Verdict No. 50/2017/HS-ST dated September 29, 2017 on organizing others to flee abroad

PEOPLE’S COURT OF HA GIANG PROVINCE

VERDICT NO. 50/2017/HS-ST DATED SEPTEMBER 29, 2017 ON ORGANIZING OTHERS TO FLEE ABROAD

On September 29, 2017, at the office of the People’s Court of Ha Giang Province, a first instance trial was conducted to hear the criminal case No. 52/2017/HSST dated August 30, 2017 in accordance with the Decision to Bring the Case to Trial No. 61/2017/QDXXST-HS dated September 15, 2017 against the defendant:

Vu Mi X; other name: none; date of birth: September 20, 1993, place of birth: Commune G, District M, Ha Giang Province. Place of residence: Village N, Commune G, District M, Ha Giang Province; occupation: slash-and-burn farmer; educational level: 9/12; nationality: Vietnam; ethnicity: Hmong people; religion: none; his father: Vu Mi T, born in 1961 and his mother: Vang Thi S (died), the third child in a 5-children family; his wife: Giang Thi P, born in 1995; children: 2; the eldest child was born in 2012, the younger child was born in 2015; previous conviction: none, previous administrative penalty: none. The defendant was arrested on May 20, 2017; the defendant has been detained in the detention center of Ha Giang Public Security. Present.

- The advocate for the defendant Vu Mi X: Mrs. Nguyen Thi Thanh H – an assistant in the Legal Aid Center of Ha Giang Province. Present.

- Person with related rights and obligations: Mr. Sung Mi D, born in 1990. Place of residence: Village N, Commune G, District M, Ha Giang Province. Present.

- Witnesses:

1. Sung Mi V – born in 1992. Present;

2. Sung Mi P - born in 1972. Present;

3. Vu Mi T - born in 1998. Present;

4. Vu Mi G2 - born in 1986. Present;

5. Vu Mi C - born in 1992. Present;

6. Vu Mi S - born in 1992. Present;

7. Giang M C - born in 1994. Absent from the place of residence;

8. Sung Mi S - born in 2002. Absent from the place of residence;

9. Vu Mi G1 - born in 1989. Absent from the place of residence;

10. Sung Mi N - born in 1997. Absent from the place of residence;

11. Giang Mi X - year of birth (unknown). Absent from the place of residence;

12. Vu Mi G – born in 2002. Absent from the place of residence;

13. Giang Mi X - year of birth (unknown). Absent from the place of residence;

14. Giang Mi L - born in 1990. Absent from the place of residence;

15. Vu Mi D - year of birth (unknown). Absent from the place of residence;

16. Giang Mi N - born in 1986. Absent from the place of residence;

17. Giang Mi T - born in 1995. Absent from the place of residence.

- Hmong interpreter: Mr. Giang C/O S - Place of residence: Group 4, Minh Khai Ward, Ha Giang City.

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:

Early in 2015, Vu Mi X, born in 1993, residing in Village N, Commune G, District M, Ha Giang Province, has worked as a manual worker in China and got acquainted with a Chinese person named Vang Khuyen S (unknown age and address). S told X to return to Vietnam in order to find people to work for Sau in China, the job consists of digging pits and planting trees. S would pay the wages in advance to anyone who needs. If X may find people for Sau, his wage will be higher than others 10 yuan per day. X accepted the offer and received 500 yuan from S (five hundred yuan) for travel expense to find people sent to China for doing manual work.

From April 2015 to March 2017, Vu Mi X organized 3 times bringing total 17 citizens of District M, Ha Giang Province to do manual work abroad (China) as follows:

