Verdict No. 06/2020/HS-ST dated april 10, 2020 on resisting law enforcement officer in performance of duties related to prevention and control of Covid-19

THE PEOPLE’S COURT OF TIEN YEN DISTRICT – QUANG NINH PROVINCE

VERDICT NO. 06/2020/HS-ST DATED APRIL 10, 2020 ON RESISTING LAW ENFORCEMENT OFFICER IN PERFORMANCE OF DUTIES RELATED TO PREVENTION AND CONTROL OF COVID-19

On April 10, 2020, at the hall of the People's Committee of Dong Ngu Commune, Tien Yen District, Quang Ninh Province, the People's Court of Tien Yen District, Quang Ninh Province conducts a first instance trial publicly to hear the criminal case No. 06/2020/HS-ST dated April 8, 2020 under the Decision to Bring the Case to Trial under reduced procedures No. 07/2020/QDXXST-HS dated April 8, 2020 against the defendant:

Full name:  Dao Xuan A – Aka: Dao Xuan AD; Dao Van D, born on January 20, 1990 in Tien Yen, Quang Ninh.

Registered permanent residence and address: Village P, Commune D, District T, Quang Ninh Province.

Ethnicity: Kinh; occupation: Own-account worker; education: 9/12.

Father: Mr. Dao Van B – born in 19.. and mother: Mrs. Dao Thi B1 - born in 19...

Wife: Mrs. Lo Thi C – born in 19 ..; 2 children, born in 20 ... and 20…

Previous administrative violation: None;

Previous conviction: On June 28, 2012, Dao Xuan A was sentenced to 08 years of imprisonment the People's Court of Tien Yen District, Quang Ninh Province, charged with "Robbery" and completed the prison sentence on August 30, 2017;

The defendant turned himself in and was detained from April 5, 2020, currently detained at the Police Detention Center of Quang Ninh Province - Present.

Person with interests and obligations related to the case: Mr. To Van N – born in 19..; Address: PD Village, DN Commune, T District, Quang Ninh Province – Present.

Witnesses: Mr. To Tien T, Ms. Luong Thi H, Mr. Nguyen Van N1 - Present;

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:

Implementing Directive No. 16/CT-TTg in Viet Nam dated March 31, 2020 of the Prime Minister on the implementation of urgent measures to prevent and control covid-19 and the guiding documents of Quang Ninh Province and Tien Yen District. On March 31, 2020, the Steering Committee for Prevention and Control of Covid-19 Pandemic in Dong Ngu commune decided to set up Covid-19 groups and checkpoints in the commune to control people and means of transport coming in and out the villages, to check the body temperature, propagate, instruct and control the implementation of the covid-19 prevention and control measures of the people.

Around 4 pm on April 4, 2020, Mr. Nguyen Van N1 (residing in K village, D commune, Tien Yen district) was riding a motorbike carrying Dao Xuan A from P village, D commune, Tien Yen district when he encountered the quarantine checkpoint No. 7 in the DK village, DN commune, Tien Yen district. Meanwhile, presenting at the checkpoint were Ms. Luong Thi H (leader) who is tasked with recordkeeping; Mr. To Tien T who is responsible for lifting and lowering the barrier, and reminding people to wear masks and helmets; and Mr. To Van N who takes charge of measuring body temperature, and instructing people to fill out the health declaration. Seeing Mr. N1 and A on the motorbike coming, Mr. T asked him to stop for body temperature check and health declaration, and reminded Mr. N1 and A to return to wear a helmet and wear a mask as per regulations. Getting high on liquor, A had a disobedient attitude, went to the barrier, swore, insulted, and used the soldier’s hat on his head to beat Mr. T, but Mr. T could avoid it. Witnessing it, Mr. N stopped him but A continued beating Mr. N with the soldier's hat, then Mr. N raised his arm to block the hit, and it made his left elbow bruised. A kept cursing and insulting the Covid-19 team, and left thereafter.

