Judgment no. 448/2018/HSST dated november 22, 2018 regarding illegal transport of narcotic substances

THE PEOPLE’S COURT OF HO CHI MINH CITY

JUDGMENT NO. 448/2018/HSST DATED NOVEMBER 22, 2018 REGARDING ILLEGAL TRANSPORT OF NARCOTIC SUBSTANCES

On November 22, 2018, at the office of People’s Court of Ho Chi Minh City, the first instance trial was conducted to hear the criminal case No.  645/2018/HSST dated October 30, 2018 according to the Decision to Bring the Case to Trial No. 5138/2018/QDXXST-HS dated November 1, 2018 against the defendant:

NIKOLAENKO G (other name: IIona); born on October 22, 1992 in Russia; gender: female; permanent residence: 5/35 PK, M, RS; temporary residence in Vietnam: no stable residence; occupation: fashion design; education level: 9/11; ethnicity: Russian; religion: none; nationality: Russian; her father: Nikolaenko B (died) and her mother: Sharapova Osn; husband or children: none; previous conviction and administrative penalty: none; Arrested and detained from January 17, 2018 (present).

The advocate for the defendant: Lawyer Ngo Van Thanh and lawyer Nguyen Thien Phuoc in Kien An Lawyer’s Office, member of Bar Association of Ho Chi Minh City, who are nominated to advocate the defendant Nikolaenko G - present.

Persons with related interests and obligations:

Mrs. Tran Thi Binh M, born in 1995; permanent residence: A3/48B, Group C, Village 1A, Commune VL A, BC District, Ho Chi Minh City; temporary residence: No. 15, Street 43, TD Ward, District B, Ho Chi Minh City - present.

Witnesses:

1/ Mrs. Nguyen Thi Hong T - absent.

2/ Mr. Pham Tan D - absent.

3/ Mr. Nguyen Chi D - absent.

Interpreter: Mr. Pham Gia T - Russian interpreter of Phuong Tay Translation Company.

Address: 115/8 LVS, Ward Q, PN District, Ho Chi Minh City - present.

THE CASE

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

At 17:00, on January 17, 2018, the Investigation Police Department on Drug-related Crimes affiliated to Public Security of Ho Chi Minh City coordinated with the Anti-drug Enforcement Team affiliated to Department of Customs of Ho Chi Minh City in carrying out a patrol. When reaching the house No. 42, Street 7, Binh Trung Dong Ward, District 2, Ho Chi Minh City, they saw Nikolaenko G (a Russian) holding 01 carton and standing next to a motorbike with license plate of 17B4-295.18. Suspicious that something illegal was afoot, they decided to check him. After checking, they seized 01 set of interlocking building blocks which contains 05 nylon bag containing 1,390 colorful tablets suspected of being drugs.

In the Expertise Conclusion No. 348/KLGD-H dated January 26, 2018, the Criminalistics Department affiliated to Public Security of Ho Chi Minh City concluded that the drugs seized from Nikolaenko G are drugs in solid form, weighing 668.1028gr, MDMA type.

During investment process, Nikolaenko G confessed: In December 2017, G immigrated to Vietnam for travel purpose and got acquainted with a person named Nikolay (unknown true identity, Russian). Nikolay hired G to come to District 2 Post Office in Ho Chi Minh City to receive a cargo box sent from Germany to Vietnam and G would be paid VND 1,000,000. Then, following the instructions of Nikolay, G came to a Circle K shop in District and met a foreigner (unknown true identity); this person told G to bring it to Nguyen Hue Walking Street and put it next to the garbage can in front of the McDonald store, there would be a person who take it later.

At 16:00, on January 17, 2018, G told her friend named Tran Thi Binh M to go together to the District 2 Post Office and help him in translation to take the parcel. After G signed for receipt of the parcel and then went out to take the motorbike, he was caught red-handed. When hiring G to receive the parcel, Nikolay did not reveal the things inside to G. G did not know that they are drugs (ecstacy) until the parcel was checked.

