Precedent No. 66/2023/AL on determining the crime of "Human trafficking" in Vietnam

Source of Precedent:

Criminal Appeal Judgment No. 86/2022/HS-PT dated February 17, 2022 of the High People's Court in Hanoi on the case of "Human Trafficking" against defendants Trinh Thi H and Dang Thi C .

Location of Precedent content:

Paragraphs 3, 5 and 6 of the “Court's Opinion” section.

Overview of the content of the Precedent:

- Precedent situation:

The defendant committed acts of deception, promising benefits to the victim and causing the victim to trust and voluntarily follow the defendant abroad, after which the defendant handed the victim over to another person to receive money.

- Legal solutions:

In this case, the Court must determine that the defendant's crime is the crime of "Human Trafficking" and not the crime of "Organizing for others to flee abroad illegally".

Relevant legal provisions:

- Article 150 and Article 349 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 human trafficking and Article 151 on trafficking in people under 16 years old of the Penal Code.

Keywords of Precedent:

“Crime of human trafficking”; "Fool"; "Marry a foreigner".

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:

Around August 2019, through the social network Facebook, Trinh Thi H met a woman named T (about 30 years old) from Bac Lieu province, currently living in China. T told H that in Ha Nam province - China, there are many Chinese men who want to marry Vietnamese women. If anyone wants to marry a Chinese man, please introduce them. In each case of bringing someone to China, T will pay H 40,000 yuan (about 120,000,000 VND).

After learning the information, H posted to the group "Chinese - Korean - Vietnamese marriage broker" on the social network Facebook with the content: "Currently, there is a Chinese son-in-law who wants to marry a Vietnamese wife. If any bride really wants to get married and is looking for happiness, please contact her." Then Ms. Bui Thi N, born in 1991 and residing in Y commune, G district, Hai Duong province, was also one of the members of the group who texted H with the content: "N has a younger brother who wants to marry a Chinese man; please help," and also gave N1's sister's phone number to directly contact and guide N1 to marry a Chinese person.

On January 3, 2020, H and Dang Thi C (H's adoptive mother) went to the house of Ms. Nguyen Thi N1, born in 1991, in T commune, K district, Hai Duong province, to exchange information about marrying a Chinese person and instruct N1 to prepare documents such as: a passport, household registration book, identity card, and certificate of single status to complete entry visa procedures into China. If Ms. N1 and her family agree, they will receive a bride price of 60,000,000 VND from the groom's family in China. However, Mr. Nguyen Van T1 (Ms. N1's biological father) did not agree and kept Ms. N1's documents. Because Ms. N1 still wanted to go to China to get married, she contacted H and was guided by H to Dang Thi C's house to talk directly. On the afternoon of January 3, 2020, when Ms. N1 arrived at C's house, Ms. N1 met H and C, asking H to find a way for Ms. N1 to go to China. H instructed Ms. N1 to prepare a citizen identification card so that H could make a passport for N1 to "smuggle" to China. Ms. N1 agreed.

On January 6, 2020, Trinh Thi H asked Mr. Tran Van H1 (H's husband) to pick up Ms. N1 at the overpass area 789, ward A, city H, Hai Duong province, and Hanoi city to make a passport for Ms. N1. On the morning of January 7, 2020, H continued to ask Mr. H1 to rent a taxi to take Ms. N1 to motel Y in L city, Lang Son province. H did not tell H1 the purpose of making a passport and renting a car for Ms. N1 to go to Lang Son.

On January 7, 2020, H gave C 4,500,000 VND through a taxi driver (can't remember his name or address) to pay for the bus from Hai Duong to Lang Son and for the accommodation and meals of C and N1 at motel Y. The remaining amount C can exchange for 300 yuan to cover expenses on the way to Henan province - China. At the same time, H also contacted Mr. Vi Van N2, the owner of motel Y, to arrange a room and rent a car to take C and N1 to Ha Nam province - China.

