Precedent No. 65/2023/AL was adopted by the Council of Justices of the Supreme People’s Court on August 18, 2023, and promulgated under Decision No. 364/QD-CA dated October 01, 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 regarding specific cases selected by the Council of Justices of the Supreme People’s Court and promulgated by the Chief Justice of the Supreme People’s Court as precedents for Courts to study and apply in adjudication. (Article 1 of Resolution No. 04/2019/NQ-HDTP)
Selected precedents must meet the following criteria:
– Contain value in clarifying legal provisions that have different interpretations, analyzing and explaining legal issues and facts, and pointing out principles, handling methods, and legal norms to be applied in a specific case or demonstrating justice for issues not yet specifically regulated by law;
– Be exemplary;
– Have guiding value for the uniform application of law in adjudication.
2. Precedent No. 65/2023/AL on criminal prosecution for the crime of “Human Trafficking”
2.1. Source of the precedent
First-instance criminal judgment No. 42/2018/HSST dated December 03, 2018, of the People’s Court of Dong Hai District, Bac Lieu Province, regarding the “Human Trafficking” case against defendants Duong Van S, Pham Hong K, Duong Thi T1, and Tran Ich C.
Location of the precedent’s content:
Paragraphs 9, 10, and 11 of the “Court’s Assessment” section.
2.2. Overview of the precedent’s content
– Precedent situation:
The defendant, through an intermediary, made an offer to the victim regarding a job, which the victim accepted. Subsequently, the defendant transferred the victim to another person, forcing the victim to perform work against their will for the purpose of seeking profit.
– Legal solution:
In this case, the defendant must be prosecuted for criminal responsibility for the crime of “Human Trafficking”.
Legal provisions related to the precedent:
– Article 150 of the Criminal Code of Vietnam 2015 (amended and supplemented in 2017);
– Resolution No. 02/2019/NQ-HDTP dated January 11, 2019, of the Council of Justices 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 persons under 16 years old of the Penal Code.
Keywords of the precedent:
“Crime of human trafficking”; “Transfer of person for the purpose of seeking profit”.
CASE CONTENT:
According to the documents in the case file and the proceedings at the trial, the case content is summarized as follows:
Due to the need for people to be delivered to fishing vessels to enjoy commission money, defendant Duong Van S collaborated with an individual named G (last name and specific address in Ho Chi Minh City unknown) to find people to deliver to defendant S at an agreed price. G used the social network Facebook to post recruitment for labor (as long-distance bus attendants) with high salaries. Mr. Bui Van D, Mr. Le Duc M, and Mr. Tran Van T went on Facebook to find work, saw the information posted by G, and contacted for a job. On July 26, 2017, the three men arrived at Mien Dong Bus Station, where G arranged for a vehicle to pick them up and take them directly to defendant S’s house in Hamlet 1, Town A, District D, Bac Lieu Province. G delivered D, T, and M to defendant S and received the sum of 09 million VND.
After receiving the people, defendant S directed defendant Pham Hong K to provide labor contracts for D, T, and M to sign for working at sea. Since the initial agreement was to work as bus attendants, the men did not agree to sign. At this point, defendants S, K, and C used weapons (including homemade knives, iron bars, and Thai knives) to threaten that if they did not agree to sign the contracts, they must pay 10,000,000 VND; if they did not have it, they would be detained. The victims were taken to the house of Mrs. Ha Thi L (S’s biological mother) to be held. Defendant S assigned K and C to take turns guarding them, for the purpose of S finding fishing vessels in need of people to deliver them for commission; meanwhile, S assigned Duong Thi T1 (S’s younger sister) to directly supervise this guarding.
During the detention, defendant S directed defendants K and T1 to take the property and personal belongings of the victims for safekeeping. Defendant T1 requested D, T, and M to hand them over, but they refused, so defendant K held a knife and threatened, “Do you guys want to hand it over voluntarily or let me take it myself?”. Out of fear because they knew the defendants had weapons, the victims handed over property including: backpacks, clothes, 03 mobile phones, 03 wallets containing 03 identity cards, and 02 ATM cards in the names of Tran Van T and Bui Van D. After obtaining the property, defendant K handed it back to S. S took 700,000 VND from Mr. M’s wallet and 1,000,000 VND from Mr. D’s wallet, gave 120,000 VND to C, gave 330,000 VND to K, and kept the remaining amount for personal spending.
At about 10:00 PM on July 27, 2017, Mr. M and Mr. T escaped from the place of detention through a ventilation duct; subsequently, at about 05:00 AM on July 28, 2017, Mr. D also managed to escape. All three men went to Ganh Hao Border Guard Station to report the incident.
