Verdict No. 15/2018/HS-ST dated March 23, 2018 on organizing others to flee abroad

PEOPLE’S COURT OF HA GIANG PROVINCE

VERDICT NO. 15/2018/HS-ST DATED MARCH 23, 2018 ON ORGANIZING OTHERS TO FLEE ABROAD

On March 23, 2018, at the office of the People’s Court of Ha Giang Province, a first instance trial was conducted to hear the criminal case No. 01/2018/TLST-HS dated January 10, 2018 in accordance with the Decision to Bring the Case to Trial No. 11/2018/QDXXST-HS dated February 23, 2018 against the defendant:

Lu Seo N; other name: none; born in 1992 in Commune N, District H1, Ha Giang Province. Place of residence: Village H, Commune N, District H1, Ha Giang Province; occupation: farmer; education level: 5/12, nationality: Vietnam; ethnicity: Nung People; religion: none; father: Mr. Lu Lao K, born in 1972 and mother: Mrs. Lu Gia K1, born in 1968; siblings: the defendant is the eldest child in a 2-children family; wife: Ly Thi T, born in 1996 and children: a child born in 2917; previous convictions: none; previous administrative penalty: none.  The defendant was arrested on September 13, 2017; the defendant has been detained in the detention center of Ha Giang Public Security. Present.

- Representation of the advocate for Lu Seo N: Mrs. Nguyen Thi Thanh H – an assistant in the legal aid center of Ha Giang Province. Present.

- Witnesses:

1. Cu Van T2 - born in 1995. Present;

2. Dang Van Q - born in 1995. Present;

3. Cao Van X - born in 1971. Absent;

4. Ban Thi X1 - born in 1986. Present;

5. Dang Van M - born in 1984. Absent;

6. Phan Van T3 - born in 1979. Absent;

7. Ban Van M1- born in 1996. Absent;

8. Ban Van D1- born in 2002. Present;

9. Phan Van H1- born in 1959. Absent;

10. Ban Van T5- born in 1973. Absent;

11. Dang Van K - born in 1994. Absent;

12. Ban Thi H2 - born in 1993. Absent.

13. Lu Van D.  Present.

14. C (unknown family name and address). Absent.

- The legal representative of the witness Ban Van D1: Mr. Ban Van H authorizes Mr. Ly Van D1. 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:

