Verdict No. 28/2017/HSST dated July 24, 2017 on organizing others to flee abroad

PEOPLE’S COURT OF HA GIANG PROVINCE

VERDICT NO. 28/2017/HSST DATED July 24, 2017 ON ORGANIZING OTHERS TO FLEE ABROAD

On July 24, 2017, the first-instance trial was conducted at the office of People’s Court of Ha Giang Province to hear the criminal case No. 36/2017/HSST dated June 16, 2017 against the defendant:

Phan Giang P (other name Phan Quay Q), born in 1983 in Commune S, District M, Ha Giang Province; place of residence: Group 01, Village S, Commune S, District M, Ha Giang Province; ID number/passport number/ citizen identification number: .....................; ; occupation: slash-and-burn farmer; education level: 5/12; ethnicity: Yao People; father: Phan Chi S (died in 2001) and Mrs. Phan May S (died in 2001); wife: Phan May P born in 1985 and two childen born in 2001 and 2009; previous convictions and administrative penalties: none; arrested on March 29, 2017, being detained in the detention center of Ha Giang Public Security, present.

The advocate for the defendant: Mrs. Nguyen Thi Thanh Huyen – an assistant in the legal aid center of Ha Giang Province.

Witnesses:

1. Mr. Chao Khai T; born in 1970, absent;

2. Mr. Luc Van K; born in 1976, present;

3. Mr. Nong Duc M; born in 1995, present;

4. Mr. Chao Van T; born in 1999, absent;

5. Mr. Hoang Van P, born in 1981; absent;

6. Mr. Phung Quoc H; born in 1961, present;

7. Mr. Vang Sai P; born in 1982, present;

8. Mr. Lu A S; born in 1987, present;

9. Mr. Do Van T; born in 1976, absent;

10. Mr. Mung A D; born in 1975, present.

THE CASE

The defendant Phan Giang P is prosecuted by the People’s Procuracy of Ha Giang Province for his offense as follows:

From February 17, 2016 to February 28, 2016, Phan Giang P organized 2 times bringing total 15 citizens of District Y, Ha Giang Province to work abroad (China) as manual workers as follows:

The first trip:

On February 9, 2016, Phan Giang P received a phone call from M (a Chinese with whom P got acquainted previously in 2010 when P had purchased tattered slippers and bought them to M, who lived in Commune M, District M, Province V - China, at Lung Phin market, District D, Ha Giang Province. In 2014, P and his wife Phan May P went to China to work for M for 11 months, the work was brick making, the wage was 1,600 yuan/month/laborer.  In 2015, P continued working for M in China for 2 months, the work was cutting and crushing plastic, the first month’s wage was 2,000 yuan, the next month’s wage was 2,200 yuan).  M discussed with P to find and send laborers to China to work for M, the work was cutting and crushing plastic and hanger making, the wage was 2,000 yuan/month/laborer, if a laborer did a good job, his/her wage may increase by the product made.  If P may find laborers for M, M will pay P 2,600 yuan/month, 600 yuan higher than those laborers, P agreed.

On February 11, 2016 (the fourth day of Lunar New Year of Monkey) Phang Giang P came to the house of Chao Khai T, born in 1970, residing in Village B, Commune S, District Y, P told T that last year P worked in China as a laborer, the work was hanger making with the wage of 2,600 yuan/month.  On February 13, 2016, P kept going to T’s house and convinced T’s sons Chao Van C and Chao Van T to work in China, C agreed.  Chao Khai T agreed to let his son Chao Van C, 1996, go to China to work, the other son Chao Van T was not at home that day. P took C to P’s house in Village S and waited there until P took him to China to work. On February 14, 2016, after Chao Van C followed P to Commune S to go to China to work, Chao Van T, 1999, and some people in the same village who also wanted to go to work asked P about that job offer and got P's approval.

On February 17, 2016, Phan Giang P took 7 people including: Phung Cong B, 1992; Do Van Huc, 1999; Chao Van C, 1996; Chao Van T, 1999; Nong Duc M, 1995; Lu Van L, 1979 and Phung Cong V, 1989, co-residing in Village S, District Y, Ha Giang Province gathered at Phan Giang P’s house. P rented a car of Vang Sai P, 1982, in Commune S, District M (mainly transporting goods to markets) to the Border Guard Station P of District D ​​, then P led these people along the trail to China, not under the control of the authorities.  P led these 7 people to Market M, District M, Yunna Province - China and assigned them to M, then M continued to take them to the workplace. Because of the pain leg, P came back to Vietnam without working together with these people. M gave P 1,000 yuan (one thousand yuan) as advanced wage for Chao Van C, Chao Van T in order for P to give it to Chao Khai T.

