Precedent No. 65/2023/AL on criminal prosecution for the crime of "Human Trafficking"

Source of Precedent:

First Instance Criminal Judgment No. 42/2018/HSST dated December 3, 2018 of the People's Court of Dong Hai District, Bac Lieu Province on the case of "Human Trafficking" against the defendants Duong Van S and Pham Hong K, Duong Thi T1, Tran Ich C.

Location of Precedent content:

Paragraphs 9, 10 and 11 of the “Court's Comments” section.

Overview of the content of the Precedent:

- Precedent situation:

The defendant, through an intermediary, made an offer to the victim about a job, which the victim accepted. After that, the defendant transferred the victim to another person and forced him to do work against the victim's will for the purpose of making profit.

- Legal solutions:

In this case, the defendant must be prosecuted for criminal liability for the crime of "Human Trafficking".

Legal provisions related to Precedent:

- Article 150 of the Penal Code 2015 (amended in 2017);

- Resolution No. 02/2019/NQ-HDTP dated January 11, 2019 of the Council of Judges of the Supreme People's Court guiding the application of Article 150 on the crime of human trafficking and Article 151 on the crime of trafficking in people under 16 years of age of the Penal Code.

Keywords of Precedent:

“Crime of human trafficking”; “Transfer of people for the purpose of profit”.

CONTENTS OF THE CASE:

According to the documents in the case file and developments at the trial, the content of the case is summarized as follows:

Due to the need for people to deliver it to fishing boats to enjoy the difference, defendant Duong Van S associated with a subject named G (whose full name and specific address in Ho Chi Minh City are unknown) to find someone to deliver it to defendant S at an agreed price. Subject G used the social network Facebook to post a recruitment job (long-distance passenger bus assistant) with a high salary. Mr. Bui Van D, Le Duc M, and Tran Van T went to Facebook to look for jobs and saw information posted by G, so they contacted them to apply for a job. On July 26, 2017, the three men arrived at Mien Dong Bus Station, and subject G sent a car to pick them up and take them straight to defendant S's house in Hamlet 1, town A, district D, Bac Lieu province. G handed over Mr. D, T, and M to defendant S and received the amount of 9 million VND.

After receiving the person, defendant S directed defendant Pham Hong K to get labor contracts for Mr. D, T, and M to sign with the content of going to sea. Because the original agreement was to ignore the car, the guys did not agree to sign. At this time, defendants S, K, and C used weapons (including homemade knives, iron rods, and Thai knives) and threatened to pay 10,000,000 VND if they did not agree to sign the contract; If not, they must be kept. The victims were taken to the house of Mrs. Ha Thi L (S's biological mother). Defendant S assigned K and C to take turns guarding; the purpose was for S to find a fishing boat that needed people so he would deliver it to enjoy the difference; At the same time, S assigned Duong Thi T1 (S's younger sister) to directly check this guarding.

During the arrest process, defendant S directed defendants K and T1 to take the property and personal belongings of the victims and keep them. Defendant T1 asked D, T, and M to hand it over, but they did not agree, so defendant K held a knife and threatened, "Do you give it up voluntarily or let me take it myself?" Out of fear because they knew the defendants had weapons, the victims handed over their assets including: Backpacks, clothes, 03 mobile phones, 03 wallets with 03 ID cards inside, 02 ATM cards with the names Tran Van T and Bui Van D. After taking the property, defendant K returned it to S, and S took from Mr. M's wallet the amount of 700,000 VND; In Mr. D's wallet, there was 1,000,000 VND; he gave C 120,000 VND, gave K 330,000 VND, and S kept the remaining money for personal use.

At about 10:00 p.m. on July 27, 2017, Mr. M and Mr. T escaped from detention through the ventilation. Later, at about 5:00 a.m. on July 28, 2017, Mr. D also escaped. All three men went to Ganh Hao Border Guard Station to report the incident.

