Cassation judgment No. 10/2013/HS-GDT dated july 22, 2013 on criminal case against phan chi loc and nguyen thi hoa obtaining property by fraud

THE SUPREME PEOPLE’S COURT

CASSATION JUDGMENT NO. 10/2013/HS-GDT DATED JULY 22, 2013 ON CRIMINAL CASE AGAINST PHAN CHI LOC AND NGUYEN THI HOA OBTAINING PROPERTY BY FRAUD 

On July 22, 2013, at the head office of the Supreme People’s Court, a cassation trial is conducted to hear the criminal case against:

1/ Phan Chi Loc, born in 1950; residing in neighborhood 3, ward 1, Dong Ha city, Quang Tri province; Deputy Director of Loc Hoa - Viet Uc Co., Ltd; education level: 10/10; father: Mr. Phan Ngau and mother: Ho Thi Lau (died); wife: Mrs. Nguyen Thi Hoa (subject to a protest in the case); detained from July 23, 2007 to July 24, 2008.

2/ Nguyen Thi Hoa, born in 1959; residing in neighborhood 3, ward 1, Dong Ha city, Quang Tri province; Director of Loc Hoa - Viet Uc Co., Ltd; education level: 2/10; father: Mr. Nguyen Xuan Doi and mother: Mrs. Ho Thi En (died).

* Aggrieved persons: 30 aggrieved persons, residing in Quang Binh, Quang Tri, Ha Tinh, Nghe An and Thanh Hoa provinces.

FINDING THAT

In June 2006, Phan Chi Loc visited his children in Australia. Loc made the acquaintance of Duong Thi Minh Phung, a Vietnamese Australian. Phung introduced that she was Nguyen Thi Huong who had being worked for Department of Immigration and Border Protection of Australia, so she was able to assist Vietnamese people in immigrating to Australia. Loc asked Phung to assist Loc’s family in immigrating to Australia, Phung asked Loc to prepare paperwork and pay AUD 35,000. Phung gave Loc the address and phone number of Nguyen Thi Yen Nhi (Phung’s adopted niece), residing at 171 Ton Dan, district 4, Ho Chi Minh City in order for Loc’s family to transfer money and paperwork to Nhi.  Loc made a call to the wife in Vietnam, Nguyen Thi Hoa, to keep her informed of updates and in July 2006, via Mr. Pham Hai Trieu in Ho Chi Minh City, Hoa transferred Nguyen Thi Yen Nhi AUD 22,000 and USD 2,800 (equivalent to VND 325,000,000).

In September 2006, Phan Chi Loc came back to Vietnam, Phung asked Yen Nhi to pick up Loc at Tan Son Nhat airport to the hotel and wait Phung there. Two days later, Phung returned to Vietnam and they came to Loc’s house together in Dong Ha city, Quang Tri province; then, Loc and his wife and Phung visited the countryside in Bo Trach district, Quang Binh province. While staying at the countryside, knowing that many people sought to study and work abroad, Phung spread rumors that he was able to assist Vietnamese people in studying, travel and work in Australia. Phung guided some people to prepare paperwork and asked them to pay money to Phan Chi Loc, the fee for studying abroad was VND 360,000,000 per person, the fee for working abroad was VND 270,000,000, and the fee for traveling abroad was VND 100,000,000.

According to the deposition of Loc at the investigation body, Phung mutually agreed with Loc that Loc and his wife would earn VND 50,000,000 of commission for every labor export dossier. In addition, Phung would help Loc to immigrate and buy a house in Australia. From the first instance court hearing on October 26, 2009, Loc has asserted that the mentioned deposition was elicited under duress, there was no such an agreement. Phung only promised that he would give VND 50,000,000 to build a vocational training school, and in fact, Phung has not given such an amount of money.

In order to obtain property by fraud, Phung discussed with Loc to establish Loc Hoa - Viet Uc Co., Ltd, and then Loc and Hoa applied for the establishment of Company to the Department of Planning and Investment of Quang Binh province. On October 10, 2006, the Department of Planning and Investment of Quang Binh province granted a business registration certificate to Nguyen Thi Hoa, Director and Phan Chi Loc, Deputy Director, of Loc Hoa - Viet Uc Co., Ltd. Lines of business of the Company comprise: overseas study counseling; guidance and paperwork for visiting and reuniting relatives, migrating and traveling abroad; short-term education:  foreign language teaching for overseas study…

