Judgment no. 231/2022/HS-PT for violations against regulations on protection of endangered, rare animals

THE SUPERIOR PEOPLE’S COURT IN HANOI

JUDGMENT NO. 231/2022/HS-PT DATED APRIL 14, 2022 FOR VIOLATIONS AGAINST REGULATIONS ON PROTECTION OF ENDANGERED, RARE ANIMALS

On April 14, 2022, at the head office of Superior People’s Court in Hanoi City, an appellate trial was conducted to hear the criminal case No. 48/2022/TLPT-HS dated January 17, 2022 based on the appeal made by the defendant against the First Instance Criminal Judgment No. 422/2021/HSST dated December 4, 2021 of the People’s Court of Hanoi City.

*Appellant:

Do Minh T, born on June 3, 1985 in Ha Nam province; permanent residence: village N, Liem S commune, Thanh L district, Ha Nam province; Address: Binh alley, Thai P village, Mai D commune, Soc S1 district, Hanoi city; Gender: Male; Occupation: Own count worker; education: 12/12; nationality: Vietnamese; Ethnicity: Kinh; religion: Father: Mr. Do Van C and mother: Ms. Pham Thi B; his wife's name: Nguyen Thi H; 02 children, the big one was born in 2013, the small one was born in 2019; previous convictions, previous administrative violations: no; being detained in case of emergency and being held in custody or temporary detention from August 28, 2020 to present; currently being detained at T1 Detention Center - Hanoi City Police; appeared in court.

In addition, in the case, there were: persons with related interests and obligations who did not appeal or protest that the Court did not summon.

FACTUAL AND PROCEDURAL BACKGROUND

According to the first instance judgment and documents available in the case file, the contents of the case are summarized as follows:

On July 25, 2019, Hanoi City Police coordinated with Hanoi Customs Department to check 02 shipments under the bills of lading number 60779781693 and 60779781726 (the consignor on the bill of lading was: BUI DUC CONG CO ZORAH FURNITURE GENERAL TRADING FZC SHARJAH UAE UNITED ARAB EMIRATES; the consignee on the bill of lading was the company: YANG S CO LTD No 38 NGO GIA TU STREET TRAN PHU VIET NAM Tel 84855217430). However, the customs declarations with respect to this shipment were made by Do Minh T including No. 102760513920/E21 and 102760569220/E21 dated July 16, 2019, declaring the consignor as: ZORAH FURNITURE GENERAL TRADING (FZC) PO BOX 120109 AHARJAH, UAE, AE, TL:  0506686279; consignee: THIEN HA EXPORT GARMENT AND TRADING CO LTD 197 XA DINH TRI PHO COC, THANH PHONG BAC GIANG TINH BAC GIANG VIET NAM, being gathered at the warehouse of Noi Bai Commodity Service Joint Stock Company (NCTS); the goods transported to Noi Bai international airport on July 14, 2019 on flight EY9537 showed suspicious signs, so an inspection was conducted and detected that the two shipments were containing 55 rhino horns with a total weight is 126.7 kg.

