Judgment No. 32/2019/HS-ST dated august 1, 2019 on illegal trafficking of narcotic substance

PEOPLE'S COURT OF HA TINH PROVINCE

JUDGMENT NO. 32/2019/HS-ST DATED AUGUST 1, 2019 ON ILLEGAL TRAFFICKING OF NARCOTIC SUBSTANCE

On July 31 and August 1, 2019, at the head office, the People’s Court of Ha Tinh province hear a first instance trial of criminal case No. 34/2019/TLST-HS dated June 14,  2019 under the Decision to Bring the Case to Trial No. 40/2019/TLST-HS dated July 16, 2019 against:

Ka Denh V; other name: none; gender: male; born on: April 3, 1995, in Thong V village, district K, Bolikhamsai province - Laos; registered permanent and temporary residence: Thong V village, district K, Bolikhamsai province - Laos; education level: Grade 4; occupation: farmer; nationality: Laos; ethnic group: Mong; religion: none; father: Va C (died); mother: Co G (Nang Cau); wife: May T, born in: 1989 and 3 children, including 02 stepchildren of his wife and 01 common child, the oldest was born in 2005 and the youngest was born in 2018; the defendant's mother, wife and children have lived in Thong V village, district K, Bolikhamsai province, Laos; Previous conviction, previous administrative violation: none.  The defendant was arrested, held in custody and detained since March 4, 2019, and is currently being held in the police detention center of Ha Tinh province; appearing in court.

- Defense counsel of the defendant:  Ms. Nguyen Thi Q - Lawyer of An Phat Law Office, appearing in court.

- Witness:  Mr. Tran Quoc V; born in: 1972; address: commune S, district H, Ha Tinh province, not appearing in court

- Interpreter:  Kieu Thanh M; born in 1984; address: Ha Huy T Ward, Ha T City, Ha Tinh Province, appearing 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:

Around February 2019, Ka Denh V met P (a northern Laos) at billiard shop in town L, district K, Bolikhamsai province. After getting acquainted, P asked to hire Ka Denh V to transport narcotic substance from Laos to Vietnam, and Ka Denh V agreed.

At around 4:00 p.m. on March 3, 2019, P called Ka Denh V to tell him that there were 10 packages of Amphetamine that need to be transported to Vietnam and asked if Ka Denh V could transport it; Ka Denh V agreed and arranged to meet up in the morning on March 4, 2019.

At around 4:00 on March 4, 2019, P called Ka Denh V to arrange to meet up at a park in Lac Xao town. After receiving P's phone, Ka Denh V took 01 knife and 03 phones with him, asked Tong Vang (Ka Denh V's younger brother) to ride him to the appointed place. At the town park of Lac Xao, P told Ka Denh V to transport Amphetamine to Vietnam. Once narcotic substance is transported to Vietnam and successfully delivered to the recipient, upon returning to Laos, P will pay Ka Denh V the transportation fee of 3,000 USD, Ka Denh V agreed. P took his motorbike, put his backpack containing narcotic substance in the middle of the saddle and frame, and then rode Ka Denh V to Nam Pao border gate, Laos. After passing the Nam Ngang hydropower plant area about 100m, P hid his motorbike on the side of the road and took his backpack containing narcotic substance and gave it to Ka Denh V to carry, P went ahead and led the way, after that they cut the forest road and clambered up the slope to Vietnam. At 8:45 am on the same day, when Ka Denh V and P was arriving at co-ordinate 34177, about 1.5 km from the Laos-Vietnam border line to Vietnam, in the territory of Ha Trai village, Son Kim commune 1, Huong Son district, Ha Tinh province, they was caught in act and Ka Denh V was arrested by the Ha Tinh Border Guard in coordination with the Vietnamese authorities and all narcotic substance (Amphetamine) and P escaped towards Laos.

