Verdict No. 23/2017/HSST dated June 30, 2017 on organizing others to flee abroad

PEOPLE’S COURT OF HA GIANG PROVINCE

VERDICT NO. 23/2017/HSST DATED JUNE 30, 2017 ON ORGANIZING OTHERS TO FLEE ABROAD

On June 30, 2017, at the office of People’s Court of Ha Giang Province, the first instance trial was conducted to hear the case No. 32/2017/HSST dated June 7, 2017 against the defendant

Dang Van T, born in 1986, in Commune T, District B, Ha Giang Province. Place of residence: Village T, Commune T, District B, Ha Giang Province; ID number/passport number/citizen ID number; occupation: self-employed; education level: 4/12; ethnicity: Yao people; his parent: Mr. Dang Van Q and Mrs. Dang Thi M; his wife: Mrs. Nguyen Thi C and two children born in 2008 and 2011; previous administrative penalties: none; previous convictions: none; arrested on March 30, 2017, being detained in the detention center of Ha Giang Public Security, present.

THE CASE

The defendant Dang Van T is prosecuted by the People’s Procuracy of Ha Giang Province for the following offense:

In October 2013, Dang Van T, born in 1986, residing in Village T, Commune T, District B, Ha Giang Province, had worked as a road worker in Commune S, District M, Ha Giang Province. While working here, T got acquainted with Tan Van P and knew that P had worked in China as a laborer, so, T asked how much P had been paid by Chinese employers. P told T that H (a Chinese man) was looking for laborers whose work is to clear forests and grow plants for 80 yuan/day/person. An advance of VND 5,000,000/person on the wage will be paid to anyone who needs. T and P have agreed that T would seek people and take them to Commune S, District M, Ha Giang Province, P is responsible for sending people from District S to China to Mr. H, P would earn the remuneration for referral and sending of laborers to China, T would deduct a part of wages of these laborers. At the end, they found 21 laborers, divided into 2 trips (including 6 laborers in Commune H, District L - Tuyen Quang, 4 laborers in Commune B, District V - Ha Giang, 8 laborers in Commune T, District B - Ha Giang, 3 laborers in Village P, Commune D, District B), in specific:

On the first trip: In the middle of February 2014, Dang Van T met Dang Van P (in K village, T commune, district B); Ly Van C and Dang Van A (in Village T, Commune T, District B); Dang Thi H, Dang Thi N, Dang Thi M, Dang Thi T (in Village N, Commune B, Vi Xuyen District); Thao A P (in Village K, Commune T, District B); Ly Van C (in Village L, Commune H, District L, Tuyen Quang Province) and asked these people to go to China to do manual work, T said the work is to clear the forest, grow plants and log trees with the wage of from VND 180,000 to VND 200,000/person/day, if anyone agrees to go, they will be paid an advance of wage of VND 5,000,000/person, in addition, T also told these people to ask if anyone wants to go with them. After the laborers agree to work, T made an appointment that on February 17, 2014 they would gather in the house of T’s mother-in-law Mrs. Mac Thi S, in Village N, Commune K, District B, Ha Giang Province, 04 other people in Commune B, District V would wait at the kilometer marker No. 21 in the Town V, T would pick them up.

On February 17, 2014, there were 14 people including: Ly Van C, Ban Van M, Ban Van Th, Ban Kim V, Hoang Van A, Dang Van T (in Commune H, District L, Tuyen Quang Province). Dang Van A, Thao A P, Sung A N, Ly Van C, Dang Van P, Truong Van N, Hoang Ngoc S, Chuong Van T (in Commune T, District B, Ha Giang Province), gathered at the house of T’s mother-in-law in Village N, Commune K, District B, where T rented a van of 16 seats for VND 2,000,000 (Two million dong) to carry all these people to go to the Town M, and then pick up Dang Thi N, Dang Thi H (born in 1999), Dang Thi M, Dang Thi T at the kilometer marker No. 21 in the Town V.  When they arrived at Town M, T called P to pick them up and lead them to a place at a distance of 1km from the center of Commune S, then they got off the van and crossed the border marker No. 499 on foot of Commune S to China and then T would assign laborers to H. After assigning laborers to H, H gave T 20,000 yuan of wages of laborers; the T returned to Vietnam and converted this sum of money to Vietnamese dong and paid wages to certain laborers’ families (it has been a long time since then, so T cannot remember whom he paid wages and how much he paid), the remaining sum of VND 20,000,000 (Twenty million dong) T spent on his personal affairs.

