Judgment no. 35/2021/HSPT dated 14/01/2021 on obtaining property by fraud

SUPERIOR PEOPLE’S COURT IN HO CHI MINH CITY

JUDGMENT NO. 35/2021/HSPT DATED 14/01/2021 ON OBTAINING PROPERTY BY FRAUD

On January 14, 2021, an appellate trial was conducted at the office of the Superior People’s Court in Ho Chi Minh City to hear the Criminal Case No. 406/2020/TLPT-HS dated August 25, 2020 against Thang Duc H as the defendant filed an appeal against the First-Instance Criminal Judgment No. 243/2020/HSST dated July 15,2020 by the People’s Court of Ho Chi Minh City.

Appellant: Thang Duc H, born in 1993, permanent residence: Tan Da village, T H commune, Duc Trg district, L Dong province; temporary residence: 22/21/6 street No. 21, ward 8, G v district, Ho Chi Minh City; occupation: director of H Duc Sai Gon Trade and Service LLC; education level: 12/12; parents: Mr. Thang Minh L and Mrs. Nguyen Thi H; wife named Tran Thi Bich C and one child (born in 2019); previous convictions and previous administrative violations: none. In temporary detention from 15/8/2019 (present).

Advocate: Lawyer Do H B, affiliated to Ho Chi Minh City Bar Association (present)

Other procedural participants:

- Aggrieved persons:

1/ Mr. Nguyen Thanh L, born in 1977; place of residence: 1/3-0 Phan Dang L apartment building, ward 3, B Th district, Ho Chi Minh City.

2/ Ms. Ngo Ng M, born in 1977; place of residence: 30/73 D Nh, S K ward, T Ph district, Ho Chi Minh City.

3/ Ms. Pham Minh Linh Th, born in 1986; place of residence: 183/28 Ng V D, ward 11, B Th district, Ho Chi Minh City.

4/ Ms. Nguyen Quoc Nha Tr, born in 1977; place of residence: 86/99/22 Au Co, ward 9, T B district, Ho Chi Minh City.

5/ Ms. Nguyen Thi Ng H1; born in 1984; place of residence: 37/2C Ngo Tat To, ward 21, B Th district, Ho Chi Minh City.

6/ Ms. Nguyen Thi Hong Ng; born in 1984; place of residence: 153/31/4 Le Van Tho, ward 8, G v district, Ho Chi Minh City.

7/ Mr. Nguyen Duy Kh; born in 1982; place of residence: 482/63 Le Quang Dinh, ward 11, G v district, Ho Chi Minh City.

8/ Ms. Nguyen Hoang Anh Th; born in 1999; place of residence: 110 Tran Quang Dieu, ward 14, district 3, Ho Chi Minh City.

9/ Mr. Le Duy Kh; born in 1991; place of residence: Ph H 1 hamlet, Hau M B A commune, C B district, Tien Giang province.

10/ Ms. L Thi Ng Th; born in 1989; place of residence: 69 neighborhood 3, Tan Phuoc Khanh commune, Tan Uyen town, Binh Duong province.

11/ Mr. Tran Ng H; born in 1977; place of residence: 51/5A 359 street, Phuoc Long A ward, district 9, Ho Chi Minh City.

12/ Ms. Ha Thi Tuyet D; born in 1976; place of residence: 154/3B T H B, ward 14, district 6, Ho Chi Minh City.

THE CASE

According to the documents contained in the case file, the contents of the case are summarized as follows: in 3/2017, Thang Duc H applied for establishment of H Duc Sai Gon Trade and Service LLC (hereinafter referred to as "H Duc Sai Gon Company”) with H as the director, the headquarters located at 22/21/6 street No. 21, ward 8, G v district, Ho Chi Minh City and branch located at No. 17-19-21 Nguyen Van Troi, ward 12, Phu Nhuan district that engaged in loading, unloading and road transport of goods.

