Verdict No. 01/2018/HS-ST dated January 11, 2018 on organizing others to flee abroad

PEOPLE’S COURT OF DISTRICT D OF HOA BINH PROVINCE

VERDICT NO. 01/2018/HS-ST DATED JANUARY 11, 2018 ON ORGANIZING OTHERS TO FLEE ABROAD

On January 11, 2018, at the office of People’s Court of District D of Hoa Binh Province, the first instance trial was conducted to hear the case No. 18/2017/HSST dated November 28, 2017 against the defendant: Sa Thi C, born on December 30, 1987, in Village M, Commune T, District D, Hoa Binh Province.

Registered permanent residence: Village 5, Commune VT, District V, Hai Phong City; occupation: freelancer; education level: 12/12; ethnicity: Muong People; religion: none; father: Mr. Xa Van K and mother: Mrs. Dinh Thi K; husband: Mr. Nguyen Van C, born in 1981, 1 child born in 2010, residing in: Village 5, Commune VT, District V, Hai Phong City; the second child in a 3-child family; previous convictions and administrative penalties: none; detained from August 4, 2017; present.

Persons with related interests and obligations: Mrs. Dinh Thi T, born in 1987, residing in: Village D, Commune T, District M, Hoa Binh Province; 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:

In 2014, when Sa Thi C was in China, she got acquainted and made friend with a person named N who lives in China via Zalo application, C does not know full name and address of N, she only knows that N’s hometown is in District T, Thanh Hoa Province. Through chatting, C told that she has previously got acquainted with Ms. Dinh Thi T who lives in N of Kon Tum Province and gave T a loan but T has not repaid debt to C after repeated attempts to collect payment. Then, N showed C a way to deal with such debt. N said if C may persuade T to flee to China to get married, N would be responsible for deducting marriage portion from the groom’s family to repay such debt. In September 2014, Sa Thi C called and persuaded T to flee to China, T agreed but claimed that she did not obtain any paper, passport and money; she also did not get acquainted with anyone. C reassured T that there was a person who deals with it. After that, C called and sent the phone number of T to N in order for N to contact with T in person, then C kept calling T several times to persuade T into fleeing to China.

After agreeing to flee to China, Dinh Thi T followed the instructions of N, N bought a bus ticket and gave it to T in order for T to go to Thanh Hoa bus station, and then stayed in N’s house 2 days. After that, T accompanied N to the border checkpoint M in Quang Ninh Province and slept there one night. N took T cross the forest to escape to China; all costs were at N's expense. When arriving China, N took T to the house of a man named Ly X and told T to stay there and wait for a person to take her to a workplace; Dinh Thi T stayed there for a while but no one picked her up. Shortly after, two Vietnamese women living there told her that Ly X’s family bought Thi as the wife of Ly X, T had to stay there and then she gave birth to a daughter for Ly X. In March 2017, Dinh Thi T came to a Chinese police office and reported the case, through the Consulate General of Vietnam in China, Dinh Thi T was returned to Vietnam on April 4, 2017. Sa Thi C’s act was discovered when Dinh Thi T visited her parents in Village M, Commune T, District D, Hoa Binh Province and met Sa Thi C there, T reported to the authorities.

In the Indictment No. 18/CT-VKS dated November 28, 2017, the People’s Procuracy of District D prosecutes the defendant Sa Thi C for “Organizing, coercing others to flee abroad or stay abroad illegally” as prescribed in Clause 1 Article 275 of the Criminal Code.

At the court hearing, in the arraignment section, the representative of the People’s Procuracy retains the decision to prosecute the defendant for “Organizing others to flee abroad” as prescribed in Clause 1 Article 275 and mitigating circumstances prescribed in Article 46 of the Criminal Code 1999 in Viet Nam.

Pursuant to Resolution No. 41/2017/QH14 in Viet Nam dated June 20, 2017 of the National Assembly, the representative of the People’s Procuracy requests the Trial Panel to apply articles and charge equivalent to the offense “Organizing others to flee abroad” against the defendant Sa Thi C as prescribed in Clause 1 Article 349 and mitigating circumstances prescribed in Article 51 of the Criminal Code 2015 in Viet Nam.

Based on the nature and extent of dangerous act committed by the defendant, in consideration of the defendant’s criminal record and mitigating circumstances, the representative of the People’s Procuracy requests the Trial Panel to sentence the defendant to 12 to 18 months’ imprisonment.

It is also necessary to acknowledge the defendant’s willingness at the trial that the defendant agreed to make a restitution of VND 20,000,000 (twenty million dong) for the mental damage suffered by the person with related rights and obligations Dinh Thi T.