Around April 2017, Lu Seo N has worked as a laborer in Guangxi (China) for a person named D. After 2-week working, D gave N 800 yuan and told N to return to Vietnam and seek and send laborers to China for D. If N may find laborers, D would assign N to manage them and do as a payroll timekeeper, D would pay N 3,000 yuan per month as remuneration. N agreed and returned to Vietnam. When coming back to the house of his wife Ly Thi T, in Village B, Commune B1, District B2, Lao Cai Province, N met Lu Seo T1, born in 1996, residing in Village H, Commune N, District H1, Ha Giang Province (T has worked as a stevedore in Ben B, Commune B1, District B2, Lao Cai Province), through chatting, N told T that he was looking for laborers to work in China, the work was to clear forests and grow plants with the wage of 100 yuan per day, anyone accepting this job offer may contact with him through the phone number he gave T, T agreed. T worked in a group of stevedores with 5 other people H, A, L, D, H (unknown full names and addresses because they live in different places of residence). Through chatting, T told them that a person was looking for laborers working in China, anyone accepting this job offer may ask T to receive the phone number, then they may discuss with N about such offer (these 5 stevedores refused the offer though). However, these stevedores told other people about this job offer, in which Cu Van T2, born in 1995, residing in Village 10, Commune N, District H1, Ha Giang Province asked the phone number of N and then called N to ask about such job offer, N told T2 that the work is to clear forests and grow plants with the wage of 100 yuan per day, T2 agreed. N told T2 to meet up at the kilometer marker No. 6 in Commune B1, District B2, Lao Cai Province and then N would take T2 to China to work as a laborer. With a few people going, N called Lu Seo T5, born in 1997, residing in Village C, Commune P, District H1, Ha Giang Province (knowing that T5 had often done manual work in China, N asked some of T5’s co-laborers for T5’s phone number) and knew that T5 was about to work in China, T5 told N to meet up at T5’s house and then they would go together. On April 30, 2017, T2 and 3 people D, C and 1 person in Commune T, District H1 (unknown name and address, this person has worked as a stevedore with T2 in Ben B, Commune B1, District B2, Lao Cai Province), total 4 people, came to the kilometer marker No. 6, Commune B1, District B2, Lao Cai Province to wait for N to take them to China. At the meeting place, N met Dang Van T6 - born in 1989, residing in Village 5 N, Commune N, District H1, Ha Giang Province (N and T6 have known each other before), through talking, knowing that T6 also went to China to do manual work, N asked T6 to transport T2 and a name-unknown person and N transported D and C from the kilometer marker No. 6, Commune B1, District B2, Lao Cai Province, to District B, Lao Cai Province, to District X, and to District H1, Ha Giang Province. While having a short rest, N called Lu Seo T5 and asked him to pick them up to T5's house and stayed there for a while. While staying at the T5's house, 1 person in Commune T, District H1 (unknown name) changed his mind and returned.  After that, they all kept going, the group of T5 consisted of 4 people T5, T5's wife, T7 and K1 (unknown family names and middle names and addresses), the group of N consisted of 3 people. Total 7 people: T2, D, C (group of N) and Lu Seo T5, N (T5’s wife), T7, K1 (group of Lu Seo T5) together went to China to work as laborers. On the way to Commune C, District H1, N’s wife informed N that their child was sick, so N decided to return. Before coming back, N called D (the Chinese man) and informed that N found certain people who agreed to work for D in China, but due to personal affairs, N cannot transport them to D in person, and then N told Mr. D to come to the border road in Commune BM, District H1 to pick up 3 people (group of N: T2, D, C) to China for D, and T6 and the group of Lu Seo T5 had worked for whom N did not know. Among these people, Cu Van T2 returned to Vietnam, through verification undertaken in places of residence, Lu Seo T5 and his wife and the other people kept working as laborers in China.

On the second trip: In the middle of 2017, Lu Seo N continued going to China to work for D and was paid 1,000 yuan as the laborer-seeking remuneration of the first trip. After 2-month working there, again, D told N to keep finding laborers for D, this time D would pay N 500 yuan per laborer. N agreed, D gave N 5,000 yuan (remuneration and costs incurred in the laborer-finding process).  Returning to Vietnam, N met Dang Van K, born in 1994, residing in Village 6V, Commune T, District BY, Lao Cai Province, N persuaded K to work in China as a laborer, the work is to clear forests and grow plants with the wage of 100 yuan/day/laborer, K agreed that K and K's wife would go to work in China. On September 9, 2017, knowing that K and his wife was going to China to do manual work, some K’s cousins and neighbors asked K such job offer, K called and asked N to come to K’s house to talk in person to these 9 people, including: (1) Dang Van Q, born in 1995; (2) Cao Van X, born in 1971, co-residing in Village 6 V, Commune T, BY District, Lao Cai Province; (3) Ban Thi X1 - born in 1986, residing in BL Commune, District Q, Ha Giang Province; (4) Dang Van M - born in 1984; (5) Phan Van T3, born in 1979, residing in NC hamlet, Quang N commune, X district, Ha Giang province. (6) Ban Van M1 - born in 1996; (7) Ban Van D1, born in 2002, residing in Village ND, Commune T, District BY, Lao Cai Province; (8) Phan Van H1 - born in 1959, residing in LK, XH Commune, District BY, Lao Cai Province; (9) Ban Van T5 - born in 1973, living in NT Village, BY District, Lao Cai Province. N told them that their work would to clear forests and grow plants with the wage of 100 yuan/day/laborer. All of them agreed to go to work in China. N told them to gather in the morning on September 10, 2017 on the National Highway 70 near K’s house and wait for a coach, N gave K VND 1,000,000 (One million dong) and asked K to prepare food for them. N asked a coach to pick them up and transported them to Town V, District H1, Ha Giang Province.  As scheduled, in the morning on September 10, 2017, K's couple and 9 people gathered on the National Highway 70, a Lao Cai - Ha Giang coach picked them up and passed through District Q to the crossroad in Commune TQ, B, Ha Giang. After that, they took another coach to Town V, District H1 and then hired motorbikes to the border area in Commune BM, H1 to cross the border illegally to China. On the way to Commune BM, N and 11 people were spotted, prevented and invited to the office by the Police of District H1 for further verification.