In the Indictment No. 373/CT-VKS-P1 dated September 13, 2018, the People’s Procuracy of Ho Chi Minh City prosecutes the defendant, Nikolaenko G for: “Illegal transport of drugs” as prescribed in Point b Clause 4 Article 250 of the Criminal Code 2015, amended in 2017.

At the trial, the defendant confessed her offense as true as the Indictment. The defendant confessed that as wishing to get acquainted with and make friend with Nikolay, she perpetrated of the offense of illegal transport of drugs. However, she did not know what inside the parcel are drugs, she also has not received VND 1,000,000 as remuneration from Nikolay.

Representation of Mrs. Tran Thi Binh M: Mrs. M has had friend relationship with G since early 2017. One time, G asked Mrs. M to search address of the District B Post Office to receive a parcel sent from a foreign country. Failing to receive the parcel after two attempts at the District B Post Office, G asked Mrs. M to go together because the defendant is not able to speak Vietnamese. Mrs. M went together with G 3 times to District A and District B Post Offices to ask about the parcel but they failed and G paid Mrs. M VND 500,000 as the interpretation fee. In the evening on January 15, 2018, G asked Mrs. M to call Mrs. T, who is a postal worker, to ask about the parcel, Mrs. T made an appointment to receive the parcel on January 17, 2018. About 15:00, on January 17, 2018, Mrs. M went together with G to the post office to receive the parcel. However, since the recipient was not G but an American man, the postal worker refused to let them receive the parcel. Then, G provided the passport photo of the recipient and her passport. So, the postal worker agreed to let them receive the parcel. Then, Mrs. M and G signed for receipt of the parcel. While bringing the parcel out, they were checked by the police and a report of offence caught in the act was made. Mrs. M did not know what are inside the parcel, G only told her that this was an important parcel that needs to be received as soon as possible. Mrs. M herself did not know who are the sender and recipient. As Mrs. M brought her ID card along, she used the number of ID card and phone number of her mother, Mrs. Tran Nha Y, to write a confirmation to receive the parcel on behalf of G.

In the argument section, the representative of the People’s Procuracy of Ho Chi Minh City analyzes and evaluates nature, severity and consequence of the offense committed by the defendant, aggravating and extenuating circumstances, and then still prosecutes Nikolaenko G for: “Illegal transport of drugs”. And request the Trial Panel to apply Point b Clause 4, Clause 5 Article 250; Point s, Clause 1, Article 51 of the Criminal Code 2015, amended in 2017 to sentence Nikolaenko G to 20 years in prison and an additional penalty of VND 20 million. The prison term commences from January 17, 2018.

And request handling of material evidence and other matters of the case as per the law.

Representation of lawyer Nguyen Thien Phuoc at the court hearing: The case file has many procedural errors such as the report of offence caught in the act dated January 17, 2018 does not have the decision on soliciting interpreter; although the defendant is a Russian, the investigation body employed an English interpreter. On the other hand, the investigation body has not clarified the person who sent the parcel from the post office in Germany, which is a mistake. Thus, request the Trial Panel to adjourn the court hearing to return to case file to the People’s Procuracy for further investigation.

Lawyer Nguyen Van Thanh agrees with the defense of lawyer Nguyen Thien Phuoc and add more opinions that the People’s Procuracy has not clarified issues in the decision on return of case file for further investigation required by the Court before, such as: Delivery process of international parcels of District B Post Office; verification of criminal records of Nikolaenko G in Russia. Request clarification of responsibilities of relevant entities, determine the mastermind, properly assess the role of the defendant G in the case, contribute in the drug crime prevention. Thus, request the Trial Panel to adjourn the court hearing to return to case file to the People’s Procuracy for further investigation.

The defendant G does not defend herself further.

