Verdict No. 02/2018/HSPT dated January 18, 2018 on organizing others to flee abroad

 PEOPLE’S COURT OF BAC GIANG PROVINCE

VERDICT NO. 02/2018/HSPT DATED JANUARY 18, 2018 ON ORGANIZING OTHERS TO FLEE ABROAD

On January 18, 2018, at the office of the People's Court of Bac Giang Province, the appellate trial was conducted to hear the criminal case No. 165/2017/HSPT dated October 12, 2017 against defendants Tran Duc Tr, Bui Quy T based on the appeals filed by the defendants and the persons with related rights and obligations with regard to the First Instance Criminal Verdict No. 39A/2017/HSST dated August 11, 2017 of the People's Court of District V, Bac Giang Province.

* Defendants having appeals:

1. Full name: Tran Duc Tr, another name: Tran Vi K, born in 1981 in Commune T, District C, Ha Tinh Province; registered permanent residence and address: No. 6A, Quarter 4 (now Quarter 4B), Group 24A (now Group 35), Ward T, City B, Province D; occupation: freelance; educational level: 12/12; ethnicity: Kinh people; father's name: Tran Duc S - born in 1950; mother's name: Pham Thi X - born in 1950; wife: Mai Thi G - born in 1986; children: 02 children, the eldest child was born in 2010 and the younger child was born in September 2017; previous convictions or administrative violations: none; personal identity: in 2001, being sentenced to 6 months in prison for "theft of property" by the People's Court of District T (now District Tr) of Province D; being out on bail, present at the trial. 2. Full name: Bui Quy T, another name: none; born in 1985 in Commune D, District D, Thai Binh Province; registered permanent residence and address: Village N, Village D, District D, Thai Binh Province; occupation: freelance; educational level: 9/12; ethnicity: Kinh people; father's name: Bui Quy A - born in 1964; mother's name: Ngo Thi H - born in 1968; ex-wife: Pham Thi N (divorced), current wife: Nguyen Thi V; one child, born in 2017; previous convictions or administrative violations: none; personal identity: being indicted on charge of "Deliberate infliction of bodily harm” by Investigation Agency of Public Security of District D, Thai Binh Province and then suspended by the People’s Court of District D, Thai Binh Province on December 21, 2006; being out on bail, present at the trial. 

* Procedural participants having appeals:

1. Mrs. Bui Thi H, born in 1963, the authorized representative of the person with related rights and obligations (Mr. Nguyen Huu H1, born in 1988, Mr. Nguyen Huu H1, born in 1966, residing in Village H3, Commune H,  District V, Bac Giang Province). Residence: Village H3, Commune H, District V, Bac Giang Province. (Mrs. H and Mr. H1 are present).

2. Mr. Nguyen Van H2, born in 1950, the authorized representative of the person with related rights and obligations (Mrs. Nguyen Thi H, born in 1995, residing in Village N, Town N,  District V, Bac Giang Province).

Residence: Village Q, Commune Q, District V, Bac Giang Province (present).

* Other procedural participants: The case also has 41 people with related interests and obligations without appeal and not being appealed that the Court does not summon.

THE CASE

According to the Indictment No. 04/KSDT dated December 29, 2016 of the People's Procuratory of District V and the First Instance Criminal Verdict No. 39A/2017/HSST dated August 11, 2017 of the People's Court of District V, Bac Giang Province, the contents of the case are summarized as follows:

In early March 2016, Tran Duc Tr met and got acquainted with Bui Quy T at the Branch B of Vietnam-Japan Vocational College when T went to an interview for a teacher of the school. Through discussion, Tr introduced to T that his name was Tran Vi K, he could speak Chinese, and T introduced to Tr that T was proficient in speaking and writing Korean, then T discussed with Tr to set up a foreign language training center. Tr asked T to rent an office for the head office and Tr would be responsible for the establishment of the center. In middle of March 2016, Tr and T rented the house of Mr. Hoac Cong N, born in 1968, residing in Village N, Commune Q, District V as the head office, named it “Ngoai ngu Phuong Dong” and employed Tran Thi T, born in 1994, residing in Village T, Commune N, District T, Thai Binh Province as an accountant cum manager of the center. During the preparation for establishment of the Phuong Dong Foreign Language Center, Tr has contacted with Liu X and Shi Zhuan Q in City N, China, a labor broker who has been acquainted with Tr. Liu X and Shi Zhuan Q told him that some companies in China and Hong Kong were looking for workers to grow mushrooms, make screws, plywood boards, with salaries ranging from USD 800 to 100 per month, 2-year contract, 1-year extension, working time: 8 hours a day, day off on Sunday and in holidays Lunar New Year in accordance with the local labor laws, accommodation free of charge, granted 2-year resident card (green card). Any worker sent by Tr will be enabled to have a job and granted a resident card by Liu X and Shi Zhuan Q. Tr has discussed with T that: Income earned from teaching foreign language only was low, they had better find and take workers to China, profits earned would be divided into halves. However, Phuong Dong Foreign Language Center had not been licensed and had no business line of labor export. Thus, Tr used the seal of his company T Co., Ltd. to sign contracts with workers. Tr and T reached an agreement that T would collect the labor export fee to China USD 2,000 per person and Tr would seek work orders in China and Hong Kong, and be in charge of consultancy, paperwork completion and sending of workers to China; As the Director of Phuong Dong Foreign Language Center, T was responsible for advertising, recruitment  and counseling for workers; as an accountant cum manager at the Phuong Dong Foreign Language Center, T was responsible for collecting fees from workers and receive  receipts and finance expenditures at the request of Tr. Tr and T each contributed VND 15 million and bought office equipment, printing of billboards, business cards, flyers; bought receipt vouchers and payment vouchers and gave them to T for bookkeeping and agreed that anyone who was able to find and recruit workers would be paid USD 100 of commission per person. After printing leaflets, Tr and T brought leaflets to industrial zone Q in District V to deliver to workers. In order to get more workers, Tr discussed with T to set up an office in Thai Binh and employed Bui Manh T, born in 1989, in Village N, Commune D, District D, Thai Binh Province as Director; Pham Van K, born in 1967, in Village R, Commune D, District D, Thai Binh Province as Deputy Director; Bui Thi L, born in 1994, in Village L, Commune B, District K, Thai Binh Province and Tong Dieu H, born in 1993 in Village P, Commune D, District D, Thai Binh Province as office workers.

