Judgment no. 256/2020/HSPT dated may 22, 2020 on insults to another person

THE PEOPLE'S COURT OF HO CHI MINH CITY

JUDGMENT NO. 256/2020/HSPT DATED MAY 22, 2020 ON INSULTS TO ANOTHER PERSON

On May 22, 2020, at the headquarters of the People's Court of Ho Chi Minh City, a public appellate trial is conducted to hear the appellate criminal case No. 91/HSPT dated February 3, 2020 against defendant Nguyen Thi Kim V, due to an appeal by the defendant, the aggrieved party, the civil plaintiff, and the person with related interests and obligations in the first-instance criminal judgment No. 168/2019/HSST dated November 20, 2019 of the People's Court of district 7, Ho Chi Minh City.

Appellant (defendant):

Nguyen Thi Kim V (also known as Nhan), born in 1988 in DT province; permanent residence: Group 3, MA town, TM district, DT province; address: 3/12 Street No. 2, Quarter 3, Ward 13, GV District, City M; nationality: Vietnamese; ethnicity: Kinh; religion: none; educational level: 6/12; occupation: none; father: Mr. NVH, born in 1954 and mother: Mrs. HKD (deceased); cohabiting with Mr. G G (without registered marriage), having a child named Nguyen F, born in 2013; previous convictions and previous administrative violations: none; be ordered to complete a period of residential confinement. (Being out on bail, appearing in court).

Aggrieved party:

Ms. Nguyen Hai D, born in 1993; place of residence: L30, 7th street, PM ward, District B, City M. (appearing in court).

Legal representative of the aggrieved party:

1. Mr. Pham Cong U, born in 1963; address: 122/7 TDX, NCT ward, District M, City M. (Authorization letter dated May 18, 2019). (Appearing in court).

2. Ms. Doan Thi Thu S; place of residence: HT, DD, DL, QN. (not appearing in court).

-Defender of the legitimate rights and interests of the aggrieved party:

Mr. Trinh Vinh P and Mr. Luu Tuan L – Lawyers of Q Law Firm, under the M. City Bar Association (appearing in court).

-Civil plaintiff: Vietnam TA Co., Ltd; head office address: L30 Street 7, PM Residential Area, PM Ward, District B, Ho Chi Minh City.

The legal representative of the Company: Mr. G AG, born in 1957; place of residence: Apartment C6-3 (old number CC5-7) GV Apartment, TP ward, District B, City M. (appearing in court), an authorized representative of Vietnam TA Co., Ltd;

1. Mr. Pham Cong Ut, born in 1963; address: 122/7 Tran Dinh Xu, NCT ward, District M, Ho Chi Minh City. (Authorization letter No. 01/GUQ dated July 25, 2019). (Appearing in court).

2. Ms. Doan Thi Thu S; place of residence: HT, DD, DL, QN.

Authorization letter No. 01-T1/2020 dated January 2, 2020 (appearing in court) - the person with related rights and obligations to the case:

1. Ms. Phan Ngoc A, born in 2000; place of residence: 12.03 Block B officetel, SR apartment building, TH ward, District B, city M. (appearing in court)

2. Mr. G AG, born in 1957; place of residence: Apartment C6-3 (old number CC5-7) GV Apartment, TP ward, District B, City M. (appearing in court), - Interpreter:

Ms. Tran Thi Thanh T, born in 1984; place of residence: LR, 67 MCT, District 2, City M. (appearing in court) - Witnesses:

1. Ms. Nguyen Thi Trang, born in 1990; place of residence: No. 180/99 XVNT, Ward 21, BT District, City M;

2. Ms. Nguyen Thi D, born in 1993; place of residence: No. 411/46 NDC, Ward 5, District E, City M;

3. Ms. Nguyen Phuc N, born in 1990; place of residence: No. 219/36 TVC, Ward 11, District E, City M;

4. Ms. Hoang Thi PT, born in 1992; place of residence: No. 336/6 TKTQ, SK ward, TP district, City M;

5. Mr. Truong Huy C, born in 1992; place of residence: No. 142/36B NTT, BT ward, District B, City M.

(No witnesses appear in court)

