Judgment No. 160/2019/HS-ST dated december 17, 2019 on trading of counterfeit food additives

PEOPLE'S COURT OF PHU LY CITY - HA NAM PROVINCE

JUDGMENT NO. 160/2019/HS-ST DATED DECEMBER 17, 2019 ON TRADING OF COUNTERFEIT FOOD ADDITIVES

On December 17, 2019, at the head office, the People’s Court of Phu Ly City, Ha Nam Province hears a first instance trial of criminal case No. 158/2019/TLST-HS dated November 28, 2019 under the Decision to Bring the Case to Trial No. 160/2019/QDXXST-HS dated December 3, 2019 against:

Le Thi L, born in 1969; place of residence: No. 20, Alley 53, Street B, Group 3, Ward L, City P, Ha Nam Province; occupation: shopkeeper; educational level: 12/12; Kinh; Gender: female; religion: none; nationality: Vietnamese; father: Mr. Le Minh T, born in 1937 and mother: Mrs. Dao Thi U (deceased); husband: Do Van T1; children: four children, the oldest born in 1992, the youngest born in 2008; Previous conviction, previous administrative violation: none; prior conduct: good; detained from May 4, 2019 to May 13, 2019, subject to residential confinement. Appearing in court. - Person with interests and obligations related to the case: Ms. Le Thi U1, born in 1981, residing at: No. 67, Town Q, District K, Ha Nam Province. Not appearing in court.

- Witnesses: Ms. Pham Thi T2, born in 1977. Not appearing in court.

FACTUAL AND PROCEDURAL BACKGROUND

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

Le Thi L has rented kiosk No. 66, zone A, 1st floor of Market B in Ward L, City P, Ha Nam Province to sell groceries and dry goods since 2016. During the sales process, L met a woman named Y (unknown background) who offered to sell the monosodium glutamate (MSG), broth mix packed in the packages of famous brands, but the price was lower than the authentic import price of about 4,000 VND to 6,000 VND/pack. This woman said that some people bought MSG, seasoning powder from other brands by themselves and then put them in fake empty packages with pre-printed labels of famous brands such as Knorr, Ajinomoto. Seeing the price lower than the authentic product price, L bought the fake Ajinomoto and Knorr seasoning powder packages for sale mixed with genuine MSG and seasoning powder at her stall, the price of the fake product is the same as the genuine product. At around 15:20 on May 4, 2019, while Le Thi L was selling to Ms. Pham Thi T2 06 packages of MSG with Ajinomoto word thereon, type 454g and 04 packages of seasoning powder with Knorr word thereon, type 1.8kg suspected to be fake products and was selling to Le Thi U1 01 package of seasoning powder with Knorr word thereon, type 400g and 01 package of MSG with Ajinomoto word thereon, type 454g, Ms. U1 paid 55,000 VND, she was caught in the act by the Police Team of Phu Ly City. Exhibits seized include: 01 package of Knorr seasoning powder type 400g, 04 packages of Knorr seasoning powder 1.8kg/pack, 07 packages of MSG Ajinomoto type 454g, sealed in a carton with symbol QT01; 01 Samsung mobile phone sealed in an envelope with the symbol QT02; the amount of 55,000 VND sealed in an envelope with symbol QT03; 01 retail invoice in the name of agent L, T1.

On May 4, 2019, Police Investigation Body of Phu Ly Police executed a search warrant at kiosk No. 66, zone A, Market B and Le Thi L's residence and seized: 105 packages of Ajinomoto MSG type 2kg, 53 packages of Ajinomoto MSG, type 1.8kg; 02 packages of Ajinomoto MSG type 1kg, 15 packages of Ajinomoto MSG type 454g; 45 packages of Ajinomoto MSG type 100g; 01 package of Knorr seasoning powder, type 1.8kg; 18 packages of Knorr seasoning powder type 900g; 12 packages of Knorr seasoning powder 40g; 47 packages of Knorr seasoning powder  type 175g; 10 packages of Miwon MSG, type 2kg; 04 packages of Aone MSG, type 2kg; 24 packages of Vedan MSG, type 2kg; 04 packages of Vedan seasoning powder type 700g; 06 packages of Vedan seasoning powder type 400g; 03 packages of Kooker MSG type 2kg; 06 packages of Ajingon seasoning powder type 2kg; 01 white powder sack weighing 25kg suspected to be borax (all are sealed according to law).

