Precedent No. 58/2023/AL was adopted by the Council of Justices of the Supreme People’s Court on February 1, 2, and 3, 2023, and published under Decision No. 39/QD-CA dated February 24, 2023, by the Chief Justice of the Supreme People’s Court.
1. What is a precedent?
Precedents are arguments and rulings in legally effective judgments and decisions of the Courts on specific cases selected by the Council of Justices of the Supreme People’s Court and published by the Chief Justice of the Supreme People’s Court as precedents for Courts to study and apply in adjudication. (Article 1 of Resolution 04/2019/NQ-HDTP)
A selected precedent must meet the following criteria:
– It contains value in clarifying provisions of the law that have different interpretations, analyzing and explaining legal issues and events, and pointing out principles, handling methods, or legal norms to be applied in a specific case or demonstrating equity for issues not yet specifically regulated by law;
– It is exemplary;
– It has guiding value for the uniform application of law in adjudication.
2. Precedent No. 58/2023/AL on sentencing framework circumstances under Point c, Clause 3, Article 244 of the Penal Code
2.1. Source of the precedent
First-instance criminal judgment No. 179/2018/HSST dated September 14, 2018, of the People’s Court of Ha Long City, Quang Ninh Province, regarding the case of “Violating regulations on the protection of endangered, precious, and rare animals” against the defendant Hoang Dinh Q.
Location of the precedent content:
Paragraphs 13, 16, and 18 of the “Court’s Assessment” section.
2.2. Overview of the precedent content
– Precedent situation:
The defendant committed the act of transporting 05 tiger individuals and 01 vital body part of a 6th tiger individual.
– Legal solution:
In this case, the defendant must be held criminally liable under the provisions of Point c, Clause 3, Article 244 of the Penal Code 2015 (amended and supplemented in 2017).
Legal provisions related to the precedent:
– Article 244 Criminal Code of Vietnam 2015 (amended and supplemented in 2017);
– Article 4 of Resolution No. 05/2018/NQ-HDTP dated November 5, 2018, of the Council of Justices of the Supreme People’s Court guiding the application of Article 234 on the crime of violating regulations on wildlife protection and Article 244 on the crime of violating regulations on the protection of endangered, precious, and rare animals of the Penal Code.
Keywords of the precedent:
“Crime of violating regulations on the protection of endangered, precious, and rare animals”; “Vital body parts”; “Point c, Clause 3, Article 244 of the Penal Code”.
CASE CONTENT:
According to the documents in the case file and the developments at the trial, the content of the case is summarized as follows:
At approximately 03:15 on January 7, 2018, at the road section at Km 114 + 710 National Highway M, in B Ward, L City, Task Force Team 12, PC67 Division of Quang Ninh Provincial Police, inspected a passenger car with license plate (BKS): 14B-019.26, driven by Mr. Nguyen Van H, and caught Hoang Dinh Q red-handed, who was a passenger on the car transporting: 01 cardboard box containing 03 live animal individuals suspected to be macaques; 01 cardboard box containing 05 frozen animal individuals (suspected to be tiger cubs) and 01 animal body part (suspected to be a tiger reproductive organ), weighing 01 kg; one cardboard box containing 10 animal parts (suspected to be gaur gallbladders); one small black package containing 20 animal parts (suspected to be tiger teeth); 03 bags (suspected to be pangolin scales) weighing 20kg, 10kg, and 20kg respectively; one white Styrofoam box containing many pieces of frozen meat suspected to be tiger meat, placed in 03 plastic bags weighing 41 kg of frozen meat already cut into pieces.
Additionally, the following were seized from Q: 02 mobile phones, including: 01 black Nokia model RM-1134, IMEI 355127079886596, with SIM card No. 091.556.1306; 01 red iPhone 7, IMEI 353804089230427, with SIM card No. 096.142.1102 and 2,000,000 VND.
In Forensic Conclusion No. 51/STTNSV dated January 15, 2018, the Institute of Ecology and Biological Resources, Vietnam Academy of Science and Technology, concluded:
– The 03 live animal individuals in the cardboard box are Northern pig-tailed macaques, scientific name Macaca leonica. The Macaca leonica macaque species belongs to Group IIB – forest plants and forest animals restricted from exploitation and use for commercial purposes, according to the provisions of Decree No. 32/2006/ND-CP dated March 30, 2006, of the Government.