In the Indictment No. 01/KSDT dated January 08, 2018, the People’s Procuracy of District D of Ha Giang Province prosecutes: the defendant Lu Seo N for “Organizing others to flee abroad” as prescribed in Clause 2 Article 275 of Criminal Code 1999.

At the trial, the defendant Lu Seo N pleaded guilty, his deposition in the trial well matches with his deposition made during the investigation and prosecution process, the defendant has enticed others and organized 2 trips to take 14 people to China to do manual work there under an agreement with D - a Chinese man.

Confession of witnesses during the investigation and at the trial: After being informed of the job offer to China to clear forests and grow plants with the wage of 100 yuan/day/laborer by N, all of them unanimously agreed to go with N, and they did not follow entry and exit procedures.

At the trial, the representative of the People’s Procuracy of Ha Giang Province upholds the prosecution and requests the Trial Panel to:

1. Declare: the defendant Lu Seo N is guilty of “Organizing others to flee abroad”

2. Sentence: applying Clause 2 Article 275, Points p, g Clause 1, Clause 2 Article 46, Article 47 of the Criminal Code 1999 to sentence the defendant Lu Seo N to 3 to 4 years in prison. The prison term commences from the date on which the defendant was detained.

3. Exhibits: Pursuant to Article 106 of the Criminal Procedure Code 2015 in Viet Nam to return 01 motorbike and a vehicle registration certificate in the name of Lu Seo N.

4. Court fee: compel Lu Seo N to pay VND 200,000 of criminal first instance court fee as prescribed.

Representation of the advocate for the defendant: Regarding the charge of “Organizing others to flee abroad” prosecuted by the People’s Procuracy of Ha Giang Province as prescribed in Clause 2 Article 275 of the Criminal Code, it is considered as guilty person is rightly convicted. However, the People’s Procuracy requests the Trial Panel to reduce the penalty for the defendant for the following reasons:

- The defendant expressed cooperative attitude and showed his repentance and desire to redeem his faults.

- The defendant is an ethnic person and the breadwinner in a disadvantaged family, with limited legal knowledge, most of the citizens organized by him to flee to China voluntarily accompanied the defendant. On the second trip, the defendant have not taken these laborers to China, so no damage is caused.

Propose the Trial Panel to apply Clause 2 Article 275, Points p, g Clause 1, Clause 2 Article 46, Article 47 of the Criminal Code 1999 to sentence the defendant Lu Seo N to 30 to 36 months in prison.

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.

JUDGMENT OF TRIAL PANEL

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] In terms of acts and proceedings of the investigating bodies, investigators, the People's Procuracy, prosecutors, advocates 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 Lu Seo N 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] At the court hearing, Lu Seo N pleaded guilty, his deposition at the trial well matches with his deposition made during the investigation process from case file p. 45 to 66, and well matches with witnesses’ testimonies during the investigation process from case file p. 67 to 120 and witnesses’ testimonies present at the court hearing and evidence available in the case file, such as: The record of arrest (case file p.24) also shows that: From April 4 2017 to September 2017, Lu Seo N has enticed other people and 2 times organized 14 citizens of Ha Giang Province, Lao Cai Province to work in China as manual workers.

On the first trip in April 2017, the defendant took 3 people including: Cu Van T2 - born in 1995, residing in Village 10, Commune N, District H1, Ha Giang Province with D and C (unknown family names and addresses) to cross border to China illegally to work for Mr. D (the Chinese man) through border road in the BM Commune, H1 District, Ha Giang Province to gain 1800 yuan (including 800 yuan of laborer-seeking cost and 1000 yuan of laborer-seeking remuneration).

