Verdict no. 92/2018/HS-ST dated november 27, 2018 on illegal transport of goods across the border

PEOPLE’S COURT OF CAO LOC DISTRICT, LANG SON PROVINCE

VERDICT NO. 92/2018/HS-ST DATED NOVEMBER 27, 2018 ON ILLEGAL TRANSPORT OF GOODS ACROSS THE BORDER

On November 27, 2018, at the office of People’s Court of Cao Loc District, Lang Son Province, the first instance trial was conducted to hear the criminal case No. 91/2018/TLST-HS dated November 13, 2018 according to the Decision to Bring the Case to Trial No.  88/2018/QĐXXST-HS dated November 15, 2018 against the defendant:

Bui Van D, born on July 6, 1971; in K District, Thai Binh Province. Registered permanent residence and address: D Village, T Commune, K District, Thai Binh Province; occupation: driver; educational level: 12/12; ethnicity: Kinh People; gender: male; religion: none; nationality: Vietnamese; father’s name: Bui Trong D and mother’s name: Tran Thi G; wife’s name: Pham Thi L; children: 02 children; previous administrative violation: none; previous convictions: none; criminal record: having not faced administrative penalties until the time of commission of the crime; detained in the detention center of Police of Cao Loc District from August 3, 2018 to October 10, 2018 then was out on bail; present.

Person with related rights and obligations:

- Son Duc Automobile Transport Joint Venture Company - represented by Mr. Nguyen Duy H, born in 1972; place of residence: X, B Street, H Ward, L City, Lang Son Province; present.

- Mrs. Luong Thi T, born in 1990, residing in: X Group, S Block, C Town, C District, Lang Son Province; present.

- Mrs. Vu Thi T, born in 1972, residing in: V Zone, D Town, C District, Lang Son Province; absent.

- Mrs. Nguyen Thuy H, born in 1970; residing in: H Street, C Ward, L City, Lang Son Province; absent.  Witness: Mr. Tran Anh D; 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:

At 11:30, on May 8, 2018, at the immigration bus station, Huu Nghi Sub-department of Customs Checkpoint and Huu Nghi International Border Guard Border Station spotted him driving the stolen vehicle on the street spotted the car, license plate 12LD.00039 with suspicious signs. The working group checked the above car, the driver presented an ID card and claimed his name is Bui Van D, born in 1971, residing in: D Village, T Commune, K District, Thai Binh Province, working as a driver for Son Duc Automobile Transport Joint Venture Company at the address: No. 48L, V Ward, L City, Lang Son Province (now moving to: Block 5, H Commune, C District, Lang Son Province). The working group required Bui Van D to take the car and goods thereon to Huu Nghi Checkpoint Public House. At the checking time, the working group discovered inside the compartments under the 3^rd and 4^th row seats of the car 130 black power banks, with the letters ANKER on the body; 15 space gray smartphones, with Iphone letters and Apple logo on the back , Iphone X brand, 64GB, each phone accompanies with 01 headset, charger, user guide; 06 red smartphones, with Iphone letters and Apple logo on the back, Iphone 8 Plus brand, 64GB, each phone accompanies with 01 headset, charger, user guide. Bui Van D did not make a declaration to customs for all above goods as prescribed. Considering that there are signs of crime, on May 16, 2018, Huu Nghi Sub-department of Customs Checkpoint issued the decision to prosecute the case of illegal transport of goods across the border as prescribed in Article 189 of the Criminal Code and transferred the case file to Police Investigation Body of Cao Loc District for investigation within their competence.