– The 05 dead frozen animal individuals, after morphological and DNA testing, are tigers, scientific name Panthera tigris;
– 01 kg of animal reproductive organ, after morphological and DNA testing, is a male reproductive organ of the tiger species, scientific name Panthera tigris, which is a vital body part;
– 41 kg (forty-one kilograms) of frozen meat, after DNA testing, belongs to the tiger species, scientific name Panthera tigris. If the total weight above belongs to 01 individual, it would mean that tiger individual could not exist. The tiger species Panthera tigris belongs to Appendix I, List of endangered, precious, and rare species prioritized for protection, Decree 160/2013/ND-CP dated November 12, 2013, of the Government;
– 50 kg (fifty kilograms) of forensic samples are scales of the pangolin species, scientific name Manis gigantea. If the above number of scales belongs to many individuals, it does not affect life. The pangolin species with the scientific name Manis gigantea is named in Appendix I, List of wild animal and plant species regulated in the Appendices issued with Circular 04/2017/TT-BNNPTNT dated February 24, 2017, of the Ministry of Agriculture and Rural Development.
In Supplementary Animal Forensic Conclusion No. 101/STTNSV dated February 29, 2018, of the Institute of Ecology and Biological Resources – Vietnam Academy of Science and Technology, it is shown that:
– 20 fangs are of a carnivorous species. DNA testing results of 01 fang sample are of the dog species, scientific name Canis lupus familiaris, a common domestic animal species.
– 05 small, black parts are gallbladders; DNA testing of 01 (sample) is the gallbladder of the dog species, scientific name Canis lupus familiaris, a common domestic animal species.
– 05 large, flat, yellowish parts are gallbladders; DNA testing of 01 (sample) is the gallbladder of the cattle species, scientific name Bos indicus, a common domestic animal species.
Indictment No. 169/CT-VKSHL, dated August 6, 2018, of the People’s Procuracy of Ha Long City, Quang Ninh Province, prosecuted defendant Hoang Dinh Q for the crime of “Violating regulations on the protection of endangered, precious, and rare animals” under Point c, Clause 2, Article 244 of the Penal Code.
At the trial, the representative of the People’s Procuracy of Ha Long City, Quang Ninh Province, maintained the prosecution viewpoint and proposed the application of Point c, Clause 2, Article 244; Point s, Clause 1, Clause 2, Article 51, Point a, b, Clause 1, Article 47 of the Penal Code; Point a, b, Clause 2, Article 106 of the Criminal Procedure Code to sentence defendant Q to 08 to 09 years in prison, confiscate 2,000,000 VND for the state budget, and confiscate 02 mobile phones for sale to the state budget.
The witnesses, Mr. Nguyen Van H, Nguyen Van T, and Nguyen Minh H1, gave consistent testimonies stating: They were the driver and assistants of the passenger bus BKS 14B-019.26 running the route V City – M City. At about 18:15, their bus left the station from V City for M City. When the bus reached N Overpass, Vinh City, it picked up a young man, later identified as Hoang Dinh Q, carrying 03 black plastic bags and a black backpack on his shoulder. When the bus reached the area of D District, Nghe An, the man asked to stop the bus and transferred 03 cardboard boxes onto the bus. When the bus reached the area of Q District, Nghe An, the man again asked to stop the bus and continued to transfer 01 Styrofoam box onto the bus. At about 03:15, when the bus reached the area of B Ward, it was inspected by the police. The police requested the young man to open all the goods for inspection, finding that:
– 03 black plastic bags contained animal parts.
– 01 cardboard box contained 05 tiger cubs and 01 animal reproductive organ.
– 01 cardboard box contained 03 baby macaques.
– 01 small cardboard box contained many animal gallbladders.
– 01 Styrofoam box contained pieces of animal meat.
– 01 small package in the young man’s bag contained many animal teeth.