While working at the Police Investigation Agency of Dong Hai District Police, the defendants all admitted their crimes, consistent with the testimonies of the victim, related people, and the crime scene.

- Evidence of the case includes: cell phones, leather wallets, backpacks, and clothes that the victims have fully received back; 01 knife with a yellow handle 21 cm long, metal blade 11 cm long (one side is sharpened), the widest part of the blade is 02 cm; 01 homemade knife 49 cm long, the handle and blade are made of metal, the blade is 35 cm long (one side is sharpened), the widest part of the blade is 03 cm; 01 metal bar in rectangular shape, hollow inside, one end of the metal bar is wrapped in cloth, length 63 cm, width 04 cm, height 02 cm. Currently, the Civil Judgment Enforcement Department of Dong Hai District is managing them. The amount of 980,000 VND was deposited by Dong Hai district police at the Bank N, D district branch.

- Regarding civil liability: Mr. Bui Van D requests compensation in the amount of 1,000,000 VND and Mr. Le Duc M requests compensation in the amount of 700,000 VND.

Defendant Tran Ich C recovered the amount of 1,700,000 VND; Defendants Duong Van S, Pham Hong K, and Duong Thi T1 each paid compensation of 400,000 VND.

In Indictment No. 17/CT-VKSDH dated April 9, 2018, the People's Procuracy of Dong Hai district prosecuted defendants Duong Van S, Pham Hong K, Tran Ich C and Duong Thi T1 for the crime of "Human Trafficking" according to the provisions of Article 150, Clause 2, Point d of the Penal Code 2015 (amended in 2017). In addition, the defendants Duong Van S, Pham Hong K, and Duong Thi T1 also committed the crime of "forced appropriation of property" according to the provisions of Article 135, Clause 1 of the 1999 Penal Code (amended in 2009).

At the trial, the Prosecutor maintained his point of prosecution and requested the Trial Council base his judgment on Resolution No. 41/2017/QH14 dated June 20, 2017 of the National Assembly on the implementation of Penal Code No. 100/2015/QH13, which has been amended with a number of articles according to Law No. 12/2017/QH14. For defendant Duong Van S: Apply point dd, clause 2, Article 150; Points b, s, Clause 1, Article 51; Article 54; Article 38 of the Penal Code 2015 punishes the defendant from 07 to 08 years in prison; Apply Clause 1, Article 135 of the Penal Code 1999; Point s, Clause 1, Article 51, Article 38 of the Penal Code 2015, punishes the defendant from 01 year and 06 months to 02 years in prison; Apply Article 55 of the Penal Code 2015, which summarizes the punishment from 08 years and 06 months to 10 years in prison. For defendant Pham Hong K: Apply point dd, clause 2, Article 150; Points b, s, Clause 1, Article 51; Article 54; Article 38 of the Penal Code 2015 punishes the defendant from 6 to 7 years in prison; Apply Clause 1, Article 135 of the Penal Code 1999; Point s, Clause 1, Article 51; Article 38 of the Penal Code 2015, punishes the defendant from 01 year to 01 year and 06 months in prison; Apply Article 55 of the Penal Code 2015, the total penalty is from 07 years to 08 years and 06 months in prison. For defendant Duong Thi T1: Apply point dd, clause 2, Article 150; Points b, s, Clause 1, Article 51; Clause 1, Clause 2, Article 54; Article 38 of the Penal Code 2015 punishes the defendant from 3 to 4 years in prison; Apply Clause 1, Article 135 of the Penal Code 1999; Point s, Clause 1, Article 51; Article 38 of the Penal Code 2015, punishes the defendant from 01 year to 01 year and 06 months in prison; and apply Article 55 of the Penal Code 2015, the total penalty is from 04 years to 05 years and 06 months in prison. For defendant Tran Ich C: Apply point dd, clause 2, Article 150; Points b, s, Clause 1, Article 51; Clause 1, Clause 2, Article 54; Article 38 of the Penal Code 2015 punishes the defendant from 3 to 4 years in prison. The Trial Panel is requested not to impose additional penalties on the defendants.

