Judgment no. 41/2020/HS-ST dated october 14, 2020 on obtaining property by fraud

THE PEOPLE'S COURT OF CA MAU PROVINCE

JUDGMENT NO. 41/2020/HS-ST DATED OCTOBER 14, 2020 ON OBTAINING PROPERTY BY FRAUD

On October 14, 2020, at the head office of the People’s Court of Ca Mau province, a first instance trial is conducted to hear the criminal case No. 27/2020/TLST-HS dated July 20, 2020 under the Decision to bring the case to hearing No. 28/2020/QDXXST-HS dated September 21, 2020 against:

1. Full name:  Anthony – born in 1990, in Nigeria; Passport: A03655922, issued on February 7, 2012, place of issue: Nigeria; permanent residence: 7 Canada Street OJO Alaba Lagos, Nigeria; Accommodation: Room 8, 19th floor, block A, quarter 5, Tan Tao ward, Binh Tan district, Ho Chi Minh City; Job: Hired man; Education level: N/A; Nation: N/A; Gender: Male; No religious; Nationality: Nigerian; father (deceased), mother: Mrs. Evelyn; Siblings: 06 people; Previous criminal record, administrative penalties: None. Record: On January 16, 2020, the People's Court of Can Tho city sentenced him to 18 years in prison for "obtaining property by fraud" under Point a, Clause 4, Article 174 of the Criminal Code, in Judgment No. 02/2020/HSST; the defendant is serving a prison sentence.

2. Full name:  M (Another name is Ben; Cameroonian name is Tcheuko Elmakoua Benoit) – born in 1983, in Cameroon; Citizen ID card:

07908301149, issued on May 25, 2017, place of issue: Police Department of Residence Registration and Management and National Population Database; Residence: No. 37, Mac Thi Buoi, Ben Nghe Ward, District 1, Ho Chi Minh City; Occupation: Business; Educational level: Literate in Vietnamese; Nation: N/A; Gender: Male; No religious; Nationality: Vietnamese; father (Emakoua, born in 1953), mother (Deutou, born in 1964); Wife: (L, born in 1976); Children: 03 children; Siblings: 05 people; Previous criminal record, administrative penalties: None. Record: On January 16, 2020, the People's Court of Can Tho city sentenced him to 16 years in prison for "obtaining property by fraud" under Point a, Clause 4, Article 174 of the Criminal Code, in Judgment No. 02/2020/HSST; the defendant is serving a prison sentence.

- Aggrieved party: Ms. D, born in 1964; Address: Tran Van Thoi district, Ca Mau province.

- Interpreter: N, born in 1952:

Address: Ward 5, Ca Mau city, Ca Mau province.

At the court hearing: Defendant Anthony, defendant M, Mr. N are present; Mrs. D is absent.

FACTUAL AND PROCEDURAL BACKGROUND

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

Anthony came to temporarily reside in Vietnam from January 16, 2015 to March 19, 2016; at the end of his temporary stay, Anthony did not return to Nigeria but stayed in Vietnam as a hired worker.

M is a Cameroonian football player who entered and lived in Vietnam from December 12, 2003. On April 23, 2013, Minh was naturalized as a Vietnamese, doing business.

In 2017, Anthony and M knew each other. Anthony invited M to join a group to conduct fraud to appropriate money, in the form below: Anthony's acquaintance named Papa (Nigerian, unknown identity) tries to get acquainted with the victim through a social networking application (Facebook, Zalo, Whatsapp). Papa introduced himself as a foreigner who wants to return to Vietnam to live, promising to send gifts with a lot of money to the victim. The victim would then send personal information to Papa and paid the fee to receive the gift. Having obtained the victim's information, Papa sent the victim's information to Anthony to transfer to Minh via the Zalo application for M to contact. When contacting the victim, M introduced himself as a shipper of an overseas gift so that the victim could believe and send the fee to receive the gift. To transfer money and appropriate it, M asked his acquaintance, D, to open an account number 060149670941 at Saigon Thuong Tin Commercial Joint Stock Bank (Sacombank). After that, M withdrew the fraudulent money, and then gave Anthony 90% and M retained 10%. With the above trick, Anthony and M appropriated as follows:

Around the beginning of 2018, through a social network (Facebook), one of the offenders made friends with Ms. D residing in Tran Van Thoi district. After making friends, the offender sent a message via Messenger to Ms. D introducing him as a foreign soldier who would deliver a gift to Ms. D, with a lot of money inside, asking Ms. D to send personal information. Because she believed it was true, Ms. D sent her information, including: Address, phone number (0905.647… and 0123,912…), email box (d@gmail.com) via Messenger to him. At the end of March 2018, the offender texted Ms. D to inform Mrs. D that the gift had been sent to Vietnam for Ms. D, with money inside the gift.

