Judgment no. 155/2020/HSST dated may 26, 2020 on offense of appropriation of property by computer network, telecommunications network or electronic devices

THE PEOPLE’S COURT OF HO CHI MINH CITY

JUDGMENT NO. 155/2020/HSST DATED MAY 26, 2020 ON OFFENSE OF APPROPRIATION OF PROPERTY BY COMPUTER NETWORK, TELECOMMUNICATIONS NETWORK OR ELECTRONIC DEVICES

On May 26, 2020, at the head office of the People’s Court of Ho Chi Minh City, a first instance trial is publicly conducted to hear the criminal case No. 166/2020/TLST-HS dated August 5, 2020 under the Decision to bring the case to hearing No. 92/2020/HSST dated February 20, 2020, according to the Decision to bring the case to trial No. 1973/2020/QDST-HS dated April 27, 2020, against the defendant:

Chime O WALTER; gender: Chime O WALTER; gender: Male; born on March 3,1985; at: N; place of residence: N; address: Room Tl, 17.12 Apartment V, TML Ward, District 2, City M; passport number: A08323703 issued by the Federal Republic of N on June 7, 2017 (Old passport number A01343734 issued by the Federal Republic of N on November 13, 2009); occupation: None; nationality: N; Ethnicity: N; father: Mr. Basic WALTER and mother: Mrs. Monlie WALTER (the father is also known as Chime B and the mother is also known as Chime J); antecedents: None.

- Arrested, detained since April 12, 2018 (appearing in court).

Participants in proceedings:

+ Aggrieved party: S Co., Ltd; Head office: 411 JY street, PU district, TH city, China. Representative unit in Vietnam: L Vietnam Co., Ltd; Head office: Building G, No. 6 XCMK, DK Ward, District 1, City M; Authorized representative: Ms. Huynh Thi My H; Position: Manager of Human Resources Department of L Vietnam Co., Ltd. (not appearing in court);

Defense council:

Mr. Cao Xuan D - Lawyer of TN Law Office - M City Bar Association, the appointed attorney for the defendant Chime O WALTER (appearing in court);

Interpreter:

Mr. Bui Quang K, born in 1978 - PT Translation Company (appearing in court).

Persons with interests and obligations related to the case:

1. Ms. Tran Thi XC, born in 1989; Address: No. 131/7A XC, Ward 16, District B, City H (not appearing in court);

2. Ms. Nguyen Thi GU, born in 1985; Address: B129 Bis XC, Ward 16, District B, City M (not appearing in court);

3. VXCV Commercial Joint Stock Bank; Address: 89 LH, DD District, Hanoi City (not appearing in court);

4. Joint Stock Commercial Bank for Investment and Development of Vietnam; Address: Lot S, Area 9, National Highway 50, BH Commune, BC District, City M (not 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:

Around 2:20 pm on April 5, 2018, the police of Ward 4, District B, City M made a record of a fight that occurred in front of the house number 120-122 KH, Ward 4, District B between Chime O Walter (Nationality N, aka O) and Tran Thi XC (residence: 131/7A XC, Ward 4, District B). Here, NT declared that he had established a number of companies and received money from abroad to send to O, and at the same time handed over 09 seals and related juridical person dossier. Realizing that the case had signs of crime, the police of Ward 4, District B made a file and handed it over to the Police Investigation Agency of District B for settlement. Because the suspect is a foreigner, the Police Investigation Agency of District B has transferred all documents and exhibits to the Police Department of City M for handling according to its competence.

Through investigation and verification, it was determined that on February 12, 2018, the M City Police Investigation Agency received a report from L Vietnam Co., Ltd (headquarters: No. 6 NTMK, BN ward, District 1, Thanh Tp.M, which is the authorized representative of Company S (hereinafter referred to as Company L), headquartered in TH, China, on the matter as follows:

In 2017, Company L owed Company I - MIM Private Limited (hereinafter referred to as Company I), based in India, 03 orders with the total payment amount of 6,988.9 Euro. During the sales communication, Company L used two emails with the names R.r@I-mim.com and "P.s@I-mim.com".  On December 15, 2017, Company L received a notice from the email address “Ps@I-mim.com, requesting payment of the amount related to the above 03 orders to Company I. However, in the sent email, there were two other mails showing unusual signs in the mailing list, including "Et@I-mim.com" and "Rr@I-mim.com".  On December 19, 2017, Hell-a Company received a notice from the email “Et@I-mim.com” about the request to change the beneficiary account, requesting to transfer the amount of + 6,988.9 Euro to the account number 060165622831, opened at Bank S, under the name of Tele Seng RM Co., Ltd., headquartered at 38 BV, District 1, Ho Chi Minh City. On December 27, 2017, putting the trust in the said notice, Company L transferred 6,988.9 Euros to account number 060165622831 as requested. However, after working with Company I, Company L learned that the partner did not send an email requesting payment and did not receive the above amount.

