Judgment no. 15/2021/HS-ST dated 18/03/2021 on obtaining property by fraud

THE PEOPLE'S COURT OF COMMITTEE OF TOWN Q, PROVINCE Q

JUDGMENT NO. 15/2021/HS-ST DATED MARCH 18, 2021 ON OBTAINING PROPERTY BY FRAUD

On March 18, 2021, at the head office, the People’s Court of Town Q, province Q heard a first instance trial of criminal case No. 03/2021/HSST dated January 18, 2021 under the Decision to Bring the Case to Trial No. 16/2021/QDXXST-HS dated March 4, 2021 against:

Bui Thi N, born on May 5, 1982 in Q town, Q province; Place of residence: Hamlet N, commune T, town Q, Quang Ninh province; Occupation: Freelance worker; Education level: 12/12; Ethnicity: Kinh: Gender: Female; Religion: none; Nationality: Vietnamese; father: Mr. Bui Van M and mother: Ms. Tran Thi Ph; husband: Dam Quang V, 2 children: the eldest was born in 2011, the younger one was born in 2012; antecedents: none; the defendant was wanted and he surrendered on October 12, 2020, he has been put in custody temporarily and appeared in court.

- Aggrieved parties:

1. Mr. Nguyen Van A, born in 1977; Address: commune N, district B, province Q1.

No appearance in court.

2. Mr. Vu Van T, born in 1967; Address: zone L, ward D, district K, city H. No appearance in court.

3. Ms. Bui Thi Hoa N, born in 1973; address: Collective 115, TDP3, ward D, district H, city H. No appearance in court.

4. Ms. Lam Thi My Th, born in 1997; address: hamlet 9, commune VT, district V, province H. No appearance in court.

5. Mr. Ngo Quang T3, born in 1988; address: hamlet V, commune A, district B, province H. No appearance in court.

6. Ms. Bui Thi D, born in 1960; address: zone 3, ward P, town Q, province Q.

Appearance in court.

- Witnesses:

1. Ms. Tran Thi P, born in 1958; address: village C, commune T, town Q, province Q.

No appearance in court.

2. Mr. Dam Quang V, born in 1974; address: Nui Thua village, commune T, town Q, province Q. Appearance in court.

3. Ms. Bui Thi H2, born in 1967; address: zone 3, ward P, town Q, province Q. No appearance 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:

Bui Thi N is a freelance worker and is not duly authorized to do paperwork for Vietnamese people to work or study abroad. However, from the end of 2017 to the end of 2018, N gave a lot of information such as having relationship with people working in the Embassy, ​​helping many people to go to Korea, promising to be able to do paperwork in a short time, making many people believe, gave the documents (passports, ID cards, photos, household registration of those wishing to go abroad) and money for N to carry out procedures for labor export and study in Korea, then appropriated property, in specific as follows:

- From November 2017 to April 2018, N received an amount of VND 80,000,000 from Mr. Nguyen Van A (born in 1977, residing at: commune N, district B, province Q) and VND 50,000,000 from Mr. Vu Van T (born in 1967, residing in: area L, ward D, district K, city H) with documents to do paperwork for Mr. A’s relatives to study abroad, and Mr. T to work in Korea. Past the promised time limit, N could not fulfill it, making many excuses for delay. In April 2019, after Mr. A and Mr. T demanded to return the money many times, N paid Mr. A 10,000,000 VND, paid Mr. T 15,000,000 VND, and N appropriated the rest of 70,000,000 VND from Mr. A and 35,000,000 VND from Mr. T, so they reported it to the police agency.

- During the period from April to May 2018, N received the documents and the amount of VND 50,000,000 from Ms. Bui Thi D (born in 1960, residing at: zone 3, ward P, town Q, province Q) to complete paperwork for Mrs. D to work in Korea. Unable to keep the promise, N gave the reason that Ms. D had to spend more money to go to Korea, Mrs. D did not agree, she resolutely demanded the money to be returned. By August 2018, N paid 42,000,000 VND, she appropriated 8,000,000 VND for personal use.

- In October 2018, N received from Ms. Bui Thi Hoa N (born in 1973, residing at:

ward D, district H, city H) documents and the amount of 3,000 USD (equivalent to 69,855,000 VND); in November 2018 and December 2018, N received the documents and 1,000 USD (equivalent to 23,255,000 VND) and 46,515,000 VND from Ms. Lam Thi My Th (born in 1997, residing at: Hamlet 9, Vi Thang commune, Vi T district, V province) to do paperwork for Ms. N and Ms. Th to work in Korea. Also during this time, N received from Mr. Ngo Quang T3 (born in 1988, residing in: village V, commune A, district B, province H) an amount of USD 1,000 (equivalent to 23,255,000 VND) and an amount of VND 43,000,000 to do the paperwork for some of Tai's acquaintances, then N appropriated and used the entire amount.