On May 6, 2019, Investigation Police Body of Phu Ly issued a decision number 104 to solicit the Institute of Criminal Science affiliated to Ministry of Public Security for legal inspection of L's seized MSG and seasoning powder, including: 02 sacks containing 45 packages of Ajinomoto MSG type 2kg (symbol KX1); 06 cartons containing 10 packages of Ajinomoto MSG type 2kg (symbol KN1); 02 sacks containing 53 packages of Ajinomoto MSG, type 1.8kg (symbol KX2); 01 carton containing 02 packages of Ajinomoto MSG, type 1.8kg (symbol KX8); 01 carton containing 15 packages of Ajinomoto MSG, type 454g (symbol KX6); 01 carton containing 07 packages of Ajinomoto MSG type 454g; 01 package of Knorr seasoning powder type 400g; 04 packages of Knorr seasoning powder type 1.8kg (symbol QT1); 01 carton containing 45 packages of Ajinomoto MSG, type 100g (symbol KX3); 01 carton containing 01 package of Knorr seasoning powder type 1.8kg (symbol KX11); 01 carton containing 12 packages of Knorr seasoning powder  type 400g (symbol KX9); 01 carton containing 28 packages of Knorr seasoning powder type 175g (symbol KX4); 01 carton containing 19 packages of Knorr seasoning powder type 175g (symbol KX13); 01 carton containing 18 packages of Knorr seasoning powder type 900g (symbol KX10).

The expertise conclusion No. 2398/C09-P4 states: 15 packages of Ajinomoto MSG with type 454g KX6 and 07 packages of Ajinomoto MSG type 454g (QT1 symbol) sent for inspection are not the same with packages of Ajinomoto MSG, type 454g (A1 symbol) provided by Ajinomoto Vietnam as a sample for comparison.

- 45 packages of Ajinomoto MSG with type 100g (KX3 symbol) sent for inspection are not the same with packages of Ajinomoto MSG, type 100g (A1 symbol) provided by Ajinomoto Vietnam as a sample for comparison.

- 01 package of Knorr seasoning powder from the source of fresh and delicious meat, type 1.8kg (KX11 symbol) and 04 packages of Knorr seasoning powder from the source of fresh and delicious meat, type 1.8kg (QT1 symbol) sent for inspection are not the same with packages of Knorr seasoning powder from the source of fresh and delicious meat type 1.8kg (K1 symbol) provided by Unilever Vietnam International Co., Ltd. as a comparison sample.

- 18 package of Knorr seasoning powder from the source of fresh and delicious meat, type 900g (QT1 symbol) and 12 packages of Knorr seasoning powder from the source of fresh and delicious meat, type 400g (KX9 symbol) sent for inspection are not the same with packages of Knorr seasoning powder from the source of fresh and delicious meat type 400g (K3 symbol) provided by Unilever Vietnam International Co., Ltd. as a comparison sample.

Packages of MSG and seasoning powder sent for inspection but failed due to the absence of comparison samples, including: 45 packages of Ajinomoto MSG type 2kg (KX1 symbol); 60 packages of Ajinomoto MSG, type 2kg (KN1 symbol); 53 packages of Ajinomoto MSG, type 1.8kg (symbol KX2); 02 packages of Ajinomoto MSG type 1kg (KX8 symbol); 28 packages of Knorr seasoning powder (vegetarian seasoning with shiitakes), type 175g (KX4 symbol); 19 packages of Knorr seasoning powder "from fresh and delicious meat", type 175g (KX13 symbol).

