Judgment no. 166/2020/HS-ST on theft of property

THE PEOPLE’S COURT OF BEN CAT TOWN, BINH DUONG PROVINCE

JUDGMENT NO. 166/2020/HS-ST DATED AUGUST 24, 2020 ON THEFT OF PROPERTY

On August 24, 2020, at the head office of the People’s Court of Ben Cat town, Binh Duong province, a first instance trial is 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. 165/2020/QDXXST-HS dated August 12, 2020, against the defendant:

Dao Van T, born in 1995, in Thanh Hoa province; permanent residence in: Hamlet 5, NT commune, NS district, Thanh Hoa province; occupation: None; ethnicity: Kinh; religion: none; educational level 12/12; father: Mr. Dao Trong T1, born in 1971 and Mrs. Bui Thi T2, born in 1975; previous convictions, previous administrative violations: None. On May 7, 2020, the defendant was urgently arrested and detained at the police custody house of Ben Cat town until now. The defendant appears in court.

- Aggrieved parties:

1. Mr. Choi H, born in 1988; Korean. Not appearing in court.

2. Ms. Nam Ju H1, born in 1992; Korean. Not appearing in court.

3. Mr. Han S, born in 1989; Korean. Not appearing in court.

Same address: PV Co., Ltd., N6 road, MP1 Industrial Park, MP ward, BC town, Binh Duong province.

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:

 Dao Van T is an online game addict who does not have a stable career. Having no money to spend and play games, it flashed upon him to steal other people's property, in specific:

The first case: Around 7:00 p.m. on May 1, 2020, T walked on D9 street of MP 1 Industrial Park, when he passed the dormitory for foreign experts to reside and work of PV Co., Ltd., he looked at it and saw that there were lights on but no people. T sneakily climbed over the fence of the Company and entered the dormitory, only to find that the door of room number 36 was only slightly ajar, so T sneakily entered. T searched property and discovered a white envelope placed on the side of the wooden cabinet, T opened the envelope and found 400 USD of Mrs. Nam Ju H1. T took all the money and then escaped the old way out. T brought the money to Kim Thanh Danh gold shop in Quarter 4, MP ward, exchanged 400 USD into Vietnamese currency for the amount of 9,200,000 VND. With the money obtained, T deposited it into his online gaming account and spent it all personally.

The second case: Around 7:00 p.m. on May 2, 2020, T continued to climb over the fence of the dormitory for foreign experts of PV Co., Ltd., discovering the door of first room was half-open, so he sneaked into the room and searched for property and got the amount of 700 USD from Mr. Choi H. Then T went to the second room, continued to search for 100 USD and the amount of VND 1,700,000 from Mr. Han S in a leather wallet placed on the wood table. T took all the money and then escaped the old way out; T brought the amount of 8000 USD to KTD gold shop in Quarter 4, MP ward, exchanged for 18,400,000 VND. With the money stolen, T deposited it his online gaming account and used for personal spending.

On May 6, 2020, T continued to climb over the fence into the dormitory for foreign experts of PV Co., Ltd. In order to find property to steal, on climbing over the fence of the company, he was caught by Mr. Pham Van B (born in 1981, registered place of permanent residence: DT village, IS commune, IG district, Gia Lai province), the security guard of the Company, and handed him over to the police station of MP industrial zone, BC town. After that, the case was transferred to the investigating police agency within their competence.

On May 7, 2020, the Ben Cat Town Police Investigation Body seized from T: 01 (one) Sony Xperia branded mobile phone, silver color with sim number 0971.716775. According to Valuation Conclusion dated May 8, 2020 of the Asset Valuation Council of Ben Cat town, it is concluded that:

+ Cash of 400 USD that was appropriated on May 1, 2020 is priced at 9,200,000 VND.

+ 100 USD cash that was appropriated on May 2, 2020 is priced at 2,300,000 VND.