FACTUAL AND PROCEDURAL BACKGROUND

According to documents contained in the case file and events during the court hearing, the contents of the case are summarized as follows:

Nguyen Thi Kim V and Ms. Nguyen Hai D, working together at TA Vietnam Co., Ltd. at L30, 7th Street, PM residential area, PM ward, District B, in which Mr. G Gerbracht, born in 1957, German nationality is a director, Mr. G and V are cohabiting couples without registered marriage. V is a manager of the company and D is a secretary of the company director. While working together at the company, doubting that D has had affection relationship with her husband, V has become jealous and it flashed on her to forewarn D and the female colleagues in the company that "no one is permitted to flirt V's husband, Mr. G".

At 11:30 a.m. on October 3, 2018, defendant V asked Phan Ngoc A, born in 2000 (V's niece) and 2 young people (unknown identity) to go with her to the company, then asked D and female colleagues, including: Nguyen Thi D, Hoang Thi PT, Nguyen Phuc N, to go up to the 2nd floor to the meeting room; V's purpose was to make a scene of jealousy. When entering the office, V walked over to the side where D was sitting, her right hand held D’s hair, her left hand grabbed the trimmer from her purse (defendant V confessed that the trimmer she brought was bought earlier to cut her child's hair, so it was still in her purse) to cut D's hair, and while doing so, V asked: "Why did you steal my husband. How many times have you gone to the hotel to sleep with my husband?". Every time questioning D, V both trimmed D's hair and eyebrows and slapped D's face. A strange young man stood near defendant V, while another sat next to Ms. D. Ms. D did not admit to having a romantic relationship with Mr. G, and defendant V did not stop cutting D’s hair until Ms. D admitted to have intimate phone messages with Mr. G in work. While defendant V was cutting D's hair, A held her mobile phone to record a video, but afterwards A realized her wrongdoing and deleted that video clip. After that, Ms. D went to the police station of PM ward, District B to report the case and make a petition to prosecute a criminal case against Nguyen Thi Kim V.

At the police station of District B, defendant Nguyen Thi Kim V confessed to the said offence.

The first-instance criminal judgment No. 168/2019/HSST dated November 20, 2019 of the People's Court of District B, pursuant to Clause 1, Article 155; Points i, s Clause 1 and Clause 2, Article 51 of the Criminal Code 2015, amended in 2017 in Viet Nam:

Sentence defendant Nguyen Thi Kim V to 1 (one) year of non-custodial sentence, the term of non-custodial sentence starts from the date on which the agency authorized to supervise the defendant receives the enforcement warrant and copy of the judgment. In a case where the defendant relocates the place of residence, the supervision and education shall comply with the provisions of Article 69 of the Law on Criminal Judgment Enforcement in Viet Nam.

Assign defendant Nguyen Thi Kim V to the People's Committee of Ward 13, District GV, City M for supervision and education during the rehabilitation period.

Exemption of income withholding for defendant Nguyen Thi Kim V.

Pursuant to Articles 47 and 48 of the Criminal Code 2015, amended in 2017; Articles 30 and 106 of the Criminal Procedure Code 2015 in Viet Nam:

- Split the claims of the aggrieved party, Ms. Nguyen Hai D, and Vietnam TA Co., Ltd. for defendant Nguyen Thi Kim V to make restitution into another case under civil procedures.

On December 3, 2019, defendant Nguyen Thi Kim V filed an appeal stating that: The first-instance criminal sentence was too severe to impose a one-year non-custodial sentence on her, she petitions for commutation or alternative punishment like a fine.

On January 2, 2019, the aggrieved party Nguyen Hai D filed an appeal that the punishment imposed on the defendant was not appropriate, the defendant had not made restitution.

On December 2, 2019, Vietnam TA Co., Ltd. filed an appeal requesting the appellate court to review the entire first-instance criminal judgment heard against defendant Nguyen Thi Kim V.

