Verdict No. 106/2017/HSST dated December 15, 2017 on organizing others to flee abroad

PEOPLE’S COURT OF HAI CHAU DISTRICT, DA NANG CITY

VERDICT NO. 106/2017/HSST DATED DECEMBER 15, 2017 ON ORGANIZING OTHERS TO FLEE ABROAD

On December 15, 2017, at the office of People’s Court of Hai Chau District, address:  24, Hoang Van Thu Street, Da Nang City, a first instance trial was conducted to hear the Criminal Case No. 46/2017/HSST dated June 19, 2017 against the defendants:

1. NGO S - date of birth: August 12, 1979; place of birth: Da Nang City; registered permanent residence and address: Group A, Ward B, District H, Da Nang City; occupation: accountant; educational level: 12/12, father: Ngo T (1955) and mother: Tran H (1960); husband: Le Q (1977); 02 children, the oldest (2001) and the youngest (2011).

The defendant had been detained from July 21, 2016 to November 16, 2016 and has been currently on bail. The defendant is present at the today’s trial.

Previous administrative penalties, previous convictions: none.

2. TRAN T - date of birth: October 24, 1979; place of birth: Da Nang City; registered permanent residence and address: Group B, Ward T, District H, Da Nang City; occupation: Director. educational level: 12/12; father: Tran C (1958) and mother: Nguyen H (1956); wife: Nguyen A (1983); two children: the oldest (2005) and the youngest (2011).

The defendant has been currently out on bail and is present at the trial. Previous administrative penalties, previous convictions: none.

* Related persons:

- Mr. Nguyen V - born in 1983; residing in: Neighborhood 03, Ward M, City B, Province B, absent.

- Mr. Luu T, born in 1955; residing at: 09, Alley 16, Street T, Commune N, City V, Province N, absent.

- Ms. Nguyen Thi H - born in 1983; residing in: Village 05, Commune P, District N, Province N, absent.

- Ms. Tran M, born in 1953; residing in: Group 02, Ward T, City V, Province B, absent.

- Mr. Nguyen K - born in 1991; residing in: Group 7, Ward T, City B, absent.

- Mr. Tran T, born in 1990; residing at: Block 03, Ward N, Town H, Province H, absent.

- Mr. Nguyen T - born in 1986; residing in: Village X, Commune N, District N, Province N, absent.

- Ms. Tran H, born in 1983; residing in: Group 5, Commune H, District Y, Province N, absent.

- Mr. Dang C, born in 1990; residing at: Village L, Commune N, District N, Province N, absent.

- Ms. Tran T, born in 1967; residing in: Village H, Commune T, District V, Province B; absent.

- Mr. Nguyen B - born in 1989; residing in: Block H, Ward N, Town C, Province N, absent.

- Mr. Nguyen T - born in 1984; residing in: Number a, Street H, Ward S, Town C, Province H, absent.

- Ms. Pham T, born in 1987; residing in: Number a, Street H, Ward S, Town C, Province H, absent.

- Mr. Dau T, born in 1984; residing at: Village X, Commune N, District N, Province N, absent.

- Mr. Ngo H, born in 1980; residing in: Group 2, Ward T, District H, Da Nang City, present.

- Mr. Le T, born in 1987; residing in: Group A, Ward N, District S, Da Nang City, present.

- Ms. Pham T, born in 1983; residing in: Group 1, Ward B, District H, Da Nang City, absent.

 - Ms. Nguyen N - born in 1981; residing in: Group 3, Ward B, District H, Da Nang City, present.