On January 8, 2020, Trinh Thi H took Ms. Nguyen Thi N1 to escape to China via the border trail in L1 district, Lang Son province, while C entered China with a passport through the Chi Ma border gate, Lang Son province. At the rendezvous point in China, C and N1 continued to travel by car to Ha Nam province - China to meet a Chinese man (name unknown) who was expected to marry N1. However, when they met, N1 did not agree. H told N1 to stay at this man's house to wait to see the other son-in-law. If he did not agree, N1 had to pay all the expenses H spent to take N1 to China. N1 agreed to stay, but because he waited for a long time and could not see the other person, N1 went to an acquaintance's house in Guangxi province - China and reported to the Chinese Police to return to Vietnam. On March 26, 2020, Dong Hung Immigration Border Guard Station - Guangxi - China handed over Ms. Nguyen Thi N1 to Mong Cai International Border Gate Border Guard Station, Quang Ninh province.

* In First Instance Criminal Judgment No. 18/2021/HS-ST dated April 5, 2021, the People's Court of Hai Duong province decided:

1. Declaring the defendants Trinh Thi H and Dang Thi C guilty of the crime of "Human Trafficking".

- Pursuant to Point d, Clause 2, Article 150, Point s, Clause 1, Article 51, Article 17, Article 58, and Article 38 of the Penal Code for defendant Trinh Thi H. Defendant Trinh Thi H was sentenced to 09 (nine) years in prison, the term of imprisonment is calculated from the date of detention on October 16, 2020.

- Pursuant to Point d, Clause 2, Article 150, Point s, Clause 1 and Clause 2, Article 51, Article 17, Article 58, and Article 38 of the Penal Code for defendant Dang Thi C. Sentenced Dang Thi C to 07 (seven) years in prison, the term of imprisonment is calculated from the date of detention on September 30, 2020.

2. Regarding civil liability: force defendant Trinh Thi H and defendant Dang Thi C to jointly compensate for damage to honor, dignity, and mental loss to Ms. Nguyen Thi N1 in the amount of 30,000,000 VND (thirty million dong); for specific liability, defendant Dang Thi C must pay compensation of 10,000,000 VND (ten million VND), and defendant Trinh Thi H must pay compensation of 20,000,000 VND (twenty million VND).

In addition, the first-instance judgment also declared the handling of physical evidence, court fees, and the right to appeal according to the law.

- On April 16, 2021, defendant Dang Thi C filed an appeal asking for a reduced sentence.

- On April 16, 2021, defendant Trinh Thi H filed an appeal asking for a reduced sentence.

- On April 21, 2021, the victim, Ms. Nguyen Thi N1, filed an overdue appeal with the request to increase the compensation for honor, dignity, and mental damage to 80,000,000 VND and claim compensation for other losses of VND 100,000,000.

In Decision to resolve overdue appeals No. 36/2021/HSPT-QD dated July 17, 2021, the High People's Court in Hanoi accepted the appeal of Ms. Nguyen Thi N1.

At the appeal hearing:

The defendants and victim, Ms. Nguyen Thi N1, represented by Mr. Nguyen Van T1, presented as follows:

- Defendants C and H jointly presented the following content:

The defendants lacked knowledge of the law, so they unintentionally committed a crime. The defendants themselves only wanted to help Ms. N1 get a husband, and Ms. N1 herself also wanted the defendant to help with that. After committing a crime, the defendants always confessed sincerely and were repentant. The defendants all had good personalities and had never broken the law before; The defendants' families are facing difficulties, and the defendants themselves are the main breadwinners in their families raising young children. Defendant C's biological parents were awarded Orders, Medals, and Certificates of Merit. The defendants asked the Trial Council to consider reducing the defendants' sentences.

- The victim presented:

Confirmed at today's trial, the defendants have compensated the victim with the full amount of 30 million VND as declared in the first instance criminal judgment, and the victim voluntarily withdrew the entire appeal; At the same time, we asked the Trial Council to consider reducing the penalties for the defendants.