The seized exhibits include: 130 black power banks, with ANKER letters on body, A1109 model, 10.8cm long, 3.3cm diameter, sealed; 15 black smartphones, with Iphone letters and Apple logo on the back, each phone accompanies with 01 headset, 01 adapter, 01 cable and 01 user guide in foreign languages, in a paper box, with Iphone letters and Apple logo on the cover, the box labeled “Iphone X, Space Gray, 64GB” and imei number, sealed; 06 red smartphones, with Iphone letters on the back (PRODUCT) RED and APPLE logo, each phone accompanies with 01 headset, 01 adapter, 01 cable and 01 user guide in foreign languages, in a paper box, with Iphone letters and Apple logo on the cover, the box labeled “Iphone 8 plus, Red, 64GB” and imei number, sealed; 01 metal four-headed screwdriver, unchecked technical specification; 01 copy of vehicle registration certificate; 01 black smartphone, with OPPO letters on the back, 01 sim card with the subscriber 0979.107.668 of Bui Van D, used.

According to the asset valuation conclusion No. 32/KLDGTTHS dated July 6, 2018 of the Criminal Procedure Asset Valuation Council determined all 03 items: 15 Iphone X smartphones, Space gray, 64GB; 06 Iphone 8 Plus smartphones, 64GB and 130 ANKER power banks, A1109 model, 10.8cm long, 3.3cm diameter with a total value of: VND 376.178.000.

Considering that there are signs of the offense “illegal transport of goods across the border" as prescribed in Article 189 of the Criminal Code, Police Investigation Body of Cao Loc District prosecuted the accused and detained Bui Van D for investigation.

At the investigation body, Bui Van D confessed: From July 2016, Bui Van D signed a driver employment contract with Son Duc Automobile Transport Joint Venture Company at 48, L Street, V Ward, L City, Lang Son Province. D was assigned to manage and use the car with license plate 12LD.00039 to transport passengers along the route Hanoi  - Lang Son - Huu Nghi - China and vice versa. Knowing that Bui Van D is a person who regularly transports passengers across the border area so early in May 2018, a woman named H used phone number 0946.653.138 to call Bui Van D and asked him to save this number in his contact whenever there are goods in China, she would ask him to transport them back to Vietnam. Through the phone call, H also showed Bui Van D that whenever there are goods in China, there would be a woman named T on her side to deliver goods to Bui Van D. According to the Company's order of transport on May 8, 2018, Bui Van D drove the assigned car to transport passengers from Hanoi to Lang Son to Bang Tuong, China, when arriving at the section of National Highway 1A under District C, Lang Son Province, he  received a message from T (unknown family name, specific address) from the phone number 0976.496.658 with the content: “What time do you go to the checkpoint?” but Bui Van D did not reply due to being busy driving. When going to Huu Nghi Checkpoint to wait for customs clearance, Bui Van D called back to the person who sent the message. When Bui Van D asked if there were lots of goods, the woman answered that there were 08 bags of goods and told him to call her for delivery when he comes to China. After that, Bui Van D picked up and drove passengers through Huu Nghi Checkpoint, Dong Dang Town, Cao Loc District to Bang Tuong, China. When arriving Bang Tuong, China, Bui Van D phoned T to announce that Bui Van D had arrived and made an appointment with T about the delivery place at Huu Nghi Quan parking lot, Bang Tuong, China. When Bui Van D drove the car passing through the barrier of Huu Nghi Quan parking lot, he saw T standing in the back area of barrier area, next to her were black plastic bags of goods so Bui Van D drove the car to the position of T. T delivered the goods to Bui Van D and said they were mobile phones and phone accessories. Since there were 2 times of transporting watches from a woman named H from China to Vietnam to get the money, this time when receiving the goods from T, Bui Van D also thought that they still were goods of H. After receiving goods, Bui Van D continued to drive the car to go to the passenger area of ​​Son Duc Automobile Transport Joint Venture Company in the parking lot of China side. When the passengers got off, Bui Van D closed the car door and stored some power bank boxes, smartphone paper boxes and 02 black plastic bags containing power bank paper boxes into 01 compartment 138cm x 33 cm x 21.5cm under the 4^th row of seats and put 01 black plastic bag of power bank boxes and some power bank packs outside the bag into 01 compartment 21.5cm x 39cm x 38.5cm under the 3rd row of seats. After storing the goods into the car's compartments under seats, Bui Van D closed the lid and used a screwdriver to screw the screws to fix it. After that, Bui Van D continued to pick up passengers and follow exit procedures to leave China. Unable to speak Chinese, Bui Van D was assisted by a staff member of Son Duc Car Transport Joint Venture Company Luong Thi T in filling out declarations for people, vehicles and goods accompanied. However, while filling in the declaration form, Bui Van D did not tell Luong Thi T to hidden goods on the vehicle but only made customs declaration for people and the vehicle. Completing the exit procedures, Bui Van D continued to drive the car to transport passengers and all the goods that had been hidden from China to Vietnam. About 11:00 on the same day, when he came back to Vietnam, Bui Van D parked at the entrance of the immigration flow of the Huu Nghi Checkpoint Complex Building to do immigration procedures to Vietnam, but Bui Van D still only made a declaration to customs for people and vehicle, Bui Van D did not declare the goods on vehicles. After completing the entry procedures to Vietnam, Bui Van D drove the car to the exit of the immigration flow to wait for passengers. About 11:10 on the same day, the Customs and Border Guards of Huu Nghi International Checkpoint checked and asked Bui Van D to drive the car to the Huu Nghi Border Checkpoint Public House. At the Huu Nghi Checkpoint Public House, the working group discovered and seized all goods hidden by Bui Van D in the car compartments.