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 determines as follows:

At the court hearing, the defendant pleaded guilty and her testimony well matches with documents available in the case file; geting acquainted with Dinh Thi T before, Sa Thi C persuaded T to flee to China for marriage purpose. T agreed but she did not have money and required documents, C sent T’s phone number to N for futher discussion that N would buy bus ticket and instruct T to flee to China illegally. After that, C made several calls to persuade T into fleeing to China.

Thus, there are sufficient grounds to claim that Sa Thi C is guilty of “Organizing others to flee abroad” prescribed in Article 275 of the Criminal Code 1999. Pursuant to Resolution No. 41/2017/QH14 dated June 20, 2017 of the National Assembly on implementation of the Criminal Code, the application of the corresponding regulations of law of the offense “Organizing others to flee abroad” as prescribed in Clause 1 Article 349 and mitigating circumstances of the Criminal Code is accordant with regulations of law in force.

The defendant Sa Thi C has full criminal capacity and legal knowledge but she deliberately committed offense, thus she has to take criminal liability for that offense. The defendant’s offense not only directly infringes the administrative order of the state but also severely affects the social order and safety; it would have been necessary to apply strict penalty which is commensurate with the nature and severity of the offense committed by the defendant.

However, the defendant has a good record and her offense committed due to limited legal awareness; when her offense was discovered, she voluntarily turned herself in at the police office and expressed cooperative attitude, these are mitigating circumstances prescribed in Point s Clause 1, Clause 2 Article 51 of the Criminal Code.

In this case, Sa Thi C and Dinh Thi T both declared that the helper who provided assistance for T to flee abroad is N who lives in District T, Thanh Hoa Province, but they cannot identify N's full name and address. The investigation also fails to identify N so it has justifiable grounds not to mention N in the consideration of criminal liability section.

Dinh Thi T confirmed that her illegal immigration was mainly attributed to the persuasion and instructions of C and N and partly attributed to her limited legal knowledge and disregard of C’s unclear enticement. During the investigation process, there is no justifiable grounds to determine that C deceived and coerced T or benefited from the T’s illegal immigration. During the evading process, T did not have to cover any expense, but due to the forced marriage, unintended childbirth and then mother-daughter separation, T has suffered severe mental suffering; at the trial, T claims damages of VND 20,000,000 against the defendant to make restitution for the mental suffering caused.

The defendant Sa Thi C admitted that her act was against the law and directly caused mental suffering to Dinh Thi T, so she agreed to make restitution.

The defendant’s agreement with Dinh Thi T is made voluntarily and in accordance with laws and regulations, so it should be accepted.

Pursuant to documents and evidence mentioned above:

HEREBY DECIDES

Declare the defendant Sa Thi C guilty of “Organizing others to flee abroad”.

1. Pursuant to Clause 1 Article 349; Point s Clause 1, Clause 2 of Article 51 of Article 38 of the Criminal Code.

Sa Thi C is sentenced to 01 year's imprisonment; the prison term commences from the date of arrest, detention (August 4, 2017).

2. Civil liability: Pursuant to Clause 2 Article 48 of the Criminal Code, Article 584 of the Civil Code in Viet Nam: Accept the agreement on material damages for mental suffering between the defendant and the person with related rights and obligations.  Sa Thi C has to pay damages of VND 20,000,000 (twenty million dong) to Dinh Thi T.

From the date on which the judgment creditor requests the judgment enforcement, if the defendant fails to pay the damages, she has to pay an interest equal to 50% of statutory interest prescribed in Clause 2 Article 468 of the Civil Code, equivalent to the late enforcement sum and time.

In case the judgment or court decision is enforced as per regulations in Article 2 of the Law on enforcements of civil judgments in Viet Nam, the judgment creditor and judgment debtor are lawfully allowed to reach an agreement on judgment enforcement, request judgment enforcement, be subject to voluntary execution or coercive judgment enforcement in compliance with regulations in Article 6, 7 and 9 of the Law on enforcement of civil judgments, and the effective period of judgment enforcement shall comply within provisions in Article 30 of the Law on enforcement of civil judgments.

3. With reference to court fees: The defendant Sa Thi C has to pay VND 200,000 of the first instance criminal court fee and VND 1,000,000 of civil court fee, totaling VND 1,200,000 (one million two hundred thousand dong)  

The defendants, persons with related rights and obligations shall have the right to appeal within 15 days from the date of pronouncement of the verdict./.