From March 2016 to June 2016, Tr and T consulted and recruited 29 people to work in China, collected each person VND 10 million to VND 72.5 million, totaling VND 1,283,200,000, in which 24 people were taken to China by tourist visas, namely:

- The first trip: In late March 2016, T visited a friend who was boarding at the house of Nguyen Huu H, born in 1988, in Village H3, Commune H, District V. T introduced to H that as the Director of Phuong Dong Foreign Language Center, Thanh may take people to Hong Kong to grow mushrooms, make screws and plywood boards with a salary of USD 800-1000 per month, USD 1,5000 in costs including USD 300 deposit of anti-evasion, 2-year labor contract, accommodation free of charge, granted 2-year resident card (green card). If H was interested in that, he may come to Phuong Dong Foreign Language Center in Village N, Commune Q, District V for specific consultancy. After that, H called for Duong Minh Q, born in 1996, in Village V 3, Commune V, District V to go to the center. Tr and T recommended them to go to Hong Kong for growing mushrooms, making screws and plywood, with a salary of USD 800 to 1000 USD per month, USD 1500 in costs, including 300 USD of deposit of anti-evasion, 2-year labor contract, 1-year extension, working time 8 hours/day, date off on Sundays and in holidays according to the local labor law, exiting to Hong Kong by air, accommodation free of charge, granted 2-year resident card (green card). If they cannot receive the salary and work as advised, they would be refunded the full sum of money. Then they were asked for a deposit of 10 million to apply for a visa, air tickets and an extra 1 million if anyone had not got a medical fitness certificate and criminal records. In early April, 2016, seeing the billboard to work in Hong Kong, Nguyen Duc T, Nguyen Van Th, born in 1985, in Village N, Commune Q, District V came to the center and Tr gave consultancy to them as similar as those given to Q and H before. T asked not to pay a deposit of anti-evasion and Tr agreed. While boarding at the house of Mr. N, Tr advised Hoang Thi Hong U, born in 1995, Mr. N’s daughter to work in Hong Kong for only 10 million and promised to arrange an office work for U. Tr asked Tran Thi T to collect deposits from 05 abovementioned people.

After receiving deposits from aforesaid 5 workers, Tr contacted Ho Sy H, born in 1985, in Commune T, Nghe An, who is a broker of Chinese tourist visa to apply for 15-day tourist visas for 5 workers and Tr, T for USD 65-90 per person. When the visas were available, Tr booked round-trip air tickets from B, 20 years old, in Thanh Hoa province, working in the ticket office B, District T, Ho Chi Minh City for 5 workers and Tr, T for USD 465 per person. When there was a specific schedule, Tr contacted with H, Q, T, Thu to collect the remaining amount of deposits, signed a contract to work abroad and announced that they would present at 12 am on April 11, 2016 at the Phuong Dong Foreign Language Center, Tr would rent cars to send them to the airport. The workers had paid the total amount of VND 138,080,000 so far, in specific: Q VND 34,600,000; H VND 33,000,000; T VND 26,880,000; T VND 33,600,000 and U VND 10,000,000. On April 11, 2016, Tr and T sent 05 workers to Noi Bai airport for exit procedures, before carrying out procedures for workers Tr told them not to declare that they were going to work abroad but declare that they were going to travel when being checking at the airport security, failing which, they would not be allowed to leave Vietnam. Tr, T and 05 workers used tourist visas to transit at Hong Kong airport and then proceeded to Nanjing, China, and were brokered by Chinese agents Liu X and Shi Zhuan Q to take T, Th, Q, H, U to the mushroom company. Because of the polluted work environment, T and Th quit jobs and returned to Vietnam. Tr took Q and H to a compressed wood company in Nanjing City, Jiangsu Province, China, and U was sent to work in another place. On June 21, 2011, Q and H asked a woman called Nhung (or Thuy) whose address is unknown, about 30 years old in Quang Ninh Province, got married to a husband in China to take them back to Vietnam along the trail in ​​Chi Ma checkpoint area, Loc Binh District, Lang Son Province.

- The second trip: After the first labor export trip to China, the cost accounting was negative at 34 million dong and if they continued to send workers to China, Liu X would charge the brokerage fees for job search. Tr and T reached an agreement to increase the fee to USD 2800 and continued to find people to work in China.

