Judgment No. 16/2018/HS-ST dated february 9, 2018 on smuggling

PEOPLE’S COURT OF CITY M, QUANG NINH PROVINCE

JUDGMENT NO. 16/2018/HS-ST DATED FEBRUARY 9, 2018 ON SMUGGLING

On February 9, 2018 at the People’s Court of City M, Quang Binh Province, the accepted first instance criminal case No. 06/2018/HSST dated January 18, 2018 was brought for the public first instance trial under the Decision to hear the case No. 16/2018/QDXXST-HS dated January 25, 2018 against the defendant:

Full name: Tong Thi Hoai T (alias: none);  Born: July 7, 1995 in Nam Dinh; Permanent residence: Hamlet B, District Y, Nam Dinh Province; Current residence: Neighborhood 4, Ward H, City M, Quang Ninh Province; Occupation: None; Education level: 12/12; Ethnic group: Kinh; Gender: Female; Religion: None; Nationality: Vietnamese; Child of Mr. Tong Duy B (deceased) and Ms. Pham Thi B; Spouse and children: None; Criminal record: None; The defendant was caught red-handed on December 9, 2017 and is currently detained at detention house of City M Police of Quang Ninh Province. Present.

Eyewitnesses:

1/ Mr. Anh Dao Van T. Trial in absentia.

2. Mr. Nguyen Van T1. Trial in absentia.

THE CASE

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

On December 8, 2017, Tong Thi Hoai T entered City D, China, met a man named A Nhi (personal background and address unclear) and gave VND 3,400,000 to purchase 5 crates of bird egg firecrackers at a price of VND 8,000/firecracker and 36-shot cake firecracker at a price of VND 180,000/cake which would then be transported to City M, Vietnam and sold to a subject named Tuan (personal background and address unclear) for profit. At around 4:30 p.m. on December 9, 2017, A Nhi asked T via telephone to arrive at the river bank by the border at Xuong dock in Neighborhood 3, H Ward, City M to receive the firecrackers, T arrived and received 5 crates of bird egg firecracker and 5 cakes of firecracker which A Nhi delivered via a ferry operator (personal background and address unclear) who transported said firecrackers across the border from China. Then, T hired Mr. Dao Van T to transport the firecrackers on a motorcycle with the license plate of 34E1-120.40 to the entrance of Ka Long market and hand over to Tuan, T also hired Mr. Nguyen Van T1 to take T along. The 3 individuals were arrested by the task force of Economic Police – Quang Binh Police Authority while delivering firecrackers to the subject named Tuan at the entrance of Ka Long market. Tuan managed to get away.

Exhibits collected from Tong Thi Hoai T: 720 cylinder bird egg firecrackers contained in 60 cardboard boxes, each box came in a 29 x 15 x 10 cm dimension with patterns and foreign script printed on the outside and contained 12 firecrackers and 1 launch tube with a plastic base 10 cm in length and 7 cm in width and a tube made of tough cardboard 25 cm in height and 5 cm in diameter and a total weight of 41 kg; 120 cakes of 36 shots firecrakers with a total weight of 97 kg (contained in sealed leno bags); 01 Iphone cellphone; 2 laissez-passers bearing the name of Tong Thi Hoai T. In addition, 1 Yamaha motorcycle with license plate of 34E1-120.40 belonging to Dao Van T was also confiscated.

During investigation and trial, defendant Tong Thi Hoai T provided consistent statements as follows: Due to being a free worker and regularly commuting and working in City D in China, the defendant got to know a Chinese man named A Nhi who had firecrackers for sale. During the beginning of December, 2017, the defendant entered City D, China and gave A Nhi VND 3,400,000 to purchase 5 crates of bird egg firecrackers at a price of VND 8,000/firecracker and 5 cakes of 36 shot firecrackers at a price of VND 180,000/cake in order to transport to City M, Vietnam and sell to a subject named Tuan (personal background and address unclear) for profit. At around 4:30 p.m. on December 9, 2017, A Nhi asked the defendant via telephone to arrive at the river bank by the border at Xuong dock in Neighborhood 3, H Ward, City M to receive the firecrackers, the defendant arrived and received 5 crates of bird egg firecracker and 5 cakes of firecracker which A Nhi delivered via a ferry operator who transported said firecrackers across the border from China. After receiving the firecrackers, the defendant hired Mr. Dao Van T, who worked as a motorcycle taxi operator, to transport the firecrackers to the entrance of Ka Long market to deliver to Tuan, the defendant then hired Mr. Nguyen Van T1, who worked as a motorcycle taxi operator, to take the defendant along. The 3 individuals were arrested by the task force of Economic Police – Quang Binh Police Authority while delivering firecrackers to the subject named Tuan at the entrance of Ka Long market. Tuan managed to get away.

