Verdict No. 49/2018/HS-PT dated March 20, 2018 on organizing others to flee abroad

PEOPLE’S COURT OF DA NANG CITY

VERDICT NO. 49/2018/HS-PT DATED MARCH 20, 2018 ON ORGANIZING OTHERS TO FLEE ABROAD

On March 20, 2018, at the office of People’s Court of Da Nang City, an appellate trial is conducted to hear the criminal case No. 10/2018/TLPT-HS dated January 17, 2018 against the defendant Ngo Thi Ty L and her accomplices based on the appeals filed by the defendants Ngo Thi Ty L and Tran Duy T against the First Instance Criminal Verdict No. 104/2017/HSST dated December 15, 2017 of People’s Court of Hai Chau District, Da Nang City.

- Appellants:

1. Ngo Thi Ty L, born in 1979 in Da Nang; registered permanent residence and address: K338/H81/3 Road H, Ward B, District H, Da Nang City; educational level:  12/12; occupation: accountant; father: Mr. Ngo Tat H (alive) and mother: Mrs. Tran Thi H (alive); husband: Le Phuong N and two children: the oldest was born in 2001, the youngest one was born in 2011; previous administrative penalties, previous convictions: none. The defendant was detained from July 21, 2016 to November 16, 2016 and had her preventive measure changed. She has been currently out on bail. Present.

2. Tran Duy T, born in 1979 in Da Nang; registered permanent residence and address: 53/15 Road D, Ward T, District H, Da Nang City; education level: 12/12; occupation: director; father: Mr. Tran B (died) and mother: Mrs. Dinh Thi N (alive); wife: Mrs. Pham Thi T and two children: the oldest was born in 2005, the youngest one was born in 2011; previous administrative penalties, previous convictions: none. He has been currently out on bail. 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:

In late 2014, there was a young man named T1 who had regularly gone to the N coffee shop (No. XX, Street L, Da Nang City) owned by Ngo Thi Ty L, after many times, T1 asked Ngo Tat Son if he had an acquaintance who was a company director to help T1 passport paperwork. Although H did not know anyone, he introduced L to T1. T1 communicated with L and asked L to complete the passport paperwork, in specific: T1 gave L a dossier including 3 to 8 applicants for passport, each application consists of 02 photos 4x6cm size, an ID card, a piece of personal information paper, and an application form for L to fill in and stick the photo thereon. Then, L used a computer in the coffee shop to draft a document as follows: L Limited Liability Company requests Immigration Department to issue passports to Company L’s employees in order for they to work and study abroad to improve workmanship. After that, L brought all the above documents to Tran Duy T - Director of the Company V to sign and stamp the company’s seal in the application forms, labor contracts, the request submitted to the Immigration Department and sign and stamp the seal in the letter of recommendation in the name of Ngo Tat Son H or Nguyen Thi Nhuy N to submit to the Immigration Department, after being submitted, T would return L ID cards of these applicants. When passports were issued, H or N would assign them to L. Then, L gave T1 ID cards and passports, T1 paid numeration to L, VND 1,500,000 each passport.

Of which 51 applications, the application of Le Nhat H was detected by the Chamber 5 - Immigration Department. Through extensive investigation and verification, 51 applications for passport filed by Company V are considered fake and thereafter transferred to Investigation Security Agency affiliated to Da Nang Public Security for further investigation of the crime. In which: 6 people used passports to exit, when they re-entered Vietnam, they were detected by the police of the border checkpoint; 04 people were detected when using their passports for exit; 13 people have used passports for exit and have stayed abroad currently; 10 people used passports for exit, they have entered but their true identity has not been identified; 13 people have passports left unused; 4 people have passed the verification of passport holders (however, these 4 people are not employees of Company V but are requested to issue passports); in which, 2 people used passports for exit and have re-entered Vietnam currently and 2 people have not used passports.

The Expertise Conclusion No. 719/GD-HS dated May 10, 2016 of Criminalistics Division of Da Nang Public Security shows that: Handwriting in documents subject to assessment No. A1 to A91 compared to handwriting in sample document in name of Ngo Thi Ty L No. M1 to M5 are written by the same person.

