Verdict No. 51/2017/HSST dated August 16, 2017 on organizing others to flee abroad

PEOPLE’S COURT OF LUC NGAN DISTRICT, BAC GIANG PROVINCE

VERDICT NO. 51/2017/HSST DATED AUGUST 16, 2017 ON ORGANIZING OTHERS TO FLEE ABROAD

On August 16, 2017, at the office of People’s Court of Luc Ngan District of Bac Giang Province, the first instance trial is conducted to hear the criminal case No. 22/2017/HSST dated April 5, 2017 against the defendant:

Ly Van T, born in 1985; other name: none; registered permanent residence and address: Village H, Commune T, District L, Bac Giang Province; ethnicity: San Diu; nationality: Vietnam; religion: none; occupation: farmer; education level: 7/12; father: Ly Minh T, 1947 and mother: Luong Thi T, 1947; the eighth child in a ten-child family; wife: Hoang Thi B, 1987; children: 2 children (the oldest 2009, the youngest 2014); previous administrative penalties, previous convictions: none; criminal record: In the Verdict No. 23/2002/HSST dated May 31, 2002

People’s Court of District L, Bac Giang Province imposed a suspended sentence of 6 months’ imprisonment on the defendant, with the probation period of 12 months (the value of stolen property was VND 2,000,000; in the Verdict No. 32/2004/HSST dated August 20, 2004, People’s Court of District L, Bac Giang Province sentenced the defendant to 2 years’ imprisonment for “Stealing of property” (the value of stolen property was VND 5,380,000); the defendant has been wanted, arrested and detained since March 14, 2017. Currently, the defendant is being detained at the Detention Center of Bac Giang Public Security (present at the court hearing).

* Person with related interests and obligations:

1. Mr. Duong Van S - Born in 1988 (Absent)

Place of residence: Village N, Commune H, District L, Bac Giang Province.

2. Mr. Chu Van C - Born in 1985 (Absent)

Place of residence: Village N, Commune H, District L, Bac Giang Province.

3. Mr. Leo Van U - Born in 1984 (Absent)

Place of residence: Village B, Commune N, District L, Bac Giang Province.

4. Ms. Ly Thi B - Born in 1973 (Present)

Place of residence: Village C, Commune P, District L, Bac Giang Province.

5. Ms. Giap Thi T - Born in 1983 (Absent)

Place of residence: Village C, Commune P, District L, Bac Giang Province.

6. Ms. Nguyen Thi H - Born in 1982 (Absent)

Place of residence: Village C, Commune P, District L, Bac Giang Province.

7. Ms. Hoang Thi B - Born in 1987 (Present)

Place of residence: Village N, Commune T, District L, Bac Giang Province.

8. Mr. Leo Van S - Born in 1993 (Absent)

Place of residence: Village B, Commune N, District L, Bac Giang Province.

9. Mr. Diep Van V - Born in 1990 (Absent)

Place of residence: Village B, Commune Q, District L, Bac Giang Province.

10. Mr. Vien Van T - born in 1991 (Absent)

Place of residence: Village B, Commune Q, District L, Bac Giang Province.

11. Ms. Ly Thi V - Born in 1969 (Absent)

Place of residence: Village N, Commune N, District L, Bac Giang Province.

12. Ms. Ly Thi T - Born in 1965 (Absent)

Place of residence: Village N, Commune N, District L, Bac Giang Province.

13. Mr. Ton Van T; born in 1991 (Absent)

Place of residence: Village N, Commune N, District L, Bac Giang Province.

14. Mr. Hung Van N - born in 1984 (Absent)

Place of residence: Village H, Commune N, District L, Bac Giang Province.

15. Mr. Ha Van H - Born in 1984 (Absent)

Place of residence: Village T, Commune T, District L, Bac Giang Province.

16. Ms. Duong Thi D - Born in 1983 (Absent)

Place of residence: Village T, Commune T, District L, Bac Giang Province.