On April 3, 2018, Anthony sent M via Zalo application the personal information of Ms. D. M used the phone number 0925.390…. calling Ms. D impersonating an international shipper and requesting Ms. D to pay the fee for receiving a gift from abroad; the fee payment is 1,200 USD and must be paid to account number 060149670…. named after D. On the same day, April 3, 2018, Ms. D paid 27,400,000 VND (equivalent to 1,200 USD) as requested, and M withdrew the entire amount. After that, M kept using 10% and gave the remaining 90% to Anthony. Seeing Ms. D’s trust and the probability to appropriate Ms. D's money, on April 4 and 5, 2018, M made a phone call to inform Ms. D that there was a lot of money in the gift package, asking Ms. D to send extra 3,500 USD to receive the gift. On April 6, 2018, Ms. D transferred 80,000,000 VND (equivalent to 3,500 USD) into account 060149670… named D, but M did not have time to withdraw when he was arrested by the Police Investigation Agency of Can Tho province at Big C Supermarket in area 11, Hung Phu ward, Cai Rang district, Can Tho city and had the credit card account number 060149670… named D seized.

On April 7, 2018, the Can Tho City Police Investigation Agency urgently arrested Anthony with the act of using a social network (Facebook) to defraud and appropriate total amount of VND 928,834,000 of Ms. T in Can Tho city via account number 060149670… named D.

The Can Tho City Police Investigation Agency verified and issued an Order to freeze related accounts on April 9, 2018, including: Account at Sacombank – An Phu Transaction Office No. 060149670 … named D, the amount of 80,000,000 VND  which was the money of Mrs. D transferred to M.

Indictment No. 26/CT-VKS-P1 dated July 15, 2020, Ca Mau Province People's Procuracy prosecutes defendant Anthony and defendant M on the crime of obtaining property by fraud under Points a and c, Clause 2, Article 174  of the Criminal Code in Viet Nam.

At the court hearing, the Procuracy proposes the Trial Panel to apply Points a and c, Clause 2, Article 174, Point g, Clause 1, Article 52, Point s, Clause 1, Article 51, Article 55, and Clause 1, Article 56 of the Criminal Code.

Sentence: Anthony from 03 to 04 years in prison for the crime of obtaining property by fraud; combining the 18-year prison sentence of the criminal sentence No. 02/2020/HSST, defendant Anthony must serve from 21 to 22 years in prison.

Sentence M from 02 to 03 years in prison for the crime of obtaining property by fraud; combining the 16-year prison sentence of the criminal sentence No. 02/2020/HSST, defendant M must serve from 18 to 21 years in prison.

The defendants are forced to pay Ms. D 107,400,000 VND.

JUDGEMENT OF THE COURT

Based on the contents of the case and documents available in the case file that have been litigated at the trial, the Trial Panel shall determine as follows:

 [1] Regarding the procedural acts and decisions of the investigation body, investigators, procuracy and procurators, in the course of investigation and prosecution, they have complied with procedures and taken actions intra vires as prescribed by the Criminal Procedure Code in Viet Nam. The defendants give no opinion and complaint as to the acts and decisions of the presiding agencies and presiding officers.

 [2] Regarding the offense: At the trial, the defendants determine that at the investigation agency, the defendants were not forced to give confessions, put words into mouth or tortured; The defendants' testimonies at the investigation agency are voluntary; the content of the defendant's testimony is consistent with the defendant's actions performed.

The defendants confess that: In April 2018, the defendants took advantage of Facebook and Zalo functions to make friends on social networks, giving false information to make Mrs. Diep believe them and transfer money to their personal banking account appropriation. During the crime process, the defendants communicated with Ms. D, the defendants coordinated in giving information through Facebook, Zalo to Ms. D about sending gifts, pretending to be a shipper to persuade Ms. D to transfer money to the account according to the defendants' intentions. The amount the defendants appropriated from Mrs. D was 107,400,000 VND. When performing, the defendants have assigned roles for each defendant to coordinate in deceiving Ms. D according to the previously agreed upon scenario; this is an organized crime. The defendant's actions were performed as stated in the indictment; the actions of the defendants is a violation of the law, this law violation is defined by the Criminal Code as obtaining property by fraud. With the illegal acts that the defendants have committed and the amount of money appropriated by the defendants, there are sufficient grounds to conclude that defendant Anthony and defendant M have committed the crime of obtaining property by fraud according to points a, c Clause 2, Article 174 of the Criminal Code as prosecuted in the indictment of the Procuracy.

 [3] Regarding criminal liability: The nature, extent and consequences of the defendants’ criminal acts are deemed serious. In this case, defendant Anthony took an active role in receiving and transferring information obtained from Ms. D to defendant M for the crime; defendant M participated as a perpetrator, following the instructions of defendant Anthony. Therefore, defendant Anthony's criminal conduct places the main role compared to defendant M. The offense committed by the defendants belong to the case of organized crime. Therefore, it is necessary to impose severe punishment and isolate the defendants from social life for a limited time for rehabilitation, deterrence and general prevention for society.

In addition to this crime, defendant Anthony and defendant M previously obtained property by fraud, and defendant Anthony was sentenced to 18 years in prison by the People's Court of Can Tho city, the defendant M was sentenced to 16 years in prison in the first-instance criminal judgment No. 02/2020/HS - ST dated January 16, 2020; the prison term was from April 7, 2018 for defendant Anthony, the prison term was from April 6, 2018 for defendant M. Now, defendant Anthony and defendant M have been arrested by the People's Court of Ca Mau province for sanction, therefore, is a combination of penalties of many judgments according to Article 56 of the Criminal Code.

