Judgment No. 41/2017/HSST dated december 27, 2017 on use of internet for property appropriation and use of property obtained by crime

PEOPLE’S COURT OF QUANG TRI

JUDGMENT NO. 41/2017/HSST DATED DECEMBER 27, 2017 ON USE OF INTERNET FOR PROPERTY APPROPRIATION AND USE OF PROPERTY OBTAINED BY CRIME 

On December 27, 2017, at the office of the People’s Court of Quang Tri, a first-instance trial court is conducted to hear the Criminal Case No. 33/2017/HSST dated October 31, 2017 against:

1. Vo Tung D (pseudonym: none), born on December 01, 1999 in Quang Tri; place of residence: K village, T commune, P district, Quang Tri; occupation: none; level of education: 10/12; parents: Mr. Vo D and Mrs. Nguyen Thi B.

Criminal history: none.

The defendant was kept in temporary detention from February 13, 2017 to July 12, 2017. The defendant is being imposed residential confinement by People’s Court of Quang Tri and is present in the court session.

2. Nguyen Duc H (pseudonym: none), born on October 02, 1999 in Quang Tri; place of residence: quarter 3, ward 1, Q town, Quang Tri; occupation: student; level of education: 12/12; parents: Mr. Nguyen Duc Q and Mrs. Tran Thi L.

Criminal history: none.

The defendant is being kept in temporary detention according to the Temporary Detention Decision No. 81 dated December 07, 2017 by the investigation police of Nghe An Public Security Force (present in the court session).

Legal representatives of the defendants:

- Mr. Vo D - Born in 1966; place of residence: K village, T commune, P district, Quang Tri, father of Vo Tung D.

- Mrs. Nguyen Thi B - Born in 1966; place of residence: K village, T commune, P district, Quang Tri, mother of Vo Tung D.

Victims:

- Ms. Nguyen Trang Cam M, born in 1987; place of residence: No. 16, DC 5 street, S ward, T district, Ho Chi Minh City.

- Ms. Nguyen Thi Thanh N, born in 1988; place of residence: No. 21, D street, ward 15, P district, Ho Chi Minh City.

- Ms. Nguyen Thi Ngoc O, born in 1981; place of residence: No. 114C, quarter 7, M ward, district 12, Ho Chi Minh City.

FINDING THAT

The defendants are prosecuted by People’s Procuracy of Quang Tri for the following crimes:

When he was in the tenth grade in Quang Tri Town high school, Vo Tung D learned how to use the internet for property appropriation. First, D visited the website wix. com and registered an account. With this account, D created a website called transfermoney. win. com, which was accessible only to D. Next, D created subdomains of transfermoney. win. com, which contained fields such as name of bank, card holder, card number, expiration date, etc., to deceive the victims into entering their personal information. This information allowed D to access the victims’ bank accounts via internet banking and withdraw their money.

After setting up the website and subdomains, D seized the Facebook accounts of overseas Vietnamese. He impersonated the account owners and asked their friends and family to lend him their bank account numbers so that he could transfer money from other countries to Vietnam.

After obtaining the victims’ bank account information (including cardholder name, account number and phone number used to register the account), D accessed the website https://www.vianett. com to register for its free international text message service. Then, via text messages, he informed the victims that their bank accounts were to receive money from foreign accounts and requested them to provide information necessary for such receipt on his website. After receiving this information from the victims, D illegally accessed the victims’ bank accounts and transferred all of their money to a VTC Pay e-wallet account (provided by Vietnam E-commerce Association (VECOM), whose headquarters is located in Hanoi), which he registered via the website web365. vtc. vn.

After that, D continued to chat with the victims and requested them to enter the OTP codes they received on their phones, which were a requirement for money transfer via internet banking. After receiving the OTP codes from the victims, D transferred all of the money in the victims’ accounts to his VTC Pay e-wallet account and finished appropriating the victims’ property.

