Judgment no. 20/2021/HS-ST against crime of organizing others to enter vietnam illegally

THE PEOPLE'S COURT OF CA MAU PROVINCE

JUDGMENT NO. 20/2021/HS-ST DATED APRIL 15, 2021 AGAINST CRIME OF ORGANIZING OTHERS TO ENTER VIETNAM ILLEGALLY

On April 15, 2021, at the head office of the People’s Court of Ca Mau province, a first instance trial was conducted to hear the criminal case No. 19/2021/TLST-HS dated March 30, 2021 under the Decision to bring the case to hearing No. 19/2021/QDXXST-HS dated April 1, 2021 against:

Pham Van Ch, born on January 1, 1981; place of residence: Village 20, Ng commune, U district, Ca Mau province; occupation: Fisherman; educational level: 3/12; ethnicity: Kinh: gender: Female; religion: Caodaism; nationality: Vietnamese; father: Mr. Pham Van H and mother: Mrs. Mai Thi X (aka Xuong); has a wife and 02 children; previous criminal convictions and previous administrative violations: None; prior conduct: This was the first time the defendant has violated the law; he has been held in custody since February 17, 2021; and has been detained since February 26, 2021. The defendant appeared in court.

- Defense counsel of the defendant:  Mr. Do Van Tong, a lawyer of the branch of Cong Hung Law Firm and Associates in Ca Mau, affiliated to Ho Chi Minh City Bar Association. The lawyer appeared in court.

- Person with interests and obligations related to the case:  Ms. Vo Ngoc V, born in 1983 (appeared in court) Address: Village 20, Ng commune, U district, Ca Mau province

- Witness:  Mr. Le Van D, born in 1988 (did not appear in court). Address: Cluster 6B, S town, Tr district, Ca Mau province

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:

Pham Van Ch and Pham Hoang L (a Vietnamese resident in Malaysia) have an uncle and nephew relationship. L promised to lend Ch money to buy a fishing boat to go fishing. Ch and L have known A (unknown identity).

On January 25, 2021, Ch bought the fishing boat CM 91651TS from Mr. Ho Hoang Ng, residing in Kinh 4 village, Kh commune, Tr district, Ca Mau province for VND 280,000,000. L lent Ch the amount of VND 60,000,000, via a money transfer from Mrs. Nguyen Ngoc H, L's wife, through Viettinbank to Ch. Ch made a deposit for Mr. Ng amounting to VND 50,000,000 and still owes VND 230,000,000.

On January 28, 2021, A called on Zalo to hire Ch to transport 01 anchor, 02 bags of rice, 10 pieces of plastic foam to the sea for A, then transport squids to the mainland for from VND 1,000,000 to VND 3,000,000/01 trip, depending on the distance. After reaching an agreement with A, Ch hired Le Van D to load goods, fish for squid with Ch. Ch pays a wage of VND 400,000 per day. D agreed and Tran Thi Th, D's wife, advanced an amount of VND 4,000,000.

As for the person named A, after reaching an agreement with Ch, around 8:00 a.m. on January 30, 2021, A called Pham Van S (who is L's brother and Ch's uncle) to find and rent a large boat for A to carry 02 tonnes of dried squids and ask S to buy another phone sim to contact the boatman and Ch.

At about 5:00 p.m. on January 30, 2021, Ch operated the boat CM 91651 TS and D departed along the river to the Ganh Hao estuary - Bac Lieu to go to the sea. When the boat went to sea, A and Ch continued to communicate with each other via walkie-talkies and arranged to meet at coordinates 07040'N-103035'E in Vietnamese territorial sea.

Around 2 o'clock on January 31, 2021, Ch operated the fishing boat CM 91651 TS to the coordinate area as scheduled to anchor to wait for A. At 08 o'clock on the same day, A operated the fishing boat to dock with Ch's boat for 02 people to pass through Ch's boat to receive the goods carried by Ch. Next, A took 34 people on A's boat to Ch's boat, so that Ch could bring them back to Vietnam to illegally enter Vietnam, and then A and Ch operated the boats away.

At around 4pm on February 2, 2021, A used a foreign phone number (+601135727501) to call S. A told S that about 01:00 a.m. on February 3, 2021, when a cargo boat arrived, A asked S to rent 01 more boat. After that, S and his sister, Pham Thi Chuong, contacted Pham Van S1 and Pham Van V to rent a boat for VND 3,000,000, S prepaid S1 an amount of VND 2,000,000.

After receiving the people, Ch steered the boat towards the waters of Ca Mau. At 21:00 on February 2, 2021, Ch received a phone call from an unknown number asking him to steer the boat to the estuary of Village S, Commune Kh, Tr district, Ca Mau province, and someone would pick up people to the mainland. Ch steered the boat to anchor at coordinates 09012’026”N-104047’07”E at the estuary of Village S, Kh commune, Tr district, Ca Mau province.

