Shitai proves that: in the evening of Jun. 8, 2009,
Hu met Tan Yixin in China World Hotel Beijing, in the talking process between the
two persons, Tan disclosed the information to Hu about the information of Companhia
Vale do Rio Doce on iron ore sales strategy to China. In the AM of the 17th day of the
same month, Hu Shitai received the emails sent by superior of Luo Park Company to
Wang Yong and Hu Shitai, etc. asking for information about the negotiation on iron
ore price between China iron and steel enterprises and Companhia Vale do Rio Doce.
On the very day, Hu also received the emails from Wang Yong and superior of Luo
Park Company respectively, and Wang reported information about the negotiation on
iron ore import price between China’s iron and steel enterprises and Companhia Vale
do Rio Doce, and the superior required to confirm the truthfulness of such kind of
information. Then Hu Shitai replied via email according to the above-mentioned
information disclosed by Tan Yixin and expressed that he had already gotten such
similar information.
6. The confession of Tan Yixin, the person concerned in the case, proves that: in the
afternoon of Jun. 17, 2009, Tan Yixin, Shu Hong and Ding Xiaojia went to Shanghai
Representative Office of Luo Park Company to negotiate with Wang Yong, etc. with
regard to the iron ore import price. In the negotiation process, Tan disclosed to the
other party that Chinese party had conducted negotiation on iron ore price with
Companhia Vale do Rio Doce, and the things were progressing smoothly, and the
other party allowed the Chinese party to open L/C at a certain price.
7. Judicial Expertizing Position Paper given by Beijing Guoke Intellectual Property
Right Authentication Center proves that: the information relating to the negotiation
between the Chinese party and Companhia Vale do Rio Doce as recorded in the
emails sent by Wang Yong is identical to the commercial secret about the negotiation
between China Iron and Steel Association and Companhia Vale do Rio Doce as
claimed by International Trading Company affiliated to Capital Iron and Steel
Corporation; this information was not generally known to the public prior to Jun.17,
2009 and had been kept in confidence by the right holder via confidentiality measures;
this information was of important reference value to other iron ore suppliers, and if
the international suppliers of iron ore could get the information prior to the
announcement of relevant information, they would be able to get ready for the
countermeasures in advance aimed at negotiating with China’s iron ore negotiation
panel and thus it would place the Chinese party in an unfavorable condition in the
negotiation, so this information was of practical use. To sum up, this information
belonged to commercial secret.
8. Testimony of the witness Su Genqiang and relevant circumstance description and
confidentiality regulations presented by International Trading Company affiliated to
Capital Iron and Steel Corporation and Circumstance Description and Report
Materials on Investigation Conditions presented by China Iron and Steel Association
prove that: the International Trading Company affiliated to Capital Iron and Steel
Corporation claims that the information relating to negotiation on iron ore price
between the Chinese party and Companhia Vale do Rio Doce belonged to commercial
secret and confidentiality measures for the information had been taken.
(V) On Apr. 18, 2005, the defendant Wang Yong knew, in the process of receiving
Fang Zeshan, Director of Foreign Economic and Trade Division of Shandong Shiheng
Special Steel Company, who paid the visit to Shanghai, that Fang hoped that his unit
could become the long-term agreement customer of Luo Park company, so Wang
Yong took the chance to get the information of China Iron and Steel Association from
Fang relating to China Iron Ore Import Commission announced in the meeting held in
Wuxi (hereinafter referred to as Wuxi meeting) on the 15th day of the same month. On
the AM of next day, Wang Yong sent the above-mentioned information via email to
the principal of Shanghai Representative Office of Luo Park Company. It is identified
that the above-mentioned information belonged to commercial secret.
The evidences that can confirm the above-mentioned facts include:
1. The evidences such as relevant emails, Judicial Expertizing Report issued by
Shanghai Hengping Judicial Authentication Center and list of articles and documents
withheld from the investigation authority, etc. prove that: Wang Yong sent emails to
his superior at AM of Apr. 19, 2005 and reported the information of China Iron and
Steel Association in Wuxi meeting relating to China Iron Ore Import Committee and
explained that the meeting’s contents belonged to confidential information, and his
superior immediately replied emails asking Wang Yong to forward this information to
executives of Luo Park Company.
2. The confession of the defendant Wang Yong in the investigation stage proves that:
on April 18, 2005, Fang Zeshan went to Shanghai and paid a visit to Wang Yong in
order to make his unit become the long-term agreement customer of Luo Park
Company. In the meeting, Fang introduced relevant contents of Wuxi meeting of
China Iron and Steel Association and said the meeting contents were very confidential.
Wang Yong recorded the contents told by Fang in the work notes according to the
requirements of his company and sorted out the relevant information of China Iron
Ore Import Commission disclosed by Fang in combination with relevant coverage on
the internet in the evening of the same day and then reported to his superior via email.
3. Testimony of the witness Fang Zeshan proves that: China Iron and Steel
Association held a meeting in Wuxi city during the period of Apr. 14 to Apr.15, 2005,
and the rough content of the meeting was about the establishment of an Iron Ore
Import Commission and determined some specific affairs of the commission. The
China Iron and Steel Association required all of the attending units to keep
confidential to the meeting’s contents and Shandong Shiheng Special Steel Company
also has confidentiality regulations on commercial secrets. On Apr. 18, 2005, Fang
and Wang Zhaolei, clerk of Commercial Transportation Section of Fang’s company
went together to Shanghai Representative Office of Luo Park Company and paid a
visit to Wang Yong, with the purpose of making the company become the long-term
agreement customer of Luo Park Company and purchasing the spots. In the meeting
process, through the inquiry of Wang Yong, Fang disclosed the information of Wuxi
meeting of China Iron and Steel Association relating to China Iron Ore Import
Commission. Fang Zeshan also expressed that the purpose of telling Wang Yong the
above-mentioned information was to ask Wang Yong for help in making Shandong
Shiheng Special Steel Company become the long-term agreement customer and
purchasing the spots given the fact that Luo Park Company where Wang was
employed was in an advantageous position in the iron ore trade. In the end of August
2005, Wang Yong provided a vessel of iron ore spots to the company where Fang
Zeshan was employed according to the market spot price.