On April 5, 2020, A turned himself in at Tien Yen Police and confessed his  offense conduct as mentioned above, and handed over the soldier’s hat used to beat Mr. T and Mr. N. It is a hat with green color, round brim, black strap, dented and crushed at the upper right corner, 10cm from the brim.

In the certificate of injury No. 20006442 dated April 6, 2020 of the Tien Yen District Medical Center, the injury of Mr. To Van N is described as follows: Slight pain in the left elbow area, there is a mild swelling around the head of the radial bone, 2cm below the articular circumference, (2x3) cm in size.

During the investigation process, defendant Dao Xuan A admitted the criminal conduct as described above.

In the Prosecution Decision No. 01/QD-VKS dated April 8, 2020, the People's Procuracy of Tien Yen district, Quang Ninh province prosecuted defendant Dao Xuan A for "Resisting a law enforcement officer in performance of his/her duties" under Clause 1 Article 330 of the Criminal Code.

At the trial, defendant Dao Xuan A confesses that when he went to the quarantine checkpoint at DK village, he did not wear a mask, did not comply with the request to check the body temperature of the COVID-19 quarantine checkpoint. After that, being under influence of liquor which he had drunk beforehand, he could not control himself and used the soldier’s hat to attack some members on duty at the quarantine checkpoint. The defendant pleads guilty to the offense as prosecuted.

Statement of the person with related rights and obligations, To Van N, at the trial: Mr. N1 rode a motorbike carrying Dao Xuan A to the quarantine checkpoint, Mr. To Tien T, a member of quarantine checkpoint, stopped them and asked them to have body temperature checked, wear masks and abide by the traffic safety regulations. Dao Xuan A did not obey the order to wear mask, refused the body temperature check, and loudly cursed Mr. T. Then, A asked to lift the barrier, Mr. T did not lift. After that, Dao Xuan A used the soldier’s hat on his head to beat Mr. T but Mr. t managed to dodge in time. Seeing that, Mr. N came out to stop him, Dao Xuan A turned to curse and insult Mr. A, and used the soldier’s hat to hit Mr. N. Mr. N raised his arm to block it and the hat hit his left elbow. Then, Dao Xuan A continued swearing and insulting members of the quarantine checkpoint. Mr. N claims that since his injury is not severe, he does not request an injury assessment and does not claim compensation, and also proposes a commutation of sentence for the defendant.

Statement of witness Luong Thi H: she is the leader of the COVID-19 quarantine checkpoint in DK village, DN commune to screen people coming in and out the village. Her tasks include checking body temperature, recordkeeping, reminding people to wear masks and sending a final report to the COVID-10 Steering Board of the commune on a daily basis. When Mr. N1's motorbike carrying Dao Xuan A came, Mr. T asked them to stop to check their body temperature, make health declaration, and also reminded Mr. N and Dao Xuan A to wear helmets and wear masks as required. However, Dao Xuan A not only refused to obey the order and but also cursed, insulted and used a soldier’s hat to beat Mr. T and Mr. N.

Statement of witness Nguyen Van N1 at the trial: He rode a motorcycle carrying Dao Xuan A from D village, D commune, Tien Yen district to the National Highway 18A. When he arrived at Covid-19 quarantine checkpoint in DK village, DN commune , the quarantine officer asked them to wear a mask, have body temperature measured, and wear a helmet before passing the barrier. Getting high on liquor, Dao Xuan A cursed, insulted the team and used the soldier’s hat to hit Mr. T and Mr. N.

At the trial, the procurator informs the defendant of the charge against him, upholds prosecution, and proposes the application of Clause 1 of Article 330; Point s, Clause 1; Clause 2, Article 51; Point h, Clause 1, Article 52 of the Criminal Code in Viet Nam to sentence Dao Xuan A from 9 to 12 months in prison for "Resisting a law enforcement officer in performance of his/her duties" and request the handling of exhibits according to law.

Last words of the defendant: He gives apology to the members of quarantine checkpoint and to everybody, and asks for a light sentence to soon return to family and society.

