CASE LAW DRAFT NO. 01a/2024 On the crime of “Organizing Illegal Border Crossing” (This image is showing 4 defendants related to the specific case being discussed)

CASE LAW DRAFT NO. 01a/2024

On the crime of “Organizing Illegal Border Crossing”

Approved by the Judges’ Council of the Supreme People’s Court on [date] [month] 2024 and published under Decision No. [number]/QĐ-CA on [date] [month] 2024 by the Chief Justice of the Supreme People’s Court.

Source of the Case Law:

The Appellate Criminal Judgment No. 358/2024/HS-PT dated May 17^th, 2024, of the High People’s Court in Hồ Chí Minh City regarding the case of “Organizing Illegal Border Crossing” involving the defendant Trần Văn L and accomplices.

Location of the Case Law’s Content:

Paragraphs 9, 18, 19 and 20 of the “Court’s Opinion” section.

Summary of the Case Law:

– Factual Background:

The defendant engaged in the preparation of fishing boats, recruitment of fishermen, and organizing the illegal border crossing of fishermen from Vietnam’s territorial waters to foreign territorial waters to catch seafood for sale back in Vietnam for profit.

– Legal Resolution:

In this case, the Court must determine that the defendants committed the crime of “Organizing Illegal Border Crossing”.

Relevant Legal Provisions:

– Clause 3, Article 348 of the 2015 Penal Code, as amended and supplemented in 2017.

Keywords: 

“Organizing Illegal Border Crossing”; “Fishermen”; “Territorial waters”; “Vietnamese sea borders”; “Illegal fishing for sale back in Vietnam”.

CASE DETAILS

According to the content of the first-instance judgment, the criminal acts of the defendants are summarized as follows:

On May 16^th, 2022, two fishing boats with registration numbers KG-94294-TS and KG-94295-TS owned by Trần Văn L were seized by Malaysian authorities while illegally fishing in Malaysian waters. L, wanting to redeem these boats without detection and penalty from Vietnamese authorities and desiring to continue fishing in Malaysia, enlisted Trần Minh T to find and introduce someone to create new boat registration documents to replace those for boats KG-94294-TS and KG-94295-TS upon their return to Vietnam.

T agreed and introduced Nguyễn Bảo D2 (born in 1988, residing on N Street, A Ward, R City, Kiên Giang Province) to L to prepare new registration documents for boats KG-93949-TS and KG-93971-TS. Simultaneously, L directly assigned Phạm Chí D to manage boats KG-93949-TS and KG-93971-TS, recruit fishermen, and advance them money for the illegal fishing trip to Malaysia.

Additionally, L directed T to find contacts in Malaysia to purchase information about Malaysian Navy patrols to inform D and L to evade detection. T contacted Mai Thị B (born in 1982, address in A Neighborhood, H Ward, C Town, Bình Phước Province – currently residing in Malaysia) to purchase the information. B informed that the price was VND 20,000,000 per month, with a commission of VND 5,000,000 per month for T. T agreed and informed L and D.

After discussions, at the end of August 2022, L, T, and Lê Phước H3 (born on December 29, 1979, residing in I Neighborhood, M Quarter, S Town, H District, Kiên Giang Province) went to Malaysia to redeem the boats with registration numbers KG-94294-TS and KG-94295-TS. Upon redeeming these boats, L instructed H3 to sail them back to Cà Mau Province, erase the old registration numbers, and repaint the new registration numbers KG-93949-TS and KG-93971-TS. H3 complied with L’s instructions.

In early September 2022, H3 sailed the boats to S Port, Đ River, Cà Mau Province. At this time, L instructed D to meet D2 to collect the new registration documents and two tracking devices and bring them to Đ River to install on the boats.

Subsequently, D recruited Trần Văn N (born in 1987, residing in T Hamlet, P Commune, R City, Kiên Giang Province), Trần Văn T5 (born in 1978, residing in T Hamlet, P Commune, R City, Kiên Giang Province), and Nguyễn Văn T6 (born in 1983, residing in L Hamlet, L Commune, G District, Tiền Giang Province) for the illegal fishing trip to Malaysia, offering advanced payments of VND 20,000,000 to VND 25,000,000 per person, a 6/4 profit split, and 100-day fishing trips.

D also encouraged them to invite their relatives for the trip. N, T5, and T6 agreed and went to Đ River, Cà Mau Province to help D clean the boats.

On September 6^th, 2022, Trần Văn N recruited five people, Trần Văn T5 recruited one person, Lê Phước H3 recruited seven people, and Phạm Chí D recruited eleven people (including N, T5, and H3) to board the boats with registration numbers KG-94294-TS and KG-94295-TS (changed to KG-93949-TS and KG-93971-TS) for the illegal fishing trip to Malaysia. Before departure, D gathered all the fishermen and clearly stated the illegal fishing trip to Malaysia, allowing those who agreed to it to stay on board and those who did not to return home.

All fishermen agreed to go. D then handed T7 (the tugboat captain) two sets of documents and the list of fishermen to present at S1 Border Station, Cà Mau Province. D then navigated the boats to the area between 7°N and 6°N, where he turned off the tracking devices to evade detection by Vietnamese authorities of the boats’ crossing into foreign waters for illegal fishing. Upon reaching 6°N, L called D (via satellite phone) to instruct T5 and H3 to erase the last digits of the boat numbers and continue to 4°N to start fishing.

After operating for more than a month, on October 18, 2022, D piloted the pair of boats back to Đ River, Cà Mau Province to sell fish. Upon reaching the area 5°N, L called D and instructed T5 and H3 to redraw the previously erased final digits of the pair of boats’s numbers. Subsequently, D steered the boats to the area between 6°N and 7°N, where the Vietnam Region 4 Coast Guard discovered and inspected the boats, finding them lacking a fishing license, life jackets, and a captain’s license.

As a result, they were fined VND 27,900,000. D called L to arrange for the payment of the fine. After paying the fine, D continued steering the boats to the area 7°N, where he ordered H3’s boat to anchor and transferred 13 crew members from his boat to Hậu’s boat. D and the remaining crew then proceeded to S Port, Đ River, Cà Mau Province, selling the fish for approximately VND 1,700,000,000.

About a week later, D, along with H3, continued to steer the pair of boats KG-93949-TS, KG-93971-TS to illegally fish in Malaysia. Upon reaching the area 6°N, D ordered the deactivation of the tracking devices and the erasure of the boat’s final digits, proceeding to fish in Malaysian waters. During the operation, due to H3’s failure to follow D’s instructions, D demoted H3 to a fisherman and promoted Nguyễn Hữu T8 (born in 1982, residing in S Hamlet, P Commune, R City, Kiên Giang Province) to captain of the “male” boat KG-93971-TS.

After approximately 15 days of fishing, T called to inform D that the Malaysian Navy was patrolling the area between 3°N and 4°N and advised D to retreat to 1°N in Malaysian waters to avoid detection. About three days later, T further informed D that the Malaysian Navy was patrolling the area between 6°N and 7°N in the overlapping waters of Vietnam and Malaysia, advising D to move the boats back to 3°N and 4°N to continue fishing.

Additionally, T requested D to send 10 fishermen from H4 (unidentified) back to Vietnam. D agreed and transferred them to the boat KG-93971-TS.

On November 16^th, 2022, D piloted the pair of boats along with 37 fishermen to the area between 3°N and 4°N to commence fishing. Unaware of the maritime boundaries between Malaysia and Indonesia, D steered the boats into Indonesian waters, where they were detected and captured by the Indonesian Navy at coordinates 3°48’N – 104°38’E and detained at Camp B, Indonesia.