On February 28, 2020, the aggrieved party, Ms. Nguyen Hai D, filed an additional appeal about the fact that the first instance court omitted the crime associated with Phan Ngoc A, who acted as an accomplice. The defendant's act was "illegal detention". In the first-instance court hearing, the aggrieved party provided sufficient invoices and documents on material damage. The first-instance court did not consider it but split it into another civil dispute case.

Regarding criminal procedures, this is a criminal case involving foreign elements under the jurisdiction of the provincial level for investigation, prosecution and trial. The presiding agencies in District B made an error when accepting the case beyond their jurisdiction. During the investigation, the presiding agency did not request an interpreter for Mr. G Albert Gerbracht of German nationality to ensure accuracy.

On February 28, 2020, the person with related rights and obligations, Mr. G Albert Gerbracht, filed an additional appeal about the fact that the first instance court omitted the crime associated with Phan Ngoc A, who acted as an accomplice. The defendant's behavior was "Illegal detention". In the first-instance court hearing, the aggrieved party provided sufficient invoices and documents on material damage. The first-instance court did not consider it but split it into another civil dispute case.

Regarding criminal procedures, this is a criminal case involving foreign elements under the jurisdiction of the provincial level for investigation, prosecution and trial. The presiding agencies in District B made an error when accepting the case beyond their jurisdiction. During the investigation, the presiding agency did not request an interpreter for Mr. G Albert Gerbracht of German nationality to ensure accuracy.

On February 28, 2020, the civil plaintiff, Vietnam TA Co., Ltd. has filed an additional appeal with the same content as the appeal of the person with related rights and obligations, Mr. G Albert Gerbracht, and requests to consider the crime occurred at the company's headquarters, but the investigating agency did not perform the crime scene reconstruction where the crime occurred.

At the appellate court hearing:

- Defendant V keeps the appeal requesting for commutation or conversion to a fine.

Representative of the Procuracy:

The representative of the People's Procuracy of Ho Chi Minh City expressed his/her opinion on the settlement of the case as follows: With the documents and evidence contained in the case file as well as the defendant's testimony at the appellate court hearing, there are grounds to determine: With the first instance judgment against defendant Nguyen Thi Kim V, guilty person was rightly convicted, mitigating circumstances for the defendant were considered. At the appellate court, defendant V could not give further mitigating circumstances. Therefore, propose the Trial Panel not accept the defendant's appeal and affirm the first-instance judgment.

Mr. Pham Cong Ut, the authorized representative of the aggrieved party, Nguyen Hai D and reprehensive of the civil plaintiff, upholds the appeal and present as follows:

This case falls under the jurisdiction of the provincial court as it has foreign elements. Mr. G Albert Gerbracht is a German national and is the legal representative of the civil plaintiff, Vietnam TA Co., Ltd.

In this case, the investigative agency committed a procedural error for neither seizing the evidence, which is the phone that Ms. A used to record the video, nor assigning an interpreter for Mr. G, nor performing crime scene reconstruction, nor getting Ms. D mentally assessed. Ms. A's act is an accomplice and committed two offenses, "Insults to another person " and "Detaining people against the law”. At the trial, defendant V made an insincere statement about the whereabouts of two strange young men that the defendant brought into the company. From the above reasons, it is found that the case has many procedural errors, so it is recommended that the appellate court reverses the first-instance judgment for re-trial.

Lawyer P:

The proposal for affirming the first instance judgment by the representative of the Procuracy is unsatisfactory. This is a case involving foreign elements, the trial of the first-instance court was a procedural error with respect to jurisdiction. The law authorities did not send the aggrieved part for mental assessment. There was also an omission of crime. Phan Thi A's act has not been clarified. The defendant did not sincerely report and cooperate with the investigation agency. The aggrieved party already gave a list of documents for claiming damages, it is not appropriate for the first instance court to split the civil part to settle into another lawsuit. For the foregoing grounds, request the Trial Panel to reverse the first-instance judgment for additional investigation.

Lawyer L:

Request the Trial Panel to consider that the first-instance court's separation of civil restitution is unreasonable because it is related to criminal acts.

