CASE LAW NO. 66/2023/AL On the determination of the crime “Human Trafficking” (Please note that this image is not related to the specific case being discussed).

CASE LAW NO. 66/2023/AL

On the determination of the crime “Human Trafficking”

Approved by the Judicial Council of the Supreme People’s Court on August 18^th, 2023, and published under Decision No. 364/QĐ-CA dated October 1^st, 2023, by the Chief Justice of the Supreme People’s Court.

Source of the Case Law:

The Appellate Criminal Judgment No. 86/2022/HS-PT dated February 17^th, 2022, by the High People’s Court in Hà Nội regarding the case of “Human Trafficking” involving defendants Trịnh Thị H and Đặng Thị C.

Location of the Case Law’s Content:

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

Summary of the Case Law:

– Case Background:

The defendant engaged in a scheme involving fraudulent misrepresentation. The defendant promised the victim specific benefits, thereby gaining the victim’s trust and securing their voluntary agreement to travel abroad. However, upon arrival, the defendant transferred the victim to another party in exchange for money.

– Legal Resolution:

Pursuant to these facts, the Court must determine that the defendant’s actions constitute the crime of “Human Trafficking” and not the lesser offense of “Organizing for others to illegally flee abroad”.

Relevant Legal Provisions:

– Articles 150 and 349 of the 2015 Penal Code (amended and supplemented in 2017);

– Resolution No. 02/2019/NQ-HĐTP dated January 11^th, 2019, by the Judicial Council 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 persons under 16 years of age of the Penal Code.

Keywords:

“Human trafficking”; “Deception”; “Marriage to a foreigner”.

CASE DETAILS

According to the documents in the case file and the proceedings at the trial, the case details are summarized as follows:

Around August 2019, through the social network Facebook, Trịnh Thị H met a woman named T, approximately 30 years old, from Bạc Liêu Province, who was currently residing in China. T informed H that in Henan Province, China, there were many Chinese men desiring to marry Vietnamese women. T indicated that if anyone wanted to marry a Chinese man, she could facilitate introductions, and for each successful match, T would pay H CNY 40,000 (approximately VND 120,000,000).

Armed with this information, H posted an advertisement in the Facebook group “Chinese-Korean-Vietnamese Marriage Brokerage,” stating: “There are Chinese grooms looking for Vietnamese brides. Anyone sincerely wishing to find happiness by marrying a Chinese man, please contact me.” Bùi Thị N, born in 1991, residing in Y Commune, G District, Hải Dương Province, and a member of the group, responded to the post.

N stated that she had a younger sister who wanted to marry a Chinese man and requested H’s assistance. She provided N1’s phone number for direct contact and guidance to facilitate N1’s marriage to a Chinese man.

On January 3^rd, 2020, H and Đặng Thị C, H’s adoptive mother, visited Ms. Nguyễn Thị N1, born in 1991, in T Commune, K District, Hải Dương Province, to discuss the prospect of marrying a Chinese man. They provided guidance to N1 on preparing necessary documents, including a passport, household registration book, identity card, and a certificate of marital status, for the purpose of applying for a visa to China.

It was agreed that if N1 and her family consented to the marriage, they would receive a bride price of VND 60,000,000 from the Chinese groom’s family. However, Nguyễn Văn T1, N1’s father, did not consent and withheld N1’s documents. Despite this, N1, determined to go to China to marry, contacted H and was directed to Đặng Thị C’s house for a direct discussion.

On the afternoon of January 3^rd, 2020, when N1 arrived at C’s house, she met with H and C, and requested H’s assistance in going to China. H instructed N1 to prepare her citizen identification card so that H could arrange for a passport to facilitate N1’s illegal travel to China, and N1 agreed to this plan.

