Judgment No. 05/2020/HS-ST dated january 13, 2020 on illegal possession of narcotic substance

THE PEOPLE'S COURT OF DA NANG CITY

JUDGMENT NO. 05/2020/HS-ST DATED JANUARY 13, 2020 ON ILLEGAL POSSESSION OF NARCOTIC SUBSTANCE

On January 13, 2020, at the head office of the People’s Court of Da Nang City, a first instance trial is conducted to hear the criminal case No. 120/2019/TLST-HS dated December 11, 2019 under the Decision to Bring the Case to Trial No. 123/2019/QDXXST-HS dated December 24, 2019 against the defendant:

SHI JING H; born on September 13, 1988 in Province G, China; Registered permanent residence and place of residence: Room A, House No. 3, Residential Area S, Quarter C, City A, Province G, China; Residence in Da Nang, Vietnam before commission of the crime: Lot X, S, Group 12, Ward H, District N, Da Nang City, Passport number: EA7864815, issued on July 18, 2017; Place of issue: Immigration Department of Ministry of Public Security of China; Occupation: None; Educational level: High school; Ethnicity: Han Chinese; Sex: Male; Religion: None; Nationality: Chinese; Father: SHI SHU M and Mother: LIN SUI Y (both still alive); married (divorced) and 02 children. Previous conviction or administrative violation: none;

With reference to criminal record:

On May 16, 2016, he was sentenced to 07 (seven) months in prison by the People's Court of City A, Province G, China on the charge of "Disturbing the peace", executed from November 10, 2015 to June 8, 2016.

Arrested on May 27, 2019. The defendant is currently in detention. Appearing at court. Interpreter:  Ms. Huynh Thi Kim Y; Position: Collaborator of SCEDFA - Danang External Service Center. Appearing at court. 1 Persons with interests and obligations related to the case:

Ms. Le Thi Phuong D, born: 1995; Place of residence: Group 67, Ward, District S, Da Nang City. Not appearing in court.

Mr. Le Van D', born in: 1982; Place of residence: Group 16, Ward Q, District N, Da Nang City. Not appearing in court.

FACTUAL AND PROCEDURAL BACKGROUND

According to the documents available in the case file and the interrogation and argument at the trial, the contents of the case are summarized as follows:

At 5:00 p.m. on May 27, 2019 at the house of Lot 131, Son Thuy 4 Street, Group 12, Ward H, District N, Da Nang City (Owned by Mr. Le Van D'- Owner), Police District N, Da Nang City checked and discovered SHI JING H had engaged in illegal possession of narcotic substances and stored in a table’s drawer in the living room 04 (four) plastic packages containing white crystal matter, SHI JING H confirmed that it is Ketamine; District N Police, Da Nang City proceeded to make a report of offence caught in the act against SHI JING H.

Seized exhibits: 03 (three) plastic packages about (2x6cm) in size, containing white crystal matter; 01 (one) plastic package about (1.5 x 1.5cm) in size containing white crystal matter; 04 (four) plastic packages are sealed (symbol H1). Through investigation it is confirmed that: At around 02:00 on May 23, 2019, SHI JING H (Nationality: Chinese), who had regularly entered Vietnam for travel purpose, the last time SHI JING H entered Vietnam was on February 18, 2019 through the border gate of Da Nang airport, came to the K beach area near T hotel, in the area of ​​Ward M, District N, Da Nang City to meet a friend with Chinese nationality (unknown identity), the two talked together. Being in need of narcotic substances for use, SHI JING H asked if this person had known anyone who sells narcotic substances. Then, this person introduced SHI JING H to a Vietnamese man selling narcotic substances (his background is unknown). The Chinese man phoned the Vietnamese man to meet SHI JING H at the same location. SHI JING H asked the Vietnamese man to sell ketamine-type narcotic substances for 30,000,000 VND (Thirty million VND). This person agreed to sell and took SHI JING H's money somewhere. About 20 minutes later, the man returned and handed SHI JING H 04 (four) packs of Ketamine-type narcotic substances. After having narcotic substances, SHI JING H brought it back to a house on Lot 131, Son Thuy 4 Street, Group 12, Ward H, District N, Da Nang City, took out a few to use. The rest SHI JING H stored in a drawer of the table in the living room of the house until it was discovered and seized by the Police.

