Judgment no. 114/2021/HS-ST dated 28/09/2021 on obtaining property by fraud

THE PEOPLE’S COURT OF CHUONG MY DISTRICT - HANOI CITY

JUDGMENT NO. 114/2021/HS-ST DATED SEPTEMBER 28, 2021 ON OBTAINING PROPERTY BY FRAUD

On September 28, 2021, at the head office of the People’s Court of Chuong My district, Hanoi City, a first instance trial is conducted to hear the criminal case No. 117/2021/TLST-HS dated September 15, 2021 under the Decision to bring the case to hearing No. 133/2021/QDXXST-HS dated September 16, 2021 against the defendant below:

Full name: Tran Thi T- born in 1969, Other name:  No; registered permanent residence:  D village, Q commune, Kinh Mon town, Hai Duong;

Nationality: Vietnamese; Ethnicity: Kinh; religion: No;

Education: 12/12; Occupation: Freelance worker; Position: No; Biological father: Tran Duc Dien (deceased);

Biological mother: Nguyen Thi T (deceased);

Husband: Pham Van D – born in 1966 (divorced);

Children: 2 children, older child born in 1990, younger child born in 1995;

Previous conviction, previous administrative violation: None.

Record: On December 29, 2020, was sentenced to 17 years in prison by the People's Court of Hai Duong province for obtaining property by fraud.

DCB No. 471 dated July 5, 2021 at Chuong My District Police.

The defendant is serving a sentence at Hoang Tien Prison - Ministry of Public Security; has been transferred to Detention Center No. 2 - Hanoi City Police to serve the investigation, prosecution and trial.  (appearing in court) - Aggrieved party: Mr. Nguyen Van Q, born in 1963; Residence: L village, LD commune, Chuong My district, Hanoi city.  (appearing in court)

FACTUAL AND PROCEDURAL BACKGROUND

According to the documents available in the case file and the progress at the trial, the contents of the case are summarized as follows:

On April 23, 2018, Tran Thi T was granted the Certificate of Enterprise Registration by Hai Duong Province's Department of Planning and Investment, establishing V Company Limited with the head office at No. 20, Ward P, Hai Duong City, Hai Duong Province. Tran Thi T is the director, but the company is not licensed by the Ministry of Labor, War Invalids and Social Affairs to operate the service of sending people to work abroad.

Through the social network Facebook, from about July 2019, Mr. Nguyen Van Q (born in 1963; residing in L village, LD commune, Chuong My district, Hanoi) got acquainted with Tran Thi T. Until November 2019, Mr. Q knows that Tran Thi T is the Director of V Company Limited to broker and send people to work abroad in Korea.  Mr. Q asked T to do paperwork for his son, Nguyen Van Tr (born in 1987) to settle and work in Korea.  T agreed and promised that after 06 months, he would do the paperwork for Mr. Tr. After that, due to mutual trust and to create confidence for Mr. Q about T's ability to do the paperwork for Mr. Tr to go to work in Korea, T and Mr. Q and Mr. Dang Van Q1 (born in in 1964; residing in L village, LD commune, Chuong My district, Hanoi) established Hoa Quynh Lan Joint Stock Company with address at Ngoc Gia village, Chuc Son TT, Chuong My district, Hanoi, registered for the first time on December 13, 2019 with the purpose of recruiting and training people wishing to work abroad in Chuong My district.

On December 4, 2019, at Mr. Dang Van Q1's house in L village, LD commune, at T's request, Mr. Q gave T an amount of VND 23,000,000 (Twenty-three million dong) to make a deposit for doing the paperwork for Mr. Tr, T wrote a "Receipt of deposit contract" and receive the above amount in full.  About more than 10 days later, T came to see Mr. Q and his wife and offered to give T the amount of VND 4,000,000 (Four million VND) to do paperwork for Mr. Tr.  Mr. Q agreed and told his wife, Ms. Ha Thi D (SN 1962) to give T the amount of VND 4,000,000.  On January 12, 2020, Ms. T continued to go to Mr. Q's house to borrow an amount of VND 40,000,000 (Forty million dong) for personal spending, Mr. Q agreed and gave Ms. T the amount above. Due to the inability to complete the paperwork for Mr. Q's son to work abroad, on February 8, 2020, at the Cultural House of Village L, LD Commune, Chuong My, Hanoi, Ms. T signed the "Paper commitment” with Mr. Q that she received from Mr. Q a total amount of VND 67,000,000 (Sixty-seven million dong); in which the amount of 27,000,000 VND is the funding to do the paperwork for Mr. Tr and the amount of 40,000,000 VND is the loan from Mr. Q. T commits after 01 month (i.e. March 8, 2020) if Mr. Tr is not allowed to go abroad, she must refund the above amount to Mr. Q. For the above amount, T has spent all of his personal expenses.