COURT’S ASSESSMENT:
[1] Based on the content of the case, and grounded in the documents in the case file that were debated at the trial, the Trial Panel assesses as follows:
[2] At today’s trial, defendant Hoang Dinh Q testified: The defendant was previously a bus assistant on the V City – M City route; many people often sent goods through the defendant for transport and had his phone number. About 02 days before the date of arrest, a man named S called the defendant to hire him to transport some goods which were animals, including tigers, macaques, pangolin scales, cattle gallbladders, animal teeth… from V City to M City for a transportation fee of 2,000,000 VND. Mr. S told the defendant to receive the goods at N Overpass, V City; D District, and Q District, Nghe An. At about 16:00 on January 6, 2018, Mr. S called to tell him to transport the goods; the defendant called Mr. Nguyen Minh H1 to book a seat to M City, making an appointment to be picked up at N Overpass. At about 18:30, the defendant went to N Overpass and met a man who gave the defendant 03 black bags and 2,000,000 VND, saying they were for Mr. S; the defendant received the goods and then boarded the passenger bus BKS 14B – 019.26 to M City. When the bus reached D District, Nghe An, someone called to say they were delivering goods for Mr. S; the defendant told the bus to stop and got down to receive 03 cardboard boxes, one of which was open, and the defendant saw 03 macaques inside. At about 20:20, when the bus reached Q District, Nghe An, someone else called to say they were delivering goods for Mr. S; the defendant told the bus to stop and got down to receive 01 Styrofoam box and 01 small black package (which the defendant kept in his side bag). At about 03:15 on January 7, 2018, when the bus reached area B, L City, it was inspected by the police. The police requested him to open the boxes he had received for transport and found:
[3] – 03 black plastic bags containing pangolin scales, total weight 50kg.
[4] – 01 cardboard box containing 05 frozen dead tiger cubs and 01 male tiger reproductive organ.
[5] – 01 cardboard box containing 03 baby macaques.
[6] – 01 small cardboard box containing many animal gallbladders.
[7] – 01 Styrofoam box containing pieces of tiger meat.
[8] – 01 small package containing many animal teeth.
[9] The police seized the aforementioned items along with 2,000,000 VND and 02 phones of the defendant. The defendant does not know the identity or address of Mr. S and the men who sent the goods to S; they only transacted via phone and he had never met S.
[10] The confession of defendant Hoang Dinh Q at the trial is consistent with his confessions at the investigative agency, consistent with the testimonies of witnesses Nguyen Van H, Nguyen Van T, and Nguyen Minh H1, consistent with the record of catching the offender red-handed prepared by Task Force Team 12, Quang Ninh Provincial Police at 04:00 on January 7, 2018, and consistent with the forensic conclusion. Thus, there is sufficient basis to conclude that at approximately 03:15 on January 7, 2018, at Km 114+700 on National Highway 18A in B Ward, L City, Quang Ninh Police caught Hoang Dinh Q red-handed while transporting: 05 tigers, scientific name Panthera tigris; 01 male tiger reproductive organ, scientific name Panthera tigris, which is a vital body part of 01 tiger; 41kg of meat of the tiger species, scientific name Panthera tigris; 50 kg of pangolin scales, scientific name Manis gigantea; 20 fangs of the dog species, scientific name Canis lupus familiaris; 05 gallbladders of the dog species, scientific name Canis lupus familiaris; and 05 gallbladders of the cattle species, scientific name Bos indicus.
[11] According to the List of endangered, precious, and rare species prioritized for protection Group IB issued with Decree No. 160/2013/ND-CP of the Government and Appendix I of the List of wild animal and plant species regulated in the Appendices issued with Circular No. 04/2017/TT-BNNPTNT dated February 24, 2017, of the Ministry of Agriculture and Rural Development, the tiger species Panthera tigris and the pangolin species Manis gigantea (also known as the giant pangolin) are named. Thus, the act of defendant Hoang Dinh Q has constituted the crime of “Violating regulations on the protection of endangered, precious, and rare animals” as stipulated in Article 244 of the Penal Code.
[12] Clause 1, Article 244 of the Penal Code stipulates: “Any person who violates regulations on the protection of animals in the List of endangered, precious, and rare species prioritized for protection or the List of endangered, precious, and rare forest plants and forest animals Group IB or Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora in one of the following cases shall be liable to a fine of between 500,000,000 VND and 2,000,000,000 VND or a prison term of between 01 and 05 years: a) Illegally hunting, killing, raising, keeping, transporting, or trading in animals in the List of endangered, precious, and rare species prioritized for protection; b) Illegally storing, transporting, or trading in individuals, vital body parts, or products of animals specified in Point a of this Clause;…”.