In late April 2016, Nguyen Huu H1, born in 1966, in Village H3, Commune H, District V, the father of Nguyen Huu H told Nguyen Van K, born in 1977, in Village H2, Commune H, District V that H had worked in China, K and H1 came to Phuong Dong Foreign Language Center to ask Tr and T for consultancy: They were informed that there were recruitment to work in Hong Kong for growing mushrooms, making screws and plywood, with a salary of USD 800 to 1000 USD per month, 2-year labor contract, 1-year extension, working time 8 hours/day, date off on Sundays and in holidays according to the local labor law, exiting to Hong Kong by air, accommodation free of charge, granted 2-year resident card (green card). If they cannot receive the salary and work as advised, they would be refunded the full sum of money. Tr charged H1 and H the labor fee of USD 1500 each, charged K USD 2800 including 300 USD of deposit of anti-evasion. K asked Tr to exempt him from the deposit of anti-evasion and Tr agreed. K talked to Doan Canh D, born in 1990, in Village H2, Commune H, District V, K's neighbor and D’s wife Nguyen Thi H, born in 1982 about K's labor export to Hong Kong. H talked with H’s mother Nguyen Thi T, born in 1952, in Village Q, Commune Q, District V and H’s brother Nguyen Thi N, who was working in Singapore about K’s preparation to work in Hong Kong. Such information was kept spreading by Mrs. T and N to To Thi M, born in 1974, in Village Q, Commune Q, District V; Dao Van H, born in 1971, in Village Q, Commune Q, District V and Do Hong N, born in 1991, in Village H3, Commune H, District V. Then they came to ask K. After that, K phoned Tr to come the K's house to give consultancy for M, H, N, D but they had to pay 1 million dong for medical fitness certificate and criminal records. N persuaded her husband Nguyen Dinh D, born in 1988 to join. To Thi M told about her preparation to work in Hong Kong to Dao Thi H, born in 1990; Dao Van T, born in 1994 and H’s mother Nguyen Thi N in Village Q, Commune Q, District V. Mrs. M kept spreading such information to Nguyen Van M, born in 1985, in Village Q, Commune Q, District V. Then M, T, H went to the Phuong Dong Foreign Language Center ​​for consultancy, Tr also gave consultancy to them as similar to those given to M, D, N.

After the above 08 workers had paid the deposits, Tr contacted H to apply for tourist visas to China and contacted B to book the air tickets for these workers and Tr, T.

In early May 2016, Tr paid T USD 300 equivalent to VND 6,720,000 as remuneration for T to find two workers Q and H in the first trip. Upon receipt of visas and air tickets, Tr asked those workers to pay the remaining amount and signed contracts to work overseas (China) totaling VND 443,160,000, in specific: H 62 million dong, T 62 million dong, M 62 million, D 63,720,000 dong, N + D 127,440,000 dong, H1 22 million dong, K 44 million dong, in which Nguyen Van K was reduced by USD 500 as a commission for introduction of 3 workers D, N, D, then M, H. At that time, M and H had not complete the paperwork to work in China. On May 20, 2016, Tr and T sent 08 workers to leave Vietnam by tourist visas through the Noi Bai checkpoint, transit in Hong Kong and then enter to China to work. When 8 workers arrived in Nanjing City, Jiangsu Province, China, they were picked up by Liu X and Shi Zhuan Q and sent to a plywood company in Nanjing City. These workers had worked there until June 19, 2016 and had been paid a wage by the employer equivalent to about 4 million per month, which is not true as consulted and the contract signed with T and Tr. Thus, they required Tr to bring them back. On June 20, 2016, Tr sent 06 workers of the second trip to 11 workers of the third trip to return to Vietnam.

- The third trip: Since 13 people were sent to work in China not Hong Kong, Tr discussed with T to change the consultancy that workers would go to China to work and will pay a labor fee of USD 2,000 per person with a salary of RMB 4000 per month.

In early June 2016, the Phuong Dong Foreign Language Center in Thai Binh, directed by Bui Manh T recruited Hoang Thi T, born in 1980 in Village N, Commune D, District D, Thai Binh Province and collected VND 20 million from her then transferred it to Tran Duc Tr for complete paperwork to work in China.

After being consulted by Tr and T, from late May 2016 to early June 2016, To Thi M talked about her preparation to work in China together with her husband Dao Van H and his son Dao Quoc T, born in 1995 to Nguyen Thi H, born in 1995, in Village N, Town N, District V; Nguyen Thi N, born in 1988, Dao Van H, born in 1984, Nguyen Thi T, born in 1960 in Village Q, Commune Q, District V. Then T persuaded her husband Nguyen Trong M to go to China to work with her. N, Dao Van H, H, Nguyen Trong M, the couple M and H came to Phuong Dong Foreign Language Center and received consultancy to work in China by Trong.

Dao Thi H, born in 1990, in Village Q, Commune Q, District V, got married to a husband in Village V, Commune Y, District Y, Ninh Binh Province kept spreading her preparation to work in China to Dinh Van H, born in 1984, in the same village and Duong Ngo H, born in 1993, in Village 4, Commune V, District V, a cousin of Dao Thi H. Then, Dinh Van H and Duong Ngo H also came to the Phuong Dong Foreign Language Center for consultancy. These workers were consulted by Tr as follows: labor export to China to make plywood boards, with a salary of RMB 4000 per month, USD 2000 per person in cost, 2-year labor contract, 1-year extension, working time 8 hours a day, day off on Sunday and holidays in accordance with the host country’s labor laws, exiting to China by air, accommodation free of charge, granted resident card (green card) and full reimbursement in case of inconsistent salaries and work. Tr requested them to pay VND 20 million in advance for visa applications, air tickets and VND 1 million for the medical fitness certificates and criminal records. After collecting deposits from them, Tr contacted H to apply for tourist visas to China and contacted B to book the air tickets for these 11 workers and Tr, T. Upon receipt of visas, Tr notified the workers of exit date and required them to pay the remaining sum of money as agreed and signed contracts. Tr and Bui Quy T and T have collected money of 11 people totaling VND 482,460,000, in specific: H VND 45,800,000; N + H VND 91,600,000; T + M VND 91,600,000; H VND 44,800,000; H VND 45,800,000, T VND 72,500,000, To Thi M + Dao Van Hi + Dao Quoc T VND 90,360,000. M was deducted USD 1,000 from the fee as a commission for introduction of 10 workers including: Dao Thi H, Dao Van T, Nguyen Van M on the second trip, Duong Ngo H, Nguyen Thi T, Nguyen Trong M, Nguyen Thi H, Dinh Van H, Nguyen Thi N, Dao Van H. On June 17, 2016, T required Tr to divide provisional profit, Tr gave T VND 13 trillion. On June 18, 2016, Tr sent 11 workers to exit to China through Noi Bai border by tourist visas, before conducting exit procedures, Tr told them not to declare that they were going to work abroad but declare that they were going to travel when being checking at the airport security, failing which, they would not be allowed to leave Vietnam Upon arrival in Nanjing City, China, they were picked up by Liu X to work in a compressed wood company in Nanjing City, along with those who had been taken on the first and second trip.