4. Testimony of the witness Wang Zhaolei proves that: on Apr.15, 2005, Wang Zhaolei
once went to Wuxi together with Fang Zeshan to attend a meeting, however Wang did
not enter into the meeting venue. After the meeting, the two persons also went to
Shanghai together to meet Wang Yong of Luo Park Company, and in the meeting
process, Wang Yong asked Fang Zeshan the information relating to China Iron Ore
Import Commission.
5. Judicial Expertizing Position Paper given by Beijing Guoke Intellectual Property
Right Authentication Center proves that: the information recorded in the emails sent
by Wang Yong about Wuxi meeting of China Iron and Steel Association relating to
Iron Ore Import Commission is identical to the relevant commercial secret of Wuxi
meeting claimed by the right holders such as International Trading Company affiliated
to Capital Iron and Steel Corporation, etc.; which information was not generally
known to the public prior to Apr.19, 2004 and had been kept in confidence by the
right holder via confidentiality measures; this information had commercial value and
could bring economic benefits and competitive edge to the right holders, and was of
practical use. To sum up, this information belonged to commercial secret.
6. The Circumstance Description and confidentiality regulations and confidentiality
agreement presented by more than 10 right holders such as Changzhi Iron and Steel
(Group) Co., Ltd., Shaanxi Longmen Iron and Steel (Group) Co., Ltd., etc. prove that:
the above-mentioned information belonged to commercial secret, and relevant iron
and steel enterprises had all taken confidentiality measures.
7. The documented evidences such as Circumstance Description and Report Materials
on Investigation Conditions etc. presented by China Iron and Steel Association prove
that: China Iron and Steel Association held a meeting in Wuxi on Apr. 15, 2005, and
relevant contents belonged to commercial secrets and the meeting had worked out
clear provisions on confidentiality matters.
(VI) On Nov.29, 2005, Wang Lizhong, Chief Representative of Beijing Representative
Office of Hamersley China Co., Ltd. met with Tan Yixin in International Trading
Company affiliated to Capital Iron and Steel Corporation, negotiate the issue relating
to the requirement of International Trading Company affiliated to Capital Iron and
Steel Corporation for purchasing the iron ore, and Wang Lizhong took the chance to
get the information from Tan that the International Trading Company affiliated to
Capital Iron and Steel Corporation once purchased iron ore from BHP Billiton Ltd.
(hereinafter referred to as BHP Billiton Company) at an increased price. Next day,
Wang Lizhong sent this information via email to Hu Shitai. It is identified that the
above-mentioned information belonged to commercial secret.
The evidences that can confirm the above-mentioned facts include:
1. The evidences such as relevant emails, Judicial Expertizing Report issued by
Shanghai Hengping Judicial Authentication Center and list of articles and documents
withheld from the investigation authority, etc. prove that: Wang Lizhong sent emails
to the defendant Hu Shitai on Nov.30, 2005 and reported that He and Tan Yixin met in
International Trading Company affiliated to Capital Iron and Steel Corporation on the
29th of the same month and Tan hoped that Hamersley China Co., Ltd. could help
them solve the problem of short of raw materials and expressed they would like to add
price on the basis of long-term agreement contract price, and through further inquiry
about the specific circumstance, Tan disclosed the information that the International
Trading Company affiliated to Capital Iron and Steel Corporation once purchased iron
ore from BHP Billiton Company at an increased price.
2. The confession of the defendant Hu Shitai corroborates the contents of the email
stated by Wang Lizhong above, and proves that Wang Lizhong is the Chief
Representative of Beijing Representative Office of Hamersley China Co., Ltd., whose
rank is lower than Hu and needs to report relevant affairs to Hu.
3. The confession of Tan Yixin, the person concerned in the case, proves that: on Nov.
29, 2005, Tan Yixin met Wang Lizhong in International Trading Company affiliated to
Capital Iron and Steel Corporation and negotiated the issue of increasing the purchase
quantity of the iron ore to be purchased by International Trading Company affiliated
to Capital Iron from Hamersley China Co., Ltd.. In the negotiation process, Tan put
forward that his company was facing the problem of short of iron ore and hoped the
other party could help and moreover, the company could add price on the basis of
long-term agreement contract price, and expressed the company already had signed
similar agreement with BHP Billiton Company before. Then Wang Lizhong
questioned closely the specific price, and Tan disclosed the information that they
purchased more iron ore at increased price from BHP Billiton Company.
4. Testimony of the witness Shu Hong (Vice Director of Mining Department of
International Trading Company affiliated to Capital Iron and Steel Corporation)
proves that: in November, 2005, it was Tan Yixin who was responsible for negotiating
the issue of increasing the purchase quantity of iron ore with other parties on behalf of
International Trading Company affiliated to Capital Iron and Steel Corporation.
5. Judicial Expertizing Position Paper given by Beijing Guoke Intellectual Property
Right Authentication Center proves that: the information recorded in the email sent by
Wang Lizhong about that the International Trading Company affiliated to Capital Iron
and Steel Corporation purchased iron ore at increased price from BHP Billiton
Company is identical to the relevant commercial secret of purchasing more iron ore at
an increased price claimed by International Trading Company affiliated to Capital
Iron and Steel Corporation; which information was not generally known to the public
prior to Nov.30, 2005 and had been kept in confidence by the right holder via
confidentiality measures; this information had commercial value and could bring
economic benefits and competitive edge to the right holder, and was of practical use.