The investigation process determined as follows: Thien H1 Garment Export and Trading Co., Ltd (Thien H1 Company, registered business address at:  No. 197 Coc Street, Dinh Tri Commune, Bac G City, Bac Giang Province) with the business registration certificate issued by the Department of Planning and Investment of Bac Giang province No. 2400817230 on June 23, 2017, and the legal representative is Mr. Nguyen Duy P3 - Director of the company. Line of business: Garment processing for foreign companies. From the beginning of 2018, Thien H1 Company authorized Vuong H2 Trading and Service Single-member Co., Ltd (address: No. 70, Than Nhan Trung Street, Viet Yen District, Bac Giang Province, run by Than Van H4 as the director) to carry out customs declaration procedures for importing fabric materials for processing for foreign partners. On January 2, 2019, Thien H1 Company signed a freight forwarding service contract with Vuong H2 Company with the details as follows: Thien H1 Company entrusts Vuong H2 Company to make export declarations, make customs clearance, prepare C/O, receive goods at the place of loading to the place of delivery specified by Thien H1 Company, carry out procedures for delivery and transportation of goods. To perform the contract, Nguyen Trong P1 (in charge of the import and export of Thien H1 Company) handed over the digital signature of Thien H1 company and appended signature and seal of Nguyen Duy P3 (Director of Thien H1 Company) to blank documents for Than Van H4 – Director of Vuong H2 Company to carry out import procedures. Because Thien H1 Company only imported raw materials and accessories for garment processing and has strictly implemented regulations on import and export, from the beginning of 2019, Thien H1's imported shipments have been classified as green channel, not subject to goods inspection when doing customs clearance. Around March 2019, Than Van H4 hired Do Minh T (who specializes in electronic customs declaration for importing goods at Noi Bai International Airport) to carry out electronic customs declaration procedures for import and receiving goods for Thien H1 Company at the price of 150,000 VND/lot, T agreed. To facilitate the implementation of customs declaration, Hai assigned T to use the digital signature of Thien H1 Company by plugging in the digital signature token of Thien H1 Company and giving T the password of Teamviewer software on the computer of Hai’s company in order for T to log in and use the digital signature of Thien H1 Company remotely. In addition, Hai also gave T a lot of unwritten A4 sheets of paper, signed by Nguyen Duy P3 - Director of Thien H1 Company and pre-stamped to serve the receipt of goods. Around March 2019, a person named Tuan A hired T via phone call to do electronic customs declaration procedures, import garments and accessories from Japan and Korea to Vietnam for Tuan A, at a price of 500,000 VND/lot, when goods arrive, Tuan A will notify T via Viber software and transfer documents and wages to T via motorbike taxi driver, T agreed. By about April 2019, Tuan A informed T that Tuan A's goods arrived from abroad that needed to complete customs declaration procedures, but Tuan A's digital signature had been currently expired and in the process of application for renewal. T discussed with Tuan A that T was holding a digital signature of Thien H1 Company, he could use the digital signature and legal entity of Thien H1 Company to carry out customs declaration procedures to import goods for Tuan A from abroad. From April 2019 to July 2019, T used the legal entity and digital signature of Thien H1 Company to carry out electronic customs declaration procedures to import 116 shipments for Tuan A and was paid a total remuneration of 58,000,000 VND. Around the beginning of June 2019, Tuan A informed T that there was a shipment from DUBAI in the United Arab Emirates (UAE) to Vietnam, told T to complete the electronic customs declaration procedures to import the above shipment to Tuan A through Yang S Co., Ltd (address: No. 38, Ngo Gia T2, Tran P5 ward, Bac G city, Bac Giang province; under the name of the director is Le Thi H2, born in 1988, address: Group 2, Chi D town, Me L district, Hanoi city) in the name of the bill of lading. Due to many years of doing customs declaration services, T knew that the goods imported from DUBAI are nearly not textile materials but banned goods (usually luxury goods or rhino horn, ivory), if the Yang S Co., Ltd. made the declaration, it would have been detected as prohibited goods by inspection when going through the red channel. On June 3, 2019, T used the legal entity and digital signature of Thien H1 Company to complete online procedures, make an electronic customs declaration registered at the Customs Sub-Department in charge of Bac Giang industrial zones, imported 01 shipment for Tuan A. After making the declaration, T called Tuan A to say that the goods from DUBAI would never be a garment, Tuan A said just keep working, Tuan A got everything covered. Seeing that the shipment was very heavy (762 kg), T was even more convinced that it was rhino horn or ivory. After T successfully completed the procedures for the above shipment, on July 15, 2019, Tuan A continued to notify T that he had Tuan A's shipment from DUBAI (UAE) to Vietnam, telling T to carry out e-customs declaration procedures to import the above shipment for Tuan A, through Yang S Co., Ltd. in the name of the bill of lading. On July 16, 2019, T used the legal entity and digital signature of Thien H1 Company, carried out the procedures for transmitting and making the electronic customs declaration at the Customs Sub-Department that manages Bac Giang industrial zones, imported 02 shipments with bills of lading number 60779781693 and 60779781726. When doing electronic customs declaration procedures to import the above 02 shipments, T knew that the above goods of Tuan A was the same as the shipment dated June 3, 2019, T knew it well that the goods was rhino horn or ivory, because the weight of the package was very heavy (01 shipment weighs more than 01 tonne, 01 lot weighs 600 kg), it was not garment fabric, but T declared to the customs office as garment fabric, T took the legal entity of Thien H1 Company to get green channel, avoid the inspection of the customs authority. After completing the electronic customs declaration procedures for importing goods, T went to the warehouse of Noi Bai Cargo Terminal Joint Stock Company (NCTS) to receive the goods, knowing the information about the goods T declared by the Sub-Department of Customs of Noi Bai international airport were subject to physical inspection. T contacted Tuan A to inform about the above situation, Tuan A told T to let Tuan A take care of it. The next day, T contacted Tuan A, but he was unable to contact him. Due to fear of being discovered by the authorities, T contacted Than Van H4 to report that T had sent the wrong customs declaration, and asked Hai to make a document and send it to the Customs Sub-department that manages Bac Giang industrial zones to cancel 02 mentioned import declarations. On July 17, 2019, H made a document to the Customs Sub-Department managing Bac Giang industrial zones to request cancellation of the above 02 customs declarations, with the reason: Because the customer sent the wrong name of the importing company. Around July 28, 2019, T contacted Than Van H4 to announce that a friend of T's, named Dang Phuc K, was currently in need of a job, T told H to sign a probationary contract with K at the beginning of the July 2019 and sign the minutes of handing over the digital signature of Thien H1 Company to K, H told K when asked by the authorities, the declaration was made by Dang Phuc K, in order to blame K who was the one who carried out the declaration procedures and received the above goods. On August 28, 2020, Mr. K filed a complaint against T for slander to the Hanoi City Police. On September 4, 2020, the Investigation Police Agency prosecuted the defendant and detained Do Minh T for the above act.

