+ Regarding the subject: Hoang Van Tung is an adult, has reached the age of criminal responsibility, has the ability to perceive and control his behavior, but still illegally buys and sells drugs to Hung and Binh.
+ Regarding the object: Tung's illegal drug trafficking directly violated the State's monopoly and unified management of drugs, with the affected object being Methamphetamine.
+ Objectively: Hoang Van Tung illegally sold drugs to Hung three times to collect money. This act violated the provisions of Point b, Clause 2, Article 194 of the 1999 Penal Code.
+ Subjectively: defendant Hoang Van Tung illegally sold drugs three times with direct intent to gain financial benefits.
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It can be seen that defendant Hoang Van Tung was convicted accurately, objectively, fairly and completely.
In the spirit of ensuring compliance with current legal regulations and theories on determining crimes in general and the crime of illegal drug trafficking in particular, the People's Court of Tan Chau district, Tay Ninh province has determined the crimes of other cases, ensuring fairness, strictness, impartiality and impartiality.
Case No. 2: Judgment No. 10/2017/HSST dated February 28, 2017 of Tan Chau District People's Court, Tay Ninh Province [18]
At about 7:00 a.m. on September 9, 2016, defendant Ngo Van Loc (born April 16, 1988 in Tay Ninh province; currently residing in group 2, hamlet 1, Suoi Day commune, Tan Chau district, Tay Ninh province) went to the motel of his sister-in-law, Nguyen Thi Minh Thuy (born in 1987, residing in hamlet 5, Dong Thanh commune, Hoc Mon district, Ho Chi Minh city) to play. Here, the defendant borrowed a motorbike with license plate 94F1-066.19 from Ms. Thuy to go to work. Ms. Thuy agreed, the defendant took the motorbike to Go Vap district, Ho Chi Minh city to meet a person named Thanh (identity and address not disclosed) to buy 01 bag of synthetic drugs for 2,300,000 VND to bring back.
home use and resell for profit
After purchasing the drugs, the defendant went to the house of Nguyen Anh Tu (born in 1998, residing in Hamlet 5, Dong Thanh Commune, Hoc Mon District, Ho Chi Minh City) and invited Tu to go to the defendant's house to play. Tu agreed. When he got home, the defendant divided the drugs into 1 large bag and 1 small bag; at that time, Vo Van Tuan (born in 1984, residing in Hamlet 6, Suoi Ngo Commune, Tan Chau District, Tay Ninh Province) called the defendant to ask to buy 1 bag of drugs for 300,000 VND. The defendant agreed and arranged to meet at the intersection of kilometer 18, Hamlet 6, Suoi Ngo Commune, Tan Chau District, Tay Ninh Province to buy and sell. At about 1:30 p.m. the same day, the defendant drove a motorbike with license plate 94F1-066.19 borrowed from Thuy to take Tu to Tuan's house. The defendant left Tu there, and the defendant drove alone to the agreed location to sell Tuan a bag of drugs and receive 300,000 VND.
At about 3:00 p.m. the same day, Huynh Bao An (born in 1990, residing in Hamlet 2, Suoi Day Commune, Tan Chau District, Tay Ninh Province) invited Bui Huu Thanh (born in 1987, residing in Con Tran Hamlet, Tan Hoa Commune, Tan Chau District, Tay Ninh Province) to An's house to use drugs. After that, An called the defendant to ask to buy 01 bag of drugs for 500,000 VND, the defendant agreed to sell and drove a motorbike with license plate 94F1-066.19 to An's house to sell An 01 bag of drugs and receive the money.
500,000 VND was caught red-handed by Tan Chau District Police with physical evidence at 4:30 p.m. the same day.
In addition, during the investigation, defendant Loc also confessed to selling drugs twice as follows:
- On September 2, 2016, at Huynh Bao An's house in Hamlet 2, Suoi Day Commune, Tan Chau District, Tay Ninh Province, defendant Loc sold An 1 bag of drugs for 300,000 VND.
- At about 9:00 a.m. on September 4, 2016, at the rubber garden in Hamlet 2, Suoi Day Commune, Tan Chau District, Tay Ninh Province, defendant Loc sold to Huynh Bao An and
Bui Huu Thanh 01 bag of drugs with the amount of 1,000,000 VND.
In the Conclusion of the appraisal No. 143 dated September 11, 2016 of the Criminal Techniques Department of Tay Ninh Provincial Police, it was concluded:
The white solid crystal inside 01 nylon bag (Symbol M1) sent for examination is a drug; name is Methamphetamine; sample weight is 0.1758 grams.
The white solid crystal inside 01 nylon bag (Symbol M2) sent for examination is a drug; name is Methamphetamine; sample weight is 1.6947 grams.
Therefore, there is sufficient basis to conclude that defendant Ngo Van Loc committed the crime of "Illegal drug trafficking" as prescribed in Point b, Clause 2, Article 194 of the Penal Code.
The criminal act of the defendant Loc is very dangerous to society, violates Article 3 of the Law on Drug Prevention and Control, infringes on the State's management order of narcotics, and negatively affects the social order and safety in the locality. When committing the crime, the defendant had full awareness and control over his behavior, the defendant was aware that his behavior was prohibited by law, foresaw the harm of illegal drug trafficking but still committed it with direct intent. Therefore, the defendant's criminal act must be severely punished.