The representative of the People’s Procuracy counters the defense of the lawyers as per:

In terms of soliciting of interpretation for the defendant G, on the date the report on offense caught in the act was made, as the defendant was still an arrestee, the investigation body has not made a decision on soliciting of interpretation. On the other hand, the defendant admitted that she is able to speak English and Russian, the investigation body employed an English interpreter on the date that the report on offense caught in the act. During investigation, the investigation body solicited a Russian interpreter for the defendant totally in accordance with the Criminal Procedure Code.

In terms of request for return of the case file for further investigation: The case file shows that the investigation body carried out verification of Nikolay but cannot verify more because the defendant G was not able to confess any information about identity of Nikolay; the criminal records of the defendant G were clarified in the reply of Police of Russian Federation. The District B Post Office carried out the delivery process of international parcels in conformity with law. Upon receipt of the parcel, the defendant G had to present sufficient papers and sign for receipt before receiving the parcel. Regarding the lawyer’s request for property evaluation of the role of the defendant, the case file shows that G was the person who came to District B Post Office to receive the parcel containing drugs and then bring it to Nguyen Hue Street. When the defendant was caught in the act, she knew that they are ecstacy since she used to use this kind of illegal drug before. All matters raised by the lawyer in the case file are clarified, there is no justifiable ground to return the case file for further investigation.

The parties give arguments and defense but all of them are reserved as original.

Confession of persons with relevant rights and obligations cum witnesses at the investigation body:

Mrs. Nguyen Thi Hong T, a postal worker in District B Post Office, admits: On December 26, 2017, G came to District B Post Office to ask about a parcel sent from abroad but he could not receive it as the parcel was in the storage at that time. After that, on December 27, 2017, December 29, 2017, January 4, 2018, G came together with a Vietnamese woman to ask about the parcel but it had not been delivered to District B Post Office. When the parcel reached the post office, as Mrs. T cannot speak English fluently, she contacted with the Vietnamese woman and made an appointment to receive the parcel on January 17, 2018. About 15:00 on January 17, 2018, G came to the post office together with that woman to claim the parcel. However, since the recipient’s name is Tregeubav V, the post office did not let G receive the parcel. After that, G provided the passport photo of the recipient and wrote a commitment, so the postal worker agreed to let G and that woman to receive the parcel. After these persons completed procedures for receipt of parcel and left, they were invited by the police to the ward police headquarters.

Confession of Mr. Pham Tan D: About 17:00 on January 17, 2018, when he was on duty at the TND ward police headquarters, District B, a group of police officers in plain clothes led 2 women, one person in which was a foreigner holding a carton, to the headquarters. The Vietnamese woman is Tran Thi Binh M, born in 1995, and the foreign woman is Nikolaenko G, Russian nationality. In the witness of Mr. D and other people, the Russian woman opened the carton for checking. It was detected that there is a set of interlocking building blocks with 01 silver-color nylon bag inside, the bag contains 05 nylon bags containing colorful tablets that G admitted that they are drugs.

The last words: The defendant Nikolaenko G pleads for leniency to soon take care of her mother after serving the sentence.

JUDGEMENT OF THE COURT

On the basis of the content of the case, based on the documents available in the case file, which have been litigated at the trial, the Trial Panel shall determine as follows:

[1] Acts and proceedings of the Investigating Agency of Public Security of Ho Chi Minh City, investigators, the People's Procuracy of Ho Chi Minh City, in the course of investigation and prosecution have strictly conformed to competence, order and procedures prescribed in the Criminal Procedure Code.

During the investigation process and at the trial, the defendant, persons with relevant rights and obligations did not have any comments or complaints about the acts and decisions of the presiding agencies and presiding persons. In the self-depositions, report of depositions, report of interrogation, the defendant, witnesses, and persons with relevant rights and obligations all gave statements free from intimidation or torture. While the defendant’s depositions and interrogation were taken and other legal proceedings were carried out, the participation of interpreters and translators were assured as prescribed in Article 70 of the Criminal Procedure Code. Thus, the acts and proceedings of presiding agencies and presiding persons have strictly complied with the provisions of law.