The Expertise Conclusion No. 749/GD-HS dated April 20, 2016 of Criminalistics Division of Da Nang Public Security shows that: Image of the round seal on the documents subject to assessment No. A1 to A103 compared to image of the round seal on the documents No. M1 to M7 is made from the same seal. Handwriting in documents subject to assessment in the name of Tran Duy T No. A1 to A103 compared to handwriting in sample document in name of Tran Duy T No. M1 to M6 are written by the same person.

Ngo Thi Ty L paid a fee of 200,000 VND per passport and gave VND 5,100,000 to T. In total, Ty L has applied for a passport for T1 10 times (10 dossiers, including 51 passport holders). The illegal profit amount is VND 76,500,000 (VND 1,500,000 x 51 applications) - VND 10,200,000 (VND 200,000 x 51 applications) - VND 5,100,000 (given to T) = VND 61,200,000 (sixty one million, two hundred thousand dong).

In the First Instance Verdict No. 104/2017/HSST dated December 15, 2017, the People's Court of Hai Chau District, Da Nang City has decided:

1. Pursuant to Clause 2 Article 275; Point p Clause 1 Article 2; Article 46, Article 47 of the Criminal Code 1999 in Viet Nam:

Ngo Thi Ty L was sentenced to 24 (twenty four) months’ imprisonment for "Organizing others to flee abroad", less the previous detention period of 3 months 25 days, the remaining prison term is 20 (twenty) months 05 (five) days of imprisonment. The imprisonment term commences from the date of arrest.

2. Pursuant to Clause 2 Article 275; Points g, p Clause 1, Clause 2 of Article 46 and Article 47 of the Criminal Code 1999.

Tran Duy T was sentenced to 24 (twenty four) months’ imprisonment for “Organizing others to flee abroad”. The imprisonment term commences from the date of arrest.

The Verdict also decides actions against illicit proceeds, exhibits, court fees and the right to appeal.

On December 28, 2017, the defendant Ngo Thi Ty L filed an appeal, requesting the Court of Appeal to consider mitigating the penalty for the defendant. By March 2, 2018, the defendant filed an additional appeal for a suspended sentence.

On December 25, 2017, the defendant Tran Duy L filed an appeal, requesting the Court of Appeal to consider mitigating the penalty for the defendant. By February 3, 2018, the defendant filed an additional appeal for a suspended sentence.

At the court hearing, the People’s Procuracy’s representative offers opinions about the case settlement as follows: Appeals of the defendants were made in due process and within the time limit for appeal. Regarding the contents of the appeal, the First Instance Verdict No. 104/2017/HSST dated December 15, 2017 of the People's Court of Hai Chau District’s sanction against the defendants Ngo Thi Ty L and Tran Duy T, each defendant sentenced to 24 months’ imprisonment for "Organizing others to flee abroad" under Clause 2, Article 275 of the Penal Code is well grounded and in conformity with the law, thus the Trial Panel is recommended not to accept the defendants' appeals and uphold the First Instance Verdict. In terms of the charge, it is necessary to declare the defendants guilty of “Organizing others to flee abroad illegally”.

The defendants Thi Ty L and Tran Duy T both kept upholding their appeals and proposed the Trial Panel to consider imposing suspended sentences.

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:

 [1]. At the appellate court hearing, the defendants Ngo Thi Ty L, Tran Duy T pleaded guilty. Their testimonies well matches with documents and evidence available in the case file, so the Trial Panel has enough grounds to conclude that: From late 2014 to April 3, 2015, Ngo Thi Ty L had prepared required documents as making identification documents, filling out false information in 51 applications for passports illegally. She also colluded with Tran Duy T - Director of Company V to sign and stamp for 51 non-employees of V Co., Ltd. to apply for a passport illegally. As a consequence, the issuing authority granted passports to 51 ineligible persons. In which, 29 persons used these passports to flee abroad. Currently, 13 persons have stayed abroad.