+ Cash of 700 USD that was appropriated on May 2, 2020 is priced at 16,100,000 VND. The total value of USD 1,200 appropriated was 29,300,000 VND (two nine million three hundred thousand dong). On June 26, 2020, Dao Van T voluntarily compensated 16,100,000 VND to Mr. Choi H, 9,200,000 VND to Mr. Han S, and 4,000,000 VND to Mr. Nam Ju H1. Mr. Choi H, Mr. Han S, Mr. Nam Ju H1 received the full amount and did not ask for anything more.

On June 25, 2020, Ben Cat Town Police Investigation Body handled evidence and returned 01 Sony Xperia mobile phone, silver color with sim number 0971.716775 to Dao Anh T.

The Indictment No. 177/CT-VKSBC dated August 5, 2020 of the People's Procuracy of Ben Cat town, Binh Duong province, prosecutes Dao Van T for: "Theft of property" under Clause 1 of Article 173 of the Criminal Code 2015 (amended in 2017).

At the court hearing:

The representative of the People's Procuracy of Ben Cat town in the debate upholds the decision to prosecute defendant Dao Van T for "Theft of property": under Clause 1, Article 173 of the Criminal Code 2015 (amended in 2017); at the same time, request the Trial Panel to apply Points b and s Clause 1 and Clause 2 Article 51; Point g, Clause 1, Article 52 of the Criminal Code 2015 (amended in 2017), proposes to impose a prison sentence of 1 year to 1 year and 6 months on defendant Dao Van T.

The defendant confesses to all his guilty acts as stated in the Indictment and to all his acts as impeached by the representative of the Procuracy. In the argument, the defendant does not argue with the impeachment of the representative of the Procuracy, but only asks the Trial Panel to consider reducing the sentence for the defendant.

Based on the evidence and documents verified at the trial; the results of the oral argument at the trial on the basis of fully and comprehensively examining evidences and opinions of the representative of the Procuracy, the defendant and other participants in the proceedings.

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 the procedural acts and decisions of the investigators of Ben Cat Town Police, procurators of the People’s Procuracy of Ben Cat Town, in the course of investigation, prosecution, and trial, they have complied with procedures and taken actions intra vires as prescribed by the Criminal Procedure Code. In the course of investigation and at the trial, the defendant gives no opinion or complaint about the procedure and decision of the presiding agencies and presiding officers. Therefore, the procedural acts and decisions of the presiding authorities and presiding officers have been performed and made legally.

[2] Regarding procedural capacity. During the investigation of the case, the aggrieved parties including Mr. Choi H, Ms. Nam Ju H1, Mr. Han S authorized Mr. Tran Huu Phu to participate in the proceedings, but the scope of authorization was limited to the Ben Town Police. During the trial of the case, the Court duly summoned the aggrieved parties, Mr. Choi H, Ms. Nam Ju H1, Mr. Han S to appear in court, but the aggrieved parties, do not appear in court and do not authorize anyone to appear in court. Considering that the absence of the aggrieved parties does not affect the results of the settlement of the case, the Trial Panel conducts the trial in the absence of the aggrieved parties.

[3] Regarding the criminal act of the defendant:

At the trial, the defendant confesses that: The defendant had twice sneaked into the dormitory for foreign experts to reside and work at PV Co., Ltd (in Quarter 4, MP ward, Ben Cat town) to steal property with a total value of VND 29,300,000, in specific: Around 7:00 p.m. on May 1, 2020, he stole 400 USD from Mrs. Nam Ju H1, worth 9,200,000 VND; Around 7:00 p.m. on May 2, 2020, he stole 700 USD from Mr. Choi H worth 16,100,000 VND and stole from Mr. Han S 100 USD worth 2,300,000 VND and 1,700,000 VND.

The defendant confesses to having committed all of the crimes as described in the Indictment. The defendant's confession is consistent with the aggrieved parties’ testimonies and the taken documents and evidence contained in the case file.