Although Phan Chi Loc and Nguyen Thi Hoa knew that Loc Hoa - Viet Uc Co., Ltd did not register the lines of business of overseas study enrollment and labor export recruitment, after obtaining the business license, Loc released inaccurate notices and advertisements to mislead the people into submitting paperwork for studying and working abroad: advertising that the company acts as representative to admit students to most high schools, junior colleges, universities of Australia, America, Canada, etc. and export labor to Australia, America; or hire workers for definite-term work in Australia. Loc also lied that he has a niece living in Australia, whose husband has worked for Australian Embassy in Vietnam. So he could assist in completing paperwork for travel and labor export. The receipts given to those who submitted paperwork for overseas study or labor export have the same content as follows:  refund the received sum of money if the person concerned could not study or work abroad 3 months after the date of this receipt. Up to the appointment date, no one could be migrated, Loc claimed inadequate paperwork which required supplemental documents to extend the time.

From September 2006 to May 2007, 30 families in Quang Binh, Quang Tri, Ha Tinh, Nghe An, and Thanh Hoa submitted Phan Chi Loc 34 dossiers of travel, labor export and overseas study. Loc collected from 30 aggrieved families VND 5,991,000,000 and USD 16,200 (equivalent to VND 6,250,200,000). Besides, Loc also gave the bank account number of Nguyen Thi Yen Nhi in order for 4 aggrieved persons to transfer money to Nhi, totaling VND 371,000,000. So, total sum of money that aggrieved persons paid to Loc and Hoa via account of Yen Nhi was VND 6,621,200,000.

In February, May and July 2007, aggrieved persons were notified to present at the Company to go to Australia but after all the trip failed. Therefore, they reported Phan Chi Loc and accomplices to Quang Tri Police in writing for obtaining property by fraud. During investigation, Phan Chi Loc and Nguyen Thi Hoa confessed: All of money received from aggrieved persons was transferred to the bank account of Yen Nhi and then transferred to Phung, totaling VND 7.5 billion (in which VND 1 billion was borrowed by Loc and Hoa on behalf of 9 aggrieved persons, whenever these persons got visas, they would pay Loc and Hoa back; these loans were taken out orally without any proof).  The transfer of VND 7.5 billion was recorded in the “transfer note” between Loc and Hoa and Nguyen Thi Yen Nhi on June 1, 2007 (bearing the signature of Nhi, which was certified by the assessment authority). However, according to the statements of BIDV in Quang Tri province, from September 11, 2006 to July 23, 2007, Loc and Hoa and some aggrieved persons (required by Loc and Hoa) transferred VND 4,963,000,000 to the bank account of Nhi, Nhi withdrew this sum of money and ran away. Currently, the investigation body released wanted notices against Duong Thi Minh Phung and Nguyen Thi Yen Nhi.

In the First Instance Criminal Verdict No. 14/2009/HSST dated July 29, 2009, the People’s Court of Quang Tri province applied Point a Clause 4 Article 139; Point p Clause 1, Clause 2 Article 46; Article 47 of the Criminal Code to sentence Phan Chi Loc to 9 years’ imprisonment and Nguyen Thi Hoa to 7 years’ imprisonment for “Obtaining property by fraud”. Pursuant to Clause 1 Article 42 of the Criminal Code; Articles 608, 613 of the Civil Code, compel Phan Chi Loc and Nguyen Thi Hoa to jointly pay damages to 28 aggrieved persons totaling VND 5,498,000,000 and USD 16,200 (the court did not consider the circumstance of Mrs. Nguyen Thi Hoa who did not claim damages and the circumstance of Mrs. Pham Thi Mai).

On July 30, 2009, Phan Chi Loc and Nguyen Thi Hoa appealed to proclaim their innocence.

In the Appellate Criminal Verdict No. 04/2009/HSPT dated October 26, 2009, the Court of Appeal of the Supreme People’s Court in Da Nang quashed the foregoing First Instance Criminal Verdict for reinvestigation for the following grounds: determination of total sum of money Hoa transferred to Yen Nhi and verification of the signature of Yen Nhi in the transfer note dated June 1, 2007.

In the First Instance Criminal Verdict No. 20/2010/HSST dated September 29, 2010, the People’s Court of Quang Tri province applied Clause 2 Article 107 of the Criminal Procedure Code to declare Phan Chi Loc and Nguyen Thi Hoa not guilty of “obtaining property by fraud”, (civil liability: the aggrieved persons have right to sue the defendants for damages in a civil lawsuit).In the Protest No. 01/QD/KSDT-KT dated October 12, 2010, the Chief Procurator of the People’s Procuracy of Quang Tri province requests appellate retrial to declare Phan Chi Loc and Nguyen Thi Hoa guilty of “obtaining property by fraud”.