Needing money for personal spending and soccer gambling, Thang Duc H advertised on the internet that his company could transfer money and foreign currencies from Vietnam to other countries despite knowing that his company was not capable of transferring money overseas. Many people believed that H Duc Sai Gon Company could transfer money overseas, thus they contacted H directly to transfer money.

H did not transfer the money he received as agreed but took it for personal use. With the abovementioned fraud method, from 6/2018 to the middle of 8/2018, H received and appropriated a total of VND 2.006.927.000 from multiple people. To be specific:

The first case: H appropriated VND 636.000.000 from Mr. Nguyen Thanh L, born in 1977; place of residence: 1/3 Ph D L apartment building, ward 3, B Th district, Ho Chi Minh City. Mr. Nguyen Thanh L needed to transfer VND 617.500.000 into the account of Hong Kong Pacific Group Company in China and knew that H Duc Sai Gon Company could transfer money via an online advertisement, thus he called H to ask for more information. H agreed and informed that the cost of transferring VND 617.500.000 to the Chinese company was VND 18.500.000 and transfer time was 05 days.

Mr. L said he would meet H on 08/6/2018 to make the transaction. When Mr. L visited H Duc Sai Gon Company to transfer the abovementioned amount on that day, H told an employee called Ha Ng NH to make the transaction, receiving VND 636.000.000 in total from Mr. L, including VND 617.500.000 to be transferred to China and VND 18.500.000 for the transfer cost. NH wrote and gave Mr. L a receipt stating that D had received the full amount.

However, when Mr. L’s partner informed him that they had not received the money by the deadline, Mr. L called H to request H to transfer the money into the account of Hong Kong Pacific Group Company, but H did not transfer the money. Mr. L visited H Duc Sai Gon Company and demanded that H return his money; H promised to return the money on 31/8/2018. On that day, Mr. L visited the company to receive the money but it was closed, so Mr. L sent a denunciation of H to Phu Nhuan District Police on 27/8/2018. On 27/11/2019, H and his family returned VND 636.000.000 to Mr. L, so Mr. L withdrew his request for criminal prosecution against H in writing.

The second case: H appropriated VND 360.720.000 from Ms. Ngo Ng M, born in 1977; place of residence: No. 30/73 D Nn, SK ward, T P district, Ho Chi Minh City:

Ms. Ngo Ng M needed to transfer money to the personal account of a friend called Doan Quynh, who was residing in the United States. Ms. M called H to ask for information and cost and was informed by H that the cost of transferring USD 15.303 was USD 150 and the transfer took 02 days. On 08/6/2018, when Ms. M visited H Duc Sai Gon Company to transfer money, H told an employee called Ha Ng NH to make the transaction and receive USD 15.453 in total, with both parties exchanging USD 15.453 to VND 360.720.000. NH wrote a receipt for Ms. M. When Ms. M’s friend said she had not received the money by the deadline, Ms. M visited H Duc Sai Gon Company to request that H return the money but the company was closed.

On 31/7/2018, Ms. M sent a denunciation of H to Phu Nhuan District Police. On 29/10/2018, H returned VND 255.000.000 to Ms. H. On 25/5/2020, H’s family returned the remaining amount (VND 105.720.000) to Ms. M.

The third case: H appropriated VND 118.000.000 from Ms. Pham Minh Linh Thy, born in 1986; place of residence: 183/28 Ngn V D, ward 11, B Th district, Ho Chi Minh City.

Needing to transfer money to Israel, on 09/6/2018, Ms. Thy visited H Duc Sai Gon Company to transfer USD 5.300 to Ms. Ori (nationality: Israeli) to purchase cosmetic products. H agreed to the request and exchanged USD 5.300 to VND 115.000.000 with transfer fee of VND 3.000.000. H promised to transfer the abovementioned amount to the receiver within 10 days. Ms. Thy gave H VND 118.000.000 in total. H wrote a receipt.