Exhibits seized: (case file p. 03, 63, 64) - 01 (one) black backpack;

- 10 plastic bags of yellow color, each of which has 3 gray-yellow plastic packs (30 gray-yellow plastic in total). Inside each of the gray-yellow nylon pack, there are 10 dark-green plastic smaller packs. Inside 300 dark blue plastic smaller packs, there are pink and blue tablets, each tablet has the word “WY” thereon, 59,532 tablets in total (including 58,937 pink tablets and 595 blue tablets); - 01 (one) ID card in foreign language in the name of Ka Denh V;

- 01 (one) LAO TELECOM mobile phone in black color, together with 01 Winphone Sim;

- 01 (one) light yellow SAMSUNG mobile phone; with 02 sims and 01 Kington 08GB Gold card;

- 01 (one) UNIFONE white mobile phone, no sim;

- 01 (one) knife about 30 cm long.

The Expertise Conclusion No. 72/GDMT-PC09 dated March 7, 2019 of Criminalistics Department of Ha Tinh Police indicates that:

- 58,937 pink tablets with the word “WY” thereon sent for assessment are methamphetamine, 5,640 grams in weight. - 595 blue tablets with the word “WY” thereon sent for assessment are methamphetamine, 56.2 grams in weight. Total weight of narcotic substance seized: 5,696.2 grams of methamphetamine. Methamphetamine is a narcotic substance in List II, No. 323, Decree 73/2018/ND-CP in Viet Nam dated May 15, 2018 of the Government.

With the above criminal offense, the Charging Document No. 46/CT-VKSHT-P1 dated June 13, 2019 of the People's Procuracy of Ha Tinh province prosecutes the defendant Ka Denh V for "Illegal trafficking of narcotic substance” in accordance with the provisions of Point b, Clause 4, Article 250 of the Criminal Code in Viet Nam.

The representative of the People's Procuracy of Ha Tinh province, who retains the right to prosecute at the trial, on the basis of the defendant's actions in the case and the mitigating circumstances and prior good conduct of the defendant, still upholds the prosecution decision and request the Trial Panel to: Apply Point b, Clause 4, Article 250; Point s, Clause 1, Clause 2, Article 51 of the Criminal Code 2015, sentence defendant Ka Denh V to life imprisonment for "Illegally trafficking narcotic substance".

Regarding the additional penalty: Apply Clause 5 Article 250 of the Criminal Code, impose him an additional fine of 30,000,000 VND to 50,000,000 VND. Regarding exhibit handling: Apply Clause 2, Article 106 of the Criminal Procedure Code in Viet Nam, Article 47 the Criminal Code 2015 to confiscate and destroy the seized narcotic substance, 01 black backpack, 01 (one) knife 30 cm long; and confiscate 01 (one) LAO TELECOM black mobile phone, together with 01 Winphone Sim, temporarily seize 01 (one) light yellow white SAMSUNG mobile phone; with 02 sims and 01 Kington 08GB gold card, 01 (one) white UNIFONE mobile phone, no sim (for judgment enforcement purpose); Return to the defendant: 01 (one) ID card in foreign language in the name of Ka Denh V;

The defense counsel for the defendant does not dispute the crime and the provisions applicable to the defendant that the Procurator presented when impeaching, only asked the Trial Panel to consider reducing the penalty for the defendant with the lowest penalty, enabling the defendant to feel secure in reforming to soon return to his family and become a beneficial citizen for society.

The defendant does not argue, only asking the Trial Panel to give the defendant the lowest 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] In terms of court procedures: Regarding procedural acts  and decisions of the investigation body of Ha Tinh Police, the People’s Procuracy of Ha Tinh province, Investigators, 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, no one gives any opinion or complaint about the procedure and decision of the presiding agencies and presiding officers. Therefore, procedural decisions and acts of presiding agencies have been made in accordance with the law.

 [2] During the investigation as well as at the trial of the first instance, the defendant has fully admitted the offense. The defendant's testimony is consistent with the documents in the case file, the time and place of the crime, so the Trial Panel has enough grounds to conclude: At 8:45 am on March 4, 2019, at the co-ordinate 34177 about 1.5km from the Laos and Vietnam border line to Vietnam, in the territory of Ha Trai village, Son Kim 1 commune, Huong Son district, Ha Tinh province, in coordination with authorities, Ha Tinh Border Guard discovered and caught Ka Denh V illegally transporting 5,696.2 grams of methamphetamine from Laos to Vietnam. There is no justifiable ground to identify Ka Denh V transporting the above narcotic substance for the sale purpose, so the Procuracy is right in prosecuting defendant Ka Denh V for "Illegally trafficking narcotic substance" under point b, Clause 4, Article 250 of the Criminal Code.