17. Ms. Ly Thi S - Born in 1979 (Absent)

Place of residence: Village C, Commune P, District L, Bac Giang Province.

18. Ms. Nguyen Thi N - Born in 1990 (Absent)

Place of residence: Village B, Commune Q, District L, Bac Giang Province.

19. Ms. Ly Thi T - Born in 1984 (Absent)

Place of residence: Village H, Commune N, District L, Bac Giang Province.

20. Ms. Hoang Thi Y - Born in 1976 (Absent)

Place of residence: Village C, Commune P, District L, Bac Giang Province.

21. Ms. Vi Thi L - Born in 1985 (Absent)

Place of residence: Village C, Commune P, District L, Bac Giang Province.

22. Ms. Nong Thi N - Born in 1978 (Absent)

Place of residence: Village C, Commune P, District L, Bac Giang Province.

23. Mr. Dang Dinh Q - Born in 1977 (Absent)

Place of residence: Village T, Commune G, District L, Bac Giang Province.

FINDING THAT

The defendant Ly Van T is prosecuted by the People’s Procuracy of District L, Bac Giang Province for the following offense:

Ly Van T has a brother Ly Van C who has been serving a life sentence in Guangxi Province, China.  Around October 2012, T illegally left Vietnam to China to visit his brother, and then T worked as a laborer in Guangxi Province, China. During this time, T got acquainted with some Chinese owners and knew that they wanted to hire Vietnamese laborers to cut sugarcane. Around late October 2012, Ly Van T returned to Vietnam.

Around November 2015, T met Mr. Duong Van S, 1988 and Mr. Chu Van C, 1985, co-residing in Village N, Commune H, District L; Mr. Leo Van U, 1984, residing in Village B, Commune N, District L, and persuaded them to go to work in China, the work was to cut sugarcane, everyone agreed. T asked each person to prepare about VND 200,000 to 300,000 to pay T in advance for renting a van from District L to Lang Son Province, and the travel cost incurred in China would be deducted from their wages thereafter.  In addition, T also asked them to take anyone who accepted that job offer together to fill up empty seats in the van and T would inform the departure date. On November 21, 2015, T visited his sister Ly Thi B, 1973, residing in Village C, Commune P, District L.  While having meal with Mrs. B’s family, T asked Mrs. B to go to China to cut sugarcane as a laborer, Mrs. B agreed and told T that her neighbors Mrs. Giap Thi, 1983 and Mrs. Nguyen Thi H, 1982 also wanted to go. T agreed and told them that there would be a van picking them up on December 1, 2015. Around late November 2015, T called everyone and informed them that there would be a van picking them up on December 1, 2015 and took them cross border to China. Around 13:00 on December 1, 2015, T rent a van (16 seats) from Mr. Dang Tran Q, 1977, residing in Village T, Commune G, District L to transport them to Lang Son. T called to guide Mr. Q to transport them to the meeting place, Mr. Q drove to Commune T to pick up T and his wife Mrs. Hoang Thi B, 1987, and T kept guiding Mr. Q to the meeting place. After picking up enough people, T told Mr. Q to transport them to Lang Son Province. Those who were picked up and transported by T all reside in District L, Bac Giang Province, including: Duong Van S, 1988; Chu Van C, 1985, both residing in Village N, Commune H; Leo Van U, 1984; Leo Van S, 1993, both residing in Village B, Commune N; Diep Van V, 1990; Vien Van T, 1991, both residing in Village B, Commune Q; Ly Thi V, 1969; Ly Thi T, 1965; Ton Van T, 1991, both residing in Village N, Commune N; Hung Van N, 1984, residing in Village H, Commune N; Ha Van H, 1984; Duong Thi D, 1983, both residing in Village T, Commune T; Ly Thi B, 1973; Ly Thi S, 1979, Giap Thi T, 1983; Nguyen Thi H, 1982, both residing in Village C, Ward P. On the way, Ly Van T collected from each person the amount of VND 100,000 to VND 300,000.  After Mr. Q transported people to Loc Binh District, Lang Son Province, T told everyone to get off the van, T paid rent to Mr. Q and let him return home.  Then T hired 02 cars to transport people to Chi Ma border checkpoint, Loc Binh District, Lang Son Province.  T declares that T cannot remember the amount of money collected from people but T spent them all on the rent. Arriving at the checkpoint area, T let everyone take a break, until around 22:00 on the same day, T took people on foot to cross the road illegally to China.  After arriving in China, they were transported by the van hired by the Chinese employer to the workplace in Guangxi Province, China, T also worked with people here.  After working for about 10 days, T learned that T's brother-in-law had died so T and his wife, Mrs. B and Mrs. S returned to Vietnam to visit T's brother-in-law. After finishing burial for his brother-in-law, on the December 15, 2015, T rent a car of an unknown person together with his wife and Mrs. B illegally cross border to China and return to their original workplace. Knowing that T has taken people crossing border to work in China, Mrs. Nguyen Thi T, 1990, residing in Village B, Commune Q, District L; Mrs. Ly Thi T, 1984, residing in Village H, Commune N, District L; Mrs. Hoang Thi Y, 1976; Mrs. Vi Thi L, 1985; Mrs. Nong Thi N, 1978, co-residing in Village C, Commune P, District L met T and asked T to take them together, T agreed and illegally took them crossing border to work in China. All expenses incurred on the way were paid by everyone.

