Judgment No. 35/2019/HS-ST dated may 14, 2019 on illegal possession of narcotic substance

PEOPLE'S COURT OF HAI PHONG CITY

JUDGMENT NO. 35/2019/HS-ST DATED MAY 14, 2019 ON ILLEGAL POSSESSION OF NARCOTIC SUBSTANCE

On May 14, 2019, at the headquarters of the People's Court of Hai Phong City, a first instance trial is conducted to hear the criminal case No.  44/2019/TLST-HS dated May 3, 2019 under the Decision to Bring the Case to Trial No. 255/2019/QDXXST-HS dated May 3, 2019 against:

Vu Van G, born 1961 in Hai Phong. Registered temporary residence: Village N, Commune B, District M, Hung Yen Province; Occupation: None; Educational level: 10/10; Ethnicity: Kinh; Gender: Male; Religion: none; Nationality: Australian; Parents: Mr. Vu Van K and Mrs. Do Thi B (both dead); married to Pham Thi Thu T and has 02 children; criminal record: None; arrested and detained from January 14, 2019, transferred to temporary detention from January 17, 2019, on bail from January 30, 2019; 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:

At 14:45 on January 14, 2019, at the sidewalk area of ​​Neighborhood 4, Ward N, District D, Hai Phong City, District D Police Investigation Police Department caught Vu Van G red-handed storing illegally in the left sock a paper package wrapped with a blue plastic bag, in which there are 05 plastic straws with white powder (suspected to be heroin).  In addition, the investigation agency also seized from G 1 passport and 1 driving license named Vu Van G.

Searching G's residence in Group 4, Ward N, District D, Hai Phong City and at Village N, Commune B, District M, Hung Yen Province, there was nothing related to the case.

At the expertise conclusion No. 31 dated January 15, 2019, the Criminalistics Department of Hai Phong City Police concludes that the seized white powder of Vu Van G is Heroine-type drug, with a volume of 0.2164 gram.

At the investigation agency, Vu Van G confessed:  Because of drug addiction, G often bought drugs from an unknown young man at the intersection of Industrial and Commercial Bank D.  At around 13:30 on January 14, 2019, G went to the intersection of the Industrial and Commercial Bank D to wait and buy from the young man who sold Heroine drug to G 05 small plastic straws containing Heroine drug for VND 500,000.  After buying drugs, G hid in G's left leg socks; while walking home, he was caught in act as mentioned above.

- In the Indictment No. 47/CT-VKS-P1 dated April 23, 2019, the People's Procuracy of Hai Phong City prosecutes the defendant Vu Van G for "Illegal possession of narcotic substances" according to regulations defined at Point c, Clause 1, Article 249 of the Criminal Code 2015.

- At the court hearing, the defendant admitted his behavior as the contents of the Indictment stated and the defendant did not have any questions or complaints.

- At the court hearing, the Procurator still maintains the decision to prosecute and requests the Trial Panel:

Pursuant to Point c, Clause 1 and Clause 5, Article 249, Point s, Clause 1 and Clause 2, Article 51 of the Criminal Code 2015; impose Vu Van G from 12 to 15 months in prison for illegally possessing narcotics and impose a fine on the defendant 5 million to 10 million.

Proposing to confiscate and destroy exhibits of the case; return the defendant 1 passport and 1 driving license.

The defendant does not argue with the prosecutor's point of view, in the last words, the defendant pleads for the law of leniency to alleviate the penalty.

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 the procedural acts  and decisions of the investigation body of Hai Phong Police, Investigators, the People’s Procuracy of Hai Phong city 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 gives no opinion or complaint about the procedure and decision of the presiding agencies. Therefore, the procedural acts and decisions of the presiding authorities and presiding officers have been made legally.

[2] Regarding the offense: At the trial, the defendant admitted the offense as the indictment stated.  The defendant's testimony at the court hearing is consistent with the defendant's testimony at the investigation authority, and the testimony of the witnesses; expertise conclusion; confiscated exhibits and other documents and evidence in the case files have been publicly reviewed at the trial, so there are enough bases to conclude:  Vu Van G has committed illegal possession of 0.2164 gram of the drug Heroine intended for personal use; this possession constitutes the crime of "Illegally possession of narcotics" under Point c, Clause 1, Article 249 of the Criminal Code.

[3] The defendant's behavior is dangerous to society; infringes upon the State's monopoly on drug management; disturbance of the peace and a cause of other crimes.  Therefore, it is necessary to strictly sanction the defendant for deterrence of the defendant and similar criminals in general. But it is advisable to consider for the defendant to enjoy the amount of leniency due to the sincere declaration, the first offense.

[4] Regarding aggravating circumstances:  The defendant commits no aggravating circumstance.

[5] Regarding mitigating circumstances:  The defendant expressed cooperative attitude and repents of criminal offense he had committed, so the extenuating circumstances "the offender expresses cooperative attitude and repents” as stipulated at Point s, Clause 1, Article 51 of the Criminal Code should apply. In addition, the defendant is also entitled to the extenuating circumstances specified in Clause 2, Article 51 of the Criminal Code that he has a brother who is a martyr.

[6] Considering the defendant committed a crime for the first time, the amount of drug possession is not large, sincerely declaring and enjoying many mitigating circumstances; the defendant himself, nearly 60 years old, suffers from a disease, is a foreigner returning to the country to visit relatives on the occasion of the Lunar New Year.  Therefore, it is only necessary to sanction the defendant with a prison sentence according to the starting level of the sentence bracket to help the defendant stay away from drugs, and at the same time reform and educate the defendant and general prevention.

[7] Regarding additional penalty:  The documents and evidence collected show that the defendant has no job and stable income, no valuable private property, so the additional penalty is not imposed on the defendant.

[8] Regarding exhibit handling: The remaining drug after examination is a banned substance that needs to be confiscated and destroyed; as a foreigner being sentenced to imprisonment, his personal papers must be temporarily seized until the punishment is completed.

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

For the foregoing reasons, 

DISPOSITION

- Pursuant to point c clause 1 Article 249; point s clause 1 and Article 2; Article 51 of the Criminal Code in Viet Nam: Sentence Vu Van G (twelve) months in prison for "Illegal possession of narcotic substances". The prison term commences from the date of arrest, the defendant shall be given credits for days of detention from January 14, 2019 to January 30, 2019.

- Regarding exhibit handling: Pursuant to Article 87 and Article 106 of the Criminal Procedure Code 2015 in Viet Nam: confiscation and destruction of 01 envelope with sealed edges.  Detain 01 passport number No. N6141422 issued on October 9, 2012 and 01 driver's license No. 081873888 named Vu Van G until the defendant has finished serving the imprisonment sentence.

(According to the record of handover of evidence dated April 24, 2019 at the Judgment Enforcement Department of Hai Phong city).

- With reference to court fees: Pursuant to Article 136 of the Criminal Procedure Code; the Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the National Assembly Standing Committee on court fees and charges, collection, exemption, reduction, payment, management and use thereof, the defendant has to pay VND 200,000 (two hundred thousand dong) of first instance criminal court fee.

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

-Regarding the right to request judgment enforcement: 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 and 9 of the Law on enforcement of civil judgments in Viet Nam, and the effective period of judgment enforcement shall comply within provisions in Article 30 of the Law on enforcement of civil judgments.