On March 8, 2020, realizing that Ms. T neither completed paperwork for Mr. Tr to work abroad for Mr. Tr, nor paid back the amount of VND 67 million, Mr. Q repeatedly contacted Ms. T to ask for money but failed, Mr. Q went to the Police Investigation Body of Chuong My District Police Department to denounce the fraudulent act of appropriating property by Tran Thi T and submitted the commitments, receipts of deposit contracts and other related documents.

On September 7, 2021, the Police Investigation Body of the Hai Duong Provincial Police Department issued a decision on prosecution of the case, a decision on prosecution of the defendant and a writ of arrest against Tran Thi T for temporary detention on the charge of obtaining property by fraud as prescribed in Article 174 of the Criminal Code (this case occurred in Hai Duong province).

During the investigation, Tran Thi T confessed:  T is the founder of V Company Limited and Hoa Quynh Lan Joint Stock Company and has registered the following business line:  Supply and management of domestic and foreign labor resources and employment broker.  However, T admitted that he only used the name of the director of the two companies mentioned above to act as a mediator who receives applications and deposits of people wishing to work abroad, then transfer the applications to Ms. Nguyen Thi Tuyet (born in 1992; residing in Long Bien district, Hanoi) for completion and only earns 30% of commission of the total contract value.  Since their establishment, both companies have not had any activities, no longer have a head office, have not completed dissolution procedures and still owe tax to the State budget.

The Expertise Conclusion No. 5605/C09-P5 dated September 30, 2020 of the Institute of Criminal Science affiliated to the Ministry of Public Security concludes:

The signature in Tran Thi T's name under the section "Declared by applicant" on the back of the specimen A and the signature in the specimen M are signed by the same person.

The Expertise Conclusion No. 7270/C09/-P5 dated January 29, 2021 of the Institute of Criminal Science affiliated to the Ministry of Public Security concludes:

The handwriting on the specimen A1 (except for the handwriting under the items: “Representative (of authority)” and “Deliverer of money”), A2 (except for the handwriting “Nguyen Van Tr” under the item “Recipient of money”); the signature in the name of Tran Thi T on the specimen A2 and the signatures of Tran Thi T on specimen M1 and M2 are signed and written by the same person.

* Regarding civil liability: Mr. Nguyen Van Q asked Tran Thi T to refund the amount of 27,000,000 VND (Twenty seven million dong) of deposit for paperwork to work abroad for Mr. Nguyen Van. Tr.  So far, T has not been able to refund Mr. Q the above amount.

Indictment No. 110/CT-VKS-CM dated August 26, 2021 of the People's Procuracy of Chuong My District, charged Tran Thi T for obtaining property by fraud under Clause 1, Article 174 of the Criminal Code.

At the court hearing: - Defendant Tran Thi T confessed to the whole process of committing fraud to appropriate property as stated in the Indictment.  The defendant asked the Trial Panel to consider reducing the punishment.

- The representative of the People's Procuracy of Chuong My district affirmed prosecution against the defendant and proposed the Trial Panel to declare defendant Tran Thi Tam guilty of obtaining property by fraud;

Applying Clause 1, Article 174 of the Criminal Code; Point s, Clause 1, Article 51; Article 56 of the Criminal Code, sentence Tran Thi T to 18 to 24 months in prison.  In addition to this sentence, the defendant was also subject to sentence combination, in the criminal judgment No. 139/2020/HSST dated December 29, 2020 of the People's Court of Hai Duong province.

Regarding civil liability: Tran Thi T must pay Mr. Nguyen Van Q the amount of 27,000,000 VND.

Regarding additional penalties, it is recommended that the Trial Panel not apply additional penalties to the defendants; defendants must bear first-instance criminal court fee in accordance with law.

JUDGEMENT OF THE COURT

Based on the contents of the case and documents available in the case file that have been litigated at the trial, the Trial Panel shall determine as follows:

[1]. In terms of court procedures:

[1.1]. Regarding procedural decisions of investigating bodies, procedural acts of investigators and procurators:  They had properly and fully complied with the provisions of the Criminal Procedure Code on:  Instituting the case, prosecuting the defendant, ratifying the decision on prosecution against the defendant, application of preventive measures to persons held in custody or temporary detention, on investigation measures such as taking testimonies of the defendant, taking testimonies of witnesses, confiscating evidence, soliciting property valuation, on the handover of procedural documents to the defendant and aggrieved party. During the investigation process, investigators and procurators did not use forced confessions, forced interrogation, torture towards the defendant.

[1.2]. Regarding the absence of persons with related interests and obligations; although the persons with related interests and obligations had been duly summoned, they did not appear in court without reason, the Trial Panel, based on Clause 1, Article 292 of the Criminal Procedure Code, conducted trial in their absence.

