Judgment No. 80/2019/HS-PT dated may 13, 2019 for public disorder

PEOPLE’S COURT OF BINH DUONG PROVINCE

JUDGMENT NO. 80/2019/HS-PT DATED MAY 13, 2019 FOR PUBLIC DISORDER

On May 13, 2019 at People’s Court of Binh Duong Province, the appellate trial for criminal case No. 56/2019/TLPT-HS dated March 5, 2019 was held against defendant Bui Huu N. due to appeal solicitation of defendant Bui Huu N. for the first instance criminal judgment No. 14/2019/HS-ST dated January 22, 2019 of the People’s Court of City M, Binh Duong Province.

- Appealing defendant:

Bui Huu N, born in 1987; in Hau Giang Province; permanent residence: Hamlet 3, Town N, District V, Hau Giang Province; temporary residence: 31/159, Q street, Hamlet 16, Neighborhood 1, Ward C, City M, Binh Duong Province;  Nationality: Vietnam; ethnic group: Kinh; religion: None; gender: Male; education level: 4/12. Occupation: Labor for hire; son of Mr. Bui Minh H, born in 1964 and Mrs. Le Thi T, born in 1969; the defendant is married to Mrs. Do Be L, born in 1987; the defendant has no children; criminal record: None; the defendant confessed on February 3, 2018 and were met with a ban from leaving residence until present, present at court.

In addition, the case also included 6 other defendants who did not appeal and were not appealed, thus are not summoned by the Court.

THE CASE

According to the case files and development at courts, the case can be summarized as follows: Ha Dinh D, Lam Dinh B and Le Van T are friends and often hang out with each other. At around 6 p.m. of December 22, 2017, Ha Dinh D, Lam Dinh B and Le Van T arrived at the Golden Dragon Club Game (GD) of The Mira Hotel at 555B Binh Duong Boulevard, Neighborhood 1, Ward H, City M, Binh Duong Province to play games. Upon arrival, Ha Dinh D, Lam Dinh B and Le Van T entered the GD where they were prohibited from entry by Mr. Do Quang H and Mr. Le Van N who were security guards of The Mira Hotel since the GD only allowed entry of persons with foreign nationality but not persons with Vietnamese nationality. At that moment with approximately 30 - 40 foreigners were enjoying games in the GD, Ha Dinh D, Lam Dinh B, and Le Van T met Ms. Pham Thi Bich V who is the manager and supervisor of the GD to ask for entry permission but were rejected and provided with the explanation that Vietnamese are not allowed in the GD.  Since Ms. Pham Thi Bich V rejected them from entry, Lam Dinh B and Le Van T sat at on the sofa near management and supervision counter while Ha Dinh D argued with Ms. Pham Thi Bich V in anger where he had the idea of disrupting and chasing the foreigners away from the GD and thus called Luu Van V for reinforcement. At that moment, Luu Van V was drinking with Bui Huu N, Nguyen Van D, Nguyen Vu L and Doan Van H in Diner N in Ward H, City M of Binh Duong Province hence he told Bui Huu N, Nguyen Van D, Nguyen Vu L and Doan Van H about Ha Dinh D having trouble at the GD of The Mira Hotel and asked them to assist Ha Dinh D where they all agreed. While Ha Dinh D called Luu Van V, Lam Dinh B called Ngo Thanh D and told him that “find your men and go to the GD of The Mirai Hotel for assistance”. At that moment, Ngo Thanh B was drinking with Nguyen Trung H, Pham Van T and a male named L1 (personal background and record unclear) in Diner S, Ward A, City M, Binh Duong Province thus Ngo Thanh D told the group that “Lam Dinh B and Ha Dinh D are having issues in the GD of The Mira Hotel" and asked them for assistance where Nguyen Trung H, Pham Van T and L1 agreed. At around 6.30 p.m. of the same day, 2 groups consisting of Luu Van V, Bui Huu N, Nguyen Van D, Nguyen Vu L, Doan Van H and Ngo Thanh D, Nguyen Trung H, Pham Van T arrived at the GD to meet with Ha Dinh D, Lam Dinh B and Le Van T. At the premise, upon seeing crowded reinforcement, Ha Dinh D screamed, insulted and attempted to assault supervision, management personnel and security guards if anyone was to interrupt the group of Ha Dinh D. Seeing Ha Dinh D scream, insult and attempt to assault, Luu Van V threw a chair at the game machine at position A18 which caused touch screen of the machine to paralyze but are not damaged.  Immediately after, Ha Dinh D said “Chase all the customers out” and proceeded to do so thus Lam Dinh B, Le Van T, Luu Van V, Bui Huu N, Nguyen Van D and Nguyen Vu L circled around the game machines and chased all the customers that were playing games out of the GD. Then, Le Van T arrived at the electric circuit corner to cut power from the game machines while Doan Van H, Ngo Thanh D, Nguyen Trung H, Pham Van T and L1 circled around the GD area without assisting Ha Dinh D in chasing all the customers away. Seeing the aggressiveness of Ha Dinh D, the customers left the GD area while the security guards, supervision and management staff of the Club Game were hesitant to interrupt the Ha Dinh D’s group. After receiving notice of employees, Ms. Huy Thi Kim C who is the owner of The Mira Hotel reported to Police of Ward H, City M and Investigating - police authority of City M. Once the police arrived, Ha Dinh D, Lam Dinh B, Le Van T and accomplices left the Club Game Golden Dragon. Later, Investigating - police authority of City M extracted surveillance cameras at the GD while confiscated a white flash drive containing video clips of Duan and accomplices committing vandalism at the GD Club Game. Through investigation up to January 25, 2018, Investigating - police authority of City M prosecuted and issued order on detention of Ha Dinh D, Lam Dinh B and Le Van T, confiscated: 1 black Nokia 105 mobile phone containing a SIM card No. 0925999932 belonging to Ha Dinh D, 1 blue Nokia 105 mobile phone containing a SIM card No. 0923353606 belonging to Le Van T, VND 19,500,000 in cash and a black penknife belonging to Lam Dinh B.