The handover of money between the aggrieved parties and N as above all has receipts or invoices via bank accounts.

The Expertise Conclusion No. 182/GDTL dated January 6, 2020 of Criminalistics Department of province Q indicates that: The handwriting and signatures in the documents to be assessed (money receipts, appointment papers, pledges submitted by the aggrieved parties) and comparison forms (signatures, handwriting of N in N's voluntary statements) are written by one person and signed by one person.

At the investigating agency, N declared: N acted as a broker for people going to Korea to work and study for an acquaintance through social networks with the account name Ton That T4 (accommodation information in Ho Chi Minh City), unknown background, N has never met Thuyet, N does not know Thuyet’s face, does not remember phone number, in order to benefit 5,000,000 VND per one profile. N declared that he had transferred all the money and documents of the aggrieved parties: An, Tuan, and Dong, and transferred the documents of Ms. Hoa Na and Ms. Th to Thuyet by sending them via coaches (no proof of the transfer). Thuyet cut off contact with N while he did not complete paperwork  for any profile. The investigation process has no basis to clarify for the Facebook account named Ton That T4, so there is no basis to accept N's testimony on this matter.

By the time of the first-instance trial, defendant N paid Mr. Nguyen Van A enough money, Mr. A had not requested anything. N returned a part of the appropriated money to some other aggrieved parties, in specific: N paid Mrs. D 42,000,000 VND, Mr. T 29,000,000 VND, Ms N 10,000,000 VND, Ms Th 20,000,000 VND, but N did not pay the remaining amount, the aggrieved parties all demanded the defendant to return.

In the Indictment No. 04/CT-VKSQY dated January 15, 2021, the People's Procuracy of Q town prosecuted Bui Thi N for the crime of "Obtaining property by fraud" under point a, clause 3 Article 174 of the Criminal Code.

At the trial, the representative of the People's Procuracy of Q town upheld the prosecution decision and proposed the Trial Panel to: Declare defendant Bui Thi N guilty of "Obtaining property by fraud”; pursuant to point a clause 3 Article 174, point b, s clause 1, clause 2 Article 51, point g clause 1 Article 52 of the Criminal Code in Viet Nam, sentence Bui Thi T to 7 years 6 months in prison; confiscate 1 old Xperia mobile phone; regarding civil liability, it is proposed to force defendant N to return to the aggrieved parties the unpaid appropriated amount: 8,000,000 VND to Ms. D, 21,000,000 VND to Mr. T, 60,000,000 VND to Ms. Hoa Na, 50,000,000 VND Ms. Th, 69,000,000 VND to Mr. T3.

Aggrieved parties who did not appear in the court hearing all requested for trial in absentia. In the request for trial in absentia, the aggrieved parties suggested: Ms. Hoa Na asked the defendant to return the amount of VND 60,000,000, Mr. Ngo Quang T3 asked the defendant to pay VND 69,000,000, Mr. Vu Van T asked the defendant to pay 21,000,000 VND, Ms. Lam Thi My Th asked the defendant to pay 50,000,000 VND. Ms. D, who appeared in court, asked N to pay 8,000,000 VND and seek commutation of sentence in favor of the defendant.

The defendant agreed to pay the aggrieved parties back the amount as requested above, with no money available, the defendant would pay the damages later.

The defendant said the last word, the defendant was aware of the crime and petitioned for commutation of sentence.

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] Regarding procedural acts and decisions of the Investigative Police Agency - Q Town Police, Q Town People's Procuracy, investigators, and procurators in the course of investigation and prosecution, they have strictly complied with the competence and procedures regulated in the Criminal Procedure Code in Viet Nam; the defendant or aggrieved parties have no opinion or complaint about the act or decision of the legal proceeding bodies and presiding officers. Therefore, the procedural acts and decisions of the legal proceeding bodies and presiding officers have been made legally.

 [2] Regarding the absence of certain participants in the proceedings: The absentee has been duly served with the court documents and summons, and the aggrieved parties have all filed a request for trial in their absence; the request also states the claim of the aggrieved party; 2 witnesses did not appear in court without a just cause. Considering that there were testimonies of these people taken during the investigation process, so their absence does not interfere with the trial. Therefore, the Trial Panel shall conduct the trial in the absence of the participants in the proceedings according to Article 292, Article 293 of the Criminal Procedure Code.