Verification results show that Tek Seng RM Co., Ltd was established by Tran Thi NT. The investigating agency determined that NT and O were related to the matter, so on April 6, 2018, it urgently made a search of the residence of Chime O WALTER at the address T1-17.12 apartment V, TML ward, District 2, City M and the residence of Tran Thi NT at 131/7A XC, Ward 16, District B; accordingly, at O's residence, it further detected and seized 06 seals and juridical person dossier in the names of different companies.

At the investigation agency, Tran Thi NT confessed: Around November 2017, while hanging out on BV Street, District 1, City M, NT was acquainted with O. After a few encounters, this suspect asked NT to put her name in paperwork to incorporate companies to trade and transport goods abroad. O promised to pay her monthly salary of between 1,000 and 2,000 USD. In total, NT established 10 companies (including Tek Seng RM Co., Ltd., headquartered at 38 BV, District l, City M). In addition, NT also asked a friend, Nguyen Thi GU (living at B129 Bis, XC Street, Ward 16, District B, City M) to establish 05 other companies for O. NT declared that the names of the companies were given by O, the incorporation cost was paid by O. All seals related to the companies are kept by O. Only upon money withdrawal, O would follow NT to give NT or GU the seal to affix on transaction documents, and then NT or GU would give the seal and money back to O. With 09 seals handed over to the Police of Ward 4, District 4 on April 5, 2018, NT declared that O gave them to NT to make company signboards.

NT admitted having made 04 withdrawals at O's request at Bank S - Branch of District B, City M, in specific:

- On February 26, 2018, NT withdrew VND 190,000,000 (converted from the amount of 6,988.9 Euros) from account number 060165622831 of Tek Seng RM Co., Ltd;

- On March 22, 2018, NT withdrew VND 4,940,000,000 (converted from NZ$ 302,400) from account number 060164746030 of LI Co., Ltd;

- On April 2, 2018, NT withdrew VND 3,890,250,000 (converted from an amount of USD 171,087.80) from account number 0780111474410002 of Billions HK Co., Ltd. Regarding the remaining withdrawals; NT does not remember the specific sums, banks and time.

Despite the agreement on monthly salary, O only gave NT money after each withdrawal, the maximum was USD 1,000, the total amount that O gave NT was about VND 60,000,000. As for the amount of USD 171,087.80 (equivalent to VND 3,890,250,000), through extracting data from Tran Thi NT's seized mobile phone, it was determined that O required NT to withdraw the above amount from the bank. However, O did not acknowledge NT had withdrawn and delivered this amount.

NT declared that she did not know O’s motive of property appropriation, earlier on April 2, 2018, NT was informed by Nguyen Thi GU that a sum of money withdrawn by GU for O was requested to be refunded by the bank because it came from the illegal source. Suspecting that Chime O WALTER committed illegal acts, on April 3, 2018, NT and GU went to the High-tech Crime Prevention Squad affiliated to the Economic Police Division of the M City Police to report the case.

Nguyen Thi GU confessed: GU and Tran Thi NT are friends, from December 2017 to February 2018; NT asked GU to incorporate 05 companies for Chime O WALTER under GU's name and twice went to withdraw money for O, with a total amount of VND 1,611,000,000 and received a total of VND 11,000,000 from O, specifically:

- On February 6, 2018, withdrew VND 844,000,000 (converted from USD 37,222.03) from account number 06016868953 of ER Company, opened at Bank S - Branch District 4, Ho Chi Minh City.

- On March 9, 2018, withdrew VND 767,000,000 (converted from USD 33,800) from account number 141926209 of Company Limited - TM X, opened at Bank V - Customer transaction office, District B, Ho Chi Minh City.