During the investigation at the Dong Hai District Police Investigation Agency, the defendants all admitted their criminal acts, which were consistent with the statements of the victims, related persons, and the crime scene.
– Case exhibits included: Mobile phones, leather wallets, backpacks, and clothes, which the victims had fully received back; 01 yellow-handled knife 21 cm long with an 11 cm metal blade (one side sharpened), the widest part of the blade being 02 cm; 01 homemade knife 49 cm long, with the handle and blade made of metal, the blade being 35 cm long (one side sharpened), the widest part of the blade being 03 cm; 01 rectangular hollow metal bar, one end wrapped in cloth, 63 cm long, 04 cm wide, 02 cm high, currently managed by the Dong Hai District Civil Judgment Enforcement Bureau. The amount of 980,000 VND is deposited by Dong Hai District Police at Bank N, District D branch.
– Regarding civil liability: Mr. Bui Van D requested compensation of 1,000,000 VND and Mr. Le Duc M requested 700,000 VND.
Defendant Tran Ich C provided 1,700,000 VND as restitution; defendants Duong Van S, Pham Hong K, and Duong Thi T1 each paid 400,000 VND for restitution.
In Indictment No. 17/CT-VKSĐH dated April 09, 2018, the Dong Hai District People’s Procuracy prosecuted defendants Duong Van S, Pham Hong K, Tran Ich C, and Duong Thi T1 for the crime of “Human Trafficking” under point dd, clause 2, Article 150 of the 2015 Penal Code (amended and supplemented in 2017). Additionally, defendants Duong Van S, Pham Hong K, and Duong Thi T1 were also charged with “Property Extortion” under clause 1, Article 135 of the 1999 Penal Code (amended and supplemented in 2009).
At the trial, the Prosecutor maintained the prosecution stance and requested the Trial Panel to base the decision on Resolution No. 41/2017/QH14 dated June 20, 2017, of the National Assembly regarding the implementation of Penal Code No. 100/2015/QH13, which was amended and supplemented by Law No. 12/2017/QH14. For defendant Duong Van S: Applying point dd, clause 2, Article 150; points b, s, clause 1, Article 51; Article 54; Article 38 of the 2015 Penal Code to sentence the defendant to 07 to 08 years in prison; applying clause 1, Article 135 of the 1999 Penal Code; point s, clause 1, Article 51, Article 38 of the 2015 Penal Code, sentencing the defendant to 01 year 06 months to 02 years in prison; applying Article 55 of the 2015 Penal Code for a combined sentence of 08 years 06 months to 10 years in prison. For defendant Pham Hong K: Applying point dd, clause 2, Article 150; points b, s, clause 1, Article 51; Article 54; Article 38 of the 2015 Penal Code, sentencing the defendant to 06 to 07 years in prison; applying clause 1, Article 135 of the 1999 Penal Code; point s, clause 1, Article 51; Article 38 of the 2015 Penal Code, sentencing the defendant to 01 year to 01 year 06 months in prison; applying Article 55 of the 2015 Penal Code for a combined sentence of 07 years to 08 years 06 months in prison. For defendant Duong Thi T1: Applying point dd, clause 2, Article 150; points b, s, clause 1, Article 51; clause 1, clause 2, Article 54; Article 38 of the 2015 Penal Code, sentencing the defendant to 03 to 04 years in prison; applying clause 1, Article 135 of the 1999 Penal Code; point s, clause 1, Article 51; Article 38 of the 2015 Penal Code, sentencing the defendant to 01 year to 01 year 06 months in prison; applying Article 55 of the 2015 Penal Code for a combined sentence of 04 years to 05 years 06 months in prison. For defendant Tran Ich C: Applying point dd, clause 2, Article 150; points b, s, clause 1, Article 51; clause 1, clause 2, Article 54; Article 38 of the 2015 Penal Code, sentencing the defendant to 03 to 04 years in prison. The Prosecutor proposed that the Trial Panel not apply additional penalties to the defendants.
Final words: The defendants admitted their criminal acts, stating that due to illiteracy and poor legal awareness, they engaged in crime, and requested the Trial Panel for a reduced sentence.
COURT’S ASSESSMENT:
[1] Based on the case content and the documents in the case file debated at the trial, the Trial Panel assesses as follows:
[2] Regarding procedural matters:
[3] Regarding the legality of procedural acts and decisions in investigation, prosecution, and adjudication:
[4] Regarding the procedural acts and decisions of the Dong Hai District Police Investigation Agency, Investigators, Dong Hai District People’s Procuracy, and Prosecutors during the investigation and prosecution, they were performed in accordance with the authority and sequence of procedures stipulated in the Criminal Procedure Code. During the investigation, prosecution, and at the trial, none of the defendants, victims, or persons with related rights and obligations expressed opinions or complaints about the acts and decisions of the procedure-conducting agencies or persons. Therefore, the performed acts and decisions of the procedure-conducting agencies and persons are all legal.