White crystals (Monosodium glutamate) in MSG packages provided by Ajinomoto Vietnam Company are in the list of food additives under Circular 05/2018/TT-BYT

Samples of seasoning powder (supplementary food) provided by Unilever Vietnam International Co., Ltd. are in the list of functional foods under Circular No. 05/2018/TT-BYT.

On July 1, 2019, the Police Investigating Body of Phu Ly City issued Decision No. 122 to invoke the Institute of Criminal Science affiliated to the Ministry of Public Security for a legal inspection of 10 packages of Miwon MSG type 2kg (M1 symbol); 06 packages of Vedan MSG, type 2kg (M2 symbol); 18 packages of Vedan MSG, type 2kg (M3 symbol); 04 packages of Vedan seasoning powder from pork broth, type 400g, and 02 packages of Vedan seasoning powder from vegetable broth, type 400g (M4 symbol); 04 packages of Vedan MSG flavor enhancement type 700g (M5 symbol); 03 packages of Kooker MSG type 2kg (M6 symbol); 04 packages of Aone MSG, type 2kg (M7 symbol); 06 packages of Ajingon seasoning powder, type 2kg of pork broth (M8 symbol); 01 bag with red letters "Neobor TG" and many foreign characters containing white powder (M9 symbol).

The expertise conclusion No. 3713/C09-P4 states: 10 packages of Miwon MSG type 2kg sent for inspection (M1 symbol) are the same with Miwon MSG type 2kg (MW1 symbol) provided by the branch of Miwon Vietnam Co., Ltd. in Hanoi as a sample for comparison.

- 06 packages of Vedan MSG with type 2kg (M2 symbol) and 18 packages of Vedan MSG type 2kg (M3 symbol) sent for inspection are the same with packages of Vedan MSG, type 2kg provided by Ajinomoto Vietnam as a sample for comparison.

- 04 packages of Vedan seasoning powder "from pork broth", type 400g (M4 symbol) sent for inspection are the same with Vedan seasoning powder "from pork broth" supplied by Vedan Vietnam Company as a comparison model.

- 02 packages of Vedan seasoning powder "from vegetable broth", type 400g (M4 symbol) sent for inspection are the same with Vedan seasoning powder "from vegetable broth" type 400g supplied by Vedan Vietnam Company as a comparison model.

- 04 packages of Vedan MSG flavor enhancement type 700g (M5 symbol) sent for inspection are the same with Vedan MSG flavor enhancement type 700g supplied by Vedan Vietnam Company as a comparison model.

- 03 packages of Kooker MSG type 2kg (M6 symbol) sent for inspection are the same with packages of Kooker MSG, type 2kg (KK1 symbol) provided by Ajinomoto Vietnam as a sample for comparison.

- 04 packages of Aone MSG type 2kg (M7 symbol) sent for inspection are the same with packages of Aone MSG type 2kg (A01 symbol) provided by Saigon Vewong Co., Ltd. as sample for comparison.

- 06 packages of Ajingon seasoning powder type 2kg (M8 symbol) sent for inspection but failed because there is no sample for comparison.

- White crystals (Monosodium glutamate) in MSG packages provided by Miwon Vietnam Co., Ltd., Saigon Vewong Co., Ltd., Vedan Vietnam Company and International Food Industry Joint Stock Company are in the list of food additives under Circular No. 05/2018/TT-BYT; samples of seasoning powder (supplementary food) provided by Vedan Vietnam Company are included in the list of functional foods in Circular 05/2018/TT-BYT in Viet Nam. White crystals in packages of Vedan MSG provided by Vedan Vietnam Company, due to insufficient database, cannot be determined whether the substance is in the list of food additives.

- The white substance in 01 bag with the red word "Neobor TG" and many foreign characters (M9 symbol) sent for inspection is Na3B4O7. Na3B4O7 is a substance banned from use as an additive in food processing in Vietnam. When using low dose of Na3B4O7, it accumulates in body tissues, causing symptoms of chronic poisoning, damage to the digestive system, and affecting the liver and kidneys of the user. When taking Na3B4O7 in large doses, it can cause digestive disorders, vomiting, diarrhea, neurological symptoms that can lead to coma and death.