During the time of working for the Chinese boss, because T could hear and speak Chinese and was able to bring Vietnamese workers to work, his food and phone call expenses by the landlord.  In addition, T was assigned by the landlord do as a payroll timekeeper and receiving monthly wages to pay the laborers.  The laborers who were taken by T to work in China just worked there for a period of time and then told T to return to Vietnam.  On January 7, 2016, the Chinese employer rent a van in order for T to take these laborers to the border area and then lead them cross the border to Vietnam.  The Chinese employer has deducted from 200 to 240 yuan for each person, which is the rental of the van transporting laborers from the border to the workplace and from workplace to the border to return to Vietnam.  In addition, the Chinese employer also told T to withhold an amount of 1080 yuan from Mr. Vien Van T because during his working time, Mr. T lost the owner’s an electric stove.  After returning to Vietnam, on February 16, 2016, Mr. Vien Van T sent a petition to Police Department of District L to request settlement.

During the prosecution process, Ly Van T escaped from his place of residence, the People’s Procuracy of District L issued a decision to suspend the case against the accused, and requested the Investigation Agency of Public Security of District L to issue a wanted notice against Ly Van T. On March 14, 2017, Ly Van T was arrested under the wanted notice.

With regard to civil liability: In the process of resolving the case, Ly Van T returned to Vien Van T the amount of wages that T withheld, Mr. T received enough money and had no other requirements.  Those who have been illegally cross border to China have no requirements for civil compensation.

From the above contents, the Indictment No. 26/KSDT dated April 5, 2017, Luc Ngan People's Procuracy prosecutes the defendant Ly Van Tam for "Organizing other people to flee abroad" under Clause 1, Article 275 of the Criminal Code 1999.

At the court hearing today, the defendant Ly Van T declared that: The charge and applied articles in the Indictment against the defendant are right, the defendant is not wrongly convicted. However, the defendant claimed that he only discussed the job offer and asked Mr. Chu Van C and Mr. Leo Van U to work as laborers in China, he did not persuade anyone else. The rest laborers, by themselves, asked him to take them together and gave money to the defendant in order to cover travel costs. The defendant did not benefit from bringing these people to China, the amount collected from them was on spent on the travel costs. On the second trip, the defendant guided 8 people cross border to China, including the defendant, the defendant’s wife Mrs. Hoang Thi B, Ms. Ly Thi B, Ms. Nguyen Thi T, Ms. Ly Thi T, Ms. Hoang Thi Y, Ms. Vi Thi L and Ms. Nong Thi N. All of these people, by themselves, asked the defendant to take them to China and paid the travel costs.  The defendant did not organize, discuss with or collect money from anyone in this group of people.