 [3] Regarding the criminal act of the defendant: During the investigation and at the trial, the defendant confessed to the crime, the defendant's testimony was consistent with the testimonies of aggrieved parties, witnesses, expertise conclusions of signatures and handwriting; consistent with the content of money receipts, money payment slips, account statements, and data showing the content of messages between the defendant and the aggrieved parties; consistent with other documents and evidence in the case file that have been verified at the court hearing.

There are substantial grounds for holding that: From November 2017 to December 2018, in T commune, Q town, Q province, Bui Thi N worked as a freelance worker, although she was not duly authorized to do paperwork for Vietnamese citizens to work or study abroad, N used deceitful tricks to lie to the aggrieved parties that she had relationship with authorities and was able to help them do the paperwork to go to work or study abroad in Korea, the aggrieved parties believed that and they had submitted documents and repeatedly gave money to Bui Thi N and their money had been appropriated, in specific: 80,000,000 VND was appropriated from Mr. Nguyen Van A, already repaid; 50,000,000 VND was appropriated from Mr. Vu Van T, 29,000,000 VND already repaid, 21,000,000 VND unpaid; 50,000,000 VND was appropriated from Ms. Bui Thi D, 42,000,000 VND already repaid, 8,000,000 VND unpaid; 69,855,000 VND was appropriated from Ms. Bui Thi Hoa N, 10,000,000 VND already repaid, 59,855,000 VND unpaid; 69,765,000 VND was appropriated from Ms. Lam Thi My Th, 20,000,000 VND already repaid, 49,765,000 VND unpaid; 66,255,000 VND was appropriated from Mr. Ngo Quang T3.

The total amount of money that defendant Bui Thi N appropriated from 06 aggrieved parties is 385,880,000 VND, 181,000,000 VND has been already repaid, the unpaid amount is 204.880,000 VND.

Bui Thi N’s act has sufficient elements to constitute the crime: “Obtaining property by fraud”, as prescribed in point a clause 3 Article 174 of the Criminal Code, as stated in the Indictment No. 04/CT-VKSQY dated January 15, 2021 of the People's Procuracy of Q town against the defendant. This prosecution is grounded, guilty person is rightly convicted.

Article 174 of the Criminal Code stipulates:

 “1. A person who uses deception to obtain another person's property which is assessed at from VND 2,000,000 to under VND 50,000,000 or property assessed at under VND 2,000,000 in any of the following circumstances shall face a penalty of up to 03 years' community sentence or 06 - 36 months' imprisonment:

3. This offence committed in any of the following circumstances carries a penalty of 7 - 15 years' imprisonment:

a) The property obtained is assessed at from VND 200,000,000 to under VND 500,000,000;”

 [4] The defendant's behavior is dangerous to society, infringes on the property rights of many  aggrieved parties, causes disorder in the locality, and arouses the ire of local residents. The defendant intentionally used fraudulent tricks, claiming that she had relationship with authorities, was duly authorized to complete paperwork for studying abroad or working abroad, to gain the confidence of the aggrieved parties to appropriate the properties from them.

{After appropriating the money, the defendant spent them on personal purposes and deliberately fled away. The defendant's guilty act should be punished with severe imprisonment, commensurate with the nature and severity of consequence caused by the defendant’s wrongful act, for particular education and general prevention of similar offenses.

 [5] Regarding the aggravating and mitigating circumstances:

- Regarding aggravating circumstances: The defendant commits the crime twice or more and must bear the aggravating circumstances specified at Point g, Clause 1, Article 52 of the Criminal Code;

- Regarding mitigating circumstances: The defendant turned herself in, expressed cooperative attitude, voluntarily returned part of the money to the aggrieved parties; Bui Thi D, one of the aggrieved parties, at the trial, asked for a commutation of sentence in favor of the defendant, so the defendant may enjoy extenuating circumstances specified at Points b and s Clause 1 and Clause 2 Article 51 of the Criminal Code.

 [6] Regarding additional penalty: Considering the defendant's financial hardship, the Trial Panel will not apply additional penalty in form of fine to the defendant.

 [7] Regarding civil liability: The aggrieved parties asked the defendant to pay the unpaid amounts, Ms. Hoa Na claims 60,000,000 VND, Mr. Ngo Quang T3 claims 69,000,000 VND, Mr. Vu Van T claims 21,000,000 VND, Ms. Lam Thi My Th claims 50,000,000 VND. At the trial, the defendant agreed to return the above amounts at the request of the aggrieved parties, thus the Trial Panel forces the defendant to return to the aggrieved parties these amounts.