At about 01:38 on February 3, 2021, the Song Doc Border Guard Station patrolled, detected, and caught Ch, D and 34 people red-handed illegally entering Vietnam, including: (1) Vo Thi Anh Ng, (2) Vo Thi Thu V, (3) Nguyen Van H, (4) Pham Van Th, (5) Tran Thi My T, (6) Nguyen Thi Bich Ng, (7) Y Sa Kiel Ml, (8) Tran Thi Th, (9) Dang Thi T, (10) Le Ngoc Minh Th, (11) Luu Xuan H, (12).Vo Thi L, (13) Nguyen Thi Dieu Th, (14) Tran Thi Ngoc Tr, ( 15) Do Thi Ng, (16) Nguyen Thi Do L, (17) Nguyen Thi Mong Tr, (18) Cao Thi B, (19) Luong Thi K, (20) Nguyen Thi Kim H, (21) Nguyen Thi Cam T, (22) Le Thuy Hong Tr, (23) Tran Thi Th, (24) Le Thi Th, (25) Ngo Thi My Ng, (26) Trinh Ngoc Th, (27) Nguyen Huu Tr, (28) Le Van Th, (29) Tran Thi L, (30) Doan Van H, (31) Kpa H' U, (32) Le Thi Kim Th, (33) Le Anh Ng, (34) Le Van Th went to Covid-19 quarantine at the Infantry Regiment 896, Ca Mau province.

All 34 people mentioned above have legally exited by air via Tan Son Nhat and Noi Bai, Can Tho airports to travel, visit relatives and work as an employee in Malaysia. Due to the outbreak of the Covid-19 epidemic, they did not have a job and could not return to Vietnam by legal means, so these people asked some middlemen in Malaysia through brokers to be brought back to Vietnam by sea and all were aboard A's boat. A took these people to the sea, and then brought these people through Ch's boat to return to Vietnam by illegal route.

During the investigation, Ch admitted that the reception of 34 people mentioned above Ch and A did not have a prior agreement, from the time he received 34 people until he was caught, Ch did not report to the authorities. Ch determined that if he brought these 34 people through without being detected by the authorities, A would pay Ch a certain amount, minus the cost, there would be a profit, but it was not determined how much it would be.

On February 5, 2021, while Ch underwent a Covid-19 quarantine, Vo Ngoc V (Ch's wife) borrowed a loan from Mrs. Nguyen Thi Th1 who is the biological mother of Mr. Ho Hoang Ng (boat seller) an amount of VND 100,000,000, interest rate VND 8,000,000/month; V asked Th, the wife of Le Van D, who worked as an employee on Ch's boat) to mortgage the property and borrow 100,000,000 VND for V, with a profit of 5,000,000 VND/month; V pawned gold for the amount of VND 30,000,000 and repaid the full debt of VND 230,000,000 (two hundred and thirty million dong) to buy the boat to Ng.

- In Indictment No. 19/CT-VKS-P1 dated March 30, 2021, the People's Procuracy of Ca Mau province prosecuted Ch for the crime of "Organizing others to enter Vietnam illegally" under Point a, Clause 3 Article 348 of the Criminal Code.

At the hearing today:

- The representative of the People’s Procuracy of Ca Mau province in the trial addressed as follows:

+ Regarding criminal liability: Proposed to apply Point a, Clause 3, Article 348; Clause 2, Article 51 of the Criminal Code, declaring the defendant guilty of the crime of "Organizing others to enter Vietnam illegally", sentence the defendant to from 08 years to 10 years in prison.

+ Regarding exhibit handling: Proposed to apply Article 106 of the Criminal Procedure Code, confiscate 01 fishing boat, 01 mobile phone, 02 million VND and 05 foreign currency bills; return to defendant the amount of VND 6,450,000, bank card, identity card, picture 4x6.

- The defense lawyer for the defendant presented: greed with the count that the People's Procuracy of Ca Mau province prosecuted against the defendant. Proposed to consider granting the commutation of sentence to the defendant based on the following circumstances: Committing the crime in the case of limited cognitive ability that was not caused by his fault; causing minor damage (34 people who entered illegally were Covid-19-free and did not spread Covid-19 to the community); sincere declaration, repentance; spontaneous crime. Proposed to apply Clause 1, Article 54 of the Criminal Code to determine the lowest penalty in Clause 2, Article 348 of the Criminal Code.

- Person with related rights and obligations presented: The fishing boat CM 91651TS is the marital property, so they would like to receive the boat back.