Throughout the investigation, Ms. Nguyen Thi T and Ms. Doan Thi Huong G were authorized by Ms. Huy Thi Kim C to participate in the proceeding and identify that Duan and accomplices shouted, attempted assault, threw seats at game machine (causing slight scratches without any damage), cut electric circuits and chased foreign customers away from the GD of The Mira Hotel which suspended daily business operation and damaged credibility of the GD as well as causing property damage from VND 10,000,000 to VND 11,000,000. However, Ms. Huynh Thi Kim C does not request Lam Dinh B, Le Van T, Luu Van T, Luu Van V, Bui Huu N, Nguyen Van D and Nguyen Vu L to compensate for the damage mentioned above.

Regarding offence of Ngo Thanh D, Nguyen Trung H, Pham Van T and Doan Van H, the investigation determined: Ngo Thanh D, Nguyen Trung H, Pham Van T and Doan Van H arrived at the GD to assist Ha Dinh D, Lam Dinh B and Le Van T. However, upon arrival, Ngo Thanh D, Nguyen Trung H, Pham Van T and Doan Van H did not assist Ha Dinh D, Lam Dinh B and Le Van T in shouting and chasing the foreigners away from the GD thus Investigating – police authority of City M did not criminally prosecute Ngo Thanh D, Nguyen Trung H, Pham Van T and Doan Van H. On September 17, 2018, Police authority of City M issued decisions on imposing monetary penalty of VND 2,500,000 on Ngo Thanh D, Nguyen Trung H, Pham Van T and Doan Van H for “Disruption and obstruction of normal operation of agencies and organizations”.

Under First instance criminal judgment No. 14/2019/HS-ST dated January 22, 2019 of People’s Court of City M, Binh Duong Province:

Defendants Le Van T, Ha Dinh D, Lam Dinh B, Luu Van V, Nguyen Van D, Bui Huu N and Nguyen Vu L committed “Public disorder”.

Pursuant to Clause 1 Article 245; Points g, h, and p Clause 1 Article 46; Article 33, Article 53 of the Criminal Code 1999 and amendments thereto in 2009 in Viet Nam.

Defendant Bui Huu N is sentenced to 6 months of imprisonment for “Public disorder”, imprisonment period starts from the date on which the defendant is arrested to enforce the judgment.

The First instance judgment also sentenced defendant Le Van T to 2 years of imprisonment; Ha Dinh D, Lam Dinh B 1 year of imprisonment each; Luu Van V to 9 months of imprisonment; Nguyen Van D and Nguyen Vu L to 6 months of imprisonment.

In addition, the first instance judgment also specified evidence disposal, legal measures, court fees and rights to appeal.

On February 1, 2019, defendant Bui Huu N appealed for probation sentence. At the appellate court, the defendant retains his appeal request.

Representatives of People’s Court of Binh Duong Province proposes possible solutions to the case: Regarding appeal deadline, application for appeal of defendant Bui Huu N is within the deadline prescribed by the law thus the fact that People’s Court of Binh Duong Province consider the case according to appellate procedures  is within their competence and compliant with regulations and law. At the appellate court, the defendant admitted the offence dictated under the First instance judgment. Thus, the First instance trial tried the defendant for “Public disorder” according to Clause 1 Article 245 of the Criminal Code 1999 (and amendments thereto in 2009) on an adequate basis.  The First instance trial sentenced the defendant to 6 months and the defendant solicited probation sentence. Considering appellate request of the defendant: Defendant Bui Huu N committed violations as a minor accomplice, caused insignificant damage, committed violations for the first time and was of a less severe case. After committing the violation, the defendant hurriedly confessed and showed remorse. In addition, the defendant has confirmation of a disadvantageous household and is the main breadwinner of the family.  Considering that the defendant is eligible for probation sentence as per the law, the trial panel is requested to accept appellate request of the defendant, amend the First instance trial regarding penalty on the defendant, sentence the defendant to imprisonment but grant probation with trial period of 1 year.

In his final words, the defendant solicited the trial panel to consider probation sentence.