On April 2, 2018, GU received a phone call from Vietnam Prosperity Bank (V) informing that the amount of USD 33,800, equivalent to VND 767,000,000 that was transferred to account number 141926209 of X Trading Co., Ltd withdrew by GU for O came from an illegal source and asked for a refund. After receiving the information, GU called NT to inform. On April 3, 2018, GU and NT went to the High-tech Crime Prevention Squad affiliated to the Economic Police Division of the Ho Chi Minh City Police Department to report the case.

During the investigation, Chime O WALTER confessed: O was assigned by a suspect named AS (Unknown) in Panama to set up companies and open bank accounts to send account information to AS. This suspect would work with third parties abroad to receive illegal money transferred to O’s accounts opened in Vietnam. After that, O approached Tran Thi NT and Nguyen Thi GU, offering to set up many companies and open different bank accounts in Ho Chi Minh City to receive money to trade goods.

- O confessed in conformity with the statements of NT and GU: he instructed NT to withdraw the amount of VND 190,000,000, converted from the amount of Euro 6,978.90 that Company S transferred to the account of Tek Seng Co., Ltd. RM and withdraw the amount of NZD 302,400 (NZD), equivalent to VND 4,94,000,000 from account number 060164746030 in the name of LI Company Limited; directed GU to withdraw the amount of VND 844,000,000 (converted from USD 37,222.03) from account number 06016868953 of ER Company, opened at Bank S, District B Branch, Ho Chi Minh City and withdraw VND 767,000,000 (converted from USD 33,800) from account number 141926209 of X Company Limited - TM X opened at Bank V - Customer Transaction Office, District B, Ho Chi Minh City.

- Particularly for the amount of USD 171,087.80, equivalent to VND 3,890,250,000, transferred to account number 0780111474410002 of Billions HK Co., Ltd on April 2, 2018, O declared that he had directed NT to withdraw it but NT had not transferred that mentioned sum of money to him. NT declared that after withdrawing the amount of USD 171,087.80, she handed it all over to O. In the confrontation between O and Tran Thi NT, both of them confessed above fact.

Chime O WALTER declared that all the money received from Tran Thi NT and Nguyen Thi GU was used to buy goods to be shipped to Nigeria, but could not provide purchase and sale documents or export records.

The Ho Chi Minh City Police Department has verified accounts related to 15 companies incorporated by NT and GU for Chime O WALTER at Saigon TT Commercial Joint Stock Bank (S), SGB Bank (SGB) SCB) and VNTV Joint Stock Commercial Bank (V), the results show that:

- As for account number 060165622831 in the name of Tek Seng RM Co., Ltd., account number 060164746030 in the name of LI Co., Ltd., account number 0780111474410002 in the name of Billions HK Co., Ltd., account number 06016868953 in the name of ER Company, and account number 141926209 in the name of the X TM Co., Limited., it is determined that these accounts have received money transferred from abroad, then the account holder has made withdrawals corresponding to the sums and number of times that Tran Thi NT and Nguyen Thi GU have confessed above. Of the sums that NT and GU withdrew and gave to O, in addition to the amount of 6,988.9 Euro that is claimed by L Vietnam Co., Ltd. as the authorized unit in a report, as for the remaining sums with unknown victims, the Investigation Agency has requested relevant banks, in writing, to continue to conduct the verification and tracing of aggrieved parties. However, so far, no individual or organization has come to report the appropriation of money from the above accounts.

Particularly for accounts number 146230717 in the name of Safal Flexibond PVT Co., Ltd., account number 17910377778474 in the name of Terra cooling Industries Co., Ltd. SDN BH identified on April 4, 2018 and April 4, 2018, these two accounts received USD 74,240.75 and USD 4,335.39. The Police Department of Ho Chi Minh City Police has sent a written request to the banks to freeze these 02 amounts, and at the same time, request the banks to assist in verifying the organizations or individuals that deposited the money into the accounts for further actions as prescribed, but it remains unidentified.

In the Indictment No. 23/CT-VKS-P3 dated January 11, 2019, the People's Procuracy of Ho Chi Minh City prosecutes defendant Chime O WALTER for  “Appropriation of property by computer network, telecommunications network or electronic devices” according to Point a, Clause 4, Article 290 of the Criminal Code 2015 (amended in 2017).