As workers on the third trip were informed by those on the first and second trips that they were paid low wages, unsatisfactory working conditions, not being granted resident cards not the same as what Tr and T advised, thus they requested these two bring them back to Vietnam. On June 20, 2016, Tr brought 17 workers including 11 workers on the third trip and 06 people on the second trip including Dao Thi H, Dao Van T, Nguyen Van M, Doan Canh D, Do Hong N , Nguyen Dinh D whose visas were expired. Upon arrival in Nanning, China, Tr hired 06 workers with expired visas to cross the border along the Chi Ma checkpoint area, Loc Binh District, Lang Son Province to Vietnam. The other 11 workers on the third trip with unexpired visas would accompany Tr to return Vietnam through Huu Nghi Quan checkpoint. On June 21, 2016, the workers Nguyen Huu H, Duong Minh Q, Nguyen Huu H1, Nguyen Van K asked a person named N, in Quang Ninh to cross the border through the Chi Ma checkpoint area, Lang Son Province. On August 1, 2016, Tr brought Hoang Thi Hong U, the last worker, to return to Vietnam by crossing the border.

In addition to the organization of above 24 workers to flee abroad, Tr and T consulted and recruited 05 other people: Hoang Thi L, born in 1977, in Village N, Commune Q, District V; Duong Van T, born in 1978, in Village V 3 (Hamlet 3), Commune V, District V; Hoang Cong D, born in 1988, in Village T, Commune V, District V; Nguyen Thi H, born in 1975 and Nguyen Van H, born in 1997, both in Village Q, Commune Q, District V to exit to China for working and collected the total of VND 216,320,000, in specific: L VND 10 million, T VND 51 million, D VND 63,720,000, H VND 45,800,000 H, H VND 45,800,000. After collecting money from above 05 people, Tr applied for visas for four people, T, D, H, Nguyen Van H and signed contracts to work abroad, the agreement with Nguyen Thi H and Nguyen Van H but 05 people changed their mind not go to China to worker thereafter.

After returning to Vietnam, 22 people made a report to Public Security of District V and requested Tr, T to return the sum that they had paid. Tr and T agreed that, after deducting the cost of travel (visas, air tickets), they would reimburse 18 people total amount of VND 551,960,000 in which Tr reimbursed VND  349,460,000 and T reimbursed VND 202,500,000. 

As for 5 people who were consulted and paid money but changed their mind, they were reimbursed VND 171,760,000, in specific: Nguyen Van H VND 31 million; Nguyen Thi H VND 30 million; Hoang Thi L VND 5 million; Duong Van T VND 46,520,000; Hoang Cong VND 59,240,000. The rest 6 workers Nguyen Thi H, Dinh Van H, Duong Minh Q, Nguyen Huu H, Nguyen Huu H1 and Hoang Thi Hong U have not been reimbursed their payments.

Tran Duc Tr admitted that he collected VND 1,066,700,000 from 24 people who were sent to work in China and then he spent on paperwork and sending 24 workers to work in China, in specific:

- Purchase of air tickets: VND 249.968.000;

- Applications for tourist visas to China: VND 41,898,000;

- Rental of cars to transport workers from Phuong Dong Foreign Language Center to Noi Bai Airport for VND 2.400.000.

- Passenger car expense in China: VND 7,209,000;

- Brokerage fees: VND 85,120,000;

- Meal and rest stop expense: VND 12 million;

- Expenditure on sending workers back to Vietnam: VND 73,700,000;

- Payment to Liu X for resident cards for 10 workers: VND 112 million;

Total spending is VND 584,295,000. Tran Duc Tr, Bui Quy T earned VND 482,405, 000. Tran Duc Tr divided VND 136,720,000 to Bui Duc Quy, and Tran Duc Tr earned VND 345,685,000.

* Inspection results:

- Signatures and handwriting in the name of Tran Thi T in receipt vouchers, payment vouchers are written by Tran Thi T; signatures and handwriting in the name of Tran Vi K in receipt vouchers and payment vouchers are written by Tran Duc Tr; signatures and handwriting in the name of Bui Quy T in the receipt vouchers and payment vouchers are written by Bui Quy T;

- Signatures and handwriting in the name of Tran Vi K in contracts to work abroad, agreements concluded with workers: Nguyen Huu H, Duong Minh Q, Nguyen Van T, Nguyen Duc T, Nguyen Thi N, Dao Van H, To Thi M, Dao Van H, Nguyen Thi H, Duong Ngo H, Dao Quoc T, Nguyen Thi T, Nguyen Trong M, Dinh Van H are written by Tran Duc Tr.

- Signatures and handwriting in the name of Bui Quy T in contracts to work abroad  of workers: Dao Thi H, Dao Van T, Do Hong N, Nguyen Dinh D, Doan Canh, Nguyen Van K, Nguyen Van M are written by Bui Quy T.

* With regard to civil liability: Tran Duc Tr reimbursed VND 349,460,000, Bui Quy T reimbursed VND 202,500,000 to 18 workers under the agreement between Tr, T with them, now 18 workers do not claim Tr and T to pay extra indemnities.

For workers: Nguyen Thi H, Dinh Van H, Duong Minh Q, Nguyen Huu H, Nguyen Huu H1 and Hoang Thi Hong U who have not yet received any compensation, they request Tr and T to reimburse their paid sums of money.