With the abovementioned method, D used the internet to appropriate property as follows:

In the evening of March 11, 2016, D asked his friend Nguyen Duc H to go play online games with him in the internet café at No. 01 Z street, Q town. Here, D gained access to the Facebook account of “Manh Nguyen”, an overseas Vietnamese. D scrolled through the account's chat history and impersonated “Manh Nguyen” to chat with “Cam M Nguyen Trang”. At first, D chatted with Ms. M to earn her trust, and then he used the abovementioned method to obtain Ms. M’s bank account information (such as account number, account owner, phone number used to register the account and bank name). After deceiving Ms. M into giving him the information, D accessed her bank account, which had VND 150,000,000 at that time. To transfer the money from Ms. M’s account to D’s e-wallet account, D also needed an OTP code. Thus, he impersonated “Manh Nguyen” to ask Ms. M for the code. After obtaining the code, D entered it into the internet banking system and successfully transfer VND 150,000,000 from Ms. M’s account to his e-wallet account.

Besides Ms. Nguyen Trang Cam M, with the abovementioned method, D also appropriated VND 48,030,091 from Ms. Nguyen Thi Thanh N on March 23, 2016 and VND 76,535,750 from Ms. Nguyen Thi Ngoc O on March 24, 2016.

Total amount of money that D appropriated from the three victims are VND 274,565,841.

Nguyen Duc H committed the crime of use of property obtained by crime as follows:

In the evening of March 11, 2016, after appropriating VND 150,000,000 from Ms. M, D asked H to contact Ms. Phan Thi Thuy V (born in 1992, residing in Quarter 4, Ward 3, Q town) to withdraw such amount. D told H he would like to withdraw VND 142,000,000 from his e-wallet (the remaining VND 8,000,000 was used for games). H relayed D’s request to Ms. V, who said she would contact H later. After that, Ms. V contacted Ms. Thieu Thi A (born in 1984, residing in Quarter 1, S hamlet, H commune, M district, Ba Ria - Vung Tau), a person specializing in acquiring electronic money in e-wallets. Ms. A struck a deal in which Ms. A would exchange VND 900,000 in cash for VND 1,000,000 of electronic money with Ms. V. After agreeing on the deal with Ms. A, Ms. V informed H that she would exchange VND 1,000,000 of electronic money into VND 870,000 in cash, which translated to VND 142,000,000 of electronic money in exchange for VND 123,540,000 in cash. H informed this deal to D, who agreed to it. In the evening of March 12, 2016, the money was ready so H took D to see Ms. V. D stayed in the yard while H entered Ms. V’s house to get the cash. After leaving Ms. V’s house, D asked if H would like VND 10,000,000 to buy an iphone 6s. Then D gave H VND 20,000,000 and said to him: “I give you VND 10,000,000 and lend you another VND 10,000,000 to buy an iphone 6s. Return VND 10,000,000 to me when you can.” H took the money. A few days later, he returned VND 10,000,000 to D and said he did not want to buy the phone anymore. After the investigation into the case, H admitted to have used VND 141,999,000 in D’s e-wallet, which was obtained by crime. H was not aware from whom or how D seized this amount, but H clearly knew the money in D's e-wallet was obtained by crime. In their previous meetings, H had asked D to teach him the abovementioned method many times, but, as there were too many steps, D only told H the general information. After that, H appropriated other people’s accounts many times but none of those had money. Therefore, even though there was no prior agreement, H clearly knew D obtained the property by crime.

In the Charge No. 14/QD/KSDT-KT dated October 30, 2017 by People’s Procuracy of Quang Tri, Vo Tung D is prosecuted for the crime of “Use of Internet for property appropriation” according to regulations in Point a Clause 3 Article 226b (referred to in Point b Clause 1 Article 226b) and Nguyen Duc H is prosecuted for the crime of “Use of property obtained by crime” according to Point c Clause 2 Article 250 of the Criminal Code.

Ms. Phan Thi Thuy V and Ms. Thieu Thi A did exchange the electronic money that D appropriated from the victims; however, Ms. V and Ms. A were not aware that such money was obtained by crime. Thus, they are exempt from any criminal liability.

In the court session, the representative of People’s Procuracy of Quang Tri upholds the decision to prosecute the defendants and requests the trial panel to:

Sentence Vo Tung D to 30 - 36 months in prison according to Point a Clause 3 Article 226b; Point g Clause 1 Article 48; Points b and p Clause 1 and Clause 2 Article 46; Article 47; Article 60; Article 69 and Article 74 of the Criminal Code.

