Appellate judgment No. 01/2015/HSPT dated 14/01/2015 on snatching committed by Nguyen Van Anh and accomplices

CENTRAL MILITARY COURT

APPELLATE JUDGMENT NO. 01/2015/HSPT DATED 14/01/2015 ON SNATCHING COMMITTED BY NGUYEN VAN ANH AND ACCOMPLICES

On 14-1-2015, at the office of the Military Court of Military Zone 5, an appellate trial is conducted to hear the Criminal Case No. 09/2014/HSPT1 dated 17-10-2014 against Nguyen Van Anh and other defendants as the First Instance Criminal Judgment No. 01/2014/HSST dated 20-2-2014 by the Military Court of Military Zone 2 was appealed against by the Chief Prosecutor of the Military Procuracy of Military Zone 2.

Appellees:

1. Nguyen Van Anh (also known as Beo), born on 14-02-1995 in Quang Nam; enlisting in 02/2013; rank, post and unit at the time of crime commission: Private First Class, enlisted member, Technology Warehouse K55, Technology Department, Military Zone 5; identity card No. 205953058 issued by Quang Nam Police on 20/4/2012; education level: 10/12; father: Mr. Nguyen Phu, born in 1970, occupation: farmer; mother: Mrs. Phan Thi Mai, born in 1970, occupation: farmer; 2 siblings, appellee is middle child; previous convictions and administrative violations: none; caught on 15-5-2014; detained from 23-5-2014, currently in detention center of Military Zone 5. Present.

2. Tran Thanh An, born on 31-5-1996; place of residence: Cam Thanh commune, Hoi An city, Quang Nam; occupation: student; identity card No. 206217236 issued by Quang Nam Police on 23-7-2013; education level: currently in 12th grade; father: Mr. Tran Thanh, born in 1972, occupation: fisherman; mother: Mrs. Pham Thi Be, born in 1972, occupation: housewife; 1 sibling, appellee being eldest child; previous convictions and administrative violations: none; caught on 15-5-2014; detained from 23-5-2014, currently in detention center of Military Zone 5. Present.

3. Tran My Lai, born on 01-6-1991; place of residence: Duy Hai commune, Duy Xuyen district, Quang Nam; occupation: restaurant cook; identity card No. 205840356 issued by Quang Nam Police on 11-5-2011; education level: 8/12; father: Mr. Tran Van Hien, born in 1964, occupation: farmer; mother: Mrs. Huynh Thi Hai, born in 1962, occupation: farmer; 4 siblings, appellee being second child; wife: Pham Thi Thuy Vi, born in 1990; previous convictions and administrative violations: none; detained from 30-5-2014; out on bail from 03-7-2014. Present.

FINDING THAT

According to the Criminal Judgment No. 01/2014/HSST dated 10-9-2014 by the Military Court of Military Zone 5, the case is summarized as follows:

Around 10 PM on 13-5-2014, Nguyen Van Anh drank alcohol with Tran Thanh An, Tran My Lai, Nguyen Van Toan, Nguyen Van Tu and Tran Van Diep on an embankment road in Thanh Nam neighborhood, Cam Chau ward, Hoi An city, Quang Nam. At 2:15 AM on 14-5-2014, Anh said,”Let’s do a job for alcohol cash.” Lai asked, “What job?” Anh replied, “Snatch some white’s stuff.” Lai said, “I’ll find them.” Then, An drove Anh to Hoi An old quarters with a motorcycle with license plate No. 92D1 -142. 19. After reaching Cua Dai street, Anh and An saw 4 foreigners walking side by side in the same direction on the right side of the road just in front of them. Anh told An to drive past them and then turn back. An drove the motorcycle about 50 meters past the foreigners then turned back and drove right next to Ms. Jaeger Samantha Ashlee, who was walking farthest to the left. Anh snatched her bag with his left hand, which contained 01 Iphone 5 and VND 500.000.

While An was driving Anh, Lai took the motorcycle with license plate No. 92S2-9284 and asked Toan to join him. Toan asked, “To where?” Lai replied, “Come on.” Lai drove Toan along some streets and found two foreigners walking on Tran Quang Khai street. Lai drove back to the embankment just as An and Anh returned. “There are two foreigners over there,” Lai told Anh. Anh asked, “Where?” “Near Ty Gia restaurant,” Lai answered. An drove Anh in the direction that Lai told them. Upon reaching Tran Quang Khai street, they found two foreigners walking in the same direction in front of them on the left side of the road. Anh told An to drive past them and then turn back. After approaching Ms. Sofieke Pauline De Wilde, Anh snatched her bag with his right hand, which contained 01 Iphone 5c phone and VND 1.000.000.

The First Instance Criminal Judgment No. 01/2014/HSST dated 10-9-2014 by the Military Court of Military Zone 5 decides as follows:

Regarding the crime: declare Nguyen Van Anh, Tran Thanh An and Tran My Lai guilty of snatching.

