Verdict No. 02/2020/HS-ST dated january 13, 2020 on organizing others to flee and emigrate abroad illegally

PEOPLE'S COURT OF BAC NINH PROVINCE

VERDICT NO. 02/2020/HS-ST DATED JANUARY 13, 2020 ON ORGANIZING OTHERS TO FLEE AND EMIGRATE ABROAD ILLEGALLY

On January 13, 2019, at the head office of the People’s Court of Bac Ninh province, a first instance trial is conducted to hear the criminal case No. 85/2019/TLST-HS dated December 4, 2019 under the Decision to bring the case to hearing No. 274/2019/QĐXXST-HS dated December 30, 2019 against:

Hoang Cong H, born on: August 4, 1993; registered place of residence: Hamlet C, Commune S, District G, Bac Ninh Province; occupation: worker; education level: 8/12; Kinh; gender: male; religion: none; nationality: Vietnamese; father: Hoang Cong L, born in 1971 and mother: Mrs. Nguyen Thi Th, born in 1975; wife, children: none; previous conviction or administration violation: none; arrested and detained from December 1, 2018 to January 31, 2019; being subject to residential confinement; present at the hearing. Record: In the Criminal verdict of the Foshan City Court, Guangdong Province, China in 2014, Hoang Cong H was sentenced to 7 years in prison for the act of "Organizing others to cross the country".  He completely served the sentence on November 26, 2018 and was expelled by China to Vietnam.

* In addition, there are 26 people with related rights and obligations.

THE CASE

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

Around the beginning of 2013, Hoang Cong H, born in 1993 in:  Village C, Commune S, District G, Bac Ninh Province, discussed with his biological father, Hoang Cong L, born in 1971, that he knew a friend named Vu Dinh Th , born in 1981 in K, Commune L, District L, Bac Ninh Province, who could seek a job in China for Vietnamese, the monthly salary is about 6,500,000 VND to 7,000,000 VND/person, each person must pay from 2,000,000 VND to 5,000,000 VND for entry and exit permits and transportation cost.  Those who do not have an identity card would cross the border illegally. After that, Hoang Cong H and Hoang Cong L promised to lead 24 people to flee to China to work. H collected from 6 people 24,000,000 VND, L collected from 14 people 62,000,000 VND. H and L asked Tran Van K, born in 1968, in D, Commune Tr, District L, to make entry and exit permits for those obtaining identity cards.  H and L organized to send those laborers to China twice.

In the first time, H and L sent 9 people, specifically:  On February 26, 2013, everyone gathered at L’s house, then L and H rented a van to carry them to Huu Nghi border gate, Lang Son. H asked Vu Dinh Thuan to take 5 people to emigrate using entry and exit permits, and for 4 people obtaining no such permit, H contacted Pham Sy H1, born in 1990, in village C, to lead them to China by the cross-border trail illegally.  These people, after coming  to China, had no job immediately, they had to rent boarding houses to stay.

In the second time, H and L sent 16 people, specifically:  On March 7, 2013, Hoang Cong L and Hoang Cong H contacted Tran Van K to lead 14 people to China through Huu Nghi border gate in Land Son using entry and exit permits. And 2 people without an entry and exit permit were brought to China by H though the illegal cross-border trail.

After the above people moved to China, Hoang Cong H and Hoang Cong L contacted Vu Dinh Th and Tran Van K to seek jobs as a carpenter and inox plating for these people.  Out of 24 people L and H who moved to China, 3 people applied for jobs themselves.  11 people on the way to work (1 person crossed the border, 10 people traveled on an entry and exit permit, stayed less than 1 month) were arrested by the Chinese authorities on March 12, 2013, and were returned to Vietnam on May 17, 2013.

