Judgment no. 164/2021/HS-ST dated march 29, 2021 on illegal trafficking of narcotic substances

SUPERIOR PEOPLE’S COURT IN HO CHI MINH CITY

JUDGMENT NO. 164/2021/HS-ST DATED MARCH 29, 2021 ON ILLEGAL TRAFFICKING OF NARCOTIC SUBSTANCES

On March 29, 2021, at the headquarters of the Superior People's Court in Ho Chi Minh City, a public trial will be held for the appellate trial of the criminal case No. 664/2020/TLPT-HS dated November 5, 2020 against defendant Arinse C due to the defendant's appeal against the first-instance criminal judgment No. 439/2020/HS-ST dated September 25, 2020 of the People's Court of Ho Chi Minh City.

- Appellants:

Arinse C (other names: “Arinze C”, “Dia H”); gender: male; year of birth: 1989 in: Nigeria; Residence in Nigeria: Idemili , Anambra State, Nigeria; place of residence in Vietnam: none; education level: grade 5 in Nigeria; occupation: garment; religion: Protestant; nationality: Nigerian; Passport: none (the defendant used a fake passport number A01288242 bearing the name Dia H); father: Mr. C Nnagbo (deceased), and mother: Mrs. Joy C, born in 1950; family circumstances: the defendant has 04 siblings; antecedents: none.

The defendant has been arrested and detained since August 8, 2019. (Appearance in court)

- Defense attorney for the defendant: Mr. Doan Huy Hoang, lawyer of the Bar Association of Ho Chi Minh City. (Appearance in court).

- Interpreter for the defendant: Ms. Nguyen Thien Thanh Truc – Translation Company 123. (Appearance 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:

At 17:30, on August 7, 2019, Sub-department of Customs of Tan Son Nhat International Airport Border Gate coordinated with specialized units in carrying out administrative inspection of people on entry by scanning, including a man named Dia H, holding passport number A01288242 with the date of issue is May 4, 2018, the place of issue in Senegal, discovering that Dia H's stomach has foreign bodies, so Dia H was taken to the military hospital 175 to remove the foreign bodies. After taking X-rays and colon cleanse, 77 oval tablets were obtained from Dia H, 5cm length, 1.5cm diameter; the outside is wrapped in gold and silver nylon. It has been assessed that it is a solid drug with a weight of 1389.9311 grams of Cocaine. On August 8, 2019, Sub-department of Customs of Tan Son Nhat International Airport Border Gate reported on offense caught in the act committed by Dia H, and then transferred the case to the police investigation agency, Police of Ho Chi Minh City for further actions within their competence.

After prosecuting the case, the police investigation agency verified the prior conduct and background of Dia H. Through information provided by the Senegalese Embassy in Japan, passport number A01288242 bearing the name Dia H is a fake passport. Furthermore, the Nigerian Embassy in Hanoi provided information that Dia H's real name is Arinse C, year of birth: 1989, Nigerian nationality, passport: none, residence: Idemili , Anambra State, Nigeria. Arinse C admitted that the background information as verified by the Nigerian Embassy is correct; in addition, the defendant also used another name, Arinze C.

During the investigation, Arinse C claimed that he used a fake passport named Dia H mentioned above by a guy named Peter to enter and exit for the purpose of transporting drugs. On August 5, 2019, at a hotel (the defendant's address is unknown) in Lagos city - Nigeria, the defendant, Arinse C, was hired by a friend named Peter (whose identity is unknown) who is a Nigerian but works in China to deliver 77 tablets of drugs abroad by air. Peter promised to pay remuneration to Arinse C, and prepare the drug transportation schedule, passport and airfare for Arinse C. Arinse C accepted and swallowed 77 drug tablets in his stomach, then flew from Lagos - Nigeria to Ethiopia. On August 6, 2019, Arinse flew from Ethiopia to Thailand. When he arrived at the airport in Thailand, Arinse did not enter the country, but contacted Peter with the "Whatsapp" application, saying that he wanted to go to Vietnam to buy souvenirs, Peter agreed but asked Arinse that after arriving in Vietnam he had to return to Nigeria and give back 77 tablets to Peter. Peter hired Arinse to test how long Arinse can hide drugs in the body and whether that would be detected by the authorities, if successful, Peter will hire Arinse to continue transporting drugs from Nigeria to China, but when Arinse entered Vietnam, he was caught red-handed.

All the drugs seized from Arinse C mentioned above were solicited for assessment, the results are shown in the assessment conclusion No. 3735/KLGĐ-H dated August 8, 2019 of the Criminalistics Division affiliated to Ho Chi Minh City Police.

In the Indictment No. 382/CT-VKS-P1 dated August 19, 2020 of the People's Procuracy of Ho Chi Minh City against Arinse C for the crime of "Illegal transportation of narcotics" under Point b, Clause 4, Article 250 of the Criminal Code in Viet Nam. In the first-instance criminal judgment No. 439/2020/HS-ST dated September 25, 2020, the People's Court of Ho Chi Minh City held that:

Pursuant to point b, Clause 4 and Clause 5 Article 250; point s Clause 1, Clause 2 Article 51; Article 40 of the Criminal Code 2015, amended in 2017 of the Socialist Republic of Vietnam;

Sentence Arinse C (other names: “Arinze C”, “Dia H”) to: to death for “Illegal transportation of narcotics”.

Force defendant to pay a fine of VND 20,000,000 (Twenty million dong) to be confiscated.

