Judgment no. 23/2020/HS-ST dated september 15, 2020 on obtaining property by fraud

THE PEOPLE'S COURT OF LAI CHAU PROVINCE

JUDGMENT NO. 23/2020/HS-ST DATED SEPTEMBER 15, 2020 ON OBTAINING PROPERTY BY FRAUD

On September 15, 2020, at the head office of the People’s Court of Ca Mau province, a first instance trial was conducted to hear the criminal case No. 29/2020/TLST-HS dated August 27, 2020 under the Decision to bring the case to hearing No. 27/2020/QDXXST-HS dated September 1, 2020 against:

NGUYEN THI PHUONG TR, born in 1992 in district G, province T; Place of permanent residence: hamlet B, commune D, district G, province T; Occupation: Farmer; education level: 10/12; ethnicity: Kinh: gender: Female; religion: None; nationality: Vietnam; father: Nguyen Thanh L, born in 1969; mother: Pham Thi H, born in 1970; husband: Vo Van G, born in 1988 (got divorced) and 2 children, the eldest child was born in 2010 and the younger child was born in 2013 (the children are living with the defendant's biological parents); antecedents: none. The defendant has been detained and held in custody since March 1, 2020; the defendant appeared in court.

- Aggrieved party:

Ms. Nguyen Thi H, born in 1978; Address: group 23, Dong Phong ward, Lai Chau city, Lai Chau province. (No appearance in court)

- Person with interests and obligations related to the case:

Ms. Nguyen Ngoc H, born in 1984; Address: No. 532/3/6 K.D.V, Ward A, District B, City H (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:

The offense committed by the defendant: In October 2018, Nguyen Thi Phuong Tr went to Phnom Penh city (Kingdom of Cambodia) and worked for Hujeru Bar on Road 63, Phnom Penh capital, Cambodia. During this time, Tr got into a courtship with a man named Johnson, Nigerian nationality, Tr and this man lived together in several hotels in Phnom Penh. Around January 2020, Johnson asked Tr to participate in fraud to appropriate property of Vietnamese people, Tr agreed and Johnson asked Tr to impersonate an employee of an international shipping company, use the phone 0345662803 given by Johnson to call and notify the Vietnamese victims (according to the list Johnson provides daily via Whasapp social media messages) that a package has been shipped from abroad to them and ask the victims to pay for the fees as guided by Johnson. After getting the trust from the victims, Tr asked the victims to transfer money to account number 19034763864017 named To Thi Thu Tr opened at Techcombank branch in Ho Chi Minh city (account provided by Johnson).

On January 30, 2020, after Johnson transferred information of Ms. Nguyen Thi H in Lai Chau city, Lai Chau province to Tr, Tr used the phone number 0345662803 to call the phone number 0377885789 of Ms. H, pretending to be an employee of the international shipping company, informing Ms. H that there was a gift package sent from London (United Kingdom) to her, which was being at Tan Son Nhat airport and asked Ms. H to pay for the shipping fee of 18,500,000 VND. After receiving the notice, because she was afraid of being scammed, Ms. H texted her boyfriend on social networks, who has a Facebook account "Obiora" (previously, Obiora promised to send gifts to Vietnam for Ms. H. ), informing that the gift package that Obiora sent to Ms. H had arrived in Ho Chi Minh City and asked about the fee to be paid. Obiora encouraged Ms. H to pay money to receive the gift, so Ms. H agreed. After that, Tr texted Ms. H the account number 19034763864017 named To Thi Thu Tr opened at Techcombank Ho Chi Minh City branch. Ms. H went to Vietinbank, Lai Chau branch, and transferred the amount of VND 18,500,000 to the above account number. After receiving the money, Johnson continued to direct Tr to call Ms. H to inform her that there was a large amount of USD in the gift package, asking Ms. H to pay a fine of 60,000,000 VND. Ms. H continued to text Obiora to ask about the amount in the gift package. Obiora confirmed that the gift package contained USD. Obiora continued to encourage Ms. H to pay the fine to the shipping company to receive the gift, believing that in fact, Ms. H agreed, but because she did not have enough money to transfer to Tr, Tr told her to pay 30,000,000 VND in advance, the rest could be paid to Tr later. After that, Ms. H went to the bank to deposit 30,000,000 VND into To Thi Thu Tr's account. On January 31, 2020, Ms. H continued to pay the remaining VND 30,000,000 to To Thi Thu Tr's account. After Tr and her accomplices appropriated the above money, Ms. H could no longer contact the facebook account named Obiora.

