Judgment no. 38/2020/HS-ST dated november 30, 2020 for violation of regulations on protection of endangered, rare, precious animals

THE PEOPLE’S COURT OF AN GIANG PROVINCE

JUDGMENT NO. 38/2020/HS-ST DATED NOVEMBER 30, 2020 FOR VIOLATION OF REGULATIONS ON PROTECTION OF ENDANGERED, RARE, PRECIOUS ANIMALS

On November 11, 2020 at the People’s Court of An Giang Province, the accepted criminal case No. 21/2020/HSST dated June 5, 2020 was brought for the public first instance trial under Decision to hear the case No. 42/2020/QDXXST-HS dated November 4, 2020 against the defendants:

1. Neang Soc V., born in 1962 in O. Commune, T. District, An Giang Province; Residence: Phuoc An Hamlet, O. Commune, T. District, An Giang Province; Occupation: Lost earning capacity; Education level: 1/12; Ethnic: Khmer; Gender: Female; Religion: Buddhism; Nationality: Vietnamese; Daughter of Mr. Chau D., born in 1927 and Mrs. Neang S., born in 1936; Married to Mr. Chau S., born in 1954; Gave birth to 2 children, one in 1983 and the other in 1986:

Criminal record: None:

The defendant was bailed but has escaped; Investigating Police Department - Police authority of An Giang Province have organized a manhunt which produced no results. Absent.

2. Set S., born on May 1, 1962 in the Kingdom of Cambodia; Residence: C. Hamlet, K. Commune, K. District, T. Province, Kingdom of Cambodia; Occupation: Worker; Education level: Illiteracy; Ethnic: Khmer; Gender: Male; Religion: Buddhism; Nationality: Cambodian; Son of Mr. Set S., born in 1935 and Mrs. Nam N., born in 1947; Married to Mrs. Nouch V1., born in 1959; Gave birth to 4 children, the eldest child in 1983 and the youngest in 1996:

Criminal record: None:

Arrested and suspended from October 29, 2019, present at court.

- Defender of defendant Set S.: Mr. Bui Quoc N., a Lawyer of A-T Law Single-member LLC. affiliated to the Bar Association of Can Tho City (Present).

- Interpreter: Mr. Chau Chanh K. - Deputy Director of Department of Border Affair Management affiliated to the Department of Foreign Affair of An Giang Province (Present)

- Person(s) with relevant benefits and obligations: Mrs. Nouch V1., born in 1959 (Absent), Residence: C. Hamlet, K. Commune, K. District, T. Province, Kingdom of Cambodia.

THE CASE

Depending on the case file and development at the court, the case shall be summarized as follows:

At 9 o’clock October 29, 2019, Police authority of A. Commune, T1. District, An Giang Province pulled over Set S. who was operating a motorbike with license number 1AM - 7405 carrying a yellow bag towards T1. District and T. District where they discovered 10 dead and dried loris individuals which are classified as an endangered, rare, and precious animal and prohibited from sale and transport in the bag. Set S. claimed that Neang Soc V. hired him to transport the lorises from Cambodia to Vietnam. The police authority then produced offence notice for ongoing crime and collected the evidence for investigation.

Set S. and Neang Soc V. confessed: Around May, 2019, V. worked in S. District, C. Province, Kingdom of Cambodia where she got acquaintance with a Cambodian man (unknown name and address) and told him that she was having liver, kidney, and heart diseases which could not be treated after countless treatment attempts. When the man then claimed that lorises can cure V.’s diseases, V. asked for a supply and gave the man her phone number. On October 26, 2019, the man informed V. that he had managed to purchase 10 greater, dead, and dried lorises for 350.000 Riel in Cambodia via telephone. Upon which, V. asked Set S. on the phone to pay the money and hire S. to transport the lorises to Vietnam for 30.000 Riel at which point S. agreed. On October 28, 2019, a Cambodian man named Lo contacted S. and had people give S. 10 greater lorises which had died, been gutted, and dried in a bag where S. paid 350.000 Riel.

At around 7 o’clock, October 29, 2019, S. hired a Cambodian man (unknown background and address) to transport the lorises from Cambodia to Vietnam, specifically the Vinh Te Canal of X. Hamlet, T1. Commune-level Town, T1. District via river way for 5.000 Riel; S. the operated the motorbike with license number 1AM-7405 past Phom Denl Checkpoint of Cambodia into Vietnam, picked up the lorises and drove to V.’s house. S. was arrested by Police authority of A. Commune while going through B. Hamlet, A. Commune, T1. District.