On 16/8/2018, Ms. Ori said she had not received the money, so Ms. Thy visited H Duc Sai Gon Company to request that H return the money but the company was closed and she could not contact H. On 16/8/2018, Ms. Thy sent a denunciation of H to Phu Nhuan District Police. On 11/9/2018, H returned VND 50.000.000 to Ms. Thy. On 03/6/2019, H’s family returned the remaining amount (VND 68.000.000) to Ms. Thy.

Ms. Thy has withdrawn her request for criminal prosecution against H in writing.

The fourth case: H appropriated VND 73.000.000 from Ms. Nguyen Quoc Nha Tr, born in 1977; place of residence: No. 86/99/22 A C, ward 9, T B district:

On 18/7/2018, Ms. Tr visited H Duc Sai Gon Company to transfer VND 71.000.000 to a relative in the United States. H agreed to transfer the abovementioned amount with a transfer fee of VND 2.000.000. Ms. Tr agreed and transferred VND 73.000.000 in total to H via Internet Banking. H promised the money would be sent to the receiver in the United States 02 days later. Then, H sent a successful transfer order to Ms. Tr via text message but Ms. Tr’s relative said they had not received the money. When Ms. Tr informed H and requested him to return the money, H promised to return it on 14/8/2018.

H avoided meeting Ms. Tr and did not return the money on time, so Ms. Tr reported the case to Phu Nhuan District Police on 14/8/2018. On 15/8/2018, H returned VND 73.000.000 to Ms. Tr.

The fifth case: H appropriated VND 267.977.000 from Ms. Nguyen Thi Ng H1, born in 1984; place of residence: No. 37/2C Ng T T, ward 21, B Th district:

Ms. Nguyen Thi Ng H1 needed to transfer money to her business partners in the United Kingdom and Malaysia. On 18/7/2018, Ms. H1 visited H Duc Sai Gon Company to transfer VND 136.406.000 into account No. 03887308 of New Health Supplies Company in the United Kingdom. H agreed to transfer the abovementioned amount with transfer fee of VND 2.700.000 within 03 days. On 24/7/2018, Ms. H1 visited H Duc Sai Gon Company again to transfer VND 127.571.000 to account No. 3592365717 of Troinsn Triplets Company in Malaysia.

H agreed to transfer the abovementioned amount with a transfer fee of VND 1.300.000 within 03 days. Ms. H1 gave H a total of VND 267.977.000 to transfer to the United Kingdom and Malaysia. H wrote a receipt for this amount.

Then, Ms. H1’s partners informed her that they had not received the money, so Ms. H1 called H to request that H return the money. H promised to return the full amount to Ms. H1 on 31/8/2018 but he failed to do so, so Ms. H1 sent a denunciation of H to Phu Nhuan District Police on 30/8/2018. On 17/9/2018, H returned VND 150.000.000 to Ms. H1 and currently owes her VND 117.977.000.

The sixth case: H appropriated VND 70.000.000 from Ms. Nguyen Thi Hong Ng, born in 1984; place of residence: No. 153/31/4 L V Th, ward 8, G v district:

Needing to transfer money to the United States, Ms. Ng called H to ask for information and cost of transferring USD 2.600, and was informed by H that he could transfer this amount with a cost of USD 400 within 03 days. On 06/8/2018, when Ms. Ng visited H Duc Sai Gon Company to transfer the money, H told an employee called Ha Ng NH to make the transaction and receive USD 3000, with both parties exchanging USD 3.000 to VND 70.000.000 on 06/8/2018. NH wrote a receipt for this amount. On 9/8/2018, H informed Ms. Ng that he could not make the transfer and promised to return the money to Ms. Ng on 13/8/2018. When H avoided meeting Ms. Ng and failed to return the money on time, on 09/11/2018, Ms. Ng sent a denunciation of H to Phu Nhuan District Police. On 15/8/2018, H returned VND 70.000.000 to Ms. Ng.

