Judgment No. 612/2019/HS-PT on smuggling

SUPERIOR PEOPLE’S COURT OF HO CHI MINH CITY

JUDGMENT NO. 612/2019/HS-PT DATED OCTOBER 16, 2019 ON SMUGGLING

On October 16, 2019 at the Superior People’s Court of Ho Chi Minh City, the accepted criminal case No. 591/2018/TLPT-HS dated October 23, 2018 was brought to appellate trial against defendant Nguyen Quang V and other defendants due to their appeal against the First instance criminal judgment No. 299/2018/HSST dated September 10, 2018 of People's Court of Ho Chi Minh City.

- Appellants:

1. Nguyen Quang V; born on 1982 in Lam Dong Province; residence: B. Road, T Ward, 7 District, Ho Chi Minh City; occupation: None; education level: 12/12; ethnic group: Kinh; gender: Male; religion: None; nationality: Vietnam; son to Mr. Nguyen Duc D and Mrs. Phan Thi Bach M; wife and 1 child born on 2009; criminal record: None; Detained from January 25, 2014 to December 21, 2016 at which point the defendant is bailed; (present).

2. Tran Thai Ng; born on 1982 in Lam Dong Province; residence: M. Road, Ward 6, D City, Lam Dong Province; occupation: None; education level: 12/12; ethnic group: Kinh; gender: Male; religion: None; nationality: Vietnam; son to Mr. Tran M (deceased) and Mrs. Thai Thi M; wife and 2 children born on 2011 and 2013; criminal record: None; Detained from January 25, 2014 to December 21, 2016 at which point the defendant is bailed; (present).

Defender for Nguyen Quang V and Tran Thai Ng: Lawyer Nguyen Tan Th – Bar Association of Ho Chi Minh City. (present)

3. Nguyen Giang L; born on 1975, in Nghe An Province; permanent residence: Road 52, Neighborhood 8, H Ward, T1 District, Ho Chi Minh City; temporary residence: H1 apartm3nt, T2 Ward, District 7, Ho Chi Minh City; occupation: Active police officer; education level: 12/12; ethnic group: Kinh; gender: Male; religion: None; nationality: Vietnam; Communist Party: Members of the Communist Party of Vietnam (suspended from Communist Party activities); son to Mr. Nguyen Huu H and Mrs. Vo Thi Ch; wife and 2 children, born on 2005 and 2013; criminal records: None; Suspended on March 11, 2014; (present).

Defender for Nguyen Giang L:

+ Lawyer Nguyen Tien Ph – Bar Association of Ho Chi Minh City.  (trial in absentia)

+ Lawyer Nguyen Van Q – Bar Association of Hanoi City. (trial in absentia)

- Defendants who did not appeal or withdrew appeal:

1. Tran Phuoc Th; born in 1967 in Ho Chi Minh City; residence: H3 Road, Ward 6, B District, Ho Chi Minh City; occupation: None; education level: 9/12; ethnic group: Kinh; gender: Male; religion: None; nationality: Vietnam; son to Mr. Tran Ph (deceased) and Mrs. Nhan Thi S; wife and 2 children born on 1990 and 1992; criminal record: None; Suspended on January 25, 2014; (present).

2. Bui Khac H, born in 1975, in Thanh Hoa Province; residence: H4, C apartment Road, Ward 11, District 6, Ho Chi Minh City; occupation: Active police officer; education level: 12/12; ethnic group: Kinh; gender: Male; religion: None; nationality: Vietnam; Communist Party: Members of the Communist Party of Vietnam (suspended from Communist Party activities); son to Mr. Bui Khac Ch and Mrs. Le Thi L; wife, divorced and 2 children, born on 2009 and 2014; criminal records: None; Suspended on October 24, 2017; (trial of absentia).

- Individuals with related rights and obligations and witnesses related to the appeal:

1/. Mr. Nguyen Hong A, born in 1946 (present)

Address: C1 apartment, V, B Road, C2 Ward, District 1, Ho Chi Minh City.

2/. Mr. Ho Sy Tuy D, born in 1974 (present)

Address: Ng Road, Ward 2, District 3, Ho Chi Minh City.

3/. Mr. Doan Phuoc A1, born in 1942. (present)

Address: Ng1 Road, Ng2 Ward, District 1, Ho Chi Minh City.

4/. Mr. Duong Van Th, born in 1950. (trial in absentia)

Address: D Block of Y apartment, D City, Lam Dong Province.

5/. Mr. Mai Dinh T, born in 1964 (present)

Address: C4 Road, Ward 11, District 10, Ho Chi Minh City.

6/. Mr. Lu Tran X, born in 1973. (present)

Address: T4 Road, Ward 13, District 11, Ho Chi Minh City.

7/. Mr. Ho Van H, born in 1946. (trial in absentia)

Address: Tr Road, Ward 12, B District, Ho Chi Minh City.

8/. Mr. Nguyen Tran Ch, born in 1970. (trial in absentia)

Address: Q Road, Ward 10, G District, Ho Chi Minh City.

9/. Mr. Bui Tien D, born in 1972 (trial in absentia)

Address: D1 Road, Ward 14, Ph District, Ho Chi Minh City.

10/. Mr. Tran T1, born in 1940 (trial in absentia)

Address: M1, B2 Road, B3 District, Ho Chi Minh City.

11/. Mr. Vu Ngoc Ch1, born in 1961. (trial in absentia)

Address: L Road, Ward 11, B District, Ho Chi Minh City.

12/. Mr. Duong Van Ph, born in 1954. (present)

Address: 85 Road, T5 Ward, District 7, Ho Chi Minh City.

13/. Mr. Lam Van Q, born in 1956. (trial in absentia)

Address: L1 Road, Ward 12, District 10, Ho Chi Minh City.

14/. Mr. Ho Minh A2, born in 1957. (present)

Address: Provincial Road 10, Neighborhood 16, B6 Ward, B3 District, Ho Chi Minh City.

15/. Ms. Nguyen Thi Kim L1, born 1952. (trial in absentia)

Address: C4 Road, Ward 4, District 8, Ho Chi Minh City.

16/. Mr. Pham Duc T3, born in 1962. (present)

Address: Tr1 Road, Ward 14, District 3, Ho Chi Minh City.

17/. Mr. Phan Ngoc Ch2, born in 1950. (present)

Address: T6 Road, Ward 3, District 4, Ho Chi Minh City.

18/. Mr. Nguyen Van D1, born in 1942. (present)

Address: V Road, Ward 4, District 3, Ho Chi Minh City.

19/. Ms. Pham Thi Bich V, born in 1966. (present)

Address: B7 Road, Ward 9, District 4, Ho Chi Minh City.

20/. Mr. Huynh Thanh U, born in 1963. (trial in absentia)

Address: B8 Road, Ward 5, District 5, Ho Chi Minh City.

21/. Mr. Dang Ngoc Th2 (trial in absentia)

Address: Tr2 Road, T2 Ward, District 7, Ho Chi Minh City.