The first trip:  In March 2015, upon acceptance of the offer of Vang Khuyen S, Vu Mi X returned to Vietnam, and then he met Sung Mi N - born in 1997, Giang Mi X, Sung Mi V - born in 1992 (co-residing in Commune G, District M) to encourage them to do manual work in China, the job consists of digging holes and planting trees, the daily wage is 80 yuan, the wages will be paid in advance to those who accept this job offer. Knowing this job offer, Sung Mi P - born in 1972, Vu Mi G - born in 2002, Giang Mi G, Giang Mi L - born in 1990 (co-residing in Commune G, District M) met X and showed their acceptance to the offer. After getting acceptance from 7 people, X informed Vang Khuyen S that he found workers and they wish to receive wages in advance, S asked X to go to Thuong Phung market - China to take money in order to pay advance wages for Sung Mi N, Giang Mi X, Sung Mi V, Giang Mi G and Giang Mi L 1,000 yuan each (one thousand yuan), to for Sung Mi P and Vu Mi G 500 yuan each (five hundred yuan), the remaining sum of 1,000 yuan (one thousand yuan) will be left for Vu Mi X for his personal purpose.

About two weeks later, Vu Mi X rode the motorbike of Xa (an old motorbike brand Win with un-remembered license plate) from his house to the appointed place and took 7 people including: Sung Mi N, Giang Mi X, Sung Mi V , Giang Mi G, Giang Mi L, Sung Mi P and Vo Mi G to cross the border (in Commune T, District M) to China and assign them to Vang Khuyen S, then these people and X have done manual work in China without any laissez-passer. Having worked there for 3 months until August, 2015, X and these people returned to Vietnam and were paid full wages.

The second trip: In September 2016, Vu Mi X met Vu Mi T - born in 1998, Vu Mi G1 - born in 1989, Giang Mi N - born in 1986, co-residing in Commune G, District Mc and persuaded them to do manual work in China, the job consists of digging holes and planting trees, the wage is 90 yuan per day (ninety yuan per day), in addition, Vu Mi G2 - born in 1986, Vu Mi D, Vu Mi C (co-residing in Village C, Commune G, District M), through word of mouth knowing that X was finding people to do manual work in China, called X and asked for the job.  Getting 6 more people, X told Vang Khuyen S to pay advance wages, S gave X 13,000 yuan (thirteen thousand yuan), X advanced Vu Mi G2, Vu Mi T, Vu Mi G1 and Vu Mi C 2,000 yuan each (two thousand yuan), Giang Mi N 2,500 yuan (two thousand five hundred yuan) Vu Mi D 1,500 yuan (one thousand five hundred yuan), and kept 1,000 yuan for himself. X asked these people to wait for him at a defined border marker. As scheduled, X rode a motorbike (brand Win, un-remembered license plate) to the border marker 462 (in Commune X, District M) and waited for these 6 people, including: Vu Mi T, Vu Mi G1, Giang Mi N, Vu Mi G2, Vu Mi D, Vu Mi C who hired a car by their own and came there after that. Among these 6 people, Vu Mi G2, Vu Mi T, Vu Mi G1, Vu Mi C obtained a laissez-passer so the Station S - High Command of Ha Giang Border Defense Force stamped the exit permission seal on these laissez-passers, particularly Giang Mi N and Vu Mi D did not have a lasses-passer.

After gathering enough people, X continued to send them to China and assigned them to S, after that, X and these people had worked as manual workers and were paid full wages. In December 2016, Vu Mi X and these 6 people returned to Vietnam.

The third trip:  In early March, 2017, Vu Mi X continued to meet and persuade Giang Mi C - born in 1994, Giang Mi T (co-residing in Village N, Commune G, District M), Vu Mi S - born in 1992, living in Village C, Commune G, District M to do manual work in China, the work is digging holes and planting trees, the wage is 100 yuan/person/day, in addition to Sung Mi S - born in 2002, Sung Mi N - born in 1997 (both residing in Village N, Commune G, District M) also showed their wish to come with Vu Mi X.

After getting more 5 people, X contacted Vang Khuyen S and was given 10,000 yuan (ten thousand yuan) for the advance wages. Then, X advanced Vu Mi S 1,000 yuan and VND 3,800,000; Sung Mi N 2,500 yuan; Giang Mi C 1,500 yuan; Giang Mi T 2,000 yuan, except for Sung Mi S who did not receive the advance wage. With regard to the remaining amount of 1,850 yuan, X spent 1,000 yuan for himself and gave 850 yuan to the Investigation Agency.