[2]. Regarding the content:

[2.1]. Considering that defendant Tran Thi T's testimony at the trial is consistent with that of the aggrieved party, persons with related interests and obligations, witnesses, and seized exhibits.  Therefore, there are enough grounds to affirm:  During the period from April 2019 to December 2019, regardless of inability to send people to work abroad, Tran Thi T took advantage of the trust of the people to give false information to Mr. Nguyen Van Q by promising to completing paperwork for Mr. Nguyen Van Tr (who is Mr. Q's son) to work in Korea. She committed to complete the procedure within about 6 months to appropriate the deposit for the application.  Putting the trust in her, Mr. Q gave T the amount of 27 million dong.  After receiving the money from Mr. Q, T did not comply with the agreement but personally spent all the above money.

That act of the defendant has met all the elements to constitute a crime of "obtaining property by fraud" as specified at Clause 1, Article 174 of the Criminal Code.

The indictment of the People's Procuracy of Chuong My district prosecuting defendant Tran Thi T had a legal basis, guilty person was rightly convicted.

[2.2] Regarding the aggravating and mitigating circumstances:

* Regarding aggravating circumstances:  The defendant commits no aggravating circumstances.

* Regarding mitigating circumstances:  The defendant “expressed cooperative attitude, showed her repentance and desire to redeem his faults”, which is a mitigating circumstance according to point s clause 1 of the Criminal Code.

[2.3]. Considering the type and level of punishment applied to the defendant:

The defendant's conduct is dangerous to society, has directly infringed on the property rights of others, showing disregard for the law. The value of the property appropriated was large and had not yet been compensated, so the defendant must be imprisoned, isolated from society for a period of time for rehabilitation and education. In addition to this sentence, the defendant was also subject to the sentence combination, in the criminal judgment No. 139/2020/HSST dated December 29, 2020 of the People's Court of Hai Duong province, the defendant is serving a sentence of 17 (seventeen) years in prison for the crime of “obtaining property by fraud”, which has taken effect, combining the two sentences that the defendant must serve.

Regarding additional penalty:  the defendant does not have a stable income, so the Trial Panel exempts the defendant from additional monetary penalties.

[2.4] Regarding civil liability: The aggrieved party received the property back and did not ask the defendant for compensation, so the Trial Panel did not consider it.

Mr. Nguyen Van Q asked Tran Thi T to refund the amount of 27,000,000 VND (Twenty seven million dong) of deposit for paperwork to work abroad for Mr. Nguyen Van Tr.  So far, T has not been able to refund Mr. Q the above amount. Therefore, it is reasonable to force defendant T to pay Mr. Q the amount of VND 27,000,000.

[2.5] Regarding court fees:  Pursuant to Clause 2, Article 136 of the Criminal Procedure Code 2015, Clause 1, Article 23 of Resolution No. 326/2016/UBTVQH14 of the National Assembly Standing Committee dated December 30, 2016, force the defendant to pay first-instance criminal court fee and first-instance civil court fee in accordance with law. For the foregoing reasons:

DISPOSITION

1. Declare defendant Tran Thi T guilty of "obtaining property by fraud"

2. Pursuant to Clause 1, Article 174; Point s Clause 1 Article 51, Article 56 of the Criminal Code, sentence the defendant Tran Thi T to 2 (two) years in prison.  Combining the 17 years’ imprisonment in the criminal judgment No. 139/2020/HSST dated December 29, 2020 of the People's Court of Hai Duong province that the defendant is serving for the crime of "obtaining property by fraud”. Forcing the defendant to serve the combined penalty of both sentences of 19 (nineteen) years in prison. The prison term commences from the date of detention, September 8, 2020.

3. Applying Article 47 of the Criminal Code:

Forcing Tran Thi T to pay Mr. Nguyen Van Q the amount of 27,000,000 VND (Twenty-seven million dong).

Since the date the judgment takes legal effect, Mr. Nguyen Van Q has filed a request for judgment enforcement, but if the defendant does not execute, the defendant must continue to bear the interest on the unpaid principal amount, at the interest rate as prescribed in Article 466, Clause 2, Article 468 of the Civil Code on the amount of late payment corresponding to the late payment period.

4. Pursuant to Clause 2, Article 136 of the Criminal Procedure Code 2015, Clause 1, Article 23 of Resolution No. 326/2016/UBTVQH14 of the National Assembly Standing Committee dated December 30, 2016 on the amounts of collection and exemption, reduction, collection, payment, management and use of court fees and charges: Forcing the defendant Tran Thi T to pay 200,000 VND for first-instance criminal court fee and 1,350,000 VND for first-instance civil court fee.

5. Pursuant to Articles 331 and 333 of the 2015 Criminal Procedure Code: the defendant has the right to appeal the judgment within fifteen days from the date of judgment pronouncement.

The aggrieved party is entitled to appeal this judgment within 15 days from the date of pronouncement.