22/. Ms. Ho Thi Thu Tr, born in 1973. (trial in absentia)

Address: Ng3 Road, Ward 3, District 10, Ho Chi Minh City.

23/. Mr. Nguyen Thanh T4, born 1940. (trial in absentia)

Address: T8 Road, Th Ward, District 12, Ho Chi Minh City.

24/. Mr. Le Duy C, born in 1931 (trial in absentia)

Address: X Road, Ward 21, B District, Ho Chi Minh City.

25/. Mr. Tran H1, born in 1955 (trial in absentia)

Address: Ng3 Road, Hamlet 6, T9 Commune, C4 District, Ho Chi Minh City.

26/. Mr. Pham Anh T4, born in 1967 (trial in absentia)

Address: Road No. 8, Ward 16, G District, Ho Chi Minh City.

27/. Mr. Pham Van H2, born in 1953 (trial in absentia)

Address: B7 Road, Ward 14, T10 District, Ho Chi Minh City.

28/. Mr. Nguyen Tuong L2, born 1956. (trial in absentia)

Address: D Building, C7 Road, B District, Ho Chi Minh City.

29/. Ms. Phung Thi Bich D1, born in 1957. (present)

Address: D Road, L4 Ward, T1 District, Ho Chi Minh City.

30/. Mr. Vo Chi D2, born in 1956. (present)

Address: 20 Road, Neighborhood 3, Th1 Ward, District 2, Ho Chi Minh City.

31/. Mr. Truong Ch3, born in 1963. (present)

Address: D1 Road, Ward 14, Ph District, Ho Chi Minh City.

32/. Mr. Le Thanh T5, born in 1968 (trial in absentia)

Address: T11 Road, T12 Ward, T13 District, Ho Chi Minh City.

33/. Mr. Hua Kim H3, born in 1968. (present)

Address: H3 Road, Ward 6, District 6, Ho Chi Minh City.

34/. Ms. Tra Hoa Ph, born in 1977. (trial in absentia)

Address: B8 Road, Ward 11, District 8, Ho Chi Minh City.

35/. Mr. Do Duc T6, born in 1961 (trial in absentia)

Address: T14 Road, Ward 13, T10 District, Ho Chi Minh City.

36/. Mr. Truong Thi H4, born in 1951. (present)

Address: X Road, Ward 17, B District, Ho Chi Minh City.

37/. Customs Departments of Ho Chi Minh City. (trial in absentia)

THE CASE

Depending on the c999se file 999nd development 999t the court, the c999se sh999ll be summ999rized 999s follows:

On June 9, 2009, Ministry of Finance promulgated Circular No. 118/2009/TT-BTC in Viet Nam providing guidelines for importing currently used automobiles as personal belongings of overseas Vietnamese who have completed permanent residence registration in Vietnam. Pursuant to Clause 1 Article 3 of this Circular, “an overseas Vietnamese permissible for repatriation may import an automobile that he/she is currently using”. On December 6, 2010, Ministry of Finance promulgated Circular No. 194/2010/TT-BTC in Viet Nam on “Guidelines for customs procedures; customs examination and supervision; import tariff, export tariff and tax administration for import and export goods”, pursuant to Point c Clause 2 Article 101, assets that are personal belongings of overseas Vietnamese families and individuals permissible for returning to Vietnam for residence or assets that are permissible to be brought abroad when travelling abroad; assets that are personal belongings of foreigners brought into Vietnam when permissible for residence in Vietnam or brought out of Vietnam when permissible for residence overseas.

- With respect to automobiles and motorcycles currently in use of families and individuals permissible for residing in Vietnam, only one vehicle of each type per family is exempted from import tariff.

- Determining assets as personal belongings shall comply with Clause 5 Article 5 of Law on Import and Export Tariffs in Viet Nam, Circular No. 118/2009/TT-BTC dated June 9, 2009 of Ministry of Finance providing guidelines for importing automobiles currently in use as personal belongings of overseas Vietnamese who have completed permanent residence registration procedures in Vietnam”.

Thus, Nguyen Quang V, Tran Phuoc Th and Tran Thai Ng exploited provisions of the Circular No. 118/2009/TT-BTC dated June 9, 2009 to “Smuggle” automobiles, motorcycles, colluded with Nguyen Giang L (active officer of PA72 Department-Ho Chi Minh City Police Department) to acquired entitlement to import automobiles and motorcycles as repatriation overseas Vietnamese and requested officials of Immigration Department - Ministry of Public Security to provide immigration seals fictitiously in passports of the overseas Vietnamese to regularize application for importing automobiles and motorcycles. Then collected personal information on passports issued by the United States or Vietnamese consular posts in the United States of the overseas Vietnamese to provide for H Pham, C Ngo, Doan H, J, etc. who are overseas Vietnamese living in the United States who directly purchased vehicles and paid for the vehicles in the United States, hire and paid for shipping lines to transport automobiles from the United States to Vietnam for consumption.

The investigation reve33led:

From January, 2011 to December, 2012, Nguyen Quang V and accomplices had directly adopted procedures for importing automobiles and motorcycles for 64 repatriating overseas Vietnamese; 54 of which where they were hired to import was against the law, to be specific:

Nguyen Giang L directly hired and introduced Nguyen Quang V 36 overseas Vietnamese, including: Nguyen Hong A, Ho Sy Tuy D, Doan Phuoc A1, Duong Van Th, Mai Dinh T, Lu Tran X, Luu To H16, Ho Van H, Nguyen Tran Ch, Bui Tien D, Tran T1, Vu Ngoc Ch1, Duong Van Ph, Lam Van Q, Ho Minh T2, Nguyen Thi Kim L1, Pham Duc T3, Phan Ngoc Ch2, Nguyen Van D1, Pham Thi Bich V, Huynh Thanh U, Dang Ngoc Th2, Ho Thị Thu Tr, Nguyen Thanh T4, Le Duy C, Tran H1, Pham Anh T4, Pham Van H2, Ninh Phuc L3, Phung Thị Bich D1, Vo Chi D2, Truong Ch3, Le Thanh T5, Hua Kim H3, Tra Hoa Ph, Do Duc T6. Nguyen Quang V paid for L USD 10,000/overseas Vietnamese for a total of USD 360,000.

Tran Phuoc Th directly hired 17 overseas Vietnamese, including: Pham Ngoc Th3, Tran Duc H5, Nguyen Hong H6, Le Thi Tuong V1, Truong Thi H4, Diep Cam D3, Hoang Van C1, Nguyen Van Ph1, Cao Duy H7, Nguyen Tuong L2, Do Thi H8, Vu Viet Th4, Pham Trong Tr1, Vang Thi H9, Nguyen Tan Anh V2, Dang Anh T7, Vo Van H10. Automobile salon owners and V paid for Th USD 10,000/overseas Vietnamese for a total of USD 170,000.

Nguyen Quang V directly hired overseas Vietnamese H11 and paid them USD 13,000.