At the trial, the representative of the People's Procuracy of Ho Chi Minh City, who exercises the prosecution, upholds the position of prosecution, presents the arraignment, assesses the nature, extent and danger to society of the defendant's criminal acts, as well as the certain circumstances as the basis for determination of sentence bracket and mitigation of criminal liability and proposal the Trial Panel to: Apply point a clause 4 Article 290, point s clause 1, Article 51 of the Criminal Code 2015 (amended 2017);

- Sentence: defendant Chime O WALTER to 14-16 years in prison;

- Regarding civil liability: Regarding civil liability: Force the defendant to compensate the appropriated money to the aggrieved party and return the remaining illegally appropriated money for confiscation; force Tran Thi NT to pay back VND 3,890,250,000 (converted from the amount of 171,087.80 USD) withdrawn at the Bank but not yet given to defendant O and the amount of VND 60,000,000 unjustly enriched, which shall be confiscated thereafter.

- The exhibits seized in the case shall be handled in accordance with law.

With a defense for the defendant, the attorney concurs with the charge prosecuted by the Procuracy against defendant O that it is grounded. However, propose the Trial Panel to consider that: Of the entire amount of money the Procuracy has charged the defendant with criminal liability, besides the amount of 6,988.9 Euros corresponding to the amount of VND 190,000,000 claimed by L Vietnam Limited Company as an authorized unit, which is determined as the aggrieved party, the remaining sums still have unidentified factors, as the aggrieved parties have been unknown and it is groundless to determine that they are illegal money. In addition, the defendant is a foreigner, so he lacks understanding of the law in Vietnam and at the trial, he also states that his family suffers hardships and he has young children. Therefore, propose the Trial to apply Clause 2, Article 290 of the Criminal Code 2015 (amended in 2017) to impose a lenient sentence on defendant O.

In argument, the representative of the Procuracy sustains the prosecution's and does not accept the opinion of the defense counsel for defendant O about the sentence bracket for the defendant, because: According to the documents and evidence in the case file in accordance with the testimony of defendant O during the investigation stage, the Procuracy finds just good cause to conclude the methods and tricks that defendant O and his accomplices abroad (with unknown identity) used to transfer money to Vietnam through the accounts of companies incorporated by Tran Thi NT and Nguyen Thi GU under O’s direction, and they withdrew a total of VND 10,633,991,000 without legal source. Therefore, according to Joint Circular No. 10/2012/TTLT-BCA-BQP-BTP-BTTTT-VKSNDTC- TANDTC in Viet Nam dated September 10, 2012, defendant O must be criminally liable for all the appropriated money.

Defendant Chime O WALTER does not have any argument, only suggests the Trial Panel to give him a lenient sentence because he is aware of his wrongdoing and his family has suffered hardships, and give him a chance to serve the sentence early to come back home to rebuild his life soon.

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:

At the trial, defendant Chime O WALTER made a crooked statement, only admitting that he asked Tran Thi NT and Nguyen Thi GU to incorporate companies in Vietnam under their names, open bank accounts and then send information to AS to receive money transfers from abroad and directs NT, GU to withdraw money and hand it over to him; the statement is consistent with the indictment of the Ho Chi Minh City People's Procuracy. But defendant O changed his testimony, saying that the purpose of providing the company names and account numbers for AS to transfer money and withdraw money was to help AS buy, sell, and transport goods abroad, and did not know that is illegal money.

Considering, according to the documents and evidence contained in the case file and at the trial, defendant Chime O WALTER confirmed all 15 companies that defendant directed Tran Thi NT and Nguyen Thi GU to register incorporation and bank accounts in Vietnam neither have any business activities, nor have any commercial transactions with partner overseas companies that transferred money to the accounts of these companies. However, at the trial, defendant O changed his testimony, saying that the money withdrawal was to help AS buy goods to transport to Nigeria, not knowing that these sums were illegal money. During the investigation and at the court hearing, he fails to provide proof of purchase and sale of goods, and related export documents. Therefore, his testimony is groundless to be accepted.

Although at the trial Chime O changed his testimony, the defendant's confession at the Investigation Agency as well as at the trial was basically consistent with: the case record, the record of seizure of objects - documents, the aggrieved party's testimony, the testimony of Tran Thi NT and Nguyen Thi GU, the account statement documents at the banks, and other documents and minutes about the proceedings of the investigating agency available in the case file.