During the investigation:

1. All fishermen confessed: The pair of boatsKG-93949-TS and KG-93971-TS were owned by Trần Văn L and managed by Phạm Chí D; D directly led them to fish illegally in Malaysia and provided an advance of VND 20,000,000 per person. D was also the one who deactivated the tracking devices and altered the boat’s numbers to evade detection by Vietnamese authorities.
2. Phạm Chí D confessed: T had persuaded him to pilot L’s boats for illegal fishing in Malaysia. When he met L, L said: “You just drive for me, live with me like you live with anyone else; if we have vegetables, we eat vegetables; if we have porridge, we eat porridge; I won’t abandon you. My boats have permits, so don’t worry”. Before the pair of boats KG-93949-TS and KG-93971-TS departed for illegal fishing in Malaysia, T was aware of the 25 fishermen on board because D had informed T via phone. L had assigned T to manage D and the fishermen and to ensure the boats were not captured while fishing in Malaysia (Exhibits 562 to 564).

In early September 2022, after agreeing to work as a captain for Trần Văn L (boat KG-93949-TS), D requested that Lê Phước H3 be appointed as the captain of the “male” boat KG-93971-TS, to which L agreed. L instructed D to recruit fishermen for both boats to fish in Malaysian waters.

D personally recruited 11 individuals, while Lê Phước H3 recruited five. A total of 25 people, including D, went to Malaysia for the first fishing trip. Before departing for Malaysia, D convened a meeting with all the crew, informing them about the trip in L’s presence. L asked them to deactivate all tracking devices upon reaching 7°N and to erase the final digits of the boats’ numbers at 6°N before proceeding to 4°N in Malaysian waters for fishing.

During the operation in Malaysia, T constantly monitored and informed D about the Malaysian Navy’s patrol schedules and locations to help D evade capture. When T informed D about the Malaysian Navy’s patrol at 6°N near 7°N, D asked T if he could move to 4°N where the catch was good, to which T agreed. D and H3 piloted the boats to 3°N near 4°N and commenced fishing, but were captured by the Indonesian Navy after about an hour (Exhibits 558, 567, 568, 569, 570, etc.).

3. Trần Văn L confessed:

*According to the interrogation record (Exhibit 519): The plan to fish in Malaysia was proposed by T, to which L agreed. “T called D to meet with me to discuss the plan for illegal fishing in Malaysia”, “D assured me to hand over the boats to him to fish in Malaysia for a few months to repay debts”. L told D: “You’re in trouble now, I trust you, but be safe and don’t go too deep; if there’s any problem, T will notify you to retreat immediately”.

* According to the interrogation record (Exhibit 525), L stated: “I created new boat registration documents with numbers KG-93949-TS and KG-93971-TS to replace the old ones KG-94294-TS and KG-94295-TS so that when I redeemed the boats KG-94294-TS and KG-94295-TS to Vietnam, I could erase their numbers, redraw the new ones KG-93949-TS and KG-93971-TS, and report to the Border Guard Station without being detected for illegal fishing in Malaysia. I would then continue using these new boats for illegal fishing in Malaysia to repay debts”.

*According to the interrogation record (Exhibits 521 to 522), L stated: T introduced D2 to meet L to create two new sets of boat documents. When D2 met with me and T, I asked D2, “How much would it cost to create a new set of boat documents to replace the old ones?” D2 replied, “The cost is VND 400,000,000.” I responded, “That’s quite high; can you reconsider?” D2 said, “Then I will include one black box.” I replied, “Only if you add two black boxes will I agree,” and D2 consented, requesting an advance payment of VND 200,000,000.

At this point, I called T and asked, “Is it okay that D2 demands VND 200,000,000 in advance?” T answered, “It’s fine; go ahead and give it to him because he’s preparing the documents for my mentor.” Afterward, when T, H3, and I went to Malaysia to retrieve the boats, D2 informed me that the documents were ready, so I told D to meet D2 to collect the documents.

In Exhibit 528, L stated: “On September 6, 2022, when the boats KG-93949-TS and KG-93971-TS departed for Malaysia for fishing, D informed me that there were more than 20 fishermen on these boats. After more than 15 days of fishing, while I was having coffee at TM cafe, T said, ‘There are more than 18 fishermen left; the rest were sent back by D because they were not suitable. Rest assured, D will manage’.

In Exhibit 529, L stated: “The four monitoring devices on the two boats KG-93949-TS and KG-93971-TS consisted of two old devices from the boats KG-94294-TS and KG-94295-TS, which were supplemented with two new devices by D2 as part of the new documents for me to manage the boats”; “T proposed to take the boats and 28 fishermen to Malaysia for illegal fishing, and I agreed with T’s proposal.”

Additionally, in Exhibits 517, 522 to 524, 530, 554, L admitted to the act of “Organizing Illegal Border Crossing”; in Exhibit 556, L self-reported (written by Đinh Hoàng X, L’s brother-in-law, at L’s request). L confessed: After agreeing to hand over the boats KG-93949-TS and KG-93971-TS to D and T for managing illegal fishing in Malaysian waters, I assigned specific responsibilities to D and T as follows:

D was responsible for managing the boats and recruiting fishermen, directly advancing money to the fishermen. T was responsible for finding ticket buyers, gathering information in Malaysia, monitoring Navy information for D to fish in Malaysian waters, and informing D to avoid capture if the Navy appeared. As for me (L), I only provided money for D to advance to the fishermen for the fishing trip to Malaysia.

4. Trần Minh T confessed:(Exhibits610, 611, 614, 616, 617, 618, 645) T persuaded D to pilot the boats KG-93949-TS and KG-93971-TS for Trần Văn L to engage in illegal fishing in Malaysia. T introduced D2 to L to create documents for the boats KG-93949-TS and KG-93971-TS. T also contacted an individual named B in Malaysia to purchase information about the Malaysian Navy’s patrols (known as port information) in Malaysian waters to inform L and D to avoid capture. All these tasks were carried out at L’s request. T was also directly involved with L and H3 in going to Malaysia to retrieve L’s boats KG-94294-TS and KG-94295-TS, which had been seized in Malaysia.
5. Trần Văn N confessed:(Exhibit649-653) D persuaded me to participate in illegal fishing in Malaysia, while the boats belonged to Mr. L. Before departing for Malaysia, we gathered at Mr. L’s house near the L6 Cemetery in Kiên Giang Province, then headed to Đ River, Cà Mau, and subsequently to Malaysia for fishing. The trip was prearranged, including purchasing port information tickets, advancing money to the fishermen, and clearly informing everyone of the goal of fishing in Malaysian waters, with the condition of returning ashore once every 100 days to allow everyone to decide whether to join or not.

Regarding the boats with registration numbers KG-93949-TS and KG-93971-TS, during the fishing operation in Malaysian waters, on November 16^th, 2022, while operating in the overlapping waters between Malaysia and Indonesia, they were seized by Indonesian authorities. The Indonesian authorities confiscated the boats KG-93949-TS, KG-93971-TS, along with all equipment and documents on board.

On August 2^nd, 2023, the investigative agency issued an official request to the Forensic Science Division of the Police of Kiên Giang Province to examine and extract electronic data from one (1) Samsung Galaxy phone belonging to Phạm Chí D. The extraction yielded nine (9) images related to the capture of L’s boats in Indonesia.

On October 21^st, 2023, the investigative agency issued a decision to request the Forensic Science Division of the Police of Kiên Giang Province to conduct a digital forensic examination of two (2) phones seized from Trần Văn L. The extraction yielded numerous documents, images, and messages from L’s iPhone 6S related to the discussions and organization of the illegal fishing trip to Malaysia. The iPhone 11 did not provide sufficient grounds for examination.

