Judgment no. 29/2022/HS-ST on manufacturing of counterfeit food additives 

PEOPLE'S COURT OF CITY N - NAM DINH PROVINCE

JUDGMENT NO. 29/2022/HS-ST DATED MARCH 15, 2022 ON MANUFACTURING OF COUNTERFEIT FOOD ADDITIVES 

On March 15, 2022, at the head office of the People’s Court of city N, Nam Dinh province, a first instance trial was conducted to hear the criminal case No. 31/2022/TLST-HS dated February 18, 2022 under the Decision to bring the case to hearing No. 31/2022/QDXXST-HS dated March 2, 2022 against the defendant:

Full name: Nguyen Thi Thanh B; born in 1976 in Nam Dinh province; place of residence: Line 3 P7 collective quarter C, ward N, city N, Nam Dinh province; occupation: freelance; education level: 12/12; ethnicity: Kinh: gender: Female; religion: none; Nationality: Vietnam; father: Mr. Nguyen Tai Th and mother: Ms. Nguyen Thi Nh; divorced, 01 child; previous convictions, previous administrative violations: None; prior conduct: on January 24, 2017, the Environmental Crime Prevention and Control Division of the Nam Dinh Provincial Police Department imposed a fine on the act of producing fake MSG; the defendant was imposed the residential confinement and suspended exit from Vietnam since December 28, 2021 by the Police Investigation Body of city N.

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:

Receiving the report from the public on the signs of production of counterfeit goods at the warehouse area in the business conversion zone of Tien Phong Vegetable and Fish Cooperative, address 28 S street, T ward, city N. At 6:30 p.m. on December 6, 2021, the working group of economic police team of the N city police conducted an inspection and discovered that at this warehouse, Nguyen Thi Thanh B was pouring white crystalline substance from a big bag into plastic bags with trademark and label of Miwon MSG, then put them into a heat press machine to seal the edge of the bag. At the time of inspection, B could not present legal documents on the filling and packaging of Miwon MSG and admitted that she was producing fake MSG with the trademark and label of Miwon Vietnam Co., Ltd. to sell for profit.   The working group made a record of the case, temporarily seized the finished and unfinished MSG, plastic bags, and all materials and machinery to serve the investigation and handling in accordance with the regulations of law, including:

- 36 MSG packs with trademark and label of Miwon MSG, finished, 01kg L/pack.

- 14 packs with pre-filled MSG inside and pre-printed trademark and label of Miwon MSG outside, 01kg L/pack, unsealed.

- 50 pcs of pre-printed plastic bags with trademark and label of Miwon MSG, 01kg L.

- 01 sack printed with foreign letters and with picture of 02 (two) shrimps, stuck with the label "Food additive - Monosodium Glutamate flavor enhancer", unsealed, 20kg weight.

- 09 sacks printed with foreign letters and with picture of 02 (two) shrimps, stuck with the label "Food additive - Monosodium Glutamate flavor enhancer", 25kg/sack.

- 02 sacks printed with foreign letters and with picture of 02 (two) shrimps, stuck with the label "Food additive - Monosodium Glutamate flavor enhancer", 25kg/sack.

- 01 heat press machine.

- 01 red plastic basin.

- 01 red plastic stool.

- 01 metal mug.

- 01 Nhon Hoa brand scale + 01 pan, type 04kg.