* The Expertise Conclusion No. 151/GD-MT dated May 31, 2019 of Criminalistics Department of Da Nang Police indicates that:

The white crystal matter in the sample sealed with the H1 symbol for identification is narcotic substance, type Ketamine, crystal sample H1 weight: 20.613 grams.

Upon above findings, in the Charging Document No. 01/CT-VKS-P1 dated December 10, 2019, the People's Procuracy of Da Nang prosecutes defendant SHI JING H for "Illegal possession of narcotic substances" according to Point l, Clause 2, Article 249 of the Criminal Code 2015 (amended in 2017).

At the trial, the representative of the People's Procuracy of Da Nang City still upholds the prosecution against defendant SHI JING H on the charge of “Illegal possession of narcotic substances".  On the basis of nature of the case, the defendant's criminal act, aggravating and mitigating circumstances, as well as the defendant's criminal record, thereby propose the Panel to:

Regarding offense:: Declare defendant SHI JING H guilty of "Illegal possession of narcotic substances".

Regarding penalty:

Applying point l clause 2 Article 249, point s clause 1, Article 51 of the Criminal Code 2015 (amended 2017),

Sentence defendant SHI JING H to from 07 (seven) years in prison to 08 (eight) years in prison.

Regarding additional penalty:  Considering that the defendant is a foreigner entering Vietnam to travel, it is not recommended that the Trial Panel will apply Clause 5 of Article 249 of the Criminal Code to impose a find on the defendant.

Regarding exhibit handling:  Propose the Trial Panel to apply Article 47 of the Criminal Code 2015 (amended in 2017) and Article 106 of the Criminal Procedure Code to handle the seized exhibit of the defendant as mentioned in the Charging Document No. 01/CT-VKS-P1 dated December 10, 2019.

At the trial, defendant SHI JING H sincerely pleads guilty of all criminal acts as stated in the Charging Document No. 01/CT-VKS-P1 dated December 10, 2019 of the People's Procuracy of Da Nang City. Guilty person is rightly convicted. The defendant asks the Trial Panel to consider mitigating the penalty for the defendant to have time to reunite early with the family.

JUDGEMENT OF THE COURT

Based on the contents of the case and documents available in the case file that have been litigated at the trial, the Trial Panel finds that:

 [1] Regarding the procedural acts  and decisions of the investigation body of Investigating Agency, Investigators, the People’s Procuracy and Procurators of Da Nang City, in the course of investigation and prosecution, they have complied with procedures and taken actions intra vires as prescribed by the Criminal Procedure Code. In the course of investigation and at the trial, the defendant and other participants in legal proceedings do not have any opinion or complaint about the procedure and decision of the presiding agencies and presiding officers. Therefore, the procedural acts and decisions of the presiding authorities and presiding officers have been made legally.

 [2] Regarding the criminal act of the defendant:

