Verdict No. 52/2018/HS-ST dated June 12, 2018 on organizing others to flee abroad

THE PEOPLE'S COURT OF TINH GIA DISTRICT, THANH HOA PROVINCE

VERDICT NO. 52/2018/HS-ST DATED JUNE 12, 2018 ON ORGANIZING OTHERS TO FLEE ABROAD

On June 12, 2018, at the office of People’s Court of Tinh Gia District, Ha Giang Province, the first instance trial was conducted to hear the criminal case No. 47/2018/TLST-HS dated May 15, 2018 according to the Decision to Bring the Case to Trial No. 57/2018/QDXXST-HS dated May 30, 2018 against the defendant: Nguyen Van H - born in: 1968; registered permanent residence: Village L, Commune H, District T, Thanh Hoa Province; address: Village L, Commune H, District T, Thanh Hoa Province; occupation: self-employed; education level: 4/10; ethnicity: Kinh People; gender: male; religion: none; nationality: Vietnam; father: Nguyen Van L (died) and mother: Le Thi D, born in 1943; wife: Ho Thi T - born in 1971; 03 children, the oldest was born in 1993, the youngest was born in 2004;

Previous administrative penalties, previous convictions: none;

The defendant has been detained at Thanh Hoa Police Detention Center from January 31, 2018 up to now.  The defendant is present at the trial.

- Persons with related interests and obligations:

+ Mr. Pham Viet N - born in 1994; residing in:  Village L, Commune H, District T, Thanh Hoa Province; “absent” 

+ Mr. Pham Viet V - born in 1992; residing in:  Village L, Commune H, District T, Thanh Hoa Province; “absent”

+ Ms. Hoang Thi H - born in 1990; registered permanent residence: Village L, Commune H, District T, Thanh Hoa Province; address: Village D, Commune Q, District T, Thanh Hoa Province; “absent”

+ Ms. Dinh Thi T - born in 1999; residing in: Village N, Commune, District T, Thanh Hoa Province; “absent”

+ Mr. Le Van S - born in 1997; registered permanent residence: Village B, Commune N, District T, Thanh Hoa Province; address: T, H, Hanoi; "absent"

- Witnesses:

+ Mr. Nguyen Van H1 - born in 1992; residing in:  Village B, Commune H, District T, Thanh Hoa Province; “absent”

+ Mr. Nguyen Van T - born in 1998; residing in:  Village B, Commune H, District T, Thanh Hoa Province; “absent” 

+ Ms. Le Thi H, born in 1998, residing in: Village B, Commune N, District T, Thanh Hoa Province; “absent”

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:

Around February 2014, Nguyen Van H happened to meet a man named C in Commune Q, District Q, Thanh Hoa Province.  Through chatting, H knew that C has just come back from China, where he had worked as a laborer with high income so H asked for C’s phone number. Then, Nguyen Van H came home and asked some people in Commune H and Commune N, District T if they wanted to work in China with high income, H would help them. In these communes, H found Pham Viet N, born in 1994; Pham Viet V, born in 1992; Hoang Thi H, born in 1990; Dinh Thi T, born in 1999 and Le Van S, born in 1997.  After discussing how to get people to work in China, H contacted C and agreed that on March 10, 2014, they would meet up and guide these people to go to China. In addition, Nguyen Van H1, born in 1992; Nguyen Van T, born in 1998 and Le Thi H, born in 1998, also went to China with them.  As scheduled, Nguyen Van H informed and guided people to go to the Ly river bridge in Quang Chinh Commune, Quang Xuong District, there would be a guide who drives them to Mong Cai, Quang Ninh Province to cross the border to China. On arrival at the river bank adjacent to China, a young man and a woman had them board on the rafts to across the river to China.  Arriving to the other side of the river (China side), there was a car waiting to take them to a factory. At the factory, a Vietnamese woman whose husband is a Chinese took them into the factory to work. On the same trip to China on March 10, 2014, there was also Nguyen Van H2, born in 1991 in Village L, Commune H, District T and Le Dinh L, born in 1992 in Village B, Commune N, District T (L asked Le Van S to accompany).  Having worked in China for a while, on  June 23, 2014, due to low pay and fear of being unsafe while working illegally, these laborers quitted jobs and returned to Vietnam, when they were approaching the border, they were arrested by the Chinese police. Nguyen Van T and Le Thi H, who were born in 1998 (17 years old), were released after being detained for 1 day, but the rest were released after 19 days.

