Verdict No. 04/2018/HSST dated April 6, 2018 regarding illegal possession of narcotic substances

PEOPLE’S COURT OF DONG VAN DISTRICT OF HA GIANG PROVINCE

VERDICT NO. 04/2018/HSST DATED APRIL 6, 2018 REGARDING ILLEGAL POSSESSION OF NARCOTIC SUBSTANCES

On April 6, 2018, a first instance trial was conducted at the courtroom of People’s Court of Dong Van District of Ha Giang Province to hear the criminal case No. 03/2018/HSST dated February 27, 2018 pursuant to the Decision to bring the case to trial No. 03/2018/QDXXST-HS dated March 23, 2018 against the defendant below:

DUONG SIEU H, nickname: None;

Date of birth: March 18, 1988, place of birth: Pho B Town, D District, Ha Giang Province.

Place of residence: Zone 1, Pho B Town, D district, Ha Giang province; occupation: teacher; educational level: Grade 12; ethnicity: Han Chinese; gender: male; religion: none; nationality: Vietnamese; his father: Duong Van K, born in 1959 and his mother: Hoang Thi P, born in 1962; his wife: Sung Thi H, born in 1988 (divorced in 2017); children: no; prior conviction: none; identity: a Communist Party member; arrested and detained from November 20, 2017 and prosecuted and detained from November 29, 2017. The defendant is being temporarily detained in the remand centre of Police of D district, Ha Giang province, present at the hearing;

* Witnesses:

- Mr. Ly Van N, born in 1971

Place of residence: Na Ma Village, Yen M Town, Yen M District, Ha Giang Province, present.

- Mr. Vang Mi T, born in 1981

Place of residence: Lung Cam Village, Soc L Commune, D District, Ha Giang Province, absent for no reason.

* Persons with related interests:

- Mrs. Duong Thi T, born in: 1980.

Place of residence: Group 1, Town D, District D, Ha Giang Province, present;

- Mr. Nguyen Van D, born in 1982

Place of residence: Group 1, Pho B Town, District D, Ha Giang 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:

At 21:10 pm on November 19, 2017, Duong Sieu H, born on March 18, 1988, residing at: Zone 1, Pho B town, D district, Ha Giang province, received a phone call from an acquaintance named Du.  He said: “I have a little “dope” but I'd got to go, come Dong Van town soon if you want some" (implying drug), H agreed and then hung up the phone to sleep. At 5:45 am on November 20, 2017, D called H again and said:  “Come here quickly, I’d got to go soon”. H replied:  “Wait a minute” then H put down the phone to keep sleeping. About 8 am on that day, H got up and rode a motorbike YAMAHA brand, JUPITER make, red and black color, license place 23L2-0116, which has been borrowed from his aunt Duong Thi T, born in 1980, residing in Group 1, Town D, District D, Ha Giang province, to Town D, District D, bringing VND 4,350,000 (four million three hundred and fifty thousand dong). At the crossroad of the old quarter in Town D, at 8:53 am, H phoned D and said:  “I’m here in Dong Van, where are you?”, “I’m on C Street, come here” D replied Then, H rode to C street and saw D walking down. Sensing nobody around, H met D and ask how much drugs H had, D answered:  “Two million” and then D gave drugs by his right hand and H took them by his left hand without counting and put them into the front left pocket, and gave D VND 2,000,000 *two million). After the exchange, D and H left and H rode the motorbike around the Town D. About 13 pm on November 20, 2017, H rode motorbike home through the headquarters of the People’s Committee of Thai Phin T, D District, Ha Giang Province about 500 meters, H stopped to pickup cigarettes for smoking but there was only one cigarette, he smoke, and then grabbed all the drugs bought from D to check out, counting 11 small packages, in which: There are 8 packages wrapped in yellow paper, 3 packages wrapped in white paper. After checking, Hiep put the all 11 packages of drugs into the yellow cigarette pack, labeled “Thang Long” and put it back into the front left pocket and continued to ride motorbike home in Pho B Town. Reaching the milestone 118 on Highway 4C Ha Giang – Dong Van in Lung Cam T Village, Sung L Commune, D District, he saw an acquaintance named Ly Van N, born in 1971, residing in Na M Village, Yen M Town, Yen M District, Ha Giang province standing on the left side of the road, H stopped on the right shoulder to talk. When H was about 2 meters away from Nam, a Task Force of D Town Police came, H suddenly returned to his motorbike intending to leave but the Task Force promptly stopped him. Sensing suspicious expression, the police examined H and found that H had 11 small packages (suspected drugs) in a cigarette pack labeled Thang Long in the front left pocket and H admitted they were drugs. The Task Force made a report on arresting offender caught in the act at 14:30 pm on the same day against Duong Sieu H, seizing all the exhibits and brought to Town D Police and settlement.