All eyewitnesses are absent at the trial but have provided consistent statements in terms of time, location and details during the investigation progress:

Mr. Dao Van T claimed: At around 5.30 p.m. on December 9, 2017, a woman (who was later identified as Tong Thi Hoai T) hired him, who was parking at Xuong dock, Hai Hoa Ward, City M, to transport some bags of commodities from the river bank of Xuong dock, Neighborhood 3, H Ward to the entrance of Ka Long market, Ka Long Ward. While unloading at the market entrance, he was inspected by the police authority which discovered firecrackers in the bags and was later brought to police station together with the exhibits and vehicles.

Mr. Nguyen Van T1 claimed: He knew T and was called by T at 6.30 p.m. on December 9, 2017 while he was at home to arrive at Xuong dock, Neighborhood 3, Hai Hoa Ward to pick T up. T later asked him to take T to the entrance of Ka Long market, Ka Long Ward. After arriving at the market entrance, T1 waited while T came towards a man carrying multiple bags on the motorcycle. After having a conversation, T and 2 other men unloaded the commodities and were inspected by the police authority which discovered firecrackers in the bags and brought all individuals and the firecrackers to the police station.

Indictment No. 16/KSDT-HS dated January 18, 2018 of the People’s Procuracy of City M, Quang Ninh Province prosecuted the defendant Tong Thi Hoai T for “Smuggling” according to Article 153 of the Criminal Code of 1999 in Viet Nam.

At the court, representative of the Procuracy holding prosecution rights stated: At around 6.30 p.m. on December 9, 2017, at the entrance of Ka Long market, Ka Long Ward, City M, Quang Ninh Province, Tong Thi Hoai T purchased 34.86 kg of firecrackers from China from an individual named A Nhi to sell to a subject named Tuan for profit at which point Tong Thi Hoai T was caught red-handed. According to Assessment conclusion No. 5197/BKL-PTM dated December 10, 2017 of Counselor Department - Military Command of Quang Ninh Province: of all the 720 bird egg firecrackers (including launch tubes) of Tong Thi Hoai T that were assessed, a total 34.86 kg was explosive firecrackers and manufactured abroad; 120 square crates with a total weight of 97 kg sent for assessment were cake firecrackers and manufactured abroad. Thus, the Procuracy retained their decision to prosecute the defendant. Considering the nature and severity of the offence, mitigating circumstances and personal record of defendant Tong Thi Hoai T, the trial panel is hereby requested to:

Pursuant to: Point c Clause 1 Article 153 of the Criminal Code 1999; Point i and Point s Clause 1 Article 51 of the Criminal Code 2015 in Viet Nam.

Sentence Tong Thi Hoai T from 18 to 24 months of imprisonment, imprisonment period starts from the date on which the defendant was arrested, December 9, 2017.

Pursuant to: Point c Clause 1 Article 47 of the Criminal Code in 2015; Clause 2 Article 106 of the Criminal Proceeding Code 2015 in Viet Nam.

Dispose the exhibits as per the law.

The defendant did not appeal against the statement of representative of the Procuracy.

In their final words, the defendant showed remorse and solicited the trial panel for the lowest sentence.

JUDGMENT OF THE COURT

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

 [1] Regarding proceeding and decision thereon: Investigating authority of Police authority of City M, investigators, People’s Procuracy of City M and procurators have fully complied with procedures and regulations of the Criminal Proceeding Code during investigation and prosecution processes. Throughout investigation process and the trial, the defendant did not question or complain about affairs and decision of legal proceeding authority and individuals. Thus, all acts and decisions on proceeding carried out by legal proceeding authority and individual are legitimate.