On January 6^th, 2020, Trịnh Thị H asked her husband, Trần Văn H1, to pick up N1 at the 789 Overpass area in A Ward, H City, Hải Dương Province, and transport her to Hà Nội to obtain a passport. On the morning of January 7^th, 2020, H instructed H1 to hire a taxi to take N1 to Y Guesthouse in L City, Lạng Sơn Province. H did not disclose to H1 the purpose behind obtaining the passport or the reason for hiring the taxi to take N1 to Lạng Sơn.

On January 7^th, 2020, H provided Đặng Thị C with VND 4,500,000 through a taxi driver, whose name and address remain unknown. This amount was to cover the taxi fare from Hải Dương to Lạng Sơn and to pay for accommodation and meals at Y Guesthouse for both C and N1.

The remaining amount was converted to CNY 300 to cover additional expenses on the journey to Henan Province, China. Concurrently, H contacted Vi Văn N2, the owner of Y Guesthouse, to arrange a room and hire a vehicle to transport C and N1 to Henan Province, China.

On January 8^th, 2020, Trịnh Thị H facilitated Ms. Nguyễn Thị N1’s illegal border crossing into China via a trail in L1 District, Lạng Sơn Province, while Đặng Thị C entered China legally using a passport through the Chi Ma Border Gate in Lạng Sơn Province. Upon reaching the designated meeting point in China, C and N1 continued by car to Henan Province, China, where they met a Chinese man, whose identity is unknown, intended to be N1’s husband. However, upon meeting him, N1 refused to marry him.

H insisted that N1 stay at the man’s house to meet another potential suitor, warning that if N1 refused, she would have to repay all the expenses incurred by H for bringing her to China. N1 agreed to stay but, after waiting for an extended period without meeting anyone else, she went to a friend’s house in Guangxi Province, China, and reported to Chinese police in order to return to Vietnam.

On March 26^th, 2020, the Dongxing Entry-Exit Border Inspection Station in Guangxi, China, handed over Ms. Nguyễn Thị N1 to the Móng Cái International Border Gate Border Guard Station in Quảng Ninh Province, Vietnam.

In the First-instance Criminal Judgment No. 18/2021/HS-ST dated April 5^th, 2021, the People’s Court of Hải Dương Province ruled:

1. Declared the defendants Trịnh Thị H and Đặng Thị 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 Penal Code, sentenced the defendant Trịnh Thị H to 09 (nine) years of imprisonment, with the term commencing from the date of detention on October 16^th, 2020.

– Pursuant to Point d, Clause 2, Article 150; Points s, Clauses 1 and 2, Article 51; Article 17; Article 58; Article 38 of the Penal Code, sentenced the defendant Đặng Thị C to 07 (seven) years of imprisonment, with the term commencing from the date of temporary detention on September 30^th, 2020.

2. Regarding civil liability: Ordered defendants Trịnh Thị H and Đặng Thị C to jointly compensate Ms. Nguyễn Thị N1 for damages to her honor, dignity, and mental suffering in the amount of VND 30,000,000 (thirty million). Specifically, defendant Đặng Thị C must compensate VND 10,000,000 (ten million), and defendant Trịnh Thị H must compensate VND 20,000,000 (twenty million).

Additionally, 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^th, 2021, defendant Đặng Thị C filed an appeal for a reduced sentence.

– On April 16^th, 2021, defendant Trịnh Thị H filed an appeal for a reduced sentence.

– On April 21^st, 2021, the victim, Ms. Nguyễn Thị N1, filed a late appeal requesting an increase in compensation for honor, dignity, and mental suffering to VND 80,000,000 and additional compensation for other losses amounting to VND 100,000,000.

In the Decision No. 36/2021/HSPT-QĐ dated July 17^th, 2021, the High People’s Court in Hà Nội accepted Ms. Nguyễn Thị N1’s late appeal.