The representative of the High People's Procuracy in Hanoi, after analyzing the content of the case, assessing the nature and level of danger of the crime committed by the defendant, and evaluating aggravating and mitigating circumstances, considered that the light sentence that the Court of First Instance applied to the defendant found that the Court of First Instance judged the right person, the right crime, and the sentence imposed on the defendant was appropriate. At the appeal trial, the defendants compensated the victim with the full amount of 30 million VND, as declared in the first instance criminal judgment; The victim voluntarily withdrew the entire appeal. Due to new circumstances, he requested the Trial Panel to apply the mitigating circumstances specified in Point b, Clause 1, Article 51 of the Penal Code for the defendants and apply Article 348, Article 355, Article 357 of the Criminal Procedure Code, suspend the appellate trial for the victim's appeal; accept the defendants' appeal; and amend the first instance criminal judgment of the People's Court of Hai Duong province in the direction of partially reducing the punishment for the defendants (reducing the defendants from 6 months to 01 year in prison).

Based on documents and evidence publicly examined at the appeal court; based on the results of arguments at the trial, on the basis of a complete and comprehensive review of the evidence and opinions of the Prosecutor, the victim, and the defendants.

COURT'S OPINION:

[1] Acts and procedural decisions of investigating and prosecuting agencies, investigators, prosecutors, and other procedural persons during the process of investigation, prosecution, and trial at the first instance level, the authority, order, and procedures prescribed in the Criminal Procedure Code were strictly implemented. During the investigation, prosecution, and trial, the defendant and the victim had no opinions or complaints about the actions or decisions of the agency conducting the proceedings or the person conducting the proceedings. Therefore, the actions and decisions of the agency conducting the proceedings and the person conducting the proceedings are legal.

[2] Regarding the crime: Based on the testimony of the defendants, of Ms. N1, the witness, and the minutes of handover and receipt between Mong Cai Police and organization R, the Certificate of Return from the Mong Cai Immigration Station, and other evidence documents included in the case file that were examined at the trial, there are grounds to determine that defendants H and C committed the following crimes:

[3] H knows that Chinese men want to marry Vietnamese women through a person named T, from Bac Lieu province, who is married to a Chinese man. T told H that if he could bring people to China, T would pay H 40,000 yuan (equivalent to 120,000,000 VND in Vietnamese currency). H discusses and agrees with C: H is responsible for finding people, arranging travel, accommodation, contacting the recipient in China, and prices; C is in charge of translating, bringing people to China, delivering people, and receiving money to give to H. The payment to C will be agreed upon later. Defendants H and C admitted this content at the basic trial; the only difference from the investigation phase is that Defendant H stated that after Ms. N1's father did not agree to let N1 marry a Chinese man, H and C assigned each other. C said that it was because H asked C to take Ms. N1 to China without discussing anything. Thus, H and C have the motive and purpose to bring Vietnamese women to China to give them to T so that T can sell them to Chinese men to become wives and receive money; H and C do not have the function of intermediaries in getting married to a foreigner; H and C do not have the intention of sending other people to flee abroad, and in this case, the victim is Ms.; H sees it as an exchange for money.