In addition, the first-instance criminal judgment also determines the handling of material evidence, legal fees and the right to appeal the case according to the law.

On September 28, 2020, defendant Arinse C appealed for commutation of sentence. Ground: Heavy punishment.

At the appellate trial, the defendant initially argued that the man named Peter in Nigeria told him to swallow the tablets but he did not know they were drugs. After that, the defendant admitted that because he needed some money, he was guilty of transporting drugs for Peter and asked for a reduction in the punishment.

Viewpoint of the representative of the Superior People's Procuracy in Ho Chi Minh City on lawsuit settlement:

The first-instance court's trial of the defendant for the crime of "Illegal transportation of narcotics" is well grounded, the death penalty is commensurate with the nature and seriousness of the offence. Therefore, the Trial Panel is requested not to accept the appeal of the defendant and affirm the first instance judgment.

Representation of Nguyen Thanh C, defense attorney for the defendant:

The charge as adjudicated by the court of first instance is accordant with the law. In this case, the defendant has the role of a secondary accomplice, as a hire worked, the amount of drugs has not been released outside the society. Therefore, the Trial Panel is proposed to reduce the sentence for the defendant.

Taking account of the evidence and documents examined at the appellate court hearing. Based on the results of the oral argument at the trial based on fully and comprehensively examining evidences and opinions of procurators, defendant, defense attorney.

JUDGEMENT OF THE COURT

[1] With reference to methods: Defendant Arinse C's appeal filed within the statutory time limit should be accepted for consideration and settlement according to the appellate procedure.

[2] Regarding the charge and the offense conduct:

The defendant's confession at the first instance and appellate court hearings is consistent with the defendant's testimony contained in the case file, the record of the arrest of the offender in the act, the statements of the witness, the record of the seizure of the evidence, assessment conclusions and other evidences in the case file. There are substantial grounds for holding that:

For self-seeking purposes, Arinse C swallowed 77 drug tablets in his stomach, then travelled by air from Lagos - Nigeria to many countries and finally entered Vietnam. When the defendant was doing immigration procedures at Tan Son Nhat airport, Ho Chi Minh City on August 7, 2019, he was caught red-handed and was caught holding 77 oval tablets in his stomach. In the assessment conclusion No. 3735/KLGĐ-H dated August 8, 2019, the Criminalistics affiliated to Ho Chi Minh City Police states that the 77 tablets mentioned above are drugs with a total volume of 1,389.9311 grams, Cocaine type.

Arinse C's act of illegally transferring narcotics from one country to another and not for the purpose of trading constitutes the crime of "Illegal transportation of narcotics", with a total volume of drugs caught red-handed are 77 oval tablets, with a mass of 1,389.9311 grams, Cocaine type. Therefore, the first-instance court was well grounded for trying the defendant for the crime of "Illegal transportation of narcotics" under Point b, Clause 4, Article 250 of the Criminal Code 2015 as amended in 2017.

[3] Regarding the content of the appeal, the Appellate Trial Panel found that:

The first-instance court applied mitigating circumstances to the defendant and made the following determinations: The defendant expressed cooperative attitude and showed his repentance and desire to redeem his faults; the defendant has no antecedents; the defendant is a foreigner, so his legal awareness of the consequences of the crime is somewhat limited, so it is necessary to apply point s, clause 1 and clause 2, Article 51 of the 2015 Criminal Code, amended in 2017 to consider the punishment for the defendant. However, the defendant's behavior was particularly serious, infringing on the State's exclusive management of narcotics, and the defendant was aware of the illegal transportation of narcotics, which are banned in every country, but he still committed the crime intentionally. Narcotics are one of the causes that give rise to many other dangerous crimes, although the defendant himself has never committed a crime in Vietnam, he transported a particularly large volume of narcotics and used a method that was extremely sophisticated, reckless, audacious, defying the law, and disregarding his own life to commit the act to the end; deeming that the defendant is incapable of being rehabilitated and we have no other option except to permanently exclude the defendant out of social life for the general deterrence and prevention of similar crimes.

The above judgment of the first-instance Court is grounded, so the Appellate Trial Panel has no justifiable ground to accept the defendant's appeal about the commutation of sentence, it is necessary to affirm the first-instance judgment.

At today's court hearing, the representative of the High Procuracy proposed not to accept the defendant's appeal, which is consistent with the above judgment of the Trial Panel, so it should be accepted.

For the foregoing reasons;

DISPOSITION

Pursuant to point a clause 1 Article 355, Article 356 of the Criminal Procedure Code 2015 in Viet Nam.

Dismiss the appeal of defendant Arinse C and affirm the first-instance judgment No. 439/2020/HS-ST dated September 25, 2020 of the People's Court of Ho Chi Minh City.

Pursuant to point b, Clause 4 and Clause 5 Article 250; point s Clause 1, Clause 2 Article 51; Article 40 of the Criminal Code 2015, amended in 2017 of the Socialist Republic of Vietnam;

Sentence: Arinse C (other names: “Arinze C”, “Dia H”) to death for “Illegal transportation of narcotics”.

Within 07 days from the date the judgment takes legal effect, the defendant has the right to file a motion with the President of the Socialist Republic of Vietnam for commutation of the death penalty.

Force defendant to pay a fine of VND 20,000,000 (Twenty million dong) to be confiscated.

The defendant has to pay VND 200.000đ of first instance criminal fee..

Other decision portions of first instance judgment having no appeal or protest take legal effect after the expiry of the time limit for appeal or protest.

The appellate judgment takes legal effect from the date of pronouncement.