On March 28, 2017, Vu Mi X rode a motorbike (brand Wave RSX, red color, license plate 23B2 - 166.24 borrowed from Sung Mi D, born in 1990, residing in Village N, Commune G) to take 5 people, including: Vu Mi S, Sung Mi N, Giang Mi C, Giang Mi T and Sung Mi S to the border area in Commune T, District M and sent them to China for Vang Khuyen S, this time X did not do manual work together with these people but returned to Vietnam and received 200 yuan from S as worker hunting remuneration. All 5 people fled to China without any laissez-passer as required by law. While S was taking these 5 people to the workplace, they were arrested by Chinese Police and extradited to Vietnam on May 16, 2017.

In the Indictment No. 15/KSDT dated August 28, 2017, the People’s Procuracy of District D of Ha Giang Province prosecutes: the defendant Vu Mi X for “Organizing others to flee abroad” as prescribed in Clause 2 Article 275 of the Criminal Code in Viet Nam.

At the trial, the defendant Vu Mi X pleaded guilty to the crime, his deposition in the trial well matches with his deposition made during the investigation and prosecution process, the defendant has enticed others and organized 3 trips to take 17 people to China to do manual work there under an agreement with a Chinese man Vang Khuyen S.

At the court hearing, the representative of the People’s Procuracy of Ha Giang Province withdrew a part of prosecution decision on application of the Resolution No. 41/2017/QH14 in Viet Nam dated June 20, 2017 on implementation of the Criminal Code No. 100/2015 to apply Clause 2 Article 349 of the Criminal Code 2015 in Viet Nam on lighter penalties in favor to the defendant for the reason that the defendant has committed the offense three times, organized 17 people to flee abroad illegally which does not falls under Clause 2 Article 349 but Clause 3 Article 349 of the Criminal Code 2015 with a heavier penalty bracket. The People’s Procuracy requests the Trial Panel to:

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

2. Sentence: applying Clause 2 Article 275, Point p Clause 1, Clause 2 Article 46 of the Criminal Code to sentence the defendant Vu Mi X to 5 to 6 years in prison. The prison term commences from the date on which the defendant was detained.

3. Exhibit: apply Point b, Clause 1 of Article 41 of the Criminal Code to confiscate 850 yuan to the public fund.

4. Court fee: compel the defendant Vu Mi X to pay VND 200,000 of first-instance criminal 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, all workers who were sent to China by the defendant returned to Vietnam and were paid full wages, and the consequences are deemed not serious. These are mitigating circumstances prescribed Point g, p Clause 1, Clause 2 Article 46, Article 47 of the Criminal Code, and the defendant is supposed to be sentenced to 3 to 4 years in prison.

- The defendant is an ethnic, plays as the breadwinner in a family with difficult financial situation, has limited awareness, among those who were sent to China by him, some were enticed by him but some knew information and asked him to take them together.

Testimonies of witnesses about the organization of others to flee abroad by Vu Mi X:

 9 people: Sung Mi N, Giang Mi X, Sung Mi V, Vu Mi T, Vu Mi G1, Giang Mi N, Giang Mi C, Giang Mai T, Vu Mi S all admitted that Vu Mi X persuaded them to dig holes and plant trees in China for daily wage of 80 to 90 yuan per person, so they agreed and were paid by Vu Mi X the wages in advance before moving to China, in specific:

1. Sung Mi N 1,000 yuan

2. Giang Mi X - 1,000 yuan

3. Sung Mi V 1,000 yuan

4. Vu Mi T 2,000 yuan

5. Vu Mi G1 2,000 yuan

6. Giang Mi N 2,500 yuan

7. Giang Mi C 1,500 yuan

8. Giang Mi T 2,000 yuan

9. Vu Mi S 1,000 yuan and VND 3,800,000

8 people: Sung Mi P, Vu Mi G, Giang Mi G, Giang Mi L, Vu Mi G2, Vu Mi D, Vu Mi C, Sung Mi N (fled abroad 2 times), as co-residing in the same commune with Vu Mi X, through word of mouth, Sung Mi S knew that Vu Mi X was finding people to work in China so Sung Mi S called and asked Vu Mi X to take him to China, in specific:

1. Sung Mi P 500 yuan

2. Vu Mi G 500 yuan

3. Giang Mi G 2,000 yuan

4. Giang Mi L 1,000 yuan

5. Vu Mi G2 2,000 yuan

6. Vu Mi C 2,000 yuan

7. Sung Mi N 2,500 yuan

8. Vu Mi D 1,500 yuan

Sung Mi S did not receive any advance wage.