[4] To accomplish the above purpose, on January 3, 2020, H and C went to Ms. N1's house to ask about her wishes and persuaded her to go to China to get married, using the following tricks: Tell Ms. N1 that Chinese men are very pampering their wives and that life there is very happy. If Ms. N1 agrees to marry a Chinese man, she will let Ms. N1 see the groom's face and complete the marriage procedures in Vietnam. Ms. N1 will receive a bride price of 60,000,000 VND and will also be able to send money back to her family. Defendant H admitted all of this content, while defendant C admitted at the trial that he said Chinese men were pampered and had a happy life and did not know the other content. Ms. N1 heard what H and C said, so she agreed, even though Ms. N1's parents did not agree to let Ms. N1 marry a Chinese man. On January 6, 2020, H sent someone to pick up Ms. N1 to go to Hanoi to get a passport. On January 7, 2020, H arranged to take Ms. N1 to Lang Son, at the same time apply for a visa, give money to C, and catch a car for C to go to Lang Son to meet Ms. On January 8, 2020, H and C took Ms. N1 to Ha Nam province - China, handed over Ms. N1 to T2 (T's person), and C received 1,000 yuan (as provided by Ms. N1); The remaining amount will be transferred to H later. Ms. N1 was taken by T's people to meet a man she planned to marry, but Ms. N1 did not agree because it was not the person H and C introduced in the photo while in Vietnam. Ms. N1 knew that she had been deceived, so she contacted her family and acquaintances in China to complete reporting procedures with Chinese authorities. On March 26, 2020, Ms. N1 was handed over to the Vietnam Border Guard force at Mong Cai - Quang Ninh border gate. The document stated that the person being trafficked had been handed over to China.

[5] Thus, defendants H and C told Ms. N1 that: Marrying a Chinese man can meet the groom, go through marriage procedures in Vietnam, receive dowry money, have a happy life, and receive money to send back to the family... Ms. N1 thought it was real, so she followed C to China and was sold by H and C for money. Defendant C stated that the defendant was not informed by H of the specifics of why he took Ms. N1 to China but only helped H translate and take money back. However, in the minutes of testimony and self-declaration during the investigation phase, C admitted that C and H discussed taking women to China to get married to make money, and there was a division of tasks for each person. Sending people to China cost 40,000 yuan, C and H did not tell N1; On January 3, 2020, at house C, Ms. N1 said that Ms. N1's father did not agree, so she did not have enough documents to marry a Chinese man. H told Ms. N1 that if she did not have papers, she would take Ms. N1 "undercover" and told C to take Ms. N1 there. C agreed. C told Ms. N1 that if she had papers, it would be better to go there; H2 in Lang Son was the person who took Ms. N on another route to China. At the trial, defendant C admitted that during the investigation phase he was not forced to confess, bribed, or used corporal punishment, nor did he declare voluntarily and truthfully. Therefore, it is determined that between H and C there was a discussion about sending women to China to sell for profit. C knew that Ms. N1 did not have enough legal documents but still took Ms. N1 to China and handed it over to someone else to receive the money. C explained that she used to work as a maid in Macau but only stayed at home and did not know her way around China, but still told Ms. N1 that she would be happy to seduce a Chinese man and tricked Ms. N1 into agreeing to let C and H take Ms. N1 away.

[6] Based on the actions the defendants have committed as described above and the consequences, Ms. N1 was taken to China by defendants Trinh Thi H and Dang Thi C and handed over to a Chinese man to receive material benefits in the form of money. The first instance court tried the defendants for the crime of "Human Trafficking" according to Point d, Clause 2, Article 150 of the Penal Code and imposed appropriate penalties on the defendants according to the penalty framework.

[7] Considering the defendants' appeal:

[8] The first instance court during the trial evaluated the case of simple accomplices, determining that defendant Trinh Thi H had a higher role than defendant Dang Thi C. At the same time, based on the assessment that the defendants are not subject to circumstances aggravating criminal liability, the defendants are entitled to apply circumstances mitigating criminal liability, such as: sincere confession, repentant attitude, the two defendants have good personalities, have never violated the law, and defendant C has biological parents who were awarded Orders, Medals, and Certificates of Merit; From there, it is correct to apply a penalty level to defendant H that is higher than the penalty level applied to defendant C.

[9] At today's trial, the defendants influenced the victim's family to compensate the victim with the full amount of 30 million VND as declared in the first instance verdict. The victim directly received confirmation at the trial that it was correct and voluntarily withdrew the entire appeal; At the same time, they requested that the Trial Council reduce the penalties for the defendants. Because at the trial there were new mitigating circumstances applicable to the defendants as stipulated in Point b, Clause 1, Clause 2, Article 51 of the Penal Code, the assessment in this case shows that the victim is also partly at fault when he voluntarily let H and C take him to China to marry men from the local country, hoping to change his life and have a more prosperous life. The Trial Panel found that there was a basis for applying Article 54 of the Penal Code, reducing part of the punishment for the defendants, which was legal.