To sum up, this information belonged to commercial secret.
6. The Circumstance Description on Confirming and relevant confidentiality
regulations prove that: the above-mentioned information belonged to commercial
secret, and relevant iron and steel enterprises had all taken confidentiality measures.
7. The documented evidences such as Description on Confirming Whether Clews are
Commercial Secrets of International Trading Company Affiliated to Capital Iron and
Steel Corporation and relevant confidentiality regulations presented by International
Trading Company affiliated to Capital Iron and Steel Corporation prove that: the
information about purchasing more resources at increased prices by International
Trading Company affiliated to Capital Iron and Steel Corporation which was gotten
by Wang Lizhong when meeting with Tan Yixin should belonged to commercial secret
and the company had taken confidentiality measures..
(VII) In mid January 2008, HU Shitai, the defendant, learned that China Iron &
Steel Association was having a meeting in Nanning at that time (referred to as
“Nanning Conference”), he therefore incited other defendants named GE Minqiang
and WANG Yong et al to gather conference information. On the 17th of the same
month, exploiting the iron ore trading advantageous position of Rio Tinto, GE
Minqiang acquired relevant information of the Nanning Conference from SHEN
Qiang, Chief of the Business Transport Section of Handan Steel Group, and reported
the same to HU through telephone. The same day, WANG Yong et al also gathered
relevant information of the Nanning Conference, and provided the same to HU via
e-mail. The following day, HU Shitai reported the above information to his superior.
On 21st of the same month, GE Minqiang exacted the minutes of Nanning Conference
from SHEN Qiang. Upon appraisal, the relevant information of the Nanning
Conference of China Iron & Steel Association pertains to trade secret.
Evidences to determine the above facts are as follows:
1. Evidences such as relevant e-mail, “Judicial Appraisal Inspection Report” of
Shanghai Municipal Hengping Judicial Appraisal Center, and list of seized articles
and documents by the crime investigation unit testify that: HU Shitai sent e-mail to
GE Minqiang and WANG Yong et al on January 17th 2008, demanding that they
gather relevant information of the Nanning Conference of China Iron & Steel
Association; the same day, WANG Yong et al sent e-mail to HU Shitai, reporting the
relevant information of the Nanning Conference; the following day, via e-mail also,
HU Shitai reported the above information to this superior; a few days later, SHEN
Qiang also sent the minutes of the Nanning Conference to GE Minqiang via e-mail.
2. Confessions by the defendant HU Shitai testify that: in January 2008, upon
learning that China Iron & Steel Association was having a meeting in Nanning, HU
therefore arranged his subordinates to gather relevant information. Afterwards, GE
Minqiang and WANG Yong et al successively obtained contents of the Nanning
Conference, and reported the same to HU via telephone and e-mail respectively, and
in turn, HU also reported the same to his superior.
3. Testimonies by witness SHEN Qiang and certifying materials issued by
Handan Steel Group testify that: on January 17th 2008, SHEN Qiang attended the
Nanning Conference of China Iron & Steel Association. The same day, GE Minqiang
called SHEN Qiang to inquire about the contents of the Nanning Conference, and
SHEN then disclosed the relevant information, and upon request, SHEN Qiang sent
the minutes of the Nanning Conference to GE via e-mail. In his testimony, SHEN
Qiao also explained that the reason he disclosed to GE the relevant information of the
Nanning Conference of China Iron & Steel Association is that Rio Tinto has
restrictions on Chinese iron and steel enterprises in terms of the volume of goods
supply and time of shipment etc., and therefore he consented to the request of GE
Minqiang.
4. Confessions by the defendant GE Minqiang during the investigation stage
testify that: in January 2008, per the demand of HU Shitai, GE Minqiang learned
about the relevant information of the Nanning Conference from SHEN Qiang, and
reported the same to HU via telephone. A few days later, GE also obtained the
minutes of the Nanning Conference from SHEN. GE also confessed that the reason
SHEN Qiang disclosed to him the relevant information of the Nanning Conference is
that Rio Tinto is in an advantageous position in iron ore trading, and therefore SHEN
generally satisfies his demand as much as possible.
5. Confessions by the defendant WANG Yong during the investigation stage
testify that: in the early of 2008, HU Shitai demanded that WANG Yong et al gather
reactions of Chinese iron and steel enterprises towards Rio Tinto’s putting of spot
goods of ore into the Chinese market, and WANG sent at one time the relevant
information to HU Shitai via e-mail.
6. “Judicial Appraisal Position Paper” of Beijing Intellectual Property Appraisal
Center testifies that: the relevant information of the Nanning Conference of China
Iron & Steel Association recorded in the relevant e-mail is the same as the relevant
trade secret of the Nanning Conference claimed by the creditor; the said information
was not being generally known to the public before January 17th 2008, and for which
security measures were adopted by the creditor; the said information can bring the
creditor competitive advantages and economic benefits, and is therefore practical. To
sum up, the said information pertains to trade secret.
7. Explanation of conditions presented by more than 10 iron and steel enterprises,
including Jigang Group Co., Ltd. etc., and relevant security & secrecy regulations,
“explanation of conditions” and “Materials of Report on Conditions of Investigation”
furnished by China Iron & Steel Association, speech at the Nanning Conference by
LUO Bingsheng (Standing Vice President of China Iron & Steel Association),
testimonies by witness SU Guanglan (Deputy General Manager of Qingao Iron and
Steel Group Co., Ltd.) as well as the written notes concerning circumstances of the
Nanning Conference provided by him testify that: the relevant information of the
Nanning Conference of China Iron & Steel Association pertains to trade secret, for
which, the creditor has adopted security & secrecy measures.