Thus, for a total of 54 aforementioned overseas Vietnamese, V and Th admitted the sum USD 108,000 (equivalent to VND 2,160,000,000) paid by individuals importing vehicles illegally into Vietnam, the sum mentioned above including service fees from which fees for container storage, storage, container displacement, port affairs, delivery order receipt, delivery order extension, hiring transportation, inspection, container hygiene, seal purchase, seal removal, etc. which were approximately VND 24,000,000/vehicle were deducted was left with VND 15,000,000 to VND 18,000,000/vehicle. V, Th and Ng split VND 5,000,000/person/vehicle, the total service fee for 54 vehicles was VND 810,000,000 which was split among V, Th and Ng for VND 270,000,000 each.

Apart from the aforementioned sum of money, 17 overseas Vietnamese were hired by Th and 1 was hired by V. After paying for the hired overseas Vietnamese, Th, V and Ng split the remaining money among themselves in which Th and V received USD 14,300 (equivalent to VND 286,000,000)/each and Ng received USD 10,400 (equivalent to VND 208,000,000). Thus, the total sum that Tran Phuoc Th and Nguyen Quang V received from hiring overseas Vietnamese and providing services for 54 overseas Vietnamese was VND 554,000,000/person and Tran Thai Ng received VND 478,000,000.

Provision of fictitious immigration stamps in passports of the overseas Vietnamese to legalize application for illegal import of automobiles and motorcycles was performed as follow: Pursuant to Point 2, Clause 1 Article 4 of Circular No. 118/2009/TT-BTC dated June 9, 2009, application for permission to import automobiles currently in use must include “Repatriating passport bearing entry stamps of immigration management agencies at border checkpoints”.

Thus, the overseas Vietnamese were hired directly by Nguyen Giang L, V requested L that “immigration stamps to show immigration on passports of the overseas Vietnamese are required to apply for automobile import permit in customs and the illegal stamping in passports of the overseas Vietnamese is to legalize automobile purchase, payment for automobile purchase, automobile registration in the United States, hiring and payment for shipping line rental to transport to Vietnam”. For that reason, L asked Bui Khac H and other officers to illegally issue immigration stamps in passports of following overseas Vietnamese: Ho Van H, Lu Tran X, Duong Van Th, Lam Van Q, Nguyen Hong A, Ho Sy Tuy D, Phung Thi Bich D1, Le Thanh T5, Vo Chi D2, Hua Kim H3, Pham Van H2, Pham Anh T4, Le Duy C, Nguyen Van D1, Phan Ngoc Ch2, Ninh Phuc D4, Ho Thi Thu Tr, Nguyen Tran Ch, Bui Tien D, etc. (specified under attached Annex), purchased plane ticket and a Singapore tour for Nguyen Thi Kim L1; plane ticket and a Thailand tour for Pham Thi Bich V in order to issue immigration stamps on master registers of passports of the overseas Vietnamese to legalize automobile import application as repatriation overseas Vietnamese.

Regarding the overseas Vietnamese hired by Th, Th directly kept master registers of passports of 6 overseas Vietnamese which were handed over to Nguyen The H12 who was working in Immigration Management Department-Ho Chi Minh City Police Authority in order to be issued with immigration stamps illegally.  However, Hai has admitted so far that Th only issued stamps illegally in passports of Pham Ngoc Th3, Nguyen Hong H6 and Tran Duc H5, etc., purchased a plane ticket and a Thailand tour for the overseas Vietnamese Hoang Van C1 in order to issue immigration stamps on master registers of passports of the overseas Vietnamese to legalize automobile import application as repatriation overseas Vietnamese.

In addition, despite both V and Th admitted issuing immigration stamps illegally in passports of other overseas Vietnamese, these overseas Vietnamese have not been verified and recorded for testimony because some airlines are based overseas and the overseas Vietnamese already exited the country.

Investigating police department-Ho Chi Minh City Police Authority requested Department of Criminal Techniques-Ho Ch Minh City Police Authority to inspect handwriting and signature of Nguyen Giang L, Tran Phuoc Th and Bui Khac H on passports of the overseas Vietnamese, written agreements on transfer of automobile and motorcycle purchase entitlement as repatriation, deposit order for Vietravel Company and other documents confiscated by the investigating police department. According to inspection result No. 1275/KLGD-TT dated November 7, 2017 and inspection result No. 296/KLGD-TT dated February 2, 2015:

1. Regarding Nguyen Giang L: page No. 16 of passport No. 443921033 issued by the United States for Mr. Duong Van Th is written by Nguyen Giang L.

- Handwriting on written agreement on transfer of automobile and motorcycle purchase entitlement as repatriation consisting of personal information of Truong Ch3 as Party A, the transferor, Nguyen Quang V as Party B with the transfer fee of USD 2,000 provided by Mr. Truong Ch3 on January 19, 2014 was written by Nguyen Giang L.

- Handwriting of “ASXH No. 586528323” on 2 passport photos and driving license issued by the United States for Nguyen Van D1 provided by Nguyen Quang V for the investigating police department according to objects and documents detention record dated June 9, 2017 was written by Nguyen Giang L.

- Handwriting and signatures on inspected documents that are plane tickets and Thailand tour receipts for Nguyen Thi Kim L1, Le Thi Thu H13 (wife of L), Nguyen Thi C and Ly Thi H14 (mother and relative of L), No. OB01149/1110 dated November 25, 2010 and receipt No. OB00062/1210 dated December 2, 2010 issued by Vietravel Company were written by Nguyen Giang L.

2. Regarding Tran Phuoc Th:

- Signature on inspected document that is written agreement dated September 10, 2012 provided by Ms. Do Thi H8 for the investigating police department according to object and document detention record dated July 3, 2017 was written by Tran Phuoc Th.

- Handwriting on 2 master registers of Affidavit dated March 13, 2012 made by Cao Duy H7 provided by Ho Chi Minh City Customs Departments was written by Tran Phuoc Th.

- Handwriting on 1 master register of Affidavit dated May 10, 2012 made by H Pham and Hoang Van C1 provided by Ho Chi Minh City Customs Departments was written by Tran Phuoc Th.

- Handwriting and signatures on inspected document that is receipt No. OB00005/0412 dated December 2, 2010 provided by Vietravel Company were written by Tran Phuoc Th.

3. Regarding Bui Khac H:

- Handwriting of “13/07/2012” under “permitted for stay until” on page No. 18 of passport No. 444867475 issued by the United States for Mr. Lu Tran X (Lu Theodore Xuong-Vander) dated July 28, 2008 was written by Bui Khac H.

- Handwriting of “26/12/2011” under “permitted for stay until” on page No. 19 of passport No. 213394414 issued by the United States for Mr. Nguyen D (Nguyen Devan) dated May 9, 2005 was written by Bui Khac H.

- Handwriting of “21/12/2011” under “permitted for stay until” on page X of passport No. 712060315 issued by the United States for Mr. Hua Kim H3 dated July 10, 2006 was written by Bui Khac H.