On the second trip: Around March 2014, T continued to meet Dang Van M (in Village P, Commune D, District B), T persuaded M to go to China to do manual work, the work is to clear forests and grow plants for VND 180,000 to VND 200,000. This time, besides M, there were two people Dang Van D and Ly Van S (in Village P, Commune D, District B) who knew that T has sent people to China to work as laborers asked T to take them together. About 1 week later, T and his wife Nguyen Thi C (C also accompanied him to work as laborer) caught a coach and took these 3 people from the crossroad in Commune T, District B to District M. Tan Van P picked them up here and hired motorbikes to carry them to the place near the center of Commune S, then P and T took C, M, D, Son to cross the border marker No. 499 on foot in the Commune S and assigned these 3 people who live in Village P, Commune D to H. After that, P returned, T and C accompanied the 3 laborers to China and returned to Vietnam 02 weeks later.

In the middle of 2014, T continued to go to China to welcome the laborers to Vietnam. T was given 20,000 yuan by the Chinese employer as the remaining wages of laborers and the laborers agreed to let him keep it. T converted it into Vietnamese dong and paid to the laborers.

At present, 21 laborers who had worked in China returned to Vietnam and were paid by the Chinese employer and T one-third to a half of the wages, in specific:

In July 2014, 5 people who returned to Vietnam were paid by T and the Chinese employer includes:

1. Ban Van M - born in 1989; residing in Village L, Commune H, District L, Tuyen Quang Province was paid VND 4,700,000.

2. Ban Kim V - born in 1992; residing in Village T, Commune H, District L, Tuyen Quang Province was paid VND 4,700,000.

3. Hoang Van A - born in 1993; residing in Village L, Commune H, District L, Tuyen Quang Province was paid VND 9,000,000.

4. Dang Thi N - born 1974; residing in Commune B, District V, Ha Giang Province was paid VND 5,000,000.

5. Ly Van C - born in 1993; residing in Village T, Commune Thuyen B, Ha Giang Province was paid VND 340,000.

By August, 2014, 12 people who returned to Vietnam were paid by T and the Chinese employer includes:

1. Ly Van C - born in 1992; residing in Village L, Commune H, District L, Tuyen Quang Province was paid VND 8,000,000.

2. Ban Van T - born in 1996; residing in Village L, Commune H, District L, Tuyen Quang Province was paid VND 6,000,000.

3. Dang Van T - born in 1995; residing in Village L, Commune H, District L, Tuyen Quang Province was paid VND 5,000,000.

4. Dang Van P - born in 1998; residing in Village K, Commune T, District B, Ha Giang Province was paid VND 18,000,000.

5. Truong Van N - born in 1992; residing in Village K, Commune T, District B, Ha Giang Province was paid VND 22,000,000.

6. Hoang Ngoc S - born in 1982; residing in Village K, Commune T, District B, Ha Giang Province was paid VND 2,000,000.

7. Chuong Van N - born in 19982; residing in Village K, Commune T, District B, Ha Giang Province was paid VND 2,000,000.

8. Sung A N - born in 1996; residing in Village B, Commune T, Bac Giang District, Ha Giang Province was paid VND 2,000,000.

9. Thao A P - born in 1996; residing in Village K, Commune T, District B, Ha Giang Province was paid VND 2,000,000.

10. Dang Van M - born in 1984, residing in Village P, Commune D, District B was paid VND 14,000,000.11. Ly Van S - born in 1987, residing in Village P, Commune D, District B was paid VND 2,000,000.12. Dang Van D - born in 1993, residing in Village P, Commune D, District B was paid VND 6,000,000.By January 2015, 4 people who returned to Vietnam were paid by T and the Chinese employer includes:

1. Dang Thi M - born 1997; residing in Village N, Commune B, District V, Ha Giang Province was paid 10,900 yuan.

2. Dang Thi H - born 1999; residing in Village N, Commune B, District V, Ha Giang Province was paid 10,000 yuan.

3. Dang Thi T; born in 1992; residing in Village N, Commune B, District V, Ha Giang Province (her paid amount cannot be identified because she is not present in the place of residence).

4. Dang Van A - born 1993; residing in Village T, District B, Ha Giang Province (T’s brother) was paid 5,000 yuan.

In the Indictment No. 11/KSDT dated June 7, 2017, the People’s Procuracy of Ha Giang Province prosecute Dang Van T for “Organizing others to flee abroad” as prescribed in Clause 2 Article 275 of the Criminal Code.

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

1. Declare: the defendant Dang Van T is guilty of “Organizing others to flee abroad”.

2. Sentence: Pursuant to Clause 2 Article 275; Points g, p Clause 1, Clause 2 of Article 46 of Article 47 of the Criminal Code in Viet Nam: sentence Dang Van T to 3 - 4 year's imprisonment. The prison term commences from the date on which the defendant was detained.