The defendant's testimony about his offense is accordant with the record of inspection and detection of hidden goods; evidence seized; testimonies of witnesses, persons with related rights and obligations and items of evidence in the case file.

Other details related in the case:

The woman named T is the deliverer of goods to Bui Van D in China: Through verification, this person is Vu Thi T, born in 1972, permanent residence in: V Zone, D Town, District C, Lang Son Province. At the Investigation Body, T declared: On May 8, 2018, there was a Chinese woman (unknown name, address) hired T to deliver 08 black plastic bags to Bui Van D at Huu Nghi Quan parking lot, Bang Tuong, China for 30 yuan (Chinese money). When receiving goods from the Chinese woman, T only checked 04 black plastic bags and found inside these bags of power banks, T did not check 04 other plastic bags because he thought they were also power banks. T did not know where the origin of these goods comes from and T did not know whether Bui Van D transports these goods illegally across the border, so the Investigation Body does not have enough grounds to take criminal-related actions against T.

For the Chinese woman who had delivered goods to T: T said that was a Chinese woman but did not know anything else, even her specific name and address. Since this woman is Chinese and the delivery location for T belongs to foreign territory, the Investigation Body cannot verify and clarify that.

For the woman named H: Through investigation and verification, this is Nguyen Thuy H, born in 1970, permanent residence: H Street, C Ward, L City. Nguyen Thuy H and Bui Van D did not discuss about freight of goods and Nguyen Thuy H did not know Bui Van D transporting goods across the border on May 8, 2018, so the investigation body does not consider taking actions against her.

For Son Duc Automobile Transport Joint Venture Company: Through working with the company's representative, Mr. Nguyen Duy H, Head of Administration Department said: The company does not know that Bui Van D has used the car, license plate 12LD.00039 (Company’s car) and 01 screwdriver on the car to transport goods across the border, so the Investigation Agency does not consider taking actions against the company.

With reference to exhibits: For 01 car, license plate 12LD.00039, used, unchecked technical specification; 01 copy of the vehicle registration certificate of the car which is a tool and instrument of crime, considering that the return of exhibits to the owner does not affect the process of resolving the case, the Investigation Body returned it to Son Duc Automobile Transport Joint Venture Company according to the decision on dealing with exhibits No. 39 June 1, 2018.

The remaining items of evidence have been transferred to Civil Judgment Execution Department of Cao Loc District to handle as per the law.

In the Indictment No. 93/CT-VKS dated November 13, 2018 of People's Procuracy of Cao Loc District, prosecuting Bui Van D for the crime of illegal transport of goods across the border under Point b, Clause 2 of Article 189 of the Criminal Code.