Considering, there are enough grounds to conclude: The suspect named AS (unknown identity, in Panama), assigned Chime O WALTER to incorporate many companies and open bank accounts to provide them for AS. AS would work with third parties abroad using and illegally accessing emails, sending fake information to companies requesting money transfer to pay contracts from partner companies, and then transferring illegal money to the bank accounts provided by O for appropriation. To do this, Chime O WALTER approached and directly directed Tran Thi NT and Nguyen Thi GU to incorporate total 15 companies and open accounts at different banks in Ho Chi Minh City to receive, withdraw, and deliver money to Chime O WALTER. However, defendant O did not know how AS and his accomplices abroad performed the act of appropriating property.

The total amount of money that Chime O WALTER, after receiving the notice of money transfer from AS to Vietnam, directed Tran Thi NT and Nguyen Thi GU to withdraw from the bank accounts was 10,633,991,000 dong, including the following:

- Tran Thi NT made 3 withdrawals at S - Branch of District B, Ho Chi Minh City: on February 26, 2018, withdrew VND 190,000,000 (converted from the amount of 6,988.9 EURO); on March 22, 2018, withdrew VND 4,94,000,000 (converted from NZ$302,400); and on April 2, 2018, withdrew VND 3,890,250,000 (converted from 171,087.80 USD).

- Nguyen Thi GU made 02 withdrawals: on February 6, 2018, withdrew VND 844,000,000 (converted from 37,222.03 USD); and on March 9, 2018, withdrew VND 767,000,000 (converted from 33,800 USD).

Regarding the above withdrawals, for the amount of VND 190,000,000 (converted from the amount of EUR 6,988.9) withdrawn from the account of Tek Seng RM Co., Ltd established by Tran Thi NT, it is determined that: On February 12, 2018, L Vietnam Co., Ltd., an authorized representative of Company S, file a petition with the Ho Chi Minh City Public Security Bureau of Investigation to report the matter: In 2017, Company L owed Company I - MIM Private Limited, based in India, 03 orders with the total payment amount of 6,988.9 Euro. During the sales communication, Company L used two emails with the names R.r@I-mim.com and "P.s@I-mim.com".  On December 15, 2017, Company L received a notice from the email address “Ps@I-mim.com, requesting payment of the amount related to the above 03 orders to Company I. However, in the sent email, there were two other mails showing unusual signs in the mailing list, including: "Et@I-mim.com" and "Rr@I-mim.com".  On December 19, 2017, Hell-a Company received a notice from the email “Et@I-mim.com” about the request to change the beneficiary account, requesting to transfer the amount of 6,988.9 Euro to the account number 060165622831, opened at Bank S, under the name of Tele Seng RM Co., Ltd., headquartered at 38 BV, District 1, Ho Chi Minh City. On December 27, 2017, putting the trust in the said notice, Company L transferred 6,988.9 Euros to account number 060165622831 as requested. However, after working with Company I, Company L learned that the partner did not send an email requesting payment and did not receive the above amount.

For the amount withdrawn by Tran Thi NT VND 3,890,250,000 (converted from amount USD 171,087.80) on April 2, 2018: On April 4, 2018, KEB HANA BANK SEOUL KOREA had 02 telegrams requesting to cancel the Money Transfer Order and 01 request to verify the beneficiary and states that “The transferor has been informed that the beneficiary account is suspected of being a fake account” to KEB Hana Bank - Hanoi Branch requesting to cancel the Money Transfer Order to the beneficiary bank, S.

As for the amount on March 9, 2018, Nguyen Thi GU withdrew VND 767,000,000 (converted from USD 33,800) from account number 141926209 of Company X - TM X, opened at V - KH Transaction Office, District B , City M. On April 2, 2018, Vietnam Prosperity Bank (V) announced that the amount of money Nguyen Thi GU had withdrawn and transferred to this O was of illegal source and requested to be refunded.