Collected evidence: 10 greater, dead, gutted, and dried lorises:

1 motorbike with license number 1AM-7405; 1 Vehicle registration, 1 ID Card bearing the name Set S.; 1 black Nokia mobile phone with 2 MetFone sim cards and 1 silver black Hphone mobile phone with 1 Viettel sim card.

Pursuant to the Judicial Expertise Conclusion No. 288/KLGD-SHND dated October 30, 2019 of the Institute of Tropical biology affiliated to the Vietnam Academy of Science and Technology: Greater lorises - Nycticebus coucang (Boddaert, 1875) belongs to the Lorisidae family; Primates order; Mammalia class. Number: 10, dead, gutted, and dried. Greater lorises are animals classified under Appendix IB - List of endangered, rare, precious animals prioritized for protection under Decree No. 160/2013 in Viet Nam dated November 12, 2013 of Prime Minister. Greater loris is an animal under Appendix I (Nycticebus spp) of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) under Circular No. 04/2017/TT-BNNPTNT in Viet Nam dated February 24, 2017.

Pursuant to Medical assessment report No. 50/GDYK-KNLD dated March 20, 2020 of the Medical Assessment Council of An Giang Province: Neang Soc V. suffered from working capacity reduction, 83% bodily injury, and no chronic diseases in accordance with Joint Circular No. 03/2013/TTLT-BCA-TANDTC-VKSNDTC-BQP-BYT in Viet Nam dated May 15, 2013.

Arraignment No. 32/CT-VKSAG-P1 dated June 3, 2020 of the People’s Procuracy of An Giang Province prosecutes the defendants Neang Soc V. and Set S. for “Violating regulations on protection of endangered, rare, and precious animals” in accordance with Point a Clause 3 Article 244 of the Criminal Code.

During the investigation, the defendants Neang Soc V. and Set S. had no propositions or complaints regarding decision on prosecution of the People’s Procuracy. The defendants admitted to the offence as well as the case file. Present at court, the defendant Set S. admitted to have committed the offence due to the lack of knowledge and understanding of the legal system regarding wild animals thus not knowing that lorises are endangered, rare, wild animals prioritized for protection. To be specific: On October 26, 2019, the defendant received a phone call from V. who asked the defendant to pay on their behalf and hired the defendant to transport the lorises to Vietnam for 30.000 Riel where the defendant agreed. On October 28, 2019, a Cambodian man named Lo contacted and had people carry 10 greater lorises which had been killed, gutted, and dried in a bag to the defendant’s place at which point the defendant received and paid 350.000 Riel. At around 7 o’clock on October 29, 2019, the defendant hired a man to transport the lorises from Cambodia to Vietnam, specifically the Vinh Te Canal of X. Hamlet, T1. Commune-level Town, T1. District via river way for 5.000 Riel; the defendant then crossed the road checkpoint of Phom Denl into Vietnam on a motorbike, reached the rendezvous, picked up the lorises, and transported to V.s’ house. The defendant was arrested by Police authority of A. Commune while going through B. Hamlet, A. Commune, T1. District.

At court, the Procurator exercising the right to prosecution spoke: Maintain prosecution as arraignment. Based on the nature of the case, offence of the defendants, aggravating and mitigating circumstances: hereby request the Trial panel to adopt Point a Clause 3 Article 244; Point s, Point m Clause 1, Clause 2 Article 51, Article 17, Article 54 of the Criminal Code 2015 in Viet Nam and amendments thereof in 2017; with respect to the defendant Set S., adopt Article 37 of the Criminal Code 2015 and amendments thereof in 2017 additionally. Impose: 6 to 7 years of imprisonment on the defendant Neang Soc V., and 5 to 6 years of imprisonment on the defendant Set S.. Regarding the evidence: Pursuant to Article 47 of the Criminal Code 2015 and amendments thereto in 2017; Article 106 of the Criminal Proceeding Code 2015. Hereby declare: Confiscate and dispose 10 dead, gutted, and dried greater lorises; Confiscate 1 black Nokia mobile phone and 1 silver black Hphone mobile phone and submit to reserve:

Return 1 motorbike with license plate 1AM-7405 to Nouch V1.; and return 1 ID Card to Set S..

During the defense for the defendants: The defender concurred with the People’s Procuracy of An Giang Province in the charges and mitigating circumstances presented by the People’s Procuracy. However, the following mitigating circumstances are proposed: The defendant Set S. is a foreigner and thus lacks the understanding of the legal system of Vietnam and is unaware that Vietnamese law prohibits the sale and transport of lorises; the defendant was hired as a courier but had not received the pay and was the breadwinner of the family. Thus propose the Trial panel to adopt Point s, Point m, and Point t Clause 1, Clause 2 Article 51; Article 54 of the Criminal Code to impose a penalty lower than that proposed by the People’s Procuracy.