Vu Mi X organized 17 people to work in China, in which 4 people Vu Mi C, Vu Mi G, Vu Mi T, Vu Mi G2 obtained a laissez-passer from the Border Guard Station S, the others did not obtain a laissez-passer. While they had been working in China, none of them was beaten and they also were provided with food and paid full wages and all came back to Vietnam.

At the hearing today, the present witnesses all admitted that they were sent to China to do manual work by Vu Mi X in conformity with the deposition of Vu Mi X at the hearing.

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 in Viet Nam.  There is no complaint about the acts and decisions of the presiding agencies during the investigation process and at the trial. Therefore, the acts and decisions of the presiding agencies, presiding persons are deemed legal and in accordance with laws and regulations. At the court hearing, the representative of the People’s Procuracy of Ha Giang Province withdrew a part of prosecution decision on application of the Resolution No. 41/2017/QH14 dated June 20, 2017 on implementation of the Criminal Code No. 100/2015 to apply Clause 2 Article 349 of the Criminal Code 2015 on lighter penalties in favor to the defendant for the reason that the defendant has committed the offense three times, organized 17 people to flee abroad illegally which does not falls under Clause 2 Article 349 but Clause 3 Article 349 of the Criminal Code 2015 with a heavier penalty bracket from 7 to 15 years in prison. This is considered well-grounded and appropriate, so, the Trial Panel accepts such a withdrawal.

[2]. At the court hearing, the defendant Vu Mi X pleaded guilty to his crime, his deposition at the trial well matches with his deposition made during the investigation period from case file p. 167 to 180, in consistence with the testimonies of witnesses during the investigation process from case file p.205 to 252 and at the court hearing and evidence available in the case file, such as: Record of Seizure of Objects (case file p.62), showing that:

From April 4, 2015 to March 2017, Vu Mi X has enticed other people and 3 times organized 17 citizens of Commune G District Mc to work in China as manual workers. On the first trip, 7 people: Sung Mi N, Giang Mi X, Sung Mi V, Sung Mi P, Vu Mi G, Giang Mi G, Giang Mi L were took by X to cross the border in Commune T, District M to China, then X assigned them to Vang Khuyen S, a Chinese man, and was paid 7,000 yuan in advance by S.  Vu Mi X advanced Sung Mi N, Giang Mi X, Sung Mi V, Giang Mi G, Giang Mi L 1,000 yuan each, Sung Mi P and Vu Mi G 500 yuan each and kept 1,000 yuan for himself. On the second trip, 6 people: Vu Mi T, Vu Mi G1, Giang Mi N, Vu Mi G2, Vu Mi D, Vu Mi C were took by Vu Mi X to cross the border through the border marker 462 in Commune X District M to China, then X assigned them to Vang Khuyen S, the Chinese man, and was paid 13,000 yuan in advance by S. Vu Mi X advanced Vu Mi G2, Vu Mi T, Vu Mi G1, Vu Mai C 2,000 yuan each, Giang Mi N 2,500 yuan, Vu Mi D 1,500 yuan, and kept 1,000 yuan for himself. On the third trip, 5 people including Giang Mi C, Giang Mi T, Vu Mi S, Sung Mi N, Sung Mi S were took by X by motorbike to cross the border in Commune T, District M to China, then X assigned them to Vang Khuyen S, the Chinese man, and was paid 10,000 yuan in advance by S.  Vu Mi X advanced 1,500 yuan to Giang Mi C, 2,000 yuan to Giang Mi T, 1,000 yuan and VND 3,800,000 totaling 2,150 yuan to Vu Mi S, Sung Mi N 2,500 yuan, Vu Mi X spent 1,000 yuan for personal purpose and gave 850 yuan to the investigation agency.