Upon urgent search of Than Van H4's residence at the address: Dinh Tram Sen Ho urban area, Hong Thai commune, Viet Yen district, Bac Giang province: Seized the computer to transmit and make the e-customs declarations for Thien H1 Company, blank A4 sheets of paper signed by Nguyen Duy P3 and pre-stamped at the locations requested by Hai, probationary contract and minutes of handover of digital signature to Dang Phuc K, the declarations made by Vuong H2 Company for Thien H1 Company.

Upon urgent search of Do Minh T's residence at the address: Alley Binh A1, Thai village P6, Mai D commune, Soc S1 district, Hanoi city: objects or documents were found or seized.

The expertise conclusion of the Institute of Ecology and Biological Resources - Vietnam Academy of Sciences and Criminalistics Department - Hanoi City Police, stated as follows: All goods seized according to bills of lading number 60779781693 and 60779781726 are horns of white rhinoceros species (54 pieces), scientific name Ceratotherium Simum; horns of black rhinoceros species (01 piece), scientific name Diceros bicornis.  Both species are listed in Appendix 1 of the Convention on International Trade in Endangered Species of Wild Fauna and Flora. Total weight is 126.7 kg.

For Yang S1 Co., Ltd: around May 2019, there was a man named H using the phone number 0379658512 to contact Nguyen Thi T2 (born in 1986; permanent residence: number 38, Ngo Gia T2 street, Tran ward, Bac G city, Bac Giang province), hired T2 to apply for the establishment of Yang S1 Co., Ltd., with an agreed price of VND 6,000,000, taking T2's home address as the company's address. On June 20, 2019, H transferred to T2's account an amount of VND 6,000,000, with the content that Nguyen Tuan K transferred money "Cash transaction", and sent to T2 an ID card named Le Thi H1 and company registration documents via a coach. Then, T2 brought the above documents to submit at the Department of Planning and Investment of Bac Giang province. Verification at the Department of Planning and Investment of Bac Giang province identified that: Yang S1 Co., Ltd., address: No. 38, Ngo Gia T2, Tran P5 ward, Bac G city, Bac Giang province; under the name of the director of Le Thi H2, born in 1988, ID number 013361663, address: Group 2, Chi D town, Me L district, Hanoi city. Verification at Department PC06 - Hanoi City Police determined that: ID number 013361663 was issued by Hanoi Police to Le Thi H2, born on August 17, 1988, address: Group 5, Chi D town, Me L district, Hanoi city. H2 declared that her ID card 013361663 was issued by the Hanoi Police in 2010 and used until March 2014 when it was lost. Ms. H2 neither establish nor know anything about YANG S1 Co., Ltd. Verification of phone number 0379.658,512 determined that the subscriber is Nguyen Van T4, born on February 8, 1960, address: Tien H village, Nguyen K1 commune, Dong A3 district, Hanoi city. Mr. T4 said he did not use the phone number 0379.658.512 and did not know whose phone number was. Since 2017, Mr. T4 has used the phone number 0327.144.492 and has not lent his citizen ID to anyone to register for a phone subscription. Mr. T4 did not know anyone named Nguyen Thi T2, Do Minh T, neither establish nor know about Yang S1 Co., Ltd. Verification of the money transferor to T2 under Nguyen Tuan K's name: the money transferor’s name was only recorded as Nguyen Tuan K, did not specify information and contact address, so there was no basis for verification and clarification. Verification at the police station of Tran P5, Bac G city determined that: at address 38, Ngo Gia T2, Tran P5 ward, Bac G city, Bac Giang province, there is no Yang S Co., Ltd in operation.

At the investigation agency, Do Minh T confessed to committing the crime as the content of the case mentioned above. T admitted that he used the legal entity of Thien H1 Company to import more than 100 shipments from abroad to Vietnam for Tuan A. T was aware that Tuan A hired T to carry out procedures to import shipments from DUBAI to Vietnam for Tuan A, the shipment on June 3, 2019 and 02 shipments on July 16, 2019 under the legal entity of Thien H1 was prohibited goods, not textiles and garment materials, but ivory and rhino horn, these shipments had a total weight of 3-4 times heavier than garment materials. In addition, Tuan A knew that T imported goods for Thien H1 Company, and Thien H1 Company was allowed to import goods through E21 green channel, the goods were not physically inspected.

For the person named Tuan A, who hired T to declare customs to import the above shipment of rhino horn, besides the information named Tuan A, T could not provide any other information for verification. The investigation agency had not enough grounds for verification. The investigation agency issued a decision to separate the part of documents related to Tuan A for further verification, investigation, clarification and actions.

For Than Van H4 who has handed over the digital signature of Thien H1 Company to T, for the purpose of hiring T to open an electronic customs declaration to import goods for Thien H1 Company. Hai helped T send an official letter requesting Bac Giang Customs to cancel the customs declaration, sign a probationary contract, and a record of handing over digital signatures to put the blame on K. Through the investigation, the investigation agency determined there was not enough grounds to prove that Hai was T’s accomplice in the customs declaration of rhino horn imports, so there was not enough evidence to prosecute Hai in this case.

For Nguyen Trong P1 who on behalf of Thien H1 Company hired Vuong H2 Company to import goods for Thien H1 Company, Mr. Phan did not know that Vuong H2 Company hired T to import goods for Thien H1 Company, did not know that T took advantage of the legal entity of Thien H1 Company to import goods for Tuan A, so there was no ground to determine that Mr. Phan was T’s accomplice, so the investigation agency did not mention him further.

In the first instance criminal judgement No. 422/2021/HSST dated December 4, 2021, the People’s Court of Hanoi City held that: Declare defendant Do Minh T guilty of:

"Violation against regulations on protection of endangered and rare animals". Pursuant to point d clause 3 Article 244; point s clause 1 Article 51; Article 38 of the Criminal Code. Sentence defendant Do Minh T to 14 (fourteen) years in prison. The imprisonment period commences from August 28, 2020. In addition, the judgment also decides on the handling of exhibits, court fees, notice on the right to appeal according to the provisions of law.

On December 8, 2020, defendant Do Minh T appealed for commutation of sentence. At the appellate court hearing:

The defendant upheld the content of the appeal, sincerely confessed his crime, and petitioned for commutation of sentence to the lowest level.