By examining the plea of SHI JING H at the trial, the arraignment made by the representative of the People's Procuracy of Da Nang City exercising the right of prosecution at the trial, the expertise conclusion about the content and amount of narcotic substances seized, along with other documents and evidence in the case file, the Trial Panel finds just cause to determine: Defendant SHI JING H is a foreigner with Chinese nationality, he entered Vietnam on February 18, 2019 for travel purpose. Being in the need of narcotic substances for use, the defendant bought from a young Vietnamese male (unknown identity) 04 (four) packages of Ketamine-type narcotic substances for 03 (one) ten thousand yuan (China currency), according to the defendant's testimony (case file p. 93-97), equivalent to 30,000,000 VND (Thirty million Vietnamese dong) at K beach, near T Hotel, Ward M, District N, Da Nang City. After buying the above amount of narcotic substances, the defendant brought home at Lot X, S street, group 12, Ward H, District N, Da Nang City to use a few of them, and stored the rest in the living room, the police force of District N, Da Nang City caught the defendant for the illegal possession of narcotics at 17:00 on May 27, 2019. The narcotic the defendant possessed for use was ketamine with a weight of 20.613 grams. Thus, the act of possessing 20.613 grams of Ketamine-type drug by defendant SHI JING H for the purpose of use has enough elements to constitute the crime of "Illegal possession of narcotic substances". Therefore, the Charging Document No. 01/CT- VKS-P1 dated December 10, 2019 of the People's Procuracy of Da Nang City against the defendant on the above-mentioned crime is deemed grounded, guilty person is rightly convicted.

Article 249 of the Criminal Code 2015 (amended in 2017) in Viet Nam of the Socialist Republic of Vietnam stipulates:

1. Any person who possesses narcotic substances for purposes other than trading, transporting or manufacturing narcotic substances in any of the following circumstances shall face a penalty of 01 - 05 years' imprisonment:

a… i…

2. This offence committed in any of the following circumstances carries a penalty of 05 - 10 years' imprisonment:

l. The offence involves a quantity of from 20 g to fewer than 100 g of other solid narcotic substances.

Thus, the offense and penalty imposed on the defendant are specified at Point l, Clause 2, Article 249 of the Criminal Code 2015 (amended, 2017).

 [3] Considering the nature of the case, criminal act and the defendant's criminal record, we find:

 [3.1] Narcotic substances are addictive proprietary medicines, so, they are exclusively controlled by the State of the Socialist Republic of Vietnam all over the territory of Vietnam; the State of Vietnam strictly forbids everyone (regardless of nationality) having acts of possession, trading, transporting ... narcotic substances of any kind throughout the territory of Vietnam; once someone cause serious consequences, they shall be punished and handled according to law; the defendant SHI JING H, as a foreigner with Chinese nationality, when entering the territory of Vietnam, he should have strictly abided by the provisions of Vietnamese law, but due to the need to use narcotic substance, the defendant ignored all the punishment of the law of Vietnam to sneakily buy narcotic substance with the quantity of 20.613 grams and brought them to a hidden room for private use, however, when the quantity of narcotic substance has not been used up, he was caught in the act. Thus, the defendant's criminal act violated the Vietnamese government's monopoly policy on narcotic substance management, adversely affecting the social order and security, giving rise to many crimes and other social evils in Da Nang City in particular and the whole territory of Vietnam in general. Therefore, it is necessary for the presiding agencies of Da Nang - Vietnam to investigate, prosecute and adjudicate the defendant for the purpose of rehabilitating the defendant and deterring similar criminals in general.

 [3.2] Considering that the defendant's offense is in a very serious case, which falls under, according to Vietnam's Criminal Code 2015 (amended in 2017), the sentence bracket between 05 (five) years and 10 (ten) years in prison, and he had been further convicted of “Disturbing the peace” by the People's Court of City A, Province G, China and imprisoned for 7 (seven) months from November 10, 2015 to June 8, 2016. So, the defendant should be severely punished and isolated from the society for a certain time for rehabilitation, retribution and deterrence.

 [4] Regarding the aggravating and mitigating circumstances:

 [4.1] Regarding aggravating circumstances:

There is no aggravating circumstance as prescribed in Clause 1, Article 52 of the Criminal Code 2015  (amended in 2017).

 [4.2] Regarding mitigating circumstances:  In the process of investigation, prosecution and at the court hearing, the defendant has expressed cooperative attitude and showed his repentance, his family has suffered financial hardship, divorced (having raised two children) .These are extenuating circumstances as specified at Point s, Clause 1, and Clause 2, Article 51 of the Criminal Code 2015  (amended in 2017) that the defendant is entitled to when considering the penalty.

