Judgment no. 25/2020/HS-ST dated 13/08/2020 on obtaining property by fraud

PEOPLE’S COURT OF TUYEN HOA DISTRICT, QUANG BINH PROVINCE

JUDGMENT NO. 25/2020/HS-ST DATED 13/08/2020 ON OBTAINING PROPERTY BY FRAUD

On August 13, 2020, at the office of the People’s Court of Tuyen Hoa District, Quang Binh Province, a first-instance trial court is conducted to hear the Criminal Case No. 21/2020/TLST-HS dated June 19, 2020 under the Decision to Bring the Case to Trial No. 21/2020/QDXXST-HS dated July 01, 2020 against:

Le Ngoc H, born on 25/8/1985 in H District, Nghe An Province; permanent residence: D Village, S Commune, B District, Quang Binh Province; occupation: freelancer; education level: 12/12; ethnic group: Kinh; sex: male; religion: none; nationality: Vietnamese; father: Mr. Le Ngoc C, mother: Mrs. Duong Thi X (deceased); wife: Hoang Thi H, one child born in 2011; previous convictions and previous administrative violations: none; record: on 29/5/2020, imposed 18 months of community sentence by the People’s Court of Bo Trach District, Quang Binh Province for obtaining property by fraud in the First-Instance Criminal Judgment No. 29/2020/HS-ST, and starting to serve the community sentence since 14/7/2020. Present at trial.

- Aggrieved persons:

Mr. Pham Ngoc T, born in 1990, address: M Village, P Commune, T District, Quang Binh Province, absent. Mr. Doan Tien D, born in 1991, address: M Village, P Commune, T District, Quang Binh Province, absent. Mr. Nguyen Hai K, born in 1955, address: Subzone 2, D Town, T District, Quang Binh Province, absent.

- Persons with relevant rights and obligations: Mr. Cao Van T, born in 1972, address: Subzone 3, D Town, T District, Quang Binh Province, absent.

- Witnesses:

Mr. Pham Trung T, born in 1957, address: Subzone 2, Dong Le Town, Tuyen Hoa, Quang Binh, absent.

Mrs. Tran Thi Ai V, born in 1969, address: M Village, P Commune, T District, Quang Binh Province, present.

Mrs. Nguyen Thi M, born in 1967, address: M Village, P Commune, T District, Quang Binh Province, present.

THE CASE

According to the documents contained in the case file and the progress at the trial, the contents of the case are summarized as follows:

In early 2013, in Hanoi, Le Ngoc H met Mr. Nguyen Duc H, residing in C Commune, T District, Hai Duong Province, and gave him a letter of introduction containing the signature and seal of the director of Petromanning overseas working and service center - Vietnam oil and gas service and resource development joint-stock company branch to provide overseas working consultancy and brokerage services. Although he did not work for the abovementioned company, H wrote his name on the letter of introduction as an employee of the company and provided overseas working brokerage services. In March 2013, via Mr. Pham Trung T, Le Ngoc H met and provided overseas working consultancy for Mr. Pham Ngoc T and Mr. Doan Tien D, who both lived in P Commune, T District. Hoa introduced himself as an overseas working broker of the abovementioned company who directly recruited guest workers. Trusting H's introduction, Mr. T and Mr. D agreed to pay VND 35.000.000 each for Hoa to assist them with preparing documents for working in Saudi Arabia.

On 09/3/2013, Hoa phoned Mr. T and Mr. D to tell them to visit Hanoi for a health checkup and career orientation course, and request T and D to deposit VND 15.000.000 each on the way. As they did not bring enough money, T phoned his mother, Mrs. Nguyen Thi M, and told her to bring VND 30.000.000 for both of them to Mr. Pham Trung T and ask him to send the money to H via Agribank - Tuyen Hoa District branch. During March - April 2013, H instructed T and D to visit Hanoi for health checkup, career orientation document preparation and other relevant procedures multiple times.

On 16/4/2013, at the meeting point, T brought VND 15.000.000 and D brought VND 20.000.000 to D City to give to H. Here, H wrote receipts for both payments for T and D, each paying VND 35.000.000 (for VND 5.000.000 that T hadn’t paid, T and H agreed that T would pay H after leaving Vietnam). T and D signed agreements on working in Saudi Arabia presented by H and bearing the name of Petromanning oil and gas service joint-stock company; according to the agreements, they would leave Vietnam on 05/7/2013 at the latest. However, when the day arrived, T and D did not leave Vietnam as H had promised.

During the same period and with the same method, by brokering overseas working document preparation, Hoa appropriated VND 20.000.000 from Mr. Nguyen Hai Khan, living in Subzone 2, Dong Le Town, Tuyen Hoa District, which was used to prepare documents for Mr. Khan’s son, Nguyen Van Hoa, to work abroad.