At the appellate session:

The defendants and the victim, represented by Mr. Nguyễn Văn T1, presented as follows:

– The defendants C and H collectively stated:

The defendants were unaware of the law and unintentionally committed the crime. Their intention was to assist N1 in finding a husband, a desire that N1 herself shared. Following the commission of the crime, the defendants sincerely confessed, demonstrated remorse, and exhibited good personal backgrounds, having no prior legal violations.

They also faced difficult family circumstances, being the primary breadwinners responsible for raising small children. Additionally, Defendant C’s parents had been awarded numerous Medals and Certificates of Merit. In light of these factors, the defendants requested the court to consider reducing their sentences.

– The victim stated:

She confirmed that at today’s trial, the defendants had compensated her the full amount of VND 30,000,000 as ruled by the first-instance judgment, and she voluntarily withdrew her entire appeal. She also requested the court to consider reducing the sentences for the defendants.

The representative of the High People’s Procuracy in Hà Nội, after analyzing the case details, evaluating the nature and severity of the criminal acts committed by the defendants, and considering the aggravating and mitigating circumstances applied by the first-instance court, found that the first-instance court correctly identified the defendants and their crimes, and the sentences were appropriate.

At the appellate trial, the defendants had fully compensated the victim VND 30,000,000 as ruled by the first-instance judgment, and the victim voluntarily withdrew her entire appeal.

Due to new mitigating circumstances, the representative suggested the court apply the mitigating circumstance specified at Point b, Clause 1, Article 51 of the Penal Code for the defendants and apply Articles 348, 355, and 357 of the Penal Procedure Code to dismiss the appellate trial of the victim’s appeal; accept the defendants’ appeals; amend the first-instance judgment of the People’s Court of Hải Dương Province by reducing the defendants’ sentences by 6 months to 1 year.

Based on the publicly examined documents and evidence at the appellate trial; based on the results of the trial, and fully considering the evidence, the arguments of the Procurator, the victim, and the defendants:

COURT’S OPINION:

[1] The procedural actions and decisions of the investigative, prosecutorial, and judicial authorities, the Investigators, the Procurators, and other procedural officers at the first-instance level complied with the authority, sequence, and procedures stipulated by the Penal Procedure Code.

During the investigation, prosecution, and trial, the defendants and the victim did not raise any objections or complaints regarding the actions and decisions of the procedural authorities and officers. Therefore, the actions and decisions of the procedural authorities and officers were lawful.

[2] Regarding the offense: Based on the testimonies of the defendants, Ms. Nguyễn Thị N1, the witnesses, the handover record between the Móng Cái Police and the R Organization, the repatriation certificate from the Móng Cái Immigration Management Station, and other evidence in the case file that was examined at the trial, it is established that defendants H and C committed the offense as follows:

[3] H knew through T, a resident of Bạc Liêu Province married to a Chinese man, that Chinese men were interested in marrying Vietnamese women. T informed H that she would pay H 40,000 CNY (approximately VND 120,000,000) for each woman brought to China.

H and C discussed and agreed on a plan: H would arrange for individuals, coordinate travel and accommodations, and make contact with recipients in China, while C would handle translation, escorting individuals to China, delivering them to recipients, and returning with payment to H, with C’s compensation to be settled later.

During the trial, H and C essentially confirmed this arrangement, with minor variations from the investigation stage: H indicated that after N1’s father refused permission for her to marry a Chinese man, tasks were divided; C asserted that H instructed her to take N1 to China without prior discussion.

Consequently, H and C had the motive and intent to transport Vietnamese women to China for delivery to T, who facilitated marriages with Chinese men in exchange for financial compensation. Neither H nor C possessed legal authorization for arranging marriages with foreigners and did not intend to aid others in illegal migration. In this instance, the victim, N1, was treated by defendants H and C as an object for monetary exchange.

[4] To achieve their objective, on January 3^rd, 2020, H and C visited N1’s residence to discuss her desire to marry a Chinese man, employing specific tactics: they portrayed Chinese men as kind and life in China as comfortable. They assured N1 that if she agreed to marry a Chinese man, she would meet the groom in Vietnam, receive a betrothal gift of VND 60,000,000, and be able to financially support her family.