THE CASE

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

In late 2014, there was a young man named T (unknown background) who had regularly gone to the coffee shop G (No. 23, Ward H, District H, Da Nang City) owned by Ngo L, after many times, T asked Ngo  H if he had an acquaintance who was a company director to help T passport paperwork. Although H did not know anyone, he introduced Ngo L to T. T communicated with L and asked L to complete the passport paperwork, in specific: T gave L a dossier including 3 to 8 applicants for passport, each application consists of 02 photos 4x6cm size, an ID card, a piece of personal information paper, and an application form (for Vietnamese citizens applying for grant or modification of ordinary passports) for L to fill in and stick the photo thereon. Then, L used a computer in the coffee shop to draft a document as follows: L limited liability company requests Immigration Department to issue passports to Company L’s employees in order for them to work and study abroad to improve workmanship. After that, L brought all the above documents to Tran T - Director of the Company V to sign and stamp the company’s seal in the application forms, labor contracts, the request submitted to the Immigration Department and sign and stamp the seal in the letter of recommendation in the name of Ngo H or Nguyen N to submit to the Immigration Department. Ngo L brought dossiers certified by Tran T to Ngo H or Nguyen N and asked them to submit these dossiers to Immigration Department, after submission, T would return L ID cards of these applicants. When passports were issued, H or N would assign them to L. Then, L gave T ID cards and passports, T paid numeration to L, VND 1,500,000 each passport.

Of which 51 applications, the application of Le H was detected by the Chamber 5 - Immigration Department. Through extensive investigation and verification, 51 applications for passport filed by Company V are fake and thereafter transferred to Investigation Security Agency affiliated to Da Nang Public Security for further investigation of the crime. In which: 6 people used passports to exit, when they re-entered Vietnam, they were detected by the police of the border checkpoint; 04 people were detected when using their passports for exit; 13 people have used passports for exit and have stayed abroad currently; 10 people used passports for exit, they have entered but their true identity has not been identified; 13 people have passports left unused; 4 people have passed the verification of passport holders (however, these 4 people are not employees of Company V but are requested to issue passports); in which, 2 people used passports for exit and have re-entered Vietnam currently and 2 people have not used passports.

The Expertise Conclusion No. 719/GD-HS dated May 10, 2016 of Criminalistics Division of Da Nang Public Security shows that: Handwriting in documents subject to assessment No. A1 to A91 compared to handwriting in sample document in name of Ngo L No. M1 to M5 are written by the same person.

The Expertise Conclusion No. 749/GD-HS dated April 20, 2016 of Criminalistics Division of Da Nang Public Security shows that: Image of the round seal on the documents subject to assessment No. A1 to A 103 compared to image of the round seal on the documents No. M1 to M7 is made from the same seal. Handwriting in documents subject to assessment in the name of Tran T No. A1 to A103 compared to handwriting in sample document in name of Tran T No. M1 to M6 are written by the same person.

Ngo L paid a fee of 200,000 VND per passport and gave VND 5,100,000 to T (for certification of 51 dossiers). In total, Ty L has applied for a passport for T1 10 times (10 dossiers, including 51 passport holders). The illegal profit amount is VND 76,500,000 (VND 1,500,000 x 51 applications) - VND 10,200,000 (VND 200,000 x 51 applications) - VND 5,100,000 (given to T) = VND 61,200,000 (sixty one million, two hundred thousand dong).

The seized exhibits include:

- 10 (ten) passports seized at the border-checkpoint police when they were being used, including: Laissez-passer No. 0098324 under the name of Nguyen B; Passport No. C0158461 under the name of Hoang H; Passport No. C0072149 under the name of Pham D; Passport No. C0008512 under the name of Tran D; Passport No. B9885515 under the name of Nguyen T; Passport No. C0072147 under the name of Le T; Passport No. C0145048 under the name of Nguyen Thi T; Passport No. C0145045 under the name of Nguyen X; Passport No. C0158464 under the name of Le Tr; Passport No. B8850680 by Tran T.

- VND 20,000,000 (Twenty million dong) submitted by Ngo L's relatives.

- VND 5,500,000 (Five million one hundred thousand dong) submitted by Tran T.

