Verdict No. 32/2018/HSPT dated April 12, 2018 on organizing others to flee abroad

THE PEOPLE'S COURT OF QUANG BINH PROVINCE

VERDICT NO. 32/2018/HSPT DATED APRIL 12, 2018 ON ORGANIZING OTHERS TO FLEE ABROAD

On April 12, 2018, at the head office of People’s Court of Quang Binh Province, a court hearing is conducted to hear the Appellate Criminal Case No. 22/2018/HS-PT dated March 6, 2018 against the defendant Mai Thi H based on the appeal filed by the defendant Mai Thi H and the appeal filed by Chief Procurator of the People’s Procuracy of Dong Hoi City against the First Instance Criminal Verdict No. 09/2018/HS-ST dated January 31, 2018 of People’s Court of Dong Hoi City.

Appellant: Mai Thi H, date of birth: February 3, 1984, place of birth: Ward H, City D, Quang Binh Province. Registered permanent residence: Commune T, District B, Quang Binh Province; current residence: Neighborhood 1, Ward H, City D, Quang Binh Province; occupation: freelance; education level: 5/12; ethnicity: Kinh People; gender: female; religion: none; nationality: Vietnam; father: Mr. Mai L (dead) and Mrs. Vo Thi N; husband: Mr. Nguyen Thanh T (separated) and 2 children who were born in 2004 and 2006; previous convictions: none; previous administrative violation: none; criminal record: In 2002, she left Vietnam and entered Russia Federation, then she fled to Federal Republic of Germany to do business. In late 2007, she was arrested for “Assisting illegal emigration” offence and was sentenced to 3 years and 6 months in prison. In March 2010, she was deported back to Vietnam, then she had lived in Commune T, District B, Quang Binh Province. In October 2010, she illegally entered Kingdom of England, in March 2012, she was arrested by the England Police for “Growing marijuana illegally” and was sentenced to 1 year in prison. In March, 2013 she was deported back to Vietnam and has been out on bail based on the Ban on Leaving the Place of Residence.  Present.

Persons considered as aggrieved parties in the First Instance Verdict including Mrs. Phan Thi G, Mr. Pham Anh T, Mr. Truong Van D, Mrs. Nguyen Thi Hoai T, Mrs. Nguyen Ngoc M; and persons with relevant rights and obligations including Mr. Mai Xuan H, Mrs. Nguyen Thi Thuy D, Mr. Nguyen Dang T, Mrs. Bui Thi T, Mr. Phan Thanh B, Mr. Phan Van T, Mr. Nguyen Tien D, Mrs. Nguyen Thi N, Mr. Nguyen Anh T have not filed any appeal or not involved in any appeal made by the People’s Procuracy, thus, the Court does not summon them to appear in the appellate court hearing.

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:

Mai Xuan D and Mai Thi H have lived for many years in European countries by organizing illegal emigration rings. After returning to Vietnam, Mai Xuan D asked Mai Thi H (D’s older sister) to find people who wish to work in Federal Republic of Germany. They will be sent legally to Republic of Serbia and then cross the border illegally to Federal Republic of Germany with the assistance of the emigration ring of D at the cost of USD 19,000 per person.

From July 2015 to March 2016, Mai Thi H acted as a broker, directly collected money and dossiers of workers sent to Mai Xuan D in order for D to organize them to flee abroad, in specific: In late 2015, Mr. Phan Thanh B in Farm Township V, District B who knew the emigration ring of Mai Thi H asked H to prepare paperwork for his son Phan Anh T to emigrate to Federal Republic of Germany at the cost of USD 19,000. Phan Anh T and his family completed the paperwork and paid H the cost. About early 2016, Mai Xuan D asked Mai Anh T to go to Hanoi to travel Asean countries by airplanes. On March 14, 2016, Phan Anh T and other people flied to Ho Chi Minh City. On March 15, 2016, Phan Anh T and other people flied to Serbia thanks to assistance of D. On arrival in Serbia, Phan Anh T was helped by D to flee across the border illegally into Hungary 2 times but failed. In the third time, while Phan Anh T and other people were fleeing across the border into Romania, they were arrested and returned to Vietnam.