H admitted to these assertions, while C acknowledged mentioning the kindness of Chinese men and the comfortable life in China during the trial, but denied knowledge of other specifics. Despite objections from her parents, N1 was convinced by H and C’s arguments and agreed to proceed.

On January 6^th, 2020, H arranged for N1 to travel to Hà Nội to obtain a passport. The following day, January 7, 2020, H arranged for N1’s journey to Lạng Sơn and facilitated her visa process, also providing money to C to meet N1 at Y Guesthouse in Lạng Sơn. On January 8^th, 2020, H and C escorted N1 to Henan Province, China, where they handed her over to T2, an associate of T.

According to N1, C received 1,000 CNY at that time, with the remaining amount intended to be sent to H later. T2 then took N1 to meet a prospective husband, but N1 refused upon realizing he was not the person shown in photographs by H and C in Vietnam. Feeling deceived, N1 alerted her family and contacts in China, leading to her reporting the situation to Chinese authorities.

On March 26^th, 2020, N1 was returned to Vietnamese authorities at the Móng Cái Border Gate in Quảng Ninh, as documented in the trafficking report detailing her movement to China.

[5] Therefore, H and C employed deceptive tactics by informing N1 that marrying a Chinese man would involve meeting the groom in Vietnam, completing marriage procedures, receiving a betrothal gift, enjoying a comfortable life, and supporting her family financially. Believing these assurances, N1 accompanied C to China, where she was effectively sold by H and C for monetary gain.

C asserted that H did not fully disclose the plan to take N1 to China and that she merely assisted as a translator and handled money. However, according to statements and confessions obtained during the investigation, C admitted to conspiring with H to transport women to China for marriage, aiming to profit from earning CNY 40,000 per woman. C acknowledged that she and H did not disclose their true intentions to N1.

On January 3, 2020, at C’s residence, when N1 mentioned her father’s disapproval, resulting in her lack of necessary marriage documents, H informed N1 that without documents, they would need to “go illegally,” and instructed C to transport N1, which C agreed to do. C also advised N1 that having proper documents would be preferable.

Subsequently, H2 in Lạng Sơn facilitated N1’s illegal crossing into China through an alternative route. During the trial, C confirmed that her statements during the investigation were voluntary and truthful, and that she had not been coerced, guided, or mistreated.

Consequently, it is established that H and C conspired to transport women to China for financial gain, knowing N1 lacked legal documents yet proceeding to hand her over to others in exchange for money. Despite having previously worked in Macau as a domestic helper and lacking knowledge of routes in China, C deceived N1 by falsely promising a comfortable life with a Chinese husband, thereby enticing her to travel with H and C.

[6] Based on the actions described of the defendants and the resulting trafficking of N1 to China, where she was handed over to a Chinese man for financial gain, the first-instance court’s conviction of the defendants for “Human Trafficking” under Point d, Clause 2, Article 150 of the Penal Code, along with the sentences imposed, was justified and appropriate.

[7] Considering the appeals of the defendants:

[8] During the trial, the first-instance court assessed the defendants as simple accomplices, noting that defendant Trịnh Thị H played a more significant role than defendant Đặng Thị C.

The court also evaluated that there were no aggravating circumstances but considered mitigating factors such as sincere declarations, remorseful attitudes, both defendants having good personal backgrounds without prior legal violations, and defendant C’s parents being awarded with numerous Medals and Certificates of Merit. Therefore, imposing a heavier penalty on defendant H compared to defendant C was deemed appropriate.

[9] At today’s trial, the defendants influenced their families to compensate the victim with the full amount of VND 30,000,000 as stated in the first-instance judgment. The victim confirmed receiving this amount during the trial and voluntarily withdrew her entire appeal, also requesting the appellate court to reduce the defendants’ sentences.