The seized exhibits include: 11 (eleven) packs of white powder are drugs (heroin) in which: 8 (eight) packs wrapped in yellow paper, 3 (three) packs wrapped in white paper; 1 yellow cigarette pack labeled Thang Long, 1 used motorbike Yamaha brand, Jupiter make, license place 23L2-0116; 1 used black wallet; 1 ID card + 1 Agribank card named Duong Sieu Hiep; 1 used white mobile phone with the word “iphone” in the back; 9 notes of VND 200,000; 5 notes of VND 100,000; 5 notes of 10,000 and 1 note of foreign currency 100YUAN, 2005, serial number Z71C343930.

On November 21, 2017, the Investigation Body of District D Police opened the seal of seized exhibits, weighed and solicited expert advice with the result as follows:

+ Marked up 8 packages wrapped in yellow paper: M1, M2, M3, M4, M5, M6. M7, M8 and 3 packages wrapped in white paper: M9, M10, M11.

+ Measured the weight of the white powder alone in packages marked from M1 to M11: M1 = 0.1gam; M2 = 0.11 gam; M3 = 0.1 gam. M4 = 0.12 gam. M5 = 0.06 gam. M6 = 0.09 gam. M7 = 0.11 gam. M8 = 0.08 gam. M9 = 0.1 gam. M10 = 0.1 gam and M11 = 0.08 gam.

Total net weight of powder in packages marked from M1 to M11 is:  1.05 gam (one point zero five gam).

On November 21, 2017, Investigation Body of Dong Van Police issued the Expert Advice Soliciting Decision No. 01/QD-CQDT and sent specimens marked M1’ to M11’ extracted from white powder packs (suspected to be drugs) marked from M1 to M11 seized from Duong Sieu H to send them to Criminalistics Department affiliated to Tuyen Quang Public Security for assessment: “Is specimen sent to the assessor drug? If yes, what kind of this drug?”. In the Expertise Conclusion No. 535/GDKTHS dated November 27, 2017 of Criminalistics Department affiliated to Tuyen Quang Public Security:

 “The specimens sent for assessment marked from M1’ to M11’ are samples taken from exhibits marked from M1 to M11 seized in the Duong Sieu H case according to the Expert Advice Soliciting Decision No. 01/QD-CQDT dated November 21, 2017 of Investigation Body of Dong Van Police of Ha Giang Province are drugs, Heroin type"..

During the investigation, H confessed: About June 2017, H met and knew a Chinese man, about 30 (unknown full name, age, address), usually going to the market in Pho B Town, D District. Getting acquainted with him, H knew that he had been using drugs and had let him use drugs many times so H has been addicted. Every time H had no drug, he bought terpin instead. On November 15, 2017, H hung out in D Town and met a man on C Street, D Town, D District named D in Yen Bai Province (unknown specific full name, age and address). Through acquaintance, H knew that Du had been selling drugs but they were out of stock; They exchanged the phone numbers for further sale of drugs and H saved D in the phone contact as: “D dope”. At 21:10 pm on November 19, 2017, D phoned H to inform the availability of drugs in D Town. H bought the above drugs from D for use but was caught and arrested after that.

The Indictment No. 04/CT-VKS dated February 26, 2018 of the People’s Procuracy of District D of Ha Giang Province prosecutes defendant Duong Sieu H for  “Illegal possession of narcotic substances” as prescribed in Clause 1 Article 194 of Criminal Code 1999 in Viet Nam.

During the investigation as well as at the today’s trial, Duong Sieu H admitted his offence “Illegal possession of narcotic substances” as stated in case file p.40 to 64;

In the debate at the trial, the representative of the People’s Procuracy expressed their view on the settlement of the case and upheld the prosecution against the defendant as stated in the Indictment, and requests the Trial Panel to declare Duong Sieu H guilty of  “Illegal possession of narcotic substances” and apply Clause 1 Article 194; Point p Clause 1 Article 46 of Criminal Code; apply Point h, Clause 2 Article 2 of Resolution No. 41/2017/QH14 in Viet Nam dated June 20, 2017 of the National Assembly; Clause 1 Article 249 of Criminal Code 2015 in Viet Nam to sentence Duong Sieu H to 18 to 24 months in prison; take actions against exhibits and collect court fees as per the law.