The investigating authority of Tuyen Hoa District Police issued a decision to bring the case to Court on 22/12/2014 and a decision to press charges against Le Ngoc H for "obtaining property by fraud" on 23/12/2014. However, after committing his offences, H went to work in Germany from the middle of 2014 to 17/01/2020, when H gave himself up to the investigating authority of Tuyen Hoa District Police for his offences.

Besides the abovementioned offences, H also obtained property by fraud in B District. On 29/5/2020, the People’s Court of B District imposed upon him 18 months of community sentence.

Conclusion No. 203/PC09 dated 13/3/2020 by the forensic science office of Quang Binh Province Police concluded that the writing in the letter of introduction No. 07/GT by Petromanning overseas working and service center and the writing in the deposition of Le Ngoc H dated 04/02/2020 belonged to the same person.

Regarding exhibits: through investigation, the investigating authority of Tuyen Hoa District Police seized the letter of introduction No. 07/GT of Petromanning overseas working and service center - Vietnam oil and gas service and resource development joint-stock company branch bearing the name Le Ngoc H; seized and returned money to Mr. Pham Ngoc T and Mr. Doan Tien D, VND 15.000.000 each; these amounts were voluntarily returned by Le Ngoc H.

Regarding civil liabilities: during the investigation, Le Ngoc H fully returned the amount of money that he appropriated to the aggrieved persons.

In Indictment No. 26/CT-VKSTH-HS dated 18/6/2020 by the People’s Procuracy of Tuyen Hoa District, Quang Binh Province, Le Ngoc H was prosecuted for “obtaining property by fraud" according to regulations in Point e Clause 2 Article 139 of the 1999 Criminal Code, which was amended in 2009 of Viet Nam.

At the trial, the procurator upheld the prosecution decision and requested the Trial Panel to implement Point e Clause 2 Article 139; Points b, p and r Clause 1 Article 46; Clause 2 Article 46; Point g1 Clause 1 Article 48; Article 31; Article 47 and Article 51 of the 1999 Criminal Code, which was amended in 2009, to impose 30-36 months of community sentence upon Le Ngoc H; not consider civil liabilities; and compel Le Ngoc H to pay the first-instance criminal court fee according to regulations.

The defendant agreed with the prosecution decision of the People’s Procuracy of Tuyen Hoa District and arraignment of the procurator at the trial and requested the Trial Panel to consider reducing the defendant’s penalty.

JUDGMENT OF THE COURT

Based on the contents of the case, documents in the case file which have been argued at the trial, the Trial Panel finds that:

 [1] Procedural acts and decisions of the investigating authority, investigators, People’s Procuracy and procurator during the investigation and prosecution are compliant with regulations of the Criminal Procedure Code in Viet Nam. During the investigation and prosecution and at the trial, the defendant and other procedural participants have no opinion or complaint. Thus, procedural acts and decisions of the presiding agency and presiding officers are lawful.

 [2] Regarding the offences: for profit, the defendant committed fraud via overseas working brokerage to appropriate property.

During the investigation and at the trial, the defendant admitted to his offences. The defendant’s confession matched the statements of the aggrieved persons and persons with relevant rights and obligations as well as exhibits and documents collected and inspected at the trial. Total value of property appropriated by the defendant from the aggrieved persons is VND 85. 000. 000. The defendant committed his crime in March 2013, when the 1999 Criminal Code, which was amended in 2009, was in effect, thus it was appropriate that the defendant be prosecuted according to regulations of the 1999 Criminal Code in Viet Nam. Based on comprehensive and adequate consideration of the exhibits in terms of time, location, type of property and value of property appropriated by the defendant and the procurator’s opinion, the Trial Panel has sufficient grounds to confirm that Le Ngoc Hoa committed the crime of "obtaining property by fraud" provided in Point e Clause 2 Article 139 of the 1999 Criminal Code, which was amended in 2009. Thus, the prosecution decision of the People’s Procuracy of Tuyen Hoa District and arraignment of the procurator at the trial regarding the defendant concern the right person and the right crime and are lawful.

The defendant’s acts deliberately appropriated property of Mr. Pham Ngoc T, Mr. Doan Tien D and Mr. Nguyen Hai K and violated ownership of property protected by the law. Such acts posed a threat to the society and must be strictly penalized. When the defendant committed his offences, he was an educated young man with good health but refused to work to earn income lawfully; he disrespected the law and appropriated other people’s property. Therefore, it is necessary to decide a sentence appropriate to his offences according to regulations of the Criminal Code.