During the investigation, the following articles had been seized:

– One (1) Samsung S2 A03 mobile phone with IMEI1: 358482475090120, IMEI2: 359583965090121, used by Phạm Chí D.

– One (1) iPhone 6S mobile phone, model MKTK2LL/A, IMEI 353263079526064, with a cracked screen, used, and one (1) iPhone 11 Pro Max, used, both belonging to Trần Văn L, sealed in one (1) envelope with the signature of Examiner Thái Minh H5 and the red round seal of the Forensic Science Division of the Police of Kiên Giang Province.

– One (1) Nokia mobile phone, black, used, belonging to Trần Minh T.

Twelve (12) passports issued by D2 in Indonesia with the following numbers: Q00274533 (Trần Vũ D3), Q00274542 (Võ Văn Bi B), Q00274607 (Trần Minh N1), Q00274549 (Bùi Văn Riêng E), Q00274535 (Trần Văn T5), Q00274605 (Hồ C), Q00274606 (Trần Minh N2), Q00274528 (D), Q00274550 (Danh Thanh T9), Q00274604 (Danh Minh D4), Q00274532 (D), Q00274573 (Phạm Chí D).

In the First-instance Criminal Judgment No. 04/2024/HS-ST dated January 29^th, 2024, of the People’s Court of Kiên Giang Province, it was adjudicated as follows:

1. Declaring the defendants Trần Văn L, Phạm Chí D, Trần Minh T, and Trần Văn N guilty of the crime of “Organizing Illegal Border Crossing”.
2. Pursuant toArticle 17; Article 38; Point s Clause 1, Clause 2 Article 51; Points a, g Clause 1 Article 52; Point a Clause 3 Article 348 of the Penal Code:

Sentencing the defendant Trần Văn L to 08 (eight) years of imprisonment. The sentence term is calculated from the date of temporary detention (October 14^th, 2023).

3. Pursuant toArticle 17; Article 38; Point s Clause 1 Article 51; Points a, g Clause 1 Article 52; Point a Clause 3 Article 348 of the Penal Code:

– Sentencing the defendant Phạm Chí D to 07 (seven) years of imprisonment. The sentence term is calculated from the date of temporary detention (October 14^th, 2023).

– Sentencing the defendant Trần Minh T to 07 (seven) years of imprisonment. The sentence term is calculated from the date of temporary detention (December 27^th, 2023).

4. Pursuant toArticle 17; Article 38; Point s Clause 1 Article 51; Point a Clause 1 Article 52; Clause 2 Article 54; Point a Clause 3 Article 348 of the Penal Code:

Sentencing the defendant Trần Văn N to 01 (one) year of imprisonment. The sentence term is calculated from the date the defendant begins serving the sentence.

Additionally, the First-instance Judgment also decided on judicial measures, first-instance court fees, and the right to appeal in accordance with the law.

On February 1^st, 2024, the defendant Trần Minh T filed an appeal requesting a reduction of the sentence.

On February 1^st, 2024, the defendant Phạm Chí D filed an appeal requesting a reduction of the sentence.

On February 5^th, 2024, the defendant Trần Văn L filed an appeal with the following content:

The first-instance court convicted the defendant of “Organizing Illegal Border Crossing”, which does not accurately reflect the defendant’s actions. The defendant’s conduct constituted the crime of “Organizing and brokering Illegal Entry”, but the defendant should only bear partial responsibility because the defendant is the boat owner and was unaware of the actions committed by the co-defendants T and D.

The defendant requested reconsideration of the charges, a reduction of the sentence, and an investigation into the possible “Fraudulent appropriation of property” by Trần Minh T, Mai Thị B, and other related individuals.

At the appellate trial:

– Defendant Trần Văn L stated: The defendant maintained the appeal against the first-instance judgment and denied the criminal behavior attributed to the defendant as declared by the first-instance court. The defendant admitted to being the owner of the boats KG-94294-TS and KG-94295-TS, which were used for fishing in Malaysia and seized before meeting T and D.

The defendant acknowledged carrying money and traveling with T and H3 to Malaysia to retrieve the boats KG-94294-TS and KG-94295-TS back to Vietnam, but did not directly receive the boats, only observed from a distance, thus asserting that the boats KG-93949-TS and KG-93971-TS were not the defendant’s boats.

Moreover, the defendant did not instruct T or request T to ask a person named D3 to create new boat documents as T had confessed, nor did the defendant hire D to manage the defendant’s boats. The defendant L asserted that the boats KG-93949-TS and KG-93971-TS, which D and the fishermen were caught with in Indonesia, were not the defendant’s boats and requested the Appellate Panel to vacate the first-instance judgment for further investigation.

– Defendant Trần Văn D5 stated: The defendant acknowledged that the first-instance court’s conviction of the defendant for “Organizing Illegal Border Crossing” was justified, accurate in identifying the defendant, and correct in the charges without any wrongful accusation. The defendant confirmed that the defendant’s testimony, as concluded by the first-instance court, accurately reflected the defendant’s and co-defendants’ criminal conduct.

The defendant D5 requested that, in addition to the mitigating circumstances considered by the first-instance court, the defendant should be granted further leniency for voluntarily surrendering and actively cooperating with the investigation to clarify the case; the defendant is the primary breadwinner for the family. Therefore, the defendant requested the Appellate Panel to reduce the sentence to facilitate the defendant’s reintegration into the community and to support the family facing significant difficulties.

– Defendant Trần Văn D5 stated: The defendant acknowledged the contents of the first-instance judgment and the charges that declared the defendant guilty of “Organizing Illegal Border Crossing.” The defendant confirmed that on multiple illegal fishing trips in Malaysian waters on L’s boats, there were a total of 26 fishermen. The defendant retrieved the new boat documents from a person named D3 upon L’s request via phone.

L instructed the defendant (through phone calls) to perform specific tasks such as turning off the tracking devices on the boats before entering Malaysian waters for illegal fishing to avoid detection by Vietnamese authorities, erasing and repainting the boat’s registration numbers before and after the trips, and managing the money advanced to the fishermen. Therefore, L’s claim that L did not hire the defendant to manage the boats KG-93949-TS and KG-93971-TS (after they were repaired and had new documents from the boats KG-94294-TS and KG-94295-TS) is not true.

Before agreeing to work on the boats for L, the defendant met with T and L. Fearing arrest for illegal fishing in Malaysia (as the defendant D5 had just been released after being detained in Malaysia for illegal fishing), the defendant was hesitant to accept the job. However, T and L assured D5 that they had fully purchased the Malaysian Navy information tickets and reassured the defendant that L would take care of everything.

This reassurance led D5 to accept L’s offer. However, when the defendant and the fishermen on L’s boats were arrested, L did not fulfill the promises, causing frustration for the defendant and the defendant’s wife. As a result, the defendant’s wife, Từ Phạm Thúy L1, submitted a “Petition for Relief” to the Department of Foreign Affairs of Kiên Giang Province and the Border Guard Command of Kiên Giang Province, detailing L’s actions and requesting assistance.

This ultimately led to the discovery of the case. Therefore, the defendant D5 requested additional leniency for voluntarily surrendering and actively cooperating with the investigation to clarify the case. The defendant is the primary breadwinner for the family and requested the Appellate Panel to reduce the sentence to facilitate the defendant’s reintegration into the community and to support the family facing significant difficulties.