The second trip: In the middle of the first lunar month in 2016, Do Van T, 1976, in Village B, Commune S, District Y (father of Do Van H) came to Commune D, District Y (to take a meal to get rid of bad luck according to indigenous custom) and met Luc Van K, 1976, residing in Na N Village, Commune D, District Y. T told K that T's son, Do Van H, and some people in Commune S, District M have worked in China, the work was hanger making with the wage of about 2600 yuan/month.  Wanted to go, K asked for Phan Giang P’s phone number to ask more about the work, P agreed and told them to choose the day and called P back. Then K took a meal to get rid of bad luck with people in the village and met Luc Van N, 1989 (co-residing in the same village with K), Lu A S, 1987; Mung A S, 1972; Mung A D, 1975; Mung Van V, 1987 and Vang Thi R, 1991, co-residing in Village B, Commune D, District Y, Ha Giang Province. K told them that K was going to do manual work in China and these people also wanted to go with K. K called P back and informed that there were other people who wanted to accompany, P agreed and asked them to come to P’s house on 21/01/2016 (lunar calendar) to go to China. In that time, there was a couple Mr. Chao Khai M, 1975 and Hoang Thi H, 1976, in Village N, Commune N, District Y (Nong Duc M’s uncle and aunt) who knew that M and Do Van H were going to China to work contacted Do Van T (Hai’s father) to lead them to Phan Giang P’s house, in addition, Hoang Van P, 1981, in Village B, Commune S also asked Chao Khai T to take him to Phan Giang P’s house to go to China.

After receiving phone calls from Luc Van K, Chao Khai T and Do Van T, Phan Giang P informed M that there were more people who wanted to go to China to work for M. M asked P to lead them to the border marker No. 403 in Commune X, District D, M would pick them up there.

As scheduled, on February 28, 2016 (21/01/2016 lunar calendar) these people came to Commune S. On arrival at the crossroad in Commune S, T called Phan Giang P, P asked them to enter a coffee shop by the road waiting for P. Riding a motorbike from his house to Sung Tra, P saw 10 people, including: Luc Van K, 1976; Luc Van N, 1989 in Village N, Commune D, District Y; Lu A S, 1987; Mung A S, 1972; Mung A D, 1975; Mung Van V, 1987; Vang Thi R, born in 1991, residing in Village B, Commune D, District Y; Chao Khai M, 1975; Hoang Thi H, 1976, residing in Village N, Commune N, District Y and Hoang Van P, 1981, residing in Village B, Village S, Commune S, District Y who were waiting for P. P hired Phan Lao S, residing in Village S, Commune S,  District M who is the driver of the market, to Village S to transport these people to Village L, Commune X, District D. Then P led them on foot to cross the border marker No. 403 to China, where M arranged a van to pick them up.  When P entrusted 10 people to M, M only received 8 people and refused the couple Chao Khai M and Hoang Thi Ha M because of their old age, thus, P and the couple (M, Ha) returned to Vietnam.  M gave P 800 yuan as the advanced wage of Do Van H in order for P to give it to Do Van T, while 8 people kept following M to the workplace in China.

Total 15 people that Phan Giang P sent to China were divided into different jobs, some made cloth hangers, some sorted and crushed plastic, some people loaded and transported plastic bags. They worked in different administrative divisions. Among these people, their working periods ranges from 2 months to 11 months and they returned to Vietnam from the end of 2016 with paid wages, which were deducted from the advanced wages.  When Phan Giang P asked them to work in China, P said that he was paid 2,600 yuan a month, so they thought they may earn the same amount of money, but their boss did not pay the wage as P said and deduct their wages from the advances.  Moreover, they also knew that their family have not received any advance, so, they came to Phan Giang P to claim the outstanding sum back. Phan Giang P discussed with M about the wages paid to laborers referred by P. M gave P 3,000 yuan for the sum that M deducted from their wages. P converted it into VND 9,200,000 (nine million two hundred thousand dong) gave Luc Van K VND 6,000,000 in order for K to distribute it to people in Commune D, District Y, and P gave VND 3,200,000 to laborers in the first trip who live in Commune S, District Y (three million two hundred thousand dong). In addition, M also gave P 1,000 yuan as laborer-seeking remuneration and travel cost for the laborers that P previously paid in advance.