(VIII) In October 2008, to cope with the situation of decrease of demand of the
ore market at that time, the defendant HU Shitai arranged employees of Rio Tinto at
its Shanghai Representative Office to gather relevant information concerning Chinese
iron and steel enterprises. In the afternoon of 19th of the same month, the defendant
LIU Caikui obtained illegally information concerning reduction of output of
Shougang Group of China Iron & Steel Association during the production
management symposium (referred to as “The Beijing Conference”) held in Beijing on
October 17th of the same year, and then sent such information to HU Shitai et al via
e-mail. Upon appraisal, the above information pertains to trade secret.
Evidences that determine the above facts are as follows:
1. Evidences such as relevant e-mail, “Judicial Appraisal Inspection Report” of
Shanghai Municipal Hengping Judicial Appraisal Center, and list of seized articles
and documents by the crime investigation unit testify that: on October 19th 2009, LIU
Caikui sent e-mail to HU Shitai et al, reporting the information of China Iron & Steel
Association concerning reduction of output of Shougang Group, and expressed that he
would continue to understand more details of the said conference.
2. Confessions by the defendant LIU Caikui testify that: starting October 2008,
the international iron ore price slumped, which directly affected the production and
sales of Rio Tinto, to which the high management of the Company were relatively
anxious. Under this background, HU Shitai demanded that his sales personnel should
understand the relevant conditions of its long-term collaborative Chinese customers.
Afterwards, LIU Caikui obtained the relevant information of the Beijing Conference
of China Iron & Steel Association from the relevant personnel of its long-term
collaborative customers, and furnished the same to HU Shitai et al via e-mail.
3. Confessions by the defendant HU Shitai testify that: in the second half of 2008,
due to the financial turmoil, iron ore sales of Rio Tinto to China suffered relatively
bigger impact. The Headquarters of Rio Tinto in Singapore was very anxious, and
conducted a tele-conference, demanding that its China Representative Office should
understand the production conditions of its Chinese customers. After the meeting, HU
Shitai arranged that staff of its Shanghai Representative Office should go to gather
relevant information. Thus, in October 2008, LIU Caikui gathered the relevant
contents of the Beijing Conference of China Iron & Steel Association, and reported
the same to HU via e-mail on the 19th of the same month.
4. “Judicial Appraisal Position Paper” of Beijing Intellectual Property Appraisal
Center testifies that: the information of the Beijing Conference of China Iron & Steel
Association concerning reduction of output by Shougang Group recorded in the
e-mail sent by LIU Caikui is the same as the relevant trade secret claimed by such
creditor as Shougang International Trade and Engineering etc.; the said information
was not being generally known to the public before October 19th 2008, and for which
security measures were adopted by the creditor; the said information has its
commercial value and can bring the creditor economic benefits and competitive
advantage, with therefore practical significance. To sum up, the said information
pertains to trade secret.
5. Written testimonies, such as “Explanation of Conditions” presented by more
than 10 iron and steel enterprises, including Shougang International Trade and
Engineering and Handan Steel Group etc., as well as “Notice Concerning
Convocation of Management Symposium for Iron and Steel Production Enterprises”
and “Materials of Report on Investigation Conditions” etc., testify that: China Iron &
Steel Association organized a number of domestic iron and steel enterprises to
conduct a production management symposium in Beijing on October 17th 2008, and
relevant contents should pertain to trade secret, for which, the creditor also adopted
security & secrecy measures.
Further investigations: the above acts of the defendants HU Shitai, WANG Yong,
GE Minqiang, and LIU Caikui have seriously affected and damaged the competitive
interests of the relevant iron and steel enterprises of China, put them into a
disadvantageous position in iron ore import negotiations, and resulted in the abrupt
suspension of the iron ore price negotiation between Chinese iron and steel enterprises
and Rio Tinto Company, causing enormous economic loss by relevant iron and steel
enterprises of China. Of which, more than 20 work units, including Shougang
International Trade and Engineering and Laiwu Steel International Trade and
Engineering (莱钢国贸公司) etc., paid extra advance amounting to RMB 1.018
billion, and the interest loss of the second half of 2009 alone had reached more than
RMB 11.7030 million.
Aside from confessions of the aforementioned relevant defendants, testimonies of
the witnesses and judicial appraisal position papers, evidences that determine the
above facts also include “Assets Evaluation Report” of China United Assets Appraisal
Co. Ltd., as the said reports testify that: the infringing party of the trade secret of the
case adopted illegal measures to have obtained trade secret, and caused enormous
economic loss by Chinese iron and steel enterprises. After mastering such trade secret
as relevant negotiation strategies of Chinese iron and steel enterprises etc., in the
negotiation of 2009, Rio Tinto Company breached the routine practices of iron ore
negotiations, abruptly suspended its negotiation with Chinese iron and steel
enterprises, and turned to Japan for negotiation, resulting the negotiation with Chinese
iron and steel enterprises into a deadlock, and up to the present, there is no negotiation
finalized yet. Chinese iron and steel enterprises were therefore forced to accept the
conditions raised by Rio Tinto to open letter of credits according to the advance of the
price of 2008. However, as the price of the said advance was higher than the iron ore
price of the 2009 contractual year reached between Nippon Steel and Rio Tinto, the
relevant creditors of the case had to pay extra advance for payment of import goods
and suffer interest loss. As of December 20th 2009, relevant creditors had paid extra
payment of goods amounting to RMB 1.018 billion, of which, interest loss from extra
advance payment from July 1st to December 20th totaled RMB 11.7030 million.
The above evidences have court evidence presentations and evidence
impeachment, and all these evidences can mutually confirm each other, and the court
decides to admit these evidences.
In view of the main points of dispute between the complaints and the defendants,
the court judges as follows:
I. Part concerning bribery of non-state personnel
(I) Problem concerning whether the defendants WANG Yong and GE Minqiang
have the principal qualifications of bribery crime of non-state personnel.