Page No. 10 of passport No. 477079010 issued by the United States for Mr. Phan Ngoc Ch2 dated February 16, 2011 was written by Bui Khac H.

In addition, the investigating authority requested to inspect handwriting and signatures of Duong Van D - employee of T automobile salon enterprises on excise tax deposit orders of 16 overseas Vietnamese related to Nguyen T; Vehicle registration of Mai Dinh T, handwriting and signatures of Ngo Thi H15 on vehicle charge receipt sent to Vu Ngoc B by C Ngo. The result was only able to identify that the handwriting of full name of Luu To H16, Truong Thi H4, Lu Tran X and Mai Dinh T on excise tax deposit orders, handwriting of contents and full name of Mai Dinh T on vehicle registration of T were written by D and handwriting, signature of Ngo Thi H15 on vehicle charge receipt sent to Vu Ngoc B by C Ngo was written by H15.

The investigating department of Ho Chi Minh City Police Authority solicited Ho Chi Minh City Asset evaluation council in criminal proceeding and requested E Assessment and Appraisal joint-stock company to evaluate the automobiles and motorcycles illegally imported by the 54 overseas Vietnamese. On September 25, 2017, E Assessment and Appraisal joint-stock company issued certificate No. 17592/CT-E to set the price of 54 automobiles and 12 motorcycles to be VND 356,249,999,995 which was agreed upon by Ho Chi Minh City Asset evaluation council in criminal proceeding.

The investigating authority solicited General Department of Customs - Ministry of Finance to appraise the tax that should have been paid for the automobiles and motorcycles illegally imported by 54 overseas Vietnamese. According to the result, the total amount of import tariff, excise tax and VAT that should have been paid of 54 automobiles and 12 motorcycles is VND 227,063,579,774, in which total excise tax that has been paid is VND 64,885,300,836 and total amount that has not been paid is VND 162,178,278,938.

After working with Customs Department of Ho Chi Minh City to verify and collect applications for vehicle import permit and vehicle import declaration of 54 overseas Vietnamese, the imported automobiles included: Rolls Royce, Land Rover, Bentley, Lexus, Audi, BMW, Porsche, Toyota, Jaguar and Honda. In which, Nguyen Quang V is identified to be authorized to apply for permit and adopt procedures for importing vehicles of 17 overseas Vietnamese; Tran Thai Ng was authorized to apply for permit and adopt procedures for importing vehicles of 18 overseas Vietnamese; Tran Phuoc Th was authorized to apply for permit and adopt procedures for importing vehicles of 1 overseas Vietnamese; Duong Quoc H17 applied for permit on behalf of 1 overseas Vietnamese; other overseas Vietnamese directly applied and adopted procedures for importing vehicles.

Vietravel Company revealed that Nguyen Giang L placed travel tickets for the overseas Vietnamese, to be specific: On November 25, 2010, Nguyen Giang L directly signed and wrote full name to submit deposit of VND 10,000,000 to register a trip to Singapore for Nguyen Thi Kim L1 (hired by L) together with L’s wife and mother-in-law and on December 2, 2010, L signed and wrote full name to finish the remaining payment for Vietravel Company.

Working with the Immigration Department of Ministry of Public Security regarding date and time of immigration, flight code, air routes and immigration seals of 54 overseas Vietnamese (attached by schedules provided by Immigration Department of Ministry of Public Security), it is identified that H Pham made their last exit on May 11, 2014; Nguyen Van S, exited from February 2, 2014; C Ngo Hau, exited from February 26, 2014; Nguyen Thi Be Ph, exited from April 8, 2013

Verification with the Southern Airport Authority revealed that: Ho Van H, Lu Tran X, Pham Ngoc Th3, Lam Van Q, Nguyen Hong A, Ho Sy Tuy D, Nguyen Tran Ch, Duong Van Ph, Bui Tien D (hired by Nguyen Giang L) and Pham Trong Tr1, Nguyen Tan Anh V2, Tran Duc H5 (hired by Th) did not make exit and entry on dates specified on the passports provided by the Immigration Management Department. Regarding other overseas Vietnamese, Southern Airport Authority replied “Southern Airport Authority may provide the passenger list of each scheduled flight with specific flight number and time within the flight data storage period as per the law which is 5 years.  However, the Southern Airport Authority is not entitled to implement and request for verification at Immigration Department - Ministry of Public Security”.

Verification with Vietnam Interpol Office in order to determine whether the overseas Vietnamese bought the tickets and took the flights as officials of Immigration Department - Ministry of Public Security stamped and inputted flight data or not revealed that: Ho Van H and Lu Tran X (hired by Nguyen Giang L) did not enter the United States in 2012. Regarding remaining overseas Vietnamese, the investigating authority has conducting verification to no avail.

- Verification of air travel ticket purchase and travel on flights of Vietnam Airlines, United Airlines, Singapore Russian Airlines, Korean Air, etc. revealed that: Ho Van H, Duong Van Th, Duong Van Ph, Bui Tien D, Nguyen Van D1, Nguyen Tran Ch, Phung Thi Bich D1, Le Duy C, Ninh Phuc D4, Pham Anh T4 (Tieu Nhat A), Lam Van Q, etc. hired by Nguyen Giang L while Tran Duc H5, Pham Trong Tr1, Cao Duy H7, Nguyen Tan Anh Vu hired by Th did not purchase air tickets or take the flights according to data inputted and stamps issued by officials of Immigration Department of Ministry of Public Security. Regarding remaining airlines, the investigating authority has submitted verification request numerous times without response because the airlines are based abroad, ticket agencies in Vietnam regularly change address and there are few flights arriving and departing from Tan Son Nhat International Airport.

Verification at A Delivery Limited Liability Company revealed that: A Company is an agency of S, INC. Among 54 cases of illegal import, A Company has transported a total of 22 vehicles from the United States to Vietnam, in which an overseas Vietnamese named H Pham hired and paid for transportation of 15 vehicles while a person named Sy hired and paid for 7 vehicles. Since the payment for transportation fee was made in the United States, A Company did not know specific amount except the payment was made by H Pham and Sy directly. When the vehicles are transported to Vietnam, according to direction of S, INC via phones, Tran Thai Ng and Ng are ordered to sign to receive 20 delivery orders; Duong Quoc H 17 received 2 delivery orders. In addition, delivery orders of the case in which Nguyen Van D claimed to purchase and import from the United States for use purpose which is hired and paid for transportation charges by H Pham and the case in which Nguyen Thi Xian Thu claimed to implement import service for Nguyen T which is hired and paid for transportation charges by Nguyen Van S are signed by Ng and since Thy has exited Vietnam, Thy cannot be reached at the moment.

Furthermore, the investigating police authority conducted verification at P Delivery Limited Liability Company, P1 Delivery Limited Liability Company, A1 Delivery Limited Liability Company, K Company, N Company, S1 Viet Nam Company, K1 Company and M Company to determine by which individuals and organizations that containers were hired, container rental was paid, shipping lines were hired to transport automobiles and motorcycles for the United States to Vietnam. However, these delivery companies are only able to identify Nguyen Minh Q, Tran Thai Ng, Nguyen Quang V and some other overseas Vietnamese as signees of delivery orders but are unable to identify individuals who hired transportation, individuals who hire containers and paid container rental.