Pursuant to Clause 1 Article 136; Point p Clause 1 Article 46; Point g Clause 1 Article 48; Clauses 1 and 2 Article 20; and Article 53 of the Criminal Code, sentence Nguyen Van Anh to 18 (eighteen) months in prison. The prison term commences from the date of detention (15-5-2014).

Pursuant to Clause 1 Article 136; Points b and p Clause 1 Article 46; Point g Clause 1 Article 48; Clauses 1, 3 and 5 Article 69; Clause 1 Article 74; Clauses 1 and 2 Article 20; and Article 53 of the Criminal Code, sentence Tran Thanh An to 9 (nine) months in prison. The prison term commences from the date of detention (15-5-2014).

Pursuant to Clause 1 Article 136; Points b and p Clause 1 Article 46; Clauses 1 and 2 Article 20; Article 53; and Clauses 1 and 2 Article 60 of the Criminal Code, impose a suspended sentence of 12 (twelve) months in prison upon Tran My Lai, with a probation period of 24 months starting from the date of pronouncement (10-9-2014). Place Tran My Lai under the supervision of the People's Committee of Duy Hai commune, Duy Xuyen district, Quang Nam during the probation period. If the defendant moves to a new address, regulations in Clause 1 Article 69 of the Law on Execution of Criminal Judgments shall apply.

Additionally, the First Instance Court also decided late payment interest rate, handling of exhibits and court fees and announced the right to appeal to the defendants and litigants.

On 09-10-2014, the Chief Prosecutor of the Central Military Procuracy appealed against the First Instance Judgment No. 01/2014/HSST dated 10-9-2014 by the Military Court of Military Zone 5 with respect to application of Clause 1 Article 136 of the Criminal Code to try Nguyen Van Anh, Tran Thanh An and Tran My Lai and decision on penalties imposed upon the appellees. Request to apply Point d Clause 2 Article 136 of the Criminal Code on snatching and impose more severe penalties upon the appellees.

At the appellate trial, the Procuracy representative upholds the appeal.

In the debate at the trial, the Prosecutor claims that the appeal by the Chief Prosecutor of the Central Military Procuracy is valid and cites to evidences clarifying the nature and severity of the offence committed by the appellees. There are valid grounds and it is lawful for the Military Court of Military Zone 5 to convict Nguyen Van Anh, Tran Thanh An and Tran My Lai of snatching. However, the Military Court of Military Zone 5 tried the appellees in accordance with Clause 1 Article 136 of the Criminal Code, which was against the guidelines provided for in Point 5.3 Section I of the Joint Circular No. 02/2001/TTLT-TATC-VKSTC-BCA-BTP dated 25-12-2001 by the Supreme People’s Court, Supreme People’s Procuracy, Ministry of Public Security and Ministry of Justice on application of some regulations in Chapter XIV "Offences against rights of property" of the 1999 Criminal Code. In this case, Tran Thanh An drove Nguyen Van Anh with the motorcycle with license plate No. 92 D1 - 142. 19 to snatch property of Ms. Jaeger Samantha Ashlee and Ms. Sofieke Pauline De Wilde, which was “use of a dangerous method” provided for in Point d, Clause 2 Article 136 of the Criminal Code. Tran My Lai agreed to Nguyen Van Anh’s suggestion and, after An drove Anh away, drove the motorcycle with license plate No. 92 S2 - 9284 to find foreigners and tell their locations for Anh and An to snatch their property. Thus, as per the law, the appellees must be tried in compliance with Point d Clause 2 Article 136 of the Criminal Code. 18 months in prison, 09 months in prison and a suspended sentence of 12 months in prison imposed upon Nguyen Van Anh, Tran Thanh An and Tran My Lai, respectively, by the Military Court of Military Zone 5 are too light and inappropriate to the nature and severity of the offence committed by the appellees and consequences thereof.

Request the Appellate Trial Panel of the Central Military Court to accept the appeal, apply Point d Clause 2 Article 136 of the Criminal Code on snatching to try Nguyen Van Anh, Tran Thanh An and Tran My Lai. Increase the prison terms of Nguyen Van Anh and Tran Thanh An; increase the suspended prison sentence and probation period of Tran My Lai.

The appellees give no opinion.

According to the exhibits and documents inspected at the trial; according to the result of the debate at the trial; and on the basis of the exhibits, documents and opinions of the Prosecutor and appellees,

CONSIDERING THAT

For the sole reason of lacking money for alcohol, in the late evening of 13-5-2014 and morning of 14-5-2014, after drinking, Nguyen Van Anh, Tran Thanh An and Tran My Lai had the intention of snatching property of foreigners in Hoi An city, Quang Nam. When Anh suggested snatching property of foreigners, An and Lai agreed with him. Tran Thanh An drove Nguyen Van Anh with a motorcycle while Tran My Lai drove Nguyen Van Toan with a motorcycle to find foreigners for Anh and An to snatch their property. In a short period of time, An drove Anh to snatch property of walking foreigners twice. The property snatched by the appellees included 02 Iphone 5 phones and a total amount of VND 1.500.000.