In the Indictment No. 12/KSDT dated June 7, 2017, the People’s Procuracy of Ha Giang Province prosecutes Phan Giang P for “Organizing others to flee abroad” as prescribed in Clause 2 Article 275 of the Criminal Code.

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

1. Declare: the defendant Phan Giang P is guilty of “Organizing others to flee abroad”.

2. Penalty: Pursuant to Clause 2 Article 275; Points g, p Clause 1, Clause 2 of Article 46 and Article 47 of the Criminal Code in Viet Nam.

Phan Giang P is sentenced to form 3 to 4 years in prison. The prison term commences from the date of detention.

3. Court fees: Phan Giang P has to pay VND 200,000 of the first instance criminal court fee as per the law.

Representation of the advocate for the defendant: During the period from February 17 to February 28, 2016, the defendant Phan Giang P has twice sent 15 people to China as hired labor without following entry and exit procedures at the competent authorities. The prosecution against the defendant for the offense “Organizing others to flee abroad” under Clause 2, Article 275 of the Penal Code is considered guilty person is rightly convicted.  However, it is proposed that the Trial Panel should reduce the penalty for the defendant because:

- The defendant expressed cooperative attitude and showed his repentance, 15 laborers sent to China have returned, the consequences are not large which are considered as extenuating circumstances prescribed in Points g, p Clause 1 Article 46 of the Criminal Code;

- The defendant is an ethnic with limited legal awareness, among the 15 laborers brought to China, only Chao Van C and Chao Van T were enticed by the defendant, the rest asked the defendant by themselves to find jobs for them;

- Clause 2 of Article 349 of the Criminal Code 2015 stipulates penalties lighter than those prescribed in Clause 2, Article 275 of the Criminal Code 1999, therefore, Resolution No. 41 of June 20, 2007 of the National Assembly should apply.

Testimonies of witnesses concerning Phan Giang P are organizing others to flee abroad as follows:

Mr. Chao Khai T's testimony at the investigation agency: Phan Giang P came to his house and persuaded his sons Chao Van C and Chao Van T to work in China and he agreed. He also admitted that he also asked P to take other people to work, including: Phung Cong B, Do Van H, Nong Duc M, Lu Van L, Phung Cong V and Hoang Van P.

Do Van T’s testimony at the investigation agency: He had a child named Do Van H who was sent to work in China by P and he told Luc Van K about that, in addition, he also led the couple Chao Khai M and Hoang Thi Ha to P’s house to ask P to work in China.

At the court session, Luc Van K, Nong Duc M, Lu A S and Mung A D all declared that they were brought by P to China to do manual work as the defendant's claim at the hearing.

Based on evidence and documents already examined and adversarial process at the court session, in consideration of adequate and comprehensive examination of evidence and opinions of the procurator, the defendant and other participants in the proceedings.

JUDGMENT OF TRIAL PANEL

[1] At the court hearing, the defendant Phan Giang P pleaded guilty of “Organizing others to flee abroad” as stated in the Indictment made by the People’s Procuracy. The defendant’s deposition at the court hearing well matches with the defendant’s deposition during the investigation process (case file p.57 to 98); well matches with testimonies of witnesses at the court hearing and during the investigation process (case file p.99 to 138) and well matches with documents and evidence available in the case file and the record of identity (case file p. 146 to 154). Thus, there are sufficient grounds to conclude that:

In the period from February 17, 2016 to January 28, 2016 (10/01-21/01/2016 lunar calendar), Phan Nhang P, (other name: Phan Quay Quyen), 1983, in Village S, Commune S, District M, Ha Giang Province, has twice organized 15 citizens of District Y, Ha Giang Province to flee abroad (China).   On the first trip, P led 7 people, including: Phung Cong B, Do Van H, Chao Van C, Chao Van T, Nong Duc M, Lu Van L and Phung Cong V, co-residing in Commune S, District Y, Ha Giang Province to walk across the border station at the border checkpoint P, District D, Ha Giang Province to China and then assigned them to M (a Chinese).  On the second trip, P led 8 people, including: Luc Van K, Luc Van N, co-residing in Village N, Commune D, District Y; Lu A S, Mung A S, Mung A D, Mung Van V, Vang Thi R, co-residing in Village B, Commune D, District Y and Hoang Van P, residing in Village B, Commune S, District Y to walk across the border station at the border marker No. 403 in Commune X, District D, Ha Giang Province to China and then assigned them to M (the Chinese). Phan Giang P was paid 1,000 yuan (one thousand yuan) by M as the remuneration for laborer-seeking and travel cost.