Aggrieved person: Mr. Le Dan appealed stating that Phan Chi Loc and Nguyen Thi Hoa guilty of “obtaining property by fraud”.

In the Appellate Criminal Verdict No. 139/2011/HSPT dated April 5, 2011, the Court of Appeal of the Supreme People’s Court in Da Nang decided not to accept the appeal or protest; uphold decisions of the said First Instance Criminal Verdict.

In the Protest under the cassation review procedure No. 02/QD-VKSTC-V3 dated March 28, 2012, the Chief Procurator of the Supreme People’s Procuracy requests the Council of Judges of the Supreme People’s Court to quash the Appellate Criminal Verdict No. 139/2011/HSPT dated April 5, 2011 of the Court of Appeal of the Supreme People’s Court in Da Nang and First Instance Criminal Verdict No. 20/2010/HSST dated September 29, 2010 of the People’s Court of Quang Tri province for reinvestigation.

At the cassation court hearing, the representative of the Supreme People’s Procuracy requests the Council of Judges of the Supreme People’s Court to accept the Appeal of the Chief Procurator of the Supreme People’s Court.

CONSIDERING THAT

In terms of subjective consciousness, Phan Chi Loc and Nguyen Thi Hoa clearly knew that Loc Hoa - Viet Uc Co., Ltd established by themselves only has the business license regarding the following lines of business: overseas study counseling; guidance and paperwork for visiting and reuniting relatives, migrating and traveling abroad; short-term education:  

foreign language teaching for overseas study; Loc and Hoa also knew that Duong Thi Minh Phung had no company which is permitted to send people to work, travel or study abroad, but Loc and Hoa still committed violations of law.

 Phan Chi Loc and Nguyen Thi Hoa deceived and intentionally gave incorrect information to mislead the aggrieved persons into giving money to them. Loc introduced Phung as his niece who has worked in Australia and whose husband has worked for Australian Embassy in Vietnam. So he could assist in completing paperwork for travel and labor export. Loc advertised that the company acts as representative to admit students to most high schools, junior colleges, universities of Australia, America, Canada, etc. and export labor to Australia, America; or hire workers for definite-term work in Australia The receipts given to those who submitted paperwork for overseas study or labor export have the same content as follows:  refund the received sum of money if the person concerned could not study or work abroad 3 months after the date of this receipt. Up to the appointment date, no one could be migrated, Loc claimed inadequate paperwork which requires supplemental documents to extend the time. The deception used by Loc and Hoa all aimed to appropriate money, the aggrieved persons who believed in lies of Loc and Hoa gave money to the defendants totaling VND 6,621,200,000. So, this is an organized crime, in which Phung acted as mastermind, Loc and Hoa acted as perpetrators who actively committed the crime. However, the appropriated sum of money in fact has not been clarified upon investigation.

The Court of First Instance and the Court of Appeal state that Loc and Hoa received money from aggrieved persons and then transferred it all to Nguyen Thi Yen Nhi (Phung’s niece) through the transfer note bearing the signature of Yen Nhi, totaling VND 7.5 billion, so Loc and Hoa are not guilty of “obtaining property by fraud”. This statement has no justifiable grounds. Alternatively, according to the statements of BIDV of Quang Tri province, from September 11, 2006 to July 23, 2007, Loc and Hoa and some aggrieved persons (at the request of Loc and Hoa) only transferred to Nhi’s account VND 4,963,000,000. Hence, it is necessary to confirm that this is an organized crime. In which, Duong Thi Minh Phung acted as mastermind, Loc and Hoa acted as perpetrators who actively committed the crime, who directly and actively committed the crime. However, the appropriated sum of money in fact has not been clarified upon investigation.

According to facts and matters, pursuant to Clause 3 Article 285 and Clause 287 of Article 289 of the Criminal Procedure Code,

HEREBY DECIDES

Quash the Appellate Criminal Verdict No. 139/2011/HSPT dated April 5, 2011 of the Court of Appeal of the Supreme People’s Court in Da Nang and First Instance Criminal Verdict No. 20/2010/HSST dated October 29, 2010 of the People’s Court of Quang Tri province; refer the case file to the Supreme People’s Procuracy for reinvestigation under general procedure.