At the stage of first instance trial, as the defendant is a Russian who is not able to speak Vietnamese, the Trial Panel invited an interpreter for her at the court hearing as prescribed in Article 263 of the Criminal Procedure Code.  [2] Regarding content, the Trial Panel evaluates as follows:

Through interrogation and argument at the court hearing, the defendant Nikolaenko G pleaded guilty to her offense. The confession of the defendant made at the court hearing is as same as her confession made at the investigation body, and in consistency with statements of the persons with relevant rights and obligations, witnesses; report of offense caught in the act; in conformity with the expertise conclusion, together with other items of evidence collected by the investigation body in the case file. The Trial Panel has substantial grounds for concluding that:

About 16:00 on January 17, 2018, the defendant Nikolaenko G came to District B Post Office to receive the receipt of parcel containing 1,390 tablets of drug, MDMA type on behalf of Tregubov V to bring it to Nguyen Hue Walking Street.

At 17:00 of even date, when the defendant had just received the parcel and left, she was caught in the act by the police together with above material evidence. At the investigation body, the defendant G admitted that she was asked by a man named Nikolay to deliver the parcel worth VND 1,000,000, Nikolay provided the passport photo of the recipient named Tregubov V, American nationality, in order for District B Post Office to receive the parcel. Nikolay asked G to go to a Circle K in District 2 to meet a foreign man to receive specific address where G will put the parcel next to the garbage can in front of the McDonald store at Nguyen Hue Walking Street. The defendant admitted that at the time of delivery of parcel, she knew that that is forbidden good but she still kept doing for self-interest.

During the investigation process and at the first instance court hearing, Nikolaenko G cannot declare the true identity of Nicolay who hired her to deliver the parcel and the foreign man who gave her the delivery place. The Immigration Administration affiliated to General Department of Security determines that Tregubov V has no information about entry and exit in Vietnam. Thus, Nikolaenko G shall face criminal liability for the drugs the defendant delivered.

In the Expertise Conclusion No. 348/KLGD-H dated January 26, 2018, the Criminalistics Department affiliated to Public Security of Ho Chi Minh City determines: 1,390 tablets of drugs in solid form, weighing 688.1028gram, MDMA type.

Nikolaenko G committed “Illegal transport of drugs”, with the offense and penalties prescribed in Article 230 of the Criminal Code 2015, amended in 2017 in Viet Nam.

[3] The Trial Panel deems that the offense of Nikolaenko G is a severe danger to society, which infringes the exclusive right of the state to manage drugs and violates order and security, policies of the state on preventing and getting rid of drugs out of society. As the drug is a harmful substance which has destroyed drug addicts physically and mentally, the State of Vietnam bans illegal production, transport, trading, storage and use of drugs and imposes harsh punishment on those who knowingly commit the crime. The defendant is well aware of that, but for the self-interest purpose, she ignored the law. The defendant is a major who has full criminal capacity and ability to control behavior; but for self-interest purpose, she illegally transported 688.1028 gram of drugs, MDMA type. Hence, it is essential to apply Point b Clause 4 Article 250 of the Criminal Code 2015, amended in 2017 to impose a sentence on the defendant as prosecuted by the representative of the People’s Procuracy of Ho Chi Minh City. It is well-grounded and lawful. This reasoning is also a basis to turn down the request of lawyers for the return of the case file for further investigation.

However, during the investigation, prosecution and trial, the defendant expressed cooperative attitude and showed his repentance and she committed the crime for the first time; besides, she has good record and as a foreigner she has limited knowledge of Vietnam’s law, therefore the Trial Panel grants the defendant a commutation of sentence.

[4] According to the nature and severity of the offense, criminal record, aggravating and extenuating circumstances as stated above, the Trial Panel deems it necessary to isolate the defendant from the society for a long time for education, deterrence and general prevention.

[5] With regard to Tran Thi Binh M: The investigation determines that Minh was only the person who went together with G who is not able to speak Vietnamese to interpret for her. Minh only knew that G would receive a parcel on behalf of a foreign friend who left Vietnam. Tran Thi Minh did not know that parcel contains drugs, so there is no justifiable grounds for taking actions against her.