 [2] Considering statements of the defendant at the trial consistent with statements during investigation, consistent with statements of eyewitnesses in terms of time and location of crimes and consistent with other documents, exhibits, crime scene, crime scene photos, exhibits collected at crime scene and other documentary evidence in the case file: At around 6.30 p.m. on December 9, 2017, at the entrance of Ka Long market, Ka Long Ward, City M, Quang Ninh Province, Tong Thi Hoai T purchased 34,86 kg of firecrackers from China transported to Vietnam by a subject named A Nhi to sell to a subject named Tuan for profit, at which point the defendant was caught red-handed. 

According to Assessment conclusion No. 5197/BKL-PTM dated December 10, 2017 of Counselor Department - Military Command of Quang Ninh Province:

- Of all the 720 bird egg firecrackers (including launch tubes) of Tong Thi Hoai T that were assessed, a total 34.86 kg was explosive firecrackers and manufactured abroad.

- 120 square crates with a total weight of 97 kg confiscated from Tong Thi Hoai T sent for assessment were cake firecrackers and manufactured abroad.

Considering the offence of the defendant has satisfied constituents  of “Smuggling” charge with details clarified under Point c Clause 1 Article 153 of the Criminal Code 1999. Thus the trial panel is established in concluding that the defendant Tong Thi Hoai T committed “Smuggling” according to Point c Clause 1 Article 153 of the Criminal Code 1999.

 [3] Considering the nature of the case, aggravating circumstances, mitigating circumstances and personal record of the defendant, the trial panel deems:

The defendant purchased firecrackers which are under the list of commodities prohibited for trade by the Government according to Article 4 of Decree No. 36/2009/ND-CP in Viet Nam dated April 15, 2009 of the Government on managing the use of firecrackers: “Prohibited acts: Illegally manufacturing, selling, importing, exporting, transporting, storing and using firecrackers, etc.”.  The defendant transported 34.86 kg of explosive firecrackers (According to Joint Circular No. 06/2008/TTLT-BCA-VKSNDTC-TANDTC in Viet Nam dated December 25, 2008 under Section III Point 2.3: From 10 kg to less than 50 kg of illegally traded, transported and stored firecrackers is considered in large quantity), and conducted trade illegally across border thereby endangering state management policies on cross-border trade and violating social order and safety, satisfied all constituents of “Smuggling” charge and was prosecuted according to Point c Clause 1 Article 153 of the Criminal Code 1999 on a well-grounded basis. 

Offence of the defendant caused harm to the society thus strict measures corresponding to the nature and offence of the defendant are required to temporarily isolate the defendant from society in order to re-educate the defendant into beneficial individual to society and take preventive effect.

Regarding mitigating circumstances: Prior to the offence, the defendant had a good personal record, after committing the offence, the defendant is aware of their wrongdoing, showed remorse for their offence; the defendant violated regulations and law for the first time and was under a less severe case and shall thus benefit from mitigating circumstances according to Point i and Point s Clause 1 Article 51 of the Criminal Code of 2015.

aggravating circumstances: None.

Pursuant to Clause 1 Article 153 of the Criminal Code 1999: “a fine ranging from VND 10,000,000 to VND 100,000,000 or from 3 months to 3 years of imprisonment shall be imposed”, Clause 1 Article 188 of the Criminal Code 2015 includes “a fine ranging from VND 50,000,000 to VND 300,000,000 or from 6 months to 3 years of imprisonment”.  The trial panel deems regulations under the Criminal Code of 1999 is beneficial for the defendant and thus shall be considered for adoption to decide the penalty with the minimum level of temporary isolation from society for re-education purpose. 

