Cassation decision No. 34/2010/HS-GDT dated December 9, 2010 hearing the case of Nguyen Thi Dong accused of abuse of power or position in performance of official duties

THE SUPREME PEOPLE’S COURT

CASSATION DECISION NO. 34/2010/HS-GDT DATED DECEMBER 9, 2010 HEARING THE CASE OF NGUYEN THI DONG ACCUSED OF ABUSE OF POWER OR POSITION IN PERFORMANCE OF OFFICIAL DUTIES

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On December 9, 2010, at the head office of the Supreme People’s Court, a cassation trial is conducted to hear the criminal case against:

1. Nguyen Thi Dong, born in 1954; residing at 7B Group 5, Quan Hoa Ward, Cau Giay District, Hanoi City; Director of Foreign Labor Cooperation Company, affiliated to Vietnam National Textile and Garment Group (Vinatex); father: Mr. Nguyen Khac Lanh and mother: Nguyen Thi Re (dead); husband and two children, in custody from June 24, 2005 to May 30, 2007.

2. Tran Thanh Hai (Tran Van Dau), born in 1962; residing at 56-B2, collective quarter 198 Yen Lang, Lang Thuong Ward, Dong Da District, Hanoi City; Manager of the Japanese market operation affiliated to Foreign Labor Exploitation Company; father: Mr. Tran Van Canh (dead) and mother: Mrs. Nguyen Thi Thao (dead); a wife (divorced) and two children; in custody since June 22, 2005.

FINDING THAT

The Foreign Labor Cooperation Company affiliated to Vinatex for which Nguyen Thi Dong acts as a Director was authorized by Vinatex to exploit the foreign worker market. From September 2001 to May 2005, Nguyen Thi Dong and Tran Thanh Hai (Manager in Japanese market) had signed contract with 08 Japanese occupation-based unions and completed paperwork to send 23 delegations of Vietnamese trainees consisting of 423 trainees to work in Japan.

Abusing the authorized positions and power, Dong and Hai directed their subordinates to collect many unofficial fees, including: brokerage fee, solicitor fee, temporary fee for contract anti-cancellation, training and subsistence fee during the training, selection fee, etc, totaling USD 1,009,800 and VND 981,420,000. In which:

1. Regarding brokerage fee: Dong and Hai directed to collect money from 423 trainees, totaling USD 790,400; when collecting fee, no receipt was issued, no bookkeeping was established as prescribed in regulations on financial accounting and the collected money was not transferred to the Company’s fund, the workers paid money and signed in a list kept by the collecting person (this list was destructed after the workers left Vietnam). After finishing collecting the fees, the officials of Company transferred money to Dong and Hai without making a receipt voucher, Dong and Hai both admits that they receive and spent such above amount of money. Dong confessed that Hai gave him USD 12,000; at the investigation agency, Hai confessed that Dong gave him USD 8,000 but denied later. Dong and Hai cannot determined and proved what they spent the remaining money on.

2. Solicitor remuneration: In 2001, Nguyen Thi Dong signed a contract with Mr. Vu Van Loi - Deputy Director of Hanoi Legal Consultancy Firm to verify dossiers and instruct workers matters associated with labor contracts, property mortgage contract, etc. for the consulting remuneration of VND 300,000 per person. Total collected amount from 316 workers is VND 85,200,000, Hai transferred VND 75,900,000 to Mr. Loi (without any receipt or invoice but Mr. Loi confirms that he received such an amount), and VND 9,300,000 has been seized by the investigation agency.

3. Temporary fee: from November 11, 2004 to August 2005, Nguyen Thi Dong directed Tran Thi Hong Van who is an employee of Department of Finance and Accounting to collect from 141 workers USD 219.40 and VND 556,000,000, to bind the workers not to cancel the contracts, this kind of fee was returned to workers before they left Vietnam.

The investigation agency seized USD 70,000 + VND 192,000,000; the remaining sum of money was fully returned to workers.