In their final statement: The defendants admit to the charges under the Arraignment of the People’s Procuracy of An Giang Province and are aware of their wrongdoings, hoping the Trial Panel to reduce the penalty.

STATEMENT OF THE TRIAL PANEL

With respect to the details of the case, based on the case file documents that have involved in the litigation at the court, the trial panel forms judgments as follows:

Regarding proceeding:

 [1] Actions and decisions on proceeding of the Investigating Police - Police authority of An Giang Province, Investigators, and People’s Procuracy of An Giang Province, Procurators have adequately complied with the Criminal Proceeding Code in terms of power and procedures in investigation and prosecution. During investigation and at court, the defendants and other individuals engaging in the proceeding did not abstain nor complain about actions, decisions of presiding agencies, presiding officers. Thus, all actions and decisions on proceeding carried out by legal proceeding agencies and individuals are legitimate.

 [2] The defendant Set S. is a foreigner committing violation in the territory of the Socialist Republic of Vietnam and, pursuant to Clause 2 Article 268 of the Criminal Proceeding Code 2015 in Viet Nam, is within the competence of the People’s Court of An Giang Province to organize first instance trial.

 [3] Regarding the defendant Neang Soc V. who evaded capture, Investigating police authority have issued warning decision which produced no result. Pursuant to Clause 2 Article 290 of the Criminal Proceeding Code 2015, the Trial panel proceeded with the trial in absence of the defendant Neang Soc V..

 [4] Persons with relevant benefits and obligations: Mrs. Nouch V1. absent from court. Considering the absence of Mrs. Nouch V1. did not affect the trial and her testimony had contributed to the investigation, the Trial panel shall disclose the testimony at court if necessary. Pursuant to Article 293 of the Criminal Proceeding Code 2015, the Trial panel proceeds with the case.

Regarding THE CASE

 [5] At court, despite their absence, testimony of the defendant Soc V. throughout investigation and testimony of the defendant Set S. at court matched the Record of arrest of offenders in the act, collected evidence, and Judicial Expertise conclusion No. 288/KLGD-SHND dated October 30, 2019 of the Institute of Tropical biology affiliated to the Vietnam Academy of Science and Technology. And also matched other documents and evidence in the case file. There was sufficient ground to determine: The defendants Neang Soc V. and Set S. had purchased and illegally transported 10 greater lorises under Appendix IB - List of endangered, rare, and precious animals and Appendix I of the CITES from Cambodia to Vietnam where they are caught red-handed. Pursuant to the law, offence of the defendants Neang Soc V. and Set S. is “Violating regulations on protection of endangered, rare, and precious animals” whose violations and penalty are specified under Point a Clause 3 Article 244 of the Criminal Proceeding Code 2015 and amendments thereto in 2017 in Viet Nam.

 [6] Regarding:

The man named Lo and the Cambodian man who sold and transported 10 greater lorises to V. and Set S. are unidentified and thus cannot be tried by regulations and law on a grounded basis.

The entry to Vietnam and Cambodia of Neang Soc V. is against the law but not severe enough to be liable to criminal prosecution, the Investigating authority did not try or impose penalty for the illegal entry on a well-grounded basis.

 [7] Considering the nature of the case:

 [7.1] Lorises are listed under the list of endangered, rare, precious animals prioritized for protection in Vietnam and around the world and as Vietnam is a member of the CITES. The violation regarding management of faunas and floras has been met with criminal actions in accordance with Criminal Code. Offence of the defendants are very severe and dangerous to society. The offence violated state management regarding protection of rare and precious animals prioritized for protection by the law, violated and damaged the ecosystem. Thus a penalty with equal severity to the violation must be imposed on the defendants.

 [7.2] Despite the case involved an accomplice, the involved accomplice is basic in nature. Regarding the defendant Neang Soc V. who directly purchased and hired Set S. to transport 10 dead, dried greater lorises from Cambodia to Vietnam and evaded capture during prosecution thereby causing difficulty for the presiding agencies, strict penalties for the defendant are required. The defendant Set S. who only transported the lorises after being hired can have his penalty reduced.

