Verdict No. 12/2018/HS-ST dated May 18, 2018 on trading of banned commodities

PEOPLE'S COURT OF KRONG BUK DISTRICT, DAK LAK PROVINCE

VERDICT NO. 12/2018/HS-ST DATED MAY 18, 2018 ON TRADING OF BANNED COMMODITIES

On May 18, 2018, at the office of the People's Court of Krong Buk District, Dak Lak Province the first instance trial was conducted to hear the criminal case No. 09/2018/HS-ST dated April 12, 2018 according to the Decision to Bring the Case to Trial No. 03/2018/QDXXST-HS dated May 3, 2018 against the defendant:

Tran Thi D, born in 1964, in: District N, Quang Ngai Province; registered place of permanent residence and address: Village A, Commune P, District K, Dak Lak Province; occupation: farming; educational level: 03/10; Ethnicity: Kinh people; gender: female; religious: none; nationality: Vietnamese; her father: Mr. Tran N, born in 1940 and Mrs. Ton Nu Thi P, born in 1945; her husband: Mr. Le Van S, born in 1962 and four children, the largest child was born in 1982, the youngest child was born in 1992; previous conviction and administrative violation: none; defendant on bail: present at the trial.

- Witnesses: Mr. Vo Hoang A, address: Village X, Commune N, District N, Khanh Hoa Province; absent.

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:

On January 21, 2018, Tran Thi D hired Mr. Vo Hoang A to drive a truck of Mr. A with license plate 79C-084.83 to District D, Gia Lai Province to buy coffee green beans for D, after buying coffee, D let A picked up coffee on the car while D went to a coffee shop for a drink.  While he was being in the coffee shop, a man (with unknown identity and background) came to meet D and ask D if he wants to buy firecrackers to sell in Tet holiday for gaining profit, then D agreed. After the deal was completed, D bought from this man 56 plastic bags, the outside is printed with chicken pictures and foreign language words, and the inside is firecrackers, each firecracker is round and with a 3cm blue fuse, all are contained in a bag (the outside is printed with the phrase “phân gà đặc chế” (special chicken manure)) and 90 pieces of firecrackers, each one is 05cm long, with a 25cm long green fuse in a black plastic bag for VND 15,200,000.  D told Mr. A to load two bags of firecrackers which have just been bought into the car and then went home.  At 00:30 am, on January 22, 2018, when he arrived at Village A, Commune P, District K, Dak Lak Province and while the bags of firecrackers were being unloaded, he was caught by the Economics and Drug squad of Public Security of Krong Buk District and the squad seized 56 plastic bags printed with chicken pictures and foreign language words contained in a bag with the phrase “phân gà đặc chế” (special chicken manure), which weighs 16 kg and 90 firecrackers in plastic black bag, which weighs 03 kg.

Material evidence seized by the Investigation Agency consists of: 56 plastic bags printed with chicken pictures and foreign language words, inside contains ball-shaped firecrackers, with a 03cm long and green fuses, contained in 1 bag printed the phrase “phân gà đặc chế” (special chicken manure) with a mass of 16kg (firecrackers); 90 egg firecrackers, 05cm long, 25 cm long blue fuses, in a black plastic bag with a mass of 03kg (fireworks); 01 truck with license plate 79C - 084.83; 01 vehicle sale paper between Mr. Duong Thanh P and Mr. Vo Hoang A (photocopy); 01 car registration certificate number 010421 (photocopy); 01 mortgage receipt No. T120/A15 of Bank T, Branch N (photocopy) submitted by Mr. Vo Hoang A; 01 identity card named Tran Thi D and 01 household registration book with the owner Le Van S (all photocopies) submitted by the defendant Tran Thi D; 01 identity card named Le Thi T and 01 household registration book number 160447811, with the owner Le Thi T submitted by Le Thi T (all photocopies).

The expertise conclusion No. 731/C54B dated January 29, 2018 of the Sub-Institute of Criminal Science in Ho Chi Minh City states that:  10 (ten) round electric bulb-shaped 5-cm long objects with paper outside, the round cylinder-shaped head connected to the fuses, the round-shaped bottom with the plastic inner shell which have been assessed are all fireworks; 05 (five) plastic bags containing balls with plastic covers (football-shaped) with the diameter of 2cm, different colors, one end with the green fuses sent to the assessment are all firecrackers.

Return the specimen left after inspection to Public Security of Krong Buk District.

Although Mr. Vo Hoang A was hired by the defendant Tran Thi D to transfer coffee, however, he did not know that the defendant D bought 16kg of firecrackers; 03 kg of fireworks from District D, Gia Lai province and brought them back to Commune P, District K for sale to make profit, therefore Investigation Agency of Public Security of Krong Buk District has justifiable grounds to be silent on the actions against Mr. Vo Hoang A.