[3]. The offense committed by Vu Mi X 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 Vang Khuyen S (the Chinese man) to find people and organize them to flee to China to gain profit from the advance wages given by Vang Khuyen S and the wage higher than other workers and the remuneration of 200 yuan for a laborer. From April 2015 to March 2017, Vu Mi X has enticed other people and 3 times organized 17 citizens of Commune G, District M to flee to China to do manual work, the defendant's act constitutes the offense “Organizing others to flee abroad” with the case repeated offense prescribed in Clause 2 Article 275 of the Criminal Code 1999. Accordingly, the Indictment No. 15/KSDT dated August 28, 2017 of the People’s Procuracy of Ha Giang Province which prosecutes the defendant Vu Mi X for “Organizing others to flee abroad” as prescribed in Clause 2 Article 275 of the Criminal Code is considered as guilty person is rightly convicted, the application of articles and sentences proposed by the representative of the People’s Procuracy against Vu Mi X 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.  Although out of the 17 workers who were sent to China to do manual work, four of them completed exit procedures through the Border Guard Station S but when entering China, they did not carry out entry procedures as prescribed by the host country. During their stay in China, they did not report to the local authorities, which are deemed against the law.  Therefore, the defendant's offense must be dealt with severely in order to educate the accused to become honest and to work in accordance with the law and furthermore contribute to the fight against this kind of crime, which has been very complicated in the whole country in general and 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 a higher rate of wages, those who were sent to work in China are all workers who find employment to increase income for their families.  Before these 17 people were employed in China, 16 out of them had been paid their wages in advance and had been paid in full while they had worked there and all returned to Vietnam so the defendant's act did not cause much damage.  During the investigation of the case as well as at today's trial, the defendant expressed cooperative attitude and showed his repentance and desire to redeem his faults, besides, he comes from a poor ethnic family, with limited legal awareness, none of previous conviction or administrative penalty, so, the Trial Panel applies the extenuating circumstances for criminal liability prescribed in Points g and p, Clause 1 and Clause 2 of Article 46 of the Criminal Code to mitigate the penalty for the defendant, which is considered appropriate, and refuse the Receive the advocate's request for the application of Article 47 to the defendant.

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

[6]. In terms of evidence, the investigation agency seized 01 motorbike Honda brand name WAVERSX, red and black color, license plate 23B1-166.24 and returned to the motorbike’s owner Mr. Sung Mi D, residing in  Village N, Giang C Commune, District M, Ha Giang Province, so the Trial Panel does not consider this further. For the amount of 30,000 yuan that Mr. Vang Khuyen S gave to Vu Mi X in 3 times as advance wages for workers, Vu Mi X gave 26,150 yuan to 16 workers and Vu Mi X spent 3,000 yuan for his personal purpose, so the Trial Panel does not consider this further. For the amount of 850 yuan that the defendant gave the investigation agency as the laborer-seeking remuneration paid by Vang Khuyen S (the Chinese man), therefore, this amount of money shall be confiscated to the state fund as prescribed in Point b Clause 1 Article 41 of the Criminal Code, Point c Clause 2 Article 76 of the Criminal Procedure Code.

[7]. The defendant Vu Mi X has to pay the court fee as prescribed in Article 99 of the Criminal Procedure Code and 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.

Pursuant to documents and evidence mentioned above:

HEREBY DECIDES

[1] Declare: the defendant is guilty of “Organizing others to flee abroad”.

[2] Penalty:   the defendant Vu Mi X is sentenced to 5 years in prison as prescribed in Clause 2 Article 275, Point g, p Clause 1, Clause 2 Article 46 of the Criminal Code. The prison term commences from May 20, 2017.

[3] With regard to material evidence: Pursuant to Point b, Clause 1, Article 41 of the Criminal Code and Point c Clause 2 Article 76 of the Criminal Procedure Code, confiscate 850 yuan (eight hundred fifty yuan) to the state fund according to the Record of handover of exhibits between the Public Security and the Civil Enforcement Agency of Ha Giang Province dated August 31, 2017.

[4] With reference to court fee: Pursuant to Article 99 of the Criminal Procedure Code and Article 23 of the 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, Vu Mi X 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.