Verification at Vietnam Register revealed individuals directly submitted application for quality inspection of 54 imported automobiles, to be specific: Nguyen Quang V submitted applications and adopted registration procedures for 23 automobiles, Tran Thai Ng registered and adopted registration procedures for 28 vehicles, Tran Phuoc Th registered and adopted registration procedures for 2 vehicles and Duong Quoc H17 registered and adopted registration for 1 vehicle.

Verification at Traffic Police Division - Ministry of Public Security and Traffic Police Department of Ho Chi Minh City Police Authority has collected 54 automobile registration applications for vehicles imported by the 54 overseas Vietnamese whose current owners are individuals and organizations.

Verification regarding excise tax payers for 54 automobiles at State Treasury in District 2, District 1 and District 4 revealed that: V submitted tax for 8 vehicles, Ng submitted tax for 5 vehicles, Banh Vi T submitted tax for 3 vehicles, Duong Quoc Th submitted tax for 1 vehicles, Trinh Thi Mai Th submitted tax for 1 vehicles and the overseas Vietnamese submitted tax for remaining vehicles.

Verification at No. 2 Notary Public Office, Gia Dinh Private Notary's Office and Tan Tao Private Notary's Office has collected written agreements on authorizing for applying for permit and adopting procedures for automobile import and purchase, to be specific, among 54 automobiles mentioned above, V is authorized to adopt import procedures on behalf of 23 overseas Vietnamese, sell 4 vehicles to S, sell 2 vehicles to H and 1 vehicle to C Ngo while receive money for selling 1 vehicle to S;   Ng is authorized to adopt procedures for importing automobiles on behalf of 27 overseas Vietnamese; Tran Phuoc Th adopts procedures for importing vehicles for 2 overseas Vietnamese; Duong Quoc H17 is authorized to adopt procedures for importing automobiles on behalf of 1 overseas Vietnamese.

Verification at Police Authority of T Ward, District 1 in order to find personal information of a person named Phuong (who received money for selling vehicles given to Nguyen T by Nguyen Van S) revealed that: 3 Ly Van Ph, T Ward, District 1 is where Ms. Nguyen Thi M lives who lent her house to Dat Viet Newspaper from March 6, 2013 until present, there’s nobody named Thuong lives, stays or works at this address.

Verification at S Building and Police Authority of Ward 22, B District to look for personal information of H Pham revealed that: H Pham resided at flat 304, R, S Building but ceased to stay there from October, 2012 to May, 2013.

Verification at Police Authority of Ward 15, District 10 revealed that Hoang Minh Tr and Trinh To H deceased.

At investigating authority, Nguyen Quang V, Tran Phuoc Th and Tran Thai Ng admitted their violation which is agreeing to purchase automobile and motorcycle import entitlement as repatriation overseas Vietnamese of 54 overseas Vietnamese then sell to automobile salon owners and overseas Vietnamese living in the United States. While requesting officials of Border Security Department - Ministry of Public Security to issue immigration stamps illegally in passports of overseas Vietnamese to legalize applications for importing automobiles and motorcycles in order to successfully smuggle 54 automobiles and 12 motorcycles whose total value is VND 356,249,999,995, total tax (including import tax, excise tax and VAT) that should have been paid is VND 227,063,579,774, in which total excise tax that should have been paid is VND 64,885,300,836 and total of remaining tax that should have been paid is VND 162,178,278,938. Until now, family of Tran Thai Ng has submitted VND 850,000,000, family of Tran Phuoc Th has submitted VND 556,000,000 and family of Nguyen Quang V has submitted VND 556,000,000.

Bui Khac H admitted: In 2009, Ha arrived at Immigration Department-Ho Chi Minh City Police Authority to extend visa of Mr. M Nguyen, who holds American nationality and is an uncle on H’s wife side. Via Ngo Hong H18 (a retired officer of PA72 Department), H asked L to extend visa of Mr. Michael Minh Nguyen thus H was grateful for L’s assistance. After some time, L asked H to illegally issue immigration stamps on passports of overseas Vietnamese issued by the United States or Vietnam (without remembering specific quantity and names) on the basis provided by L that the aforementioned overseas Vietnamese are old, relatives of L or having special family conditions and certain personal procedures in the United States must be performed namely social security, tax, insurance, etc. In reality, H did not know or meet the overseas Vietnamese whose passports were handed to H by L in order to be issued with stamps illegally. Furthermore, the overseas Vietnamese did not arrive at security section during H’s shifts, H did not examine and compare aircraft boarding passes but relied on personal information on master registers of passports handed over by L to input date, time and code of flights illegally in system of A98 Department - Ministry of Public Security and issued stamps illegally on the passports of the overseas Vietnamese. H admitted that issuing immigration stamps illegally for the overseas Vietnamese at request of Nguyen Giang L is completely against the procedures, regulations and law. H was not aware of the serious consequences of the violations, due to H's trust in L, H did not know that L asked H to issue immigration stamps illegally in order to legalize applications for importing automobiles as repatriation overseas Vietnamese, H received no physical benefits from L and reckoned that H was irresponsible due to failure to following operational procedures. But according to collected documents and evidence, H is identified to issue immigration stamps for 16 overseas Vietnamese illegally at request of L, thereby enabling L and accomplices to successfully smuggle 16 automobiles and 5 motorcycles and causing a loss of VND 55,816,411,470 in payable tax which should have been paid.

Nguyen Giang L, however, does not admit their violations and claims that they do not violate the law (Investigating Police Authority has interrogated L and H, the process of which is recorded in image and sound). However, based on handwriting examination results on written agreements on transferring eligibility of Duong Van Th; handwriting of the permissible duration of stay in the illegal immigration stamps issued by Bui Khac H on passport of Duong Van Th (which is fabricated by L for Th); handwriting and signature on deposit receipt, air ticket receipt and tour payment receipt for Nguyen Thi Kim L1; handwriting of social security number on photocopy of driving license and passport of Nguyen Van D1; and according to statements made by overseas Vietnamese, Nguyen Quang V and Bui Khac H, L is evidently concluded to have hired 36 overseas Vietnamese to import 36 automobiles and 9 motorcycles, issued immigration stamps illegally or purchased plane tickets and tours for overseas Vietnamese in order to legalize applications for illegal import of 36 automobiles and 9 motorcycles for L and accomplices whose total value is VND 232,987,666,664, total tax (including import tax, excise tax and VAT) that should have been paid is VND 148,178,551,860, total excise tax that has been paid is VND 42,112,608,253 and remaining tax that should have been paid is VND 106,065,943,613.

