SMUGGLING CRIMINAL CASE

Basis for accepting the case and the client’s request:

On January 14, 2022, the People’s Court of Quang Ngai Province (“People’s Court”) rendered a first-instance judgment in criminal case number **/2021/HSST-QĐ. The judgment found the defendant, Tran Van L, guilty of the crime of “smuggling” and sentenced him to two years and six months of imprisonment. On January 27, 2022, the People’s Procuracy of Quang Ngai Province (“People’s Procuracy”) issued Decision No. ***/QĐ-VKS appealed the judgment on the grounds that the sentence of two years and six months of imprisonment was too lenient in light of the defendant’s role and criminal conduct. Accordingly, the People’s Procuracy requested that the Collegial People’s Court in Da Nang conduct an appeal hearing with a view to increasing the defendant’s prison sentence.

Following appeal decisions of People’s Procuracy, the defendant, Tran Van L, has requested that TAPHALAW provide legal advice and assign an attorney to represent him in the appeal proceedings.

Case Summary:

On April 14, 2019, on the sea approximately 20 nautical miles from Ly Son Island, the Investigating Police discovered and catched red-handed Kim H., a South Korean national, and Chang M., a Taiwanese national, in the act of illegally pumping petroleum from the MT vessel owned by LS Company. The act was facilitated by Tran T, Le C and Ly V, who were seafarers of the LS Company vessel and were responsible for receiving the petroleum. All the petroleum on the MT vessel was found without any accompanying invoices or receipts.

Subsequently, the Investigating Police pressed criminal charges and legal proceedings against defendants, conducted an investigation. The investigation revealed the following criminal act:

1. Huynh T was the founder and operator of LS Company, which was involved in the illegal smuggling of petroleum at sea. According to the conclusion of expert examinations, the total volume of petroleum smuggled by Huynh T was 1.388.888 liters, valued at 16 billion VND.
2. Vo N, as Deputy Director of LS Company, was responsible for managing the vessels, seafarers and petroleum. He assisted Huynh T in smuggling of petroleum at sea.
3. Huynh N was responsible for finding consumers for the petroleum at the request of Huynh T.
4. Tran Van L was employed by Huynh T as a driver to transport petroleum legally for LS Company. Additionally, he sought customers for the smuggled petroleum, collected payment from customers and then delivered to Huynh T.
5. Tran T, as the captain of a vessel belonging to LS Company, was responsible for steering the vessel and assigning seafarers to receive petroleum illegally from the MT vessel.
6. The other seafarers of the LS Company vessel, Ly V, Le C, Vo N and Nguyen V, carried out their assigned duties on the vessel and connected the hoses to pump petroleum from the MT vessel to the LS Company’s vessel.
7. Kim H navigated the MT vessel, transporting petroleum from international waters into Vietnamese waters; Kim C, as the mate boat of the MT vessel, was responsible for the export-import of cargo on the MT vessel; Chang M worked on the MT vessel and was responsible for providing information, coordinates, petroleum quantity, and the receiving vessel’s identification number to Kim H.
8. Nguyen D assisted Huynh T in buying and selling petroleum.

On January 14, 2022, the People’s Court of Quang Ngai Province conducted a trial at first instance and issued Judgment No. “”/2022/HS-ST. The judgment found that the defendant, Tran Van L, merely a driver, was aware of Huynh T’s illegal petroleum trading activities. L followed Huynh T’s instructions to find customers and collect payments for the sale of petroleum, benefiting from these activities to the amount of 7.350.000 VND. The defendant was held criminally liable as an accomplice to Huynh T for 1.050 cubic meters (excluding the quantity seized was catched red-handed) of petroleum, valued at 13.440.000.000 VND. The defendant’s conduct constituted the crime of “smuggling” as defined in Point a, Clause 4 of Article 188 of the current Criminal Code. In addition, during the investigation and at the trial, the defendant made truthful statements, expressed remorse, voluntarily surrendered the illegal proceeds, had a good character, no prior convictions, and had parents who were war invalids. These are mitigating circumstances as provided for in Points b, s, Clause 1, Clause 2 Article 51 of the Criminal Code and were applied to the defendant. Therefore, applying Point a, Clause 4 of Article 188; Points b, s, Clause 1, Clause 2 of Article 51; Point g, Clause 1 of Article 52; Clause 2 of Article 54; Article 38; Article 17 and Article 58 of the current Criminal Code, the court sentenced the defendant, Tran Van L, to two years and six months of imprisonment.

Following the People’s Procuracy of Quang Ngai Province’s appeal against Judgment No. **/2022/HS-ST, the Collegial People’s Court in Da Nang admission of appellate case number **/2022/TLPT-HS on February 15, 2022.

Work Performed by the Attorney:

(1) The attorney advised the client to adopt a defense strategy that disagreed with the assessment of the Quảng Ngãi Provincial People’s Procuracy and requested that the Appellate Court uphold the original sentence.

(2) To ensure a full evidentiary record, the attorney advised the client to prepare and submit documents and evidence demonstrating the defendant’s family’s contributions to the revolution and proving that the defendant was the primary breadwinner in the family.

(3) At the trial, the attorney representing defendant Trần Văn L presented legal arguments and analyzed evidence to establish mitigating factors and requested that the Trial Panel maintain the sentence imposed by the trial court. Specifically:

– Tran Van L was merely an employee hired by Huynh T to transport petroleum and was acting under the direction of others. Due to limited legal knowledge, he committed the offense. However, his role was secondary and he was merely an accomplice.

– The trial court recognized that Tran Van L qualified for the mitigating factors stipulated in Points b, s, Clause 1 and Clause 2 of Article 51 of the current Criminal Code, including:

• Defendant voluntarily returned all illegally obtained funds: This is a mitigating circumstance pursuant to point b, clause 1, Article 51 of the current Criminal Code.
• Defendant made a full and honest confession, showing remorse: This is a mitigating circumstance pursuant to point s, clause 1, Article 51 of the current Criminal Code.
• The defendant’s parents are revolutionary contributors. Additionally, the defendant is the primary breadwinner in the family, with elderly parents and two young children: This is a mitigating circumstance pursuant to clause 2, Article 51 of the current Criminal Code.

Furthermore, the application of clause 2, Article 54, Article 38, Article 17 and Article 58 of the current Criminal Code by the trial court is appropriate, considering the nature, extent, and consequences of the crime, the defendant’s personal circumstances and his role in the case.

The appeal by the People’s Procuracy of Quang Ngai Province against the first-instance criminal judgment No. **/2022/HS-ST, arguing that the defendant Tran Van L actively assisted the defendant Huynh T, and therefore, the sentence of 2 years and 6 months imprisonment imposed on Tran Van L is too lenient compared to their role and criminal conduct, and requesting that the appellate court increase the prison sentence for Tran Van L, is unfounded and should not be accepted.

Therefore, the attorney has presented arguments requesting that the appellate court carefully consider and reject the appeal of the People’s Procuracy of Quang Ngai Province, and maintain the original prison sentence imposed on the defendant.

Disposition of the Case:

The Collegial People’s Court of Da Nang conducted an appellate trial. After the representative of the People’s Procuracy of Quang Ngai Province proposed an increase in the prison sentence for the defendant Tran Van L, Attorney Vo Dan Mach presented arguments and emphasized the request to reject the appeal of the People’s Procuracy of Quang Ngai Province. The Trial Panel accepted in full the defense arguments of the Attorney and pronounced the judgment, deciding to: Sustainment of the first-instance court’s judgments.