However, when deciding on the penalty, mitigating and aggravating circumstances of the defendant's criminal responsibility are considered.
Regarding mitigating circumstances of criminal responsibility: The defendant honestly confessed, repented, and confessed to selling drugs before being caught red-handed. These are mitigating circumstances stipulated in points o and p, clause 1, Article 46 of the Penal Code.
Regarding aggravating circumstances of criminal liability: The defendant re-offended according to the law.
specified in Point g, Clause 1, Article 48 of the Penal Code.
Considering that the defendant's criminal behavior must be punished with a very severe prison sentence, isolating the defendant from society for a certain period of time, only then will it be possible to reform and educate the defendant to become a useful person for society, and at the same time have a general educational, deterrent and preventive effect.
Regarding additional penalties: The defendant has no assets, so no additional penalties will be applied to the defendant.
For Nguyen Anh Tu, Vo Van Tuan, Huynh Bao An, Bui Huu Thanh, they committed the act of "Illegal use of drugs" so they were administratively punished by Tan Chau District Police according to the Administrative Violation Decisions No. 08, 09, 10, 11 on the same day of January 5, 2017, which is in accordance with the law. For the subject named Thanh, because the full name and specific address have not been determined, when the leak is made, it will be handled later.
For the above reasons, the People's Court of Tan Chau district, Tay Ninh province sentenced the defendant Ngo Van Loc for the crime of "Illegal drug trafficking".
- Applying point b, clause 2, Article 194; points o, p, clause 1, Article 46; point g, clause 1, Article 48 of the Penal Code, sentence defendant Ngo Van Loc to 08 (Eight) years in prison, the term of serving the sentence is calculated from September 9, 2016.
It can be concluded that, through careful consideration from the Trial Panel, the verdict is correct for the person, the crime and the law.
Case No. 3: Judgment No. 52/2018/HS-ST dated June 27, 2018 of Tan Chau District People's Court, Tay Ninh Province [19]
Around August 2017, Tran Van Thuan (born December 24, 1990 in Tay Ninh province; currently residing in Thanh Hoa hamlet, Thanh Dong commune, Tan Chau district, Tay Ninh province) along with Tran Van Thang (born October 19, 1996 in Tay Ninh province; currently residing in Thanh Hoa hamlet, Thanh Dong commune, Tan Chau district, Tay Ninh province) and Hoang Trung Hieu (born July 6, 2000 in Tay Ninh province; currently residing in
Giong Ca hamlet, Binh Minh commune, Tay Ninh city, Tay Ninh province) discussed, agreed, and organized "illegal drug trafficking" in Tan Chau district, Tay Ninh province. Thuan went to buy drugs from a young man named Meo (unknown identity) and brought them home, divided them into many small bags to sell to others. Thuan directly sold drugs to buyers at home. When Thuan was not at home, Thuan assigned Thang to sell and asked drug buyers to come to Thang's house to buy. In addition, Thuan assigned Hieu to drive a motorbike to take Thuan to sell drugs. When Thuan was selling drugs, Hieu was responsible for watching the police station. At around 12:00 on December 27, 2017, Vo Van Hien, born in 1992, residing in Trang Ba Chan, Suoi Ngo commune, Tan Chau district, Tay Ninh province, spent 400,000 VND and Nguyen Trong Nhan, born in 1983, residing in Thanh Nghia hamlet, Thanh Dong commune, Tan Chau district, Tay Ninh province, spent 300,000 VND to pool money to buy drugs for use. When Thuan called to ask to buy 02 bags of synthetic drug Methamphetamine for 700,000 VND, Thuan agreed to sell and set up a place to buy and sell drugs. After that, Thuan asked Hieu to drive a motorbike with license plate 70B1-
030.71 drove Thuan to sell drugs to Nhan and Hien. At about 12:30 p.m. on December 27, 2017, at the "Mai Linh" coffee shop in Hoi Phu hamlet, Tan Hoi commune, Tan Chau district, Tay Ninh province, while Thuan was selling 2 bags of drugs to Nhan and Hien for 700,000 VND, Hieu was standing guard for the police when he was caught red-handed by the Tan Chau district police. At 5:00 p.m. the same day, Thang learned that Thuan and Hieu were arrested by the Tan Chau district police, so Thang went to the Tan Chau district police to surrender.
In the Conclusion of the appraisal No. 251/MT-2017, dated December 29, 2017 of the Criminal Technical Department of Tay Ninh Provincial Police, it was concluded that the white crystal sample inside the 02 nylon bags (symbol M) sent for appraisal was a drug, type Methamphetamine, weighing 0.2079 grams, after appraisal the remaining 0.1601 grams.
grams. Therefore, there is sufficient basis to conclude that the defendants Tran Van Thuan, Tran Van Thang and Hoang Trung Hieu committed the crime of "Illegal trading of narcotics" as prescribed in Points a and b, Clause 2, Article 194 of the 1999 Penal Code. The criminal acts of the defendants are very dangerous to society, violating Article 3 of the Law on Drug Prevention and Control; violating the State's management order of narcotics protected by criminal law, causing disorder and social insecurity in the locality, so the defendants must bear criminal responsibility for their acts.