Nguyen Giang L directly hired and introduced Nguyen Quang V 36 overseas Vietnamese, including: Nguyen Hong A, Ho Sy Tuy D, Doan Phuoc A1, Duong Van Th, Mai Dinh T, Lu Tran X, Luu To H16, Ho Van H, Nguyen Tran Ch, Bui Tien D, Tran T1, Vu Ngoc Ch1, Duong Van Ph, Lam Van Q, Ho Minh T2, Nguyen Thi Kim L1, Pham Duc T3, Phan Ngoc Ch2, Nguyen Van D1, Pham Thi Bich V, Huynh Thanh U, Dang Ngoc Th2, Ho Thị Thu Tr, Nguyen Thanh T4, Le Duy C, Tran H1, Pham Anh T4, Pham Van H2, Ninh Phuc L3, Phung Thị Bich D1, Vo Chi D2, Truong Ch3, Le Thanh T5, Hua Kim H3, Tra Hoa Ph, Do Duc T6. Nguyen Quang V paid for L USD 10,000/overseas Vietnamese for a total of USD 360,000.

At investigating police authority, 44 overseas Vietnamese admitted as follow:

- 32 overseas Vietnamese admitted to have been hired by L or applied to import automobiles and motorcycles for L. in which, Nguyen Thi Kim L1, Nguyen Thanh T4, Vo Chi D2, Pham Van H2 and Huynh Thanh U applied to import automobiles for Nguyen Giang L without receiving any payment. Remaining 27 overseas Vietnamese were paid from USD 1,000 to USD 5,000, 21 of which voluntarily returned the money paid by L to rectify the consequences which was VND 875,940,000 and USD 4,300.

Truong Ch3 provided written agreement on transferring eligibility for purchasing automobiles and motorcycles as repatriating, on which L wrote personal information of Truong Ch3 on Part A of the agreement as the transferor, Party B was named Nguyen Quang V as the receiver of automobile and motorcycle purchase eligibility as repatriation of Truong Ch3 and the transferred money of USD 2,000.

Regarding Nguyen Thi Kim L1 and Pham Thi Bich V, both claimed to apply to import automobiles at request of L. During repatriation and automobile import procedures, L1 and V received plane tickets and tours abroad purchased by L.  Lien was accompanied by L’s wife, mother-in-law and wife’s aunt on the trip to Singapore.

Lu Tran X was able to provide confirmation letters issued by Institution of American Education Company Limited and CBRE Company Limited (Vietnam) verifying that from the time of exit until the time of entry, X was working in current entities, no leave was taken.

- 13 overseas Vietnamese admitted having been hired by Th or only applying for import of automobiles and motorcycles for Th. In which, Tran Duc H5, Vu Viet Th4 and Vo Van H10 only applied for import of automobiles on behalf of Tran Phuoc Th without receiving any payment. The remaining 10 overseas Vietnamese were paid from USD 1,000 to USD 9,000 by Th after importing the automobiles. 5 of them voluntarily submit the money paid by Th to rectify the consequences which is VND 379,265,000.

Do Thi H8 provided written agreement on transferring eligibility for purchasing automobiles and motorcycles as repatriation prepared and signed by Tran Phuoc Th with the transferred money of USD 7,000 and Tran Duc H5 was able to provide confirmation letter issued by Vietnam Y Company Limited verifying that from the time of exit until the time of entry, H was working continuously at Y Hospital, no leave was taken. 

- Luu To H16 admitted applying for import of automobiles and motorcycles for Trinh To H (deceased) and having paid VND 60,000,000 by H.

Regarding the automobile salon owners: In addition to statement of Nguyen Quang V regarding Nguyen T who owns T Automobile Salone; statement of Nguyen Quang V and Tran Phuoc Th regarding Tran Quoc H19; statement of Tran Phuoc Th regarding Nguyen Hoang Tr; statement of Nguyen Quang V and Tran Phuoc Th regarding H Pham purchasing information of the overseas Vietnamese to purchase vehicles and illegally import into Vietnam, there is no document, evidence, third party witness, contract or receipt to prove that Nguyen T, Tran Quoc H19, Nguyen Hoang Tr and H Pham are involved in the illegal vehicle purchase in the case.

Regarding officials of Immigration Department of Ministry of Public Security and Immigration Division of Ho Chi Minh Police Authority: Based on collected documents, evidence, statement of relevant individuals and immigration information including time and date of immigration, flight codes and air routes of overseas Vietnamese. The investigating authority reckon that police officers of Border Post of Tan Son Nhat International Airport, Immigration Department, Ministry of Public Security and Immigration Division of Ho Chi Minh City Police Authority, including: Nguyen The H12, Dao Tan Ph, Tran Trong Th, Ngo Quang Ng, Le Thi D, Le Xuan H, Tran Manh H, Nguyen Thi Th, Tran Danh T, Le Van D, Nguyen Van H, Nguyen Hai A, Duong Dinh H, Nguyen Van Q, Huynh Duong Tr, Vo Thanh T, Nguyen Huy Th and Do Huu D who were asked by their peer officers to examine entry and exit once or twice have committed violations separately from Bui Khac H. By trusting their peer officers, they did not pay attention, compare face recognition with photos, did not control other people during their shifts (since procedures and general rules at all border checkpoints permit not directly examining persons making entry or exit via class A or VIP passenger lounge), left their stamps at boarding control posts while waiting for next flights, left their stamps at boarding control posts, headed to the restrooms, had their stamps taken to issue and input data without their knowledge or got asked to stamp in order to extend the visas.

34 overseas Vietnamese were paid from USD 1,000 to USD 9,000 by Nguyen Giang L, Tran Phuoc Th and Trinh To H. 22 of them currently voluntarily submit the money paid by L, Th and H to rectify the consequences which is VND 915,120,000 and USD 4,300.

On December 2, 2014, the Investigating authority issued restraint order against 38 automobiles applied for import by the overseas Vietnamese as stated above. Until present, the Investigating authority has restrained or informed about restraint of 13 vehicles; restraint order cannot be enforced against other 5 vehicles due to unidentified residence of vehicle owners (2 vehicles owned by Huynh Van H and Cao Nguyen H) and 3 vehicles owned by Mai Dinh T, Lam Van Q and Do Duc T6.  Regarding the remaining vehicles, the Investigating authority has authorized investigating authorities of provinces and cities to enforce restraint order, the result of which is currently unavailable.

Regarding the automobile salon owners related to the case namely Nguyen T – Owner of Nguyen T Enterprise, Nguyen Hoang Tr – Owner of H Automobile salon, Tran Quoc H19 – Director of V Automobile Company, Vu Ngoc B - Owner of T1 Automobile salon, Le Quy H – Director of T2 Company, Hoang Minh Tr - Director of H2 Company, Pham Ngoc Ch – Director of H3 Company, Nguyen Phuoc Q – Director of Q Company, Duong Quoc Th, Nguyen Hoang L and Nguyen Van S, the Investigating authority continues to gather evidence for further actions.