The asset valuation No. 55/2019 dated June 28, 2019 of Asset Valuation Council of Phu Ly City indicates: 22 packages of Ajinomoto MSG type 454g is 616,000 VND; 45 packages of Ajinomoto MSG type 100g is 450,000 VND; 05 packages of Knorr seasoning powder type 1.8kg is 475,000 VND; 18 packages of Knorr seasoning powder type 900g is VND 1,026,000; 13 packages of Knorr seasoning powder type 400g is 312,000 VND. The valuation conclusion No. 98/2019 dated 11/09/2019 indicates: 25kg of borax, chemical name (sodium tetra borate Na3B4O7) is 425,000 VND.

- Indictment No. 161/CT-VKSPL dated November 26, 2019 of the People's Procuracy of Phu Ly City prosecutes Le Thi L for "Trading of counterfeit food or food additives" according to regulations in Clause 1, Article 193 of the Criminal Code 2015, amended in 2017 (hereinafter referred to as the Criminal Code).

- At the trial, the representative of the People's Procuracy of Phu Ly City keeps the same prosecution as stated in the Indictment against the defendant. Pursuant to clause 1 Article 193; Point s Clause 1, Clause 2, Article 51; Article 65; Article 50 of the Criminal Code. Propose to sentence the defendant to from 30 to 36 months in prison, fully suspended, a probationary period of 05 years and the direction of handling evidence of the case in accordance with law. And further impose a fine as additional penalty of between 5,000,000 VND and 10,000,000 VND.

- The defendant expresses cooperative attitude, shows her repentance and pleads guilty of the offense prosecuted in the Indictment, does not argue and makes no self-defense. She only pleads the Trial Panel to consider mitigating her penalty and enable her to rehabilitate in her place of residence and reduce the fine because of her financial hardship.

JUDGEMENT OF TRIAL PANEL

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

 [1] Regarding the procedural acts and decisions of the investigation body of Investigators and Procurators, 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] For persons with related rights and obligations and the witness not appearing in court, but the case file has their full testimonies taken in accordance with the Criminal Procedure Code. The Court is right in conducting trial in their absence.

 [3] Evaluation of offense: Compare the defendant’s plea at the trial and her testimony during the investigation process. The Trial Panel finds that they are consistent with each other, with report of arrest of the offender caught in the act, the evidence seized, the asset valuation, the testimonies of the persons with related interests and obligations, witnesses of time and place and all other documents and evidence included in the case file:

Thus, there are substantial grounds for concluding that:  At the kiosk No. 66, zone A, floor 1, Market B, City P, L gained illegal profits by selling fake MSG and seasoning powder placed together with genuine ones. At around 15:20 on May 4, 2019, when L was selling fake Ajinomoto MSG and Knorr seasoning powder to consumers, she was discovered and caught by the police force of Phu Ly City. The total value of Le Thi L's seized fake MSG and seasoning powder is equivalent to that of genuine products (real products), 2,879,000 VND.

The above-mentioned acts of the defendant have enough elements to constitute the crime of "Trading of counterfeit food, food additives" as prescribed in Clause 1, Article 193 of the Criminal Code.

The prosecution and arraignment of the People's Procuracy of City P, Ha Nam Province, against the defendant is right, guilty person is rightly convicted.

 [4] With respect to penalty:

- Regarding main penalty: The defendant's criminal acts are dangerous to the society, violate the State's market management policy, infringe upon the legitimate rights and interests, the health of consumers, the protection right of honest businesses, and also cause disorder in the local area, causing frustration in social public opinion. Therefore, it is necessary to issue a strict sentence that commensurate with the nature and severity of the offense committed by the defendant. However, when considering an appropriate penalty, it is advisable to consider aggravating and mitigating circumstances, and the defendant's criminal record.

Regarding aggravating circumstances: the defendant does not have an aggravating circumstance.

