Judgment No. 383/2019/HS-PT dated july 12, 2019 on disturbance of the peace

SUPERIOR PEOPLE’S COURT IN HO CHI MINH CITY

JUDGMENT NO. 383/2019/HS-PT DATED JULY 12, 2019 ON DISTURBANCE OF THE PEACE

On July 12, 2019, at the head office of Superior People’s Court in Ho Chi Minh City, an appellate trial is conducted to hear the criminal case No. 719/2018/HSPT-TL dated December 10, 2018 against Nguyen Thi My L based on the appeal made by the defendant Nguyen Thi My L against the First Instance Criminal Judgment No. 33/2018/HSST dated October 23, 2018 of the People’s Court of Tien Giang Province.

Appellant:  Nguyen Thi My L, born in 1993, in Tien Giang. Place of residence: village 6, commune M, district C, Tien Giang province; current address: village T, commune T1, district C1, Tien Giang province; Occupation: Worker; Educational level: 12/11; Kinh; Gender: female; Religion: none; Nationality: Vietnamese; father: Nguyen Van N and mother: Nguyen Thi Hong H; husband: Nguyen Tan L1 (divorced) and 02 children; previous conviction or administrative violation: none; the defendant is released on bail (appearing in court).

CONSIDERING THAT

According to the documents available in the case file and the progress at the trial, the contents of the case are summarized as follows:

Nguyen Thi My L is a worker of S TG1 Handbag Co., Ltd. in industrial zone T1 (located in T1 commune, C1 district, Tien Giang province). At around 08:30 on June 13, 2018, while workers were working at the workshops, the company informed all workers to stop working to leave because there were many groups of demonstrators outside. On the way to the parking lot to get the motorbike, seeing a group of over 200 people gathering outside the company, demonstrating and urging the workers to refuse to work, L decided not to take the motorbike but leave the company and join the demonstration. After joining this group of demonstration, L saw two women (with unspecified full names and addresses) breaking a tree branch using as a flagpole and then attaching a Vietnamese flag to the flagpole, then L went to help, then together with these demonstrators marched on roads in industrial zones where foreign investors' corporate headquarters are located with the slogan “Oppose Vietnam’s leasing land to China, even for one day”; “Stop working, everyone, do not work for Chinese companies”.

While participating in the demonstration, L was given a flag of Vietnam by an unknown woman (whose full name and address is not specified). L declared that when holding the flag, someone in the group said (the speaker cannot be identified) "If you hold the flag, you must first go first", so L went ahead and led this group of people to H1 TG Co., Ltd., legally represented by B, born in 1964, Korean nationality as the general manager, shouting, chanting the slogan “Oppose Vietnam’s leasing land to China, even for one day”. Approaching the entrance gate of Company H1, because the gate was closed (aluminum fence gate), some people used their hands to push, asking the security of the company to open the gate to enter but the company's security refused, this group of people continued to push and knock down the gate (unknown suspects). L held a flag leading the group of people going inside the company premises (about 100 people). When passing the canteen and arriving a Company C1’s factory, L waved the flag, and together with the group of people chanting the slogan “Stop working, everyone, do not work for Chinese companies”. About 10 minutes later, L met a group of workers from H1 TG Co., Ltd. coming out from the workshop C1 saying "The company announced workers to leave work, you guys should go home", so L and the group of people went outside.

After leaving H1 TG Co., Ltd., L continued to hold the flag leading this group of people to the gate of Zone C of D Co., Ltd., legally represented by L2, born in 1968, Chinese nationality (Taiwan) as General Manager, asking the security guard to open the gate and get inside the Company. At the same time there were some people pushing the fence gate, so the security guard said “Do not push to damage the gate, let me open the gate”. After the security guard opened the gate, L and about 60 people entered the Zone C campus of the company and led a group of people to workshops C5, C6, C7, C8 chanting the slogan “Stop working, everyone, do not work for Chinese companies”, the company's security guard said that the company had given workers leave and the workers had leaved beforehand, L and this group of people went out. When L was holding a flag and leading the group of people to the gate of S TG2 Handbag Co., Ltd. to protest, the police force escorted her to the T1 Commune Police Headquarters to work.

Exhibits of the case:

- 01 (one) DVD containing videos recording images of Nguyen Thi My L and a group of demonstrators having acts of disturbing the peace on June 13, 2018 at H1 TG Co., Ltd. D and on roads in industrial zone T1.

- 01 (one) USB recording images of suspects that disturbed the peace on June 13, 2018 at H1 TG Co., Ltd., provided by Bui Thanh V, born in 1984, as authorized by the company.

- 01 (one) USB recording images of suspects that disturbed the peace on June 13, 2018 at H1 TG Co., Ltd., provided by Truong Tan Z, born in 1988, as authorized by the company.

Through the investigation findings, Nguyen Thi My L confessed that L participated in a large gathering of demonstrators and disturbed the peace just because she had herd instinct; no one abetted, urged or discussed her beforehand. The purpose of L’s joining the group of demonstrators is to call on workers working for companies in T1 industrial park to go on strike and quit their jobs to protest over the State's policy of considering passing the Bill of Law on Special Economic Zones, not for the purpose of opposing or undermining the Vietnamese revolution.

For H1 TG Co., Ltd.: When L and a group of demonstrators brought chaos and called on workers to quit, the leader of H1 TG Co., Ltd. ordered all workers to leave work to ensure that security and order issues at that time at the company, although the company still had to pay full day wages to the workers.