[5] Regarding the absence of the victims:
[6] At today’s trial, the victims are absent; however, considering that their statements and testimony in the case file are very clear, their absence does not hinder the trial. Therefore, the Trial Panel applies Article 292 of the Criminal Procedure Code to proceed with the trial in the absence of the victims.
[7] Case content:
[8] The confession of the defendants at the trial is consistent with each other, with the statements of the victims, the persons with related rights and obligations, and other documents and evidence in the case file, providing sufficient grounds to conclude:
[9] Recognizing that fishing vessels in District D needed many people to work at sea (fishermen), defendant Duong Van S collaborated with an individual named G to find people to supply to vessel owners for commission money.
[10] The person named G offered jobs as bus attendants with high salaries, which Mr. D, T, and M accepted. Upon receiving the victims, G transported them to deliver to defendant S and received 9,000,000 VND. Defendant S directed his accomplices, defendants K, T1, and C, to take turns guarding them while he searched for fishing vessels to deliver them to for commission.
[11] The criminal acts committed by the defendants are very dangerous to society, infringing upon the honor, dignity, and human freedom stipulated by the Constitution and laws, and infringing upon social order and safety. The defendants were aware that human trafficking is a violation of the law, but for personal gain and by exploiting the gullibility of the victims, the defendants acted with direct intentional fault. The defendants are persons with full legal capacity to bear criminal responsibility for the crimes they caused.
[12] The defendants’ acts occurred in July 2017 and are regulated under the aggravating circumstance “against multiple persons” as stipulated in point e, clause 2, Article 119 of the 1999 Penal Code (amended and supplemented in 2009) with a penalty range of 05 to 20 years. However, under the 2015 Penal Code, the act falls under the framing circumstance “from 02 to 05 persons” as stipulated in point dd, clause 2, Article 150 with a penalty range of 8 to 15 years, which is lighter than the 1999 Penal Code. Therefore, it should be applied in favor of the defendants according to clause 3, Article 7 of the 2015 Criminal Procedure Code and point h, clause 2, Article 2 of Resolution No. 41/2017/QH14 dated June 20, 2017, of the National Assembly. Thus, the aforementioned acts of the defendants satisfy the elements of the crime “Human Trafficking” as stipulated in point dd, clause 2, Article 150 of the 2015 Penal Code.
[13] Additionally, during the detention, defendant S directed defendants K and T1 to use weapons to threaten and take personal belongings and property of D, T, and M, including backpacks, clothes, 03 mobile phones, and 03 wallets (inside T’s wallet was an identity card in T’s name; inside M’s wallet was an identity card, 01 ATM card in M’s name, and 700,000 VND; inside D’s wallet was an identity card, 01 ATM card in D’s name, and 1,000,000 VND). The valuation of the property seized by the defendants was 10,300,200 VND. Thus, the total value of the property is 12,000,200 VND. Therefore, the act of using violence to threaten the seizure of others’ property by defendants S, T1, and K satisfies the elements of the crime “Property Extortion” as stipulated in clause 1, Article 135 of the 1999 Penal Code.
[14] Regarding aggravating and mitigating circumstances for criminal responsibility of the defendants:
[15] The defendants have no prior criminal records or convictions; during the investigation, prosecution, and at trial, they made sincere declarations and showed remorse. Regarding the crime of “Human Trafficking,” although the victims did not request it, the defendants voluntarily provided partial restitution to the victims. These are mitigating circumstances for criminal responsibility stipulated in points b and s, clause 1, Article 51 applied to the defendants. Defendants S and K have 02 mitigating circumstances under clause 1, Article 51, thus clause 1, Article 54 of the Penal Code is applied to decide on a penalty below the lowest level of the applied penalty frame. For defendants T1 and C, although they were accomplices, they played an insignificant role, were first-time offenders, faced difficult circumstances, and were influenced by defendant S, who is an older brother, leading to a spontaneous crime. Therefore, it is necessary to apply clause 1 and clause 2, Article 54 of the 2015 Penal Code to apply a penalty level lower than the adjacent frame of the applied article.
[16] In this case, defendant S’s role was dangerous, directly directing other defendants; defendant K was the most active assistant and directly used a dangerous weapon to threaten the victims, so the penalty for S and K should be higher than for T1 and C. With the above analysis, a strict penalty is deemed necessary, isolating the defendants from social life for a certain period to provide conditions for education in law compliance and respect for community rules.