At the court hearing, the representative of the Procuracy in the debate still retained the prosecution decision against the defendant and asked the Trial Panel to:

Apply Point b, Clause 2 and Clause 4, Article 189 of the Criminal Code; Point s Clause 1 and Clause 2, Article 51; Clause 1, Article 65 of the Criminal Code declare the defendant Bui Van D guilty of the crime of illegally transport of goods across the border and sentence the defendant Bui Van D to from 02 - 03 years in prison, given suspended sentence with 04 years to 05 years’ probation.

Regarding additional penalties: Regarding additional penalties: Proposing the Trial Council to apply the additional penalty to defendant Bui Van D, a fine of between VND 10,000,000 and 20,000,000.

With reference to exhibits: Pursuant to Point a Clause 2, Point a Clause 3 Article 106 of the Criminal Procedure Code:

- Confiscation of the following to the State budget.

+ 15 (fifteen years) black smartphone with Iphone letters and Apple logo, each phone accompanies with 01 box, 01 headset, 01 adapter, 01 cable, 01 user guide in foreign languages, on the box with Iphone letters and Apple logo, the sticker on the box is labeled "Iphone X, Space Gray, 64GB" and the imei number (one of which has a crack on the right edge of the front screen).

+ 06 (six) red smartphones, with Iphone (PRODUCT) RED letters and APPLE logo, each phone accompanies with 01 case, 01 headset, 01 adapter, 01 cable, 01 user guide in foreign languages, on the box with Iphone letters and APPLE logo, the sticker on the box is labeled "Iphone 8 plus, Red, 64GB" and imei number.

+ 130 (one hundred and thirty) black power banks, with ANKER letters on the body.

+ 01 (one) black smartphone, with OPPO letters on the back, IMEI number: 867816030037626, with 01 VIETTEL sim card installed, with sim serial number: 8984048841007263961. - Return 01 (one) metal four-headed screwdriver, about 15cm long, to Son Duc Automobile Transport Joint Venture Company.

- Confirm that Police Investigation Body of Cao Loc District has paid Son Duc Automobile Transport Joint Venture Company 01 car, license plate 12LD.00039. Defendant Bui Van D has to pay first instance criminal court fee as per the law.

The defendant has no argument. In the last words, the defendant regretted his own behavior and asked for a commutation.

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 11:30 am, at the immigration bus station at Huu Nghi Checkpoint Customs Department, Huu Nghi Customs and Border Guards spotted a car with license plate 12LD.00039 driven by Bui Van D showing signs of transporting goods across borders. The working group required Bui Van D to drive to Huu Nghi Checkpoint Public House to check inside the compartments under the 3rd and 4th row seats of the car. There are 130 black power banks, with the letters ANKER on the body; 15 space gray smart phones, with Iphone letters and Apple logo on the back, Iphone X brand, 64GB, each phone accompanies with 01 headset, charger, user guide in foreign languages; 06 red smart phones, with Iphone letters and Apple logo on the back, Iphone 8 Plus brand, 64GB, each phone accompanies with 01 headset, charger, user guide in foreign languages. According to the asset valuation conclusion No. 32/KLDGTTHS dated July 6, 2018 of the Criminal Procedure Asset Valuation Council determined: all of the above goods with a total value of VND 376,178,000 (three hundred and seventy six million one hundred and seventy eight thousand dong).

[2] The testimony of the defendant at the trial is consistent with the testimony at the investigating agency; in accordance with the witnesses' testimony, in conformity with report on arrest of offender caught in the act, record determining the quantity and categories of goods and in conformity with other documents in the case file. Defendant Bui Van D has transported 15 black smartphones, with Iphone letters on the back, 06 red smartphones, and Iphone letters on the back. Each phone accompanies with a headset, charger and user guide and 130 power banks, with a total value of VND 376,178,000 which is a violation of the law. This act of defendant Bui Van D violates the crime of illegal transport of goods across the border, stipulated at Point b, Clause 2, Article 189 of the Criminal Code.