The seventh case: H appropriated VND 9.800.000 from Mr. Nguyen Duy Kh, born in 1983; place of residence: No. 482/63 L Q D, ward 11, B Th district:

On 07/8/2018, Mr. Kh visited H Duc Sai Gon Company to transfer USD 300 to a dental equipment seller in Pakistan. H agreed to transfer this amount with a transfer fee of USD 120 within 03 days. H wrote a receipt stating he had received USD 420 (exchanged to VND 9.800.000) in total from Mr. Kh.

When the seller informed Mr. Kh that they had not received the money by the deadline, Mr. K reported the case to Phu Nhuan District Police. On 02/11/2018, H returned VND 8.800.000 to Mr. Kh and currently owes him VND 1.000.000.

The eighth case: H appropriated VND 48.580.000 from Ms. Nguyen Hoang Anh Th, born in 1999; place of residence: No. 110 Tr Q D, ward 14, district 3:

On 08/8/2018, Ms. Th visited H Duc Sai Gon Company to transfer USD 2000 to the personal account of a relative living in the United States. H agreed to transfer this amount with a transfer fee of USD 80 within 03 days. H wrote a receipt stating he had received USD 2.080 (exchanged to VND 48.580.000 on 8/8/2018) in total from Ms. Th. On 14/8/2018, when the relative informed Ms. Th that they had not received the money, Ms. Th visited H Duc Sai Gon Company to request H to return the money but the company was closed and she could not contact H. On 14/8/2018, Ms. Th sent a denunciation of H to Phu Nhuan District Police. On 15/8/2018, H returned VND 48.580.000 to Ms. Th.

The ninth case: H appropriated VND 37.100.000 from Mr. Le Duy Kh, born in 1991; place of residence: No. 177/8/48 Luy Ban Bich, H Tan ward, T P district:

On 11/8/2018, Mr. Kh visited H Duc Sai Gon Company to transfer USD 1.500 to the personal account of Ms. Varyukhin Anatoliy Vladimisovich in Russia to purchase an Alakai dog. H agreed to transfer this amount with a transfer fee of USD 90 within 05 days. H wrote a receipt stating he had received USD 1.590 (exchanged to VND 37.100.000 on 11/8/2018) in total from Mr. Kh. On 16/8/2018, when Ms. Varyukhin Anatoliy Vladimisovich informed Mr. Kh that she had not received the money, Mr. Kh visited H Duc Sai Gon Company to request H to return the money but the company was closed and he could not contact H. On 20/8/2018, Mr. Kh sent a denunciation of H to Phu Nhuan District Police. On 26/12/2018, H returned VND 17.000.000 to Mr. Kh. H’s family returned the remaining VND 20.100.000 to Mr. Kh.

The tenth case: H appropriated VND 14.150.000 from Ms. Le Thi Ng Th, born in 1983; place of residence: B D hamlet, D B commune, V Th district, Kien Giang province:

On 13/8/2018, Ms. Th visited H Duc Sai Gon Company to transfer VND 12.750.000 to the account of Ms. Masnie Boerhan Ali (nationality: Indonesian). H agreed to transfer this amount with a transfer fee of VND 1.400.000 within 02 days. H wrote a receipt stating he had received VND 14.150.000 in total from Ms. Th. On 15/8/2018, H informed Ms. Th that he could not transfer the money and promised he would return the money to her on 16/8/2018. However, when Ms. Th visited H Duc Sai Gon Company to receive the money, the company was closed and she could not contact H, so on 22/8/2018 she sent a denunciation of H to Phu Nhuan District Police. On 10/9/2018, H returned VND 14.150.000 to Ms. Th and she withdrew his request for criminal prosecution against H in writing.

