Precedent No. 66/2023/AL was adopted by the Council of Justices of the Supreme People’s Court on August 18, 2023, and published under Decision 364/QD-CA dated October 1, 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 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 has value in clarifying legal provisions that have different interpretations; analyzing and explaining legal issues and events; and pointing out principles, handling methods, and legal norms to be applied in a specific case or demonstrating equity for issues not yet specifically regulated by law;
– It is of a standard nature;
– It has value in guiding the uniform application of the law in adjudication.
2. Precedent No. 66/2023/AL on determining the charge of “Human Trafficking”
2.1. Source of the Precedent
Appellate Criminal Judgment No. 86/2022/HS-PT dated February 17, 2022, of the High People’s Court in Hanoi regarding the “Human Trafficking” case against defendants Trinh Thi H and Dang Thi C.
Location of the precedent content:
Paragraphs 3, 5, and 6 of the “Court’s Assessment” section.
2.2. Overview of the precedent content
– Precedent situation:
The defendant commits acts of deception and promises of benefits to the victim, causing the victim to trust and voluntarily follow the defendant abroad, after which the defendant hands over the victim to another person to receive money.
– Legal solution:
In this case, the Court must determine the defendant’s charge as 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 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 Criminal Code.
Keywords of the precedent:
“Crime of human trafficking”; “Deception”; “Marrying a foreigner”.
CASE CONTENT:
According to the documents in the case file and the proceedings 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 informed H that in Henan province, China, there were many Chinese men who wanted to marry Vietnamese women; if anyone had a need to marry a Chinese husband, H should introduce them. For each person brought to China, T would pay H 40,000 Chinese Yuan (about 120,000,000 VND).
After learning this information, H posted in the Facebook group “China – Korea – Vietnam Marriage Brokerage” with the content: “Currently, there are Chinese grooms who want to marry Vietnamese women. If any bride sincerely wants to get married and find happiness, please contact.” H was then messaged by Ms. Bui Thi N, born in 1991, residing in Y commune, G district, Hai Duong province, who was also a member of the group, saying “N has a younger sister who wants to marry a Chinese husband, please help,” and provided the phone number of Ms. N1 to directly contact and guide N1 on marrying a Chinese person.
On January 3, 2020, H along with Dang Thi C (H’s foster mother) went to the house of Ms. Nguyen Thi N1, born in 1991, in T commune, K district, Hai Duong province, to discuss marrying a Chinese person and instructed N1 to prepare documents such as: Passport, household registration book, identity card, and certificate of single status to apply for a visa to enter China. If Ms. N1 and her family agreed, they would receive a bride price of 60,000,000 VND from the groom’s family in China. However, Mr. Nguyen Van T1 (Ms. N1’s 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 instructed by H to come to Dang Thi C’s house to talk directly. On the afternoon of January 3, 2020, when Ms. N1 arrived at C’s house, she met H and C and asked H to find a way for her to go to China. H instructed Ms. N1 to prepare an identity card so H could make a passport for N1 to enter China “illegally,” and 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 789 overpass area, A ward, H city, Hai Duong province, and take her to Hanoi to make a passport for Ms. N1. On the morning of January 7, 2020, H continued to ask Mr. H1 to hire a taxi to take Ms. N1 to the Y guesthouse in L city, Lang Son province. H did not tell H1 the purpose of making the passport or hiring the car for Ms. N1 to go to Lang Son.
On January 7, 2020, H gave C 4,500,000 VND through a taxi driver (name and address not remembered) to pay for the car from Hai Duong to Lang Son and for the guesthouse and meals of C and N1 at the Y guesthouse. With the remaining money, C exchanged 300 Yuan to use for travel expenses to Henan province, China. At the same time, H also contacted Mr. Vi Van N2, the owner of the Y guesthouse, to arrange a room and hire a car to take C and N1 to Henan province, China.
On January 8, 2020, Trinh Thi H took Ms. Nguyen Thi N1 to cross into China illegally via a border trail in L1 district, Lang Son province, while C entered China using a passport through the Chi Ma border gate, Lang Son province. At the rendezvous point in China, C and N1 continued by car to Henan province, China, to meet a Chinese man (name unknown) intended for Ms. N1 to marry. However, when they met, Ms. N1 did not agree. H told N1 to stay at this man’s house to wait and meet another groom; if she did not agree, N1 would have to repay all the expenses H had spent to bring N1 to China. N1 agreed to stay, but since she waited a long time and could not meet another person, N1 went to an acquaintance’s house in Guangxi province, China, and then reported to the Chinese police to be returned to Vietnam. On March 26, 2020, the Dongxing Immigration Inspection Station – Guangxi – China handed Ms. Nguyen Thi N1 over to the Mong Cai International Border Gate Border Guard Post, Quang Ninh province.