Compelling Tran Duc Tr and Bui Quy T to continue to reimburse the remaining money to: Nguyen Van H VND 14.800.000; Nguyen Thi H VND 15.800.000; Hoang Thi L VND 5 million; Duong Van T VND 4,480,000; Hoang Cong D VND 4,480,000.

The Indictment No. 04/KSDT dated December 29, 2016 of the People's Procuracy   of District V prosecutes the defendant Tran Duc Tr (aka Tran Vi K) and Bui Quy T for "Organizing other people to flee abroad" under Clause 2, Article 275 of the Criminal Code 1999 in Viet Nam.

The First Instance Criminal Verdict No. 39A/2017/HSST dated August 11, 2017 of the People's Court of District V, Bac Giang Province tried and judged as follows:

Declaration: Tran Duc Tr (aka Tran Vi K) and Bui Quy T are guilty of “Organizing others to flee abroad”.

* With regard to application of regulations and sentences:

- Pursuant to Clause 2 of Article 275; Points b and p, Clause 1 and Article 46; Article 20; Article 53; Article 47; Article 33 of Criminal Code 1999 and Point x, Clause 1, Article 51 of Criminal Code 2015 in Viet Nam: Tran Duc Tr (aka Tran Vi K) is sentenced to 3 years' imprisonment. The prison term commences from the date of arrest.

- Pursuant to Clause 2 of Article 275; Points b and p, Clause 1 and Article 46; Article 20; Article 53; Article 47; Article 33 of Criminal Code: Bui Quy T is sentenced to 2 year’s imprisonment. The prison term commences from the date of arrest.

* With regard to judicial measures: Pursuant to Points a, Clause 1, Clause 3 Article 41 of the Criminal Code. Pursuant to Point a, Point c, Point dd, Clause 2, Article 76 - the Criminal Procedure Code in Viet Nam.

- Confiscate VND 188,960,000 from the defendants to the public funds. In specific:

+ Tran Duc Tr (aka Tran Vi K) VND 132,000,000 (one hundred thirty two million dong)

+ Bui Quy T VND 56,960,000 (five million six hundred and nine hundred sixty thousand dong)

In addition, the Court also handled material evidences, pronounced court fees and the right to appeal.

After the first instance trial:

On August 28, 2017, the People’s Court of District V received an appeal filed by the defendant Tran Duc Tr (dated August 20, sent via postal service on August 23, 2017), claiming that  the 3-year imprisonment sentence is severe, requesting an appellate court to consider reduction of the severity of the sentence (requesting a suspended sentence), and asking for negotiation to reimburse money to workers.

On August 22, 2017, the People's Court of District V received an appeal from the defendant Bui Quy T, the content of the defendant's appeal is that the penalty of two prisoners is too heavy, claiming that the 2-year imprisonment sentence is severe, requesting an appellate court to consider reduction of the severity of the sentence.

On August 23, 2017, the People's Court of District V received an appeal from Mrs. Bui Thi H (authorized representative of the person with relevant rights and obligations Mr. Nguyen Huu H1, Mr. Nguyen Huu H), claiming that they do not accept the confiscation of the amount of VND 54,000,000 to the state fund and request the appellate court to consider returning the money to them.

On August 23, 2017, the People's Court of District V received an appeal from Mr. Nguyen  Van H2 (authorized representative of the person with relevant rights and obligations Mrs. Nguyen Thi H), claiming that they do not accept the confiscation of the amount of VND 44,800,000 to the state fund and request the appellate court to consider returning the money to them.

At the appellate trial:

- Tran Duc Tr upholds the appeal for mitigation of sentence, suspended sentence, and an additional appeal not to confiscate money to state funds, and proposes the Trial Panel to enable the defendant to negotiate the reimbursement with the workers. The reason the defendants made such an appeal was that the sentences determined in the First Instance Verdict are severe while the defendant committed crime because of their limited legal knowledge and the trust in Chinese partner. The defendants suggest suspended sentences in order for them to earn money to make reimbursements to related workers. During the trial, the defendants took initiative in reimburse some workers and they did not make any further claims.

- Defendant Bui Quy T upholds the appeal to mitigation of punishment and supplemented the appeal for suspended sentence. The reason for the appeal is because the first-instance sentences are severe, he has limited knowledge of law, relieved the consequences by reimbursing money to the workers, apart from the money received from the workers, he also spent nearly VND 100 million to pay for workers; his family circumstances are difficult: sick parents, young children, and he is the breadwinner.

- Mrs. Bui Thi H on behalf of Mr. Nguyen Huu H upholds the appeal. requesting suspension from confiscating the sum of VND 32 million that Mr H has paid to the defendants, forcing them to reimburse H such amount.

- Mr. Nguyen Huu H1 agrees on the content of the appeal of Mrs. Bui Thi H. At the court, he does not authorize Mrs. H again, but presents his viewpoint of the appeal: requesting suspension from confiscating the sum of VND 22 million that he has paid to the defendants, forcing them to reimburse him such amount.

- Mr. Nguyen Van Hanh still upholds the content of the appeal and refuses his consent to the confiscation of VND 44,800,000 to the state fund that Ms. Nguyen Thi H has paid to the defendants. If the confiscation is compulsory, all amounts of money of other workers must be also confiscated. Such amount of money was both earned by the sweat of her brow and borrowed from others to seek for a decent job.

At the trial, the defendants and Mr. H1, Mr. H2, Mrs. H agrees on the reimbursement of the amount paid by the workers, and they propose the Trial Panel to consider not confiscating the amounts to the state fund, and enable the defendants to pay the workers under the agreement.