– Defendant Trần Minh T stated: The defendant maintains the reasons and requests for appeal as previously mentioned in the appeal. The defendant acknowledges that the first-instance court’s declaration that the defendant committed the crime of “Organizing Illegal Border Crossing” is accurate and appropriate, without any wrongful accusation. The details of the criminal behavior of the defendant and the other defendants, as outlined in the first-instance judgment, are correct.

Therefore, the defendant does not appeal against the conviction but only requests a reduction of the sentence due to genuine remorse, being the primary breadwinner, facing family difficulties, having limited education and legal awareness, having remedied the consequences (by returning the illicit profits), and seeking leniency from the law to reintegrate into the community, strive to become a useful citizen, and support the family, wife, and children.

The defendant also states that L’s appeal, as mentioned above, does not reflect the objective truth of the case, as L was the owner of the two boats KG-94294-TS and KG-94295-TS.

After these boats were seized in Malaysia for illegal fishing and before retrieving them, L specifically requested the defendant (T) to introduce a person named Nguyễn Bảo D2 to create new documents for the boats with the numbers KG-93949-TS and KG-93971-TS. Furthermore, L directly assigned Phạm Chí Dũng to manage the boats KG-93949-TS and KG-93971-TS and recruit fishermen, advancing money to them for illegal fishing in Malaysia.

L also requested T to find someone in Malaysia to purchase information about the Malaysian Navy’s patrols to notify D5 and L for evasion purposes. L, along with T and H3, brought money to Malaysia to retrieve the boats KG-94294-TS and KG-94295-TS, which were seized in Malaysia, back to Vietnam.

L’s claim that he did not ask the defendant and did not acknowledge the boats KG-93949-TS and KG-93971-TS as his is untrue, and therefore, the defendant requests the Appellate Council to consider this. The defendant requests the Appellate Council to accept the appeal for a reduced sentence.

– Mrs. Từ Phạm Thúy L2, the wife of defendant D5, stated: When defendant D5, her husband, was just released from Malaysia and returned to Vietnam (previously detained for participating in illegal fishing in Malaysia), T introduced D5 to L for continued illegal fishing in Malaysia. After hearing this, she did not agree for her husband to take this job, but L promised to take good care of D5 in case of any issues.

However, when D5 and the fishermen were arrested, L ignored them. Therefore, she filed a “Petition for Relief” to the Department of Foreign Affairs of Kiên Giang Province and the Border Guard Command of Kiên Giang Province, requesting assistance. Thus, L’s claim of not hiring D5 is completely untrue.

The representative of the High People’s Procuracy in Hồ Chí Minh City expressed the opinion on resolving the case:

During the investigation, prosecution, and at today’s appellate trial, all defendants have admitted to the actions outlined in the first-instance judgment, except for defendant L who has changed his testimony, appealing against the conviction. Accordingly, the appeals of the defendants Trần Văn L, Phạm Chí D, and Trần Minh T are considered as follows:

Defendant Trần Văn L, the owner of the two boats KG-94294-TS and KG-94295-TS (later altered to KG-93949-TS and KG-93971-TS), played the role of the mastermind. L provided the means and directly instructed and assigned D to recruit fishermen, advance money to them, manage the boats, and transport them to Malaysia for illegal fishing to make a profit.

L was fully aware that transporting boats and fishermen to foreign waters was illegal and used various methods to evade Vietnamese authorities, such as instructing to turn off the tracking devices, erasing and redrawing the boat numbers, etc. Furthermore, L was the primary beneficiary (nearly 60% of the total profit).

Defendant Phạm Chí D, the captain of the boat KG-94294-TS (later altered to KG-93949-TS), acted as an accomplice with the role of organizing illegal border crossing. D directly received and executed L’s instructions to recruit fishermen, advance money to them, and transport the boats and fishermen to Malaysia for illegal fishing.

Defendant Trần Minh T acted as an active accomplice, directly finding and introducing D2 to L to create new boat documents, replacing the old ones, to retrieve the two boats KG-94294-TS and KG-94295-TS back to Vietnam without detection by Vietnamese authorities. Afterward, the boats were repaired and used for continued illegal fishing in Malaysia.

Additionally, T was directly instructed by L to find someone in Malaysia to buy information about the Malaysian Navy’s patrols, informing D and L to evade detection. Thus, during the entire period of illegal fishing in Malaysian waters, L’s two boats were not caught. Furthermore, T’s assistance in creating new boat documents enabled L and D to have the means and conditions to organize illegal border crossing.

With the intention of piloting boats to foreign waters for more profitable fishing, Trần Văn L, as the boat owner, discussed and assigned Phạm Chí D, Trần Minh T, and received assistance from Trần Văn N along with other related individuals, to use the two boats KG-94294-TS and KG-94295-TS (later altered to KG-93949-TS and KG-93971-TS) to transport 26 people (excluding D and N) out of Vietnam, specifically to Malaysia and Indonesia, for illegal fishing and returning to Vietnam for profit.

The actions of the defendants in transporting 26 people out of Vietnam for personal gain constitute the crime of “Organizing Illegal Border Crossing”. Once the 26 people were transported out of Vietnam, the crime was completed and must be prosecuted under Article 348 of the Penal Code. The act of illegal fishing in foreign waters, after the illegal border crossing, will be dealt with by the host country in accordance with their laws and also subject to Vietnamese law in the field of fisheries exploitation.

The criminal actions of the defendants are dangerous to society, violating the State’s regulations on ensuring administrative order in the areas of population management and immigration control, and infringing upon the internal and external security of the State of Vietnam.

Recently, there have been many instances of Vietnamese fishing boat owners, through individuals directly managing the boats, organizing illegal border crossing for people and vessels to foreign waters for illegal fishing, resulting in arrests. This phenomenon affects security and order at sea and impacts efforts to combat illegal fishing.

Given the defendants’ actions, the first-instance court convicted Trần Văn L, Phạm Chí D, Trần Minh T, and Trần Văn N of the crime of “Organizing Illegal Border Crossing” under Point a, Clause 3, Article 348 of the Penal Code, which is well-founded, appropriate, and lawful. The aggravating and mitigating circumstances of criminal liability were fully and comprehensively considered by the first-instance court.

At the appellate hearing, defendant L appealed claiming innocence and provided additional documents and evidence asserting that the two boats seized by the Indonesian Navy were not his. However, the testimony and documents presented by the defendant are insufficient to reconsider defendant L’s conviction or to serve as a basis for reducing the sentences of defendants T and D. Therefore, it is proposed that the Appellate Council reject the defendants’ appeals and uphold the first-instance judgment.

– The defense attorneys for defendant Trần Văn L engaged in the debate as follows:

1. Attorney Trần Văn H2 stated:

He requested the Appellate Council to objectively and comprehensively consider whether the two boats seized by Indonesia were indeed the two boats belonging to defendant L, which would serve as the basis to determine whether defendant L was genuinely involved in the criminal activities. Proving the owner of the two boats must rely on documents and evidence such as extracts from competent authorities, comparison of the boat’s characteristics in the records, and printed images from the Registration Book provided by the attorney at the appellate hearing.

This would confirm that the two boats of L were not the ones seized by Indonesia. The records also indicate that the two boats KG-93949-TS and KG-93971-TS belonged to Mr. Lê Thanh D6 and Mr. Nguyễn Văn D7. These two boats were later sold by Mr. D6 to a person named T, and Mr. D7 sold his boat to a person named T10.

According to the records, the two boats KG-93949-TS and KG-93971-TS were reported by defendants L and T to have been swapped from the two boats redeemed by L from Malaysia to Vietnam and renumbered from KG-94294-TS and KG-94295-TS to KG-93949-TS and KG-93971-TS.