The representative of the High-Level People's Procuracy in Hanoi, after analyzing and assessing the nature, extent and consequences of criminal acts, previous conduct, aggravating and mitigating circumstances, the decision of the first-instance court and based on the defendant's appeal, concluded as follows: The fact that Defendant Do Minh T was sanctioned by the first-instance court for the crime of: The fact that Defendant Do Minh T was sanctioned by the first-instance court for the crime of: "Violating regulations on protection of endangered and rare animals" according to Point d, Clause 3 Article 244 of the Penal Code was considered grounded and rightful conviction. Regarding the punishment, the fact that the Court of First Instance sentenced the defendant to: 14 (fourteen) years in prison was appropriate. At the appellate court hearing, the defendant did not have new extenuating circumstances for his criminal liability, the Procuracy requested the Trial Panel to refuse the appeal and affirm the decision of the first-instance judgment against defendant Do Minh T.

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]. In terms of court procedures: Presiding agencies and presiding officers at the first-instance level have strictly complied with their competence and procedures as prescribed by the Criminal Procedure Code. Defendant's appeal filed within the statutory time limit should be accepted for consideration and settlement according to the appellate procedure.

 [2]. Regarding the content: At the appellate court session, the defendant admitted his crime so the first-instance judgment was justly entered without miscarriage of justice. The defendant's testimony was consistent with the defendant's testimony at the investigation agency and at the first-instance court hearing; consistent with the seized exhibits; consistent with the conclusion of the expertise conclusion and other documents contained in the case file. The appellate trial panel agreed with the first-instance Court's comments and conclusions as follows: From the beginning of 2018, Thien H1 Garment Export and Trading Co., Ltd (Thien H1 Company) authorized the Vuong H2 Trading and Service Single Member Limited Liability Company (Vuong H2 Company), has carried out customs declaration procedures for importing fabric materials, for processing for foreign partners. From about March 2019, Vuong H2 Company hired Do Minh T as a professional to do electronic customs declaration for importing goods at Noi Bai Airport, using digital signatures and completing import declaration procedures for fabric materials of Thien H1 Company. Also around March 2019, a person named Tuan A (whose identity has not been determined) hired T to use the legal entity and digital signature of Thien H1 Company, declare electronic customs to import goods for Tuan A from abroad into Vietnam, with an agreed price of 500,000 VND/lot. On July 15, 2019, Tuan A informed T that there was a shipment of Tuan A from the United Arab Emirates (UAE) to Vietnam, belonging to bills of lading number 60779781693 and 60779781726, telling T to carry out e-declaration procedures to import the above shipment for Tuan A. Although T knew that the goods in these two bills of lading were banned goods which was either rhino horn or ivory, on July 16, 2019 T still used Thien H1's legal entity, made customs declarations No. 102760513920/E21 and 102760569220/E21, declaring that the goods in the above two bills of lading were garments to be imported to Vietnam for Tuan A while they were 55 pieces of rhino horn, weighing 126.7kg, including 54 horns of white rhinoceros species, scientific name is Ceratotherium Simim Simum; 01 horn of the Black Rhinoceros species, scientific name is Diceros bicornis; both species of Rhinoceros are included in Appendix I of the List of Wild Fauna, specified in the Annexes of the Convention on International Trade in Endangered Species of Wild Fauna and Flora. Do Minh T intentionally committed violations of regulations on protection of endangered and rare animals with the helper’s role of Tuan A, transporting rhino horns from abroad to Vietnam. So he must face his criminal liability for import declaration of 55 rhino horns in the two bills of lading that T made the above two customs declarations. The above act of defendant Do Minh T constituted the crime: "Violation of regulations on protection of endangered and rare animals", violation of the circumstances determining the penalty bracket: "Ivory with a weight of 90 kilograms or more; rhino horn with a weight of 09 kilograms or more”, with the count and penalty specified at Point d, Clause 3, Article 244 of the Criminal Code. Therefore, the fact that the People's Court of Hanoi tried defendant Do Minh T according to the above count and legal ground was considered grounded, the first-instance judgment was justly entered without miscarriage of justice.