JUDGMENT OF THE COURT

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

[1] At around 6.30 p.m. on December 22, 2017, at the GD of The Mira Hotel (at 555B, Binh Duong Boulevard, Ward H, City M, Binh Duong Province), defendants Bui Huu N, Ha Dinh D, Le Van T, Lam Dinh B, Luu Van V, Nguyen Van D and Nguyen Vu L shouted, insulted, chased customers away, threw a chair at a game machine which caused the touch screen to paralyze and cut the power supply of the game room which impacted credibility and regular operation of the Club Game Golden Dragon.

Pursuant to Clause 1 Article 245 of the Criminal Code 1999 (and amendments thereto in 2009):

“1. If a person causing public disorder which leads to serious consequences who has been imposed with administrative penalty for the offence or has been convicted for the offence and has not expunged criminal record commits another violation, he/she shall be met with a fine ranging from VND 5,000,000 to VND 50,000,000, a non-custodial reform of up to 2 years or an imprisonment sentence from 3 months to 2 years”.

And pursuant to Resolution No. 02/2003/NQ-HDTP in Viet Nam dated April 17, 2013 of Council of Justices of Supreme People’s Court guiding application of provisions of the Criminal Code 1999:

“5. Regarding circumstances of “Causing serious consequences” and “Causing serious traffic obstruction” specified under Article 245 of the Criminal Code

5.1 Offender of public disorder shall be considered to “cause serious consequences” and shall be met with criminal responsibilities according to Clause 1 Article 245 of the Criminal Code if the offence causes any of following consequences:

a. Traffic obstruction or congestion in less than 2 hours;

b. Obstruction to regular operation of regulatory authorities, business entities, social organizations and people’s armed entities;

c. Property damage with at least VND 10,000,000 in value...”

Thus, the First instance trial tried the defendant for “Public disorder” according to Clause 1 Article 245 of the Criminal Code 1999 (and amendments thereto in 2009) on an adequate basis.

[2] Considering appellate request of the defendant for probation sentence: The trial panel deems defendant Bui Huu N chased customers away from the GD influencing business operation of the enterprise. Considering the defendant played a minor role and caused insignificant damage. After committing the violation, the defendant hurriedly confessed and showed remorse. The defendant has good personal record, committed for the first time and was of a less severe case. In addition, the defendant has clear residence, stable job and is the main breadwinner. The first instance trial adopted mitigating circumstances specified under Points g, h, and p Clause 1 Article 46 of the Criminal Code 1999 (with amendments thereto in 2019). However, since the First instance trial did not consider that the defendant confessed himself, the Appellate trial shall adopt additional mitigating circumstances specified under Clause 2 Article 46 of the Criminal Code 1999 (with amendments thereto in 2019).

In order to show leniency of the law for repentant offenders and improve effectiveness of preventive measures and kindness in trying offenders. Defendant Bui Huu N is eligible for probation sentence according to Article 65 of the Criminal Code 2015 (amendments thereto in 2017) and Article 2 of Resolution No. 02/2018/NQ-HDTP in Viet Nam dated May 15, 2018 of the Council of Justices of Supreme People’s Court guiding application of Article 65 of the Criminal Code on probation sentence. The trial panel deems that the defendant needs not to isolation from social life but rather self-improvement to benefit the society. Thus, request of the defendant for probation sentence is well-grounded and thus accepted by the trial panel.

[3] Remarks of representatives of the People’s Procuracy of Binh Duong Province on accepting appropriateness of appeal request of the defendant and thus accepted by the trial panel.

[4] Other decisions of the first instance trial that are not filed for appeal or objection that are legally effective.

[5] Appellate court fee: Defendant Bui Huu N shall not incur court fee.

Based on the above-mentioned facts and matters;

HEREBY DECIDES

Pursuant to Point b Clause 1 Article 355, Article 356 and Point e Clause 1 Article 357 of the Criminal Proceeding Code 2015 in Viet Nam;

1/ Accept appellate request of defendant Bui Huu N; amend the First instance criminal judgment No. 14/2019/HS-ST dated January 22, 2019 of People's Court of City M, Binh Duong Province.

Pursuant to Clause 1 Article 245; Points g, p, and h Clause 1, Clause 2 Article 46; Article 33, Article 53 of the Criminal Code 1999 (and amendments thereto in 2009); Article 65 of the Criminal Code 2015 (and amendments thereto in 2017);

Defendant Bui Huu N is sentenced to 6 months of imprisonment for “Public disorder” but instead granted probation sentence with trial period of 1 year from the date on which appellate judgment is declared (May 13, 2019).

Defendant Bui Huu N is transferred to People’s Committee of Ward C, City M of Binh Duong Province for supervision and education during trial period.

In case the defendant changes place of residence, comply with regulations and law on enforcing criminal judgments.

If a person benefitting from probation sentence intentionally violates their obligations at least twice during trial period, the Court may decide to compel them to comply with imprisonment sentence of the judgment which the person comply with in form of probation sentence.

2/ Regarding appellate criminal court fee: Pursuant to Article 136 of the Criminal Proceeding Code; Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the Standing Committee of National Assembly: Defendant Bui Huu N shall not incur the fee.

3/ 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.

The Appellate judgment is legally effective from the date of sentencing/.