However, based on the actual extracted tracking data, the two boats KG-93949-TS and KG-93971-TS lost their signals from May 2022 until the case was discovered and identified, with the two boats at that time operating in Kiên Giang Province. Moreover, both boats lost their signals on May 22 and had their tracking systems installed on August 31 by two different boat owners.

Thus, it can be argued that the two boats KG-94294-TS and KG-94295-TS did not exist in Vietnamese waters and were not redeemed and converted into the two boats with numbers KG-93949-TS and KG-93971-TS as claimed by defendant L. Instead, defendants T, D2, and D6 used the records of the two boats numbered KG-93949-TS and KG-93971-TS, altering the tracking devices to commit the crime.

Therefore, it is impossible to attribute the lawful assets of Mr. D7 and Mr. D6 to defendant L. Although at the first-instance level, the defendants claimed these were L’s boats, the evidence in the records does not support this. To clarify whether the two seized boats belonged to L, it is necessary to vacate the first-instance judgment for reinvestigation.

2. Attorney Nguyễn Thị H1 stated:

The attorney maintained the defense stance presented at the first-instance trial, asserting that defendant L was not the mastermind of the case but acted upon the suggestions and proposals of T and D6. The act of illegal fishing in foreign waters is an administrative violation subject to penalties under Article 20 of Decree No. 42/2019/NĐ-CP of the Government. Furthermore, the captain’s violations (D6 and T8) were penalized by the host country (Indonesia).

Continuing to prosecute for the crime of “Organizing Illegal Border Crossing” would violate the principle of double jeopardy. At the appellate hearing, the attorney provided documents showing that the authorities in Bến Tre Province issued administrative penalties for boat owners engaged in similar conduct to defendant L. The essence of L’s actions was illegal fishing. Therefore, prosecuting L criminally is inappropriate.

   Additionally, the attorney confirmed that the records indicate that the two boats numbered KG-93949-TS and KG-93971-TS and the two boats numbered KG-94294-TS and KG-94295-TS of defendant L are independent, not the two boats seized by the Indonesian authorities as claimed by the defendants. Therefore, it is proposed to vacate the first-instance judgment for reinvestigation.

3. Attorney Lê Văn T3 stated:

Agreeing with the viewpoints of the two colleague attorneys, he supplemented his argument regarding procedural violations by the Investigative Agency in collecting documents and evidence as follows: the evidence in the case was not collected in accordance with regulations, lacking objectivity.

The reception of evidence via Zalo messages submitted by defendant T to the Investigative Agency lacks legal value as per the Penal Procedure Code, electronic data is only considered evidence if it meets the criteria of legality, relevance, and objectivity, and its presentation must be accompanied by copies and devices containing the documents; the use of foreign documents not legalized by consular authentication; the forensic conclusion regarding the devices seized from defendant L is inaccurate,

with extracted messages not printed; incomplete clarification of the defendant’s contradictory statements, indicating a possibility of overlooking the complicity role of B with T; and unclear representation of witnesses during the testimony and interrogation of those with related rights and obligations.

Regarding the case details: Defendant L did not participate in the recruitment of crew members or advance payments. D6 and H3 directly supervised and carried out these tasks, as confirmed by the fishermen in their written testimonies. Additionally, L was unaware of the number of people on the boat and was not informed of this information by anyone. Due to serious procedural violations at the first-instance trial, it is requested to vacate the judgment and reopen the investigation.

(Defendant Trần Văn L agrees with the defense presented by his attorneys and adds nothing further).

– Defense counsel for the defendant Phạm Chí D, Attorney Nguyễn Trường T4, stated:

The entire case has been clarified, unified in terms of the act, criminal nature, charges, sentencing framework, and the aggravating and mitigating circumstances applied by the first-instance court to defendant D. At the appellate trial, the Appellate Council is requested to consider the nature and extent of the criminal conduct, personal circumstances, and mitigating factors for defendant Phạm Chí D, specifically:

Defendant D actively cooperated with the responsible authorities in detecting the crime, as recommended by the Provincial Investigation Agency, requesting the application of mitigating circumstances as provided in points s and t, clause 1 of Article 51 of the Penal Code, but the first-instance court did not apply the mitigating circumstances under point t, clause 1 of Article 51 of the Penal Code to defendant D. Therefore, the Council is requested to acknowledge these mitigating circumstances for defendant D.

Regarding the defendant’s role in the case: This is a joint offense case that requires individualized punishment for each defendant. Thus, L initiated, organized, and masterminded the crime, while D participated as an accomplice and executor. At the time of the offense, D was unemployed and was hired by L as a boatman for fishing activities. As a hired worker, D complied with all of L’s instructions and was supervised and directed by L in all matters.

Regarding personal circumstances: Defendant D is a hired worker (laborer), with a low level of education (grade 2/12), very limited legal awareness, and committed the offense out of a desire to earn a living. Before committing the offense, D adhered to local policies and laws, confirmed by local authorities; the defendant’s family has a revolutionary tradition, with many members working in the police and judiciary. Defendant D is elderly, suffering from severe sinusitis, and faces economic hardship in the family. The Council is requested to apply Article 54, Clause 1 of the Penal Code to reduce the sentence for defendant D.

– Defendant Phạm Chí D’s statement: Defendant D agrees with the defense presented by his counsel and disagrees with the arguments of the defense counsel for defendant L, as well as the statements made by defendant L during the trial.

– Defendant Trần Văn T11’s statement: Defendant T11 acknowledges his criminal behavior but disagrees with the arguments presented by the defense counsel for defendant L and the statements made by defendant L during the trial.

– Lawyer H1’s rejoinder: Upholding the defense’s position, the case file contains many details confirming that the two seized boats did not belong to defendant L. To date, defendant L continues to assert that the seized boats were not his. The testimonies of T11 and D are not the sole evidence to base the accusations against defendant L.

– Final statements of the appellants:

Defendant Trần Văn L requests the Council to re-examine whether the seized boats belong to him, the evidence and documents in the file contain information that defendants are not aware of, only heard during the trial. Defendant L did not provide money to D to carry out the actions as T11 and D confessed.

Defendant Phạm Chí D acknowledged his culpability and appealed for leniency, highlighting his impoverished circumstances, his wife’s illness, and the responsibility of caring for three young children as compelling reasons for a reduced sentence.

Defendant Trần Minh T, as the main provider for his elderly parents, wife, and three children, emphasized the financial strain on his family since his detention. He pleaded for a reduced sentence to swiftly reunite with his family, particularly to alleviate the burden his absence has placed on his wife, who resorted to borrowing money for their children’s education.

COURT’S OPINION:

[1] Based on the case details and the documents presented at the hearing, the Appellate Panel determines as follows:

[2] Regarding the conduct, the decisions of the Investigative Agency, Investigators, the Procuracy, the Procurators at the first-instance trial:

[3] It was found that throughout the investigation and prosecution process all were conducted in accordance with jurisdictional mandates, procedural requirements, and the legal provisions stipulated in the Penal Procedure Code. During the investigation and at the first-instance trial, the defendants raised no objections or complaints concerning the conduct and decisions made by the criminal proceedings-conducting authorities and the criminal proceedings-conducting individuals.

Consequently, the actions and decisions of the criminal proceedings-conducting authorities and the criminal proceedings-conducting individuals were lawful.

[4] Appeals by defendants Trần Văn L, Phạm Chí D, and Trần Minh T are within the statutory time limits and are therefore valid for consideration at the appellate level in accordance with Article 333 of the Penal Procedure Code.

