Cassation judgement No. 06/2005/HDTP-HS dated february 24, 2005 on abuse of trust to appropriate property

THE SUPREME PEOPLE'S COURT

CASSATION JUDGEMENT NO. 06/2005/HDTP-HS DATED FEBRUARY 24, 2005 ON ABUSE OF TRUST TO APPROPRIATE PROPERTY 

On February 24, 2005 at the head office of the Supreme People's Court, a cassation trial is conducted to hear the criminal case against:

Pham Van Cuong born in 1940; residing at 30 21A street, Loc Hoa, Nam Dinh city, Nam Dinh province; working for the Personnel Department of Nam Dinh city when committed the crime, the son of Mr. Pham Van Dam (martyr) and Mrs. Tran Thi Ca (deceased); his wife is Tran Thi Tinh and he has three children; in custody from May 27,1998 to May 22,2000.

FINDING THAT

The first instance court and the appellate court convicted Pham Van Cuong on abuse of trust to appropriate property in the following situation:

In April 1977, Pham Ngoc My, who were forced to quit his/her job at the Salary Department of the Labor Division of Ha Nam Ninh province, told Cuong that the company for which My was working were hiring and  completing paperwork for people to work at Korea.Although Cuong did not know where My worked and whether the mentioned company has the function of overseas manpower supply, Cuong still found people who wanted to work abroad as My’s request. At first, Pham Van Cuong intended to introduce Mr. Pham Van Duc to My, but Mr. Duc could not afford to work abroad, then Mr. Duc introduced Mrs. Le Thi Chien (Mr. Duc’s neighbor) to Cuong, since Ms. Nguyen Thi Hoang Oanh, Mrs. Chien’s daughter, wanted to work at Korea. On April 20, 1997, when Mrs. Chien came to Cuong’s house to arrange the procedure, My was there.Both parties agreed that when Ms. Oanh was able to work at Korea, Mrs. Chien would give her land use certificate to My as security and retrieve it after Ms. Oanh sent her mother USD 3.500 from Korea and Pham Van Cuong would be the sponsor.

On April 29, 1977, My took Ms. Oanh to have health examination at Bach Mai Hospital.After the health examination, Pham Van Cuong received money from Mrs. Chien two times with the total amount of VND 5 million: the first time was on May 11, 1997, Cuong received VND 4 million as a deposit; however, Cuong was afraid that Ms. Oanh's boyfriend would prevent her from going to Korea, Cuong wrote a promissory note for that amount of money; the second time was on August 3, 1997, Cuong received VND 1 million as payment for visa and passport services without writing notes for this amount of money.On January 26, 1998, Mrs. Chien asked Cuong to write a promissory note for this amount of money.

In 1998, Ms. Oanh no longer had intention to work abroad and wanted to stay to get married, Mrs. Chien asked for the money but Cuong refused to pay and wrote a note, promising that he would pay her on April 30, 1998.On May 4, 1998, since Cuong refused to pay on the due date, Mrs. Chien filed a complaint to the police to make Cuong pay her money back.On May 25,1998, Cuong wrote another note, promising that he would pay back on June 10,1998; but on May 27, 1998 Cuong was arrested due to being charged with abusing of trust to appropriate property.

At the investigation agency, Cuong declared that the money which Cuong received from Mrs. Chien was given to Pham Ngoc My, but he did not clearly state the time of transferring the money and had no notes of the transferral.Since My had not paid back the money to Cuong, Cuong had no money to pay back to Mrs. Chien, yet Cuong wrote promissory notes for her.As Cuong did not clearly state about My , the investigation agency could not determine where My wasand whether Cuong’s declaration wasright.After being released,  Cuong paid back VND 5 million to Mrs. Le Thi Chien.

At the same time, Cuong also introduced Mr. Pham Tuan Hung and Mr Tran Duc Cuong, who are two acquaintances of Mr. Le Ngoc Boi, to My for working at Korea.The arrangement were made at Cuong’s house and Pham Ngoc My was present there.After that, My took both of them to have health examination at Bach Mai Hospital.After the health examination, Pham Van Cuong received USD100 and VND 16.500.000 (17.600.000 in total) from Mr. Le Ngoc Boi and wrote a promissory note for such money.In August,1997, realizing that his acquaintances could not work at Korea, Mr. Boi asked Cuong to pay his money back and Cuong paid back VND 12 million to him.As for the remaining amount, Cuong gave Mr. Boi the land use certificate of sister/brother-in-law as a pledge.As for this action, Pham Van Cuong was prosecuted for “Obtaining property by fraud”; however, the First instance court and the Appellate court determined that it was a civil relation.