* In the First Instance Criminal Judgment No. 18/2021/HS-ST dated April 5, 2021, the People’s Court of Hai Duong province decided:
1. Declare defendants Trinh Thi H and Dang Thi C guilty of “Human Trafficking”.
– Pursuant to point d, clause 2, Article 150; point s, clause 1, Article 51; Article 17; Article 58; Article 38 of the Criminal Code for defendant Trinh Thi H. Sentence defendant Trinh Thi H to 09 (nine) years in prison, the term of the prison sentence starts from the date of temporary detention, October 16, 2020.
– Pursuant to point d, clause 2, Article 150; point s, clause 1 and clause 2, Article 51; Article 17; Article 58; Article 38 of the Criminal Code for defendant Dang Thi C. Sentence Dang Thi C to 07 (seven) years in prison, the term of the prison sentence starts from the date of temporary detention, September 30, 2020.
2. Regarding civil liability: Compel defendant Trinh Thi H and defendant Dang Thi C to jointly compensate for damage to honor, dignity, and mental distress to Ms. Nguyen Thi N1 in the amount of 30,000,000 VND (thirty million VND); specifically, defendant Dang Thi C must compensate 10,000,000 VND (ten million VND), and defendant Trinh Thi H must compensate 20,000,000 VND (twenty million VND).
In addition, the first-instance judgment also ruled on the handling of exhibits, court fees, and the right to appeal according to legal regulations.
– On April 16, 2021, defendant Dang Thi C filed an appeal requesting a reduction in the sentence.
– On April 16, 2021, defendant Trinh Thi H filed an appeal requesting a reduction in the sentence.
– On April 21, 2021, the victim, Ms. Nguyen Thi N1, filed an overdue appeal requesting an increase in the compensation for honor, dignity, and mental distress to 80,000,000 VND and requesting compensation for other losses in the amount of 100,000,000 VND.
In the Decision to Resolve Overdue Appeal 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 appellate trial:
The defendants and the victim, Ms. Nguyen Thi N1, represented by Mr. Nguyen Van T1, presented as follows:
– Defendants C and H both presented the following content:
The defendants lacked legal knowledge and accidentally committed the crime; they only wished to help Ms. N1 find a husband, and Ms. N1 herself also wanted the defendants to help with that. After committing the crime, the defendants always made honest declarations and showed a repentant attitude; they both have good personal backgrounds and have never violated the law before; the defendants’ families are in difficult circumstances, and both are the main laborers in their families raising young children. Defendant C has biological parents who were awarded Orders, Medals, and Certificates of Merit. The defendants requested the Trial Panel to consider reducing their sentences.
– The victim presented:
Confirmed at the trial today that the defendants have compensated the victim the entire amount of 30 million VND as ruled by the first-instance criminal judgment, and the victim voluntarily requested to withdraw the entire content of the appeal; at the same time, she requested the Trial Panel to consider reducing the defendants’ sentences.
The representative of the High People’s Procuracy in Hanoi, after analyzing the content of the case and assessing the nature and danger of the criminal acts committed by the defendants, as well as the aggravating and mitigating circumstances applied by the First Instance Court, found that the First Instance Court had tried the right people for the right crime and that the sentences applied were appropriate. At the appellate trial, since the defendants compensated the victim for the full 30 million VND as ruled and the victim voluntarily withdrew her appeal, there are new circumstances. Therefore, it was requested that the Trial Panel apply the mitigating circumstance in point b, clause 1, Article 51 of the Criminal Code for the defendants and apply Article 348, Article 355, and Article 357 of the Criminal Procedure Code to terminate the appellate proceedings for the victim’s appeal; accept the defendants’ appeals; and amend the first-instance criminal judgment of the People’s Court of Hai Duong Province toward reducing part of the defendants’ sentences (reduction from 6 months to 01 year in prison).
Based on the documents and evidence examined publicly at the appellate trial; based on the results of the debate at the trial, on the basis of a full and comprehensive review of the evidence, the opinions of the Prosecutor, the victim, and the defendants.
COURT’S ASSESSMENT:
[1] The procedural acts and decisions of the investigating authorities, prosecution, investigators, prosecutors, and other procedural participants during the investigation, prosecution, and trial at the first-instance level were carried out correctly regarding authority, order, and procedures as prescribed by the Criminal Procedure Code. During the investigation, prosecution, and at the trial, the defendants and the victim had no opinions or complaints about the acts or decisions of the procedural agencies or procedural participants. Therefore, the acts and decisions of the procedural agencies and procedural participants are legal.