Sentence Nguyen Duc H to 12 - 18 months in prison according to Point c Clause 2 Article 25; Points b and p Clause 1 Article 46; Article 47; Article 69 and Article 74 of the Criminal Code.

Regarding civil liabilities, during the investigation process, D asked his family to return VND 50,000,000 to Ms. Nguyen Trang Cam M, VND 10,000,000 to Ms. Nguyen Thi Thanh N and VND 10,000,000 to Ms. Nguyen Thi Ngoc O. The victims request the defendants to return the remaining amount of money.

Regarding exhibits of the case, during the investigation process, the investigating authority confiscated all Facebook chats between D and the victims and logs of transactions from Ms. V to Ms. A and vice versa. These documents are included in the case dossier.

According to the exhibits and documents inspected in the court session; according to the result of the debate in the court session; and on the basis of the exhibits, documents and opinions of the Procurator, the defendants and other participants in the procedure,

CONSIDERING THAT

From March 11, 2016 to March 24, 2016, Vo Tung D led a life of indulgence and wanted to earn money illegally. Thus, he used the internet to hack Facebook accounts and appropriate property. The defendant studied the chat history of these accounts to chat with their acquaintances. After earning the victims’ trust, the defendant requested the victims (Nguyen Trang Cam M, Nguyen Thi Thanh N, Nguyen Thi Ngoc O) to give him their bank account numbers, bank names and phone numbers, and then used the abovementioned method to appropriate a total amount of VND 274,565,841 from the victims’ bank accounts. Vo Tung D’s actions are sufficient to constitute the crime of “Use of internet for property appropriation” with the penalty determination circumstances prescribed in Point a Clause 3 Article 226b of the 1999 Criminal Code.

As for Nguyen Duc H, he clearly knew Vo Tung D obtained the property by crime and assisted D with using such property by exchanging VND 141,999,000 of electronic money into cash even though they had no prior agreement. H’s action is sufficient to constitute the crime of “Use of property obtained by crime” according to Point c Clause 2 Article 250 of the Criminal Code. The trial panel finds that, recently, there is an increase in technology-related crimes in Quang Tri with more and more complicated characteristics and elaborate methods. This type of crime is mostly committed by young offenders who neglect their education and lead a life of indulgence. They play online games and learn how to appropriate property for personal use from bad influences. The defendants committed their respective crimes when they were young, with D being 16 years 03 months and 10 days old and H being 16 years 05 months and 10 days old. Therefore, the defendants must be imposed strict punishment to deter future offences while criminal policies for juvenile offenders should also be reviewed. In today’s court session, the defendants have admitted all of their crimes, which are stated in the Charge No. 14/QD/KSDT-KT. Thus, Quang Tri People’s Procuracy has charged the right persons with the right crimes and in compliance with regulations of laws.

Upon consideration of the aggravating and mitigating circumstances, finding that, as D has committed the crime three times, his offence is aggravated due to its repetitive occurrence as prescribed in Point g Clause 1 Article 48 of the 1999 Criminal Code; and, due  to his cooperative attitude and contrition, his request that his family returns the victims’ money in part to alleviate the consequences that he caused, the victims’ requests for mitigation of his punishment and his family’s contribution to the revolution, his offence is mitigated according to Points b and p Clause 1 and Clause 2 Article 46 of the 1999 Criminal Code. On the other hand, at the time the crime was committed, the defendants were juvenile, thus, they shall be tried based on the criminal policies prescribed in Article 69 and Article 74 of the Criminal Code. D has good conduct and this is his first offence, hence mitigation of his punishment and exemption from imprisonment should be considered in accordance with new criminal policies for juvenile offenders. Enabling D to resume his education and become a good citizen is showing leniency in law. As D has a permanent place of residence and good conduct, he should receive education from the People's Committee of T commune and his family to become a good citizen instead of being isolated from the society. As for H, due to his cooperative attitude and contrition, and having returned to D the amount of VND 10,000,000 that he had received from D to alleviate the consequences, his offence is mitigated according to Points b and p Clause 1 and Clause 2 Article 46 of the 1999 Criminal Code.