The defendant is a person who has the sufficient criminal capacity. In terms of perception, the defendant knows that sneakily appropriating other people's property is against the law and will be punished by the law, but the defendant still intentionally does it, showing a sense of greed, recklessness and contempt of law.

Taking advantage of the unalertness and off the guard of the aggrieved parties in managing and taking care of the property, the defendant twice committed acts of sneakily appropriation of the aggrieved parties' property with the total value of 29,300,000 VND. This act has sufficient elements to constitute the crime: "Theft of property", the crime and punishment are specified in Clause 1, Article 173 of the Criminal Code 2015 (amended in 2017). Therefore, the Indictment No. 177/CT-VKS dated August 5, 2020 of the People's Procuracy of Ben Cat town prosecuting the defendant is deemed grounded, guilty person is rightly convicted and in accordance with law.

The defendant's act is dangerous to society, not only infringing on the legal property rights of citizens protected by law, but also causing disorder and peace in the locality.

[3] Extenuating circumstances for criminal liability are considered when deciding on penalties, including: During the investigation as well as at the trial, the defendant has expressed cooperative attitude, and has showed his repentance and desire to redeem his faults; the defendant has voluntarily compensated for the damage and relieved the consequences for the aggrieved parties; the defendant's family has a grandmother, Do Thi Cu, with meritorious services to the revolution. Therefore, the defendant is entitled to extenuating circumstances of penal liability as prescribed at Points b and s Clause 1 and Clause 2 Article 51 of the Criminal Code 2015 (amended in 2017).

[4] Regarding the aggravating circumstances of criminal liability: The defendant has twice committed the act of stealing property, each time has enough elements to constitute a crime, so the defendant must bear the aggravating circumstance of criminal liability as prescribed in point g, Clause 1, Article 52 of the Criminal Code 2015 (amended in 2017).

[5] Considering that the aggravating and mitigating circumstances of criminal liability and the level of punishment proposed by the representative of the Procuracy to apply to the defendant, is commensurate with the nature and extent of the criminal act of the defendant, the Trial Panel should accept it.

[6] Regarding civil liability: The property that the defendant appropriated from the aggrieved parties was exchanged for the money he spent thereafter, which cannot be recovered. The defendant has compensated the full value of the damage to the aggrieved parties. The aggrieved parties, Mr. Choi H, Ms. Nam Ju H1, Mr. Han S, received the full amount of compensation and did not ask for anything more. Therefore, the Court did not consider the settlement.

[7] Regarding exhibit handling: As for the Sony Xperia brand mobile phone, silver color with sim number 0971.716775 seized from defendant Dao Van T. Because this is T's property, it is not related to the offense.

[8] Regarding court fee: The defendant must bear the court fee as prescribed by law. For the foregoing reasons,

DISPOSITION

- Pursuant to Clause 1 Article 173; point s Clause 1, Clause 2 Article 51; point g clause 1 Article 52 of the Criminal Code 2015 (amended in 2017):

- Pursuant to Resolution No. 02/2018/NQ-HDTP dated May 15, 2018 of the Council of Judges of the Supreme People's Court.

1. Regarding offense: Declare defendant Dao Van T guilty of: "Theft of property".

2. Regarding penalty: Sentence defendant Dao Van T to a sentence of 01 (one) year and 04 (four) months of imprisonment. The prison term commences from May 7, 2020.

3. Regarding first instance criminal fee: Pursuant to Articles 135 and 136 of the Criminal Procedure Code 2015; Articles 23, 26 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the National Assembly Standing Committee, stipulating the court fees and charges, collection, exemption, reduction, management, and use thereof.

Force defendant Dao Van T to pay 200,000 VND (two hundred thousand dong) of the criminal first instance court fee.

4. With reference to right to appeal:

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

 - Aggrieved parties who do not appear in court have the right to appeal the judgment within 15 (fifteen) days from the date of receipt of the judgment or the judgment is publicly posted as prescribed by law./.