Regarding proposal: District B Post Office affiliated to Ho Chi Minh City needs to withdraw lessons and comply with laws and regulations and relevant procedures and rules of Vietnam Post Corporation on delivery of international parcels in case of authorization to receive parcels.

 [6] With regard to handling of material evidence seized in the case:

- Regarding the sealed package numbered 348/18/PC47 with the seal of Binh Trung Dong Ward Police, District 2 and signature of the assessor Vo Anh Tuan, investigator Dinh Xuan Phung, containing remaining drugs after assessment, 01 nylon box, 01 set of interlocking building blocks, Javan Haasteren type which are material evidence of the case, not worth using, subject to destruction.

- Regarding 01 mobile phone, Iphone, A16688 model which had been used by the defendant to communicate for the illegal transport of drugs. Since it was the instrument that the defendant has used in commission of the crime, it must be confiscated and transferred to state budget.

- Regarding 01 Macbook laptop, it is an asset of the defendant, not related to the commission of the crime, which should have been returned to the defendant, but have been held assure the verdict enforcement.

- Regarding 01 motorbike with the license plate 17B4-295.18 in the name of Mr. Nguyen Van D, Mr. D sold Mr. Nguyen Van C for VND 10,000,000. At the investigation body, Mr. Cuong admitted that he sold this motorbike and had used it until February 2017 before selling it to a foreigner named Lukas with unknown identity for VND 10,000,000. As this motorbike’s owner is still unidentifiable, it is necessary to keep placing a legal notice in the newspaper to find the legal owner. After 06 months, if nobody comes to claim the motorbike, it shall be confiscated and transferred to the state budget.

The defendant has to pay the court fee as prescribed in Article 135, 136 of the Criminal Procedure Code 2015 and Resolution 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the Standing Committee of the National Assembly.

Pursuant to documents and evidence mentioned above;

HEREBY DECIDES

Pursuant to Point b Clause 4, Clause 5 Article 250, Point s Clause 1, Clause 2 Article 51, Article 54 of the Criminal Code 2015, amended in 2007,

The defendant Nikolaenko G is guilty of: “Illegal transport of drugs”.

Sentence the defendant Nikolaenko G to 18 (eighteen) years in prison. The prison term commences from January 17, 2018.

Impose the defendant Nikolaenko G an additional fine of VND 10,000,000 (ten million dong). Pursuant to Article 47, Article 48 of the Criminal Code 2015, amended in 2017; Article 106 of the Criminal Procedure Code 2015 in Viet Nam,

Confiscation for destruction: 01 sealed package numbered 348/18/PC47 with the seal of Binh Trung Dong Ward Police, District 2 and signature of the assessor Vo Anh Tuan, investigator Dinh Xuan Phung, containing remaining drugs after assessment, 01 nylon box, 01 set of interlocking building blocks, Javan Haasteren type.

Confiscation and transfer to the state budget: 01 mobile phone, Iphone, A1688 model, used.

Return to the defendant Nikolaenko G: 01 Macbook laptop, used, but still be held to assure the verdict enforcement.

A legal notice is put in Sai Gon Giai Phong newspaper to find and return the legal owner 01 two-wheeled motorbike, red color; make: not given; type: 02 wheels; kind: ESPERO; license plate: 17B4-295.18; frame number: RPEXCE9PEGA012847; engine number: VDEJQ152FMJ012847.

After 06 months from the date on which the legal notice is placed in the newspaper, if nobody claims the motorbike, the motorbike is confiscated and transferred to state budget.

(According to the document of exhibit delivery and receipt No. 28/19 dated 16/10/2018 of the Civil Judgment Execution Department of Ho Chi Minh City).

Compelling the defendant to pay VND 200,000 (two hundred thousand dong) of first instance criminal court fee.

The defendants, persons with related rights and obligations shall have the right to appeal within 15 days from November 23, 2018.