 [4] Regarding disposal of exhibits: assessment samples of 34.86 kg of explosive firecrackers and 97 kg of cake firecrackers manufactured abroad have been disposed while the remaining amount is received and kept at Military Command of the Province for actions within their competence; 1 Iphone and 1 SIM card which the defendant used to contact Tuan to commit the offence thus shall be confiscated and transferred to the State budget; 2 laissez-passers No. H0465584 and H0416150 both bear name of Tong Thi Hoai T issued by immigration department of Quang Ninh Police Authority on December 5, 2017 and November 3, 2017 shall be returned to the defendant due to their irrelevance to the offence.

Regarding the Yamaha motorcycle with license plate 34E1-120.40, investigating authority of Police authority of City M decided to return to Mr. Dao Van T on December 26, 2017 since Mr. T was not aware that the commodities that he had been hired to transport were firecrackers.

 [5] Considering that evidence used by the procurator to prove offence of the defendant has been collected according to procedures specified by the Criminal Proceeding Code and the defendant admits committing the offence as specified in the indictment of the Procuracy, accusation of the procurator regarding mitigating circumstances, personal record, penalty and disposal of evidence for defendant Tong Thi Hoai T is well-grounded and accepted by the trial panel.

 [6] Regarding additional penalties: In this case, the defendant committed violations for personal gain thus additional penalty inform of monetary penalty. Pursuant to Clause 5 Article 153 of the Criminal Code 1999, additional monetary penalty ranging “from VND 3,000,000 to VND 30,000,000”; pursuant to Clause 5 Article 188 of the Criminal Code in 2015, a fine ranging “from VND 20,000,000 to VND 100,000,000”, the trial panel deems regulations of the Criminal Code 1999 are beneficial for the defendant thus considered for adoption.

 [7] First instance court fee: Defendant Tong Thi Hoai T shall incur first instance court fee as per the law.

Related to the case, a subject named Tuan purchased firecrackers from T but cannot be tried due to failure to verify personal background or address. Mr. Dao Van T who was hired by the defendant to transport firecrackers but Mr. T was not aware that he was transporting firecrackers thus cannot be tried.

Regarding 97 kg of cake firecrackers confiscated of Tong Thi Hoai T, assessment concluded that those are not explosive firecrackers thus criminal prosecution for said firecrackers is not established.

For all reasons above,

HEREBY DECIDES

1. Defendant: Tong Thi Hoai T (alias: None) is declared to commit: “Smuggling”

Pursuant to: Point c Clause 1 Article 153 of the Criminal Code 1999; Clause 3 Article 7; Point i and Point s Clause 1 Article 51 of the Criminal Code 2015.

Sentence: Tong Thi Hoai T to 18 months of imprisonment, period of imprisonment starts from the date of detention, December 9, 2017.

Pursuant to: Clause 5 Article 153 of the Criminal Code 1999.

A fine of VND 3,000,000 is imposed on Tong Thi Hoai T and shall be transferred to the Government budget.

2. Regarding evidence disposal:

Pursuant to: Point a and Point c Clause 1 Article 47 of the Criminal Code in 2015; Point a Clause 2 Article 106 of the Criminal Proceeding Code 2015.

- Confiscate, liquidate and transfer to State budget: 1 Iphone and 1 old SIM card, used, internal quality inspection not yet implemented.

- Items returned to defendant Tong Thi Hoai T: 2 laissez-passers No. H0465584 and H0416150 both bear the name of Tong Thi Hoai T issued by immigration department of Police authority Quang Ninh Province on December 5, 2017 and November 3, 2017.

Properties and conditions of exhibits mentioned above shall conform to Exhibit transfer record No. 48/2018/THA dated January 22, 2018 in Civil Judgment Enforcement Department of City M, Quang Ninh Province).

3. Regarding court fee. Pursuant to: Clause 2 Article 136 of the Criminal Proceeding Code 2015; Article 23 of Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 on court fees and collection, exemption, reduction, submission, management and use thereof.  Defendant Tong Thi Hoai T is compelled to a first instance fee of VND 200,000.

4. Regarding rights to appeal. Pursuant to: Article 331 of the Criminal Proceeding Code 2015.

The judgment is conducted publicly with presence of the defendant. The defendant has the right to appeal the first instance judgment in 15 days from the date on which the first instance judgment is declared.