On 27/11/2018, Thang Duc H continued to contribute capital with Ms. Ngo Thi Hoai Thuong Em (born in 1992, residing at No. 39 street No. 6, ward 15, G v district) to establish Thuong Ngo Trade and Service LLC at No. 672A42 Cityland Park Hills residential area, Phan Van Tri, Ward 10, G v district that engaged in goods transport with Ms. Ngo Thi Hoai Thuong Em as the legal representative. Then Ms. Thuong Em let Thang Duc H become the legal representative. After becoming the legal representative of Thuong Ngo Trade and Service LLC, H continued to advertise on the Internet that he could transfer money and foreign currencies overseas and appropriate money from two more people. To be specific:

The eleventh case: H appropriated VND 330.200.000 from Mr. Tran Ng H, born in 1977; place of residence: No. 51/5A 359 street, Phuoc L A ward, district 9:

On 20/12/2018, Mr. H visited Thuong Ngo Company to transfer VND 326.900.000 to the account of Paul Pham opened at City Bank in the United State. H agreed to transfer this amount with a transfer fee of VND 3.300.000 within 07 days. H wrote a receipt stating he had received VND 330.200.000 in total from Mr. H. When Mr. H’s relative said he had not received the money by the deadline, Mr. H visited Thuong Ngo Company to request H to return the money, but the company was closed and he could not contact H. On 17/01/2019, Mr. H sent a denunciation of H to G v District Police. On 11/10/2019, H returned VND 330.200.000 to Mr. H. Mr. H has withdrew his request for criminal prosecution against H in writing.

The twelfth case: H appropriated VND 61.500.000 from Ms. Ha Thi Tuyet D, born in 1976; place of residence: 154/3B T H D, ward 14, district 6:

On 26/12/2018, Ms. D visited Thuong Ngo Company to transfer VND 60.000.000 to the personal account of Ms. Tran Bao Yen opened at City Bank in Taiwan. Hiep agreed to transfer this amount with a transfer fee of VND 1.500.000 within 03 days. H wrote a receipt stating he had received VND 61.500.000 in total from Ms. D. When Ms. D’s relative said she had not received the money by the deadline, Ms. D contacted H to request that he return the money but he did not answer. On 21/01/2019, Ms. D sent a denunciation of H to G v District Police. On 17/8/2019, H returned VND 61.500.000 to Ms. D.

Ms. D has withdrew her request for criminal prosecution against H in writing. According to First-Instance Criminal Judgment No. 243/2020/HSST dated July 15, 2020 by the People’s Court of Ho Chi Minh City:

Pursuant to Point a Clause 4 Article 174; Points b and s Clause 1 and Clause 2 Article 51; Point g Clause 1 Article 52; and Article 54 of the 2015 Criminal Code (amended in 2017);

Sentence Thang Duc H to 10 years in prison for “Obtaining property by fraud”. The prison term commences from 15/8/2019.

In addition, the first-instance court also decided the civil liabilities, court fee and right to appeal as per the law.

On 20/7/2020, Thang Duc H filed an appeal for sentence reduction.

At the appellate trial, Thang Duc H provided documents on compensation amounting to VND 117.977.000 for Nguyen Thi Ng H1 and request for denunciation withdrawal from Ms. H1, appeal for sentence reduction, receipt made out for VND 1.000.000 provided as compensation for Nguyen Duy Kh by civil judgment execution authority of Ho Chi Minh City. Total amount of compensation was 118.977.000.

Thang Duc H upheld his appeal for sentence reduction with the reasons that, after the first-instance trial, he provided compensation and dealt with all consequences; the aggrieved persons submitted their requests for denunciation withdrawal and sentence reduction; H's family was in a difficult situation, his parents were old, his child was young and he was the main worker of the family.

Opinions of the representative of the People’s Procuracy: that the first-instance court sentenced Thang Duc H to 10 years in prison for "Obtaining property by fraud” was below the minimum penalty of the penalty bracket as the appellant had multiple mitigating circumstances as per the law. After the first-instance trial, H providing further compensation and dealing with all consequences were new circumstances, thus request the Trial Panel to accept a part of his appeal for sentence reduction and sentence him to 09 years in prison for “Obtaining property by fraud”.