In addition, by detecting four persons when using passports to exit and conducting investigation, determine:

Nguyen V is the person who provided passport service for the married couple Pham T - Nguyen T (for USD 1,700); Nguyen K (nick name C) (for USD 1,500) and a person named K (nick name N) unclear identity and whereabouts for USD 1,500. These persons provided photos and certificates of no criminal record to V. V asked Luu T to provide passport service for a price of about USD 1,300/passport, afterwards, Luu T asked Nguyen Thi Nguyen to provide passport service for VND 25 million/passport (for the married couple Pham T - Nguyen T), VND 26,000,000/passport (for Nguyen K and K). After that, Nguyen Thi H asked Tran M to provide passport service for VND 25,000,000/passport (for the married couple Nguyen K and K), VND 26,000,000/passport (for Nguyen K and K), Tran M asked a person named C (unclear identity and whereabouts) to provide passport service for the price of VND 25,000,000/ passport (for the married couple Pham T - Nguyen T), VND 26.000.000/passport (for Nguyen K and K). These passports all have photos of aforesaid people, but their names and personal information are someone else's. Through making fake passports for these 4 people, Nguyen V gained about USD 1,000, Luu T gained over VND 7,000,000, Nguyen H and Tran M gained VND 4,000,000 each.

At the court hearing, the defendants pleaded guilty.

The Indictment No. 14/CT-VKS-P1 dated March 15, 2017, the People's Procuracy  of Da Nang City prosecutes the defendants Ngo L and Tran T for "Organizing other people to flee abroad" under Clause 2, Article 275 of the Criminal Code.

At the trial, the representative of the People's Procuracy of Hai Chau District, Da Nang City kept the Indictment and request the Trial Panel as follows based on personal identity, nature of offense:

Declare the defendants Ngo L and Tran T guilty of: “Organizing others to flee abroad”.

Pursuant to Clause 2 Article 275, Point p Clause 1, 2 Articles 46 and 47 of the Criminal Code. The defendant Ngo L is sentenced to 24 months to 36 months in prison.

Pursuant to Clause 2 Article 275, Point p Clause 1, 2 Articles 46 and 47 of the Criminal Code. The defendant Tran T is sentenced to 24 months to 30 months in prison.

In terms of handling of exhibits, the Trial Panel is requested to apply Article 76 of the Criminal Procedure Code to:

- Confiscate the following for destruction: 09 (ten) passports seized at the border-checkpoint police when they were being used including: Laissez-passer No. 0098324 under the name of Nguyen B; Passport No. C0158461 under the name of Hoang H; Passport No. C0072149 under the name of Pham D; Passport No. C0008512 under the name of Tran D; Passport No. B9885515 under the name of Nguyen T; Passport No. C0072147 under the name of Le T; Passport No. C0145048 under the name of Nguyen Thi T; Passport No. C0145045 under the name of Nguyen X; Passport No. C0158464 under the name of Le T.

- Keep VND 25,100,000 illegally gained by Ngo L and Tran T for further confiscation to the public fund.

- Return the passport No. B8850680 to Tran T.

All of the above-mentioned exhibits have been administered by the Civil Judgment Enforcement Department of Da Nang City.

Keep VND 25,100,000 illegally gained by Ngo L for further confiscation to the public fund. Currently, this sum has been administered by the Civil Judgment Enforcement Department of Hai Chau District of Da Nang City.

The defendant Ngo L’s last words: The defendant repented of criminal offense she had committed, she has two children, thus, she expects the Trial Panel to consider mitigating the sentence.

The defendant Tran T’s last words: The defendant repented of criminal offense he had committed, he has worked in construction industry, imprisonment would deter him from doing business, he expects the Trial Panel to consider mitigating the sentence.