Under First instance criminal judgment No. 299/2018/HSST dated September 10, 2018, People’s Court of Ho Chi Minh City hereby decides:

Defendants: Nguyen Quang V, Tran Phuoc Th, Tran Thai Ng and Nguyen Giang L are guilty of "Smuggling".

Defendant Bui Khac H is guilty of “Abusing positions or power while performing official duties”.

1. Pursuant to Point a Clause 4 Article 188; Point s Clause 1, Clause 2 Article 51; Article 38; Article 50; Article 17; Article 58 of the Criminal Code 2015 and amendments thereto in 2017.

Nguyen Quang V is sentenced to 14 years of imprisonment. Term of imprisonment starts from the date on which the defendant complies with the judgment and is offset by detention period from January 25, 2014 to December 21, 2016.

2. Pursuant to Point a Clause 4 Article 188; Point s Clause 1, Clause 2 Article 51; Article 38; Article 50; Article 17; Article 58 of the Criminal Code 2015 and amendments thereto in 2017.

Defendant Tran Phuoc Th is sentenced to 12 years of imprisonment. Term of imprisonment starts from January 25, 2014.

3. Pursuant to Point a Clause 4 Article 188; Point s Clause 1, Clause 2 Article 51; Article 38; Article 50; Article 17; Article 58 of the Criminal Code 2015 and amendments thereto in 2017.

Defendant Tran Thai Ng is sentenced to 8 years of imprisonment. Term of imprisonment starts from the date on which the defendant complies with the judgment and is offset by detention period from January 25, 2014 to December 21, 2016.

4. Pursuant to Point a Clause 4 Article 188; Points s and v Clause 1, Clause 2 Article 51; Article 38; Article 50; Article 17; Article 58 of the Criminal Code 2015 and amendments thereto in 2017.

Nguyen Giang L is sentenced to 14 years of imprisonment. Term of imprisonment starts from March 11, 2014.

5. Pursuant to Clause 3 Article 356; Point s Clause 1, Clause 2 Article 51; Article 38; Article 50 of the Criminal Code 2015 and amendments thereto in 2017.

Defendant Bui Khac H is sentenced to 5 years of imprisonment. Term of imprisonment starts from October 24, 2017.

Pursuant to Article 47 of the Criminal Code; Article 106 of the Criminal Proceeding Code:

Nguyen Quang V is enforced to submit VND 45,776,597,678 to the state budget;

Tran Thai Ng is enforced to submit VND 45,698,597,678 to the state budget;

Tran Phuoc Th is enforced to submit VND 45,776,597,678 to the state budget;

Nguyen Giang L is enforced to submit VND 33,562,067,903 to the state budget.

In addition, the first instance judgment also dictates confiscating relevant individuals to contribute to state budget, disposing assets, court costs and a right to appeal as per the law.

On September 10, 2018, defendants Nguyen Quang V and Tran Thai Ng submitted notices of appeal to not enforce the defendants to fulfill the tax that should have been paid to the government.

On September 12, 2018, defendant Nguyen Giang L submitted a notice of appeal claiming innocence.

On September 13, 2018, defendant Tran Phuoc Th submitted a notice of appeal to request lightening of punishment and to not enforce the defendant to fulfill the tax that should have been paid to the government.  However, on November 7, 2018, defendant Tran Phuoc Th applied to withdraw appeal request.

At appellate court, defendants Nguyen Quang V, Tran Thai Ng and Nguyen Giang L retained their appeal request.

Representative of Supreme People’s Procuracy in Ho Chi Minh City states opinions on the proceeding:

At the appellate court, defendant Tran Phuoc Th wished to retain appeal request. However, after the defendant applying to withdraw the appeal, the appellate trial issued notice on withdrawing appeal. Until now, the defendant continues to request for appeal whose filing time is expired.  Thus the Trial panel is requested to reject appeal request of the defendant. However, the Trial Panel will still consider the case in its entirety.

Regarding the details: Conclusion made by the first instance court that defendants Nguyen Quang V and Tran Thai Ng committed “Smuggling” is well-grounded; and enforcing the defendants to submit the tax that should have been paid in compliance with regulations and law. The Trial panel is requested to reject appeal request of the defendants V and Ng.

Regarding defendant Nguyen Giang L, the defendant directly entered into agreement with the overseas Vietnamese to purchase vehicle import eligibility, issued stamps, examined, purchased travel tickets for overseas Vietnamese then imported the vehicles into Vietnam for consumption. Conclusion of the first instance trial regarding “Smuggling” charge of the defendant and 14 years of imprisonment for the defendant is well-grounded. The Trial panel is requested to reject appeal request of defendant L and retain the first instance judgment.

Defendant Nguyen Giang L stated: The defendant disagrees with indictment of the Procuracy and the first instance judgment. The defendant only purchased vehicle import eligibility but did not smuggle. And that the defendant is innocent. The defendant never met or contacted some persons among the 36 overseas Vietnamese whose vehicle import eligibility was purchased by the defendant as concluded by the first instance trial. Statement of Nguyen Quang V is false, V claimed to have given the defendant money without any proof. Since the imported vehicles are exhibits of the case thus must be confiscated for public fund yet the investigating authority handed over to the buyers for use purpose, thus this is not a case of smuggling. Claim of defendant H regarding assisting defendant L to issue stamps illegally is unfounded.

Defender for defendants Nguyen Quang V and Tran Thai Ng: The defendants agree about the charge concluded by the first instance trial hence the sentence and illegally generated profit; however, enforcing the defendants to submit the tax that should have been paid is unjust. Since the defendants just helped while the culprits are salon owners whom the investigating authority has not verified. Thus enforcing the defendants to submit the tax that should have been paid is unfounded. And request the trial panel to accept appeal request of defendants V and Ng: not enforcing the defendants to submit the tax that should have been paid or exempting the defendants from the tax. The remaining amount of money submitted by Ng to rectify the consequences is requested to be returned to the defendant.

Based on documents and evidence in the case file appraised at the court hearing, proceeding results at the court hearing, opinions of the Procurators and statements made by defendants and defenders thereof.

JUDGMENT OF THE COURT

[1] On November 7, 2018, defendant Tran Phuoc Th applied to withdraw appeal request. The appellate trial has issued Notice on appeal withdrawal regarding defendant Tran Phuoc Th. Decision of the first instance trial related to defendant Tran Phuoc Th is hereby effective.

[2] At the appellate trial, defenders for defendant Nguyen Giang L including lawyers Nguyen Tien Ph and Nguyen Van Q have been legitimately summoned by the Court for the second time and remain absent. Defendant L rejected a defender appointed by the Court and requested trial in absentia of lawyers Nguyen Tien Ph and Nguyen Van Q and that the defendant can defend himself. Pursuant to Clause 3 Article 77 and Clause 1 Article 351 of the Criminal Proceeding Code, the Trial panel proceeds with trial in absentia of defenders of defendant Nguyen Giang L.

