Judgment no. 395/2017/HSST dated november 24, 2017 for property theft

PEOPLE’S COURT OF HO CHI MINH CITY

JUDGMENT NO. 395/2017/HSST DATED NOVEMBER 24, 2017 FOR PROPERTY THEFT

On November 24, 2017 at the People’s Court of Ho Chi Minh City, the accepted criminal case No. 562/2017/HSST dated October 20, 2017 was brought for the public first instance trial against the defendant:

Nguyen Thi H; gender: Female; year of birth: 1991 in Province V; permanent residence: 6Q of Road B, Town D, District D, Province V; nationality: Vietnamese; ethnic group: Kinh; religion: Buddhism; education level: 1/12; occupation: None; child to Mr. Nguyen Van Hu and Mrs. Nguyen Thi G; family: Having 1 child in 2008; criminal record: None; judgment record: 2 judgments (Judgment No. 396/2013/HSPT dated December 26, 2013 of the People’s Court of Province N sentencing for 2 years of imprisonment for “Property theft” starting from September 30, 2012; Judgment No. 428/HSST dated July 30, 2015 of the People’s Court of City A, Province N sentencing 14 months of imprisonment for “Property theft” starting from March 20, 2015).

Record:

+ On November 17, 2009, the People’s Court of City A sentences the defendant to 6 months of imprisonment in form of suspended sentence with probation period of 1 year for “Property theft” (Judgment No. 599/2009/HSST)

+ ON March 15, 2012, The defendant is prosecuted by Police Authority of District D, Province V for “Deliberate infliction of injuries”.On March 13, 2012, Investigating Authority of District D issued Decision on suspending investigation of the case and the defendant Nguyen Thi H after the aggrieved party had withdrawn the request.

The defendant is detained from June 4, 2017 until present.(Present)

The aggrieved person: X, born in 2002 (having Ms. Pham Thi Thu Va as authorized legal representative)

Temporary residence: Hotel K, No. 2 Road C, Ward Y, District S, Ho Chi Minh City.

WHEREAS

The defendant Nguyen Thi H is prosecuted by the People’s Supreme Procuracy for the following violation:

At around 5:30 p.m. of June 4, 2017, Nguyen Thi H enters Shopping Mall M, No. 65 of Road L, Ward Ng, District E to commit theft for pocket money. At around 7 p.m. of the same day, as H leaves the restroom on the first storey of Shopping Mall M, she notices that X is wearing a bag on X's left shoulder with zipper not fully closed, the bag contains a black Iphone 7 Plus mobile phone.H approaches X from behind, unzips the bag with her left hand and steals the mobile phone mentioned above with her right hand and places the phone in the bag that H is carrying in front of her chest.After H walks away for 4 - 5 meters, X and her aunt, Ms. Pham Thi Thu D, are aware of the situation, hold H, and inform security of the shopping mall, Mr. Nguyen Dinh Lo, who examines the bag of H where he suspends a black Iphone 7 Plus 128 G mobile phone and a white Samsung SMG 906J mobile phone, and later transfers H and the evidence to Police Authority of Ward Ng, District E for the police to produce record on arresting offender red-handed.

At investigating authority, H admits the aforementioned violation.Regarding the white Samsung SMG 906J mobile phone, H confesses: At around 6 p.m. of June 4, 2017, H walks towards Ki Shop on the first storey of Shopping Mall M where H sees a foreign man (personal background and address unidentified) who places the Samsung phone in his bag hanging on his bag.H approaches the man from behind, steals the phone from the man’s bag with her right hand, places the phone in H’s bag which is hanging in front of her chest, and walks away.

According to Property valuation conclusion No. 064/KLDG dated June 10, 2017 of the Property Valuation Council in criminal proceeding, People’s Committee of District E concludes: The Iphone 7 Plus mobile phone is worth VND 21,000,000;The Samsung SMG 901J mobile phone is worth VND 2,800,000.

Regarding the white Samsung SMG 906J mobile phone, investigation has failed to identify the owner, investigating authority will continue the search, verify, and request further actions.

Confiscated evidence:

- 1 black Iphone 7 Plus 128 G mobile phone of X. (which has been returned to the aggrieved person by Police Authority of Ward Ng, District E).

- 1 white Samsung SMG 906J mobile phone whose owner has not been identified.During investigation, investigating authority has posted notice searching for owners but attaining no results so far.

- 1 flash drive containing surveillance footage after H steals X’s mobile phone.

- 1 brown bag, 1 yellow long-sleeved female shirt;1 pair of black female pants which are personal belongings of H when committing the violations.

Regarding civil liability: Police authority of Ward Ng, District E has returned the black Iphone 7 Plus 128 G mobile phone to the aggrieved person, X. X has no other request.

Under Indictment No. 398/CT-VKS-P2 dated October 16, 2017 of the People’s Procuracy of Ho Chi Minh City, the defendant Nguyen Thi H is prosecuted for “Property theft” pursuant to Point c Clause 2 Article 138 of the Criminal Code.

At the first-instance trial:

The defendant Nguyen Thi H admits to her violation as per the Indictment.

Representative of the People’s Procuracy of Ho Chi Minh City presents the impeachment and verifies legitimacy of the Indictment.Meanwhile, after analyzing nature, severity and consequences of the violation committed by the defendant, the Trial panel is requested to adopt Point c Clause 2 Article 138 and Point g, Point p Clause 1 Article 46 of the Criminal Code to sentence the defendant: Nguyen Thi H from 3 to 4 years of imprisonment for “Property theft”.