The remaining 10 people, as introduced by L and H, had worked as carpenters and INOX plating for Chinese manufacturing facilities (unspecified address).  Thus, out of 24 people who were brought to China to work by H, 6 people crossed the border illegally, 18 people were sent using 1-month entry and exit permits.  Out of 18 people traveling on entry and exit permits, 7 people, as introduced by H, had jobs and had stayed to work beyond the deadline indicated on the permit; 1 person has looked for a job by himself; the remaining 10 people who worked for more than a week before being arrested by the Chinese authorities.  Based on the above facts and evidence:

In the Charging Document No. 95/CT-VKS-P1 dated November 29, 2019, the People's Procuracy of Bac Ninh province prosecuted the defendant Hoang Cong H for "Organizing others to flee and emigrate abroad illegally” under Clause 2, Article 275 of the Criminal Code 1999.

At today’s trial, Hoang Cong H pleaded guilty to all his crimes as prosecuted in the Charging Document:  As getting acquainted with some people who may seek jobs in China, H and his father L contacted with those in relatives, in the village or surrounding area who are in need of jobs to bring them to China.  Each person has to pay from 2,000,000 to 5,000,000 VND.  This is the fee for making entry and exit permits, transportation cost and job introduction.  H and L collected from them a total of 86,000,000 VND.  H and L asked Tran Van K to make the entry and exit permits.  After that, H and L rent two trips of van, bringing 24 workers to China and then arranged jobs for them.  Out of them, 6 people illegally crossed the border, 18 people traveled on the entry and exit permits, 07 people, as introduced by H, stayed to work beyond the deadline indicated on the entry and exit permit.  Some people even had no job before being arrested and returned to Vietnam.  Defendant H is aware that his act was wrong and against the law.  He only asks the Panel to consider giving him the lowest sentence so that he can soon return to his family and society.

Persons with interests and obligations related to the case: Mr. Hoang Cong L, present at the hearing, presents:  Defendant H discussed with him about sending other people to flee abroad and work abroad illegally.  He collected a total of 64,000,000 VND from some workers, which he gave to defendant H to cover the costs of sending these people to work illegally.

03 people with related interests and obligations present at the hearing claim that defendant H brought them to China and they stayed there to work illegally, and they paid H an amount of money, from 3 to 5 million each.  However, they do not ask defendant H to pay compensation for the money they paid to H.

The representative of the People's Procuracy of Bac Ninh province exercises prosecution rights at the trial by delivering an arraignment to uphold the Charging Document; after analyzing criminal acts, aggravating and mitigating circumstances, and the representative proposes the Trial Panel to declare defendant Hoang Cong H “Organizing others to flee and emigrate abroad illegally”.

Pursuant to Clause 2, Article 275 of the Criminal Code 1999; Point s Clause 1, Clause 2 of Article 51; Point g, Clause 1, Article 52; Article 38 of the Criminal Code 2015, Hoang Cong H should be sentenced to from 5 to 6 years in prison.

For the amount of 86,000,000 VND which H obtained as illegal gain, propose the Trial Panel to retrospectively collect and transfer to the state budget.

Defendant H does not participate in the argument with the representative of the Procuracy, only asks the Trial Panel to consider mitigating the penalty for the defendant.

JUDGEMENT OF THE COURT

Based on the contents of the case and documents available in the case file that have been litigated at the trial, the Trial Panel shall determine as follows:

[1].The defendant's statement at the court hearing is consistent with the defendant's testimony at the investigation agency, testimonies of the persons with related interests and obligations, and other evidences in the case file, the Trial Panel finds that there are sufficient grounds for concluding that: On February 26, 2013 and March 7, 2013, Hoang Cong H and Hoang Cong L organized 13 Vietnamese people to come to China and stay to work illegally, in which 6 people illegally crossed the border, 7 people traveled by entry and exit permits through Huu Nghi border gate, Lang Son province.  H gained illegal profit of 86,000,000 VND.

According to the provisions of Point c, Section 3.2, Part I of Circular No. 09/2006/TTLT / BLDTBXH - BCA - VKSNDTC - TANDTC in Viet Nam, H's act falls into the case of "Causing very serious consequences".  Therefore, it is grounded to convict the defendant Hoang Cong H of "Organizing others to flee and emigrate abroad illegally" under Clause 2, Article 275 of the Criminal Code 1999 as the prosecuted in the Charging Document.