JUDGMENT OF TRIAL PANEL

On the basis of the content of the case, based on the documents available in the case file, which have been assessed, questioned, litigated at the trial, the Trial Panel determines as follows:

In terms of acts and proceedings of the investigating bodies, investigators, the People's Procuracy, prosecutors in the course of investigation and prosecution have strictly conformed to competence, order and procedures prescribed in the Criminal Procedure Code. During the investigation process and at the trial, the defendants did not have any comments or complaints about the acts and decisions of the presiding agencies and presiding persons. Thus, the acts and proceedings of presiding agencies and presiding persons have strictly complied with the provisions of law.

Considering the defendants' offenses: From late 2014 to April 3, 2015, Ngo L had prepared required documents as making identification documents, filling out false information in 51 applications for passports illegally. Then, she colluded with Tran Duy T - Director of Company V to sign and stamp for 51 non-employees of Company V to apply for a passport to work and study abroad.

As a consequence, the issuing authority granted passports to 51 ineligible persons (in which 29 persons have exited).

Their testimonies well matches with documents and evidence taken by the investigation agency available in the case file and taken in the argument section at the trial. So the Trial Panel has enough grounds to conclude that Ngo L and Tran T guilty of “Organizing others to flee abroad” prescribed in Clause 2 Article 275 of the Criminal Code as prosecuted by the People’s Procuracy of Da Nang City, which is considered as guilty person is rightly convicted as per the law.

With regard to nature and severity of the offence committed by each defendant:

With regard to Ngo L: In total, Ngo L has applied for passports 10 times (10 dossiers), filled untrue information in 51 applications for passport and taken initiative in asking Tran T - Director of Company V to sign and certify untrue information, L knew clearly that her act was to deceive specialized agencies to grant passports to 51 persons (in which 29 persons have exited).   L gained VND 61, 200,000 illegally.

With regard to Tran T - Director of Company V, who has signed and certified non-employees as employees of Company V and Tuan knew clearly that this certification was used to deceive the specialized agencies to grant passports, as a consequence, the issuing authority granted passports to 51 ineligible persons (in which 29 persons have exited) and gained VND 5,100,000 illegally.

The defendants’ acts have infringed administrative management order, which are deserved equivalent penalties. The Trial Panel and the People’s Procuracy of Hai Chau District reach a consensus on isolating the defendants from society for a period of time for education and general preventive deterrence purposes.

With regard to determination of sentence bracket:

Regarding the aggravating circumstances and mitigating circumstances and sentences passed on the defendants: The defendants do not have any aggravating circumstance. The defendants have no previous conviction and administrative penalty; they expressed cooperative attitude and showed his repentance, voluntarily submitted illicit proceeds so they are eligible for mitigating circumstances prescribed in Point p, Clause 1, 2 Article 46 of the Criminal Code. L should have faced a sentence heavier than the sentence faced by T, however, considering that L’s family has merit with the revolution, the Trial Panel will consider mitigating a part of the sentence for her. In terms of personal identities, the extenuating circumstances and the offenders' perpetration of the crime, the Trial Panel considers that: The defendants play the role of helpers, they neither directly nor get acquaintance with the passport holders, the Trial Panel considers and applies further Article 47 of the Penal Code in determining a sentence below the lowest level of penalty sentence.

With regard to civil liability: At the court hearing, although the married couple Mr. Nguyen T - Mrs. Pham T are absent, the case file clearly shows that:

On November 9, 2017, the People's Court of Hai Chau District, Da Nang City received a claim from Mr. Nguyen T, requesting that they want to get back the amount of USD 3,400 that he and his wife gave Nguyen V, which V kept giving it to the defendants in this case.

Considering the claim of Mr. T and Mrs. T, the Trial Panel determines that: Based on the documents and evidence in the case file: Nguyen V is the person who provided passport service for the married couple Pham T - Nguyen T (for USD 1,700); Nguyen K (for USD 1,500) and a person named K (nick name N) with unclear personal identity and whereabouts for USD 1,500. V asked Luu T to provide passport service for a price of about USD 1,300/passport, afterwards, T asked Nguyen Thi H to provide passport service for VND 25 million/passport (for the married couple Pham T - Nguyen T), VND 26,000,000/passport (for Nguyen K and K). After that, Nguyen Thi H asked Tran M to provide passport service for VND 25,000,000/passport (for the married couple Nguyen K and K), VND 26,000,000/passport (for Nguyen K and K), Tran M asked a person named C (unclear identity and whereabouts) to provide passport service for the price of VND 25,000,000/ passport (for the married couple Pham T - Nguyen T), VND 26.000.000/passport (for Nguyen K and K).