The entire amount of VND 78,500,000 appropriated from Ms. H through account number 19034763864017 named To Thi Thu Tr was transferred to account number 19034195064019 named Ung Thien Tr opened at Techcombank, Ho Chi Minh city branch thereafter, then continue to be transfered to account number 19124466847013 of Nguyen Ngoc H opened at Techcombank Ho Chi Minh city branch to exchange from VND to USD. Then, H and her husband, Tran Nam Ph, handed over the money to Tr so that Tr could transfer the money to Johnson. After that, Tr was caught and arrested by the police investigation agency of Lao Cai province.

Regarding other issues of the case regarding civil liability: during the investigation, the aggrieved party (H) has reached an agreement with the defendant about damages, so she did not ask the Court to settle the defendant's civil liability.

Exhibits seized: during the investigation, 8 mobile phones, 1 identity card, and 1 passport were seized, all bearing the name of Nguyen Thi Phuong Tr.

In the Indictment No. 20/CT-VKSLC-P2 dated August 27, 2020 of the People's Procuracy of Lai Chau province, Nguyen Thi Phuong Tr was indicted upon a charge of “Obtaining property by fraud” according to point c, clause 2, Article 174 of the Criminal Code in Viet Nam. At the court hearing, the representative of the Procuracy proposed the Trial Panel to apply Point c, Clause 2, Article 174; Points b, s, t, Clause 1 and 2, Article 51; Point g, Clause 1, Article 52; and Clause 1, Article 54 of the Criminal Code to sentence the defendant to 6 to 9 months in prison; exempt the defendant from additional penalties; handle material evidence and first instance court fee in accordance with law.

In the last word, the defendant suggested that the Trial Panel consider allowing the defendant to benefit the leniency of the law in order to return to his family and society 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:

 [1] Regarding the procedural acts and decisions of the police investigation body of Lai Chau province, Lao Cai province, investigators, People’s Procuracy of Lai Chau province and Lao Cai province, procurators, in the course of investigation and prosecution, they have complied with jurisdiction and procedures as prescribed in the Criminal Procedure Code in Viet Nam. In the course of trial preparation and at the trial, the defendant and other participants in legal proceedings do not have any 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 made legally.

 [2] Regarding the nature and extent of danger to society of the offense:

After discussing and being instructed by a man claiming to be Johnson, a Nigerian national, about fraudulently appropriating money from Vietnamese people, Nguyen Thi Phuong Tr sent fake information that there were gifts sent from abroad to Vietnam and requested the victims to pay for fees. On January 30, 2020,  Nguyen Thi Phuong Tr called Ms. H in Lai Chau city, Lai Chau province, pretending to be an employee of the international shipping company, informing Ms. H that there was a gift package sent from London (United Kingdom) to her, which was being at Tan Son Nhat airport and asked Ms. H to pay for the shipping fee of 18,500,000 VND and the fine of 60,000,000. Ms. H transferred 78,500,000 VND to the account number 19034763864017 named To Thi Thu Tr opened at Techcombank Ho Chi Minh City branch. Then, through wire transfers around the banking system, the defendant appropriated the above amount of Ms. H.

Thus, defendant Nguyen Thi Phuong Tr is a person with full criminal liability, the defendant impersonated an employee of an international shipping company to notify Ms. Nguyen Thi H of false information about the gift which was sent from abroad to her to appropriate 78,500,000 VND. This behavior is dangerous to society, with a serious nature, infringing upon the property rights of others. That act of the defendant has met all the elements to constitute a crime and has committed the offense of "obtaining property by fraud" - the offense and punishment specified at Point c, Clause 2, Article 174 of the Criminal Code.

Therefore, the point of view of handling criminal liability of the representative of the Procuracy at the court hearing against the defendant is well grounded, without unjustly punishment, guilty person is rightly convicted.