[2] The criminal offense of defendant Phan Giang P is a danger to society, has directly violated the state management of entry and exit, infringed the order of border security .  The defendant’s act constitutes the offense “Organizing others to flee abroad” as provided for in Article 275 of the Criminal Code.  Only in a short period from February 17, 2016 to February 28, 2016, the defendant Phan Giang P has twice organized 15 people to flee to China, so the defendant is guilty of multiple offenses as provided in Clause 2 of Article 275 of the Criminal Code, the People's Procuracy of Ha Giang Province’s prosecution under Clause 2 Article 275 of the Criminal Code is considered as guilty person is rightly convicted.

[3] Defendant has full criminal liability, the defendant is clear that organizing other people abroad without the permission of the competent authority is a violation of the law, the defendant also knows labor export must be organized an entity licensed by the State agencies. But greedy for money, wanting to receive high wages as labor-seeking remuneration, the defendant has disregarded state regulations in the field of entry and exit as well as state regulations on export and took 15 people to flee to China to work.  Therefore, he should be strictly penalized, It is necessary separate the defendant from the society for a certain period of time, thus improving the education of the defendant to become a law-abiding citizen and at the same time contributing to the fight against this crime, which has been a complicated issue 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 another person to escape abroad is to receive a higher wage; those who were sent abroad by the defendant are laborers who seek employment.  After a period of employment in China, all 15 people that the defendant sent to China has returned, the defendant's act has not caused great damage.  During the investigation of the case as well as at the trial of the defendant expressed cooperative attitude and showed his repentance. The defendant is an ethnic who live in a severely disadvantaged area and has limited legal awareness, therefore it is necessary to apply the extenuating circumstances prescribed in Points g and p of Clause 1 and Clause 2 of Article 46 and Article 47 of the Criminal Code to mitigate the penalty for the defendant.

Clause 2 of Article 349 of the Criminal Code 2015 in Viet Nam stipulates imprisonment sentences from 5 to 10 years, lighter than the penalties prescribed in Clause 2, Article 275 of the Criminal Code 1999 (imprisonment sentences from  5 to 12 years’ imprisonment). Therefore, Clause 2, Article 2 of Resolution No. 41/2017/QH14 dated June 20, 1977 of the National Assembly should apply to reduce the penalty for defendants.

[4] Regarding the illegal entry and exit of the defendant, Ha Giang Public Security imposed an administrative penalty in the form of warning, so the Trial Panel does not consider it further.

[5] Regarding Chao Khai T, 1970, in Ban Ruong Village, Commune S, District Y, was twice accompanied with Phan Giang P to take laborers to China, T only came to the border area to receive money for his two sons, Chao Van C and Chao Van T, then T asked P for 6 people in the same village to take them to work in China. T gave no promise or benefit from M and P. Thus, the presiding agencies do not take actions against Chao Khai T.

[7] Regarding M (the Chinese) who has played the role of mastermind. Since Phan Giang P only knows his name and place of residence in Commune M, District M, Yunna Province, China but he does not know M’s full name and specific address. Thus, the Police Investigation Agency has insufficient information and conditions to verify and take actions against M.

[8] The defendant has to pay the court fee as prescribed in Article 99 of the Criminal Procedure Code in Viet Nam and Resolution 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the Standing Committee of the National Assembly.

Based on the above-mentioned facts and matters,

HEREBY DECIDES

1. Declare: the defendant Phan Giang P (other name Phan Quay Q) is guilty of “Organizing others to flee abroad”.

2. Penalty: Pursuant to Clause 2 of Article 275; Points g, p of Clause 1, Clause 2 of Article 46 and Article 47 of the Criminal Code; Clause 2, Article 2 of Resolution No. 41/2017/QH14 in Viet Nam dated June 20, 2017 of the National Assembly, Phan Giang P is sentenced to 3 (three) years in prison.  The prison term commences from the date of detention (March 29, 2017).

3. Court fees: Pursuant to Article 99 of the Criminal Procedure Code and Resolution 326/2016/UBTVQH14 dated December 30, 2016 of the Standing Committee of the National Assembly: Phan Giang P has to pay VND 200,000 of criminal first instance court fee.

Phan Giang P has the right to appeal within 15 days from the date of pronouncement of the Verdict.