Thus, Nguyen V, Luu T, Nguyen Thi H and Tran M were the middlemen who provided passport service for Nguyen T, Pham T, who had no relationship with the two defendants Ngo L and Tran T. The married couple Pham T - Nguyen T said that they gave V USD 3,400 and then V gave it to the defendants in this case but there are not enough evidence to prove it. So, regarding the civil liability as claimed by the couple Mr. Pham T - Nguyen T, Panel will split it from this case, the parties involved will file a lawsuit in other cases as per the law.

Regarding illicit proceeds:  Defendant L illegally earned the amount of VND 61,200,000 and returned VND 30,000,000, defendant T illegally gained the amount of VND 5,100,000 and returned it fully. The Trial Panel found that it is necessary to keep collecting the illegal proceed of VND 31,200,000 gained by L.

With reference to exhibits:  Pursuant to Article 41 of the Criminal Code in Viet Nam; Article 76 of the Criminal Procedure Code in Viet Nam; the exhibits shall be handled as follows:

- Confiscation for destruction: 09 (ten) passports seized at the border-checkpoint police when they were being used including: Laissez-passer No. 0098324 under the name of Nguyen B; Passport No. C0158461 under the name of Hoang H; Passport No. C0072149 under the name of Pham D; Passport No. C0008512 under the name of Tran D; Passport No. B9885515 under the name of Nguyen T; Passport No. C0072147 under the name of Le T; Passport No. C0145048 under the name of Nguyen Thi T; Passport No. C0145045 under the name of Nguyen X; Passport No. C0158464 under the name of Le Tr; Passport No. B8850680 by Tran T.

- Return: the passport No. B8850680 to Tran T.

- Keep VND 25,100,000 illegally gained for further confiscation to the public fund (including VND 20,000,000 submitted by Ngo L and VND 5,100,000 by Tran Duy T).

All of the exhibits are currently under management of the Department of Civil Judgment Enforcement of the Da Nang City according to the record of handover of exhibits on June 8, 2017. Particularly for the amount of VND 25,100,000, the Investigation Security Agency affiliated to Da Nang Public Security has submitted it to the State Treasury according to the payment slip dated June 8 2017.

- Keep VND 10,000,000 illegally gained by Ngo L for further confiscation to the public fund according to the receipt No. 7908 dated November 14, 2017 at the Sub-department of Civil Judgment Enforcement of Hai Chau District, Da Nang City.

Regarding the person named T who transferred money, personal information, photos of applicants for passports to Ngo L. Through investigation, his/her identity and background has not been determined, so T will be investigated further.

For Ngo H and Nguyen N, who brought the passport applications to the Immigration Department for submission and brought back to Ngo L. H and N themselves do not know that these applications are fake. Considering that the nature of their acts and the fact that Da Nang Police Investigation Agency did not mention the criminal proceedings against Ngo H and Nguyen N in this case, so the Trial Panel does not consider them further.

Regarding Nguyen V, Luu T, Nguyen Thi H, Tran M who are middlemen to provide passport service for 04 persons (Nguyen T and Pham T, Nguyen K, and the man named K), these persons have no relationship with Ngo L and Tran T, so it is advisable not to consider accomplice matter in this case.

Regarding the person named C who accepted to enable M to have a passport but it is impossible to determine his/her identity and background, so Trial Panel does not mention him/her in this case, a further investigation may be carried out upon any detection.