Similar to D, H committed his crime when he was a juvenile and had limited knowledge of the law. However, during the time in which he was prohibited from leaving his place of residence, he was caught committing a crime in another location, and is being kept in temporary detention by Nghe An Public Security Force for the crime of "Use of internet for property appropriation" according to regulations in Article 226b of the 1999 Criminal Code. Upon consideration of the punishment to be imposed upon H, it is found that H’s offence has multiple mitigating factors as prescribed in Clause 1 Article 46, thus, he shall be imposed a punishment below the lower limit of the sentence bracket according to Articles 47, 69 and 74 of the Criminal Code. As H is being kept in temporary detention for another crime, he shall be isolated from the society for a period of time for effective reprimand.

Ms. Phan Thi Thuy V and Ms. Thieu Thi A did exchange the electronic money that D appropriated from the victims; however, Ms. V and Ms. A were not aware that such money was obtained by crime. Thus, that they are exempt from criminal liabilities has valid grounds.

Regarding civil liabilities, the victims request the defendant to return the remaining amount of money. During the investigation process, D asked his family to return VND 50,000,000 to Ms. Nguyen Trang Cam M, VND 10,000,000 to Ms. Nguyen Thi Thanh N and VND 10,000,000 to Ms. Nguyen Thi Ngoc O. D shall continue to return VND 100,000,000 to Ms. M, VND 38,030,091 to Ms. N and VND 66,535,750 to Ms. O.

Regarding exhibits of the case, all Facebook chats between D and the victims and logs of transactions from Ms. V to Ms. A and vice versa are confiscated. These documents are included in the case dossier.

Regarding court fees, the defendants shall incur the fees for the first-instance criminal court and first-instance civil court as prescribed by law.

Based on the abovementioned facts and matters,

HEREBY DECIDES

1. Declare Vo Tung D guilty of “Use of Internet for property appropriation”.

Pursuant to Point a Clause 3 Article 226b; Point g Clause 1 Article 48; Points b and p Clause 1 and Clause 2 Article 46; Article 47; Article 60; Article 69 and Article 74 of the Criminal Code, Vo Dung D shall receive a suspended sentence of 36 (thirty six) months in prison (5 months of temporary detention (from 13/02/2017 to 12/7/2017) may be deducted from this period) with a probation period of 60 months. People’s Committee of T ward, P district, Quang Tri shall supervise and educate the defendant. The defendant’s family shall cooperate with the local government in supervising and educating the defendant.

Declare Nguyen Duc H guilty of “Use of property obtained by crime”.

Pursuant to Point c Clause 2 Article 25; Points b and p Clause 1 Article 46; Article 47; Article 69 and Article 74 of the Criminal Code in Viet Nam, Nguyen Duc H is sentenced to 12 (twelve) months in prison. The sentence comes into effect from the date on which the defendant is sentenced.

Regarding civil liabilities, according to Article 42 of the Criminal Code and Clause 2 Article 586 and Article 589 of the Civil Code in Viet Nam, as D has asked his family to return VND 70,000,000 to the victims, he shall give the remaining amount of VND 204,565,841 to the victims. To be specific: VND 100,000,000 (one hundred million) for Ms. Nguyen Trang Cam M; VND 38,030,091 (thirty-eight million thirty thousand ninety-one) for Ms. Nguyen Thi Thanh N; and VND 66,535,750 (sixty-six million five hundred thirty-five thousand seventy-five hundred) for Ms. Nguyen Thi Ngoc O.

“From the entry into force of the judgment or the decision to execute the judgment (for cases where authorities for sentence enforcement hold the right to issue decisions to execute a judgment) or the date of receipt of the request to execute the judgment from the judgment creditor (for amounts payable to judgment creditors) to completion of the sentence, the judgment debtor shall incur monthly interest on the outstanding judgment debt based on the interest rate mentioned in Clause 2 Article 468 of the 2015 Civil Code."

Regarding exhibits of the case, all Facebook chats between D and the victims and logs of transactions from Ms. V to Ms. A and vice versa are confiscated. These documents are included in the case dossier.

Regarding court fees, Vo Tung D and Nguyen Duc H shall each pay VND 200,000 for the first-instance criminal court fee and D shall pay an additional VND 10,228,292 (Ten million two hundred twenty-eight thousand two hundred ninety-two) for the first-instance civil court fee.

The defendants, victims and legal representatives of the defendants may make an appeal within 15 days starting from the date of pronouncement or the date of receipt of the judgment for non-attending persons.