[10] Considering the victim's appeal:

[11] At today's trial, the victim and his authorized representative admitted to having received the full amount of 30 million VND as compensation from the defendants and voluntarily withdrew the entire appeal. Seeing that this was the voluntary will of the victim, the Trial Council, based on the proposal of the representative of the High People's Procuracy in Hanoi, pursuant to Article 348 of the Criminal Procedure Code, the decision to suspend the appellate trial of the victim's appeal.

[12] Summing up the above analysis, the Court of Appeal found there were grounds to accept the defendants' appeal. The viewpoint of the representative of the High People's Procuracy at the trial is well-founded and accepted.

[13] Other parts of the first instance judgment that have no appeal or protest will take legal effect from the date of expiration of the appeal or protest period. Defendants and victims do not have to pay appeal court fees.

[14] For the above reasons, based on Article 348, Article 355, and Article 357 of the Criminal Procedure Code, Law on Fees and Charges; Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the National Assembly Standing Committee regulating the rates of collection, exemption, reduction, collection, payment, management, and use of court fees and charges.

DECISION:

- Suspension of the appeal hearing for Ms. Nguyen Thi N1's appeal.

- Accept the appeal to reduce the sentence of defendants Trinh Thi H and Dang Thi C.

1. Declaring the defendants Trinh Thi H and Dang Thi C guilty of the crime of "Human Trafficking".

- Apply point d, clause 2, Article 150, points b and s, clause 1, clause 2, Article 51, Article 17, Article 58, Article 38 of the Penal Code. Defendant Trinh Thi H was sentenced to 08 (eight) years in prison. The term of imprisonment is calculated from the date of temporary detention on October 16, 2020.

- Apply point d, clause 2, Article 150, points b and s, clause 1, clause 2, Article 51, Article 17, Article 54, Article 58 of the Penal Code. Dang Thi C was sentenced to 06 (six) years in prison; the term of imprisonment is calculated from the date of temporary detention on September 30, 2020.

2. Regarding civil liability:

Confirming that the defendants have completed paying compensation for civil liability to the victims in the amount of 30 million VND according to the decision of the first instance criminal judgment.

3. Defendants and victims do not have to pay criminal appeal court fees.

4. Other decisions of the first instance judgment that have no appeal or protest take legal effect from the date of expiration of the time limit for appeal or protest.

The appellate judgment takes legal effect from the date of pronouncement.

CONTENTS OF PRECEDENT

“[3]... H and C had the motive and purpose to bring Vietnamese women to China to give them to T so that T could sell them to Chinese men as wives and receive money; H and C did not have the function of intermediary in marrying a foreigner; H and C had no intention of sending people to flee abroad, and in this case, the victim was Ms. N1, who was identified by defendants C; H sees it as an exchange for money.

…

[5]... between H and C there was a discussion about taking women to China to sell for profit. C knew that Ms. N1 did not have enough legal documents but still took Ms. N1 to China and handed it over to someone else to receive money, C explained that she had previously worked as a maid in Macau but only stayed at home, and did not know the way around in China, but still told Ms. N1 that it would be fun to marry a Chinese man to seduce her and tricked Ms. N1 into agreeing to let C and H take Ms. N1 away.

[6] Based on the actions the defendants have committed as described above and the consequences, Ms. N1 was taken to China by defendants Trinh Thi H and Dang Thi C and handed over to a Chinese man to receive material benefits in the form of money. The Court of First Instance tried the defendants for the crime of "Human Trafficking" according to Point d, Clause 2, Article 150 of the Penal Code and imposed appropriate penalties on the defendants according to the penalty framework.

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