 [8] As for Mr. Le Sy H3 and Ms. Vu Thi N3 who introduced with Mr. An and Ms. D that N had the ability to complete paperwork for people to go to Korea, then Mr. An and Mrs. D reached agreement with N in person; Mr. H3 and Mrs. N4 did not know about N's criminal act, did not receive any benefits. Therefore, there are insufficient grounds to identify H3, N4 as accomplices of N.

 [9] Regarding exhibits:

During the investigation, the defendant voluntarily handed over an old Xperia mobile phone, the Investigative Agency solicited the expertise for "data recovery and extract".  The Expertise Conclusion No. 1284/C09-P6 dated March 23, 2020 of the Institute of Criminal Science affiliated to the Ministry of Public Security concludes: it is not possible to recover or extract data stored in the phone because the phone is broken or damaged. At the trial, the defendant confessed that he used this phone to contact Ton That T4 and the aggrieved parties to discuss procedures for them to go abroad. Considering that the phone has been broken and is no longer worth using, it should be confiscated and destroyed.

 [10] Regarding court fee: The defendant must bear first instance criminal court fee and civil court fee as prescribed by law.

For the foregoing reasons, 

DISPOSITION

Pursuant to Article 260 of the Criminal Procedure Code;

 [1] Declare: Defendant Bui Thi N guilty of “Obtaining property by fraud”

Pursuant to Point a, Clause 3, Article 174; Points b and s Clause 1 and Clause 2 Article 51; point g, Clause 1, Article 52 of the Criminal Code; sentence defendant Bui Thi N to 07 (seven) years in prison, the prison term begins from the date of detention on October 12, 2020.

 [2] Regarding civil liability:

Pursuant to Article 48 of the Criminal Code; Articles 584, 585, 586, 589, and Article 357 of the Civil Code in Viet Nam. Force defendant Bui Thi N to return the unpaid appropriated money to the aggrieved parties, in specific:

21,000,000 VND (Twenty one million dong) to Mr. Vu Van T; 60,000,000 VND to Ms. Bui Thi Hoa N (Sixty million dong); 50,000,000 VND to Ms. Lam Thi My Th (Fifty million dong); 8,000,000 VND to Ms. Bui Thi D (Eight million dong); 69,000,000 VND to Mr. Ngo Quang T3 (Sixty nine million dong).

From the date on which the judgment takes legal effect, if the judgment creditor files a request for judgment enforcement but defendant Bui Thi N fails to pay the full amounts to the aggrieved parties, she must pay the interest on the corresponding late payment amount corresponding to the late payment period, the interest that has been incurred on the late payment according to Articles 357 and 468 of the Civil Code.

In case the court judgment or decision is enforced as per regulations in Article 2 of the Law on enforcements of civil judgments, the judgment creditor and judgment debtor are lawfully allowed to reach an agreement on judgment enforcement, request judgment enforcement, be subject to voluntary execution or coercive judgment enforcement in compliance with regulations in Articles 6, 7, 7a, 7b and 9 of the Law on enforcement of civil judgments in Viet Nam, and the effective period of judgment enforcement shall comply within provisions in Article 30 of the Law on enforcement of civil judgments.

 [3] Regarding exhibits:

Pursuant to point a clause 2 Article 106 of the Criminal Procedure Code;

Confiscate and destroy 01 (one) broken mobile phone, no screen, white back cover with the words XPERIA printed thereon.

 (The condition and features of the exhibit are shown in the minutes on handover of exhibits and properties dated March 10, 2021 of the Sub-department of Civil Judgment Enforcement of Q town).

 [4] Regarding court fees and the right to appeal:

Pursuant to clause 2 Article 136, Article 331 and Article 333 of the Criminal Procedure Code and Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the National Assembly Standing Committee on court fees and charges;

Force defendant Bui Thi N to pay 200,000 VND (Two hundred thousand dong) of first-instance criminal court fee and 10,400,000 VND (Ten million four hundred thousand dong) of first-instance civil court fee.

The first-instance trial was open to the public, with the appearance of the defendant and the aggrieved party, Bui Thi D. The defendant and the aggrieved party who made appearance in court may rightfully appeal this judgment within 15 days from the judgment announcement. Notify the aggrieved parties who made no appearance in court (Mr. Nguyen Van A, Mr. Vu Van T, Ms. Bui Thi Hoa N, Ms. Lam Thi My Th, Mr. Ngo Quang T3) of the right to appeal within 15 days from the date on which the judgment is duly served or publicly posted./.