 [5] Regarding additional penalty:  Considering that the defendant SHI JING H is a foreigner with Chinese nationality entering Vietnam to travel, so the Trial Panel finds appropriate in not imposing him a fine as an additional penalty as provided for in Clause 5, Article 249 of the Criminal Code 2015  (amended in 2017)

 [6] Considering that the defendant SHI JING H is a foreigner of Chinese nationality, between the Socialist Republic of Vietnam and the People’s Republic of China has an Agreement on mutual legal assistance in criminal matters. However, under the Agreement on mutual legal assistance 1998, the defendant SHI JING H is not entitled to the international prisoner transfer. So, apart from the imprisonment sentence that defendant SHI JING H has to serve in Vietnam, The Trial Panel should apply Article 37 of the Criminal Code 2015  (amended in 2017) to expel defendant SHI JING H from the territory of the Socialist Republic of Vietnam, after the defendant completely serves imprisonment sentence in Vietnam.

 [7] For the suspects involved in the case:

 [7.1] For two men with Chinese nationality who introduced the drug seller, and the Vietnamese selling narcotic substance to defendant  with unidentified identity, the investigation agency shall verify and handle them later, so the Trial Panel does not mention here.

 [7.2] Mr. Le Van D’ let the defendant rent a house, but Mr. D' did not know that the defendant used the rental house to illegally possess narcotics, so the Police Investigation Agency is right in not dealing with him, thus  the Trial Panel does not mention here.

 [7.3] Ms. Le Thi Phuong D was present when caught in the act, but she did not know about the defendant's illegal possession of narcotics. As for her use of narcotic substance, the Police of District N, Da Nang City imposed her an administrative penalty which is deemed appropriate according to law, so the Trial Panel does not mention here.

 [8] Regarding exhibit handling:

Currently, Department of Civil Judgment of Da Nang City has been holding the evidence seized from the defendants: Sample narcotic substance returned after the examination No. 151/GD-MT dated June 31, 2019.

Considering that this is the evidence of narcotic substance seized from the defendant remaining after the examination, and not suitable for use, pursuant to Article 47 of the Criminal Code 2015 (amended in 2017) and Article 106 of the Criminal Procedure Code in 2015, it shall be confiscated and destroyed.

 [9] Regarding court fees: The defendant must bear first instance criminal fee as prescribed by law.

Therefore;

DISPOSITION

Declare:  defendant SHI JING H guilty of "Illegal possession of narcotic substances".

1. Pursuant to:  Point l clause 2 Article 249, point s clause 1, Article 51 of the Criminal Code 2015 (amended 2017),

Sentence: SHI JING H: to 06 (six) years in prison. The sentence period is from the arrest date, May 27, 2019.

2. Regarding additional penalty:  Pursuant to Article 37 of the Criminal Code 2015  (amended in 2017).

Expel defendant SHI JING H to leave the territory of the Socialist Republic of Vietnam from the date of completion of his imprisonment sentence in Vietnam.

3. Regarding exhibit handling:  Pursuant to Article 47 of the Criminal Code 2015 (amended in 2017) and Article 106 of the Criminal Procedure Code 2015 in Viet Nam.

* The following exhibits are confiscated and destroyed: 01 (one) sample returned after assessment No. 151/GD-MT dated May 31, 2019 with the seal of the Criminalistics Department of Da Nang Police.

The above evidence is currently being held at the Da Nang Department of Civil Judgment Enforcement according to the record of delivery of exhibits dated December 11, 2019.

4. Regarding court fees and the right to appeal:

With reference to court fees:  Pursuant to: Article 136 of the 2015 Criminal Procedure Code; Resolution 326/2016/UBTVQH14 in Viet Nam, the defendant has to pay 200,000 VND of first-instance criminal court fee.

With reference to right to appeal:  The defendant is entitled to appeal this judgment within 15 days from the date of pronouncement. The persons with related rights and obligations present at the trial have the right to appeal within 15 days after receiving a copy of judgment.