Final words: The defendants admitted the crime just because they were illiterate and had poor legal awareness, so they embarked on the path of crime, asking the Trial Council to lighten the sentence.

COURT'S OPINION:

[1] Based on the content of the case and the documents in the case file that were argued at the trial, the Trial Panel concluded as follows:

[2] Regarding legal proceedings:

[3] Regarding the legality of actions and procedural decisions in investigation, prosecution, and trial:

[4] Regarding the acts and procedural decisions of the Police Investigation Agency of Dong Hai District Police, Investigators, Dong Hai District People's Procuracy, and Procurators during the investigation and prosecution process, the authority and procedures prescribed in the Criminal Procedure Code and the investigation and prosecution process have been properly implemented, and at the trial, no one had any opinions or complaints about the actions or decisions of the agency conducting the proceedings or the person conducting the proceedings. Therefore, the actions and procedural decisions of the agency conducting the proceedings and the person conducting the proceedings are all legal.

[5] Regarding the absence of the victim:

[6] At today's trial, the victims were absent; however, considering that there was testimony in the case file, the content of the testimony was very clear; therefore, their absence does not hinder the trial, so the Trial Council applies Article 292 of the Criminal Procedure Code to conduct the trial in the victim's absence.

[7] Contents of the case:

[8] The statements of the defendants at trial were consistent with each other, consistent with the statements of the victims, people with related rights and obligations, and other evidence documents in the case file are enough to conclude:

[9] Because he knew that the fishing boats in D district needed many seafarers (fishermen), defendant Duong Van S collaborated with subject G to find people to supply the ship owners and enjoy the difference.

[10] The subject named G made an offer to work as a parking attendant with a high salary, so Mr. D, T, and M accepted. Upon receiving the victims, subject G transported them to defendant S and received the amount of 9,000,000 VND. Defendant S instructed his accomplices, defendants K, T1, and C, to take turns guarding so that the defendant could find the fishing boat and hand it over to get the difference.

[11] The criminal acts committed by the defendants are very dangerous to society and have violated the honor, dignity, and freedom of people prescribed by the Constitution and law violating social order and safety, the defendants are aware that human trafficking is a violation of the law, but for personal gain and to take advantage of the gullibility of the victims. Therefore, the defendants committed it with direct intention. The defendants are people with the legal capacity to bear criminal responsibility for the crimes they commit.

[12] The defendants' actions occurred since July 2017 and are specified in the aggravating circumstance "for many people" according to the provisions of Point e, Clause 2, Article 119 of the Penal Code 1999, amended and supplemented in 2009, the penalty is from 5 to 20 years; and according to the Penal Code 2015; Acts falling under the framing circumstance "from 02 to 05 people" specified in Point dd, Clause 2, Article 150 have a penalty of 8 to 15 years, which is lighter than the Penal Code 1999. Therefore, it is necessary to apply in favor of the defendants according to Clause 3, Article 7 of the 2015 Criminal Procedure Code, Point h, Clause 2, Article 2 of Resolution No. 41/2017/QH14 dated June 20, 2017 of the National Assembly. Therefore, the above acts of the defendants satisfied the elements constituting the crime of "Human Trafficking" as prescribed in Point dd, Clause 2, Article 150 of the Penal Code 2015.

[13] In addition, during the process of holding people, defendant S directed defendants K and T1 to use weapons to threaten and take personal belongings and property of Mr. D, T and M including backpacks, clothes, 03 cell phones, and 03 wallets. (Inside Mr. T's wallet is an ID card bearing Mr. T's name; inside Mr. M's wallet is an ID card, an ATM card with Mr. M's name, and an amount of 700,000 VND; inside Mr. D's wallet is his identity card, 01 ATM card in Mr. D's name, and the amount of 1,000,000 VND). The results of the valuation of the assets appropriated by the defendants were valued at 10,300,200 VND. Thus, the total asset value is 12,000,200 VND. Thus, the act of threatening to use force to appropriate other people's property against defendants S, T1 and K satisfied the elements constituting the crime of "Property Appropriation". according to the provisions of Clause 1, Article 135 of the Penal Code 1999.