Representation of appellant H: he was greatly remorseful and wished to have his sentence reduced.

Representation of the appellant’s lawyer: he agreed with the offence title but the sentence should be reconsidered as the appellant returned the money immediately upon the aggrieved persons’ requests so the appropriated amount was little, leading to small consequences; moreover, the appellant’s companies did not provide overseas money and foreign currency transfer services but the appellant received money and requested other companies to make the transfers to profit off the difference in service price. The appellant's family was in a difficult situation, his parents were old, his father had an accident and his child was young. After the first-instance trial, H dealt with all consequences and provided the aggrieved persons with compensation amounting to VND 118.977.000. Therefore, request the trial panel to accept the appeal and reduce H’s sentence.

JUDGMENT OF THE COURT

From 6/2018 to 8/2018, Thang Duc H was the director of H Duc Sai Gon Company and Thuong Ngo Company, which were not capable of making overseas money transfers, but he advertised on the internet that his companies could transfer money and foreign currencies overseas and received money from multiple people for personal spending.

Thang Duc H appropriated VND 2.006.000.902 in total from 12 aggrieved persons, namely Nguyen Thanh Lan, Ngo Ng M, Pham Minh Linh Thy, Nguyen Quoc Nha Tr, Nguyen Thi Ng H1, Nguyen Thi Hong Ng, Nguyen Duy Kh, Nguyen Hoang Anh Th, Le Duy Kh, L Thi Ng Th, Tran Ng H and Ha Thi Tuyet D.

That the first-instance court charged Thang Duc H with “Obtaining property by fraud” according to regulations in Article 174 of the 2015 Criminal Code (amended in 2017) had valid grounds and was lawful.

Thang Duc H appropriating VND 2.006.927.000 was an extremely serious crime according to regulations in Point a Clause 4 Article 174 of the 2015 Criminal Code (amended in 2017).

Thang Duc H’s offence violated property of other people, endangered social safety and public order and must be strictly handled for prevention purpose.

When deciding the penalty, the first-instance court properly evaluated the nature and extent of the offence and consequences thereof, considered aggravating circumstances, mitigating circumstances and record of the appellant and sentenced Thang Duc H to 10 years in prison for “Obtaining property by fraud” as the appellant had multiple mitigating circumstances and good record and voluntarily compensated the aggrieved persons, and the aggrieved persons submitted requests for denunciation withdrawal.

At the appellate trial, H appealed for sentence reduction as, after the first-instance trial, H provided the aggrieved persons with compensation amounting to VND 118.977.000 and dealt with all consequences and the aggrieved persons submitted requests for sentence reduction, which were new mitigating circumstances; and the appellant's family was in a difficult situation, his parents were old and his child was young. Therefore, the Trial Panel accepted a part of H’s appeal and amended the penalty stated in the first-instance judgment.

Based on the abovementioned facts and matters,

Pursuant to Point b Clause 1 Article 355 of the Criminal Procedure Code in Viet Nam.

HEREBY DECIDES

Accept a part of the appeal filed by Thang Duc H and amend the penalty stated in the first-instance judgment.

Declare Thang Duc H guilty of “Obtaining property by fraud”.

Pursuant to Point a Clause 4 Article 174; Points b and s Clause 1 and Clause 2 Article 51; Point g Clause 1 Article 52; and Article 54 of the Criminal Code (amended in 2017) in Viet Nam;

Sentence Thang Duc H to eight years in prison. The prison term commences from 15/8/2019.

- Other decisions in the first-instance judgment not subject to any petition or appeal shall come into force from the date on which the time to petition/appeal expires.

- Thang Duc H is not required to incur the appellate court fee.

- This appellate judgment takes effect from the date of pronouncement.