For 10 people detected at border gates (of which 6 persons used passports for exit and were detected when being returned to Vietnam and 4 persons were detected when using passports for exit). These persons have been issued passports to work abroad, however, due to their violations of foreign regulations, they are prohibited from entry. In order to be able to return to work overseas, they asked the defendants to falsify their passport applications with their photos but personal information of others. They do not know how middlemen make passports for them. Their acts are not so serious to prosecute them, the Investigation Security Agency transferred the violation records to the Immigration Department take administrative actions against them, so the Trial Panel does not mention them in this case.

Ngo H declared that when submitting the application, there was a tip for Le T therein, but he did not know how much is was because L put it in an envelope. Through investigation, there is no basis to prove the above statement, thus, the Trial Panel does not mention it in this case.

Criminal first instance court fee: each defendant has to pay VND 200,000.

Based on the above-mentioned facts and matters,

HEREBY DECIDES

Declare the defendants Ngo L and Tran T guilty of “Organizing others to flee abroad”.

1. Application: Pursuant to Clause 2 Article 275, Point p Clause 1, 2 Articles 46 and 47 of the Criminal Code.

Sentence: Ngo L is sentenced to 24 (twenty four) months’ imprisonment, deducted from the detention period of 03 (three) months 25 (twenty five) days from July 21, 2016 to November 16, 2016, the remaining term of imprisonment shall be 20 (twenty) months 05 (five) days. The imprisonment term commences from the date of arrest.

2. Application: Pursuant to Clause 2 Article 275, Point p Clause 1, 2 Articles 46 and 47 of the Criminal Code.

Sentence: Tran T is sentenced to 24 (twenty four) months’ imprisonment. The term of imprisonment commences from the date of detention.

3. Regarding illicit proceeds:   Pursuant to Article 41 of the Criminal Code, Article 76 of the Criminal Procedure Code:

- Keep VND 31,200,000 illegally gained by Ngo Thi Ty L for confiscation to the state fund.

4. With reference to exhibits: Pursuant to Article 41 of the Criminal Code, Article 76 of the Criminal Procedure Code: Declare:

- Confiscation for destruction: 09 (ten) passports seized at the border-checkpoint police when they were being used including: Laissez-passer No. 0098324 under the name of Nguyen B; Passport No. C0158461 under the name of Hoang H; Passport No. C0072149 under the name of Pham D; Passport No. C0008512 under the name of Tran D; Passport No. B9885515 under the name of Nguyen T; Passport No. C0072147 under the name of Le T; Passport No. C0145048 under the name of Nguyen Thi T; Passport No. C0145045 under the name of Nguyen X; Passport No. C0158464 under the name of Le T.

- Return: the passport No. B8850680 to Tran T.

- Keep VND 25,100,000 illegally gained (including VND 20,000,000 of Ngo L and VND 5,100,000 of Tran T) for further confiscation to the public fund.

All of the exhibits are currently under management of the Department of Civil Judgment Enforcement of the Da Nang City according to the record of handover of exhibits on June 8, 2017. Particularly for the amount of VND 25,100,000, the Investigation Security Agency affiliated to Da Nang Public Security has submitted it to the State Treasury according to the payment slip dated June 8 2017.

- Keep VND 10,000,000 illegally gained by Ngo L for further confiscation to the public fund according to the receipt No. 7908 dated November 14, 2017 at the Sub-department of Civil Judgment Enforcement of Hai Chau District, Da Nang City.

5. Criminal first instance court fee: each defendant has to pay VND 200,000.

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.

Persons with related rights and obligations absent from the trial have right to appeal the Verdict within 15 days from the date on which the copy of Verdict is received.

Since the legally effective date of the Verdict, if Ngo L does not fulfill the obligation to pay the illegal proceed, she shall be subject to 50% of the statutory interest rate prescribed in Clause 1, Article 468 of the Civil Code in Viet Nam in proportion to the amount and time of delay.

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