- The representative of the People's Procuracy of Bac Giang Province exercised the right to prosecution at the hearing to express the views on the resolution of the case: The defendants' appeals were filed to the Court within 15 days after the pronouncement of the First Instance Verdict, so they are considered valid, the People’s Procuracy requests the Trial Panel to accept the settlement under the procedure of appeal. The First Instance Verdict rightly convicted guilty person, without unjustly punishment.

Regarding appeals for mitigation of sentence, suspended sentences imposed on defendants: Based on the nature and extent of the defendants’ offense, the Trial Panel is requested to apply Point a, Clause 1, Article 355; Article 356 of the Criminal Procedure Code not to accept defendants' appeals and uphold the First Instance Verdict No. 39A/2017/HSST dated August 11, 2017 of the People's Committee of District V, Bac Giang Province.

With regard to the appeals of persons with related rights and obligations, the Trial Panel is requested not to confiscate the paid amounts of the workers to the state fund, recognize the agreement between the defendants and Mr. H2, Mr. H1, Mrs. H on reimbursement of the amounts paid to the defendants.

Other decisions of the First Instance Verdict which do not have any appeal will remain legally effective from the expiry of time limit for the appeal. The defendants must pay the court fee for the appellate court as prescribed in Point a, Clause 2, Article 23 of the Resolution No. 326 dated December 30, 2016 of the National Assembly.

- Debate:

+ Defendant Tr proposes the People’s Procuracy to consider the fact that he expressed cooperative and relieved the consequences to reimburse money to workers.

+ Defendant Th proposes the People’s Procuracy to consider that the defendant has no bad record, regarding to the previous suspended criminal case of deliberate infliction of body harm, Th only self defense after being hit, the investigation authority had prosecuted Th but the court suspended the case thereafter. Thus the defendant was not guilty and did not violate the criminal law. Th has served in the army, stationed in Tho Chu island, Th's family has meritorious service to the revolution.

+ Mr. H2, Mr. H1, Mrs. H have no arguments.

+ Response of the representatives of the People’s Procuracy: In consideration of the sincerity, the sense of law observance, alleviation of the consequences, roles and personal identities of the defendants, the Court of First Instance sanctioned the defendants less than the starting level of the sentence bracket prosecuted by the People’s Procuracy. This showed the leniency towards the defendants. With respect to the defendant Th, the Court decided to suspend the case based on Article 25 of the Criminal Code, however, it is still considered as bad record.

- The defendants’ last words:

+ Defendant Tr: His family circumstances are difficult, he proposes the Trial Panel to consider mitigating the sentence to suspended sentence in order for he to have good conditions to improve and support the family and he will work to earn money to reimburse workers.

+ Defendant T: His family circumstances are difficult, he is the breadwinner, he proposes the Trial Panel to consider a suspended sentence in order for he to take care of his family and he will work to earn money to reimburse workers.

Based on documents and items of evidence assessed at the court hearing; argument result at the court hearing and extensive verification of items of evidence, opinions of procurators, depositions of defendants and other involved parties.

JUDGMENT OF TRIAL PANEL

 [1] Regarding the legality of the appeal: Appeals of the defendants and persons with related rights and obligations are made within the appeal time limit and sent to the People's Court of District V, Bac Giang Province in accordance with the provisions of Article 231, Article 233 and Article 234 of the Criminal Procedure Code 2003 (now Article 331, Article 332 and Article 333 of the Criminal Procedure Code 2015), thus they are regarded as lawful appeals. The Trial Panel therefore accepts to resolve the appeals of the defendants and the persons with related interests and obligations according to the appellate procedure.

 [2] Considering the defendants' offenses: From March 2016 to June 2016, Tran Duc Tr and Bui Quy T consulted and collected VND 1,283,020,000 from 29 workers, organized 03 trips for 24 workers to China by 15-day tourist visas days to work illegally in China, in specific:

- For defendant Tran Duc Tr: Knowing clearly that Vietnam and China do not sign any international labor cooperation; Phuong Dong Foreign Language Center has not been licensed, T Co., Ltd has no branch office at 60, Street Y, Ward 8, District T, Ho Chi Minh City and has no business line of labor export and has stopped operating since 2010, Tran Duc Tr still contacted Liu X and Shi Zhuan Q and then discussed with Bui Quy T to recruit people who fled to China to work illegally in the form of travel. From March 2016 to June 2016, Tran Duc Tr and Bui Quy T enticed, convinced, collected VND 1,283,020,000 from 29 workers, organized 3 trips for 24 workers to China by 15-day tourist visas to work illegally in China so as to gain VND 345,685,000.

- For the defendant Bui Quy T: Being told by Tran Duc Tr that Vietnam and China do not sign any international labor cooperation; Phuong Dong Foreign Language Center has not been licensed, T Co., Ltd has no business line of labor export, but Bui Quy T still together with Tran Duc Tr enticed and organized 03 trips for 24 workers to fled to China for working with tourist visas, in which Bui Quy T has consulted for 10 workers and together with Tr directly sent 08 workers to flee to China for working with tourist visas and he was distributed VND 136,720,000 by Tran Duc Tr.

The First Instance Verdict’s declaration that Truong Duc Tr, Bui Quy T are guilty of "Organizing others to flee abroad" as stipulated in Clause 2, Article 275 of the Criminal Code 1999 is considered that guilty person was rightly convicted without unjustly punishment.

 [3] Regarding appeals for mitigation of sentence, suspended sentence imposed on defendants:

- Regarding judicial records of the defendants:

+ For the defendant Tran Duc Tr: he is a person with bad judicial record, in 2001 he was convicted by the Court of "theft of property" but he not only has failed to rehabilitate, but also continued to commit violation of criminal law.

+ For the defendant Bui Quy T: In 2006, he was prosecuted and charged with "Deliberate infliction of bodily harm", but it was later suspended by the People's Court of District D, Thai Binh Province as prescribed in Article 25 of the Criminal Code. As a result, he is not considered to have bad judicial record which may cause disadvantageous situation for him.