According to the testimony of H and some people brought to China by H, H collected from Pham Viet VND 1,000,000, Pham Viet N VND 1.000.000 (given by the mother of N), Hoang Thi H VND 500,000, Dinh Thi T VND 500,000, Le Van S VND 1,000,000.  This sum of money Nguyen Van H has agreed with people is to pay for car tickets to China, if it is not enough, it would be deducted from their monthly wages. Nguyen Van H paid this sum of money to the Chinese employer to deduct the car fare, food, etc. for everyone.  However, during the process of resolving the case, Le Van S, Pham Viet N and Pham Viet V voluntarily do not ask H to return the sum of money that H received.  Particularly, Dinh Thi T and Hoang Thi H are not present at their places of residence, so, it is advisable to reserve their right to bring another civil lawsuit against defendant Nguyen Van H when they have sufficient conditions of lawsuit.

On February 5, 2017, Pham Viet N, 1992, and Pham Viet V, 1994, co-residing in Village L, Commune H, District T, reported to the local authority that Nguyen Van H sent them to China to work illegally.  On January 31, 2018, Nguyen Van H went to the Public Security Agency of Tinh Gia District to confess.  During the investigation, the defendant Nguyen Van H admitted his crime in accordance with the evidence documented in the case file.

Regarding the man named C, who together with H have organized these people to flee to China, H declared that H happened to know him and knew the phone number but does not know his face, his full name and address, as well as the young man and woman who had picked them up and fled to China, the investigation process did not identify these entities, thus the Police Investigation Agency has insufficient grounds to take actions against them.

The offense “Organizing others to flee abroad illegally” committed by Nguyen Van H is stipulated in Clause 1 Article 275 of the Criminal Code 1999 in Viet Nam. However, the above-mentioned act of Nguyen Van H had been performed from February 2014 but was not prosecuted until February 1, 2018.   Therefore, pursuant to Clause 3, Article 7 of the Criminal Code 2015 in Viet Nam, Resolution No. 41/2017/QH14 in Viet Nam dated June 20, 2017 of the National Assembly on guidelines for implementation of the Criminal Code 2015 (amended in 2017) ) and regulations advantageous to the offender, Nguyen Van H was prosecuted by the People's Procuracy of Thanh Hoa Province for "Organizing other people to flee abroad" as stipulated in Clause 1 of Article 349 of the Criminal Code 2015.

The Indictment No. 17/CT-VKS-P1 dated May 14, 2018, Thanh Hoa People's Procuracy   prosecutes the defendant Nguyen Van H for "Organizing other people to flee abroad" under Clause 1, Article 349 of the Criminal Code 2015.

At the trial, the People’s Procuracy suggests:

- Application:  Clause 3, Article 7 and Clause 1 of Article 349 of the Criminal Code 2015; Point b, Clause 1, Article 2 of the National Assembly's Resolution No. 41/2017/QH14 dated June 20, 2007, on the implementation of the Criminal Code No. 100/2015/QH13 on amendments to Law No. 12/2017/QH14 and on the entry into force of Criminal Procedure Code No. 101/2015/QH13 in Viet Nam, Law on Organization of Criminal Investigation Agency No. 99/2015/QH13 in Viet Nam, Law on Execution of Custody and Detention No. 94/2015/QH13 in Viet Nam; Point p, Clause 1, Clause 2 of Article 46 and Article 33 of the Criminal Code 1999 against the defendant Nguyen Van H;

- The sentence imposed by the People’s Procuracy on the defendant Nguyen Van H is between 15 months and 18 months in prison. The prison term commences from the date on which the defendant was detained (January 31, 2018). The defendant is kept detaining to ensure the enforcement of the Verdict.

- With regard to civil liability: Request Trial Panel to recognize the voluntariness of Le Van S, Pham Viet N and Pham Viet V not request the defendant Nguyen Van H to return the money H received; and reserve Dinh Thi T and Hoang Thi H’s right to sue against defendant Nguyen Van H by another civil case when they have adequate conditions for initiating a lawsuit.

- Request the Trial Panel not to apply additional punishment to the defendant;

- The defendant has to pay the court fee.

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] Regarding the acts and decisions of the presiding agencies and persons: The Police Investigation Agency of Thanh Hoa Province, investigators, the People’s Procuracy of Thanh Hoa Province, procurators, during investigation and prosecution process, have strictly conformed to competence, order and procedures prescribed in the Criminal Procedure Code.  During the investigation process and at the trial, the defendant did not have any comments or complaints about the acts and decisions of the presiding agencies and presiding persons.  Thus, the acts and proceedings of presiding agencies and presiding persons have strictly complied with the provisions of law.

[2] At the public first instance trial today, the defendant Nguyen Van H admitted that: Around February 2014 to March 10, 2014, he has organized certain laborers to work illegally in China. As of January 31, 2008, realizing that his act was illegal and he was being investigated, thus he took the initiative to go to the Police Investigation Agency of Tinh Gia District and confessed his crime. The defendant’s deposition well matches with the documents and evidence available in the case file and examined in the today’s court hearing. The People’s Procuracy of Thanh Hoa Province has sufficient grounds to prosecute the defendant Nguyen Van H for “"Organizing others to flee abroad".