All defenders of the defendant WANG Yong and GE Minqiang advanced that the
above two defendants do not have the principal qualifications of bribery crime of
non-state personnel.
Upon investigation, relevant written evidences testify that both the Rio Tinto
Singapore Company Shanghai Representative Office and Robe Company Shanghai
Representative Office had applied for registration in the relevant industrial and
commercial administrative departments of China, pertaining therefore to permanent
representative units of foreign companies in China, representing Rio Tinto Singapore
Company and Robe Company to carry on iron ore trading operations with China
respectively, and as staff of the aforementioned representative offices, both defendants
WANG Yong and GE Minqiang belong to the category of staff of foreign companies.
According to provisions of Article 6 of the Criminal Law of China concerning
territorial effects, foreign companies and their staff committing crimes in the Chinese
territory shall be convicted and penalized according to relevant provisions of the
Criminal Law of China. Therefore, the defendants WANG Yong and GE Minqiang
have the principal status of bribery crime of non-state personnel.
(II) The problem concerning whether the acceptance of RMB 3 million by the
defendant WANG Yong from Tianjin Rockcheck Company constitutes bribery
The defender puts forwards that with respect to the key component of seeking
interests for Tianjin Rockcheck Company, the testimony by witness ZHANG
Xiangqing is inconsistent with the confession of WANG Yong, determining that the
evidence of WANG Yong seeking benefits for others is insufficient, and therefore the
fact in this regard can hardly be determined.
Upon investigation, (it is discovered that) ZHANG Xiangqing with Tianjin
Rockcheck Company had all the time stated that he had given WANG Yong RMB 3
million, to which, WANG Yong had never objected to the acceptance of the above
amount of money. The difference of statements of both parties however lies in that:
WANG Yong stated in his confession during the criminal investigation stage that the
benefits he sought for Tianjin Rockcheck Company was to help the company to
become a long-term collaboration customer and change the iron ore product varieties
etc.; according to the statement of ZHANG Xiangqing however, the benefits that
WANG Yong sought for Tianjin Rockcheck Company was to load and ship more iron
ore. This court reckons that, with respect to acceptance of money, opinions of the
above two persons are consistent, but differ in the understanding of the benefits
sought. However, this difference does not affect the determination in the fact that the
defendant sought benefits for others, a key component of bribery. Therefore, the act of
WANG Yong accepting the above amount of money should be regarded as act of
bribery.
(III) The problem concerning whether the acceptance of USD 9 million by the
defendant WANG Yong from Rizhao Steel Group constitutes bribery
Both the defendant WANG Yong and his defender advance that the USD 9
million indicted in the accusation is not bribery to WANG Yong by Rizhao Steel
Group, rather loans of WANG Yong from Rizhao Jie’an Company and Rizhao Dahai
Company.
Upon investigation, (it is discovered that) the fact of this instance was the
accounts on WANG Yong’s own initiative when the criminal investigation unit had
not yet mastered the facts, and his confession testifies that, by exploiting the
convenience of his own post, WANG sought enormous economic benefits for Rizhao
Steel Group in areas of spot goods supply, shipping schedule arrangement, fare
adjustment, and change of iron ore varieties etc. In 2007, WANG Yong exacted USD
9 million from DU Shuanghua in the name of winning money through gambling, and
demanded that Rizhao Steel Group remitted the same to WANG Yong’s own bank
account in Hong Kong in two installments from 2007 to 2008. The above statements
have been confirmed by the testimonies of the witness DU Shuanghua in the subject
of bribery and the course of bribery etc., and they are also supported by written
evidences such as relevant remittance vouchers etc. Secondly, WANG Yong altered
his original confession or statements in the court, arguing that the USD 9 million was
loans from Rizhao Jie’an Company and Rizhao Dahai Company. However, this had
never been mentioned in his confession during the criminal investigation stage. From
the analysis of logical thinking, this kind of allegation to cover up the subject of
borrowing of loans through self-incrimination to avoid the important and dwell on the
trivial is not logical, and therefore can hardly hold water. Thirdly, the allegations of
WANG Yong in the court not only failed to get confirmation from the testimony of
DU Shuanghua, but also contradicted to the testimony of the business manager of the
aforementioned two companies WANG Wei made in front of the criminal
investigation unit. The testimony of the witness DU Shuanghua testifies that the USD
9 million was paid in the form of payments of goods of Rizhao Jie’an Company and
Rizhao Dahai Company, and in fact, the said loan had nothing to do with payment of
goods. The testimony of WANG Wei during the criminal investigation stage testifies
that the abovementioned two companies had certainly transferred more than RMB 40
million to the account of Rizhao Steel Group, but this was to return to Rizhao Steel
Group the extra amount paid in the iron ore trading, and not loans of WANG Yong.
Written evidences, such as alteration of price agreement, and invoices etc., supported
the above facts. Therefore, the allegation of WANG Yong that the USD 9 million was
loan borrowed from Rizhao Jie’an Company and Rizhao Dahai Company has no basis,
is groundless, and therefore cannot stand.
(IV) The problems concerning whether the acceptance of RMB 3 million by the
defendant WANG Yong from Rizhao Steel Group constitutes bribery
Both the defendant WANG Yong and his defender put forward that the said
amount was loan borrowed by WANG from Rizhao Steel Group.