Thus, the fact that First Instance Verdict No. 104/2017/HSST dated December 15, 2017 of People’s Court of Hai Chau District, Da Nang City convicted the defendants Ngo Thi Ty L and Tran Duy T of “Organizing others to flee abroad” as prescribed in Clause 2 Article 275 of the Criminal Code 1999 is considered as guilty person is rightly convicted. The Court of First Instance’s conviction against the defendants for “Organizing others to flee abroad” is conformable with the charge prescribed by law.

 [2]. In consideration of the defendants’ appeals, the Trial Panel finds that: The defendants, for the sake of their own interests and taking money from those who wished to flee abroad, have made fake identification papers, provided identification papers, such as application forms, sticking photos of others, making labor contract documents, drafting dispatches and letters of recommendation, etc.  A total of ten times, for 51 dossiers to deceive the authorities to grant passports to 51 persons, of which 29 persons have left Vietnam. The total proceeds that Ngo Thi Ty L gains is VND 76,500,000.

In which Ngo Thi Ty L appropriated VND 61,200,000, Tran Duy T appropriated VND 5,100,000.   Offenses committed by defendants have directly violated the administrative management in the field of exit and residence of the Socialist Republic of Vietnam. Therefore, the defendants must be properly sanctioned and isolated from the society for a period of time for education and general preventive deterrence purposes. The First Instance Verdict correctly assesses the nature and seriousness of the offense committed by the defendants and fully applies the extenuating circumstances for which the defendants are eligible. Although after the trial of the first instance, Ngo Thi Ty L returned VND 31,200,000. This is the amount that the Court of First Instance forced the defendant to return as illicit proceeds to be confiscated to public funds. As for Tran Duy T, he has suffered hardships, his mother has been seriously ill, he has been the breadwinner in the family, but the Court of First Instance applied Article 47 of the Criminal Code to sentence the defendants to 24 months in prison as the lowest sentence in the adjacent sentence bracket. In comparison with the Criminal Code 2015 (coming into force from January 1, 2018), Clause 3 Article 349 stipulates that if the offense involves 11 persons or more, the sentence bracket of 7 years to 15 years, which is considered more severe, will apply. As a disadvantageous provision, the Court of First Instance was right when not applying this provision against the defendants.   Therefore, the Trial Panel dismisses the appeals of the defendants and upholds the First Instance Verdict.

 [3]. Other decisions of the First Instance Verdict which do not have any appeal will remain legally effective from the expiry of time limit for the appeal.

Based on the above-mentioned facts and matters,

HEREBY DECIDES

1. Pursuant to Point a Clause 1 Article 355 and Article 356 of the Criminal Procedure Code in Viet Nam. Dismiss the appeals of the defendants Ngo Thi Ty L and Tran Duy T and uphold the First Instance Verdict.

-  Pursuant to Clause 2 Article 275; Points g, p Clause 1, Clause 2 of Article 46 and Article 47 of the Criminal Code 1999.

Ngo Thi Ty L is sentenced to 24 (twenty four) months’ imprisonment for "Organizing others to flee abroad", less the previous detention period of 3 months 25 days, the remaining prison term is 20 (twenty) months 05 (five) days of imprisonment. The imprisonment term commences from the date of arrest.

-  Pursuant to Clause 2 Article 275; Points g, p Clause 1, Clause 2 of Article 46 and Article 47 of the Criminal Code 1999.

Tran Duy T is sentenced to 24 (twenty four) months’ imprisonment for “Organizing others to flee abroad”. The imprisonment term commences from the date of arrest.

2. With reference to court fees:  Pursuant to Point b, Clause 2, Article 23 of Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the Standing Committee of the National Assembly, the defendants Ngo Thi Ty L and Tran Duy T have to pay the first instance criminal court fee of VND 200,000 each.

3. Other decisions of the First Instance Verdict which do not have any appeal will remain legally effective from the expiry of time limit for the appeal.

The Appellate Verdict shall take legal effect from the date of pronouncement.