[2] Regarding the charge: Based on the testimonies of the defendants, Ms. N1, witnesses, the Minutes of handover between Mong Cai Police and Organization R, the Certificate of Return from the Mong Cai Immigration Control Station, and other documents and evidence in the case file examined at the trial, there are grounds to determine that defendants H and C committed the following criminal acts:
[3] H knew that Chinese men had a need to marry Vietnamese women through a person named T, originally from Bac Lieu province, who married a Chinese man. T told H that for every person brought to China, T would pay H 40,000 Yuan (equivalent to 120,000,000 VND). H discussed and agreed with C: H would be responsible for finding people, arranging travel, food, and lodging, contacting the recipient in China, and negotiating the price; C would be in charge of translating, taking the people to China, handing them over, and receiving money to bring back to H, with C’s payment to be agreed upon later. This content was basically admitted by defendants H and C at the trial, with the only difference from the investigation stage being: defendant H claimed that only after Ms. N1’s father disagreed with N1 marrying a Chinese man did H and C divide the work; C claimed that H only asked C to take Ms. N1 to China without any discussion. Thus, H and C had the motive and purpose of bringing Vietnamese women to China to hand them over to T for T to sell to Chinese men as wives in exchange for money; H and C had no matchmaking function in marrying foreigners, H and C had no intention of organizing for others to flee abroad, and in this case, the victim, Ms. N1, was considered by defendants C and H as an object of exchange for money.
[4] To achieve the above purpose, on January 3, 2020, H and C went to Ms. N1’s house to ask about her wishes and persuade Ms. N1 to go to China to get married, using the trick of: telling Ms. N1 that Chinese men treat their wives very well and life there is very happy. If Ms. N1 agreed to marry a Chinese husband, she would be shown the groom’s face and marriage procedures would be done in Vietnam; Ms. N1 would receive a bride price of 60,000,000 VND and money to send home to her family. This content was admitted by defendant H, while defendant C admitted at the trial that she said Chinese men were pampering and life was happy, but knew nothing of other details. Ms. N1 heard H and C say so and agreed even though her parents did not agree to let her marry a Chinese husband. On January 6, 2020, H sent someone to pick up Ms. N1 to go to Hanoi to make a passport. On January 7, 2020, H arranged to take Ms. N1 to Lang Son, while also making a visa, giving money to C, and catching a bus for C to go to Lang Son to meet Ms. N1 at the Y guesthouse. On January 8, 2020, H and C took Ms. N1 to Henan province, China, to hand her over to T2 (T’s person), and C received 1,000 Yuan (according to Ms. N1’s information), with the remaining amount to be transferred to H later. Ms. N1 was taken by T’s person to meet a man intended to be her husband, but she did not agree because he was not the person H and C introduced in the photo while in Vietnam. Ms. N1 realized she had been tricked, so she contacted her family and acquaintances in China to report to the Chinese authorities. On March 26, 2020, Ms. N1 was handed over to the Vietnamese Border Guard at the Mong Cai – Quang Ninh border gate; the document recorded the handover of a person sold to China.
[5] Thus, defendants H and C, by the trick of telling Ms. N1 that marrying a Chinese man would involve meeting the groom, completing marriage procedures in Vietnam, receiving a bride price, having a happy life, and receiving money to send to her family… Ms. N1 believed it was true, so she followed C to China and was sold by H and C for money. Defendant C argued that H did not inform her of the specific content of bringing Ms. N1 to China but only helped H as an interpreter and to bring back money. However, in the minutes of testimonies and self-declarations during the investigation, C admitted that C and H discussed bringing women to China to get married for money and had assigned tasks for each person; that bringing a person to China would yield 40,000 Yuan, which C and H did not tell N1; on January 3, 2020, at C’s house, when Ms. N1 said her father did not agree and she lacked documents to marry a Chinese husband, H told Ms. N1 that if she lacked documents, they would take her “illegally” and asked C to take Ms. N1, to which C agreed; C told Ms. N1 that if she had documents, it would be better; H2 in Lang Son was the person who drove Ms. N by another route to China. At the trial, defendant C admitted that during the investigation, she was not coerced, prompted, or tortured, and her declarations were voluntary and truthful. Therefore, there is a basis to determine that H and C discussed bringing women to China to sell for profit; C knew Ms. N1 did not have sufficient legal documents but still took Ms. N1 to China and handed her over to another person to receive money. C stated she previously worked as a helper in Macau but only stayed indoors and did not know the routes in China, yet she still told Ms. N1 that marrying a Chinese man was happy to entice and trick Ms. N1 into agreeing for C and H to take her.
[6] Based on the acts the defendants committed as described above, and based on the consequence that Ms. N1 was taken to China by 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 trying the defendants for the crime of “Human Trafficking” under point d, clause 2, Article 150 of the Criminal Code and applying sentences within the penalty bracket is appropriate.