For D Vietnam Co., Ltd.: the investigation findings show there are valid grounds for determining that after L and a group of demonstrators caused trouble and urged workers to quit their jobs in Zone C, it did not cause any damage because previously, the company ordered all workers in Zone C to leave work on June 13, 2018, and only about 50 (fifty) people as factory managers and office staff stayed at the time when L and the demonstrators arrived at Area C.

For other suspects that have participated in disturbing the peace, the Provincial Police Investigation Department will continue take more evidence to verify their acts, if there are justifiable grounds, they will considered further.

In the first instance criminal judgment No. 33/2018/HSST dated October 23, 2018, the People's Court of Tien Giang province declared the defendant Nguyen Thi My L guilty of "Disturbing the peace".  Pursuant to clause 1 Article 318; Point i, s Clause 1 Article 51; Article 50; Article 38 of the Criminal Code in Viet Nam, sentence the defendant Nguyen Thi My L to 09 (nine) months in prison. The prison term commences from the date on which the defendant serves the sentence. In addition, the judgment also pronounces the handling of evidences, court fees, the right to appeal and judgment enforcement in accordance with the law.

On November 5, 2018, the defendant Nguyen Thi My L filed an appeal for a suspended sentence.

At the appellate trial, defendant Nguyen Thi My L still kept the appeal content.

The representative of the Procuracy participating in the court hearing states: At the appellate court, the defendant still upholds the appeal to apply for a suspended sentence, but the defendant does not have any new mitigating circumstances. The defendant's behavior has prejudiced the local peace, has caused a negative influence on the political situation. The defendant did not know about the policy of special economic zones and the State's land lease policy. The defendant was the one holding the Vietnamese's flag leading the group of demonstrators. The defendant's behavior caused negative public opinion; the world would incorrectly evaluate the political situation in Vietnam. Therefore, propose the Trial Panel to dismiss the appeal of the defendant and affirm the first instance judgment.

DEEMING THAT

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] At the trial today, the defendant Nguyen Thi My L confessed her behavior exactly as the content of the First Instance Judgment. At around 8:30 a.m. on June 13, 2018, Nguyen Thi My L, a worker of S TG1 Company, was ordered by the Company to leave word due to demonstration outside. L did not leave, but joined a crowd of people to H1 TG Co., Ltd. (Company H1 for short) and D Co., Ltd. (Company D for short) to protest and call on workers to quit their jobs. On the way, L met a strange woman who gave L a flag of Vietnam. L took the lead of the group of demonstrators into the two companies above, waving the flag and calling on everyone to quit their jobs many times until the security guard announced that the workers were gone, and then L and the group of people went out. And then she was arrested by the task force.

 [2] The defendant's confession is consistent with the testimonies of the witnesses and other documents included in the case file.

 [3] Considering the appeal of the defendant Nguyen Thi My L, the Appellate Trial Panel finds:

 [3.1] Regarding the offense: The first instance court was right in convicting the defendant Nguyen Thi My L of "Disturbing the peace" under Clause 1 of Article 318 of the Criminal Code.

 [3.2] Regarding penalty:

After the first-instance trial, the defendant provided additional evidence as a certification by the People's Committee of commune M, district C, Tien Giang province on November 5, 2018 that her biological father, Nguyen Van N, is a congenital deaf-mute and is on monthly social allowance; the defendant has a clear residence in village 6, commune M, district C, Tien Giang province. The defendant has a stable job, working as a worker for S Handbag Vietnam Co., Ltd.; in her place of residence, the defendant had obeyed the law policy, had no prior criminal record or any administrative violation. The defendant is the breadwinner in the family, the defendant and her husband were divorced, the defendant is the custodian parent of two children; the defendant provided a certificate of civil judgment execution department of Tan Phuoc district dated November 5, 2018, the defendant's contract addendum with S VN TG Handbag Co., Ltd., a divorce judgment No. 06/2018/HNST dated February 8, 2018 of the People's Court of Tan Phuoc district, Tien Giang province; and a certification of financial hardship issued to her family. This is not a new mitigating circumstance.

Considering that the defendant's criminal act is dangerous to the society, directly infringing the peace, affecting the ordinary course of business of the companies in the industrial park. The defendant herself is aware that in T1 industrial park there are many foreign companies that invest and do business. The defendant's behavior has prejudiced the investment environment of foreign companies in Tien Giang in general and T1 Industrial Park in particular, and also has adversely affected the local security and social safety.  The Court of First Instance considered mitigating circumstances for the defendant. The penalty imposed by the Court of First Instance on the defendant is appropriate.

 [4] The defendant appeals for a suspended sentence, but there is no new mitigating circumstance. Therefore, we do not accept the defendant's appeal, affirming the first-instance judgment as proposed by the representative of the Superior People's Procuracy in Ho Chi Minh City.

 [5] Since the appeal is turned down, L has to pay the appellate criminal court fee.

DISPOSITION

Pursuant to point a clause 1 Article 355, Article 356 of the Criminal Procedure Code 2015 in Viet Nam;

1. Do not accept the appeal of the defendant Nguyen Thi My L. Affirm the first instance judgment.

Pursuant to clause 1 Article 318; Point i, s Clause 1 Article 51; Article 50; Article 38 of the Criminal Code 2015, sentence the defendant Nguyen Thi My L to 09 (nine) months in prison for “Disturbing the peace”. The prison term commences from the date on which the defendant serves the sentence.

2. Other contents in the first-instance criminal judgment No. 33/2018/HSST dated October 23, 2018 of the People's Court of Tien Giang province shall take legal effect from the date of expiration of the time limit for appeals and protests.

3. Defendant Nguyen Thi My L has to pay an appellate criminal court fee of 200,000 VND.

The appellate judgment takes legal effect from the date of pronouncement