On February 8, 2018, the Investigation Agency returned 01 truck with license plate 79C - 084.83; 01 truck sale paper between Mr. Duong Thanh P and Mr. Vo Hoang A (photocopy), 01 car registration certificate number 010421 (photocopy); 01 mortgage receipt No. T120/A15 of Bank T, Branch N (copy) to Mr. Vo Hoang A as the owner.

In the Indictment No. 10/KSĐT-HS dated April 11, 2018, the People's Procuracy of Krong Buk District prosecuted defendant Tran Thi D for "Trading of banned commodities" as stipulated in Clause 1, Article 190 of the Criminal Code in Viet Nam.

At the trial, the defendant confessed his offense as true as the Indictment.

At the trial, the prosecutor representing the People's Procuracy of Krong Buk District analyzed and clarified the proof for accusation, the aggravating and mitigating circumstances, the prosecutor still upholds the Prosecution Decision against the defendant as the indictment and proposed the Trial Panel to declare defendant Tran Thi D guilty of "Trading of banned commodities".  Point c, Clause 1 of Article 190; Points h and s of Clause 1 of Article 51; Clause 1, Article 35 of the Criminal Code will apply to impose a fine on Tran Thi D of VND 100,000,000 (one hundred million dong) to VND 120,000,000 (one hundred and twenty million dong).

With reference to material evidence:

Pursuant to Point a Clause 1, Clause 2 Article 47 of the Criminal Code and Point a Clause 2 Article 106 of the Criminal Procedure Code in Viet Nam:

- Proposing confiscation for further destruction of: 90 fireworks, 5 cm long, round head, cylindrical bottom, printed in foreign language words, 25 cm blue fuse, total weight of 03 kg, packed in a black plastic bag; 56 plastic bags printed with chicken pictures and foreign language words, containing firecrackers inside, each firecracker is rounded and has 3cm green fuse, total weight of 16kg.

- Accepting the decision of the Investigation Agency of Public Security of Krong Buk District to return 01 truck with license plate 79C - 084.83; 01 truck sale paper between Mr. Duong Thanh P and Mr. Vo Hoang A (photocopy), 01 car registration certificate number 010421 (photocopy); 01 mortgage receipt No. T120/A15 of Bank T, Branch N (copy) to Mr. Vo Hoang A as the legal owner.

At the trial, the defendant had no argument and concurred with the content of the Indictment and the impeachment of the Procurator of the People's Procuracy of Krong Buk District prosecuting the defendant for trading of banned commodities.

The defendant’s last words: Tran Thi D found that her behavior is illegal and asked the Trial Panel to reduce the penalty for her.

JUDGEMENT OF THE COURT

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 shall determine as follows:

[1] In terms of court procedures: Acts and proceedings of the investigating bodies, investigators, the People's Procuracy of Krong Buk District, 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 defendant 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.

[2] With reference to content: At the trial, the defendant admitted that at 00:30 am, on January 22, 2018 in village A, Commune P, District K, Dak Lak Province, Tran Thi D committed the act of selling prohibited goods which were 16 kg of firecrackers and 03 kg of fireworks.  The defendant's depositions at today's trial is in accordance with hers at the Investigating Agency, in conformity with the testimony of the witness, the record of offence caught in the act, evidence seized, expertise conclusions and other documents included in the case file.  Thus, there are enough grounds to conclude that:  Defendant Tran Thi D is guilty of "Trading of banned commodities" stipulated in Point c, Clause 1 Article 190 of the Criminal Code.

Point c, Clause 1, Article 190 of the Criminal Code stipulates:

“1. A person who commits any of the following acts, except in the circumstances specified in Articles 232, 234, 244, 246, 248, 251, 253, 254, 304, 305, 306, 309, 311 hereof, shall be liable to a fine of from VND 100,000,000 to VND 1,000,000,000 or face a penalty of 01 - 05 years’ imprisonment:

…

c) Manufacturing or dealing in from 06 kg to less than 40 kg of firecrackers;

…”

[3] Evaluating the severity of the offense and record of the defendant. The Trial Panel finds that Tran Thi D has full legal and behavioral capacity, but for the purpose of self-interest, she still intentionally committed offense. The defendant’s offense is highly dangerous, infringing the economic management order protected by law, infringing national economy, violating regulations of law in terms of banned commodities, seriously damaging social order and safety. This kind of offense usually occurs during holidays, especially the Lunar New Year, which the public requires urgent measures to deal with. Therefore, the defendant must bear the criminal liability due to her act.

[4] Regarding the aggravating circumstances of criminal liability:  The defendant has no aggravating circumstance.