About December 2015, Phan Thi G in Village 1, Commune B, District B was introduced by a friend in Federal Republic of Germany an emigration ring to Europe of Mai Thi H. Then, Phan Thi G called H and H agreed and told Phan Thi G to prepare USD 19,000 and a dossier. In January 2016, H called Phan Thi G informing that there would be a trip to Germany and H gave the phone number of Mai Xuan D in Hanoi to Phan Thi G to contact. After that, Phan Thi G submitted relevant documents to D. She transferred USD 19,000 multiple times to D and H. On April 16, 2016, Phan Thi G was assisted by D to fly to Serbia. From April 2016 to September 2016, the ring of H sent Phan Thi G and other people multiple times to Federal Republic of Germany by road through neighbor countries but failed. In October 2016, Phan Thi G was assisted to cross the border to Romany and then flee to Federal Republic of Germany but she was arrested by Romania Police. On December 23, 2016 Phan Thi G was deported back to Vietnam.

About July 2015, Mai Thi H directly received dossier and VND 400,000,000 from Truong Van D in Commune T, District B for illegal emigration but failed. Until March 2016, Mai Xuan D sent Truong Van D to Serbia and the ring of D organized Truong Van D to cross the border to Federal Republic of Germany multiple times but failed. Until October 2016, Truong Van D was deported back to Vietnam.

Through introduction of a friend in Federal Republic of Germany, Nguyen Thi Hoa T in Village 5, Commune B, District B knew the emigration ring of Mai Thi H. About September 2015, Nguyen Thi Hoai T asked H to meet in City D and H agreed receiving the dossier and completing the paperwork to send Nguyen Thi Hoai T to Federal Republic of Germany at the cost of USD 19,000 and H transferred such dossier to Mai Xuan D. After that, H gave Nguyen Thi Hoai T the phone number of Mai Xuan D to contact. The family of Nguyen Thi Hoai T paid H such amount of money. On March 11, 2016, Nguyen Thi Hoai T and other people were assisted to fly from Hanoi to Sai Gon and then fly to Turkey and then Serbia. In September 2016, D organized Nguyen Thi Hoai T and 5 other people to cross the border to Serbia and to Hungary but failed. After that, the ring of D hired a Swiss to take Nguyen Thi Hoai T and other people to cross the border to Serbia and to Rumania, however, they were arrested by the Rumania Border Police. On December 13, 2016, Nguyen Thi Hoai T and other people were deported back to Vietnam using the laissez-passers issued by the Embassy of Vietnam.

Through a friend who has worked in Federal Republic of Germany, Nguyen Ngoc M in Village 6, Commune B, District B knew the illegal emigration ring of Mai Thi H. Nguyen Ngoc M contacted H and H agreed at the cost of USD 19,000. Nguyen Ngoc M and family submitted the dossier and paid money to H. In December 2015, H gave Nguyen Ngoc M the phone number of Mai Xuan D to contact. On March 12, 2016, D assisted Nguyen Ngoc M and other people to fly to Ho Chi Minh City, and fly to Turkey 3 days later and to Serbia. In September 2016, D organized Nguyen Ngoc M and other people to cross the border to Hungary but failed. About 2 weeks later, when Nguyen Ngoc M and other people were being led to cross the border to Rumania by the gang member, they were arrested. On December 12, 2016, Nguyen Ngoc M was issued with a laissez-passer by the Embassy of Vietnam in Rumania to return to Vietnam.

Apart from above people, Mai Xuan D collected money and received dossiers in person and organized other people to flee abroad, in specific: D collected money and dossier of Mrs. Nguyen Thi Thuy D in Neighborhood 2, Ward B, Town B, Quang Binh Province; Mai Xuan H who is D's older brother in Neighborhood 1, Ward H, City D, Nguyen Dang T in District V, Quang Tri Province, Bui Thi T in District V, Vinh Phuc Province. After collecting money and receiving their dossiers, D organized them to cross the border to Federal Republic of Germany multiple times but failed, until December 12, 2016 they were deported back to Vietnam. During the investigation process, Mai Xuan D made a getaway, the Investigation Security Agency of Quang Binh Public Security issued a Wanted Decision and an Investigation Suspension Decision against Mai Xuan D.

Mai Thi H received dossier and money in person from Mrs. P in Commune T, District B, Quang Binh Province to help Mrs. P emigrate illegally but failed. The place of residence of Mrs. P cannot be identified during the investigation process, in the other hand, Mrs. P does not make a denunciation of the offense committed by Mai Thi H.

Exhibits of the case: During the investigation process, the Investigation Security Agency of Quang Binh Public Security seized 3 handwritten documents of Mai Thi H in form of a lending money document (enclosed with the case file).