- Regarding the aggravating circumstances of criminal liability: The First Instance Verdict was well-grounded to determine that the defendant were not subject to aggravating circumstances under Clause 1, Article 48 of the Criminal Code.

- Regarding the extenuating circumstances of criminal liability:

+ For the defendant Tran Duc Tr (aka Tran Vi K): at the investigating body and at the trial he showed attitude of sincere declaration and repentance. The defendant voluntarily compensated damage to the person with related rights and obligations and was responsible for sending 18 people to return Vietnam. The defendant has grandparents who were recorded in the Golden Roll of Honor. The Court of First Instance was well-grounded to apply the extenuating circumstances prescribed at Point b, Point p, Clause 1, Clause 2, Article 46 of the Criminal Code 1999..

In addition, the defendant Tran Duc Tr (aka Tran Vi K) has been awarded the First Class Resistance Medal, Third Class Resistance Medal, Second Class Liberation Medal. As stipulated in Resolution No. 109/2015/QH13 in Viet Nam dated 27/11/2015, Resolution No. 144/2016/QH13 in Viet Nam dated June 29, 2016 and Resolution No. 41/2017/QH14 in Viet Nam dated June 20, 2017 of the National Assembly. The Court of First Instance was well-grounded to apply the extenuating circumstance as prescribed at Point x, Clause 1, Article 51 of the Criminal Code 2015.

+ For the defendant Bui Quy T: at the investigating body and at the trial he showed attitude of sincere declaration and repentance. The defendant voluntarily compensated damage to the person with related rights and obligations and acted upon Tran Duc Tr to send 18 people to return Vietnam. The defendant has served in the army, stationed in Tho Chu island and was awarded with advanced soldiers and his grandfather was awarded the Third Class Resistance Medal by the People's Committee of Thai Binh Province and awarded a certificate of outstanding achievements in the Resistance War against the American Empire to Save the Nation. His grandmother was awarded the Third Class Resistance Medal. The Court of First Instance was well-grounded when determining that they are extenuating circumstances in accordance with Point b, Point p, Clause 1, Clause 2, Article 46 of the Criminal Code.

- Based on aggravating and extenuating circumstances, the roles and judicial records of the defendants as well as the nature of the case and the seriousness of the acts committed by the defendants, the Court of First Instance’s application of Article 47 of the Criminal Code of 1999 to pronounce the sentence of 03 years’ imprisonment against the defendant Tr and 02 years’ imprisonment against the defendant T was in accordance with the law, both having leniency and general deterrence and prevention.

- During the appellate trial, Tran Duc Tr and Bui Quy T do not have any new extenuating circumstances. Therefore, based on the request of the representative of the Procuracy, provisions of Point a, Clause 1, Article 355; Article 356 of the Criminal Procedure Code, the Trial Panel does not accept appeals for the reduction of sentences and the suspended sentence imposed on Tr and T and uphold the First Instance Verdict in terms of charges and sentences passed on the defendants.

 [4] Considering the content of the appeal of Tran Duc Tr and those who have related rights and obligations to refuse the confiscation of 1 VND 188,960,000 to the state fund and request for compelling the defendants to reimburse the money to the workers, the Trial Panel finds that:

- The Court of First Instance considered that the amount of VND 188,960,000, belonging to two families of Mrs. Bui Thi H and Mr. Nguyen Van H is considered as the tool and instrument of commission of offence, in addition the workers also have partial faults in this case. Therefore, the Court of First Instance was well-grounded when confiscating the remaining sums that the defendants have not reimbursed to the workers to the state fund as prescribed in Clause 3, Article 41 of the Criminal Code and Points a and c, Clause 2, Article 76 of the Criminal Procedure Code. However, the documents in the case file show that the sums collected by the defendants are technically reimbursed to the workers, only a few of whom are mentioned above. Because of family difficulties because the family hand limited legal knowledge, the workers  tried to borrow money to work abroad to make ends meet. As labor conditions in China are not in line with the law, the workers suffered many disadvantages. Therefore, in order to ensure fairness and benefits for all workers in the process of settling the case, the Panel considers that it is unnecessary to confiscate the amount of VND 188,960,000 to the state fund from the defendants.

- Therefore, on the basis of the request of the representative of the Procuracy, based on the provisions of Clause 1, Article 357 of Criminal Procedure Code, the Trial Panel accepts the appeal of defendant Tr and of the persons with related rights and obligations not to confiscate money from the defendants to the state fund, revise the First Instance Verdict in terms of confiscation of the amount of Vietnam 188,960,000 to the state fund. This amount of money must be reimbursed by the defendants to the workers.

- At the trial, defendants Tr, T and persons with related interests and obligations agreed on the imbursement which should be recognized, in specific:

+ Tran Duc Tr (aka Tran Vi K) is responsible for reimbursing Mr. Nguyen Huu H1, Mr. Nguyen Huu H (authorized by Mrs. Bui Thi H) a total amount of VND 30,000,000 within one month from the date of appellate trial of the case. If defendant Tr does not comply with the agreement mentioned above, he will have to reimburse the full amount of 54 VND million to Mr. H1 and his child, specifically reimburse Nguyen Huu H1 VND 22 million, and reimburse Mr. Nguyen Huu H VND 32,000,000. + Bui Quy T is responsible for reimbursing Mrs. Nguyen Thi H (authorized by Mr. Nguyen Van H2) for the amount of VND 20,000,000 within 1 month from the hearing date of the appeal. If T fails to comply with the agreement mentioned above, he will have to pay the full amount of VND 44,800,000 to Mrs. Nguyen Thi H.