Persons with related rights and obligations, Ms. Ly Thi B and Hoang Thi B, kept their testimonies at the Investigation Agency and affirmed that they voluntarily asked Ly Van T to take them to China to work as laborers.

Even though some people with related rights and obligations were served with valid summons by the Court but they were still absent without any reason.  Therefore, the Trial Panel announced the testimonies of those absent at the court hearing.

After the interrogation, in the argument section, the representative of the People's Procuracy of District L keeps the same viewpoint as stated in the Indictment against the defendant and proposes the Trial Panel to:

- Declare the defendant Ly Van T guilty of “Organizing others to flee abroad”.

- Pursuant to Clause 1 Article 275; Points p Clause 1 of Article 46; Article 33 of the Criminal Code 1999 in Viet Nam;

- Sentence Ly Van T to 2 years to 2 years 6 months in prison. The prison term commences from the date of detention (March 14, 2017).

- With regard to civil liability: do not consider.

- With reference to court fees: The defendant has to pay a court fee as per the law.

-With reference to right to appeal: the defendant and persons with related rights and obligations have the right to appeal as per the law. At the argument section, the defendant Ly Van T has no opinion. When saying the last words, the defendant asks for the lowest sentence.

Persons with related rights and obligations present at the court hearing have no opinion in the argument section.

Based on documents and evidences available in the case file which are examined at the trial; based on the results of the argument at the trial; on the basis of considering and evaluating fully and comprehensively the evidence and opinions of the prosecutor, the defendant, the persons with related rights and obligations.

CONSIDERING THAT

At the court hearing today, the defendant Ly Van T declared that: On December 1, 2015, the defendant organized 17 Vietnamese people to cross the border illegally to China to work as laborers.  After taking 17 laborers to China, T was assigned by the Chinese owner to manage labor, track the working time of laborers and distribute wages to the laborers and have his food and phone call expenses covered while these workers had been working in China.

Considering that the defendant’s testimony at the trial today is consistent with his testimony at the Investigation Agency, in accordance with the depositions of those with related rights and obligations and documents and evidence collected in the case file.

The Ly Van T’s act has enough elements to constitute the crime of "Organizing others to flee abroad".  Although the defendant committed the act of organizing others to flee abroad two times, 17 people were taken in first time, 8 people were taken in the second time.  However, it is found that there are not enough grounds to take criminal charge against him as prescribed in Clause 2 of Article 275 of the Criminal Code (in case of a offense committed multiple times) because in the second time all the people accompanying the defendant to China  voluntarily asked him go along and contributed travel expenses, the defendant did not benefit from this.  The testimony of Ms. Ly Thi T, Hoang Thi Y, Vi Thi L, Nong Thi N also expressed her self-request and did not have to contribute anything to the defendant.  Only the testimony of Ms. Nguyen Thi T expressed that the defendant was the one who invited her to work in China, but considering that this testimony was not objective because Ms. T, Mr. T are spouses and had a complaint against Ly Van T. Ly Van T himself at the trial did not acknowledge that the testimony of Mr. T and Mrs. T is true.  Therefore, People's Procuracy of District L’s prosecution against defendant Ly Van T for the charge of "Organizing others to flee abroad" under Clause 1 of Article 275 of the Criminal Code has a legal basis and should be accepted for review.

