Judgment no. 122/2020/HS-ST dated september 8, 2020 on human trafficking

PEOPLE’S COURT OF NGHE AN PROVINCE

JUDGMENT NO. 122/2020/HS-ST DATED SEPTEMBER 8, 2020 ON HUMAN TRAFFICKING

On September 8, 2020 at the People’s Court of Nghe An Province, the accepted first instance criminal case No. 105/2020/TLST-HS dated July 16, 2020 was brought for the public first instance trial under the Decision to hear the case No. 176/2020/QDXXST-HS dated August 24, 2020 against the defendant:

Full name: Luong Van V. Other alias: None.Gender: Male, Date of birth: January 11, 1986, in Ky Son District, Nghe An province;Permanent residence registration: T Th Hamlet, Commune C, Ky Son District, Nghe An Province;Nationality: Vietnamese;Ethnic group: Thai;Religion: None;Education level: 5/12; occupation: Farmer;Father’s full name: Luong Van D, year of birth: 1959; Mother’s full name: Luong Thi X (deceased);Sibling: 3 siblings with the defendant being the eldest child.Spouse: Luong Thi M, year of birth: 1989 (divorced);Spouse: Lo Thi Hong T, year of birth: 1989. Children: 2 children, the first child was born in 2012 (with the defendant’s first spouse) and the second child was born in 2018.

Criminal record: None;

The defendant was detained from March 8, 2020 until present in detention house of Nghe An Police Authority.Present.

- Defender: Ms. Phan Thi Su – Dung Su and Associates Law Office, Nghe An Province Bar Association, Partner of Government Legal Aid Center of Nghe An Province.Present.

- Aggrieved person: Ms. Luong Thi B. Year of birth: 1997.

Residence: T Th Hamlet, Commune C, Ky Son District, Nghe An Province.

Present.

- Protector of legal rights and benefits of the aggrieved person: Ms. Dang Thi Huong Lan, Huong Lan Law Office, Nghe An Bar Association, Partner of Government Legal Aid Center of Nghe An Province.

Present.

- Person with relevant rights and benefits: Ms. Luong Thi A. Year of birth: 1990.

Residence: T Th Hamlet, Commune C, Ky Son District, Nghe An Province.

Trial in absentia.

THE CASE

Depending on the case file and development at the court, the case shall be summarized as follows:

In around October, 2013, Nguyen Thi V resides in Ba Hamlet, Huu Kiem Commune, Ky Son District, Nghe An Province and arrives at T Th Hamlet, Commune C, Ky Son District to purchase fruit for sale where she meets Luong Van V. Since they have previously acquainted each other, V asks V “If you know anyone who would like to go to China, just give me a call. Prices depend on appearance”, where V agrees and adds: “I will phone you when I find someone”.V is reminded of Luong Thi An (who lives in the same hamlet as V) who usually talks to V about her sister, Luong Thi B (born in 1997), who gets married and lives in Hamlet L, Commune C, Ky Son District in harsh conditions and has returned to Tat Thoong Hamlet, Chieu Luu Commune after being despised by her husband's family, and thus asks to meet B.When meeting B in An’s house, V asks: "Do you want to get married in China?"where B says: “Pay my family VND 50 million if I go”.V informs V via the phone where V says: “I cannot bring her to China yet”.V informs V about the conversation with B and goes home.After 4 to 5 days, B arrives at V’s house and asks V if B can be brought to China where V calls V on the phone and V says: VND 50 million is not feasible, VND 40 million is good to go if B agrees with VND 40 million.After B agrees, V informs V on the phone. V asks V to take B to V’s place but V is afraid of taking B so V asks V to pick B up. V says leave B where she is and her husband will pick her up.Then, Vi Van H (V’s husband) arrives at V’s place and takes B to National Highway No. 7, Huu Kiem Commune, Ky Son District of Nghe An Province to wait for transport.Some time later, a woman named Phuong (whose background and address are unidentified) arrives in a coach from the direction of Muong Xen, Ky Son District, picks B up, and heads to Vinh City, Nghe An Province while Vi Van Hai returns.After arriving at Vinh City, Phuong rents a flat and stays with B for 2 days.Then, Phuong hands B over to another woman named Huong (whose background and address are unidentified).Huong gets onboard a coach and takes B to Mong Cai City, Quang Ninh Province, and makes an illegal exit to China to the place of a woman named Pom (a Vietnamese married to a man in Beijing, China - background unidentified), and sells B to a Chinese man (background and personal record unidentified).

About 2 weeks after B left, V asks V on the phone to get to V’s house to collect money.When V arrives, V gives V VND 40,000,000 and says: VND 30,000,000 is for B's family while VND 10,000,000 is for V. After receiving the money, V hands VND 30,000,000 to Luong Thi An (B’s sister).A few days later, V asks V on the phone to give VND 5,000,000 to Luong Van S, born 1964, living in Tat Thoong Hamlet, Chieu Luu Commune, Ky Son District where V complies.At around the beginning of 2014, V arrives at the house of Luong Thi An to loan VND 13,000,000 to purchase livestock for husbandry.Out of fear of using all of the money at hand, An lent V VND 13,000,000 among the VND 30,000,000 given to An by V.