On the second trip in September 2017, the defendant took 11 people including: (1) Dang Van K, born in 1994; (2) Ban Thi H, born in 1993; (3) Dang Van Q, born in 1995; (4) Cao Van X, born in 1971, co-residing in Village 6V, Commune T, District BY, Lao Cai Province; (5) Ban Thi X1 - born in 1986, residing in Commune BL, District Q, Ha Giang Province; (6) Dang Van M - born in 1984; (7) Phan Van T3, born in 1979, residing in NC Village, Quang N Commune, X district, Ha Giang province. (8) Ban Van M1 - born in 1996; (9) Ban Van D1, born in 2002, residing in Village ND, Commune T, District BY, Lao Cai Province; (10) Phan Van H1 - born in 1959, residing in LK, XH Commune, District BY, Lao Cai Province; (11) Ban Van T5 - born in 1973, living in NT Village, BY District, Lao Cai Province. On the way to border in Commune BM, District H1, Ha Giang Province to cross the border illegally to China, they were detected and prevented by the Police of District H1, so the defendant failed to take 11 laborers to China. However, the defendant received 5000 yuan of laborer-seeking cost as agreed with D (the Chinese man).

 [3] The offense committed by Lu Seo N is dangerous to the society, directly infringing to the state management in entry and exit, infringing the border order and security. Without the permission of the competent authorities to recruit and send workers to work abroad, the defendant Vu Mi X had discussed and agreed with D (the Chinese man) to find people and organize them to flee to China to gain profit from the laborer-seeking remuneration. Total sum of money the defendant earned from two trips bringing 14 Vietnamese citizens to work as laborers in China is 6,800 yuan. In which, N spent 3,300 yuan on laborer-seeking and laborer-sending costs and spent the rest of 3,500 yuan on his personal affairs. Accordingly, the defendant’s act constitutes the offense “Organizing others to flee abroad” committed multiple times as prescribed in Clause 2 Article 275 of the Criminal Code 1999. Therefore, the Indictment No. 02/KSDT dated January 8, 2018 of the People’s Procuracy of Ha Giang Province prosecuting: the defendant Lu Seo N for “Organizing others to flee abroad” as prescribed in Clause 2 Article 275 of the Criminal Code 1999 in Viet Nam is considered as guilty person is rightly convicted, the application of articles and sentences proposed by the representative of the People’s Procuracy against and the advocate for Lu Seo N is considered in accordance with regulations of law.

 [4]. The defendant has full capacity of criminal liability and the defendants know clearly that organizing other persons to flee abroad without the permission of competent agencies is illegal and the defendant also knows that the labor exporting organization  must be licensed by competent authorities to recruit and sign labor contracts with a foreign country. Greedy for laborer-seeking remuneration, the defendant deliberately committed the offense, bringing 14 Vietnamese citizens to China to do manual work without following entry and exit procedures which is deemed against the law. Therefore, the defendant’s offense should be strictly penalized for education purpose to make him become a good person who abides by the law, and contributing to the fight against this kind of offense. However, when considering the sentence against the defendant, the Trial Panel finds that: During the investigation and at today’s court hearing, the defendant expressed cooperative attitude and showed his repentance, he was an ethnic with limited legal knowledge. The defendant organized all those who want to go to work abroad to increase their income, among 14 people sent to China for working, the defendant has only successfully brought three laborers (on the first trip) to work in China, while 11 people (on the second trip) who were being only on the way to China when they were detained by the police in a timely manner, so the consequences did not happen yet, the workers were not sent to China; because the defendant has not had a criminal record, the Trial Panel’s application of the extenuating circumstances provided for in Points p and g, Clause 1 and Clause 2 of Article 46, Article 47 of the Criminal Code 1999 to mitigate the sentence for the defendant is deemed appropriate.

 [5] With regard to Lu Seo T1, born in 1996, residing in Village H, Commune N , District H1, Ha Giang Province, who knew the information that the defendant N was seeking employment in China. So, T1 spread that information to his co-stevedores and gave N’s phone number to them. T and N had neither agreed that T1 would be paid for any found laborers nor N promised anything to T1. The Security Investigation Agency’s silence on criminal proceedings against T is well-grounded, so the Trial Panel does not consider him further.