- The defendant's last words: He admitted that it was his violation to accept 34 people from A's boat in the territorial sea adjacent to Malaysia's territorial sea and carry them to mainland, but the defendant did not intend, without prior agreement, and receive no benefit from the person named A.

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 shall determine as follows:

 [1] Regarding the procedural acts and decisions of the investigation body, investigators, procuracy 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 (for the defendant) and at the trial (for the defendant and related persons), no one gave 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] Around 01:38 on February 3, 2021, at the estuary of Village S, Kh commune, Tr district, Ca Mau province, Song Doc Border Guard forces discovered and arrested Pham Van Ch for illegal acts. Ch steered the fishing boat CM 91651TS carrying 34 people without legal documents was anchored waiting for another boat to come and pick them up. During the investigation process, it was determined that 34 people were all Vietnamese who had migrated to Malaysia mainly in the form of labor export, tourism, or visiting relatives (by air). Due to the outbreak of the Covid-19 epidemic, they could not return to Vietnam by legal means. The fact that their lives and work in Malaysia had faced many difficulties and the traditional New Year was approaching hurried them into returning to Vietnam to reunite with their family, so they looked for brokers in Malaysia (named A, S) to illegally enter Vietnam by sea. [3] At the trial, although the defendant admitted that it was his violation to accept 34 people from A's boat in the territorial sea adjacent to Malaysia's territorial sea and carry them to mainland, but the defendant did not intend, without prior agreement, and receive no benefit from the person named A.

Compared with the evidence contained in the file, it was found that: The defendant just bought the boat CM 91651TS on January 25, 2021 (still owed money to buy the ship) and until the defendant received and carried 34 people at 08:00 on January 31, 2021, it was the first time the defendant operated a vehicle to the sea to catch seafood (case file p. 146, 160). According to the defendant, each fishing trip costs him a lot of money and time. In fact, at sea, the defendant did not catch seafood, when he met A's boat and people from A's boat came aboard the defendant's boat, the defendant had no objection. Before taking the fishing trip, the defendant made a commitment dated January 30, 2021 to Ganh Hao Border Guard Station (case file p. 763), in which item 6 stated "Regularly notify BP stations about situation of social security and safety and illegal immigration at sea, suspicious activities and signs of people and vehicles returning from abroad”. The defendant is a person with 20 years of seafaring experience and has been trained as a class AII captain (case file p. 80, 158). The distance from meeting A's boat to entering the estuary of S was a long distance (about 100 nautical miles), taking a long time (about 40 hours, case file p. 126) enough for the defendant to rethink and report to the authorities, but after operating the boat carrying 34 people ashore, the defendant did not report as committed but steered the vehicle to the estuary under the instructions of another person. Therefore, only with more benefits than profits from fishing, the defendant transported people to Vietnam without permission of the competent authority. The defendant's testimonies during the investigation also clearly demonstrated this self-seeking purpose (case file p. 137-138; 145-150; 154). With these circumstances, the fact that the People's Procuracy of Ca Mau province prosecuted the defendant for the crime of "Organizing others to enter Vietnam illegally" specified at Point a, Clause 3, Article 348 of the Criminal Code was found grounded, not unfair to the defendant, consistent with the defense of the lawyer about the crime.

[4] With the defendant's act of operating the fishing boat CM 91651TS carrying 34 Vietnamese people from Malaysia to illegally enter by sea, it is dangerous to society and falls under a felony, directly infringing on human rights and interests, administrative management in the field of exit and entry by competent authorities of the Socialist Republic of Vietnam. At the time the defendant committed the act, the Covid-19 pandemic had progressed in a complicated and unpredictable way, not only for Vietnam but also on a global scale, the number of new infections and deaths had shown no sign of stopping and there was no cure. As for Ca Mau province in particular and the whole country in general, the number of infected people had not decreased, seriously threatening life, human health and socio-economics. As for the defendant, just for the sake of self-seeking motive, the defendant intentionally did this despite the danger of the pandemic and the efforts of the whole society.

With a large number of people entering Vietnam illegally as above, one of the risks of disease infection from outside was very high, not only a danger to the country's pandemic prevention efforts during this time but also related to national security and order. In the context that the people of Ca Mau province in particular and the whole country in general were having to implement strict solutions to join hands to prevent and control the pandemic, a strict sanction against the defendant was essential.

 [5] When deciding the penalty, the Trial Panel considered the following mitigating circumstances for the defendant: Low education level; having a biological father who is a wounded soldier; no prior criminal record or administrative violation. During the investigation and at the trial, the defendant denied the crime without showing remorse or repentance; he committed the crime intentionally and due to the act of being caught red-handed, the authorities had to isolate 34 people who entered the country illegally. Therefore, the defendant was not entitled to the extenuating circumstances specified at Points h, l, s Clause 1 Article 51 of the Criminal Code according to the opinion of the defense lawyer for the defendant at the court hearing.