At the trial, Duong Sieu H sincerely admitted his crime, in accordance with testimonies of witnesses, testimonies of persons with related interests and written statements of witnesses provided by the investigation body in the case file: The defendant has no response or argument with the viewpoint of the People’s Procuracy. The defendant proposes the Trial Panel to consider mitigation of punishment as per the law.

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, the defendant and other involved parties.

JUDGEMENT OF THE COURT

Based on the content of the case, documents in the case file which have been examined and debated at the court session. The Trial Panel judges as follows:

 [1] With reference to procedural acts and decisions of Investigation Body of D Police, investigators, People's Procuracy of district D, prosecutors in the process of investigation and prosecution have performed in order the procedure and competence in accordance with the provisions of the Criminal Procedure Code. During the investigation process and at the trial, the defendant has no opinion or complaints against acts and decisions of the procedure-conducting bodies or persons competent to conduct the proceedings. Therefore, the acts and decisions of the procedure-conducting bodies and the persons competent to conduct legal proceedings have been lawfully implemented.

 [2]. At today's court hearing, Duong Sieu H confessed all of his offenses consistently with his statements at the investigation body kept in the case file, case file p.40 to p.64. Written report on arresting offender caught in the act, case file  p.01 to p.04; record of opening seals, measuring net weight and extracting specimens for assessment, case file p.19 to p.19; Expertise Conclusion, case file p.22; testimonies of witnesses Ly Van N, case file p.69 to p.72; Vang Mi T, case file p.73 to p.76; testimonies of persons with related interests Mrs. Duong Thi T and other testimonies, case file p.79 to p.84 and material evidence in the case file.

 [3] The Trial Panel finds that the Indictment of the People's Procuracy of Ha Giang district prosecuting defendant Duong Sieu H for “Illegal possession of narcotic substances” accordant with Clause 1 Article 194 of Criminal Code 1999; guilty person was rightly convicted. Regarding punishment, the representative of The People’s Procuracy requests the application of Point h, Clause 2, Article 2 of Resolution No. 41/2017/QH14 dated June 20, 2017 of the National Assembly, Clause 1 Article 249 of Criminal Code 2015 to sentence Duong Sieu H 18 to 24 months in prison, it is deemed grounded, legitimate and in conformity with nature and severity of the defendant’s offence.

 [4]. From the above evidence, the Trial Panel found that there are enough grounds to conclude: From 9:10 am to 14:30 pm on November 20, 2017, Duong Sieu H committed the offence “Illegal possession of narcotic substances”, the sentence prescribed in Clause 1 Article 194 of Criminal Code 1999 is 2 to 7 years in prison. However, due to changes in the state polices and laws, it is necessary to apply the principle more favorable to offender as prescribed in Point h Clause 2 Article 2 of Resolution No. 41/2017/QH14 dated June 20, 2017 of the National Assembly on implementation of Criminal Code 2015; in Clause 1 Article 249 of Criminal Code 2015, the sentence is from 1 to 5 years in prison.

 [5]. The Trial Panel recognizes that the defendant 's offense is dangerous to the society, directly infringes the state's regulations on management of narcotics, causing social disorder in the locality. The defendant committed serious crime, causing great harms to society, when committing crime of the accused has full capacity for criminal liability and has certain knowledge about the drug itself; the defendant himself is a drug addict, during the investigation and at the court today the defendant sincerely expressed repentance, this is the mitigating factor that reduces criminal liability as provided for in Point p, Clause 1, Article 46 of the Criminal Code, and benefits the leniency of the law. However, it is necessary to apply the sentence to isolate the defendant from the social life to improve and educate him to become a kind person to the family and the society as well as for deterrence and general prevention purpose.