[3] When committing the offense, the offender has full capacity for criminal acts and age, the defendant is able to realize that illegal transport of goods across the border is contrary to the provisions of law but still deliberately committed. The defendant’s offense is dangerous to society, has directly violated the economic management order of the State, in specific foreign trade management order, adversely affecting the security situation. People's Procuracy of Cao Loc District prosecuting the defendant to the People's Court of Cao Loc District according to the crime and the provisions of the Criminal Code as above are well-grounded, guilty person is rightly convicted.

[4] Regarding the aggravating circumstances of criminal liability: none.

[5] Regarding the mitigating circumstances of criminal liability: At the investigating agency and at the trial, the defendant showed cooperative attitude and repentance, the defendant’s father Mr. Bui Trong D was awarded the Third Class Medal of Resistance against the American Army, so the defendant enjoyed the extenuating circumstance as prescribed in point s Clauses 1 and 2 Article 51 of the Criminal Code.

[6] Regarding the record: The defendant did not have previous conviction and administrative penalty. Before committing the offense, the defendant has complied with the policies, laws and other regulations in the locality, it is advisable to determine that the defendant has a good record.

[7] On the basis of assessing the nature and severity of criminal acts, aggravating circumstances, mitigating circumstances and the defendants' record, the Trial Panel finds that the defendant has good record, there is a clear and stable place of residence, there are many extenuating circumstances, the defendant himself is suffering from type 2 diabetes, so there is no need to isolate the accused from the social life but to have him educated under the supervision of the local government of residence, as also sufficient to educate the defendant to become a good citizen for society.

[8] Considering the defendant's confession at the trial in accordance with the testimony at the Investigation Body, witnesses' testimony and inspection conclusion, and other documents and evidence in the case file and opinion of People's Procuracy of Cao Loc District at the trial is well-grounded, in accordance with the law, should be accepted by the Trial Panel.

[9] Acts and decisions of investigators, procurators in the course of investigation and prosecution have strictly conformed to competence, order and procedures prescribed in the Criminal Procedure Code. During the investigation process and at the trial, the defendant’s testimony is consistent with other items of evidence and makes no complaint about the acts and decisions of the presiding agencies and presiding persons. Therefore, the acts and decisions of the Investigator and Prosecutor are legal.

[10] Regarding additional penalties: The Trial Panel found it necessary to apply an additional penalty of a fine to ensure the deterrence and education of the defendant.

[11] For the Chinese woman who had delivered goods to T: T said it was a Chinese woman, but he did not know anything else even her specific name and address. Since this woman is Chinese and the delivery location for T belongs to foreign territory, the Investigation Agency has cannot verify and clarify it.

[12] For the woman named H. Through investigation and verification, this is Nguyen Thuy H, born in 1970, permanent residence: H Street, C Ward, L City. Nguyen Thuy H and Bui Van D did not discuss about freight of goods and Nguyen Thuy H did not know Bui Van D transporting goods across the border on May 8, 2018, so the investigation body does not consider taking actions against her.

[13] With reference to exhibits: Pursuant to Points a Clause 1, Clause 2 Article 47 of the Criminal Code in Viet Nam and Point a Clause 2 Article 106 of the Criminal Procedure Code in Viet Nam: Considering that 15 black smartphones, with Iphone letters and Apple logo on the back, each phone accompanies with 01 headset, 01 adapter, and 01 cable. 06 red smartphones, with Iphone letters (PRODUCT) RED and APPLE logo on the back, each phone accompanies with 01 headset, 01 adapter, 01 cable.  130 black power banks, with ANKER letters on the back which are exhibits of the case and 01 black smartphone, with OPPO letter on the back, there is 01 sim card with a subscriber number 0979.107.668 of Bui Van D, that Bui Van D has used to contact to receive delivery of goods, subject to confiscation of goods to the State budget. For a metal four-headed screwdriver, about 15cm long, representative of Son Duc Automobile Transport Joint Venture Company asked to be returned because the screwdriver was a spare part of the car and it is also the property of Son Duc Company, so it should be returned.

[14] Confirm that Police Investigation Agency of Cao Loc District has paid Son Duc Automobile Transport Joint Venture Company 01 car license plate 12LD.00039.