The Trial Panel finds that the Procuracy’s appeal is valid. In the Appeal as well as at today’s trial, based on the Joint Circular No. 02/2001/TTLT-TATC-VKSTC-BCA-BTP dated 25-12-2001 by the Supreme People’s Court, Supreme People’s Procuracy, Ministry of Public Security and Ministry of Justice on application of some regulations in Chapter XIV "Offences against rights of property" of the 1999 Criminal Code, the Procuracy claims that it was wrongful of the Military Court of Military Zone 5 to convict Nguyen Van Anh, Tran Thanh An and Tran My Lai of snatching according to Clause 1 Article 136 of the Criminal Code. Therefore, as per the law, the appellees must be tried in accordance with Point d Clause 2 Article 136 of the Criminal Code. According to the guidelines provided for in Point 5.3 Section I of the abovementioned Joint Circular, “use of a dangerous method” stated in Point d Clause 2 Article 136 of the Criminal Code means use of a method to snatch property that poses danger to the life or health of the aggrieved person or another person. Examples include use of a motorcycle for snatching.

The Trial Panel holds that not every use of a motorcycle for snatching can be considered as “use of a dangerous method” stated in Point d Clause 2 Article 136 of the Criminal Code and such consideration must given on a case-by-case basis. This is because Circular 02 provides for use of a method to snatch property that poses danger to the life or health of the aggrieved person or another person. In this case, Nguyen Van Anh and Tran Thanh An did employ a motorcycle for snatching but they snatched property from pedestrians late at night with no other road users. In this case, the appellees snatched property without making the aggrieved persons fall or suffer from injury, so there was little danger. Therefore, that the First Instance Court convicted the appellees of snatching in accordance with Clause 1 Article 136 of the Criminal Code is appropriate to the nature of the offence committed by the appellees. Thus, there are no grounds to accept the Procuracy’s appeal concerning application of the “use of a dangerous method” fact as per Point d Clause 2 Article 136 of the Criminal Code.

Regarding the penalties, the Trial Panel finds that 18 months in prison, 09 months in prison and a suspended sentence of 12 months in prison imposed upon Nguyen Van Anh, Tran Thanh An and Tran My Lai, respectively, by the First Instance Court with due consideration given to the role, responsibility, aggravating circumstances and mitigating circumstances of each appellee are suitable and can sufficiently reprimand and enable the appellees to become good citizens later. On the other hand, the appellees are young, some appellees were juveniles at the time of crime commission, thus, they had limited understanding; all appellees come from families of workers, have good records and no previous convictions or administrative violations; and the offence was committed on impulse. Therefore, it is not necessary to increase the punishment imposed upon the appellees according to the Procuracy’s appeal.

Based on the abovementioned facts and matters, pursuant to Point a Clause 2 Article 248 of the Criminal Procedure Code, the Appellate Trial Panel of the Central Military Court,

HEREBY DECIDES

1. Reject the appeal of the Central Military Procuracy and uphold the criminal penalties imposed upon the appellees stated in First Instance Judgment No. 01/2014/HSST dated 10-9-2014 by the Military Court of Military Zone 5.

Pursuant to Clause 1 Article 136; Point p Clause 1 Article 46; Point g Clause 1 Article 48; Clauses 1 and 2 Article 20; and Article 53 of the Criminal Code, sentence Nguyen Van Anh to 18 (eighteen) months in prison for the crime of snatching. The prison term commences from the date of detention (15-5-2014).

Pursuant to Clause 1 Article 136; Points b and p Clause 1 Article 46; Point g Clause 1 Article 48; Clauses 1, 3 and 5 Article 69; Clause 1 Article 74; Clauses 1 and 2 Article 20; and Article 53 of the Criminal Code, sentence Tran Thanh An to 9 (nine) months in prison for the crime of snatching. The prison term commences from the date of detention (15-5-2014).

Pursuant to Clause 1 Article 136; Points b and p Clause 1 Article 46; Clauses 1 and 2 Article 20; Article 53; and Clauses 1 and 2 Article 60 of the Criminal Code, impose a suspended sentence of 12 (twelve) months in prison upon Tran My Lai for the crime of snatching, with a probation period of 24 (twenty-four) months starting from the date of pronouncement of the First Instance Judgment (10-9-2014). Place Tran My Lai under the supervision of the People's Committee of Duy Hai commune, Duy Xuyen district, Quang Nam during the probation period. If the appellee moves to a new address, regulations in Clause 1 Article 69 of the Law on Execution of Criminal Judgments shall apply.

2. Other decisions in the First Instance Judgment No. 01/2014/HSST dated 10-9-2014 not subject to any petition or appeal shall come into force from the date on which the time to petition/appeal expires.

This Appellate Judgment takes effect from the date of pronouncement.