Upon investigation, (it is discovered that) during the criminal investigation stage,
WANG Yong stated on his own initiative that, based on his great deal of supports
extended to Rizhao Steel Group, when WANG advanced that he would buy a house in
Shanghai, DU Shuanghua gave WANG Yong RMB 3 million. This statement had been
confirmed by the testimony of the witness DU Shuanghua. With respect to the
allegations of WANG Yong in the court hearing, the court deems that, from the point
of view of his personal assets conditions and the great amount of cash seized from his
home, (it is clear that) there is no just cause that WANG Yong needs to borrow money
because of lack of economic resources, and therefore his alleged reasons for
borrowing of loans cannot stand. As far as the objective act is concerned, though
WANG Yong alleged that the RMB 3 million was borrowed loan, yet WANG
intentionally collected the said amount in cash via secret channel and did not present
any receipt for a loan (IOU), neither had both parties agreed on the time for loan
repayment, nor had he ever expressed intention of repayment of the said loan to
Rizhao Steel Group. Hence, the act of WANG’s acceptance of RMB 3 million from
Rizhao Steel Group does not conform to the general characteristics of a loan, and
therefore should be regarded as bribery.
(V) The problem concerning whether the acceptance of money by the defendant
GE Minqiang from four work units, including Sinochem International Co. etc.,
constitutes use of advantage of his position to gain undue benefits
The defendant GE Minqiang and his defender both advance that GE has no the
use of advantage of his position to gain undue benefits as indicated in the accusation.
Upon investigation, the testimony of the witness LIANG Ruodong testifies that,
GE Minqiang is specifically responsible for the iron ore business of Rio Tinto to
Sinochem International Co., and he has the power to decide whether or not to give
spot goods to Sinochem International Co. The testimony of the witness LI Huiming
testifies that, without GE Minqiang’s recommendation, Hebei Jingye Steel & Iron Co.,
Ltd. could hardly become a long-term collaboration customer of Rio Tinto. Testimony
of the witness GAO Bo testifies that GE Minqiang has the right of suggestion as to
which enterprises can be developed and become long-term collaboration customer of
Rio Tinto and also the iron ore handling right. During the criminal investigation stage,
the defendant GE Minqiang confessed the same to the above facts. The court therefore
deems that, the above evidences fully certify that the defendant GE Minqiang has the
advantage of position to gain undue benefits such as recommending long-term
collaboration customer and iron ore sales etc., and it is precisely because of the
abovementioned advantage of GE Minqiang’s position to gain undue benefits that the
four work units, including Sinochem International Co. etc., gave him huge amount of
money, and as such, the allegations and the opinion of defense of the defendant GE
Minqiang and his defenders on this point are not admitted by this court.
(VI) The problem concerning determination of the amount of bribery accepted by
GE Mingqiang from the four work units, including Sinochem International Co. etc.
The defendant GE Minqiang and his defenders brought forward that the amount
of bribery should be determined according to the amount of actual distribution of GE
himself.
Upon investigation, testimonies of the witnesses LI Tao and LI Bo testify that the
“benefits fee” or “gratitude fee” paid by the relevant units was given to GE Minqiang,
and as such GE himself will decide on how to distribute, and the so-called
intermediate agreement or commission etc. were nothing but form, and the essence
was to collect benefits through the company of LI Tao and LI Bo as a platform.
During the criminal investigation stage, confessions of the defendant GE Minqiang
also testify that GE and GAO Bo had formed an informal agreement: GAO Bo will
appear personally to negotiate with the iron and steel plant on the specific standard of
fee collection, and therefore will be acting as a “firewall” to block any adverse
circumstances in his front. This court deems therefore that, the above evidences have
fully proved that the fact that LI Tao, Li Bo and GAO Bo are intermediates as
advanced by the defender does not exist, and the money collected by LI Tao et al is
not intermediate fee, as they were just commissioned by GE Minqiang to appear
personally to operate the specific matters of bribery, and therefore GE should assume
corresponding criminal responsibilities for the total amount of bribery paid by the four
work units, including Sinochem International Co., etc., and the actual amount of his
personal acquisition may be taken into consideration as circumstances of
quantification of punishment.
(VII) The problem concerning whether the acceptance of money by the defendant
LIU Caikui from Anyang Baotaiying Group Co., Ltd., Hong Kong Pan-Asia Company,
and Shanghai Falcon International Trade Co., Ltd. constitutes use of advantage of
position to gain undue benefits
The defendant LIU Caikui and his defendant both advanced that LIU’s
acceptance of money from Anyang Baotaiying Group Co., Ltd., Hong Kong Pan-Asia
Company, and Shanghai Falcon International Trade Co., Ltd. do not constitute use of
advantage of position to gain undue benefits.
Upon investigation, testimony of the witness GUAN Shusheng testify that
Anyang Baotaiying Group Co., Ltd. had no qualification for direct import of iron ore
from abroad, and as such, it must have the support of enterprises with qualifications;
without the help of LIU Caikui, Anyang Baotaiying Group Co., Ltd. would have no
way to purchase low price iron ore. The testimony of the witness GAO Xiang testifies
that, as a trader, Hong Kong Pan-Asian Company has no qualification to participate in
iron ore public bidding, and with the help of LIU Caikui, the said company was able
to participate in the competitive public bidding in the name of Shandong Shiheng
Special Steel Group. The testimony of the witness MING Gang testifies that, LIU
Caikui specifically handled the matter of Shandong Yongfeng Iron & Steel
International Trade Co., Ltd. for purchase of 170,000 tons of iron ore, and asked the
said company to give out half shipment of iron ore to Shanghai Falcon International
Trade Co., Ltd. Confessions of LIU Caikui supported the above facts. This court
believes that, although Anyang Baotaiying Group Co., Ltd., and Shanghai Falcon
International Trade Co., Ltd. had no direct business contact with Rio Tinto Company,
and Hong Kong Pan-Asian Company participated in the competitive public bidding of
Rio Tinto in the name of Shandong Shiheng Special Steel Group, the reason the above
work units gave the defendant LIU Caikui money is that LIU has the advantage of
position for iron ore spot sales to gain undue benefits and used the said advantage to
have promoted realization of the transaction, and in the process of the above
transactions, the position factors of LIU is obvious, and therefore, to the allegations
and the opinion of defense of the defendant GE Minqiang and his defenders on this
point are not admitted by this court.