The person with related rights and obligations:

Mr. G Albert Gerbracht upholds the appeal. Representative of the Procuracy:

Pursuant to Point b, Clause 2, Article 268 of the Criminal Procedure Code, the jurisdiction in this criminal case still falls under the district level. As for Phan Thi A's act, there are not enough grounds for criminal prosecution.

Defendant V does not present any further argument with the representative of the Procuracy, she only says the last word to ask for commutation of sentence.

JUDGMENT OF THE COURT

Based on factual and procedural background, the documents in the case file that was assessed during adversarial process at the court hearing, the Trial Panel judges as follows:

At 11:30 a.m. on October 3, 2018, defendant V asked Phan Ngoc A, born in 2000 (V's niece) and 2 young people (unknown identity) to accompany V to Vietnam TA Co., Ltd. located at: L30 Street 7, PM Residential Area, PM Ward, District B, City M. At the meeting room of the company, in the presence of V, two young people, Phan Thi A and female employees of the company, including Nguyen Hai D, Nguyen Thi D, Hoang Thi PT, Nguyen Phuc N. Defendant V was jealous of D, so she slapped D’s face and used a hair trimmer to cut D’s hair to forewarn other female employees.

Realizing that with the above act of defendant Nguyen Thi Kim V constitutes the crime of "Insults to another person ", the first-instance court convicted the defendant of the crime of "Insults to another person". That was a grounded judgment, guilty person is rightly convicted, without unjustly punishment. After the first-instance trial, the defendant filed an appeal asking for commutation of punishment. Her appeal was made within the statutory time limit, so it was considered under the appellate procedure. It is considered that the level of punishment that the first-instance court has pronounced against the defendant is commensurate with the nature, extent and consequences of the crime committed by the defendant. At the appellate court, defendant V could not give further mitigating circumstances. Therefore, the defendant's request for commutation cannot be accepted.

With regard to the appeals of the aggrieved party, the person with related rights and obligations, the civil plaintiff, The Trial Panel considers the competence to investigate, prosecute and adjudicate according to Point b, Clause 2, Article 268 of the Criminal Procedure Code, which stipulates: “Criminal cases with overseas defendants, aggrieved parties and involved parties or overseas relevant property” is subject to the jurisdiction of the provincial court. Vietnam TA Co., Ltd is headquartered at: L30 Street 7, PM Residential Area, PM Ward, District B, Ho Chi Minh City, Vietnam. The director is Mr. G Albert Gerbracht who is a German national, a foreigner. Considering that Vietnam TA Co., Ltd. is a foreign-invested enterprise established and operating in the Vietnamese territory. Mr. G Albert Gerbracht has an address and is residing in Vietnam. Therefore, the investigation, prosecution and trial of this case carried out by the first instance level were in accordance with the jurisdiction of the district level and in accordance with the law.

At the appellate court, Ms. Phan Thi A admitted that she used her phone to record a video of defendant V cutting the aggrieved party's hair, but later finding that the video recording was inappropriate, so Ms. A arbitrarily deleted it immediately. Ms. A reported that the phone she used to record the video had been dropped in a basin of water and was damaged. Investigation agency could not recover it. Considering that, the phone is a non-recoverable evidence. In addition, Ms. A has not committed any other acts, so there is not enough ground to consider criminal prosecution against Ms. A. According to the aggrieved party's testimony, while defendant V was cutting the aggrieved party's hair, one young man strangled the aggrieved party and the other young man stood next to her. Realizing that, during the investigation, defendant V declared that regarding two young men who accompanied her to the company, she only knew them outside the cafe and did not know where they live. Therefore, the investigating agency has not yet summoned the testimonies of these two men and they are still in the process of searching. When they are found, they will be resolved later. Therefore, this appeal cannot be accepted.

At the trial, the aggrieved party's representative proposed to consider that the defendant's act has signs of the crime of "illegal detention". Considering, the event happened right in the meeting room where the defendant and the aggrieved party have worked. Defendant V had no act that shows the coercion or arrest of the aggrieved party. The defendant's motive for the crime was jealousy. Moreover, the defendant's purpose was to humiliate the aggrieved party in front of others to deter female employees. The defendant's offense was proven by defendant V humiliating the aggrieved party by hitting and cutting the aggrieved party's hair. This act is against the law and fully constitutes the crime of “Insults to another person” and it was actually consummated. Therefore, there is no ground to consider the crime of “Illegal detention” according to the appeal.