 [2.1] The defendant’s offense conduct is extremely dangerous to society and infringes the state’s administrative management of narcotic substance. The defendant has full criminal capacity, knows the harms of narcotic substance, is aware that illegal drug trafficking is a violation of the law, but still deliberately does it to gain illicit profits for himself. Therefore, to educate the defendant about the sense of compliance with the law and deter similar criminals in general, it is necessary to impose him a serious punishment, which commensurate with the nature and severity of his criminal acts.

 [3] The defendant does not have an aggravating circumstance

 [4] Regarding the mitigating circumstances: During the investigation as well as at the first instance hearing, the defendant Ka Denh V shows his repentance and expresses his cooperative attitude. The defendant has prior good conduct and is a Mong ethnic, and his legal knowledge is limited. At the trial, the defendant also provides a certificate of poor household certified by the Thong Vieng Kham village. Therefore, the mitigation circumstances specified at Point s, Clause 1 and Clause 2, Article 51 of the Criminal Code may apply when deciding the penalty imposed on the defendant;

Given the nature and severity of the criminal acts and the mitigating circumstances as above, the Trial Panel finds that it is not necessary to impose the highest punishment on the defendant, but it is advisable to permanently isolate the defendant from the social life to ensure the penalty is harsh enough.

 [5] Regarding exhibit handling: Pursuant to Article 106 of the Criminal Procedure Code; Article 47 of the Criminal Code, confiscate and destroy 5,694.8 grams of methamphetamine (less the weight of substance taken for assessment) as evidence of the case and objects which are useless; the cell phone which is an instrumentality of crime; return identity papers to the defendant; temporarily seize the defendant's property to ensure judgment execution.

 [6] Regarding court fees: The defendant must bear first instance criminal fee  as prescribed by law.

Therefore, 

DISPOSITION

1. Declaring the defendant Ka Denh V guilty of "Illegal trafficking narcotic substance"

Pursuant to Point b, Clause 4, and Clause 5, Article 250; Point s Clause 1, Clause 2 Article 51 of the Criminal Code, sentence Ka Denh V to life imprisonment. The prison term commences from the date of detention, March 4, 2019.

Impose the defendant Ka Denh V a fine of 30,000,000 VND (Thirty million dong)

2. Regarding exhibit handling:

* Pursuant to Points a and c, Clause 2, Article 106 of the Criminal Procedure Code; Points a, c Clause 1, Article 47 of the Criminal Code, confiscate and destroy:

- 01 (one) black backpack;

- 5,694.8 grams of methamphetamine and its packaging;

- 01 (one) knife about 30 cm long.

* Pursuant to Point a, Clause 2, Article 106 of the Criminal Procedure Code; Point a Clause 1, Article 47 of the Criminal Code, confiscate:

- 01 (one) LAO TELECOM mobile phone in black color, together with 01 Winphone Sim;

Temporarily seize property of the defendant to secure judgment execution:

+ 01 (one) light yellow SAMSUNG mobile phone; with 02 sims and 01 Kington 08GB Gold card;

+ 01 (one) UNIFONE white mobile phone, no sim;

* Pursuant to Point a, Clause 3, Article 106 of the Criminal Procedure Code, return to the defendant:

- 01 (one) ID card in foreign language in the name of Ka Denh V, (Exhibit status is reflected in the evidence delivery and receipt No. 37/2019 dated June 13, 2019)

3. With reference to court fees: Pursuant to Articles 135, 136 of the Criminal Procedure Code and Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the National Assembly Standing Committee, stipulating the court fees and charges, collection, exemption, reduction, management, and use thereof: Ka Denh V has to pay 200,000 VND 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.