Regarding mitigating circumstances: The defendant has expressed cooperative attitude and has showed her repentance and desire to redeem his faults during the investigation process and at the trial. The defendant has a father of war invalid who is awarded the first-class resistance war medal by the State; the defendant's family has suffered financial hardship confirmed by the local government. Therefore the defendant is entitled to the mitigating circumstances specified at Point s, Clause 1, and Clause 2, Article 51 of the Criminal Code.

With reference to criminal record: The defendant is a person with good personality without a prior criminal conviction or administrative violation.

From the analysis and assessment of the nature and severity of the defendant's criminal acts, prior good conduct and mitigating and aggravating circumstances. The Trial Panel considers that it is not necessary to isolate the defendant from society, but let her rehabilitate under the supervision of the local government where the defendant resides, that is also sufficient for deterrence and education purpose, as proposed by the representative of the Procuracy.

- Regarding additional penalty: Regarding additional penalties: To ensure the general deterrence and prevention for this type of crime in the current context, it is necessary to impose an additional penalty of fine on the defendant according to the provisions in Clause 5 Article 193 of the Criminal Code. However, the amount of fine shall be carefully decided upon the specific circumstances and the nature and severity of the crime.

 [5] Regarding the handling of evidence of the case and seized property:

- For 01 Samsung-branded mobile phone used by the defendant to communicate and buy and sell fake MSG, seasoning powder, it must be confiscated.

- For 22 packages of Ajinomoto MSG, type 454g, 45 packages of Ajinomoto MSG, type 100g, 05 packages of Knorr seasoning powder, type 1.8kg, 18 packages of Knorr seasoning powder, type 900g, 13 packages of Knorr seasoning powder type 400g, all of them are counterfeit, so they must be confiscated and destroyed.

- For 01 bag with the red word "Neobor TG" and many foreign characters which is sodium tetra borate (Na3B4O7), a banned food additive in food processing in Vietnam, it must be confiscated and destroyed.

- For 04 packages of Knorr seasoning powder, type 1.8kg; 45 packages of Ajinomoto MSG, type 2kg; 60 packages of Ajinomoto MSG, type 2kg; 53 packages of Ajinomoto MSG, type 1.8kg; 02 packages of Ajinomoto MSG, type 1kg; 47 packages of Knorr seasoning powder, type 175g; 08 packages of Miwon MSG, type 2kg; 22 packages of Vedan MSG, type 2kg; 02 packages of Vedan seasoning powder "pork broth" type 400g; 01 package of Vedan seasoning powder “pork and vegetable broth" type 400g; 03 packages of Vedan MSG 700g/pack; 03 packages of Kooker MSG, type 2kg; 04 packages of A-one MSG, type 2kg; 06 packages of Ajingon seasoning powder, type 2kg. All of the above items are the defendant's legal property, so they should be returned to the defendant.

- For 01 retail invoice in the name of Agent L, T2 kept in the case file, it shall be continued to be kept in the file.

- For the amount of 55,000 VND of Ms. Le Thi U1 used to buy MSG, seasoning powder from the defendant, U1 did not know that those packages of seasoning powder and MSG were counterfeit and had no business purpose, so on November 7, 2019, the police investigation body of City P has returned the above amount to Ms. U1, in accordance with the law.

 [6] Regarding other facts of the case: For a woman named Y the defendant claimed to be the defendant's supplier of fake MSG and seasoning powder, Police Investigation Agency of Phu Ly City has conducted verification in Village 3, Commune L, City P, it is found that there is a person named Tran Thi Y, born in 1981. The investigation agency summoned Tran Thi Y for investigation. The verification process showed not enough grounds to determine that Tran Thi Y was the supplier of fake MSG and seasoning powder to the defendant, so the Trial Panel did not consider her further in the case.

For the act of trading 25 kg of Na3B4O7, this is a foreign-origin goods without import stamps, Le Thi L does not have proof to prove the origin, so on November 9, 2019, Police of City P issued an administrative penalty decision against Le Thi L with the amount of 300,000 VND, the defendant paid this sum of fine in accordance with the provisions of Article 17 of Decree No. 185/2013/ND-CP in Viet Nam dated November 15, 2013 of the Government.