At the investigation agency, B confessed: Although Miwon Vietnam Co., Ltd. was not allowed to transfer and pack Miwon MSG, but taking advantage of the increasing demand for goods in the coming Lunar New Year 2022, it flashed upon B to import big sacks of Chinese MSG to extract and produce fake Miwon MSG for profit. B bought 12 sacks of MSG of unknown origin, 25 kg/bag at the price of 880,000 VND/bag from an unknown woman in the morning of December 4, 2021 and poured 5 kg of MSG from 1 sack to a plastic bag to offer and sell it to a store with an unknown address. As for 01 heat press machine, 01 red plastic basin, 01 red plastic stool, 01 metal mug, 01 Nhon Hoa brand scale, 01 pan, 04kg, B purchased them at Rong market, N city. B carry out the transfer of MSG from sacks of unknown origin, type 25kg/sack, into pre-printed plastic bags with the trademark and label of Miwon MSG, type 01kg L. She unsealed 2 sacks of MSG of unknown origin, 25 kg/bag, by hands and poured them into the red plastic basin; then took the metal mug to scoop the MSG from the basin and pour them into pre-printed plastic bags with the trademark and label of Miwon MSG, type 1 kg L, and then put them on the weight scale; once the weight scale showed the correct weight as printed on the bag, then put the bag into a heat press machine to seal the edge of the bag into a pack of Miwon MSG, type 01kg L/pack. While filling 36 packs of fake Miwon MSG, 01kg L/pack, finished products, and 14 packs of fake Miwon MSG, 01kg L/pack, pre-filled with MSG of unknown origin but unsealed, she was caught red-handed.

On December 6, 2021, the investigation agency checked B’s phone, verified and searched her whereabouts but did not detect and seize any objects or documents.

The investigation agency took a sample of the goods obtained from B and solicited expert assessment. The Expertise Conclusion No. 8923/C09/-P4 dated December 14, 2021 of the Institute of Criminal Science affiliated to the Ministry of Public Security concludes: The white crystals in the MIWON MSG finished packs and in food additives bags with foreign letters printed thereon, with picture of 2 shrimps, stamped with "food additives - Monosodium Glutamate flavor enhancer " that have been seized and sent for assessment are of the same type and are all Monosodium glutamate (MSG). These MSG have heavy metal content of Arsenic (AS), Mercury (HG), Cadmium (Cd), Lead (Pb) which meet the allowable standards for heavy metal content according to the National Technical Regulations for heavy metal contamination limit in food (QCVN 8-2:2011/BYT). These MSG and the packages obtained with the MIWON brand, 1kg/L package, sent for assessment are not of the same type as the product provided by MIWON Vietnam Co., Ltd. as a comparison sample.

The conclusion No. 100/KL-HDGTS dated December 20, 2021 of the Asset Valuation Council in the criminal proceedings of City N states:

When the case was detected, 01 pack bearing the trademark and label of Miwon MSG, type 01 kg L/pack, had a market price of VND 62,000. 36 MSG packs with trademark and label of Miwon MSG, finished, 01kg L/pack, had a price of: 62,000 x 36 = 2,232,000 (two million two hundred thirty-two thousand) dong.

When the case was detected, 01 pack bearing the trademark and label of Miwon MSG, type 01kg L/pack, had a market price of VND 62,000; 14 packs with pre-filled MSG inside and pre-printed trademark and label of Miwon MSG outside, 01kg L/pack, unsealed, had a price of:  62,000 x 14 = 868,000 (eight hundred and sixty eight thousand) dong.

When the case was detected, 01 kg of "food additive - Monosodium Glutamate flavor enhancer " was priced at 45,000 VND on the market; 20 kg of MSG contained in 01 sack, printed with foreign letters and a picture of 02 shrimps, with an additional label "food additive - Monosodium Glutamate”, unsealed, had the price of: 45,000 x 20 = 900,000 (nine hundred thousand) dong.

When the case was detected, 01 MSG sack, type 25kg/sack, printed with foreign letters and a picture of 02 shrimps, with an additional label "food additive - Monosodium Glutamate flavor enhancer " was priced at 1,120,000 VND on the market; 09 MSG sacks, type 25kg/sack, printed with foreign letters and a picture of 02 shrimps, with an additional label "food additive - Monosodium Glutamate flavor enhancer” had the price of: 1,120,000 x 9 = 10,080,000 (ten million not hundred and eighty thousand) dong.

The Council unanimously refused to conduct the valuation for 50 pieces of pre-printed plastic bags with the trademark and label of Miwon MSG, type 01kg L, due to insufficient grounds and conditions.