The defendant's offense is a danger to society, has violated the order of administrative management, infringed internal and foreign policies of the Socialist Republic of Vietnam, causing disorder of security in the border area.  The defendant is a person with bad personal record: In the Verdict No. 23/2002/HSST dated May 31, 2002, People’s Court of District L, Bac Giang Province imposed a suspended sentence of 6 months’ imprisonment on the defendant, with the probation period of 12 months; in the Verdict No. 32/2004/HSST dated August 20, 2004, People’s Court of District L, Bac Giang Province sentenced the defendant to 2 years’ imprisonment for “Stealing of property”. Despite bad criminal record and having been sentenced to imprisonment twice by the Court, the defendant did not take it as lessons for himself but continue to commit law violations to organize others to flee abroad.  Thereby, the defendant is a person who is difficult to educate, reform and disregard the law of the State.  Therefore, it is necessary to strictly punish the defendant as per the criminal law, isolate the defendant from the society for a certain period of time to reform and educate him to become a law-abiding and good citizen to the family and society.

With regard to the aggravating circumstances and extenuating circumstances:

Regarding the aggravating circumstances of criminal liability:  The defendant does not incur any aggravating circumstance.

Regarding the extenuating circumstances of criminal liability: During the investigation process and at the first instance trial today, the defendant showed cooperative attitude and repentance, so he is entitled to extenuating circumstances defined at Point p, Clause 1, Article 46 of the Criminal Code.

For Mr. Dang Tran Q who was hired by Ly Van T to transport workers to Loc Binh District, Lang Son Province, but Mr. Q did not know the purpose of T was to bring people illegally cross border to China, thus, there is no basis for dealing with Mr. Dang Tran Q. The Trial Panel finds it accordant with the provisions of the law not to consider him further.

For Duong Van S, Chu Van C, Leo Van U, Leo Van S, Vien Van T, Hung Van N, Ha Van H, Duong Thi D, Hoang Thi B, Ly Thi B, Ly Thi S, Giap Thi T, Nguyen Thi H, Nguyen Thi T, Ly Thi T, Hoang Thi Y, Vi Thi L, Nong Thi N, Ly Thi V, Ly Thi T are those who have fled abroad (to China) but their single purpose is to work as laborers.  Public Security of District L decided to take administrative actions against them.  The Trial Panel considers it accordant with the provisions of the law not to consider them further.

For Diep Van V, Ton Van T are also people who have fled abroad (to China) for the manual work.  While the investigation was in progress, these two people were not present in their places of residence.  Investigation Agency of Public Security of District L shall keep investigating and verifying them further. The Trial Panel considers it accordant with the provisions of the law not to consider them further.

For acts of illegally fleeing abroad of Ly Van T in 2012 and on December 15, 2015, the People's Procuracy of L District requested Public Security of District L to take administrative actions against Ly Van T. The Trial Panel considers it accordant with the provisions of the law not to consider it further.

With regard to civil liability: In the process of resolving the case, Ly Van T returned to Vien Van T the amount of wages that T withheld, Mr. T received enough money and had no other restitution requirements.  Those who have been illegally cross border to China have no requirements for civil compensation, so the Trial Panel does not consider it further.

With reference to court fees: The defendant has to pay a court fee as per the law.

With reference to right to appeal: the defendant and persons with related rights and obligations have the right to appeal as per the law.

Based on the above-mentioned facts and matters,

HEREBY DECIDES

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

Pursuant to Clause 1 Article 275; Points p Clause 1 of Article 46; Article 33 of the Criminal Code 1999:

Sentence: Ly Van T to 2 (two) years and 6 (six) months in prison. The prison term commences from the date of detention (March 14, 2017).

2. With regard to court fees: Pursuant to Article 99 of the Criminal Procedure Code in Viet Nam; Article 23 of Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of Standing Committee of the National Assembly on court fees and charges, Ly Van T has to pay VND 200,000 of the first instance criminal court fee.

3. With reference to right to appeal: Pursuant to Articles 231, 234 of the Criminal Procedure Code, the defendant and persons with related rights and obligations present at the court hearing have right to appeal the Verdict within 15 days from the pronouncement.

The defendants, persons with related rights and obligations absent from the court hearing shall have the right to appeal within 15 days from the date on which the Verdict is served.

The first instance trial is conducted publicly.