[7] Considering the appeals of the defendants:
[8] The First Instance Court, in the trial process, assessed the case as simple joint-offending, identifying defendant Trinh Thi H as having a higher role than defendant Dang Thi C. Simultaneously, based on the assessment that the defendants did not face aggravating circumstances and were granted mitigating circumstances such as: honest declaration, repentant attitude, both defendants have good personal backgrounds and no prior violations of the law, and defendant C has biological parents awarded Orders, Medals, and Certificates of Merit; thus, applying a higher sentence for defendant H than for defendant C is correct.
[9] At the trial today, the defendants influenced their families to compensate the victim for the full amount of 30 million VND as ruled by the first-instance judgment. The victim directly received it at the trial, confirmed it was correct, and voluntarily withdrew her entire appeal; at the same time, she requested the Trial Panel to reduce the defendants’ sentences. Since there are new mitigating circumstances at the trial for the defendants as prescribed in point b, clause 1, and clause 2 of Article 51 of the Criminal Code, and evaluating this case, it is found that the victim also bore part of the fault by voluntarily allowing H and C to take her to China for the purpose of marrying a local man, hoping for a better life and prosperity. The Trial Panel finds grounds to apply Article 54 of the Criminal Code to reduce part of the defendants’ sentences in accordance with the law.
[10] Considering the victim’s appeal:
[11] At the trial today, the victim and the victim’s authorized representative admitted they had received the full amount of 30 million VND compensated by the defendants and voluntarily requested to withdraw the entire appeal. Seeing that this is the voluntary will of the victim, the Trial Panel, based on the proposal of the representative of the High People’s Procuracy in Hanoi and pursuant to Article 348 of the Criminal Procedure Code, decides to terminate the appellate trial regarding the victim’s appeal.
[12] Summarizing the above analyses, the Appellate Trial Panel finds grounds to accept the defendants’ appeals. The view of the representative of the High People’s Procuracy at the trial is grounded and accepted.
[13] Other parts of the first-instance judgment not subject to appeal or protest took legal effect as of the expiration of the appeal and protest period. The defendants and the victim do not have to pay appellate court fees.
[14] For the above reasons, pursuant to Article 348, Article 355, and Article 357 of the Criminal Procedure Code, the Law on Fees and Charges; and Resolution No. 326/2016/UBTVQH14 dated December 30, 2016, of the National Assembly Standing Committee on court fees and charges.
DECISION:
– Terminate the appellate trial for the appeal of Ms. Nguyen Thi N1.
– Accept the appeals for sentence reduction from defendants Trinh Thi H and Dang Thi C.
1. Declare defendants Trinh Thi H and Dang Thi C guilty of “Human Trafficking”.
– Apply point d, clause 2, Article 150; points b, s, clause 1, clause 2, Article 51; Article 17; Article 58; Article 38 of the Criminal Code. Sentence defendant Trinh Thi H to 08 (eight) years in prison, the term starts from the date of temporary detention/custody, October 16, 2020.
– Apply point d, clause 2, Article 150; points b, s, clause 1, clause 2, Article 51; Article 17; Article 54; Article 58 of the Criminal Code. Sentence Dang Thi C to 06 (six) years in prison, the term starts from the date of temporary detention/custody, September 30, 2020.
2. Regarding civil liability:
Confirm that the defendants have completed the compensation of civil liability to the victim in the amount of 30 million VND according to the decision of the first-instance criminal judgment.
3. The defendants and the victim do not have to pay appellate criminal court fees.
4. Other decisions of the first-instance judgment not subject to appeal or protest took legal effect as of the expiration of the appeal and protest period.
The appellate judgment takes legal effect from the date of pronouncement.
PRECEDENT CONTENT
“[3]… H and C had the motive and purpose of bringing Vietnamese women to China to hand them over to T for T to sell to Chinese men as wives in exchange for money; H and C had no matchmaking function in marrying foreigners, H and C had no intention of organizing for others to flee abroad, and in this case, the victim, Ms. N1, was considered by defendants C and H as an object of exchange for money.
…
[5]… there is a basis to determine that H and C discussed bringing women to China to sell for profit; C knew Ms. N1 did not have sufficient legal documents but still took Ms. N1 to China and handed her over to another person to receive money. C stated she previously worked as a helper in Macau but only stayed indoors and did not know the routes in China, yet she still told Ms. N1 that marrying a Chinese man was happy to entice and trick Ms. N1 into agreeing for C and H to take her.
[6] Based on the acts the defendants committed as described above, and based on the consequence that Ms. N1 was taken to China by 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 trying the defendants for the crime of “Human Trafficking” under point d, clause 2, Article 150 of the Criminal Code and applying sentences within the penalty bracket is appropriate.”