In 2018, Luong Thi B returns to Vietnam and lives in Tat Thoong Hamlet, Chieu Luu Commune, Ky Son District.In 2020, B submits written accusation against V to Police Authority of Ky Son District.

+ Regarding civil liability: During the investigation, Ms. Luong Thi B demands the defendant Luong Van V to return VND 23,000,000, in which: VND 13,000,000 lent to V and VND 10,000,000 appropriated by V (since V only handed over VND 30,000,000 out of the VND 40,000,000 previously agreed upon).At court, the defendant and the aggrieved person have reached an agreement where the defendant gives the aggrieved person VND 33,000,000 minus the VND 4,000,000 already paid for a total of VND 29,000,000.

The Indictment No. 137/CT-VKS-P2 dated July 14, 2020 of the People’s Procuracy of Nghe An Province prosecutes the defendant Luong Van Cuong for “Human trafficking” pursuant to Point dd, Clause 2 Article 119 of the Criminal Code 2015 of Viet Nam. At court, representative of the People’s Procuracy of Nghe An Province maintains the prosecution.Judging by the case file and criminal liability mitigating circumstances of the defendant: testify with haste, show repentance; pay the aggrieved person damages on a voluntary basis, live in near-poor household, and benefit from mitigating request of the aggrieved person, the Trial panel is hereby requested to conform to Point dd, Clause 2 Article 119, Point b, Point p Clause 1, Clause 2 Article 46, and Article 47 of the Criminal Code to sentence the defendant from 3 to 4 years of imprisonment; regarding civil matter, accept agreement between the defendant and the aggrieved person regarding the damages; confiscate and transfer to state budget the VND 5,000,000 of illegal revenue generated by selling Ms. B overseas.

The defendant Luong Van V admits his crimes and solicits mercy for early return to family and society.

In defense of the defendant, the defender does not argue against the prosecution but requests the Trial panel to be lenient out of multiple criminal liability mitigating circumstances.

The aggrieved person requests the Trial panel to accept the agreement between the defendant and the aggrieved person on the damages of VND 33,000,000 with VND 4,000,000 of which has been made and VND 29,000,000 to be made and no other additional damages, and reduces the sentence of the defendant.

JUDGMENT OF THE COURT

With respect to the details of the case, based on the case file documents and evidence that have been involved in the litigation at the court, the trial panel forms the judgments as follows:

[1] Regarding compliance with entitlement and procedures prescribed by the Criminal Proceeding Code in Viet Nam of proceeding implementation and decision during investigation and prosecution process.During investigation and court, the defender, the defendant, the aggrieved person, and protector of legal rights and benefits of the aggrieved person do not have any remarks or accusations against implementation and decision of proceeding authority and individuals.Thus, all proceeding implementation and decisions carried out by legal proceeding authority and individuals are legitimate.

Regarding absence of individual having relevant rights and obligations that is Ms. Luong Thi A, considering adequate testimony of Ms. An in the case file; the defendant, the defender, the aggrieved person, protector of legal rights and benefits of aggrieved person, and representative of the People’s Procuracy request the Trial panel to initial the trial.Thus the Trial panel commences the trial against the case.

[2] Based on files, evidence under case file, testimony of the defendant, and trying results at court, the following conclusion is reached on a grounded basis:

In around October, 2013, Luong Van V is promised by Nguyen Thi V who lives in Ba Hamlet, Huu Kiem Commune, Ky Son District, Nghe An Province to: If V introduces women to V for V to bring to China and arrange marriage, V will receive wagesIn November, 2013, V meets and lures Ms. Luong Thi B (born 1997) who lives in Tat Thoong Hamlet, Chieu Luu Commune, Ky Son District, Nghe An Province, and later hands over to Nguyen Thi V to enable V and other people to bring B to China illegally and sell to a man in Beijing, China.V is paid VND 5,000,000 by V.The act of finding women to sell overseas in order to collect payment of the defendant Luong Van V is human trafficking.The act is committed in around November, 2013, thus the People’s Procuracy of Nghe An Province prosecutes the defendant for “Human trafficking” according to Point dd Clause 2 Article 119 of the Criminal Code 1999 in Viet Nam on a legitimate and law compliant basis.

[3] Considering violation of the defendant and nature of the case: The violation of the defendant Luong Van V is a danger to society and is classified as a particularly severe case; out of personal gain, the defendant has defied tradition and ethics, sold Ms. Luong Thi B to a Chinese man, violated dignity and honor of a human being, and caused confusion, aggression, rage among the general public.The defendant holds full criminal capacity, is aware of how his act violates the law but commits nonetheless out of personal gain.Thus strict penalties for the defendants are required; the defendant must be removed from society for a while as requested by representative of the People’s Procuracy at court to in order to threaten and re-educate the defendant and threaten and prevent similar violations among the general public.