Indictment No. 36/CT-VKSTPND dated February 17, 2022 of the People's Procuracy of City N prosecuted Nguyen Thi Thanh B for "Manufacturing counterfeit food additives" under Clause 1, Article 193 of the Criminal Code 2015 (amended in 2017).

At the trial, defendant Nguyen Thi Thanh B confessed to committing the offence, as the indictment had prosecuted.

The representative of the People's Procuracy of City N made the prosecution at the impeachment trial as follows: Upheld the prosecution against the defendant according to the entire contents of the Indictment and proposed to the Trial Panel: Pursuant to Clause 1, Article 193; Point s Clause 1 Article 51; Article 65 of the Criminal Code; declare defendant Nguyen Thi Thanh B guilty of: "Manufacturing counterfeit food additives"; sentence the defendant from 02 years 03 months to 02 years and 09 months in prison, all suspended, and 04 years 06 months to 05 years of probation; no additional penalty imposed; pursuant to Article 47 of the Criminal Code and Article 106 of the Criminal Procedure Code, confiscate and destroy all exhibits.

Defendant made no argument. Last words of the defendant: The defendant asked the Trial Panel to consider commutation of sentence.

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 of Police city N, Investigators, the People’s Procuracy of city N 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 Nguyen Thi Thanh B 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] Regarding criminal liability: Based on the testimony of defendant Nguyen Thi Thanh B, testimony of witnesses, expert assessment conclusion No. 8923/C09-P4 dated December 14, 2021 of the Institute of Criminal Science affiliated to Ministry of Public Security, the valuation conclusion No. 100/KL-HDGTS dated December 20, 2021 of the Asset Valuation Council in the criminal proceedings of city N and other evidence and documents contained in the case file, there were enough grounds to conclude: At 6:30 p.m. on December 6, 2021, at warehouse No. 28 Song Hao, Tran Quang Khai ward, city N, Nguyen Thi Thanh B was caught red-handed using MSG materials of unknown origin to fill and pack 36 packs of MSG, type 1kg L/pack, with the trademark and label of Miwon MSG, which is a food additive;

equivalent to the quantity of genuine goods with a value of 62,000 VND x 36 (packages) = 2,232,000 (two million two hundred and thirty two thousand) dong. The defendant has criminal capacity, her acts have violated the economic management order of the State, the defendant's mens rea was purposeful. Therefore, the defendant has committed the crime of "Manufacturing counterfeit food additives", the crime and penalties are specified in Clause 1, Article 193 of the Criminal Code 2015 (amended in 2017). The prosecution opinion of the People's Procuracy of City N was well-founded.

 [3] Considering the nature and extent of the offense, prior conduct and circumstances aggravating and mitigating the criminal liability of the defendant: The defendant's act infringed upon the legitimate rights and interests of the manufacturer and consumers. The defendant had wrongful conduct, once incurred administrative penalty for filling and packing fake MSG (the criminal record has been cleared). The defendant does not have an aggravating circumstance. Regarding the extenuating circumstances of criminal liability: The defendant's criminal act has not caused damage as these counterfeit goods have not been sold to the market; the defendant has expressed cooperative attitude and showed her repentance and desire to redeem her faults; therefore, the defendant is entitled to the extenuating circumstances specified at Points h and s Clause 1 Article 51 of the Criminal Code 2015 (amended in 2017). The Trial Panel considered it necessary to impose a penalty on the defendant, but found that the defendant has a clear place of residence, committed a crime for the first time, and has many mitigating circumstances for criminal liability; therefore, based on Article 65 of the Criminal Code, it was not necessary to isolate the defendant from society, but to impose a prison sentence, entirely suspended, and set a probationary period on the defendant. It also has the effect of educating, reforming the defendant and preventing general crimes.

 [4] Regarding additional penalty: Considering that the defendant has not obtained illicit proceeds from producing fake goods, no additional penalties will be imposed on the defendant.