[15] With reference to court fee: The defendant Bui Van D was sentenced so he has to pay the first instance criminal court fee of under the provisions of Article 136 of the Criminal Procedure Code; Article 23 Resolution No. 326/2016 /UBTVQH14 dated December 30, 2016 of the Standing Committee of the National Assembly on court fees and charges, collection, exemption, reduction, collection, remittance, management and use thereof.

[16] Regarding the 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

Pursuant to Point b, Clause 2 and Clause 4 of Article 189; Point s of Clauses 1 and 2, Article 51; Clauses 1, 2, 3 and 5, Article 65 of the Criminal Code;

Pursuant to Point a Clause 1, Article 47 of the Criminal Code and Point a Article 2 of the Criminal Code and Point a Clause 3 Article 106 of the Criminal Procedure Code:

Pursuant to Clause 2 of Article 136 of the Criminal Procedure Code; Clause 1 of Article 21, Point a, Clause 1, Article 23 of the National Assembly Standing Committee's Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 on court fees and charges, and exemption, reduction, collection, transfer, management and use thereof.

Judges:

1. With regard to the charge: Declare the defendant Bui Van D guilty of illegal transport of goods across the border.

2. With regard to sentences:

- Main penalties: Sentence the defendant Bui Van D to 02 (two) years 06 (six) months, given suspended sentence with probation of 05 (five) years, from the date of first instance pronouncement November 27, 2018. Assign the defendant Bui Van D to the People's Committee of T Commune, K District, Thai Binh Province to supervise and educate him during the probation period. The defendant’s family is responsible for coordinating with the local authorities in supervising and educating the defendant. In case the defendant changes his/her place of residence, he/she shall comply with the law provisions on criminal judgment execution.

During the probation period, if the defendant deliberately violates the obligations two or more times, the Court may decide to force the defendant to serve the imprisonment sentence.

- Regarding additional penalties: The defendant Bui Van D is fined VND 10,000,000 (ten million dong) to the State budget.

3. With reference to exhibits:

- Confiscation of the following to the State budget.

+ 15 (fifteen) black smartphones, with iPhone letters and Apple logo on the back, each phone accompanies with 01 case, 01 headset, 01 adapter, 01 cable, 01 user guide in foreign languages. On the case are IPhone letters and Apple logo, the sticker on the box is labeled "Iphone X, Space Gray, 64GB" and imei number (one of which has a crack on right edge of the front screen). There is a detailed list of IMEI numbers attached.

+ 06 (six) red smartphones with iPhone letters and an Apple logo on the back, each phone accompanies with 01 case, 01 headset, 01 adapter, 01 cable, 01 user guide in foreign languages. On the box are Iphone letters and the Apple logo, the sticker on the box is labeled "Iphone 8 plus, 64GB" and imei number. There is a detailed list of IMEI numbers attached.

+ 130 (one hundred and thirty) black power banks, with ANKER letters on the body.

+ 01 (one) black smartphones, with OPPO letters on the back, IMEI number: 867830037627, with 01 VIETTEL sim card, serial number: 8984 0488 4100 7263 961 of Bui Van D, used. - Return 01 (one) metal four-headed screwdriver, about 15cm long, to Son Duc Automobile Transport Joint Venture Company.

(The exhibits are being kept at Civil Judgment Enforcement Department of Cao Loc District according to the document of handover of exhibits on November 13, 2018).

4. Confirm that Police Investigation Body of Cao Loc District has paid the Company Son Duc Automobile Transport Joint Venture Company 01 (one) license plate 12LD.00039.

5. With reference to court fees: The defendant Bui Van D has to pay 200,000 VND (two hundred thousand dong) of first instance criminal court fee to the State budget.

6. With reference to right to appeal: The defendant has the right to appeal the Verdict within 15 days from the date of pronouncement. The persons with related rights and obligations, who are absent from the hearing shall have the right to appeal the Verdict within 15 days from the date on which the Verdict is received or posted up.