[17] Regarding additional penalties: According to clause 4, Article 150 of the 2015 Penal Code, “the offender may also be fined from 20,000,000 VND to 100,000,000 VND, put under probation, or prohibited from residence for 01 to 05 years, or have part or all of their property confiscated.” However, according to the documents and confessions of the defendants at the trial, they are freelance workers with difficult economic conditions. Therefore, the Trial Panel decides not to apply additional penalties to the defendants.
[18] Exhibits in the case include:
[19] Mobile phones, leather wallets, backpacks, and clothes, which the Investigation Agency returned to the victims according to point b, clause 3, Article 106 of the Criminal Procedure Code, which is appropriate.
[20] Regarding the amount of 980,000 VND that Dong Hai District Police deposited at Bank N, District D branch, of which 480,000 VND belongs to defendant S and 500,000 VND to defendant K, this money is not related to the case and should be returned to the defendants. However, to ensure civil judgment enforcement, it should continue to be managed for future enforcement.
[21] For 01 yellow-handled knife 21 cm long with an 11 cm metal blade (one side sharpened), widest part 02 cm; 01 homemade knife 49 cm long, metal handle and blade, blade 35 cm long (one side sharpened), widest part 03 cm; 01 rectangular hollow metal bar, one end wrapped in cloth, 63 cm long, 04 cm wide, 02 cm high: these exhibits no longer have use value, so clause 2, Article 106 is applied for confiscation and destruction.
[22] Regarding civil liability: Mr. Bui Van D requested defendants S, K, and T1 to compensate 1,000,000 VND, and Mr. Le Duc M requested 700,000 VND. At the trial, the defendants agreed to compensate, so based on Article 5 of the Civil Procedure Code; Articles 584, 585, 586, and 592 of the 2015 Civil Code, defendants Duong Van S, Duong Thi T1, and Pham Hong K are each ordered to compensate Mr. Bui Van D the amount of 333,400 VND; defendants Duong Van S, Duong Thi T1, and Pham Hong K are each ordered to compensate Mr. Le Duc M 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 Dong Hai District Civil Judgment Enforcement Bureau for restitution, so Mr. M shall receive 400,000 VND, Mr. D shall receive 400,000 VND, and Mr. T shall receive 400,000 VND. Defendant Tran Ich C has paid 1,700,000 VND for restitution, so victims Mr. T, Mr. M, and Mr. D shall each receive 566,600 VND.
[24] It is considered that the Prosecutor’s stance on the charges, penalty levels, aggravating and mitigating circumstances, and other related issues in the case are grounded and accepted.
[25] Regarding criminal and civil court fees: The defendants shall pay according to legal regulations.
For these reasons;
DECISION:
1. Declare: Defendants Duong Van S, Pham Hong K, Tran Ich C, and Duong Thi T1 guilty of the crime of “Human Trafficking”. Defendants Duong Van S, Pham Hong K, and Duong Thi T1 guilty of the crime of “Property Extortion”.
1.1. Applying 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 2015 Penal Code (amended and supplemented in 2017); Resolution No. 41/2017/QH14 dated June 20, 2017, of the National Assembly. Sentence defendant Duong Van S to 07 years in prison for “Human Trafficking”;
Applying clause 1, Article 135 of the 1999 Penal Code; point s, clause 1, Article 51, Article 38 of the 2015 Penal Code (amended and supplemented in 2017). Sentence defendant Duong Van S to 01 year 06 months in prison for “Property Extortion”. Applying Article 55 of the 2015 Penal Code (amended and supplemented in 2017), the combined sentence for the two crimes the defendant must serve is 08 (eight) years 06 (six) months; the time for serving the penalty counts from July 29, 2017.
1.2. Applying 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 2015 Penal Code (amended and supplemented in 2017); Resolution No. 41/2017/QH14 dated June 20, 2017, of the National Assembly. Sentence defendant Pham Hong K to 06 (six) years in prison for “Human Trafficking”;
Applying clause 1, Article 135 of the 1999 Penal Code; point s, clause 1, Article 51, Article 38 of the 2015 Penal Code (amended and supplemented in 2017). Sentence defendant Pham Hong K to 01 (one) year in prison for “Property Extortion”. Applying Article 55 of the 2015 Penal Code (amended and supplemented in 2017). The combined sentence for the two crimes the defendant must serve is 07 (seven) years. The time for serving the penalty counts from July 29, 2017.