 [3]. Considering the defendant's appeal: The defendant's criminal act is dangerous to society and falls under very serious circumstances; violates the regime of management and protection of animals on the list of endangered and rare species; violates the Convention on International Trade in Endangered Species of Wild Fauna and Flora. 126.7kg of rhino horn that T participated in importing for trading was very large, in this case T played the role of Tuan A’s accomplice, when he went to the warehouse at Noi Bai Airport to receive the goods, T knew information that the goods was about to be inspected by the Customs, T informed Tuan A to get everything covered, but the next day, he was unable to contact Tuan A. Due to fear of being discovered, T contacted Than Van H4 to report the wrong declaration, told Hai to make a document and send it to the Customs of Bac Giang province to cancel 02 import declarations, but the customs office did not accept it. On July 28, 2019, T contacted Hai to announce that Dang Phuc K applied for a job, T told Hai to sign a probationary contract from the beginning of July 2019, making a record of handing over Thien H1 company’s digital signature to K, Hai told K that when questioned by the authorities, he should declare that it was done by K, in order to blame K as the person who did the customs declaration procedures and received the above goods; K then filed a complaint against T for slander to the Public Security Agency. Given the nature of the defense’s offense mentioned above, the appellate level agreed that it was necessary to have a severe punishment and isolate the defendant for a while from social life, to rehabilitate him and for general crime prevention. When deciding the penalty, the first-instance level considered that the defendant has no previous criminal record or administrative violation, the investigation process and at the first-instance trial and he also sincerely confessed the crime, so the application of point s, Clause 1, Article 51 of the Criminal Code was grounded. On the basis of an objective and complete assessment of the exhibits of the case, the first-instance court properly considered the nature, behavior, extent and consequences of the criminal act, previous conduct, and mitigating circumstances, and the situation of prevention against this type of crime, it was appropriate to punish defendant T with a sentence of 14 (fourteen) years in prison. At the appellate court session, the defendant stated that he had not violated the law so far; his previous conduct had no criminal record or administrative violation; committed a crime for the first time; and his family has suffered financial hardship. Considering that the grounds given by the defendant have been considered by the first instance court. Apart from the extenuating circumstances already applied, the defendant was not entitled to any new extenuating circumstances. On the other hand, as mentioned above, the defendant's behavior was very serious, and at the same time, the Center for Nature Education had Official Letter No. 24 dated January 12, 2022, proposing to keep the penalty, many international articles agree with the 14 years’ imprisonment of the judgment of the first instance court. The strict adjudication has complied with the Prime Minister's Directive No. 29/CTTg dated July 23, 2020 on some urgent wildlife management solutions. Therefore, there was no justifiable grounds to accept Do Minh T's appeal, the appellate level rejected the defendant's appeal and affirmed the first-instance judgment.

 [4]. The opinion of the representative of the Superior People's Procuracy in Hanoi: Considering that the grounds, arguments and proposals of the Procurator at the trial were grounded, they were accepted.

 [5]. Regarding other decisions: Other decision parts of first instance judgment having no appeal or protest take legal effect after the expiry of the time limit for appeal or protest.

 [6] Regarding court fee: The defendant's appeal was not accepted. He must pay appellate criminal court fee in accordance with law.

For the foregoing reasons;

Pursuant to point a clause 1 Article 355, 356 of the Criminal Procedure Code 2015 and Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of Standing Committee of the National Assembly on court fees and charges;

DISPOSITION

1. Reject the appeal of defendant Do Minh T.

2. Affirm the first instance criminal judgement No. 422/2021/HSST dated December 4, 2021, the People’s Court of Hanoi City.

Pursuant to point d clause 3 Article 244; point s clause 1 Article 51; Article 38 of the Criminal Code.

Sentence defendant Do Minh T to 14 (fourteen) years in prison for: "Violation against regulations on protection of endangered and rare animals". The sentence period commences from August 28, 2020.

3. With reference to court fee: Defendant Do Minh T must pay VND 200.000đ (two hundred thousand) dong of appellate criminal court fee.

4. Other decision parts 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.