[5] Regarding the mitigating circumstances of criminal liability:  During the investigation as well as at the first instance hearing, the defendant expressed cooperative attitude and showed repentance and desire to redeem her faults; besides, her offense does not cause great damage. These are mitigating circumstances prescribed in Points h, s Clause 1, Article 51 of Criminal Code, which must be considered to alleviate a part of the criminal liability for the defendant, showing humanity and leniency of our law.

[6] From the analysis, assessment and judgment mentioned above, the Trial Panel considers that the defendant is entitled to many mitigating circumstances, so it is not necessary to isolate the defendant from the social life, the fine specified in Clause 1, Article 35 of the Criminal Code is enough to educate the defendant and give general preventive warnings in the society.

[7] With reference to material evidence:

Pursuant to Point a Clause 1 Article 47 of the Criminal Code and Point a Clause 2 Article 106 of the Criminal Procedure Code: It is necessary to confiscate 90 fireworks, 5 cm long, round head, cylindrical bottom, printed in foreign language words,  25 cm blue fuse, total weight of 03 kg, packed in a black plastic bag; 56 plastic bags printed with chicken pictures and foreign language words, containing firecrackers inside, each firecracker is rounded and has 3cm green fuse, total weight of 16kg for further destruction.

(These exhibits are the same as in the handover record, made on May 15, 2018 by the Investigating Agency and the Sub-Department of Civil Judgment Enforcement of District K).

Pursuant to Points a, Clause 2, Article 47 of the Criminal Code. Accepting the decision of the Investigation Agency of Public Security of Krong Buk District to return 01 truck with license plate 79C - 084.83; 01 truck sale paper between Mr. Duong Thanh P and Mr. Vo Hoang A (photocopy), 01 car registration certificate number 010421 (photocopy); 01 mortgage receipt No. T120/A15 of Bank T, Branch N (copy) to Mr. Vo Hoang A as the legal owner.

 [8] Mr. Vo Hoang A transported 16kg of firecrackers and 03kg of fireworks from District D, Gia Lai Province to Commune P, District K for Tran Thi D. However, D kept the secret of the sale and transport of these firecrackers and fireworks, so, Mr. A did not know it.  Therefore, the Police Investigation Agency of Krong Buk District’s silence on actions against Mr. Vo Hoang A is in accordance with the law.

[9] With reference to court fee: Pursuant to Clause 2 of Article 136 of the Criminal Procedure Code; Clause 1 of Article 21, Point a, Clause 1, Article 23 of the National Assembly Standing Committee's Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 on court fees and charges, and exemption, reduction, collection, transfer, management and use thereof. The defendant Tran Thi D has to pay a first instance criminal court fee as per the law.

Pursuant to documents and evidence mentioned above:

HEREBY DECIDES

Declare: Tran Thi D is guilty of “Trading of banned commodities”. Legal basis: Clause 1 Article 190; Points h and s, Clause 1 of Article 51; Clause 1 of Article 35 of the Criminal Code:

Impose a fine of VND 100,000,000 (One hundred million dong) on Tran Thi D, which is confiscated to the state fund. With reference to material evidence:

Pursuant to Point a Clause 1 Article 47 of the Criminal Code and Point a Clause 2 Article 106 of the Criminal Procedure Code: Confiscating 90 fireworks, 5 cm long, round head, cylindrical bottom, printed in foreign language words,  25 cm blue fuse, total weight of 03 kg, packed in a black plastic bag; 56 plastic bags printed with chicken pictures and foreign language words, containing firecrackers inside, each firecracker is rounded and has 3cm green fuse, total weight of 16kg for further destruction.

(These exhibits are the same as in the handover record, made on May 15, 2018 by the Investigating Agency and the Sub-Department of Civil Judgment Enforcement of Krong Buk District).

Pursuant to Points a, Clause 2, Article 47 of the Criminal Code. Accepting the decision of the Investigation Agency of Public Security of Krong Buk District to return 01 truck with license plate 79C - 084.83; 01 truck sale paper between Mr. Duong Thanh P and Mr. Vo Hoang A (photocopy), 01 car registration certificate number 010421 (photocopy); 01 mortgage receipt No. T120/A15 of Bank T, Branch N (copy) to Mr. Vo Hoang A as the legal owner.

With reference to court fees: Pursuant to Clause 2 of Article 136 of the Criminal Procedure Code; Clause 1 of Article 21, Point a, Clause 1, Article 23 of the National Assembly Standing Committee's Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 on court fees and charges, and exemption, reduction, collection, transfer, management and use thereof.

Compelling Tran Thi D to pay VND 200,000 (Two hundred thousand dong) of first instance criminal court fee.

The defendant has the right to appeal the Verdict within 15 days from the date of pronouncement.