1.3. Applying 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 2015 Penal Code (amended and supplemented in 2017); Resolution No. 41/2017/QH14 dated June 20, 2017, of the National Assembly. Sentence defendant Duong Thi T1 to 03 (three) years in prison for “Human Trafficking”;
– Applying clause 1, Article 135 of the 1999 Penal Code; point s, clause 1, Article 51, Article 38 of the 2015 Penal Code (amended and supplemented in 2017). Sentence defendant Duong Thi T1 to 01 (one) year in prison for “Property Extortion”. Applying Article 55 of the 2015 Penal Code (amended and supplemented in 2017). The combined sentence for the two crimes the defendant must serve is 04 (four) years. The time for serving the penalty counts from the date the defendant is arrested to serve the sentence.
1.4. Applying 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 2015 Penal Code (amended and supplemented in 2017); Resolution No. 41/2017/QH14 dated June 20, 2017, of the National Assembly. Sentence defendant Tran Ich C to 03 (three) years in prison for “Human Trafficking”. The time for serving the penalty counts from July 29, 2017.
2. Regarding civil liability:
Applying Article 42 of the Penal Code; Articles 584, 585, 586, and 592 of the 2015 Civil Code. Compel defendants Duong Van S, Duong Thi T1, and Pham Hong K to each compensate Mr. Bui Van D 333,400 VND; compel defendants Duong Van S, Duong Thi T1, and Pham Hong K to each compensate Mr. Le Duc M 233,400 VND.
Additionally, Mr. Tran Van T, Mr. Le Duc M, and Mr. Bui Van D shall each receive 966,600 VND. Victims and defendants shall receive and pay money at the Bureau of Enforcement.
3. Exhibits:
Applying Article 106 of the Criminal Procedure Code: Confiscate and destroy 01 yellow-handled knife 21 cm long, 11 cm metal blade (one side sharpened), widest part 02 cm; 01 homemade knife 49 cm long, metal handle and blade, 35 cm blade (one side sharpened), widest part 03 cm; 01 rectangular hollow metal bar, one end wrapped in cloth, 63 cm long, 04 cm wide, 02 cm high. These exhibits are currently managed by the Dong Hai District Civil Judgment Enforcement Bureau.
Regarding the amount of 980,000 VND that Dong Hai District Police deposited at Bank N, District D branch, of which 480,000 VND belongs to defendant S and 500,000 VND to defendant K, continue to temporarily hold to ensure civil judgment enforcement.
4. Regarding first-instance criminal court fees:
Applying Article 136 of the 2015 Criminal Procedure Code; Resolution No. 326/2016/UBTVQH14 dated December 30, 2016, of the National Assembly Standing Committee on court fees and charges. Compel each defendant to pay 200,000 VND at the Bureau of Enforcement. Civil court fees: defendants S, T1, and K each pay 300,000 VND.
From the date an application for judgment enforcement is filed by the judgment creditor until the payment is completed, the judgment debtor shall also be liable for monthly interest on the delayed payment at the interest rate stipulated in corresponding to the period of delayed enforcement, as regulated in clause 2, Article 468 of the Civil Code corresponding to the period of delayed enforcement.
In case the judgment is enforced according to Article 2 of the Law on Civil Judgment Enforcement, the judgment creditor and debtor have the right to agree on enforcement, voluntarily enforce, or be subject to coerced enforcement according to Articles 6, 7, 7a, 7b, and 9 of the Law on Civil Judgment Enforcement; the statute of limitations for judgment enforcement is stipulated in Article 30 of the Law on Civil Judgment Enforcement.
The defendants and other participants in the proceedings present at the trial have the right to appeal the judgment within 15 days from the date of pronouncement. Those absent from the trial have the right to appeal within 15 days from the date they receive the judgment or the date the judgment is validly served.
PRECEDENT CONTENT
“[9] Recognizing that fishing vessels in District D needed many people to work at sea (fishermen), defendant Duong Van S collaborated with an individual named G to find people to supply to vessel owners for commission money.
[10] The person named G offered jobs as bus attendants with high salaries, which Mr. D, T, and M accepted. Upon receiving the victims, G transported them to deliver to defendant S and received 9,000,000 VND. Defendant S directed his accomplices, defendants K, T1, and C, to take turns guarding them while he searched for fishing vessels to deliver them to for commission.
[11] The criminal acts committed by the defendants are very dangerous to society, infringing upon the honor, dignity, and human freedom stipulated by the Constitution and laws, and infringing upon social order and safety. The defendants were aware that human trafficking is a violation of the law, but for personal gain and by exploiting the gullibility of the victims, the defendants acted with direct intentional fault. The defendants are persons with full legal capacity to bear criminal responsibility for the crimes they caused.”