With regard to civil liability: During the investigation process, Mai Thi H reimbursed the family of Phan Anh T USD 19,000 in full; reimbursed VND 50,000,000 to the family of Phan Thi G; reimbursed VND 400,000,000 to the family of Nguyen Thi Hoai T and Nguyen Ngoc M. Mai Thi H was also required to repay the remaining amount that she received.

The Indictment No. 87/THQCT-KSDT-TA dated November 30, 2017 of the People’s Procuracy of Dong Hoi City prosecuted the defendant Mai Thi H for "Organizing other people to flee abroad" under Clause 2, Article 275 of the Criminal Code 1999.

The First Instance Criminal Case No. 09/2018/HS-ST dated January 31, 2018 of the People's Court of Dong Hoi District pronounced the defendant Mai Thi H guilty of "Organizing others to flee abroad".

Pursuant to Clause 2 Article 275; Points b, p Clause 1, Clause 2 Article 46; Article 47; Article 33 of the Criminal Code 1999, the defendant Mai Thi H was sentenced to 4 years 6 months in prison, the prison term commences from the date of arrest for verdict enforcement.

Pursuant to Article 42 of the Criminal Code 1999; Article 584; 585 of the Civil Code 2015 in Viet Nam; the defendant Mai Thi H was compelled to reimburse VND 245,000,000 to Mrs. Nguyen Thi Hoai T; reimburse VND 245,000,000 to Mrs. Nguyen Ngoc M, reimburse VND 431,000,000 to Mrs. Phan Thi G.

Mai Thi H was compelled to pay VND 200,000 of first instance criminal court fee and VND 39,630,000 of first instance civil court fee to the state fund.

The court also declared the right to appeal the First Instance Verdict of the defendant Mai Thi H and aggrieved parties, and person with relevant rights and obligations.

Within the statutory time limit, on December 7, 2018, the defendant Mai Thi H filed an appeal as follows:  Request the Court of Appeal to consider imposing Mai Thi H a suspended sentence.

On December 12, 2018, the Chief Procurator of People’s Procuracy of Dong Hoi City issued an Appeal Decision No. 02/KHPT-HS against the sentence section of the First Instance Criminal Verdict No. 09/2018/HS-ST dated January 31, 2018 of People’s Court of Dong Hoi City, requesting the People’s Court of Quang Binh Province to conduct the appellate trial and increase the sentence imposed on the defendant Mai Thi H.

At the appellate court hearing, the defendant Mai Thi H pleads guilty of the same offence as stated in the Indictment and in the First Instance Verdict, she upholds the appeal for a suspended sentence or commutation.

The procurator who is in charge of bringing appellate prosecution upholds the appeal and requests the Appellate Trial Panel not to accept the appeal filed by the defendant Mai Thi H; to accept the appeal of the Chief Procurator of People’s Procuracy of Dong Hoi City to revise the First Instance Verdict and increase the sentence against Mai Thi H from 6 to 9 months in prison.

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 litigated at the trial, the Trial Panel shall determine as follows:

Considering that the confession made by the defendant Mai Thi H at the appellate court hearing in conformity with her depositions and depositions of those who paid Mai Thi H to organize them to flee abroad during the investigation process and at the first instance court hearing, in conformity with the testimonies of persons with relevant rights and obligations, evidence and documents available in the case file, the Appellate Trial Panel considers that the First Instance Criminal Verdict No. 09/2018/HS-ST dated January 31, 2018 of People’s Court of Dong Hoi City pronouncing the defendant Mai Thi H guilty of “Organizing others to flee abroad” is considered as guilty person is rightly convicted as per the law.