[13] The defendant transported 05 frozen tiger individuals, scientific name Panthera tigris; 01 male reproductive organ of the tiger species, scientific name Panthera tigris, which according to the forensic conclusion is a vital body part of a tiger; 41 kg of meat of the tiger species, scientific name Panthera tigris, which according to the forensic conclusion, if the total amount of meat belongs to 01 tiger individual, would mean that tiger individual could not exist; 50 kg of scales of the pangolin species, scientific name Manis gigantea, which according to the forensic conclusion, if the above scales belong to many individuals, does not affect life.
[14] The forensic conclusion did not determine whether 50kg of pangolin scales were scales from multiple individuals or from one single pangolin, so it cannot be determined that these are vital body parts of a pangolin.
[15] The forensic conclusion did not determine whether 41 kg of tiger meat was the meat of one tiger or multiple tigers, so it cannot be determined that these are vital body parts of a tiger.
[16] The forensic conclusion did not determine whether the 01 male tiger reproductive organ belonged to one of the five frozen tigers or not. Since all the exhibits above were destroyed, supplementary forensic examination could not be performed. However, according to the Report on the condition of products and animal health (document page 89), the 05 frozen dead tigers were tiger cubs weighing from 0.99kg to 2.99kg; the 01 male tiger reproductive organ weighed 0.98kg. Thus, based on the weight in kilograms, there is a basis to affirm that the 01 male tiger reproductive organ was not the reproductive organ of one of the 05 frozen tiger cubs, because no tiger species could have a male reproductive organ accounting for 1/2 to 1/4 of its body weight. According to the forensic conclusion, that reproductive organ is a vital body part of a tiger, which means a 6th tiger had to be killed to obtain that reproductive organ for the defendant to transport. This means defendant Q committed the act of transporting 05 tigers and 01 vital body part of a 6th tiger.
[17] Clause 3, Article 244 of the Penal Code stipulates: “3. Committing the crime in one of the following cases shall carry a prison term of between 10 and 15 years: a)…; c) From 03 individuals of elephant or rhinoceros upwards or vital body parts of from 03 individuals of elephant or rhinoceros upwards; from 06 individuals of bear or tiger upwards or vital body parts of from 06 individuals of bear or tiger upwards;”.
[18] From the provision of the law, it is clear that merely transporting the vital body parts of 06 or more tiger individuals is already a violation of Point c, Clause 3, Article 244 of the Penal Code. The content of this legal provision aims to handle serious crimes infringing upon the lives of 06 or more tiger individuals. The defendant transporting 05 tiger individuals and 01 vital body part of a 6th tiger individual has infringed upon the lives of 06 tiger individuals, so he must bear the penalty stipulated in Point c, Clause 3, Article 244 of the Penal Code.
[19] At today’s trial, the representative of the Procuracy proposed to prosecute the defendant under Point c, Clause 2, Article 244 of the Penal Code, but the Trial Panel finds that the defendant violated the provisions at Point c, Clause 3, Article 244 of the Penal Code, so it is necessary to apply the provision in Clause 2, Article 298 of the Criminal Procedure Code.
[20] The defendant’s behavior is dangerous to society, infringing upon state regulations on environmental protection, ecological balance, and biodiversity of rare and endangered wild animals in the ecological environment. Although the defendant knew the law strictly prohibits such acts, he still performed the act of transporting a large number of endangered, precious, and rare animals prioritized for protection, so it is necessary to handle him strictly, isolating the defendant from social life for personal education and general prevention purposes.
[21] The Trial Panel also considers that the defendant has a truthful declaration attitude and is remorseful, thus reducing part of the penalty for the defendant under Point s, Clause 1, Article 51 of the Penal Code. The defendant is a first-time offender, and his biological father is a veteran of the war against the US who was awarded many medals, so the penalty for the defendant is mitigated under Clause 2, Article 51 of the Penal Code.
[22] Regarding supplementary penalties: Considering that the defendant was only hired to transport and has no assets or income, it is not necessary to apply the supplementary penalty of a fine against the defendant.