(VIII) The problem concerning whether the part of bribery of the defendant
WANG Yong as non-state personnel constitutes self-surrender
The defender advances that WANG Yong did not deny the basic fact of crime of
bribery and his allegation to the nature of the act does not affect establishment of
self-surrender.
The court believes that, with respect to the USD 9 million and the RMB 3 million
given to WANG Yong by Rizhao Steel Group and the alteration of statement or
confession of WANG Yong to the criminal investigation stage in the court hearing,
claiming that they are loans from Rizhao Jie’an Company, Rizhao Dahai Company,
and Rizhao Steel Group, this allegation is a denial of the objective fact, and does not
pertain to allegation to the “nature of the act”. At the same time, the facts of these two
instances constitute the main part of WANG Yong’s crime of bribery and, according to
relevant laws and provisions of the jurisdictional interpretation, his act cannot be
re-determined as self-surrender. However, his confession of the facts of his acceptance
of money from the four work units, including Tianjin Rockcheck Company etc.,
during his criminal investigation stage and court hearing at a time when the judicial
unit has not yet mastered, may be taken into account during quantification of his
criminal punishment.
II. Part of infringement of trade secret
1. Regard to whether the information in the case is the trade secret
The defense side argues that in eight pieces of information in this case, the Wuxi
Meeting and Nanning Meeting of China Iron & Steel Association, the information
related to production reduction of Shougang Group, and No. 66 document do not bear
the nature of non-publicity or utility, so they do not belong to the trade secret.
Through investigation, the evidences of the position paper of relative judicial
expertise, and the statements provided by the right holders of Shougang International
Trade & Engineering Corp., etc., before the acquisition of the eight pieces of
information in this case by the plaintiffs, the units of relative rights had all adopted the
measures of confidentiality, the relative persons letting out the secret also knew their
obligation of confidentiality, and the information had not been declassified before the
plaintiffs acquired the relative information, so the above information is in the nature
of non-publicity; from the content of relative information, each piece of information is
related to the iron ore trade and the trade bargaining, directly relates to the economic
interest of the right holders, is able to create the competitive edge for the right holders,
and possesses the utility. Therefore the above information meets the characteristics of
trade secret regulated in Article 219 of the Criminal Law, should be regarded as the
trade secret, the relative plea of the defense side cannot hold, and the relative
evidences provided by the defense for supporting such argument are incredible.
2. Regard to whether four plaintiffs adopt bribery and other illegal means to acquire
the trade secret
The defense side argues that in eight pieces of information in this case, a part of them
were provided by the personnel of relative enterprises on their own initiative, a part
was transferred to the plaintiffs after the acquisition of others, the specific sources of a
part are unclear, so it cannot be determined that the four plaintiffs adopt bribery and
other illegal means to acquire the trade secret.
Through investigation, the statements of Hu Shitai, Ge Minqiang, Liu Caikui, and
Wang Yong, et al. prove that the employees of the Shanghai Representative Office of
Rio Tinto Singapore and the Shanghai Representative Office of Robe bear the duty of
collecting information, and under the specific circumstances, Hu also arranged the
subordinate employees to collect the specific information. Secondly, the statements of
four plaintiffs and Tan Yixin, the person involved in the case, and the testimonies of
Fang Zeshan and Shen Qiang, et al. prove that in the occasions when the relative
Chinese steel enterprises asked to buy iron ore or requested to become the clients of
long-term cooperation, the plaintiffs acquired partial information of this case.
Furthermore, according to the statements of several plaintiffs and persons involved in
the case, in many years, Rio Tinto and Robe mostly occupied the advantageous
position in the trade of iron ore with China, so the relative persons of the Chinese
steel enterprise would satisfy their demand as possible when the plaintiffs inquired
about the information involved in the case. Lastly, the evidences of the position paper
of judicial expertise and the fact statements of the right holders prove that the right
holder had adopted the measures of confidentiality for these eight pieces of
information, and such could not be acquired through public channels. On the basis of
above, it can be determined that the above information was acquired by the plaintiffs
by bribery and other illegal means.
3. Regard to whether the loss assertion of this case is appropriate and whether there
is the causal relation between the leakage of relative information and the loss
The defense argues that the loss asserted in the indictment is inappropriate, and the
current evidences are not adequate to prove the causal relation between the behaviors
of plaintiffs of this case and the loss.
Through investigation, the statements of four plaintiffs, the testimonies of Fan
Chenghai and Su Genqiang, et al., and the fact statements produced by the right
holders of Shougang International Trade & Engineering Corp., etc. and the China Iron
& Steel Association all prove that the information related to the content of meetings of
China Iron & Steel Association and the respect of production and operation of
enterprises belong to the trade secret of relative enterprises; after acquiring the trade
secret related to negotiation strategies of the Chinese steel enterprises, the entity of
each plaintiff will certainly adopt the measures to put the Chinese steel enterprises in
a passive position in the bargaining, and such has generated the direct negative
influence on the negotiation of iron ore of the Chinese steel enterprises and their
interests in competition. The above facts have been further confirmed by the “Assets
Evaluation Report” of China United Assets Appraisal Co., Ltd., such evaluation report
was made by the eligible evaluation institution according to the necessary appraisal
procedure and through the methods of field interview, market investigation, and
evaluation and estimation, the fundamental data the evaluation is based on are
objective and true, the appraisal procedure is legal and effective, so the conclusion of
this evaluation should be admitted. In conclusion, the behavior of each plaintiff has
the causal relation with the serious loss suffered by the relative right holders, and
should bear the relative corresponding criminal responsibility.
4. Regard to whether plaintiff Liu Caikui has the surrendering action
The defense of Liu Caikui makes the plea that Liu Caikui told the total facts of
infringement of trade secret before the investigation organ got hold of them, so it
should be regarded as surrendering.