[14] Regarding aggravating and mitigating circumstances for the defendants:

[15] The defendants have no criminal record; during the investigation, prosecution, and trial, they sincerely confessed and repented for the crime of "Human Trafficking". Even though the victims did not request it, the defendants voluntarily remedied part of the consequences for the victims. These are the circumstances mitigating criminal liability specified in Points b and s, Clause 1, Article 51 that apply to the defendants. Defendants S and K have 02 extenuating circumstances in Clause 1, Article 51, so Clause 1, Article 54 of the Penal Code is applied to decide on a penalty below the lowest level of the penalty frame applied in the law. As for defendants T1 and C, although they were accomplices, they played an insignificant role, committed a crime for the first time, were in difficult circumstances, and were influenced by defendant S, their biological brother, so they suddenly committed a crime. Therefore, it is necessary to apply Clause 1 and Clause 2, Article 54 of the Penal Code 2015, which apply a penalty level lower than the adjacent frame of the applicable law.

[16] In this case, defendant S's role is dangerous, directly instructing other defendants to perform; defendant K was the most determined helper, the one who directly used a dangerous weapon to threaten the victim, so the penalties applied to defendants S and K were higher than defendants T1 and C. With the above analysis, it is considered necessary to impose strict penalties and isolate the defendants from social life for a certain period of time to create conditions to educate the public about obeying the law and respecting the rules of living in the community.

[17] Regarding additional penalties: According to the provisions of Clause 4, Article 150 of the Penal Code 2015, "the offender may also be fined from 20,000,000 VND to 100,000,000 VND, subject to probation, ban from residence for 01 to 05 years, or confiscation of part or all of property. However, according to documentary evidence and statements of the defendants at trial, the defendants are self-employed and their economic conditions are still difficult, so the Trial Panel decided not to impose additional penalties on the defendants.

[18] Evidence in the case includes:

[19] Cell phones, leather wallets, backpacks, and clothes—the Investigation Agency applied Point b, Clause 3, Article 106 of the Criminal Procedure Code—were returned to the victims as appropriate.

[20] For the amount of 980,000 VND, Dong Hai District Police deposited it at Bank N, district D branch, of which defendant S's was 480,000 VND and defendant K's was 500,000 VND. This money is not relevant in the case, so it should be returned to the defendants. However, to ensure the enforcement of civil judgments, it is necessary to continue management for future judgment enforcement.

[21] For a knife with a yellow handle 21 cm long, a metal blade 11 cm long (one side is sharpened), the widest part of the blade is 02 cm; 01 homemade knife 49cm long, the handle and blade are made of metal, the blade is 35cm long (one side is sharpened), the widest part of the blade is 03cm; 01 metal bar in rectangular shape, hollow inside, one end of the metal bar is wrapped in fabric, length 63cm, width 04cm, height 02 cm; the above evidence is no longer of use value, so Clause 2, Article 106 shall be confiscated and destroyed.

[22] Regarding civil liability: Mr. Bui Van D requested defendants S, K, and T1 to compensate in the amount of 1,000,000 VND, Mr. Le Duc M requested compensation of 700,000 VND. At the trial, the defendants agreed to compensate based on Article 5 of the Civil Procedure Code; Articles 584, 585, 586, and 592 of the 2015 Civil Code, forcing defendants Duong Van S, Duong Thi T1, and Pham Hong K to each compensate Mr. Bui Van D in the amount of 333,400 VND; Defendants Duong Van S, Duong Thi T1, and Pham Hong K each compensated Mr. Le Duc M in the amount of 233,400 VND.