 [3] Regarding prior conduct and the aggravating and mitigating circumstances:

Defendant Nguyen Thi Phuong Tr was raised by her family from a young age and was educated. She herself has no criminal record. At the trial, the defendant showed her repentance and desire to redeem her faults.; previously, the defendant had her family pay the damages voluntarily (case file p. 1352); the defendant actively helped the investigating agency to discover the offense (Official Letter No. 397/CV-Pc02, dated August 26, 2020 of the police investigation agency of Lai Chau Province); before committing the crime, the defendant has a good conduct, has no antecedent, and the victim filed a motion for reduction of sentence in favor of the defendant (case file p. 1353), these are the mitigating circumstances for the defendant - according to points b, s, t, Clause 1 and 2, Article 51 of the Criminal Code. Whereas, the defendant has aggravating circumstances to commit the crime more than once – according to point g, Clause 1, Article 52 of the Criminal Code.

On the basis of the provisions of the Criminal Code, the nature of the danger to society of the criminal act, the prior conduct and the mitigating and aggravating circumstances of the criminal liability for the defendant, it is found that the defendant and her husband got divorced on July 2018, and their common children are living with the defendant's biological parents. Therefore, even a punishment below the lowest level of the sentence bracket that is enough to deter, educate and rehabilitate the defendant into a useful person to society and to deter and prevent similar offenses in general and enable the defendant to take care of and raise her young children.

 [4] Regarding civil liability:

The defendant and the aggrieved part have reached an agreement on damages, so the Court will not consider it during the settlement.

 [5] Handling exhibits of the case:

It is necessary to confiscate and make a bargain sale to the public treasury 1 cell phone of the defendant used as an instrumentality of crime (Iphone 7, Viettel sim card with subscriber number 0345662803). Return to the defendant objects and papers unrelated to the crime.

 [6] Regarding criminal court fee: Applying Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the National Assembly Standing Committee, the Trial Panel needs to decide that the defendant must bear 200,000 VND of first instance criminal court fee.

Related to an amount of VND 275 million of unknown origin transferred to Nguyen Ngoc H’s account but not related to the crime, it was returned to Nguyen Ngoc H by the Investigation Agency.

For the foregoing reasons,

DISPOSITION

1/- Declare defendant Nguyen Thi Phuong Tr guilty of "Obtaining property by fraud”.

Pursuant to Point c, Clause 2, Article 174 shall be applied; Points b, s, t Clause 1 and Clause 2 Article 51; Point g, Clause 1, Article 52; Clause 1, Article 54 of the Criminal Code, sentence the defendant, Nguyen Thi Phuong Tr, to 6 months and 15 days in prison. Until the first-instance trial date (September 15, 2020), the prison term is equal to the temporary detention period.

Applying Clause 5, Article 328 of the Criminal Procedure Code: Announce the defendant's immediate release at the court hearing, if the defendant is not detained for another crime.

2/- Handling exhibits of the case:

Applying Article 47 of the Criminal Code:

- Confiscate and make the bargain sale of 1 (one) Iphone 7 phone, one Viettel sim card with subscriber number 0345662803.

- Return to the defendant the following items and papers:

+ 1 (one) Samsung galaxy Note 10+ phone with sim number 0394872490; + 1 (one) dark blue Vivo phone, 01 viettel sim card with subscriber number 0367271542, 1 Viettel sim card with subscriber number 0334279413;

+ 1 (one) dark blue Vivo phone, 1 Viettel sim with subscriber number 0338456071, 1 Viettel sim card with subscriber number 0353351650;

+ 1 (one) red Oppo A3S phone, 1 Viettel sim card with subscriber number 0867457958, 1 Mobifone sim card with subscriber number 0785840557;

+ 1 (one) Vivo 1820 phone, 1 Viettel sim card with the number series of 8984048841007943382 in the back, 1 Viettel sim card, with the number series of 89840480000044455792 in the back;

+ 1 (one) pink and white Iphone, with 1 phone sim card;

+ 1 (one) identity card bearing the name of Nguyen Thi Phuong Tr;

+ 1 (one) passport bearing the name Nguyen Thi Phuong Tr.

 (The condition of the exhibits is as detailed as described in the minutes of handing over and receiving the exhibits made at 8:30 a.m. on September 10, 2020 between the Investigation Police Agency (Provincial Police) and the Provincial Department of Civil Judgment Enforcement) 

3/- Regarding court fee:

Pursuant to Article 326/2016/UBTVQH14 of Resolution No. 30/12/2016 dated December 30, 2016 of Standing Committee of the National Assembly,: the defendant must bear 200,000 VND of court fee.

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