[3] Based on documents and evidence in the case file, following conclusion are formed on a well-grounded basis:

From January, 2011 to December, 2012, defendants Nguyen Quang V, Tran Phuoc Th, Tran Thai Ng and Nguyen Giang L abused the policy in which an overseas Vietnamese may import 1 personal automobile currently in use when repatriating, colluded with repatriating overseas Vietnamese to grant these overseas Vietnamese ownership of automobiles and motorcycles while abroad, imported to Vietnam to use in order to not pay import tax and sold the vehicles to generate profits.   In reality, the colluded overseas Vietnamese did not purchase vehicles while abroad but only applied for registration and did not make any entry or exit while the defendants issued immigration stamps illegally on passports to legalize the applications. In which, defendant Nguyen Giang L and Tran Phuoc Th entered into agreement about hiring and introducing the overseas Vietnamese to enable Nguyen Quang V and Tran Thai Ng to adopt procedures for importing vehicles to Vietnam. In total, the defendants had imported 54 automobiles and 12 motorcycles into Vietnam using the method mentioned above with total value of VND 356,249,999,995 resulting in VND 163,178,278,938 of tax that should have been paid.

As a result from the violation above, defendants Nguyen Quang V and Tran Phuoc Th received VND 556,000,000 each while Tran Thai Ng received VND 478,000,000 and Nguyen Giang L received USD 360,000.

Regarding the violation, pursuant to Resolution No. 41/2017/QH14 in Viet Nam dated June 20, 2017 of the National Assembly on implementation of the Criminal Code No. 100/2015/QH13 in Viet Nam, conclusion made by the first instance trial that the defendants Nguyen Quang V, Nguyen Giang L, Tran Thai Ng and Tran Phuoc Th committed “Smuggling” charge according to Clause 4 Article 188 of the Criminal Code 2015 is well-grounded and in compliance with regulations and law.

[4] Regarding appeal request of defendant Nguyen Giang L:

The defendant claimed that he only purchased vehicle import eligibility, thus did not commit the “Smuggling” charge. However, based on statement of defendants Nguyen Quang V, Bui Khac H and the overseas Vietnamese colluded by L, it is well-grounded to conclude that the defendant directly hired 36 overseas Vietnamese to import 36 automobiles and 9 motorcycles to Vietnam. Under Assessment result No. 1275/KLGD-TT dated November 7, 2017 and Assessment result No. 296/KLGD-TT dated February 2, 2015 of the Criminal Techniques Department of Ho Chi Minh Police Authority, defendant is identified to have fictitiously written in passport of Mr. Duong Van Th, written agreement on transferring vehicle purchase eligibility between Mr. Truong Ch3 and defendant Nguyen Quang V, plane ticket and tour receipts for Ms. Nguyen Thi Kim L1, etc. At the first instance trial and under his appeal request, L admitted making transactions with the overseas Vietnamese but not smuggling.  However, the fact that the defendants purchased vehicle import eligibility of the overseas Vietnamese is against the law, which serves importing vehicles into Vietnam without incurring import tax; the vehicles were then sold to generate profits instead of being used by the repatriating overseas Vietnamese.  Thus, acts committed by the defendant contribute towards the “Smuggling” charge as specified Article 188 of Criminal Code 2015 and appeal request of the defendant is unfounded.

[5] Regarding appeal request of defendants Nguyen Quang V, Tran Thai Ng and Nguyen Giang L regarding enforced submission of the tax that should have been paid: Violations of the defendants had resulted in deficits of tax, to be specific, Nguyen Giang L, Nguyen Quang V, Tran Phuoc Th and Tran Thai Ng had smuggled 36 automobiles and some motorcycles causing a total deficit of VND 106,065,943,613 in tax; Nguyen Quang V, Tran Phuoc Th and Tran Thai Ng had smuggled 18 automobiles and some motorcycles causing a total deficit of VND 56,112,335,325 in tax. Thus, conclusion of the first instance trial regarding enforcing defendants Nguyen Quang V, Tran Phuoc Th and Tran Thai Ng to submit VND 45,220,597,678 and Nguyen Giang L to submit VND 26,516,485,903 to state budget to replenish the deficit tax is well-grounded.

[6] Based on points mentioned above, the Trial Panel deems appeal request of the defendants rejected.  The first instance judgment shall be retained.

[7] Due to unaccepted appeal request, the defendants Nguyen Quang V, Tran Thai Ng and Nguyen Giang L shall incur appellate court costs.

Based on the above-mentioned facts and matters,

DECISION

Pursuant to Article 355 and Article 356 of the Criminal Proceeding Code in 2015 in Viet Nam.

Appeal request of defendants Nguyen Quang V, Tran Thai Ng and Nguyen Giang L is rejected. First Instance Judgment No. 299/2018/HS-ST dated September 10, 2018 of the People’s Court of Ho Chi Minh City shall be retained.

Defendants: Nguyen Quang V, Tran Thai Ng and Nguyen Giang L are guilty of "Smuggling".

1. Pursuant to Point a Clause 4 Article 188; Point s Clause 1, Clause 2 Article 51; Article 38; Article 50; Article 17; Article 58 of the Criminal Code 2015 and amendments thereto in 2017 in Viet Nam.

Nguyen Quang V is sentenced to 14 years of imprisonment. Term of imprisonment starts from the date on which the defendant complies with the judgment and is offset by detention period from January 25, 2014 to December 21, 2016.

2. Pursuant to Point a Clause 4 Article 188; Point s Clause 1, Clause 2 Article 51; Article 38; Article 50; Article 17; Article 58 of the Criminal Code 2015 and amendments thereto in 2017.

Defendant Tran Thai Ng is sentenced to 8 years of imprisonment. Term of imprisonment starts from the date on which the defendant complies with the judgment and is offset by detention period from January 25, 2014 to December 21, 2016.

3. Pursuant to Point a Clause 4 Article 188; Points s and v Clause 1, Clause 2 Article 51; Article 38; Article 50; Article 17; Article 58 of the Criminal Code 2015 and amendments thereto in 2017.

Nguyen Giang L is sentenced to 14 years of imprisonment. Term of imprisonment starts from March 11, 2014.

4. Pursuant to Article 47 of the Criminal Code; Article 106 of the Criminal Proceeding Code:

Nguyen Quang V is enforced to submit VND 45,776,597,678 to the state budget;

Tran Thai Ng is enforced to submit VND 45,698,597,678 to the state budget;

Nguyen Giang L is enforced to submit VND 33,562,067,903 to the state budget.

5. Other decisions of the first instance trial that are not filed for appeal or objections shall be legally effective from the expiry date of appeal period.

6. The defendants Nguyen Quang V, Tran Thai Ng and Nguyen Giang L shall incur appellate court costs of VND 200,000 each.

7. The Appellate Judgment is legally effective from the date of sentencing.


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Judgment No. 612/2019/HS-PT on smuggling

Số hiệu:612/2019/HS-PT
Cấp xét xử:Phúc thẩm
Agency issued: Tòa án nhân dân cấp cao
Field:Hình sự
Date issued: 16/10/2019
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