 [3] The defendant committed his crime multiple times, which constitutes aggravating circumstances according to regulations in Point g1 Clause 1 Article 48 of the Criminal Code in Viet Nam. However, the Trial Panel also considers how the defendant confessed earnestly and showed remorse during the investigation and at the trial; the defendant did not use the money appropriated from the aggrieved persons directly but gave it to Mr. H and earned only the commission; the defendant fully compensated the aggrieved persons; while living at home, in July 2020, the defendant cooperated and provided valuable information for Bo Trach District Police to detect, capture and bring the “harboring prostitutes” case in P Town, B District to Court, which was confirmed by B District Police. In addition, the defendant's parents are people with meritorious services to revolutions; after making a getaway, the defendant gave himself up to the police and confessed his crime; the aggrieved persons asked for the defendant's sentence to be reduced in writing; the defendant's family is facing hardship as they live together with their father, who is older than 80, and his wife is pregnant. Therefore, it is necessary to consider reducing the defendant's sentence according to Points b, p and r Clause 1 Article 46 and Clause 2 Article 46 of the 1999 Criminal Code, which was amended in 2009. Deeming that the defendant has multiple mitigating circumstances according to regulations in Clause 1 Article 46 and has a specific and stable place of residence, it is necessary to implement Article 31 and Article 47 of the 1999 Criminal Code, which was amended in 2009, to impose a sentence lighter than the minimum sentence upon the defendant and allow the defendant to serve his community sentence in the area where he resides, which are sufficiently strict and show leniency of the law.

As the defendant has no stable job and low income, he may be exempt from income deduction while serving his sentence.

 [4] Regarding exhibits: considering that the letter of introduction No. 07/GT of Petromanning overseas working and service center - Vietnam oil and gas service and resource development joint-stock company branch bearing the name Le Ngoc H collected by the investigating authority is a document related to the defendant’s offences, add it to the case file.

 [5] Regarding civil liabilities: during the investigation, Pham Ngoc T, Doan Tien D and Nguyen Hai K were fully compensated by the defendant and had no request at the trial, thus, the Trial Panel does not consider civil liabilities.

 [6] In this case, Mr. Cao Van filed a denunciation accusing Le Ngoc H of appropriating VND 15.000.000 from him via fraud in overseas working consultancy and brokerage. However, the investigation could not find sufficient grounds for handling and Mr. Truong made no request.

In addition, according to the defendant’s statement, Nguyen Duc H introduced and gave the letter of introduction of Petromanning overseas working and service center - Vietnam oil and gas service and resource development joint-stock company branch to Le Ngoc H for him to fill in and provide overseas working consultancy and brokerage. However, the investigation could not identify H’s residence, thus, there are insufficient grounds for handling.

Regarding use of a counterfeited letter of introduction bearing the name of Petromanning overseas working and service center - Vietnam oil and gas service and resource development joint-stock company branch by the defendant, the investigation reveals that this name does not exist; on the other hand, the letter of introduction was given to H by Nguyen Duc H, thus, there are insufficient grounds for handling the defendant for use of counterfeited documents/seals of regulatory bodies/organizations.

[7] Regarding court fees: Le Ngoc H must pay first-instance criminal court fee to state budget.

Based on the abovementioned facts and matters, 

HEREBY DECIDES

Pursuant to Point e Clause 2 Article 139; Points b, p and r Clause 1 Article 46; Clause 2 Article 46; Article 31; Article 47; Point g1 Clause 1 Article 48; and Article 51 of the 1999 Criminal Code, which was amended in 2009; Article 136 of the 2015 Criminal Procedure Code and Resolution No. 326/2016/UBTVQH14 in Viet Nam by the Standing Committee of the National Assembly on rates, exemption, reduction, collection, payment, management and use of Court fees and charges.

1. Regarding offence title: declare Le Ngoc H guilty of “Obtaining property by fraud”.

2. Regarding penalties: impose upon Le Ngoc H 30 (thirty) months of community sentence. Adding 18 months of community sentence imposed in the First-Instance Criminal Judgment No. 29/2020/HS-ST dated 29/5/2020 by the People’s Court of Bo Trach District, total penalty incurred by the defendant shall be 36 (thirty-six) months of community sentence. The penalty starts from the date upon which the defendant starts serving the sentence of Judgment No. 29/2020/HS-ST dated 29/5/2020 by the People’s Court of Bo Trach District, which is 14/7/2020.

The defendant may be exempt from income deduction while serving his sentence.

Assign Le Ngoc H to the People's Committee of S Commune, B District, Quang Binh Province, which shall cooperate with his family in supervising and educating him while he serves his sentence.

3. Regarding exhibit handling: add the letter of introduction No. 07/GT of Petromanning overseas working and service center - Vietnam oil and gas service and resource development joint-stock company branch bearing the name Le Ngoc H to the case file.

4. Not consider civil liabilities.

5. Regarding court fees: compel Le Ngoc H to pay a first-instance criminal court fee of VND 200.000.

The defendant, aggrieved persons and persons with relevant rights and obligations have the right to appeal against this Judgment within 15 days starting from the date of pronouncement (for those present at the trial) or the date this Judgment is duly served (for those absent from the trial)./.