 [7.3] However, considering the following mitigating circumstances: The defendants hurriedly cooperated and showed remorse; are first-time offenders; have no prior criminal record; are poor workers and thus have limited awareness of the law; have low education level, are unable to stay updated, and lead an obsolete lifestyle. In addition, the defendants purchased and transported 10 dead, gutted, and dried lorises to Vietnam for medical treatment purposes but not personal gain. The defendant Soc V. suffered from earning capacity reduction with 83% of bodily injury. Set S. is a foreign national (Cambodian nationality) with limited understanding of Vietnamese laws and thus shall be met with humane policies for foreigners committing crime in the territory of Vietnam. These are mitigating circumstances mentioned under Point m and Point s Clause 1 and Clause 2 Article 51 of the Criminal Code 2015 and amendments thereto in 2017. The Trial panel shall thus consider, decide to reduce the penalties and potentially impose penalties below the suggested range. The defendant Set S. shall be expelled from the Socialist Republic of Vietnam as soon as the defendant finishes the sentence.

 [8] Regarding judicial measures:

The defendants were supposed to be subject to additional penalties, however, considering the defendant Soc V. suffered from earning capacity reduction while the defendant Set S. is a manual worker with unstable income, the Trial panel shall not impose additional measures in form of fine on the defendants.

 [9] Regarding evidence disposal: Assets collected during the investigation must be classified for disposal as follows:

- Confiscate and dispose 10 dead, gutted, and dried greater lorises.

- 1 black Nokia mobile phone with 2 MetFone sim cards and 1 silver black Hphone mobile phone with 1 Viettel sim card (used): Are methods of communication between the defendants and thus shall be collected and foreclosed.

- 1 motorbike with license plate 1AM-7405; 1 vehicle registration: Are properties of Nouch V1. And shall be return to the Nouch V1 since Vorn was not aware that Set S. used this vehicle to transport the lorises.

- 1 ID Card of Set S.: Is a personal document and shall be returned to the defendant Set S..

 [10] Regarding court fees: Sentenced defendants must incur 200.000 VND of first-instance court fee in accordance with Clause 2 Article 135, Clause 2 Article 136 of the Criminal Proceeding Code 2015 and Resolution No. 326/2016/UBTVQH14 dated December 30, 2016.

For all reasons above,

DECISION

1. Pursuant to Point a Clause 3 Article 244; Point m and Point s Clause 1, Clause 2 Article 51; Article 17; Article 54 of the Criminal Code 2015, and amendments thereto in 2017; Clause 2 Article 290 of the Criminal Proceeding Code in 2015:

The defendants Neang Soc V. and Set S. is guilty of “Violating regulations on protection of endangered, rare, precious animals”.

Sentence: The defendant Neang Soc V. to 7 years of imprisonment starting from the date on which the defendant serves the sentence.

Sentence: The defendant Set S. to 5 years of imprisonment starting from October 29, 2019.

Pursuant to Article 37 of the Criminal Code 2015 and amendments thereto in 2017: Expel the defendant Set S. from the territory of the Socialist Republic of Vietnam as soon as the defendant finishes the sentence.

2. Regarding evidence disposal: Pursuant to Article 47 and Article 48 of the Criminal Code 2015 and amendments thereto in 2017; Article 106 of the Criminal Proceeding Code 2015:

- Confiscate and dispose 10 dead, gutted, and dried greater lorises.

- Confiscate and foreclose 1 black Nokia mobile phone with 2 MetFone sim cards and 1 silver black Hphone mobile phone with 1 Viettel sim card (used) to State budget.

- Return 1 ID Card of Set S. to Set S..

- Return 1 black Honda Dream125 motorbike with license plate 1AM-7405, chassis number ND125M-8424295, engine number ND125ME-8424295 and 1 vehicle registration for vehicle with license plate 1AM-7405 (used).

 (Evidence above is under management of the Department of Civil Judgment Enforcement of An Giang Province in accordance with the Record on evidence handling and receipt dated July 8, 2020 between Investigating police authority of Police authority of An Giang Province and the Department of Civil Judgment Enforcement of An Giang Province).

3. Pursuant to Clause 2 Article 135, Clause 2 Article 136 of the Criminal Proceeding Code 2015 and Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016:

The defendant Neang Soc V must incur 200.000 VND of first-instance criminal court fee.

The defendant Set S. must incur 200.000 VND of first-instance criminal court fee.

The defendant Set S. has the right to appeal within 15 days from the date of sentencing. The defendant Neang Soc V. and absent litigants have the right to appeal within 15 days from the date on which they receive the judgment or the date on which the judgment is posted at head office of People’s Committee of commune, ward where they reside.