[23] Defendants Duong Van S, Duong Thi T1, and Pham Hong K each paid 400,000 VND at the Civil Judgment Enforcement Department of Dong Hai District to remedy the consequences for the victims; Mr. M received 400,000 VND, Mr. D received 400,000 VND, and Mr. T received 400,000 VND. Defendant Tran Ich C paid compensation of 1,700,000 VND, and victims Mr. T, Mr. M and Mr. D each received 566,600 VND.

[24] Considering that the Procurator's opinion on the crime, the penalty level, aggravating and mitigating circumstances, and other relevant issues in the case are well-founded and accepted.

[25] Regarding criminal and civil court fees: The defendant pays according to the law.

Because of the above reasons;

DECISION:

1. Declaration: Defendants Duong Van S, Pham Hong K, Tran Ich C and Duong Thi T1 committed the crime of "Human Trafficking". Defendants Duong Van S, Pham Hong K, Duong Thi T1 committed the crime of "Forcible appropriation of property".

1.1. Apply point dd, clause 2, Article 150; Points b, s, Clause 1, Article 51; Clause 1, Article 54; Article 38; Clause 3, Article 7 of the Penal Code 2015 (amended in 2017); Resolution No. 41/2017/QH14 dated June 20, 2017 of the National Assembly. Sentenced defendant Duong Van S to 07 years in prison for the crime of "Human Trafficking";

Apply Clause 1, Article 135 of the 1999 Penal Code; Point s, Clause 1, Article 51, Article 38 of the Penal Code 2015 (amended in 2017). Defendant Duong Van S was sentenced to 01 year and 06 months in prison for the crime of "Forcible appropriation of property". Applying Article 55 of the Penal Code 2015, amended and supplemented in 2017, the total penalty for the two crimes the defendant must serve is 08 (eight) years and 06 (six) months; The penalty period is from July 29, 2017.

1.2. Apply point dd, clause 2, Article 150; Points b, s, Clause 1, Article 51; Clause 1, Article 54; Article 38; Clause 3, Article 7 of the Penal Code 2015 (amended in 2017); Resolution No. 41/2017/QH14, dated June 20, 2017, of the National Assembly. Sentenced defendant Pham Hong K to 06 (six) years in prison for the crime of "Human Trafficking";

Apply Clause 1, Article 135 of the 1999 Penal Code; Point s, Clause 1, Article 51, Article 38 of the Penal Code 2015 (amended in 2017). Defendant Pham Hong K was sentenced to 01 (one) year in prison for the crime of "Property Appropriation". Apply Article 55 of the Penal Code 2015 (amended in 2017). The combined sentence for the two crimes that the defendant must serve is 7 (seven) years. The penalty period is from July 29, 2017.

1.3. Apply point dd, clause 2, Article 150; Points b, s, Clause 1, Article 51; Clause 1, Clause 2, Article 54; Article 38; Clause 3, Article 7 of the Penal Code 2015 (amended in 2017); Resolution No. 41/2017/QH14 dated June 20, 2017 of the National Assembly. Sentenced defendant Duong Thi T1 to 03 (three) years in prison for the crime of "Human Trafficking";

- Apply Clause 1, Article 135 of the 1999 Penal Code; Point s, Clause 1, Article 51, Article 38 of the Penal Code 2015 (amended in 2017). Defendant Duong Thi T1 was sentenced to 01 (one) year in prison for the crime of "Forcible appropriation of property". Apply Article 55 of the Penal Code 2015 (amended in 2017). The combined sentence for the two crimes that the defendant must serve is 4 (four) years. The time to serve the sentence is calculated from the date the defendant is sent to serve the sentence.

1.4. Apply point dd, clause 2, Article 150; Points b, s, Clause 1, Article 51; Clause 1, Clause 2, Article 54; Article 38; Clause 3, Article 7 of the Penal Code 2015 (amended in 2017); Resolution No. 41/2017/QH14 dated June 20, 2017 of the National Assembly. Sentenced defendant Tran Ich C to 03 (three) years in prison for the crime of "Human Trafficking". The penalty period is applied as of July 29, 2017.