As for the appeal that the investigation agency failed to perform the crime scene reconstruction, The Trial Panel considers that initiating an investigatory process is a professional practice of the investigation body. Whether or not a crime reconstruction is necessary depends on the content of the case to be investigated. Specifically, in this case, based on the testimonies of the defendant, aggrieved party, witnesses and other evidence, it is clear that defendant Nguyen Thi Kim V's committed criminal act of "Insults to another person". Guilty person is rightly convicted. It is legal for the investigating agency not to conduct the crime scene reconstruction. Therefore, this appeal cannot be accepted.

Regarding the appeal concerning the first-instance level's failure to consider and settle the aggrieved party’s and the civil plaintiff’s claim for restitution. Considering, throughout the investigation, prosecution and trial at the first instance level. The aggrieved party and the civil plaintiff have not fully provided and specifically proved the claims for damages. Therefore, the first instance level split it into another civil lawsuit to assure the rights and obligations of the parties. In addition, the first-instance court has not considered the settlement of damages. In order to ensure two levels of trial, the appellate level cannot consider and resolve this appeal. It is appropriate and lawful that the claims for damages of the aggrieved party and the civil plaintiff should be settled in another civil lawsuit. Therefore, this appeal cannot be accepted.

On the appeal that the investigating agency did not solicit an interpreter for Mr. G Albert Gerbracht. The Trial Panel finds that Mr. G Albert Gerbracht participates in the proceedings as a civil plaintiff, not a defendant in the case. Mr. G Albert Gerbracht is free to find and select a qualified interpreter according to the law to express his will and request. The Court of First Instance accepted that the interpreter of the civil plaintiff. That was lawful and did not violate the proceedings.

At the court hearing, the lawyers of the aggrieved party could not give any other evidence.

The representative of the Procuracy request for not to accepting the appeals of the defendant, the aggrieved party, the civil plaintiff, and the person with related interests and obligations, and proposing to affirm the first-instance judgment is appropriate and lawful.

Regarding court fees:

- Defendant V, the aggrieved party, the civil plaintiff, and the person with related interests and obligations shall bear the appellate court fees as prescribed in Resolution No. 326/2016/UBTVQH14 in Viet Nam.

Other contents of the first-instance criminal judgment are not appealed or protested against, so they take legal effect.

For the foregoing grounds;

DECISION

- Pursuant to Article 356 of the Criminal Procedure Code, the appeals of the defendant, aggrieved party, civil plaintiff, and the person with related interests and obligations are not accepted. Affirm the first-instance criminal judgment No. 168/2019/HSST dated November 20, 2019 of the People's Court of District B. Pursuant to the Criminal Code 2015, amended in 2017.

Sentence: defendant Nguyen Thi Kim V to 1 (one) year of non-custodial sentence, the term of non-custodial sentence starts from the date on which the agency authorized to supervise the defendant receives the enforcement warrant and copy of the judgment. In a case where the defendant relocates the place of residence, the supervision and education shall comply with the provisions of Article 69 of the Law on Criminal Judgment Enforcement.

Assign defendant Nguyen Thi Kim V to the People's Committee of Ward 13, District GV, Ho Chi Minh City for supervision and education during the rehabilitation period.

Exemption of income withholding for defendant Nguyen Thi Kim V.

Pursuant to Articles 47 and 48 of the Criminal Code 2015, amended in 2017; Articles 30 and 106 of the Criminal Procedure Code 2015:

- Split the claims of the aggrieved party, Ms. Nguyen Hai D, and Vietnam TA Co., Ltd. for defendant Nguyen Thi Kim V to make restitution into another case under civil procedures.

The defendant, aggrieved party, civil plaintiff, and person with related interests and obligations must pay an appellate criminal court fee of VND 200,000 (Two hundred thousand dong).

Other contents of the first-instance criminal judgment are not appealed or protested against, so they take legal effect.