[4] Considering aggravating and mitigating circumstances of the defendant:

Aggravating circumstances: None.

Mitigating circumstances: The defendant is an ethnic minority, complies with haste, repents for their violations, pays the aggrieved person damages on a voluntary basis, lives in extremely disadvantaged areas which lead to limited law awareness, lives in near-poor households, and benefits from application for reduced penalty submitted by the aggrieved person and thus shall benefit from criminal liability mitigating circumstances according to Point b and Point p Clause 1 and Clause 2 Article 46 ofthe Criminal Code 1999. Thus Article 47 is advised for adopting and sentencing the defendant for the lowest penalty within range of penalty.

[5] In this case, according to testimonies of Luong Van V and Luong Thi B, other individuals such as Nguyen Thi V, Vi Van H, and Luong Thi H area also involved, investigating authority has conducted verification but said individuals are not present in local administrative division; personal record and relatives of the woman named Phuong who brought Luong Thi B from Ky Son to Vinh City cannot be identified.Hereby request investigating authority to proceed with verification.

Regarding Luong Thi A (the defendant's older sister): Who receives money from Luong Van V for selling Luong Thi B. Investigation process reveals that Ms. A does not negotiate with V regarding selling B overseas; Ms. A does so without motivation, purposes and benefits, and is not aware that the act of selling B to China is a violation against the law.The proceeding authority does not initiate criminal investigation and actions against A for misprision on a well-grounded basis.

Luong Van S, who is given VND 5,000,000 by V at request of Nguyen Thi V is not aware that the money is illegal profit generated by violations of V.S thinks the money is paid by Hai and V for other personal businesses and thus shall not be subject to criminal prosecution.

[6] Regarding civil matter:

At court, the defendant and the aggrieved person have reached an agreement where the defendant gives the aggrieved person VND 33,000,000 minus the VND 4,000,000 already paid for a total of VND 29,000,000.Considering, such voluntary agreement between the defendant and the aggrieved person is compliant with regulations and law.The Trial panel acknowledges the agreement between the defendant and the aggrieved person on damages.

[7] Evidence disposal: the VND 5,000,000 paid to the defendant Luong Van V by Nguyen Thi V as wages for selling B to China is illegal profit and must be confiscated and transferred to State budget.

[8] Regarding court fees: The defendant Luong Van V is enforced to incur first instance trial fee, regarding first instance civil court fee: Considering the defendant's family is a near-poor household and an ethnic minority living in extremely disadvantaged areas, first instance civil court fee shall not be incurred by the defendant.

For all reasons above,

DECISION

[1] The defendant Luong Van V is hereby guilty of “Human trafficking”.

Pursuant to Point dd Clause 2 Article 119, Point b and Point p Clause 1, Clause 2 Article 46, Article 47 of the Criminal Code 1997: The defendant Luong Van V is sentenced to 4 years of imprisonment.

Imprisonment period starts from the date of detention which is March 8, 2020.

[2] Regarding evidence disposal: Pursuant to Article 41 of the Criminal Code 1999, Article 106 of the Criminal Proceeding Code.Confiscate the VND 5,000,000 of illegal profit of the defendant generated from selling Ms. B overseas and transfer to state budget.

[3] Regarding civil matter: Acknowledge the agreement between the defendant and the aggrieved person where the defendant Luong Van V must pay Ms. Luong Thi B damages of VND 33,000,000 with VND 4,000,000 of which has been paid and VND 29,000,000 to be paid.

[4] Regarding court fee: Pursuant to Article 135, Article 136 of the Criminal Proceeding Code, Article 12, Article 21, Article 23 of Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the Standing Committee of National Assembly, the defendant Luong Van V shall incur VND 200,000 for the first instance criminal trial and shall be exempted from first instance civil trial fee.

[5] From the date on which the decision come into effect (in case judgment enforcement authorities hold the rights to enforce judgment) or from the date on which written request for judgment enforcement of judgment creditors is produced (for amount of money to be paid to judgment creditors) to the moment on which all debts are repaid, the judgment debtors must incur interest of the outstanding judgment debt on a monthly basis as specified in Clause 2 Article 468 of the Civil Code 2015 in Viet Nam.

In case the judgment is enforced according to Article 2 of Law on Civil Judgment Enforcement in Viet Nam, civil judgment creditors and civil judgment debtors may agree on judgment enforcement, judgment enforcement rights, voluntary enforcement or compelled enforcement as specified in Articles 6, 7, 7a, and 9 of Law on Civil Judgment Enforcement; statute of limitations shall conform to Article 30 of Law on Civil Judgment Enforcement.

[6] Within 15 days from the date of judgment, the defendant Luong Van V and the aggrieved person Luong Thi B may file an appeal to the Superior People’s Court of Hanoi City;Relevant individual, which is Ms. Luong Thi An and absent from court, may file an appeal to the Superior People’s Court of Hanoi City within 15 days from the date on which the judgment is legitimately delivered or legitimately posted as per the law.