Given these new mitigating circumstances outlined in Points b, Clause 1, and Clause 2 of Article 51 of the Penal Code, and considering that the victim partially erred by willingly accompanying H and C to China with the intention of marrying a local man in the hope of improving her life, the appellate court finds grounds to apply Article 54 of the Penal Code to partially reduce the defendants’ sentences in accordance with the law.

[10] Considering the victim’s appeal:

[11] At today’s trial, the victim’s authorized representative confirmed that the victim had received the full compensation amount of VND 30,000,000 from the defendants and voluntarily withdrew the entire appeal. Recognizing this as the voluntary decision of the victim, the appellate court, in accordance with the recommendation of the Supreme People’s Procuracy representative in Hà Nội and pursuant to Article 348 of the Penal Procedure Code, decided to dismiss the victim’s appeal.

[12] Based on the above analysis, the appellate court finds sufficient grounds to accept the defendants’ appeals. The viewpoint presented by the representative of the Supreme People’s Procuracy at the trial is well-founded and duly accepted.

[13] Other parts of the first-instance judgment that were not appealed or protested against shall take legal effect upon the expiration of the appeal or protest period. Neither the defendants nor the victim are obligated to pay appellate criminal court fees.

[14] In light of the foregoing, pursuant to Article 348, Article 355, Article 357 of the Penal Procedure Code, the Law on Fees and Charges; and Resolution No. 326/2016/UBTVQH14 dated December 30^th, 2016, of the National Assembly Standing Committee on court fees and charges.

IT IS DECIDED:

– Dismiss the appellate review of the appeal of Ms. Nguyễn Thị N1.

– Accept the appeals for sentence reduction of defendants Trịnh Thị H and Đặng Thị C.

1. Declare defendants Trịnh Thị H and Đặng Thị C guilty of “Human Trafficking”.

– Pursuant to Point d, Clause 2, Article 150; Points b, s, Clause 1, Clause 2, Article 51; Article 17; Article 58; Article 38 of the Penal Code. Sentence defendant Trịnh Thị H to 08 (eight) years in prison, with the prison term commencing from the date of temporary detention, October 16^th, 2020.

– Pursuant to Point d, Clause 2, Article 150; Points b, s, Clause 1, Clause 2, Article 51; Article 17; Article 54; Article 58 of the Penal Code. Sentence defendant Đặng Thị C to 06 (six) years in prison, with the prison term commencing from the date of temporary detention, September 30^th, 2020.

2. Regarding civil liability:

Confirm that the defendants have completed compensation to the victim in the amount of VND 30,000,000 as decided in the first-instance criminal judgment.

3. The defendants and the victim are not required to pay appellate criminal court fees.
4. Other parts of the first-instance judgment that were not appealed or protested against shall take legal effect upon the expiration of the appeal or protest period.

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

CONTENT OF THE CASE LAW:

“[3] … Consequently, H and C had the motive and intent to transport Vietnamese women to China for delivery to T, who facilitated marriages with Chinese men in exchange for financial compensation. Neither H nor C possessed legal authorization for arranging marriages with foreigners and did not intend to aid others in illegal migration. In this instance, the victim, N1, was treated by defendants H and C as an object for monetary exchange.

…

[5] … H and C conspired to transport women to China for financial gain, knowing N1 lacked legal documents yet proceeding to hand her over to others in exchange for money. Despite having previously worked in Macau as a domestic helper and lacking knowledge of routes in China, C deceived N1 by falsely promising a comfortable life with a Chinese husband, thereby enticing her to travel with H and C.

[6] Based on the actions described of the defendants and the resulting trafficking of N1 to China, where she was handed over to a Chinese man for financial gain, the first-instance court’s conviction of the defendants for “Human Trafficking” under Point d, Clause 2, Article 150 of the Penal Code, along with the sentences imposed, was justified and appropriate.”

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