[23] Regarding exhibits: The exhibits of the case are 05 tiger individuals, 01 male tiger reproductive organ, 50kg of pangolin scales, dog gallbladders, cattle gallbladders, dog teeth, and 01 dead macaque individual, which the investigative agency has destroyed; 02 live macaque individuals were handed over by the investigative agency to the Forest Protection Department of Quang Ninh Province according to regulations, so they are not considered. The amount of 2,000,000 VND is money obtained by the defendant through crime, so it is confiscated for the state budget. The 02 mobile phones and accompanying SIM cards used by the defendant as tools and means to commit the crime should be confiscated and sold to the state budget.
[24] Regarding the act of transporting 03 pig-tailed macaques; 05 gallbladders and 20 fangs which are all from common domestic dogs, and 05 gallbladders from common domestic cattle. There is insufficient basis for criminal handling, so the Forest Protection Department of Quang Ninh Province has issued a decision on administrative sanction against Hoang Dinh Q.
[25] For the individual named S and the 03 men who sent the wildlife goods to Q, their identities have not yet been verified; the investigative agency will continue to investigate, verify, and handle them later.
[26] During the investigation, prosecution, and trial of defendant Hoang Dinh Q, the Investigators and Prosecutors basically followed the order and procedures stipulated in the Criminal Procedure Code, ensuring the rights and obligations of the participants in the proceedings; no procedural decisions or acts were complained about.
For the above reasons,
DECISION:
Pursuant to Point c, Clause 3, Article 244; Point s, Clause 1, Clause 2, Article 51 of the Penal Code; Clause 2, Article 298 of the Criminal Procedure Code.
Sentence: Hoang Dinh Q to 10 (ten) years in prison for the crime of “Violating regulations on the protection of endangered, precious, and rare animals”; the prison term starts from the date the defendant was arrested, January 7, 2018.
Pursuant to Point a, b, Clause 1, Article 47 of the Penal Code; Point a, b, Clause 2, Article 106 of the Criminal Procedure Code.
Confiscate for the state budget the amount of 2,000,000 VND; confiscate for sale to the state budget 02 mobile phones and accompanying SIM cards (all according to the handover record of exhibits No. 179/BB-THA dated August 8, 2018, of the Civil Judgment Enforcement Agency of Ha Long City).
Pursuant to Article 331, Article 333 of the Criminal Procedure Code; Resolution 326/2016/UBTVQH of the Standing Committee of the National Assembly on the rates of collection, exemption, reduction, collection, payment, management, and use of court fees and charges.
The defendant must pay 200,000 VND in first-instance criminal court fees.
The case was tried in open first-instance sessions; the defendant is informed of the right to appeal within 15 days from the date of the first-instance sentencing.
PRECEDENT CONTENT
“[13] The defendant transported 05 frozen tiger individuals, scientific name Panthera tigris; 01 male reproductive organ of the tiger species, scientific name Panthera tigris, which according to the forensic conclusion is a vital body part of a tiger; 41 kg of meat of the tiger species, scientific name Panthera tigris, which according to the forensic conclusion, if the total amount of meat belongs to 01 tiger individual, would mean that tiger individual could not exist;…
…
[16] The forensic conclusion did not determine whether the 01 male tiger reproductive organ belonged to one of the five frozen tigers or not. Since all the exhibits above were destroyed, supplementary forensic examination could not be performed. However, according to the Report on the condition of products and animal health (document page 89), the 05 frozen dead tigers were tiger cubs weighing from 0.99kg to 2.99kg; the 01 male tiger reproductive organ weighed 0.98kg. Thus, based on the weight in kilograms, there is a basis to affirm that the 01 male tiger reproductive organ was not the reproductive organ of one of the 05 frozen tiger cubs, because no tiger species could have a male reproductive organ accounting for 1/2 to 1/4 of its body weight. According to the forensic conclusion, that reproductive organ is a vital body part of a tiger, which means a 6th tiger had to be killed to obtain that reproductive organ for the defendant to transport. This means defendant Q committed the act of transporting 05 tigers and 01 vital body part of a 6th tiger.
…
[18] From the provision of the law, it is clear that merely transporting the vital body parts of 06 or more tiger individuals is already a violation of Point c, Clause 3, Article 244 of the Penal Code. The content of this legal provision aims to handle serious crimes infringing upon the lives of 06 or more tiger individuals. The defendant transporting 05 tiger individuals and 01 vital body part of a 6th tiger individual has infringed upon the lives of 06 tiger individuals, so he must bear the penalty stipulated in Point c, Clause 3, Article 244 of the Penal Code.”