[5] Regarding the criminal acts of the defendants:

[6] During the appellate trial, defendants Phạm Chí D and Trần Minh T reaffirmed their previous confessions to the criminal acts, consistent with the findings of the first-instance court. The court’s initial conviction for “Organizing Illegal Border Crossing” was upheld as accurate and free from any perceived injustice or procedural error.

[7] Only defendant Trần Văn L altered his statement, refuting allegations that he hired Phạm Chí D as a crew member and manager for vessels KG-93949-TS and KG-93971-TS to engage in illegal fishing in Malaysia. He denied instructing D to recruit fishermen, providing advance payments to D for crew members, and asking Trần Minh T to contact an individual named D2 to procure new documentation for the vessels.

Moreover, L denied instructing T to contact an individual named B in Malaysia to purchase information regarding patrol activities of the Malaysian Navy, following the seizure of vessels KG-94294-TS and KG-94295-TS by Malaysian authorities for illegal fishing.

[8] However, after considering testimonies and cross-examinations involving defendants T, D, N, L, and T at the investigative agency, the written statement attributed to L by his brother-in-law Đinh Hoàng X, statements from fishermen on board the vessels, and the ‘Petition for Relief’ dated February 27^th, 2023, submitted by Mrs. Từ Phạm Thúy L2 (wife of defendant D) prior to the case proceedings, alongside additional evidence contained in the case file, it is evident and conclusive:

[9] With the aim of piloting boats to foreign waters for increased fishing yields and profits beyond those attainable in Vietnam’s waters, Trần Văn L, as the boat owner, orchestrated discussions and assignments to Phạm Chí D, Trần Minh T, assisted by Trần Văn N, and others including D2, B, and additional individuals.

They utilized boats initially registered as KG-94294-TS and KG-94295-TS (later re-registered as KG-93949-TS and KG-93971-TS) to organize the transportation of 26 individuals (excluding D and N) outside Vietnam’s territorial waters, specifically into Malaysian and Indonesian waters, for illegal fishing operations.

Prior to departure, defendants L, D, T… publicly notified fishermen of their intention to fish in Malaysian waters without permits, offering an initial payment ranging from VND 20,000,000 to 25,000,000 per person. They indicated a return to shore after approximately 100 days of fishing and proposed a profit-sharing ratio of 6/4, allowing fishermen to opt in or stay ashore.

The investigation confirmed that defendants L, D, T… embarked twice on fishing trips to Malaysian and Indonesian waters. On November 16th, 2022, while D managed the boats with 37 fishermen aboard, they inadvertently crossed into Indonesian waters at coordinates 3°48″N and 104°38″E, unaware of the maritime boundary between Malaysia and Indonesia. They were subsequently apprehended by the Indonesian Navy and detained at Camp B in Indonesia.

[10] In Dispatch No. 4268/BTL-TM dated October 24th, 2023, the Zone 4 Coast Guard Command specified that based on sea coordinates, 3°48″N and 104°38″E are within Indonesian waters.

[11] The defendants engaged in a series of actions to transport individuals across Vietnam’s borders (via maritime boundaries within Vietnam’s waters), involving persuasion, vehicle preparation, financial arrangements, document preparation, transportation logistics, and submission of fishermen lists to Border Station S1, Cà Mau Province, before facilitating illegal border crossings.

[12] Based on these actions, the first-instance court convicted defendants Trần Văn L, Phạm Chí D, Trần Minh T, and Trần Văn N of ‘Organizing Illegal Border Crossing’ under point a, clause 3, Article 348 of the Penal Code. The conviction was grounded on sufficient evidence, accurate identification of individuals and crimes, and compliance with legal standards.

[13] The defendants’ criminal conduct posed a societal threat, contravening state regulations aimed at maintaining administrative order in population management and immigration control. Their actions infringed upon both domestic and international security of the Socialist Republic of Vietnam, undermining the effectiveness of state administrative measures in immigration management.

[14] Recently, there has been a troubling trend among Vietnamese fishing vessel owners who, through direct vessel management entities, organize illegal transportation of individuals and resources for illicit fishing in foreign waters. These activities have led to numerous incidents of interception, impacting maritime security and order.

Such actions have also hindered efforts to combat illegal, unreported, and unregulated fishing, resulting in Vietnam receiving a ‘yellow card’ warning from the European Commission. Consequently, stringent measures are imperative to deter such behaviors and raise awareness, with the goal of addressing and potentially lifting Vietnam’s ‘yellow card’ status from the European Commission.

[15] Regarding the appeals of the defendants:

[16] Defendant Trần Văn L contends he is wrongfully accused, supported by defense arguments asserting his involvement only as an administrative violator under point b, clause 3, Article 20 of Decree No. 42/2019/ND-CP dated May 16, 2019. This decree imposes penalties on vessel owners engaging in fishing activities within national, territorial, or regional fishing areas without valid or expired permits.

[17] The Appellate Panel evaluates the defense counsel’s arguments as follows:

[18] In this case, the defendants orchestrated a series of consecutive actions aimed at unlawfully transporting individuals out of Vietnam’s territorial waters to profit from illicit fishing activities, constituting the offense of ‘Organizing Illegal Border Crossing’.  Pursuant to Government Decree No. 77/2017/ND-CP dated July 3, 2017, regulating the management and protection of security and order at border gates, it stipulates in Article 3, Clause 3: ‘A departing vessel is a Vietnamese vessel leaving Vietnam’s territorial waters…’;

Article 5, Clause 2: ‘Vietnamese vessels departing the country, crew members, and passengers aboard Vietnamese vessels departing the country must complete departure procedures at port gate before leaving Vietnam’s territorial waters’; and Article 17, Clause 1 also stipulates: ‘Vietnamese fishing vessels engaged in fishing outside Vietnam’s territorial waters must complete exit procedures before leaving Vietnam’s territorial waters and entry procedures upon returning to the border area of Vietnam’.

Point b, Clause 3 of Article 17 further stipulates procedures for Vietnamese fishing vessels, crew members, and passengers aboard Vietnamese fishing vessels engaged in fishing outside Vietnam’s territorial waters, including: ‘Permits for fishing vessels engaged in fishing outside Vietnam’s territorial waters issued by Directorate of Fisheries of the Ministry of Agriculture and Rural Development; regular passports and the seaman’s book of the fishing vessel crew; passports of passengers (if any)’.

[19] According to these provisions, not every case involving illegal fishing in foreign waters equates to illegal departure from Vietnam. Legally sanctioned departures with proper permits and compliance with departure procedures are distinct from unlawful fishing activities without valid authorization. Nonetheless, engaging in fishing activities without proper authorization remains a violation of fishing regulations and incurs legal consequences.

[20] Therefore, the defendants’ actions—illegally transporting 26 individuals out of Vietnam’s territorial waters for personal gain—constituted the offense of ‘Organizing Illegal Border Crossing’. By completing the necessary elements of this offense, including solicitation, preparation of means, financial arrangements, document handling, guidance, transportation logistics, and submission of fishermen lists to Border Station…,

the defendants fulfilled the criteria under Article 348 of the Penal Code. Any subsequent engagement in illegal fishing in foreign waters following illegal departure, if discovered during the fishing operations, remains subject to penalties under the respective country’s laws and jurisdiction.