For the above reasons, the first instance criminal judgment No. 52/2018/HS-ST dated June 27, 2018 of the People's Court of Tan Chau district, Tay Ninh province sentenced the defendants Tran Van Thuan, Tran Van Thang, and Hoang Trung Hieu for the crime of "Illegal trading of narcotics":
Pursuant to points a and b, Clause 2, Article 194; points o and p, Clause 1, Article 46 of the 1999 Penal Code, the defendant Tran Van Thuan is sentenced to 09 (nine) years in prison, the term of imprisonment is calculated from December 27, 2017.
Pursuant to points a and b, Clause 2, Article 194; points o and p, Clause 1; Clause 2, Article 46 of the 1999 Penal Code, to sentence defendant Tran Van Thang to 07 years of imprisonment.
(Seven) years in prison, the term of imprisonment to be calculated from December 27, 2017.
Pursuant to points a and b, Clause 2, Article 194; points o and p, Clause 1, Article 46; Article 47; Article 69 and Article 74 of the 1999 Penal Code, the defendant Hoang Trung Hieu is sentenced to 05 (five) years in prison, the term of imprisonment to be calculated from December 27, 2017.
Considering that the verdict was delivered with precise effort from the investigation steps to the trial.
When deciding on the sentence, the court considered the personality, role, and mitigating and aggravating circumstances of each defendant's criminal responsibility:
Regarding mitigating factors: the defendants cooperated with the authorities.
ability, showing an attitude of reformation, rehabilitation, and non-resistance. In addition to the crime caught in the act, the defendants also confessed to previous crimes. Defendant Thang, after hearing that Thuan was arrested, turned himself in. This is a mitigating circumstance stipulated in points o, p, clause 1; clause 2, Article 46 of the 1999 Penal Code.
Regarding the aggravating factors of the crime: there are no aggravating factors of the crime.
Regarding personal background: Defendants Thuan and Thang have bad personal backgrounds, have a criminal record for "Illegal use of drugs", and were fined 750,000 VND by the Chief of Police of Tan Chau District, Tay Ninh Province. The two defendants have paid the fine but the time has not yet expired, which is considered not to have been administratively punished. Defendant Hieu has a good personal background, has no criminal record.
Regarding the role: Defendant Thuan played the role of mastermind, organizer, enticer and direct perpetrator 7 times, so he must receive the main and highest punishment in the case. Defendant Thang was an accomplice with the role of assisting, committing 4 times, so he must bear lower criminal responsibility than defendant Thuan and higher than defendant Hieu. Defendant Hieu was an accomplice with the role of assisting and committing 2 times, so he must receive the punishment after defendant Thuan and Thang.
Considering that the crimes committed by the defendants Thuan, Thang and Hieu are very serious, it is necessary to impose a severe sentence commensurate with the crimes and isolate the defendants from social life for a period of time to reform and educate them to become useful members of society, while also having the effect of education, deterrence and general prevention. Defendant Hieu committed the crime at the age of 17, so it is necessary to apply Articles 47, 69 and 74 of the 1999 Penal Code, and sentence defendant Hieu under the penalty framework that the Procuracy has prosecuted.
We can see that the verdict of the Court is extremely reasonable, considering all aspects of the problem, delving into the personal background and role of each defendant, ensuring the right person, the right crime.
2.2. Some problems, limitations and causes
2.2.1. Some existing problems and limitations
In addition to the above achievements, there are inevitably still aspects that have not been implemented well, meticulously and completely that the People's Court of Tan Chau district, Tay Ninh province needs to recognize in order to promptly overcome and amend:
- Regarding the criminal charge between illegal possession and trafficking of drugs:
In some practical cases, there have been cases where the subject admitted to storing the goods for sale to anyone in need, and the authorities determined that this subject only committed the crime of storing and not the crime of buying and selling due to the ambiguity in the buying and selling relationship as well as the subject of the buyer.
Or there was a case where, after successfully selling drugs once, the subject stored 0.5g of synthetic drugs to sell to anyone in need. Then, there was a conflict of ideas on how to handle the problem when the Procuracy thought that it was necessary to prosecute the subject on two charges of illegal possession and trafficking of drugs, while the Court expressed the view that only one charge of illegal trafficking of drugs was appropriate and sufficient for both of the above acts. Regarding the above case, there are currently two separate views as follows:
One is , combine all of them and apply them to Clause 1, Article 251.
Second , it should be considered as only one crime of illegal drug trafficking, the aggravating circumstance is "committing the crime multiple times".
Both of the above views have some loose ends:
Firstly , up to now, there has never been a clear and precise concept in any legal or sub-legal document about what constitutes illegal drug trafficking, and we can only interpret it indirectly through Clause 1, Article 249, that is, if stored for illegal sale, it will be considered an act of illegal drug trafficking.
Second , in reality, it is not always the case that a subject stores drugs.