 [5] Regarding appellate criminal court fees:

- Due to the fact that Bui Quy T's appeal was not accepted, pursuant to the provisions of Point a, Clause 2, Article 23 of Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the Standing Committee of the National Assembly on court fees and charges and exemption, reduction, collection, transfer, management and use thereof, he has to pay an appellate court fee of VND 200,000.

- Due to the fact that appeals of Tran Duc Tr and those with related rights and obligations were accepted, pursuant to the provisions of Point h, Clause 2, Article 23 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the Standing Committee of the National Assembly on court fees and charges and exemption, reduction, collection, transfer, management and use thereof, Tran Duc Tr and Mrs. H, Mr. H1, Mr. H2 have to pay an appellate court fee.

 [6] Other decisions of the First Instance Verdict which do not have any appeal will remain legally effective from the expiry of time limit for the appeal.

Pursuant to documents and evidence mentioned above:

HEREBY DECIDES

 [1] Pursuant to Point a, Clause 1 Article 355, Article 356; Clause 1, Article 357 of the Criminal Procedure Code: Not accept the appeal of Tran Duc Tr (aka Tran Vi K) and Bui Quy T in terms of request for mitigation of sentences and suspended sentences. Uphold the First Instance Verdict No. 39A/2017/HSST dated August 11, 2017 of the People's Court of District V, Bac Giang province on charges and sentences passed on the defendants.

- With regard to charges: Declare that the defendants Tran Duc Tr (aka Tran Vi K) and Bui Quy T are guilty of "Organizing others to flee abroad".

- With regard to application of regulations and sentences:

+ Pursuant to Clause 2 of Article 275; Points b and p, Clause 1 and Article 46; Article 20; Article 53; Article 47; Article 33 of Criminal Code 1999 and Point x, Clause 1, Article 51 of Criminal Code 2015: Tran Duc Tr (aka Tran Vi K) is sentenced to 3 years in prison. The prison term commences from the date of arrest for execution.

+ Pursuant to Clause 2 of Article 275; Points b and p, Clause 1 and Article 46; Article 20; Article 53; Article 47; Article 33 of Criminal Code 1999, Bui Quy T is sentenced to 2 years in prison. The prison term commences from the date of arrest for execution.

 [2] Pursuant to Clause 1 Article 357 of the Civil Procedure Code: Accept a part of the appeal of defendants Tran Duc Tr and Mrs. Bui Thi H, Mr. Nguyen Huu H1, Mr. Nguyen Van H2 and revise a part of First Instance Verdict No. 39A/2017/HSST dated August 11, 2017 of the People's Court of District V, Bac Giang Province on the application of judicial measures and the settlement of civil obligations.

- With regard to judicial measures: Not to apply the judicial measure to confiscate VND 188,960,000 of the defendants to the state fund, in specific:

+ Tran Duc Tr (aka Tran Vi K) with the amount of VND 132,000,000 (one hundred thirty two million dong). + Bui Quy T VND 56,960,000 (five million six hundred and nine hundred sixty thousand dong).

- With regard to civil obligations: Recognizing the agreement on the performance of payment reimbursement between the defendants Tran Duc Tr (aka Tran Vi K), Bui Quy T and Mrs. Bui Thi H, Mr. Nguyen Huu H1 , Nguyen Van H2, in specific: + Tran Duc Tr (aka Tran Vi K) is obliged to pay Nguyen Huu H1, Nguyen Huu H (authorized by Mrs. Bui Thi H) total amount of VND 30,000,000 within one month from the date of appellate trial of the case (January 18, 2018). If Tran Duc Tr does not comply with the agreement mentioned above, he will be obliged to repay the full amount of VND 54 million to Mr. H1, Mr. H, specifically pay Nguyen Huu H1 VND 22 million, pay Mr. Nguyen Huu H (authorized by Mrs. Bui Thi H) amount VND 32,000,000.

+ Bui Quy T (aka Tran Vi K) is obliged to pay Mrs. Nguyen Thi H (authorized by Mr. Nguyen Van H2) total amount of VND 20,000,000 within one month from the date of appellate trial of the case (January 18, 2018). If Bui Quy T does not comply with the agreement mentioned above, he will be obliged to repay the full amount of VND 44,800,00 to Mrs. Nguyen Thi H (authorized by Mr. Nguyen Van H2).

As from the time when the Verdict takes effect, if the judgment creditors file their written requests for judgment execution but the judgment debtors fail to execute or execute incompletely the amounts to be executed, the judgment debtors shall bear the interest of the unpaid amount at the interest rate specified in Clause 2, Article 468 of the Civil Code 2015 in Viet Nam, corresponding to the delayed time period for judgment execution.

 [3] Regarding appellate criminal court fees:

- Pursuant to the provisions of Point a, Clause 2, Article 23 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the Standing Committee of the National Assembly on court fees and charges and exemption, reduction, collection, transfer, management and use thereof, Bui Quy T has to pay an appellate court fee of VND 200,000.

- Pursuant to the provisions of Point h, Clause 2, Article 23 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the Standing Committee of the National Assembly on court fees and charges and exemption, reduction, collection, transfer, management and use thereof, Tran Duc Tr, Mr. Nguyen Van H2, Mrs. Bui Thi H, Mr. Nguyen Huu H1 do not have to pay an appellate court fee.

 [4] Other decisions of the First Instance Verdict No. 39A/2017/HSST dated August 11, 2017 of People’s Court of District V, Bac Giang Province which do not have any appeal will remain legally effective from the expiry of time limit for the appeal.

The Appellate Verdict shall take legal effect from the date of pronouncement.

In case the Verdict 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, 7a, 7b 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.


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Verdict No. 02/2018/HSPT dated January 18, 2018 on organizing others to flee abroad

Số hiệu:02/2018/HSPT
Cấp xét xử:Phúc thẩm
Agency issued: Tòa án nhân dân Bắc Giang
Field:Hình sự
Date issued: updating
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