[21] Regarding defendant Trần Văn L’s appeal concerning the examination and handling of the offense of ‘Fraudulent appropriation of property’ allegedly committed by defendant Trần Minh T, individual named Mai Thị B, and related persons:

[22] During the appellate trial, defendant L revised his appeal request, arguing that if he is not prosecuted for administrative violations under Sub-point b, Clause 3, Article 20 of Government Decree No. 42/2019/ND-CP dated May 16, 2019, as proposed by his defense lawyers, then the first-instance judgment should be vacated due to the vessels KG-93949-TS and KG-93971-TS not belonging to him. The Appellate Panel acknowledged defendant L’s change in appeal without worsening his or other defendants’ positions, but did not consider this appeal.

[23] Regarding defendant L’s appeal and defense lawyers’ arguments, they contended that vessels KG-93949-TS and KG-93971-TS were not owned by L. This was based on photographs from D’s mobile phone showing vessels numbered 9394 and 9397 (with the last digits erased), along with old photographs of L’s vessels KG-94294-TS and KG-94295-TS, revealing discrepancies.

They argued that during the period when L’s vessels KG-94294-TS and KG-94295-TS lost contact in May 2022, vessels numbered 49 and 71 (KG-93949-TS and KG-93971-TS) were operating in the same maritime area, originally owned by Mr. Lê Thanh D6 and Mr. Nguyễn Văn D7, later sold to individuals named T and T10. However, the investigating authorities failed to clarify these details.

Additionally, they alleged procedural violations in the investigation, particularly concerning Mai Thị B’s suspected involvement in aiding criminal activities while residing in Malaysia without a specific address. Consequently, both defendant L and his defense lawyers requested vacatur of the first-instance verdict for further investigation.

[24] In response, the Appellate Panel affirmed that all investigative and prosecutorial processes were conducted within legal mandates and procedural requirements outlined in the Penal Procedure Code. Throughout the investigation and first-instance trial, no objections or complaints were raised by the defendants regarding the conduct or decisions of the criminal proceedings authorities. Regarding Mai Thị B, who resides in Malaysia without a specific address, the investigative agency has been unable to engage with her.

[25] Consequently, the Appellate Panel recommended ongoing investigation of Mai Thị B for potential prosecution, separate from the trial of the defendants in this case. Regarding defendant L’s argument that vessels KG-93949-TS and KG-93971-TS do not belong to him and therefore his actions were not criminal, the Appellate Panel affirmed that this case pertains to the investigation, prosecution, and trial for ‘Organizing Illegal Border Crossing’.

The elements of this offense include a series of actions: persuasion, vehicle preparation, financial arrangements, document handling, transportation logistics, and submission of crew lists to the Border Guard Station before illegally transporting individuals out of Vietnam’s territorial waters.

Once this act was executed by taking individuals out of Vietnam’s territorial waters, it constituted a criminal offense under Article 348 of the Vietnamese Penal Code. Therefore, defendant L’s and his defense lawyers’ arguments were deemed unfounded and inconsistent with the Appellate Panel’s assessment.

[26] Consequently, defendant Trần Văn L’s appeal for reconsideration of charges and defense arguments put forth by his lawyers are considered unfounded.

[27] Regarding the roles of the defendants in this case:

[28] In this case, defendant Trần Văn L was the owner of vessels KG-94294-TS and KG-94295-TS, which were apprehended by Malaysian authorities on May 16, 2022, while illegally fishing in Malaysian waters. To reclaim the vessels and resume illegal fishing in Malaysian waters without detection by Vietnamese authorities, L asked defendant T to arrange for new vessel documentation to replace the original ones.

T contacted individual D2 to create new vessel documents for KG-94294-TS and KG-94295-TS, renaming them as KG-93949-TS and KG-93971-TS. L also instructed T to contact someone in Malaysia to obtain information on Malaysian Navy inspection schedules to avoid detection while illegally fishing in Malaysian waters. L provided the means and directly managed the vessel, assigned tasks to D6 for crew recruitment, provided funds to D6 for upfront expenses for the crew, managed the vessel, and escorted the crew to Malaysia for illegal fishing to profit from it.

L was well aware that transporting vessels and crew to foreign waters was illegal, thus employing various measures to evade Vietnamese authorities, such as instructing to disable tracking devices, altering and repainting vessel numbers, etc. Furthermore, L benefitted the most from the arrangement (nearly 60% of the profits earned). Therefore, L played the role of mastermind and leader.

[29] Defendant Phạm Chí D, as the captain of vessel KG-94294-TS (renamed KG-93949-TS), was an accomplice, playing the role of organizing illegal border crossing. D directly recruited and instructed crew members on vessels KG-93949-TS and KG-93971-TS, following L’s directives to recruit crew, provide upfront expenses for crew members to transport vessels and crew to Malaysia for illegal fishing. Accordingly, D committed the offense as an active accomplice.

[30] Defendant D actively assisted defendant L and held the tertiary role after defendant T. Apart from the mitigating and aggravating circumstances of criminal responsibility that the first-instance court applied to D before initiating the case, D voluntarily agreed for his wife, Mrs. Từ Phạm Thúy L2, to submit a ‘Petition for Relief’ on February 27, 2023, to the Department of Foreign Affairs of K Province and the Border Guard Command of K Military Region to review L’s conduct.

As a result, the relevant authorities subsequently gathered evidence, and D also voluntarily provided statements, actively cooperating with the investigating agency to clarify the case promptly. Therefore, in the Investigation Conclusion No. 01/KLĐT-ANĐT-Đ2 dated January 11, 2024, of the Investigative Agency, the Police of K Province proposed:

Regarding mitigating circumstances, ‘Phạm Chí D sincerely confessed, regretted and repented, actively cooperated with the Economic Security Department of the Police of K Province in detecting the criminal acts of Trần Văn L, Trần Minh T…, therefore, proposing to apply mitigating circumstances as stipulated in points s and t, clause 1, Article 51 of the Vietnamese Penal Code.'”

[31] Therefore, in considering the penalty decision, the first-instance court did not apply the mitigating circumstance stipulated in point t, clause 1, Article 51 of the Penal Code to defendant D due to oversight. The appellate court therefore grants the defendant the mitigating circumstances ‘actively cooperating with the investigating authorities to clarify the case promptly’ and ‘the defendant is the main laborer in the family’ (as confirmed by the local authorities) as stipulated in point t, clause 1, clause 2 of Article 51 of the Penal Code.

Because the defendant has several mitigating circumstances, Article 54, clause 1 of the Penal Code is applied, accepting the defense lawyer’s request and the defendant D’s appeal, reducing part of the penalty for the defendant.

[32] Defendant Trần Minh T actively assisted as an accomplice. T directly found and introduced D to L for L to assign management of the vessels to D. T also introduced D2 to L to prepare a new vessel dossier to replace the old one so that when redeeming vessels KG-94294-TS and KG-94295-TS to Vietnam without detection by Vietnamese authorities, then repairing, and subsequently continuing to Malaysia to illegally fish.

Additionally, T directly received L’s instructions to find someone in Malaysia to purchase information about the Malaysian Navy. When the Malaysian Navy patrolled, they notified D, L to control the vessels to evade detection elsewhere.

T benefited from arranging the purchase of information with an amount of VND 20,000,000. Therefore, during the operation of L’s vessels for fishing in Malaysian waters without detection and seizure, on the other hand, due to active assistance aimed at T’s benefit in renewing vessel records and purchasing information, L and D had the means and conditions to organize for others to cross border illegally. Therefore, T is criminally responsible less than L but higher than D is justified.

[33] Defendant T acted as an active accomplice to assist defendant L and was the second role after defendant L. When deciding on the penalty, the first-instance court considered granting defendant T mitigating circumstances such as sincere confession, remorse, repentance as stipulated in point s, clause 1, Article 51 of the Penal Code, while defendant T had 02 aggravating circumstances ‘organized crime’ and ‘committing crimes twice or more’ as stipulated in points a, point g, clause 1, Article 52 of the Penal Code.