 [6] With reference to exhibits of the case: During investigation, the Investigation Body of District D Police seized: 11 (eleven) packs of white powder are drugs (heroin) including: 8 (eight) packs wrapped in yellow paper, 3 (three) packs wrapped in white paper; 1 yellow cigarette pack labeled Thang Long, 1 used motorbike Yamaha brand, Jupiter make, license place 23L2-0116; 1 used black wallet; 1 ID card + 1 Agribank card named Duong Sieu Hiep; 1 used white mobile phone with the word “iphone” in the back; 9 notes of VND 200,000; 5 notes of VND 100,000; 5 notes of 10,000 and 1 note of foreign currency 100YUAN, 2005, serial number Z71C343930.

Considering that:

- 11 (eleven) packs of white powder are drugs (heroin) including: 8 (eight) packs wrapped in yellow paper, 3 (three) packs wrapped in white paper; 1 yellow cigarette pack labeled Thang Long are prohibited goods, with no use needed to be destroyed;

- 1 used white mobile phone with the word “iphone” in the back which the defendant used to buy drugs should be confisticated.

- Return the defendant:   1 used black wallet; 1 ID card

+ 1 Agribank card named Duong Sieu Hiep; 1 used white mobile phone with the word “iphone” in the back; 9 notes of VND 200,000; 5 notes of VND 100,000; 5 notes of 10,000 and 1 note of foreign currency 100YUAN, 2005, serial number Z71C343930.

- Return Mrs. Duong Thi T, born in 1980, residing in Group 1, Town D, District D, Ha Giang province 1 used motorbike YAMAHA brand, JUPITER make, red and black color, license place 23L2-0116 (without key); 1 vehicle registration license No. 001215 in the name of Duong Thi T. The motorbike was just be borrowed, not related to the crime, should be returned to Mrs. T as per the law.

With reference to court fees: The defendant has to pay a court fee as per the law. Based on above facts and matters:

HEREBY DECIDES

Pursuant to  Clause 1 of Article 194; Point p, Clause 1, Article 46 of the Criminal Code 1999; Point h Clause 2, Article 2 of the National Assembly's Resolution No. 41/2017/QH14 dated June 20, 2017; Clause 1 Article 249 of the Criminal Code 2015:

- Declare that Duong Sieu H is guilty of illegal possession of narcotic substances;

- Duong Sieu H is sentenced to 1 years 6 months in prison for: illegal possession of narcotic substances, the prison term is from the date of arrest to November 20, 2017.

- With reference to material evidence:

+ Pursuant to Points a and c, Clause 1, Article 41 of the Criminal Code 1999; Points a and c, Clause 2 of Article 106 of the Criminal Procedure Code 2015, the following shall be confisticated for destruction: 11 (eleven) packs of white powder are drugs (heroin) including: 8 (eight) packs wrapped in yellow paper, 3 (three) packs wrapped in white paper; 1 (one) yellow cigarette pack labeled Thang Long are prohibited goods, with no use needed to be destroyed.

+ Pursuant to Points a and c, Clause 1, Article 41 of the Criminal Code 1999; Points a Clause 2 of Article 106 of the Criminal Procedure Code 2015 in Viet Nam, the following shall be confisticated:

1 used white mobile phone with the word “iphone” in the back which the defendant used to buy drugs.

+ Pursuant to Point a Clause 3 Article 106 of the Criminal Procedure Code 2015return Duong Sieu H 1 used black wallet; 1 ID card;  1 Agribank card named Duong Sieu Hiep; 1 used white mobile phone with the word “iphone” in the back; 9 notes of VND 200,000; 5 notes of VND 100,000; 5 notes of 10,000 and 1 note of foreign currency 100YUAN, 2005, serial number Z71C343930.

+ Pursuant to Point 2 Article 41 of Criminal Code 1999; Point a Clause 3 Article 106 of the Criminal Procedure Code 2015 Return Mrs. Duong Thi T, born in 1980, residing at Group 1, Town D, District D, Ha Giang province 1 used motorbike YAMAHA brand, JUPITER make, red and black color, license place 23L2-0116 (without key); 1 vehicle registration license No. 001215 in the name of Duong Thi T.

The status and characteristics of the exhibits, such as the handover report dated March 7, 2018, between Investigation Body of Dong Van Police and Sub-Department of Civil Judgment Enforcement of Dong Van District, Ha Giang Province.

- With reference to criminal first instance court fee: Pursuant to Clause 2 Article 136 of the Criminal Procedure Code 2015; Point a Clause 1 Article 23 of Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016,

+ Duong Sieu H has to pay VND 200,000 (Two hundred thousand dong);

 “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, 7,7a 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”,

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.