In addition, regarding the account number 146230717 in the name of Safal flexibond PVT Co., Ltd and account number 17910377778474 in the name of Terra Cooling Industries Co., Ltd. SDN BHD, it is identified that: on April 4, 2018 and April 10, 2018, they received USD 74,240.75 and USD 4,335.39. Although, during the investigation, defendant Chime O WALTER said that he did not know the amount of money in these two accounts, but there was a basis to determine that this was an illegal source of money transferred by Chime O WALTER's accomplices abroad. Chime O WALTER directed others to incorporate companies and open accounts at certain banks in Vietnam to receive money transfers and withdraw for personal use. During the investigation, the Investigation Agency has written to request the bank to freeze the above two sums, and at the same time, request assistance in verifying the organizations and individuals that deposited money to these accounts but it remains unidentified. In addition, O neither has received a notice from AS nor has directed Tran Thi NT and Nguyen Thi GU to withdraw the money and hand it over to him.

Therefore, there are enough grounds to hold the accused Chime O WALTER criminally liable for his act of accomplice with foreigners (unknown background) who illegally accessed the accounts of agencies and organizations, committed fraud in e-commerce and e-payment to appropriate property from the bank accounts from which that defendant Chime O WALTER directed Tran Thi NT and Nguyen Thi GU to withdraw and handed to him, a total of VND 10,633,991,000; under the case of "appropriating property worth 500,000,000 VND or more".

Thus, with the value of the appropriated property and the above act of the defendant Chime O WALTER, he has committed the crime of "Appropriation of property by computer network, telecommunications network or electronic devices", with the charge and penalty specified at Article 290 (4) (a) of the Criminal Code 2015 (amended in 2017).

The criminal acts of the defendant and his accomplices are especially dangerous to society; not only infringe on the lawful ownership of property of individuals, agencies and organizations protected by criminal law, but also infringe on the regulations of the Socialist Republic of Vietnam concerning protection of the safety of other people's computers, telecommunications networks, and internet networks; disrupt social order. The defendant is a person who is fully aware that his or her behavior is illegal, but with the motive of illegitimate self-interest and wanting money to spend, still intentionally commits a crime.

In the case, defendant Chime O WALTER and his foreign accomplices (unknown identity) committed the offense in form of accomplices, in which the defendant plays the role of an active and direct helper. He approached Vietnamese individuals to ask for and pay compensation to register the incorporation of companies in their names, open accounts at banks in Vietnam, and then provide AS and accomplices to use to appropriate property to transfer money back to Vietnam and withdraw as required to hand it over to defendant Chime O WALTER for compensation. In deciding the penalty, the nature and extent of the participation as the accomplice in commission of the crime will be considered in accordance with the Article 58 of the Criminal Code 2015 (amended in 2017).

In order to ensure the strictness of the law, the punishment imposed must be severe, and the social isolation must be long enough time to be effective in deterring and rehabilitating the defendant in particular and the fight and prevention of the crime in general. However, when deciding on the penalty, the Trial Panel also considers: the defendant is a foreigner who commits a crime for the first time and has no antecedent; during the investigation stage and at the trial, he showed cooperative attitude and somewhat showed his repentance and desire to redeem his faults; to mitigate part of the penalty that the defendant should have suffered under Article 51(1)(s) and 51(2) of the Criminal Code 2015 (amended in 2017).

+ Regarding additional penalties, based on Article 290(5) of the Criminal Code 2015 (amended in 2017): Force the defendant to pay a certain amount of fine.

The Ho Chi Minh City People's Procuracy's prosecution against defendant Chime O WALTER has legal foundation, guilty person is rightly convicted, without unjustly punishment. The proposed penalty level for the defendant is appropriate and reflects the leniency policy of the law that should be accepted.

The opinion of the defense counsel for defendant O about the extenuating circumstances is consistent with the provisions of law that should be accepted. Particularly, the proposed penalty level according to the Article 290(2) of the Criminal Code 2015 (amended in 2017) imposed on the defendant is inconsistent with objective factors of the case, with the provisions of the law as stated above by the Trial Panel, so it is ungrounded to be accepted. + Regarding proceedings: during the investigation, prosecution and trial: Investigators, prosecutors and the attorney has made procedural decisions and procedural acts in accordance with the procedures in accordance with the Criminal Procedure Code and at the trial, the defendant confessed the crime, made voluntary testimony, and filed no complaint in the proceedings stages; so it is all legal.