 [6] Considering the nature and extent of the offense, the mitigating and aggravating circumstances of the criminal liability and the personal characteristics of the defendant, considering that the proposal of the penalty level of the representative of the People's Procuracy was grounded, the Trial Panel decided to continue isolating the defendant from social life for a while in order to reform the defendant into a good person as well as for general prevention. Due to the absence of extenuating circumstances specified in Clause 1, Article 51 of the Criminal Code, reject the proposal of the defendant’s defense lawyer to apply Clause 1, Article 54 of the Criminal Code to commute the sentence for the defendant.

 [7] Regarding exhibit handling:

The exhibits directly related to the crime that need to be confiscated include: Wooden hull boat number CM 91651TS, 01 mobile phone, 05 (five) foreign currency notes and VND 2,000,000 (money paid by Pham Van S1 from illegal profits).

For the defendant's personal papers and property including identity card, bank card, 4x6 photo and the amount of VND 6,450,000 not related to the crime, they should be returned to the defendant.

 [8] Due to the conviction, the defendant must bear the first-instance criminal court fee.

 [9] As for Le Van D who is a hired worker on Ch's boat, the investigation process has no ground to prove that he was an accomplice to Ch, the Investigation Security Agency taking no action against D was a reasonable decision.

 [10] As for Pham Van S1 and Pham Van V, despite the deal made and money received from Pham Van S, S1 and V did not steer a boat to pick up 34 people and bring them to the mainland as agreed and then reported the case to the authorities as well as handed over the illicit profits. The Investigation Security Agency taking no action against S1 and V was deemed appropriate.

 [11] As for 34 people with illegal entry, because they have not incurred any administrative penalty, the Investigation Security Agency of Ca Mau Provincial Public Security transferred the file to the competent authority to handle administrative violations according to regulations.

 [12] As for Pham Hoang L, Pham Van S, Pham Thi Ch1, Nguyen Ngoc H and A involved in the case, since the Investigation Security Agency was unable to work with L and A, it would separate it into another case for further investigation.

For the foregoing reasons,

DISPOSITION

Pursuant to Clause 3, Article 348, Clauses 2 and 51, Article 2 of the Criminal Code ; Clause 106, Article 2, Clause 136 and Clause 23 Code Civil Procedure, Article 326/2016/UBTVQH14 of Resolution No. 30/12/2016 of the National Assembly Standing Committee dated December 30, 2016 on the amounts of collection and exemption, reduction, collection, payment, management and use of court fees and charges:

1. Declare defendant Pham Van Ch guilty of "Organizing others to enter Vietnam illegally".

2. Sentence defendant Ch to 08 (eight) years in prison. The prison term commences from February 17, 2021.

3. Confiscate the following exhibits: 01 (one) wooden hull boat CM 91651TS; VND 2,000,000 (two million dong) (including 04 bills of VND 500,000 in 01 sealed envelope dated March 12, 2021, bearing the signatures and full names of Pham Van S1 and investigator Nguyen Chi Nhan); 01 (one) silver Samsung mobile phone Serial number: R58K73LNRZM and 05 foreign currency bills (foreign money and mobile phone in 01 sealed envelope dated February 3, 2021, bearing the signatures and full names of Pham Van Ch and investigator Nguyen Chi Nh). The exhibits have been currently managed by the Civil Judgment Enforcement Department of Ca Mau province (Minutes of handover of exhibits and assets dated April 1 and 6, 2021).

4. Returned to the defendant: VND 6,450,000 (six million four hundred and fifty thousand dong); 01 (one) customer card of Viettinbank named Pham Van Ch, card number 101872757003; 01 (one) identity card number 381495805; 01 (one) 4 x 6 photo.

Objects and money (including 12 bills of VND 500,000, 02 bills of VND 200,000, 01 bill of VND 50,000) in 01 sealed envelope dated February 3, 2021 with signatures and full names of the owner. Pham Van Ch and the investigator, Nguyen Chi Nhe, and currently managed by the Civil Judgment Enforcement Department of Ca Mau province (Minute of handover of exhibits and assets dated April 1, 2021).

5. The defendant must pay VND 200,000 (two hundred thousand) dong of first instance criminal court fee.

6. The defendant and the person with related rights and obligations have the right to appeal within 15 days from the date of pronouncement.

7. In case the court verdict or decision is enforced as per regulations in Article 2 of the Law on enforcements of civil judgments, the judgment creditor and judgment debtor are lawfully allowed to reach an agreement on judgment enforcement, request judgment enforcement, be subject to voluntary execution or coercive judgment enforcement in compliance with regulations in Article 6, 7, 7a 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.