Dang Van T6 - born in 1989, residing in Village 5 N, Commune N, District H1, Ha Giang Province who, on the way to China to work as a hired laborer, met N and agreed to transported 2 people to China without prior discussion or remuneration. So, the Security Investigation Agency's silence on criminal proceedings against T6 is well-grounded. Illegal entry and exit of Dang Van T6 was sanctioned by the Ha Giang Police Department in administrative violation in Decision No. 17/QD-XPKLBB dated December 9, 2017 in the form of warning, so the Trial Panel does not consider him further.

Lu Seo T5 - born in 1997, residing in Village C, Commune P, District H1, Ha Giang Province who was persuaded by N to work as laborer in China, together his wife N, and T7, K1 (unknown full names and addresses).  The investigation and verification shows that T5 and his wife and these people are not present at their places of residence, the Investigation Security Agency shall continue to investigate and consider it further. Therefore, the Trial Panel does not consider them further.

With regard to D (the Chinese man), he is the person who, in person, gave money to Lu Seo N and told him to find Vietnamese citizens to work in China as laborers. However, the defendant Lu Seo N does not know full name, age, specific address of D. The Investigation Security Agency has been investigating him. Therefore, the Trial Panel has no ground to consider it.

 [6] With regard to the witness:   Dang Van K, born in 1994, residing in Village 6 V, T, District BY, Lao Cai Province. K was persuaded by N work in China, K himself told other people this job offer, so these people went to K’s house to meet N and ask about that. K was also given VND 1,000,000 by N to pay for food, but K received no promise from N for pay for finding laborers. K himself has the need to work as a laborer. Based on the documents and evidence available in the file, the investigating body determines that K is not an accomplice in the case together with N, so the Trial Panel does not consider him further.

 [7] With regard to exhibits, the investigation body seized 01 motorbike YAMAHA brand, EXCITER stamps, white, black and red color, license plate 23F1-077.81 and 01 vehicle registration  certificate in the name of Lu Seo N. Considering that during the process of finding laborers and sending laborers to China, the defendant used it once to carry people, it is the common property of the couple, when using it to carry people to go to China, the defendant did not tell it to his the wife, the Trial Panel deems it necessary to return it to the defendant pursuant to Point a Clause 3 of Article 106 of the Criminal Procedure Code.

 [8] For 6,800 yuan the defendant was given from D (the Chinese man) as the laborer-seeking costs, the defendant spent it on finding people and personal expenses. Considering that the defendant's financial situation is difficult and has no source of income, Condition of the defendant's condition is difficult and he has no source of income, so the Panel does not consider confiscate the above sum of money.

 [9] The defendant Lu Seo N has to pay the court fee as prescribed in Article 136 of the Criminal Procedure Code and Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of Standing Committee of the National Assembly on court fees and charges, exemption, reduction, management and use thereof.

Pursuant to documents and evidence mentioned above:

HEREBY DECIDES

1. Declare: the defendant Lu Seo N is guilty of “Organizing others to flee abroad”

2. Sentence:   pursuant to Clause 2 Article 275, Points p, g Clause 1, Clause 2 Article 46, Article 47 of the Criminal Code 1999, the defendant Lu Seo N is sentenced to 3 years’ imprisonment. The prison term commences from September 13, 2017.

3. Exhibits of the case: Pursuant to Point a, Clause 3, Article 106 of the Criminal Procedure Code, 01 motorbike YAMAHA brand name; 01 vehicle registration certificate in the name of Lu Seo N are returned to the defendant. The status of exhibits is consistent with the record of handover of exhibits between the provincial Public Security and the Civil Judgment Enforcement Agency of Ha Giang Province on January 9, 2018.

4. With reference to court fees: Pursuant to Article 136 of the Criminal Procedure Code and Article 23 of the Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of Standing Committee of the National Assembly on court fees and charges, exemption, reduction, management and use thereof, Lu Seo N has to pay VND 200,000 (two hundred thousand dong only) for the first-instance criminal court fee.

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