+ Regarding civil liability: Defendant O, AS and accomplices (unknown identity) committed crimes, illegally appropriated property worth VND 10,633,991,000. Therefore, pursuant to Articles 47 and 48 of the Criminal Code 2015 (amended in 2017), it is necessary to force the defendant to compensate the aggrieved party for the appropriated money. Regarding the appropriated money with unidentified aggrieved parties, it shall be confiscated. In specific: In specific:

- Force defendant Chime O WALTERater to compensate for property damage to Company S Co., Ltd (represented by L Vietnam Co., Ltd.) the amount of 6,988.9 Euro (Six thousand nine hundred and eighty-eight point nine). The payment is in Vietnam Dong at the selling rate of the Bank for Foreign Trade of Vietnam at the time of payment.

- In addition, in the above-mentioned appropriated money: The investigation process and withdrawal transaction documents show that at S Branch District 4, Ho Chi Minh City shown on April 2, 2018, Ms. Tran Thi NT withdrew VND 3,890,250,000 (converted from the amount of USD 171,087.80), which is the amount derived from the commission of an offence but it has not been transferred to the defendant; and VND 60,000,000 received from defendant O as an unjust enrichment. At the trial, Ms. Tran Thi NT was duly summoned but she was still absent. Therefore, the Court conducted the trial in Ms. NT's absence in accordance with Article 292 of the Criminal Procedure Code 2015. Thus, Tran Thi NT is compelled to pay back VND 3,950,250,000 (VND 3,890,250,000 (converted from USD 171,087.80) + VND 6,000,000) for confiscation.

- Force defendant Chime O WALTERater to repay the amount of VND 6,553,741,000 (VND 10,633,991,000 - VND 190,000,000 - VND 3,890,250,000 which Tran Thi NT withdrew at the bank but not yet handed over to the defendant) for confiscation.

- As for Nguyen Thi GU, during the investigation period, after coming to the investigating agency to report the case and provide testimony, she left her residence, so there is no basis to clarify the unjustly acquired amount for confiscation to the State fund.

+ Regarding exhibit handling: Pursuant to Article 47 of the Criminal Code 2015 (amended in 2017) and Article 106 of the Criminal Procedure Code 2015, considering:

- 01 computer; 04 mobile phones of all kinds which are instrumentalities used by the defendant to commit the offense, so they shall be confiscated.

- 15 seals in the names of companies are instrumentalities used by the defendant to commit the offense, so they shall be confiscated and invalidated.

- Regarding the amount of money in account number 146230717 at VNTV Commercial Joint Stock Bank (V) in the name of Safal Flexibond PVT Co., Ltd and account number 17910377778474 at Vietnam Investment Development Joint Stock Commercial Bank (B) in the name of Terra Co., Ltd. Cooling Industries SDN BHD determined on April 4 and 10, 2018 to receive USD 74,240.75 and USD 4,335.39 (the investigation agency sent official letters to freeze accounts at the aforementioned banks), which is money derived from the commission of crime by the defendant's accomplices but the aggrieved parties cannot be identified, which shall be confiscated.

+ With reference to court fees: Pursuant to Article 136 of the Criminal Procedure Code 2015, force the defendant to bear the first-instance criminal court fee as prescribed in and Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the Standing Committee of National Assembly.

With regard to Tran Thi NT and Nguyen Thi GU, they only believed that they opened bank accounts for O to transfer money from foreign trade; the investigation process determined that NT, GU did not know, did not agree and were not involved in O's criminal act, consistent with O's testimony. Besides, on April 3, 2018, suspecting that O committed a violation of the law, NT and GU took the initiative to report the case to the investigation agency. Because there is no foundation to determine that NT and GU are related to O's crime, the investigation agency does not bring a prosecution against Tran Thi NT and Nguyen Thi GU. This is grounded.

As for the suspect named AS, since O declared that AS’s identity is unknown, the investigating agency had no foundation for verification and tracing for further actions.

Therefore,

DISPOSITION

Pursuant to Article 290(4)(a); Article 51(1)(s) and Article 51(2); Article 17 and Article 58 of the Criminal Code 2015 (amended in 2017) in Viet Nam: Sentence defendant Chime O WALTERater to 14 (Fourteen) years in prison. The prison term commences from April 12, 2018.

- Regarding additional penalty: Force defendant Chime O WALTERater to pay a fine of VND 20,000,000 (Twenty million dong) to be confiscated.