[1] Deeming the appeal made by the Chief Procurator of People’s Procuracy of Dong Hoi City requesting People’s Court of Quang Binh Province to conduct an appellate court hearing to increase the sentence imposed on the defendant Mai Thi H, the Trial Panel considers that: Those who paid Mai Thi H money to organize them to flee to Federal Republic of Germany all know that Mai Thi H is not permitted to organize them to work abroad; all know that Mai Thi H cannot send them to Federal Republic of Germany legally but send them abroad and hire a guide to lead them to immigrate illegally to Federal Republic of Germany and then attempt to stay in Federal Republic of Germany in search of work; however, they still accepted Mai Thi H’s offer, thus, they are not aggrieved parties in the case. The Court of Instance was not right when determining those who paid Mai Thi H money to organize them to flee abroad are aggrieved parties and apply the mitigating circumstances according to the amount that Mai Thi H reimbursed them as prescribed in Point b Clause 1 Article 46 of the Criminal Code 1999.  The defendant Mai Thi H committed the offence “Organizing others to flee abroad” multiple times, thus, she is supposed to be prosecuted and tried as prescribed in Clause 2 Article 275 of the Criminal Code 1999 with the sentence bracket of 5 years to 12 years, the defendant’s offence directly infringed the state management order in terms of entry and exit, disturbed the peace and security, and compromised the foreign affairs of Vietnam and countries to which Vietnamese people illegally emigrated. Although the defendant committed a serious offence and have bad criminal record, the Court of First Instance imposed her a sentence of 4 years 6 months pursuant to Article 47 of the Criminal Code 1999, less than the level of Clause 2 Article 275 of the Criminal Code 1999, which is considered a light sentence against the defendant. According to the nature and severity of the offence committed by the defendant, the Appellate Trial Panel considers that it is essential to accept the appeal made by the Chief Procurator of People Procuracy of Dong Hoi City to increase the sentence imposed on Mai Thi H as requested by the procurator at the appellate court hearing.

[2] With regard to the appeal for suspended sentence or commutation filed by the defendant Mai Thi H, the Trial Panel considers that although the defendant committed a serious offence and has bad criminal record, the Court of First Instance imposed her a sentence of 4 years 6 months pursuant to Article 47 of the Criminal Code 1999, less than the starting level of Clause 2 Article 275 of the Criminal Code 1999, to which was appealed for an increase in sentence by the Chief Procurator of People’s Procuracy of Dong Hoi City. Therefore, it is impossible to accept the appeal of the defendant to revise the First Instance Verdict towards granting a commutation or suspended sentence as stated in the defendant’s appeal and opinions given at the appellate court hearing.

[3]. With regard to the appellate criminal court fee payable by Mai Thi H.

Because Mai Thi H’s appeal is not accepted, she has to incur the appellate criminal court fee as prescribed in Clause 2 Article 135, Clause 2 Article 136 of the Criminal Procedure Code 2015; Point b Clause 2 Article 23 of Resolution No. 326/2016/Standing Committee of the National Assembly 14 dated December 30, 2016 of the Standing Committee of National Assembly on court fees and charges.

The Court of First Instance was not right when determining procedural capacity of those who were organized to flee abroad illegally and considering the defendant’s reimbursement to them as a mitigating circumstance as prescribed in Point b Clause 2 Article 46 of the Criminal Code 1999. However, this part of the First Instance Verdict is not appealed so the Court of Appeal does not revise it but point out that mistake for the Court of First Instance to learn from.

Other decisions made in the First Instance Verdict regarding compelling Mai Thi H to reimburse money to those who were organized to flee abroad, to pay VND 200,000 of first instance criminal court fee and VND 39,630,000 of first instance civil court fee to the state fund which are not appealed will take effect from the deadline for appeal.

Pursuant to documents and evidence mentioned above:

HEREBY DECIDES

Pursuant to Point b Clause 1 Article 355, Point a Clause 2 Article 357, Clause 2, Articles 135, 136 of the Criminal Procedure Code 2015 in Viet Nam; Point b Clause 2 Article 23 of Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of Standing Committee of the National Assembly on appellate court fees and charges;

1. Accept the appeal made by the Chief Procurator of People’s Procuracy of Dong Hoi City to revise the First Instance Verdict.

Pursuant to Clause 2 Article 275; Points b, p Clause 1, Clause 2 Article 46; Article 33; Article 33 of the Criminal Code 1999 in Viet Nam, the defendant Mai Thi H is sentenced to 5 years in prison for “Organizing others to flee abroad”, the prison term commences from the date of arrest for verdict enforcement.

2. Refuse the appeal for suspended sentence or commutation filed by the defendant Mai Thi H.

3. With regard to the appellate criminal court fee payable by Mai Thi H:

The defendant Mai Thi H has to pay VND 200,000 of the appellate criminal court fee.

Other decisions made in the First Instance Verdict regarding compelling Mai Thi H to reimburse VND 245,000,000 to Mrs. Nguyen Thi Hoai T; VND 245,000,000 to Mrs. Nguyen Ngoc M, VND 431,000,000 to Mrs. Phan Thi G; to pay VND 200,000 of first instance criminal court fee and VND 39,630,000 of first instance civil court fee to the state fund which are not appealed will take effect from the deadline for appeal

The Appellate Verdict takes effect from the date of pronouncement (April 12, 2018).