3. Court fee: Pursuant to Article 99 of the Criminal Procedure Code in Viet Nam, Dang Van T has to pay VND 200,000 of criminal first instance court fee.

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

[1] At the court hearing, the defendant Dang Van T pleads guilty of organizing 21 people to work in China as laborers for Chinese employers as stated in the Indictment of the People's Procuracy of Ha Giang Province. The confession of the defendant is deemed conformable with evidence available in the case file, such as: the record of the wanted person turning himself in; the statement of the defendant; testimonies of laborers taken to China by T; the judgment against Tan Van P etc. Trial Panel deems that there are sufficient grounds to determine that:

As discussing with Tan Van P to seek Vietnamese and take them to China to work as laborers for the employer H (the Chinese man), T will earn the remuneration from the laborers paid by the Chinese employer. Between February and March 2014, Dang Van T and Tan Van P has organized two trips to take 21 Vietnamese people who reside in Commune B, District V, Commune D and Commune T, District B, Ha Giang Province and Commune H, District L, Tuyen Quang Province to China to work as laborers.

When taking people to China, T and P followed the trail at the border marker No. 499 in Commune S to cross border to China without any laissez-passers required by law.

Dang Van T and Tan Van P’s organization of others to fled abroad has violated the regulations on administrative management in the field of entry and exit, damaged the order of border security, the defendant’s act constitutes the offense “Organizing others to flee abroad” as prescribed in Article 275 of the Criminal Code.

[2] Shortly from February to March 2014, defendant Dang Van T twice organized 21 people to China, thus the defendant committed the offense multiple times as prescribed in Clause 2, Article 275 of the Criminal Code. So, the prosecution of the People’s Procuracy of Ha Giang Province pursuant to Clause 2 Article 275 of the Criminal Code is deemed as guilty person is rightly convicted.

[3] The defendant has full capacity of criminal liability and the defendant knows 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. Greedy for money and wishing a remuneration from the difference that the Chinese employer paid to laborers, the defendant organized 21 people to fled to China illegally, regardless of state regulations on immigration as well as on labor export, therefore, the defendant is supposed to be strictly penalized, separated from society for a certain period of time, thus improving the education of the defendant to become a good person who abides by the law, and contributing to the fight against this kind of crime which is very complicated in the whole country in general and in Ha Giang Province in particular. However, when considering the penalty for the defendant, the Trial Panel finds that: The purpose of the defendant to organize others to flee abroad is to receive remuneration from the difference of wages, those who were sent to work in China are all workers who find employment to increase income for their families.  After a period of working in China, all 21 people that the defendant sent to China returned, the defendant’s behavior has not caused great damage. After a period of escape, on March 30, 2017, the defendant went to the police office and turned himself in. During the investigation of the case as well as at the trial, the defendant expressed cooperative attitude and showed his repentance and desire to redeem his faults. The defendant is an ethnic minority person who lives in a remote area with limited cognitive ability. Therefore, the extenuating circumstances of criminal liability prescribed in Points g and p, Clause 1 and Clause 2 of Article 46 and Article 47 of the Criminal Code should apply. Under the provisions of Article 349 of the Criminal Code 2015, the penalties are lower than the penalties provided for in Article 275 of the Criminal Code 1999. Therefore, Resolution No.144/2016/QH13 of the National Assembly dated June 29, 2016 should apply to mitigate the penalty for the defendant.

In terms of the illegal entry and exit, the defendant faced an administrative penalty for such violation in the form of a warning by the Ha Giang Public Security, so the Trial Panel does not consider it further.

In this case, Tan Van P, together with the defendant, took people to China and Tan Van P was adjudicated by the Ha Giang People's Court as stated in the Judgment No. 29/2015/HSST dated June 16, 2015, so the Trial Panel does not consider him further.  The defendant has to pay a court fee as per the law. Pursuant to documents and evidence mentioned above:

HEREBY DECIDES

1. Declare: the defendant Dang Van T is guilty of “Organizing others to flee abroad”.

2. Sentence: Pursuant to Clause 2 Article 275; Points g, p Clause 1, Clause 2 of Article 46 of Article 47 of the Criminal Code, the Resolution No. 144/2016/QH13 in Viet Nam dated June 29, 2016 of the National Assembly, Dang Van T is sentenced to 3 years’ imprisonment. The prison term commences from the date on which he was detained (March 30, 2017).

3. Court fee: Pursuant to Article 99 of the Criminal Procedure Code;

Pursuant to Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of Standing Committee of the National Assembly. The defendant Dang Van T has to pay VND 200,000 of criminal first instance court fee.

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