 [4] Considering aggravating and mitigating circumstances: The defendants have committed the crime more than once, so the defendants must bear the aggravating circumstances at point g, Clause 2, Article 52 of the Criminal Code. During the investigation as well as at court hearing, the defendants have expressed cooperative attitude, so the defendants are entitled to the extenuating circumstances at point s clause 1 Article 51 of the Criminal Code.

 [5] Compensation for damage: In the first time Ms. D transferred VND 27,400,000, in the second time Ms. D transferred VND 80,000,000; the total amount transferred to the defendants was 107,400,000 VND. Therefore, the defendants have a joint liability to return to Ms. D the amount of VND 107,400,000.

For the amount of VND 80,000,000 Ms. D transferred on April 6, 2018 to account 060149670… named D. On April 9, 2018, the Can Tho City Police Investigation Agency issued an Order to freeze the account. 060149670… in the name of D. In the first-instance criminal judgment No. 02/2020/HS - ST dated January 16, 2020, the People's Court of Can Tho city decided to pay the aggrieved party this amount of VND 80,000,000 and the judgment has taken legal effect.

 [6] Regarding court fee: Defendants Anthony and defendant M each have to bear the first-instance criminal court fee of 200,000 VND.

Defendant Anthony and defendant M must jointly bear civil court fee related to monetary claim of the amount payable to Ms. D, the amount of court fee is 5,370,000 VND = (107.400.000 VND x 5%). [7] For Ms. D whose account number 060149670… is opened at Saigon Thuong Tin Commercial Joint Stock Bank; during the investigation process, there was no evidence to prove that Ms. D was an accomplice to the defendants, so it is right not to prosecute her in this case in accordance with the law.

The police is unable to call for Papa, a Nigerian, whose identity and specific address are unknown to work, so it is grounded not to bring him to this case.

As for Ms. N in Cau Ke district, Tra Vinh province and Mr. H in Tran Van Thoi district, Ca Mau province, who report fraud of being tricked into transferring money like Ms. D, the investigation process cannot take evidence to prove Anthony and M did such offense. Therefore, a separate investigation continues to further verify that is appropriate and grounded.

For the foregoing reasons,

DISPOSITION

- Declare: Defendant Anthony and defendant M guilty of obtaining property by fraud.

Pursuant to points a and c, Clause 2, Article 174, Point g, Clause 1, Article 52, Point s, Clause 1, Article 51, Clause 1, Article 56, Clause 1, Article 48 of the Criminal Code; Article 288 of the Civil Code in Viet Nam; Clause 2, Article 136 – Criminal Procedure Code; Point a, Clause 1, Article 23 of the Resolution 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the Standing Committee of the National Assembly on court fees and court charges.

- Sentence: + Defendant Anthony to 03 (three) years in prison, plus the penalty part of 18 (eighteen) years in prison in the first instance criminal judgment No. 02/2020/HS - ST dated January 16, 2020 of the People's Court of Can Tho city; the combined penalty of the two sentences that the defendant Anthony must serve is 21 (twenty-one) years in prison; the sentence period begins from April 7, 2018.

+ Defendant Anthony to 02 (two) years in prison, plus the penalty part of 16 (sixteen) years in prison in the first instance criminal judgment No. 02/2020/HS - ST dated January 16, 2020 of the People's Court of Can Tho city; the combined penalty of the two sentences that the defendant Anthony must serve is 18 (eighteen) years in prison; the sentence period begins from April 6, 2018.

- Civil matters:  Defendant Anthony and defendant M are jointly liable to return Ms. D the amount of VND 107,400,000 (One hundred and seven million four hundred thousand dong).

From the date on which the judgment debtor's written request for judgment enforcement is received until the above amount is completely paid, the judgment debtor shall also have to bear monthly interests at the rate specified in Clause 2 of this Article. 468 of the Civil Code corresponding to the amount and time of delay in judgment enforcement.

- Court fee:

+ The first instance criminal court fee that defendant M must bear is VND 200,000.

+ The first instance criminal court fee that defendant M must bear is VND 200,000.

+ The civil court fee related to monetary claim that defendant Anthony and defendant M must jointly bear is 5,370,000 VND.

The defendant has the right to appeal the judgment within 15 days from the date of judgment. The aggrieved party has the right to appeal the judgment within 15 days from the date of receipt of the judgment or from the date of duly serving the judgment.

In case the judgment or court decision is enforced as per regulations in Article 2 of the Law on enforcements of civil judgments in Viet Nam, the judgment creditor and judgment debtor are lawfully allowed to reach an agreement on judgment enforcement, request judgment enforcement, be subject to voluntary execution or coercive judgment enforcement in compliance with regulations in Articles 6, 7, 7a, 7b and 9 of the Law on enforcement of civil judgments, and the effective period of judgment enforcement shall comply within provisions in Article 30 of the Law on enforcement of civil judgments.