Legal basis for the temporary detention of model Ngoc Trinh.
Model Ngoc Trinh has been charged and temporarily detained for investigation into the crime of disturbing public order. Her lawyer has provided an analysis outlining the legal basis for her temporary detention.
As mentioned, model Ngoc TrinhThe Ho Chi Minh City Police issued a decision to prosecute and execute an arrest warrant for temporary detention to investigate the crime of "Disrupting public order" as stipulated in Article 318 of the Penal Code.
Speaking to VietNamNet, Dr. Dang Van Cuong, a lawyer, suggested that the prosecuting authorities likely took decisive action against the model based on the local government's written recommendation and an assessment of the negative impacts of the traffic violations posted on Ngoc Trinh's social media accounts.
The image shows Ngoc Trinh striking dangerous poses on a motorcycle. Photo: Screenshot from a video.
With the 2015 Penal Code, amended and supplemented in 2017 and currently in effect, acts of disturbing public order have been expanded to allow prosecuting authorities discretion in applying criminal sanctions. Therefore, the definition of "serious consequences" is no longer defined by quantitative figures as in the old law and previous guidelines of the Council of Judges.
Criminal prosecution is possible simply if an act is deemed to have a "negative impact on public order and safety." Whether an act of disturbing public order has a negative impact on public order and safety is a qualitative consequence and is assessed by the prosecuting authority.
The Penal Code of 2015, amended and supplemented in 2017, stipulates the crime of disturbing public order as follows:
1. Any person who disrupts public order, causing adverse effects on security, order, and social safety, or who has been previously fined for this administrative violation, or who has been convicted of this crime and whose criminal record has not been expunged and who commits the offense again, shall be fined from VND 5,000,000 to VND 50,000,000, sentenced to non-custodial correctional labor for up to 2 years, or imprisoned from 3 months to 2 years.
2. Committing an offense falling under one of the following circumstances shall be punishable by imprisonment from 2 to 7 years:
a) Organized;
b) Using weapons, dangerous instruments, or engaging in acts of vandalism;
c) Causing serious traffic obstruction or disrupting public services;
d) Inciting others to cause trouble;
(d) Assaulting a person who intervenes to protect public order;
e) Dangerous recidivism.
According to the lawyer's analysis, based on initial developments, Ngoc Trinh may be prosecuted under Clause 1, Article 318 of the Penal Code, with a penalty range of a fine of 5-50 million VND, non-custodial correctional punishment up to 2 years, or imprisonment from 3 months to 2 years.
This is a less serious crime as defined in Article 9 of the Penal Code. In the event of conviction for this crime, the maximum penalty is up to 2 years imprisonment, unless the defendant has committed other crimes (if any).
The grounds for Ngọc Trinh's temporary detention.
What is noteworthy in this case is that the investigating agency has charged Ngoc Trinh with disturbing public order and has applied the measure of temporary detention against the suspect for investigation.
According to lawyers, generally, for less serious and serious crimes, the investigating agency will not detain the suspect, but only apply the measure of prohibiting them from leaving their place of residence after indicting the suspect. Detention is only applied to suspects indicted for less serious and serious crimes if the suspect has no clear place of residence, shows signs of fleeing, or obstructs the investigation...
Pre-trial detention and restrictions on leaving one's place of residence are measures to prevent the suspect from carrying out investigative activities as prescribed by law. If pre-trial detention is applied, the suspect will be held in custody and isolated from social life during the course of the proceedings.
However, if a travel ban is imposed, the suspect is still allowed to eat, live, and carry out normal activities at home or their place of residence and only needs to be present when requested by the investigating agency.
According to Dr. Dang Van Cuong, Article 119 of the 2015 Criminal Procedure Code stipulates that the subjects to whom the measure of temporary detention applies are suspects and defendants in the following cases:
The defendant is accused of committing a very serious crime, an exceptionally serious crime; or a serious crime, or a less serious crime for which the Penal Code prescribes a prison sentence of more than two years, and in cases where there are grounds to believe that the person may abscond or obstruct the investigation, prosecution, or trial, or may continue to commit crimes.
For female defendants or accused persons who are pregnant or breastfeeding children under 36 months old, or who are elderly, frail, or seriously ill, and who have a clear place of residence, they will not be detained but will be subject to other preventive measures.
Only in exceptional circumstances, such as serious crimes, very serious crimes, or exceptionally serious crimes, and when there are grounds to believe that without temporary detention the person may escape, obstruct the investigation or trial, or continue to commit crimes, should they be temporarily detained.
The lawyer argued that, in the case of Ngoc Trinh being investigated under Clause 2, Article 318 (punishment exceeding 2 years imprisonment), and given the evidence suggesting that without temporary detention, the suspect might flee or obstruct the investigation, the investigating agency's decision to temporarily detain the model for investigation in accordance with the law is justified.