4. Training, language learning and uniform cost: Although occupation-based unions subsidized training cost each worker USD 80, Dong still directed Van to collect from 77 workers (in delegations left Vietnam in April and May 2005) VND 3,000,000 to 4,500,000 each, the total proceed is VND 306,500,000, which is included in the revenue of the Company and recorded as orientation training, Japanese teacher hiring, equipment procurement for workers’ practice and workers’ uniforms. . . . This sum of money is indicated in the proof of statement as prescribed.

5. Examination fee: on January 23, 2005, Tran Thanh Hai directed the employees of the Department of Japanese market Chau Thuc Anh and Dinh Hong Nguyet to collect examination fees from 62 people of VND 33,720,000. This sum of money was spent on examination: location cost VND 6,220,000, return to 2 unsuccessful candidates VND 800,000, VND 2,849,000 for Hai and VND 8,100,000 for Dong. Remaining VND 21,980,000 was seized by the investigation agency.

Thus, total collect amount is USD 1,009,800 and VND 981,420,000.

Deducting the actual expenses and the seized amount, Nguyen Thi Dong and Tran Thanh Hai have to be liable for USD 682,400 of unjustifiable brokerage fee and VND 10,940,000 of examination fees that they appropriated.

* In the First Instance Criminal Verdict No. 381/2007/HSST dated November 8, 2007, People’s Court of Hanoi City applied Clause 3 Article 281, Article 411; and additionally applied Point b, p Clause 1, Clause 2 Article 46 and Article 47 of the Criminal Code to Nguyen Thi Dong to sentence: Tran Thanh Hai to 12 years’ imprisonment; Nguyen Thi Dong to 5 years’ imprisonment for “Abuse of power or position in performance of official duties”.

Tran Thanh Hai and Nguyen Thi Dong were compelled to pay USD 682,400 and VND 10,940,000; in which Hai had to pay USD 454,700 and VND 2,840,000; Dong had to pay USD 227,700 and VND 8,100,000 to transfer to the state fund.

Confiscate USD 128,700 and VND 257,175,000 seized by the investigation agency to the state fund.

Keep seizing properties of Nguyen Thi Dong and Tran Thanh Hai (according to attachments dated March 28 and March 28, 2006 of the investigation agency) to ensure the judgment enforcement.

On November 12, 2007, Nguyen Thi Dong filed an appeal for commutation and reconsideration of civil liability.

On November 13, 2007, Tran Thanh filed an appeal for commutation and reconsideration of civil liability.

* In the Appellate Criminal Verdict No. 392/2008/HSPT dated June 5, 2008, the Appellate court of People’s Court of Hanoi City applied Clause 3 Article 281; Point p Clause 1, Clause 2 Article 46; Article 41 of the Criminal Code (and additionally applied Point b, s Clause 1, Clause 2 Article 46 of the Criminal Code to Nguyen Thi Dong) to sentence: Tran Thanh Hai to 10 years’ imprisonment; Nguyen Thi Dong to 4 years’ imprisonment for “Abuse of power or position in performance of official duties”.

Tran Thanh Hai and Nguyen Thi Dong were compelled to pay USD 259,400 (USD 682,400 - USD 423,000) and VND 2,840,000; in which Hai had to pay USD 172,940 and VND 2,840,000; Dong had to pay USD 86,460 to transfer to the state fund.

 * In the Appeal No. 03/QD-VKSNDTC-V3 dated January 29, 2010, the Chief Procurator of the Supreme People’s Procuracy requests the Council of Judges of the Supreme People’s Court to carry out a cassation review to quash the Appellate Criminal Verdict No. 392/2008/HSPT dated June 5, 2008 of the Court of Appeal of the Supreme People's Court in Hanoi and First Instance Criminal Verdict No. 381/2007/HSST dated November 8, 2007 of People’s Court of Hanoi City, to excuse Nguyen Thi Dong and Tran Thanh Hai from criminal and civil liability.