In 1996, Pham Van Cuong and Tran Thi Tinh borrowed VND 200 million from Vietinbank Nam Dinh. For this action, the first instance court and the appellate court convicted Pham Van Cuong and Tran Thi Tinh on “Abusing of trust to appropriate property”; however, the Board of Justices of the Supreme People's Court declared that they did not commit such crime.

In the First instance Verdict No. 27/HSST dated January 24, 1999, the People’s Court of Nam Dinh province applied clause 1 Article 158, clauses 2 and 3 Article 38 of The 1985 Criminal Code to sentence Pham Van Cuong to 06 months imprisonment, and Pham Van Cuong was compelled to pay VND 5 million of damages to Mrs. Le Thi Chien.

After the first instance court, Mrs. Le Thi Chien filed an appeal to request Pham Van Cuong to pay immediately VND 5 million and interest.

In Decision No. 52/KSXXHSdated January 30, 1999, the Chief Procurator of the People’s Procuracy of Nam Dinh province requested the Appellate court to change Pham Van Cuong’s conviction from “abusing of trust to appropriate property” to “obtaining property by fraud” and increase penalties for him.

In Decision No. 09/PT1 dated February 14,2000, the Prosecutor General of the Supreme People’s Procuracy withdrew the Decision above.

In the Appellate Verdict No. 947/HSPT dated May 22, 2000, the Appellate court of the Supreme People’s Court of Hanoi applied clause 1 Article 158,  points a and d clauses 1, 2 and 3 Article 38 of The 1985 Criminal Code to sentence Pham Van Cuong to 04 months imprisonment for “abusing of trust to appropriate property”.

In the Cassation Appeal No. 46/2004/HS-TK dated December 31, 2004, the Chief Justice of the Supreme People’s Court requested the Council of Justices of the Supreme People's Court to invalidate the result of the appellate and first instance courts which sentenced Pham Van Cuong for abusing of trust to appropriate property and suspend the case; declared that Pham Van Cuong did not abuse trust to appropriate property since his action did not constitute the crime.

CONSIDERING THAT

Mrs. Le Thi Chien gave Pham Van Cuong VND 5 million because she wanted her daughter to work aboad.Pham Ngoc My was participated in all arrangements for working abroad.When Mrs. Chien asked Cuong to pay her money back, Cuong said that all her money was given to My and My had not paid back to Cuong, therefore, Cuong was unable to pay back.Thus, Cuong’s activities are related to Pham Ngoc My, yet the investigation, prosecution and trial did not prove how My cooperated with Cuong to arrange the overseas manpower supply and whether they intended to obtain property by fraud.However, the case happened 07 years ago, if the re-investigation could prove that Cuong did commit the crime as prescribed in clause 1 Article 158 of the 1985 Criminal Code or clause 1  Article 140 of the 1999 Criminal Code, the prescriptive period of crime prosecution prescribed in point a clause 2 Article 23 of the 1999 Criminal Code were exceeded; therefore, the invalidation of the  first instance and appellate courts for re-investigation is not necessary.Based on documents and evidence in the case file, it is necessary to determine that Pham Van Cuong's action did not constitute the act of abusing of trust to appropriate property.

Based on the aforementioned facts and matters, pursuant to Article 285, 286 and Clause 2 Article 107 of the Criminal Code;

HEREBY DECIDES

Quash the Appellate Verdict No. 947/HSPT dated May 22, 2000 of the Court of Appeal of the Supreme People’s Court in Hanoi and the First Instance Verdict No. 27/HSST dated January 25,1999 of the People’s Court of Nam Dinh province in terms of trying and convicting Pham Van Cuong of abuse of trust to appropriate property; declare that Pham Van Cuong is not guilty of abuse of trust to appropriate property and suspend the case of Pham Van Cuong.

- Causes for  quashing the Appellate and First instance verdicts: 

1. The prescriptive period for criminal prosecution of Pham Van Cuong was expired;

2. There are insufficient grounds to determine that Pham Van Cuong committed the crime of “abusing of trust to appropriate property”.

- Reasons for  quashing the Appellate and First instance verdicts : 

1. Inadequacies in examination and assessment of evidence.

2. Inadequacies in the application of provisions of the Criminal Code on the prescriptive period for criminal prosecution.