2. Regarding civil liability:

Apply Article 42 of the Penal Code; Articles 584, 585, 586, 592 of the Civil Code 2015. Force the defendants Duong Van S, Duong Thi T1 and Pham Hong K to each compensate Mr. Bui Van D the amount of 333,400 VND; Defendants Duong Van S, Duong Thi T1 and Pham Hong K each compensated Mr. Le Duc M the amount of 233,400 VND.

In addition, Mr. Tran Van T, Mr. Le Duc M and Mr. Bui Van D each received an amount of 966,600 VND. The victim and defendant received and paid money at the Judgment Enforcement Department.

3. Material evidence:

Applying Article 106 of the Criminal Procedure Code: Confiscate and destroy 01 knife with a yellow handle 21 cm long, a metal blade 11 cm long (one side is sharpened), the widest part of the blade is 02 cm; 01 homemade knife 49cm long, the handle and blade are made of metal, the blade is 35cm long (one side is sharpened), the widest part of the blade is 03cm; 01 metal bar in rectangular shape, one end of the metal bar is hollow inside and wrapped in cloth, length 63cm, width 04cm, height 02cm; The above evidence is currently under the management of the Dong Hai District Civil Judgment Enforcement Department.

For the amount of 980,000 VND, Dong Hai district police deposited at Bank N, district D branch, of which defendant S's was 480,000 VND and defendant K's was 500,000 VND, and continued to be temporarily detained to ensure enforcement of the civil judgment.

4. Regarding first instance criminal court fees:

Apply Article 136 of the Criminal Procedure Code 2015; Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the National Assembly Standing Committee on court fees and charges. Force the defendants to each pay 200,000 VND at the Judgment Execution Department. For civil court fees, defendants S, T1 and K each paid 300,000 VND.

From the date of the judgment creditor's request for enforcement until the judgment debt is completely executed, every month the judgment debtor must also pay interest on the late execution amount according to the prescribed interest rate corresponding to the time the judgment has not been executed, according to the provisions of Clause 2, Article 468 of the Civil Code corresponding to the time the judgment has not been executed.

In case the judgment is executed according to the provisions of Article 2 of the Law on Enforcement of Civil Judgments, the person on whom a civil judgment is executed and the person who must execute a civil judgment have the right to agree to execute the judgment, voluntarily execute the judgment, or be forced to execute the judgment according to the provisions of Articles 6, 7, 7a, 7b and 9 of the Law on Enforcement of Civil Judgments; The statute of limitations for executing judgments is specified in Article 30 of the Law on Enforcement of Civil Judgments.

The defendant and other participants in the proceedings present at the trial have the right to appeal the verdict within 15 days from the date of the verdict. Those absent from the court hearing have the right to appeal within 15 days from the date of receipt of the judgment or judgment being duly served.

CONTENTS OF PRECEDENT

“[9] Because he knew that the fishing boats in D district needed many seafarers (fishermen), defendant Duong Van S collaborated with subject G to find people to supply the ship owners to make up the difference. deviated.

[10] The subject named G made an offer to work as a parking attendant with a high salary, so Mr. D, T, and M accepted. Upon receiving the victims, subject G transported them to defendant S and received the amount of 9,000,000 VND. Defendant S instructed his accomplices, defendants K,T1,1 and C, to take turns guarding so that the defendant could find the fishing boat and hand it over to get the difference.

[11] The criminal acts committed by the defendants are very dangerous to society and have violated the honor, dignity, and freedom of people prescribed by the Constitution and law, violating social order and safety. The defendants are aware that human trafficking is a violation of the law, but for personal gain and taking advantage of the gullibility of the victims. Therefore, the defendants committed it with direct intention. The defendants are people with the legal capacity to bear criminal responsibility for the crimes they committed."

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