 [7] Regarding court fees and the right to appeal: Defendant, persons with related interests and obligations shall comply with the provisions of law.

Therefore, 

DISPOSITION

- Pursuant to Clauses 1, 5 Article 193; Point s, Clause 1, Clause 2 Article 51, Article 65, Article 47, Article 50 of the Criminal Code in Viet Nam;

- Pursuant to Articles 106, 136, 331, 333 of the Criminal Procedure Code in Viet Nam;

- Pursuant to the Law on Fees and Charges No. 97/2015/QH13 in Viet Nam dated November 25, 2015 and Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the National Assembly Standing Committee, stipulating the court fees and charges, collection, exemption, reduction, management, and use thereof;

1/ Declare defendant Le Thi L guilty of “Trading of counterfeit food and food additives”.

2/ Sentence defendant Le Thi L to 27 (twenty seven) months in prison, fully suspended, the probationary period is 54 (fifty four) months from the date of judgment of the first instance.

Assign the defendant Le Thi L to the People's Committee of Ward L, City P, Ha Nam Province to supervise and educate during probation.

In case the probationer changes her place of residence, the provisions of the law on criminal judgment enforcement shall apply.

During the probation period, if the probationer intentionally violates the obligations 2 times or more, the Court may force her to serve the original full prison sentence.

3/ Additional penalty: Impose a fine of 5,000,000 VND (five million dong) on defendant Le Thi L.

4/ Regarding exhibit handling:

- Confiscate 01 mobile phone with light yellow Samsung brand IMEI1: 354741074077737, IMEI2: 35474207407735.

- Confiscate and destroy: 22 packages of Ajinomoto MSG, type 454g; 45 packages of Ajinomoto MSG, type 100g; 05 packages of Knorr seasoning powder type 1.8kg; 18 packages of Knorr seasoning powder 900g; 13 packages of Knorr seasoning powder type 400g; 01 bag with red letters "Neobor TG" and many foreign characters (Na3B4O7).

- Return to the defendant: 04 packages of Knorr seasoning powder, type 1.8kg; 45 packages of Ajinomoto MSG, type 2kg; 60 packages of Ajinomoto MSG, type 2kg; 53 packages of Ajinomoto MSG, type 1.8kg; 02 packages of Ajinomoto MSG, type 1kg; 47 packages of Knorr seasoning powder, type 175g; 08 packages of Miwon MSG, type 2kg; 22 packages of Vedan MSG, type 2kg; 02 packages of Vedan seasoning powder "pork broth" type 400g; 01 package of Vedan seasoning powder “pork and vegetable broth" type 400g; 03 packages of Vedan MSG 700g/pack; 03 packages of Kooker MSG, type 2kg; 04 packages of A-one MSG, type 2kg; 06 packages of Ajingon seasoning powder, type 2kg.

Status and characteristics of exhibits are stated in the record of exhibit delivery and receipt between the Police Investigation Agency of Phu Ly City, Ha Nam Province and the Civil Judgment Enforcement Sub-department of Phu Ly City, Ha Nam Province dated December 5, 2019.

5/ Regarding first instance criminal fee: Defendant Le Thi L has to pay 200,000 VND.

The defendant is entitled to appeal this judgment within 15 days from the date of pronouncement. The person with related rights and obligations present at the trial has the right to appeal within 15 days from the date on which the judgment is received.

In case the judgment is enforced as per regulations in Article 2 of the Law on enforcements of civil judgments in Viet Nam, the judgment creditor and judgment debtor are lawfully allowed to reach an agreement on judgment enforcement, be subject to voluntary execution or coercive judgment enforcement in compliance with regulations in Article 6, 7 and 9 of the Law on enforcement of civil judgments, and the effective period of judgment enforcement shall comply within provisions in Article 30 of the Law on enforcement of civil judgments.