Through investigation, Liu Caikui did not surrender voluntarily, and the relative facts
of his infringement of trade secret had been grasped before his appearance, so it
cannot be asserted according to law that he has the surrendering action.
This court concludes that the plaintiffs of Hu Shitai, Wang Yong, Ge Minqiang and
Liu Caikui took the advantage of their position to seek interests for others, and
respectively asked for or illegally received the money items of others in gigantic
amount, so their behaviors have all constitute the crime of accepting bribes by
non-government employees; Hu Shitai, as the person in charge directly responsible to
the entity, and Wang Yong, Ge Minqiang and Liu Caikui, as the other directly
responsible persons of the entity, adopted the bribery and illegal means to acquire the
trade secret, and caused the serious consequence, their behaviors all also constitute the
crime of infringement of trade secret, so they should be punished for plural crimes
according to law. During investigation, Hu Shitai, Wang Yong, Ge Minqiang and Liu
Caikui surrendered truthfully the facts of crime of accepting bribes that had not yet
been grasped by the judicial authority, pleaded guilty on the court, and had the
surrendering action, so such can receive the lighter punishment according to law. In
view of that Hu Shitai, Ge Minqiang and Liu Caikui adopt the better attitude of
pleading guilty and showing penitence, the illicit money of Hu Shitai involved in the
case has been fully returned, and the illicit money of Wang Yong, Ge Minqiang and
Liu Caikui involved in the case has been partially returned, the above four plaintiffs
can receive the lighter punishment according to the circumstances, and the relative
submissions of the defense are admitted. Therefore, for maintaining the order of
market economy and the normal management activities of the companies and
enterprises, and protecting the legal rights of holders of trade secret from infringement,
according to the regulation of Article 163.1, Article 219, Article 220, Article 6, Article
69, Article 67, Article 53, Article 59 and Article 64 of the “Criminal Law of the
People’s Republic of China” as well as Article 7 of the “Interpretation of Some Issues
Concerning Specific Applicable Laws in Treating Criminal Cases in Regard to
Infringement of Intellectual Property Rights” of the Supreme People’s Court and the
Supreme People's Procuratorate, it is judged as follow:
1. Plaintiff Hu Shitai, accused of the crime of accepting bribe by non-government
employee, is sentenced to seven years of set term of imprisonment and RMB
500,000 Yuan of fine; accused of the crime of infringement of trade secret, is
sentenced to five years of set term of imprisonment and RMB 500,000 Yuan of
fine, and it is decided to implement the set term of imprisonment of ten years, and
impose the forfeit of property of RMB 500,000 Yuan, and a fine of RMB 500,000
Yuan.
(The term of imprisonment is counted from the date on which this judgment is
enforced. For the detainment before the enforcement of the judgment, one day of
detainment will offset one day of term of imprisonment, i.e., from July 5, 2009 to July
4, 2019. The fines should be paid to this court within one month from the date on
which this judgment comes into force.)
2. Plaintiff Wang Yong, accused of the crime of accepting bribe by non-government
employee, is sentenced to ten years of set term of imprisonment and forfeit of
property of RMB 5,000,000 Yuan; accused of the crime of infringement of trade
secret, is sentenced to three years of set term of imprisonment and RMB 200,000
Yuan of fine, and it is decided to implement the set term of imprisonment of
fourteen years, and impose the forfeit of property of RMB 5,000,000 Yuan, and a
fine of RMB 200,000 Yuan.
(The term of imprisonment is counted from the date on which this judgment is
enforced. For the detainment before the enforcement of the judgment, one day of
detainment will offset one day of term of imprisonment, i.e., from July 5, 2009 to July
4, 2023. The fines should be paid to this court within one month from the date on
which this judgment comes into force.)
3. Plaintiff Ge Minqiang, accused of the crime of accepting bribe by
non-government employee, is sentenced to six years of set term of imprisonment
and RMB 500,000 Yuan of fine; accused of the crime of infringement of trade
secret, is sentenced to three years and six months of set term of imprisonment and
RMB 300,000 Yuan of fine, and it is decided to implement the set term of
imprisonment of eight years, and impose the forfeit of property of RMB 500,000
Yuan, and a fine of RMB 300,000 Yuan.
(The term of imprisonment is counted from the date on which this judgment is
enforced. For the detainment before the enforcement of the judgment, one day of
detainment will offset one day of term of imprisonment, i.e., from July 5, 2009 to July
4, 2017. The fines should be paid to this court within one month from the date on
which this judgment comes into force.)
4. Plaintiff Liu Caikui, accused of the crime of accepting bribe by non-government
employee, is sentenced to five years of set term of imprisonment and forfeit of
property of RMB 300,000 Yuan; accused of the crime of infringement of trade
secret, is sentenced to four years of set term of imprisonment and RMB 400,000
Yuan of fine, and it is decided to implement the set term of imprisonment of seven
years, and impose the forfeit of property of RMB 300,000 Yuan, and a fine of
RMB 400,000 Yuan)
(The term of imprisonment is counted from the date on which this judgment is
enforced. For the detainment before the enforcement of the judgment, one day of
detainment will offset one day of term of imprisonment, i.e., from July 5, 2009 to July
4, 2016. The fines should be paid to this court within one month from the date on
which this judgment comes into force.)
5. The illegal gains shall be recovered.
In case of refusal of this judgment as final, an appeal can be made through this court
or directly to the Shanghai Higher People’s Court within 10 days from the second day
after receiving this judgment. In case of appeal in written form, it should submit one
original and one copy of the appeal.
Chief Judge: Liu Xin
Judge: Ren Suxian
Assistant Judge: Wu Xiaopin
(Seal: Shanghai No. 1 Middle People’s
Court)
March 29, 2010
This document has no difference
from the original through check
Court Clerk: Cao Jingqing