Judgment No. 25/2019/HS-ST dated may 22, 2019 on theft

THE PEOPLE'S COURT OF DA NANG CITY

JUDGMENT NO. 25/2019/HS-ST DATED MAY 22, 2019 ON THEFT

On May 22, 2019, at the head office of the People’s Court of Da Nang City, a first instance trial is conducted to hear the criminal case No.  31/2019/TLST-HS dated March 27, 2019 under the Decision to Bring the Case to Trial No. 340/2019/QDXXST-HS dated May 8, 2019 against:

Bui Thi Thanh H, born on July 28, 1987 in Dong Nai; Place of residence: 29B/37 Neighborhood A, Ward H, City B, Dong Nai Province; Occupation: Unskilled labor; Educational level: 12/12; Ethnicity: Kinh; Gender: Female; Religion: Catholic; Nationality: Vietnamese; Father: Mr. Bui Cong T and mother: Mrs. Pham Thi S; the 4th child in a 5-child family, unmarried; Previous conviction or administrative violation: None; On bail. Appearing in court.

* Aggrieved party:

- Ms M, born on: October 13, 1972 - Passport number: M633232xx; Place of residence: Korea. Not appearing in court.

* Witnesses:

- Ms. Nguyen Thi H2, born on: October 20, 1968 - Place of residence: Hamlet 1, Commune N, District T, Dong Nai Province. Not appearing in court.

- Mr. Nguyen P, born in 1978 - Place of residence: Block M Street, Ward D, Town D, Quang Nam Province. Appearing in court.

- Mr. Mai Van C, born 1981 - Place of residence: Group 87, Ward H, District N, Da Nang City. 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:

On December 27, 2018, Bui Thi Thanh H asked Mrs. Nguyen Thi H2 (born in 1968, resident of Hamlet 1, Commune N, District T, Dong Nai Province) to Da Nang to travel.  Around 10:30 a.m. on December 28, 2018, H and Mrs. H2 went to the Ngu Hanh Son scenic area and bought tickets to visit.  When entering the area of ​​the Underworld of the scenic area, H discovered in the front there were two foreign female tourists wearing unzipped backpacks with a purple mobile phone inside. Intending to steal it, H used her right hand to reach into the backpack to steal the phone and then hid it behind her left hip, but she was caught red-handed by the security force here.

The victim, M (born in 1972, Nationality: South Korea), claimed to have lost a purple Samsung Note 9 phone with a yellow back cover.

Temporarily seized exhibit: 01 purple Samsung Note 9 mobile phone with yellow back cover.

According to the conclusion of the Asset Valuation Council in the criminal proceedings of Ngu Hanh Son District, Da Nang City, the value of appropriated asset is approximate VND 21,850,000.

On December 29, 2018, the Police Investigation Department of Ngu Hanh Son District, Da Nang City addressed the exhibit and returned the mobile phone to Mrs. M.

During the investigation and at the trial, the defendant Bui Thi Thanh H has sincerely confessed her crime as mentioned above.  The defendant asks for commutation of sentence and pleads for suspended sentence.

The representative of the People's Procuracy of Da Nang City sustains the point of prosecution in the indictment and proposes the Trial Panel to base on Clause 1 of Article 173, Points i, s, Clause 1 and Clause 2, Article 51 and Article 65 of the Criminal Code in Viet Nam to sentence defendant H to 12 to 18 months of imprisonment, but all suspended.

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 investigation body, investigators, procuracy and procurators, in the course of investigation and prosecution, they have complied with procedures and taken actions intra vires as prescribed by the Criminal Procedure Code in Viet Nam.  In the course of investigation 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]. The defendant's plea of guilty in the course of investigation, prosecution and at the court hearing is accordant with the statements of the aggrieved party, the person involved and the witness and other documents and evidence in the case file.  The Trial Panel finds just cause to hold that: Around 11:00 am on December 28, 2018, at the Underworld cave area in the scenic area of ​​Ngu Hanh Son, Da Nang City; taking advantage of the tourist’s negligence, Bui Thi Thanh H sneakily stole the purple Samsung Note 9 mobile phone of Mrs. M (Korean nationality), the value of the appropriated property was VND 21,850,000 ( twenty one million eight hundred fifty thousand dong), she was caught in the act and arrested by authority. The above-mentioned act of Bui Thi Thanh H has committed "Property theft" with offense and penalties are specified in clause 1 Article 173 of the Criminal Code; so the indictment No. 14/2019/VKS-CT dated March 26, 2019 of the People's Procuracy of Da Nang city justly prosecutes the defendant.

 [3] Considering the nature, extent of consequences of the acts, aggravating and mitigating circumstances and record of the defendant, it is noted that: The defendant's criminal act has violated the ownership of property of another person protected by law, the victim in the case is a foreigner traveling in Vietnam, disturbing the peace and adversely affecting the tourism image of Da Nang.  Therefore, it is necessary to impose the defendant a sentence which is heavy enough for general deterrence and education.

[4]. However, considering the defendant's offense was sudden, during the investigation as well as at the court session today, the defendant expressed cooperative attitude and showed her repentance; the defendant has a good personality, commits the offense for the first time and with less serious case; the property appropriated by the defendant has been recovered and returned to the victim; the defendant's family suffers financial hardship, the defendant's health is weak due to the left kidney removal; considering the defendant has a clear residence, less serious offense; good personality, and no criminal record; many extenuating circumstances specified in Clauses 1 and 2, Article 51 of the Criminal Code, no aggravating circumstance, the Trial Panel finds it unnecessary to isolate the defendant from the society but it is advisable to assign her to the local government of her residence for supervision and rehabilitation.

[5] Regarding civil liability: The aggrieved party received her property back and has not claimed damages, so the Trial Panel does not consider it further.

[6] Regarding court fees:  The defendant Bui Thi Thanh H must bear first instance criminal fee as prescribed by law.

Therefore,

DISPOSITION

Declare: Bui Thi Thanh H guilty of “Theft” 1. Pursuant to Clauses 1 Article 173; Point i, s, Clause 1, Clause 2 Article 51, Article 65 of the Criminal Code 2015.

Sentence: Bui Thi Thanh H to 12 (twelve) months’ imprisonment, but all suspended, and 24 (twenty four) months of probation from the date of pronouncement of first instance judgment.

Assign Bui Thi Thanh H to the People’s Committee of Ward H, City B, Dong Nai Province for supervision and rehabilitation during the probation period. Where the probationer changes his/her place of residence, Clause 1 Article 69 of the Law on Criminal Execution in Viet Nam shall apply.

During the probation period, if the probationer intentionally violates the obligations 2 times or more, the Court may force her to serve the original full prison sentence.

2. Regarding court fee: The defendant Bui Thi Thanh H has to pay VND 200,000 of first instance criminal fee.

3. With reference to right to appeal: The defendant is entitled to appeal this judgment within 15 days from the date of pronouncement. The aggrieved party not appearing in court is entitled to appeal the judgment within 15 days after receiving a copy of the judgment