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 notes that:

Regarding the actions and decisions of Police Investigation Body of Tien Yen District; investigators; the People's Procuracy of Tien Yen District; procurators in the course of investigation and prosecution, they have strictly complied with the competence and procedures prescribed by the Criminal Procedure Code; in the course of investigation and at the trial, the defendant and the person with relevant rights and obligations have no opinion or complaint about the actions and decisions of presiding agencies and presiding officers. Therefore, the procedural acts and decisions of the presiding authorities and presiding officers have been made legally.

Considering that the testimony of defendant Dao Xuan A (case file p.49-54; 57-64) during the investigation and testimony at the trial are consistent with each other, consistent with the report of COVID-19 quarantine checkpoint No. 7 in DN commune (case file p. 15); report of scene examination, scene diagram (case file p. 16-18); scene image; exhibit image (case file p. 19-29); accordant with the testimony of witnesses Nguyen Van N1 (case file p.65-69), To Tien T (case file p.70-74), Luong Thi H (case file p.82-84); testimony of the person with related rights and obligations To Van N (case file p.75-81) and accordant with other documents in the file, there are sufficient grounds for concluding that:

Around 4 pm on April 4, 2020, at the Covid-19 checkpoint No.7 in D​K village, DN commune, Tien Yen district, Dao Xuan A disobeyed the order to wear a mask, have body temperature checked, and make a health declaration, and then Dao Xuan A cursed and insulted the quarantine officer and used a soldier’s hat to attack the officers on duty; among them, Mr. To Van N was injured.

Dao Xuan A’s conduct has committed the offense “Resisting a law enforcement officer in performance of his/her duties” as prescribed in Clause 1, Article 330 of the Criminal Code as follows:

Article 330. Resisting a law enforcement officer in performance of his/her official duties

 “1. Any person who uses violences or , threat of violence or otherwise obstructs a law enforcement officer from performing his/her official duties or forces a law enforcement officer to act against the law shall face a penalty of up to 03 years' community sentence or 06 - 36 months' imprisonment”.

Thus, the Prosecution Decision No. 01/QD-VKS dated April 8, 2020 of the People’s Procuracy of Tien Yen district, Quang Ninh province against Dao Xuan A is grounded, guilty person is rightly convicted.

As we all know, acute pneumonia caused by a new strain of Corona virus, called SARS-CoV-2, has been spreading rapidly and becoming a worldwide pandemic, this disease is referred to as COVID-19. This is an extremely dangerous epidemic, according to statistics of the Ministry of Health of Vietnam, as of 4pm on April 9, 2020, the world has more than 1,500,000 infected people, of which nearly 90,000 died, more than 200 countries and territories have been infected with SARS-CoV-2. The situation of COVID-19 disease is very complicated and unpredictable on a global scale, the number of new cases and deaths increases exponentially, there is no sign of stopping and so far no special drugs treatment.

In our country, the number of people infected with SARS-CoV-2 has also increased very rapidly, and it is predicted that the disease will spread rapidly on a large scale, seriously threatening human life, human health and socio-economic situation of the country. Therefore, our State has urgently set out many urgent and very drastic measures to prevent and reverse the epidemic such as: On March 27, 2020, the Prime Minister issued Directive No. 15/CT -TTg on taking drastic measures in the peak phase of prevention and control of Covid-19 disease; following that, on March 31, 2020, the Prime Minister issued Directive No. 16/CT-TTg on the implementation of urgent measures to prevent and control the COVID-19 epidemic, in particular, practicing social distancing within 15 days as of 00:00 on April 1, 2020 nationwide, with many specific solutions such as requiring people to wear masks in public, keeping a minimum distance of 2m when communicating, asking people to stay at home, only go out when really necessary such as buying food, medicine, emergency etc. Fully aware of the Prime Minister's Directives, all agencies and branches from the central to local levels and the entire political system have urgently and synchronously implemented measures to prevent and control the COVID-19  epidemic and have been supported by the people; the people voluntarily comply with the State's regulations on disease prevention, restriction of social contact, restriction of movement from one locality to another unless it is really necessary ... These solutions have brought very positive effects, our country has successfully curbed and prevented the spread of infection in the community, limited the outbreak of the epidemic.