CONSIDERING THAT

From September 2001 to May 2005, Nguyen Thi Dong (the Director of the Foreign Labor Cooperation Company affiliated to Vinatex) and Tran Thanh Hai (Manager of Department of Japanese market) directed subordinates to collect many unofficial fees from workers, totaling USD 1,009,800 and VND 981,420,000.  In which, Dong and Hai cannot justify what the brokerage fee of USD 790,400 spent on; and they appropriated a part thereof. The defendants' acts infringed interests of workers, caused bad impacts on ordinary course of agencies, companies and state’s labor export policies. Therefore, the Court of First Instance and the Court of Appeal were right when convicting them of “Abuse of power or position in performance of official duties” offence.

 During the trial process, despite the fact that the Ministry of Finance and the Ministry of Labor, War Invalids and Social Affairs promulgated a Joint Circular No. 59/2006/TTLT-BTC-BLDTBXH dated June 26, 2006 on guidelines for brokerage fees in labor export, allowing collection of brokerage fees, Dong and Hai, during the collection of brokerage fees, directed subordinates not to keep records, issue invoices or receipts and destruct all materials related to fee collection after the workers leave Vietnam; while the trial was in progress, Nguyen Thi Dong and Tran Thanh Hai did not admit their personal responsibility; blamed each other; and cannot justify that they paid brokers such expense; Nguyen Thi Dong and Tran Thanh Hai both appropriated a part of the above-mentioned sum of money (Dong admitted to appropriating USD 12,000, Hai admitted to appropriate USD 8,000) and they have to return a large amount of money to the state. Therefore, despite the changes of situation that brokerage fees are accepted by law, Dong and Hai’s acts of self-interest in performance of official duties cannot be considered as a non-danger to society, thus; there is no justifiable ground to excuse them from criminal liability.

Regarding the collected amount of money, those who paid such fees do not claim for damages and it is impossible to justify that whether such amount was spent on the labor export costs or the defendants appropriated it; thus, there are insufficient grounds to compel them to return it.

After appellate trial, Nguyen Thi Dong presented the Market Exploitation Contract No. 05 dated August 5, 2003 between the Foreign Labor Cooperation Company represented by Nguyen Thi Dong and Intersevice Company represented by Mr.Nagayama Ken; content of the Contract is that Intersevice Company acts as a broker to assist  the Foreign Labor Cooperation Company in sending trainees to Japan with the brokerage fee of USD 2,000 per person. This Contract was verified by the Supreme People’s Procuracy. Although this Contract does not clarify the number of trips, trainees in trips, total brokerage fee received by the Japanese side, it partly indicates that from the signing date of the Contract No. 05 until the discovery of the case, the Company of Nguyen Thi Dong sent 270 trainees, total collected sum of money was USD 606,100; total expense was USD 540,000 (USD 2,000/person x 270 people). The difference between revenue and expense is USD 66,100 (USD 606,100 - USD 540,000).

Accordingly, during the execution of Contract No. 05 dated August 5, 2003, Nguyen Thi Dong and Tran Thanh Hai only have to return USD 66,1000.

From the foregoing consideration, considering that: due to the change of situation that regulation on permission of brokerage fee collection as to Japanese labor market takes effect while the case has been heard, the nature of danger to society of defendants’ acts declines. Alternatively, the sum of money payable by the defendants considerably decreases, so the sentence imposed by the Court of Appeal becomes too strict, thus, that sum of money to be payable by the defendants must be re-considered. Therefore, it is necessary to quash the Appellate Criminal Verdict No. 392/2008/HSPT dated June 5, 2008 of the Court of Appeal of the Supreme People’s Court in Hanoi in terms of criminal liability and judicial measures imposed on Nguyen Thi Dong and Tran Thanh Hai to remand case for re-trial as per the law.

Based on the above-mentioned facts and matters: Pursuant to Clause 3 Article 285 and Article 287 of the Criminal Procedure Code,

HEREBY DECIDES

Quash the Appellate Criminal Verdict No. 392/2008/HSPT dated June 5, 2008 of the Court of Appeal of the Supreme People’s Court in Hanoi in terms of criminal liability and compelling Tran Thanh Hai to return USD 172,940 and VND 2,840,000. Nguyen Thi Dong has to return USD 86,470 to confiscate to the state fund”; remand the case back to the Court of Appeal for re-trial as per the law.

Other decisions made by the Court of Appeal remain effective.