+ Regarding civil liability: Pursuant to Articles 47 and 48 of the Criminal Code 2015 (amended in 2017); Articles 604, 605, 608, Article 357 and Article 468(2) of the Civil Code 2015 in Viet Nam.

- Force defendant Chime O WALTERater to compensate for property damage to Company S Co., Ltd (represented by L Vietnam Co., Ltd.) the amount of 6,988.9 Euro (Six thousand nine hundred and eighty-eight point nine). The payment is in Vietnam Dong at the selling rate of the Bank for Foreign Trade of Vietnam at the time of payment.

- Force defendant Chime O WALTER to remit the amount of 6,553,741,000 (Six billion, five hundred and fifty three million, seven hundred and forty one thousand) dong to the State fund.

- Force Ms. Tran Thi NT to pay the amount of 3,950,250,000 (Three billion, nine hundred and fifty million, two hundred and fifty thousand) dong to the State fund.

+ Regarding exhibit handling: Pursuant to Article 47 of the Criminal Code 2015 (amended in 2017) and Article 106 of the Criminal Procedure Code 2015 in Viet Nam.

- Confiscation to the state fund:

+ 01 used Toshiba laptop; 01 used Tecno phone; 01 used Iphone brand mobile phone; 01 used Samsung mobile phone (sealed in 01 plastic wrap with Chime O WALTER's signature sealing on the outside dated October 1, 2018); 01 used HuaWalterei mobile phone (sealed in 01 plastic bag with the seal's signature of Tran Thi NT on the outside dated April 27, 2018).

+ Regarding the amount of money in account number 146230717 at VNTV Commercial Joint Stock Bank (V) in the name of Safal Flexibond PVT Co., Ltd and account number 17910377778474 at Vietnam Investment Development Joint Stock Commercial Bank (B) in the name of Terra Co., Ltd. Cooling Industries SDN BHD determined on April 4 and 10, 2018 to receive USD 74,240.75 and USD 4,335.39 (the investigation agency sent official letters to freeze accounts at the aforementioned banks).

- Confiscate and destroy:

01 package: business seal (sealed in 01 plastic wrap with Chime O WALTER's signature sealing on the outside dated October 1, 2018);

01 package: business seal (sealed in 01 plastic wrap with Chime O WALTER's signature sealing on the outside dated April 5, 2018);

One package: business seal (sealed in 01 plastic wrap with Nguyen Thi GU's signature sealing on the outside dated April 5, 2018).

 (Exhibits according to the minutes of handover and receipt of material evidence No. 257/19 dated May 6, 2019 of the Department of Civil Judgment Enforcement of Ho Chi Minh City) + Regarding court fees: Pursuant to Article 136 of the Criminal Procedure Code 2015 and Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of Standing Committee of the National Assembly.

Force defendant Chime O WALTERater to bear a first-instance criminal court fee of 200,000 (Two hundred thousand) dong and a first-instance civil court fee of 9,500,000 (nine million five hundred thousand) dong. Paying the court fee to the competent civil enforcement agency.

From the date the judgment takes legal effect, if the aggrieved party files a petition for judgment enforcement, the judgment enforcement agency shall take the initiative in issuing a judgment enforcement decision, if the judgment enforcement obligor has not fully executed the judgment to compensate property damage and the amounts payable to the State Budget at the above rate, the monthly interest must also be equal to 50% of the limited interest rate prescribed at the time of payment, corresponding to the amount and time delay of judgment enforcement.

The defendant is entitled to appeal this judgment within 15 days from the date of pronouncement. The aggrieved party and person with related rights and obligations appearing in court have the right to appeal within 15 days from the date on which the judgment is served or posted up.

In case the judgment or court decision is enforced as per regulations in Article 2 of the Law on enforcements of civil judgments in Viet Nam, 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 Article 6, 7 and 9 of the Law on enforcement of civil judgments, and the effective period of judgment enforcement shall comply within provisions in Article 30 of the Law on enforcement of civil judgments.


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Judgment no. 155/2020/HSST dated may 26, 2020 on offense of appropriation of property by computer network, telecommunications network or electronic devices

Số hiệu:155/2020/HSST
Cấp xét xử:Sơ thẩm
Agency issued: Tòa án nhân dân Hồ Chí Minh
Field:Hình sự
Date issued: 26/05/2020
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