The defendant had committed the criminal act before the Criminal Code 2015 in Viet Nam took effect. Upon trial, the Criminal Code 2015 has taken effect.  However, comparing Article 275 of the Criminal Code 1999 and Article 349 of the Criminal Code 2015, for the defendant's criminal acts, which are tried under Article 275 of the Criminal Code 1999, the penalty bracket is lighter than that of Article 349 Criminal Code 2015. Therefore, according to the principle in favor of the defendant, the Trial Panel shall apply the Criminal Code 1999 to the trial of the defendant Hoang Cong H.

The defendant's criminal offense is very dangerous to the society, violates the administrative order on immigration and the state's law on sending Vietnamese to work abroad.  Such act must be strictly dealt with by criminal law, the defendant must be isolated from the society for a while for rehabilitation and deterring similar criminals in general.

[2]. In terms of the defendant's role, record, aggravating and mitigating circumstances, the Trial Panel finds that: Defendant Hoang Cong H was the one who initiated and discussed with L to organize others to flee and emigrate abroad illegally, and H was also the person who, in person, collected money from some workers and organized 2 times to send these people to China and stay to work illegally. So the defendant has a main role in the case.  Regarding the aggravating circumstances:  Defendant H, together with L, twice enabled six people to illegally cross the border to China, so he incurs aggravating circumstance of: “Commit a crime in multiple times” as prescribed in point g Clause 1, Article 48 of the Criminal Code 1999. Regarding the mitigating circumstances, H sincerely declared and showed his repentant attitude; H went to the police station to confess, these are mitigating circumstances specified at Point p, Clause 1, and Clause 2, Article 46 of the Criminal Code 1999, which should be considered in the penalty consideration.

[3] Regarding civil liability: 03 people with related interests and obligations present at the hearing claim that defendant H brought them to China and they stayed there to work illegally, and they paid H an amount of money, each from 3 to 5 million.  However, they do not ask defendant H to pay compensation for the money they paid to H. Therefore, the Trial Panel does not mention it further.

[4]. Regarding judicial measures:  For the amount of 86,000,000 VND, it is the illegal gain collected by H from the workers, so it is necessary to retrospectively collect and transfer it to the state fund.

Regarding suspects declared by H: Phan Van D and Vu Dinh Th are absent from the place of residence; Tran Van K and To Thi M do not admit to the act as declared by H, so the investigation agency continues to investigate and deal with them further  when there are enough grounds.

For Pham Sy H1, the investigation process does not have enough grounds to prove that H1, together with H and L, illegally brought people to China. So, he will not be dealt with further.

For the workers who illegally exited and stayed in China to work illegally, the investigation security agency transferred documents to the Gia Binh District Police, Bac Ninh Province for further actions according to their competence.

The defendant has to pay the first instance criminal fee.. Therefore,

DISPOSITION

1. Declare Hoang Cong H guilty of "Organizing others to flee and emigrate abroad illegally".

Pursuant to clause 2 Article 275; Point p, Clause 1, Clause 2 Article 46; Point g, Clause 1, Article 48; Article 33 of the Criminal Code 1999: Hoang Cong H is sentenced to 6 (six) years in prison. The prison term commences from the arrest date and the defendant shall be given credit for days spent in confinement from December 1, 2018 to January 31, 2019.

2. Regarding judicial measures:  Pursuant to Article 41 of the Criminal Code 1999 in Viet Nam.

Retrospectively collect 86,000,000 VND from Hoang Cong H to transfer to the state fund.

3. With reference to court fees: The defendant Hoang Cong H has to pay 200,000 VND of first instance criminal fee..

The defendant and the person with related rights and obligations present at the trial have the right to appeal within 15 days from the date of pronouncement. The person with related rights and obligations present at the trial has the right to appeal within 15 days from the date on which the verdict is served or posted up.