 [5] Regarding civil liability: MIWON Vietnam Co., Ltd. neither require consideration of damage nor require the defendant to pay compensation; therefore, the Trial Panel did not settle it.

 [6] Regarding exhibit handling: Pursuant to Article 47 of the Criminal Code 2015 (amended in 2017) and Article 106 of the Criminal Procedure Code 2015, the exhibits of the case include: 34 MSG packs with trademark and label of Miwon MSG, finished, type 01 kg; 14 kg of MSG, pre-filled inside14 plastic packs with trademark and label of Miwon MSG, type 01kg L/pack, unsealed; 01 sack, printed with foreign letters and picture of 02 shrimps, stamped the secondary label stating "Food additive - Monosodium Glutamate flavor enhancer", unsealed, type 19 kg; 18 pieces of pre-printed plastic bags with trademark and label of Miwon MSG, type 01 kg; 09 sacks, printed with foreign letters and picture of 02 shrimps, with a secondary label saying "food additive - Monosodium Glutamate flavor enhancer", type 25kg/sack, 02 sacks printed with foreign letters and picture of 02 shrimps with the secondary label "Food additive Monosodium Glutamate", type 25 kg/sack; 01 heat press machine, 01 red plastic basin, 01 red plastic stool, 01 metal mug, 01 Nhon Hoa brand weight scale, 01 pan, type 04kg were the instruments that the defendant used to commit the crime. Since they are no longer in use, they should be confiscated and destroyed.

 [7] Regarding Mr. Truong Doan C, who is the owner of warehouse No. 28 Song Hao, Tr ward, N city, because he did not know that B was using the above location as a place to produce fake goods, the investigation agency did not consider his legal liability; for the person who provided MSG of unknown origin and packages for the defendant, there was not enough evidence to conclude, so the investigation agency would split it up to continue investigating and handling it later in accordance with regulations of law.

 [8] Regarding court fee: The defendant Nguyen Thi Thanh B must bear the first instance criminal court fee pursuant to Articles 136 of the Criminal Procedure Code 2015; Articles 23 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the National Assembly Standing Committee, stipulating the court fees and charges, collection, exemption, reduction, management, and use thereof.

For the foregoing reasons, 

DISPOSITION

Pursuant to Clause 1, Article 193, Point h, Point s Clause 1 Article 51, Article 65, Article 47 of the Criminal Code 2015 (amended in 2017); Article 106, Article 136 of the Criminal Procedure Code 2015; Article 23 of Resolution 326/2016/UBTVQH14 dated December 30, 2016 of the National Assembly Standing Committee:

1. Declare: defendant Nguyen Thi Thanh B guilty of “Manufacturing counterfeit food additives".

Sentence defendant Nguyen Thi Thanh B to 02 years and 06 months’ imprisonment, but all suspended, 05 years of probation period from the date of the judgment.

Assign the defendant to the People's Committee of Ward N, City N, Nam Dinh Province to supervise and educate her during probation.

In case defendant Nguyen Thi Thanh B changes her place of residence, Clause 1, Article 92 of the Law on Criminal Judgment Enforcement 2019 shall apply. During the probation period, if the defendant intentionally violates her obligations, based on Article 87 of the Law on Execution of Criminal Judgments in 2019, the Court may force the defendant to serve the prison sentence, which is entirely suspended.

2. Regarding exhibit handling: Confiscate and destroy all seized exhibits (the details of exhibits are stated in the minutes of exhibit handover dated February 17, 2022 between the Police of city N and the Judgment Enforcement Sub-department of city N).

3. With reference to court fees: Defendant Nguyen Thi Thanh B must pay VND 200,000 (two hundred thousand) dong of first instance criminal court fee.

4. With reference to right to appeal: The defendant is entitled to appeal this judgment within 15 days from the date of pronouncement.

In case the judgment is enforced as per regulations in Article 2 of the Law on enforcements of civil judgments, the defendant may be subject to voluntary enforcement or coercive judgment enforcement in compliance with regulations in Articles 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