At the today’s trial, the representative of the People's Procuracy of Tinh Gia District, Thanh Hoa Province still upholds the prosecution decision.  Therefore, the Trial Panel has sufficient grounds to conclude that Nguyen Van H has committed the crime of "Organizing for others to flee abroad", the offense and penalty are prescribed in Clause 1, Article 349 of the Criminal Code 2015.

[3] Considering the nature of the case: the defendant's act is a danger to the society and has directly violated the administrative management order in the field of exit and entry and the freedom of residence of citizens.  Therefore, it is necessary to bring the defendant to trial and to have a strict course of action  against him to educate him and the public in general.

[4] With regard to the defendant’s criminal record and aggravating circumstances, the Trial Panel finds that:

 the defendant has no previous administrative penalty or previous conviction and during investigation process and at the trial today, the defendant expressed cooperative attitude; after committing the crime, knowing that his act was a violation of law, the accused went to the police of Tinh Gia District to turn himself in, so the defendant was entitled to the extenuating circumstances prescribed in Point p, Clause 1 and Clause 2 of Article 46 of the Criminal Code 1999. The defendant is not subject to any aggravating factors.

However, when deciding the penalty, it is necessary to consider that:  The defendant is a laborer who committed the crime due to limited knowledge of the law, up to now, the defendant and his family have well complied with all state policies and laws without any breach (with local administration’s certification), thus, it is advisable to give the defendant a chance to benefit the leniency of the law, impose him a lighter penalty for his early reforms and soon return to the community as a good citizen.

[5] With regard to civil liability:

- Recognize the voluntariness of Le Van S, Pham Viet N and Pham Viet V not requiring the defendant Nguyen Van H to return the money H received.

- Reserve Dinh Thi T and Hoang Thi H’s right to bring another civil lawsuit against defendant Nguyen Van H when they have sufficient conditions of lawsuit concerning the sum of money that H received from them.

[6] Regarding additional penalties:  Under Clause 4, Article 349 of the Criminal Code 2015: "Offenders may also be subject to a fine of between VND 10 million and 50 million ...".  However, the documents, evidence and testimony of defendant at the trial showed that the defendant has no occupation and stable income.  Therefore, the Trial Panel decides not to apply additional penalty to the defendant.

[7] With regard to court fees: The defendant has to pay first instance criminal court fees as per the law.

Pursuant to documents and evidence mentioned above:

HEREBY DECIDES

Pursuant to Clause 3, Article 7 and Clause 1 of Article 349 of the Criminal Code 2015; Point b, Clause 1, Article 2 of the National Assembly's Resolution No. 41/2017/QH14 dated June 20, 2007, on the implementation of the Criminal Code No. 100/2015/QH13 on amendments to Law No. 12/2017/QH14 and on the entry into force of Criminal Procedure Code No. 101/2015/QH13, Law on Organization of Criminal Investigation Agency No. 99/2015/QH13, Law on Execution of Custody and Detention No. 94/2015/QH13; Point p, Clause 1, Clause 2 of Article 46 and Article 33 of the Criminal Code 1999;

- Declare: the defendant Nguyen Van H is guilty of “Organizing others to flee abroad”.

- Nguyen Van H is sentenced to 15 (fifteen) months in prison. The prison term commences from January 31, 2018. The defendant is kept detaining to ensure the verdict enforcement.

- With regard to civil liability: Reserve Dinh Thi T and Hoang Thi H’s right to bring another civil lawsuit against defendant Nguyen Van H when they have sufficient conditions of lawsuit concerning the sum of money that H received from them.

- Court fees: Apply Articles 136, 331, 333 of the Criminal Procedure Code 2015; Point a, Clause 1 of Article 23, Section 1, Part I of the list of court charges and fees,

- Resolution No. 326/2016/UBTVQH14 in Viet Nam of the Criminal Procedure Code and the Resolution No. 30/12/2016 dated December 30, 2016 on court fees and charges, exemption, reduction, collection, transfer, management and use thereof: The defendant Nguyen Van H has to pay VND 200,000 of first-instance criminal court fee.

The first instance trial is conducted in the presence of the defendant and absence of the persons with related rights and obligations.  The defendant has the right to appeal the verdict within 15 days from the date of pronouncement, the persons with related rights and obligations have the right to appeal the verdict within 15 days from the date on which the verdict is received or posted up.

In case the judgment is enforced as per regulations in Article 2 of the Law on enforcement of civil judgments in Viet Nam, the judgment creditor and judgment debtor are lawfully allowed to reach an agreement on judgment enforcement, request judgment enforcement, be subject to voluntary execution or coercive judgment enforcement in compliance with regulations in Article 6, 7 and 9 of the Law on enforcement of civil judgments, and the effective period of judgment enforcement shall comply within provisions in Article 30 of the Law on enforcement of civil judgments.