Accordingly, the 07-year prison sentence that the first-instance court pronounced against the defendant is commensurate with the nature and severity of the defendant’s criminal conduct. In the appellate stage, the defendant paid the criminal trial fee of the first-instance court VND 200,000 under the Civil Enforcement Receipt number 0002221 dated March 14^th, 2024, of the Civil Enforcement Agency of Kiên Giang Province.

Therefore, there is no basis for the Appellate Council to accept the defendant T’s appeal and it is necessary to maintain the penalty level that the first-instance court decided against the defendant.

[34] The viewpoint of the representative of the Procuracy regarding the appeal of defendant Trần Văn L, Trần Minh T is consistent with the Appellate Council and should be accepted. The viewpoint of the representative of the Procuracy regarding the appeal request of defendant Phạm Chí D is not consistent with the Appellate Council and therefore should not be accepted.

[35] Regarding the appellate court fees: Due to the appeal of defendants Trần Văn L, Trần Minh T not being accepted, each defendant must bear the appellate criminal trial fee of VND 200,000 (two hundred thousand dong), defendant Phạm Chí D’s appeal is accepted so he is not required to pay the appellate criminal trial fee.

[36] Other decisions of the first-instance court regarding charges and penalties against defendants Trần Văn N, other related issues concerning Lê Phước H3, Trần Văn T5, Nguyễn Bảo D2, legal measures, and the first-instance trial fees which have no appeals are effective from the expiration date of appeals and protests.

In light of the foregoing,

IT IS DECIDED:

Pursuant to points a, point b, clause 1, Article 355; Article 356; point c, clause 1, Article 357 of the Penal Procedure Code 2015:

1. The appeals of defendants Trần Văn L and Trần Minh T are not accepted, maintaining the penalty level against defendant L and defendant T. The appeal of defendant Phạm Chí D is accepted, and the first-instance judgment is partially amended to reduce the penalty against defendant D.
2. Defendants Trần Văn L, Phạm Chí D, Trần Minh T are guilty of ‘Organizing Illegal Border Crossing’.

2.1. Pursuant to Article 17; Article 38; clause 2, Article 51; points a, point g, clause 1, Article 52; Article 58; point a, clause 3, Article 348 of the Penal Code:

– Defendant Trần Văn L is sentenced to 08 (eight) years of imprisonment. The term of imprisonment shall be counted from the date the defendant was detained on October 14^th, 2023.

2.2. Pursuant to Article 17; Article 38; point s, clause 1, clause 2, Article 51; points a, point g, clause 1, Article 52; Article 58; point a, clause 3, Article 348 of the Penal Code:

– Defendant Trần Minh T is sentenced to 07 (seven) years of imprisonment. The term of imprisonment shall be counted from the date the defendant was detained on December 27^th, 2023.

2.3. Pursuant to Article 17; Article 38; point s, point t, clause 1, clause 2, Article 51; points a, point g, clause 1, Article 52; clause 1, Article 54; Article 58; point a, clause 3, Article 348 of the Penal Code:

– Defendant Phạm Chí D is sentenced to 06 (six) years of imprisonment. The term of imprisonment shall be counted from the date the defendant was detained on October 14^th, 2023.

2.4. Defendants Trần Văn L, Trần Minh T, and Phạm Chí D shall continue to be detained based on the decision of the Appellate Council to ensure execution of the judgment.

3. Regarding appellate court fees: Pursuant to points a, point d, clause 2, Article 23 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the Standing Committee of the National Assembly regulating court fees and charges, each defendant Trần Văn L, Trần Minh T must pay 200,000 VND (two hundred thousand dong) for the appellate criminal trial fee. Defendant Phạm Chí D is not required to pay the appellate criminal trial fee.
4. Other decisions of the first instance regarding charges and penalties against defendant Trần Văn N, other related issues concerning Lê Phước H3, Trần Văn T5, Nguyễn Bảo D2, legal measures, and the first instance trial fees have no appeals, protests effective from the expiration date of appeals, protests.
5. The appellate judgment shall have legal effect from the date of judgment.

CONTENT OF THE CASE LAW DRAFT

“[9] With the aim of piloting boats to foreign waters for increased fishing yields and profits beyond those attainable in Vietnam’s waters, Trần Văn L, as the boat owner, orchestrated discussions and assignments to Phạm Chí D, Trần Minh T, assisted by Trần Văn N, and others including D2, B, and additional individuals.

They utilized boats initially registered as KG-94294-TS and KG-94295-TS (later re-registered as KG-93949-TS and KG-93971-TS) to organize the transportation of 26 individuals (excluding D and N) outside Vietnam’s territorial waters, specifically into Malaysian and Indonesian waters, for illegal fishing operations.

Prior to departure, defendants L, D, T… publicly notified fishermen of their intention to fish in Malaysian waters without permits, offering an initial payment ranging from VND 20,000,000 to 25,000,000 per person. They indicated a return to shore after approximately 100 days of fishing and proposed a profit-sharing ratio of 6/4, allowing fishermen to opt in or stay ashore.

…

[18] In this case, the defendants orchestrated a series of consecutive actions aimed at unlawfully transporting individuals out of Vietnam’s territorial waters to profit from illicit fishing activities, constituting the offense of ‘Organizing Illegal Border Crossing’.  Pursuant to Government Decree No. 77/2017/ND-CP dated July 3, 2017, regulating the management and protection of security and order at border gates, it stipulates in Article 3, Clause 3: ‘A departing vessel is a Vietnamese vessel leaving Vietnam’s territorial waters…’;

Article 5, Clause 2: ‘Vietnamese vessels departing the country, crew members, and passengers aboard Vietnamese vessels departing the country must complete departure procedures at port gate before leaving Vietnam’s territorial waters’; and Article 17, Clause 1 also stipulates: ‘Vietnamese fishing vessels engaged in fishing outside Vietnam’s territorial waters must complete exit procedures before leaving Vietnam’s territorial waters and entry procedures upon returning to the border area of Vietnam’.

Point b, Clause 3 of Article 17 further stipulates procedures for Vietnamese fishing vessels, crew members, and passengers aboard Vietnamese fishing vessels engaged in fishing outside Vietnam’s territorial waters, including: ‘Permits for fishing vessels engaged in fishing outside Vietnam’s territorial waters issued by Directorate of Fisheries of the Ministry of Agriculture and Rural Development; regular passports and the seaman’s book of the fishing vessel crew; passports of passengers (if any)’.

[19] According to these provisions, not every case involving illegal fishing in foreign waters equates to illegal departure from Vietnam. Legally sanctioned departures with proper permits and compliance with departure procedures are distinct from unlawful fishing activities without valid authorization. Nonetheless, engaging in fishing activities without proper authorization remains a violation of fishing regulations and incurs legal consequences.

[20] Therefore, the defendants’ actions—illegally transporting 26 individuals out of Vietnam’s territorial waters for personal gain—constituted the offense of ‘Organizing Illegal Border Crossing’. By completing the necessary elements of this offense, including solicitation, preparation of means, financial arrangements, document handling, guidance, transportation logistics, and submission of fishermen lists to Border Station…,

the defendants fulfilled the criteria under Article 348 of the Penal Code. Any subsequent engagement in illegal fishing in foreign waters following illegal departure, if discovered during the fishing operations, remains subject to penalties under the respective country’s laws and jurisdiction.”

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