The defendant, though aware of the dangers of epidemics, neither comply with state regulations on measures to prevent and control epidemic for himself and for society, nor abide by quarantine order when passing the quarantine checkpoint; moreover, he also cursed, insulted, and used a soldier’s hat to attack officers on duty at the COVID-19 quarantine checkpoint.

The defendant's conduct is dangerous to society, he used force to attack those who are performing the task of preventing and controlling the epidemic in , infringing on the normal and proper activities of the authorities in the performance of public tasks, especially for the fight against disease in the current period. This conduct also causes disorder in the locality, causing confusion and anxiety among the people.

Considering aggravating or extenuating circumstances of criminal liability, it is noted that:

The defendant showed cooperative attitude and repentance; after commission of the crime, he surrendered himself to police and the person with related rights and obligations also asks for commutation of his sentence. Hence, it is advisable to consider mitigating a part of his criminal liability as provided in Point s, Clause 1, Clause 2, Article 51 of the Criminal Code.

However, the defendant has been convicted and has not had his criminal record expunged. He did not take it as a lesson for self-rehabilitation; with no respecter of the law, the defendant continued committing a crime, which falls under aggravating circumstances "Recidivism ”prescribed at Point h, Clause 1, Article 52 of the Criminal Code. Therefore, it is necessary to take strict action against the defendant and isolate him from the community life for a period for him to rehabilitate in particular and deter similar criminals in general.

With reference to civil restitution:

The defendant used a soldier’s hat to beat Mr. To Van N but the injury was not heavy. Mr. N files no claim for damages, so the court will not consider it further.

Regarding exhibit handling:

01 (one) green soldier’s hat which the defendant used for the crime, the hat was broken and no longer usable, so it shall be confiscated for destruction.

Nguyen Van N1 accompanied Dao Xuan A, but he did not resist the performance of officers at the quarantine checkpoint. So, the court will not consider him further.

Nguyen Van A and Dao Xuan A's failure to wear a helmet when riding a motorbike in traffic and Dao Xuan A’s failure to wear a mask have faced penalties for administrative violations, so the court will not consider it further.

With reference to court fees: The defendant must bear first instance criminal fee as prescribed by law.

Therefore;

HEREBY DECIDE

- Pursuant to Clause 1, Article 330; Point s, Clause 1, Clause 2, Article 51; Point h, Clause 1, Article 52 of the Criminal Code;

Declare: Defendant Dao Xuan A (aka Dao Xuan AD; Dao Van D) guilty of “Resisting a law enforcement officer in performance of his/her duties”;

Sentence Dao Xuan A (aka Dao Xuan AD; Dao Van D) to 09 (nine) months in prison. The prison term commences from the date of detention, April 5, 2020.

Regarding exhibit handling: Pursuant to Point a Clause 1 Article 47 of the Criminal Code; Point c Clause 3 Article 106 of the Criminal Procedure Code in Viet Nam:

Confiscate 01 (one) used green soldier’s hat for destruction.

The condition and characteristics of the said evidence are shown in the Record of Handover of Exhibit No. 09/CCTHADS-BB dated April 9, 2020 between the District Police and the Sub-Department of Civil Judgment Enforcement of Tien Yen District, Quang Ninh Province.

With reference to court fees: Pursuant to Clause 2 Article 136 of the Criminal Procedure Code and Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the National Assembly Standing Committee, stipulating the court fees and charges, collection, exemption, reduction, management, and use thereof;

Force defendant Dao Xuan A (aka Dao Xuan AD; Dao Van D) to pay VND 200,000 (Two hundred thousand dong) of first-instance criminal court fee.

With reference to right to appeal: Pursuant to Article 331 and Article 333 of the Criminal Procedure Code:

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.