The defendant provides no self-defense statement but only requests a reduced sentence.

Based on documents and evidence examined at court; based on discussion results at court, and on the basis of thorough and adequate consideration of evidence and opinions of procurators and defendants.

DEEM

At investigating authority and court today, the defendant admits to all of her violations, testimonies of the defendant match with those of the aggrieved person and other collected evidence in the case file which verify that: At around 7 p.m. of June 4, 2017, on the first storey of Shopping Mall M, No. 65 of Road L, Ward Ng, District E, Ho Chi Minh City, Nguyen Thi H steals a black Iphone 7 Plus 128G mobile phone (which is valued at VND 21,000,000 according to property valuation conclusion No. 064/KLDG dated June 10, 2017 of the Property Valuation Council for criminal proceeding of People’s Committee of District E) from X.Pursuant to Point b Clause 2 Article 49 of the Criminal Code, since the defendant H repeats previous violations whose criminal records have not been expunged, this violation of the defendant is particularly dangerous recidivism. Thus, violation of the defendant Nguyen Thi H is an adequate constituent of “Property theft" pursuant to Point c Clause 2 Article 138 of the Criminal Code.The People’s Procuracy of Ho Chi Minh City prosecutes the defendant within the charges and regulations above on a well-grounded and legitimate basis.

Regarding the theft of the Samsung SMG 906J mobile phone of a foreign man (whose personal background and address are unidentified) which is investigated on a separate basis, the Trial panel shall not include the case.

Violation of the defendant is a danger to society, infringes legal personal property protected by the law, and causes social disorder.When committing the violation, the fact that the defendant is aware that theft is illegal but proceeds anyway for personal gain signifies that the defendant disregards regulations and law and must be met with strict penalties corresponding to nature and severity of the violation while being able to threaten, educate and prevent further violation.

However, considering the defendant testifies and repents with haste during investigation and at court, the defendant commits violation without causing any damage, and stolen property has been recovered and returned to the aggrieved person. These are criminal liability mitigating circumstances under Point g and Point p Clause 1 Article 46 of the Criminal Code and shall be applied to reduce the penalties that the defendant should have suffered from.

Regarding additional penalties:

Pursuant to Clause 5 Article 138 of the Criminal Code of Viet Nam: “The offender may incur a fine ranging from VND 5,000,000 to VND 50,000,000”, thereby the defendant may incur additional penalty in form of fine.However, according to documents, evidence and testimony of the defendant at court, the defendant is shown to unemployed and facing difficult economic conditions.Thus, the Trial panel decides not to adopt additional penalty in form of fine against the defendant.

Regarding evidence disposal:

- Regarding the black Iphone 7 Plus 128G mobile phone, Police authority of Ward Ng, District E has returned to X on June 4, 2017 (excerpt 40). The return is compliant with Article 76 of the Criminal Proceeding Code and thus the Trial panel shall not consider and resolve.

- Regarding the white Samsung mobile phone with imel: 353557063809059, H admits to have stolen from a foreign man (whose personal background and address are unidentified) on the first storey of Shopping Mall M, the white Samsung mobile phone shall not be considered an evidence in this case after the Indictment No. 398/CT-VKS-P2 dated October 16, 2017 of the People’s Procuracy of Ho Chi Minh City requests a later and separate resolution. Thus, the mobile phone shall be transferred to Investigating authority of police authority of Ho Chi Minh City for further management.

- The black 4G flash drive containing surveillance footage where H steals the mobile phone from X serves as the evidence and shall be stored in the case file.

- The brown bag, yellow long-sleeved female shirt, and pair of black female pants are of no use value and shall be confiscated and disposed according to Article 76 of the Criminal Proceeding Code in Viet Nam.

Regarding civil liability: Under exhibit return record dated June 4, 2017, X confirms, receives the Iphone 7 Plus 128G mobile phone and issues no further request.Thus the Trial panel shall not consider.

Based on the above-mentioned facts and matters;

DECISION

Declare: Defendant Nguyen Thi H is guilty of “Property theft”.

Pursuant to Point c Clause 2 Article 138, Point g, and Point p Clause 1 Article 46 of the Criminal Code.

Sentence the defendant Nguyen Thi H to 3 years of imprisonment.Term of imprisonment starts from June 4, 2017.

Pursuant to: Article 76 of the Criminal Proceeding Code:

- Return the white Samsung mobile phone with imel: 353557063809059 to Investigating authority of Ho Chi Minh City police authority for management.

- Store 1 black 4GB flash drive with case file.

- Confiscate and dispose 1 brown handbag, 1 yellow long-sleeved female shirt, and 1 pair of black female pants.

(According to the Evidence handover record No. 06/18 dated October 10, 2017 of the Civil procedure agency of Ho Chi Minh City)

Pursuant to Point a Clause 1 Article 23 of Resolution No. 326/2016/UBTVQH14 in Viet Nam of Standing Committee of National Assembly, the defendant must incur the first instance criminal trial fee of VND 200,000.

The defendant has the right to file an appeal the first instance judgment to the Appellate Court – the People’s Supreme Court of Ho Chi Minh City within 15 days from the date of judgment.For aggrieved person absent at court, appeal period starts from the date on which the judgment is delivered to said person or posted publicly.