Judgment no. 42/2021/HS-ST dated 08/10/2021 on obtaining property by fraud

THE PEOPLE’S COURT OF QUANG BINH PROVINCE

JUDGMENT NO. 42/2021/HS-ST DATED OCTOBER 8, 2021 ON OBTAINING PROPERTY BY FRAUD

On October 8, 2021, at the head office of the People’s Court of Quang Binh province, a first instance trial was conducted to hear the criminal case No. 17/2021/HS-ST dated March 29, 2021 under the Decision to bring the case to hearing No. 677/2021/QDXXST-HS dated September 24, 2021 against the defendants below:

1. Otujieme Frank I, born on July 2, 1989 in Nigeria; permanent place of residence:  No. 22, 5 U street, O town, N district, Imo state, Nigeria; Occupation:  Freelance worker; Religion:  Christianity; gender: Male; nationality: Nigeria; the son of Mr. David O and Mrs. Chireyere O; no wife, no children; previous convictions, previous administrative violations: No; currently being detained at the Detention Center of Quang Binh Provincial Police under another case; appeared in court;

2. Ngo Thi A, born on October 10, 1990 in Nghe An province; place of permanent residence:  No. 59B VT, NC quarter, ward V, city R, province K; occupation:  Freelance worker; education level:  12/12; ethnicity: Kinh; religion: None; gender: Female; nationality: Vietnamese; daughter of Mr. Ngo Truong S and Ms. Van Thi H; married (divorced) and 1 child; previous convictions, previous administrative violations: No; currently being detained at the Detention Center of Quang Binh Provincial Police under another case; appeared in court;

- Aggrieved parties:

+ Ms. Nguyen Thi H, born on August 8, 1976, permanently residing in hamlet 5, commune K, district Q, province Q;

+ Ms. Nguyen Thi N, born on October 1, 1990, permanently residing in Dai Son village, D commune, T district, Q province;

- Persons with interests and obligations related to the case:

+ Mr. Vu Dinh H, born on June 23, 1997, permanently residing in:  Ben Da Hamlet, T Commune, H District, Kien Giang Province;

+ Ms. Nguyen Ngoc H, born on July 29, 1984, permanently residing at: No. 532/3/6 Kinh Duong Vuong, Ward A, District T, Ho Chi Minh City;

+ Mr. Tran Nam P, born on April 3, 1979, permanently residing at: No. 532/3/6 Kinh Duong Vuong, Ward A, District T, Ho Chi Minh City.

- Other participants in proceedings:

Interpreter:  Ms. Nguyen Thi N, born in 1983, residing at: Group 15, Ward B, D city, Quang Binh province, English translation collaborator of the Justice Department of Dong Hoi city, province Quang Binh, present.

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:

Around May 2019, through the social network Zalo, Otujieme Frank I (also known as Rector), got acquainted with Ngo Thi A, sometime later the two fell in love with each other and lived together in Phnom Penh, Cambodia. Through the Whatsapp application on the Internet, Otujieme Frank I knew a number of Nigerians and agreed with these people to work together to defraud Vietnamese people through the social network Facebook.  At the end of 2019, Otujieme Frank I invited Ngo Thi A to perform the scam to appropriate money according to the above plan and A agreed.  Otujieme Frank I discussed with Ngo Thi A to buy an unofficial mobile phone sim, mobile subscriber number is 0386.865.580, and then hired someone to open a bank account in Vietnam and bought it back for use.  According to the above discussion, Ngo Thi A returned to Vietnam and hired Mr. Vu Dinh H to open 9 accounts, and also bought unregistered mobile phone sims for Huu to register for services at banks, then Ngo Thi A received ATM cards and paid Vu Dinh H the amount of VND 21,000,000. After obtaining the ATM cards and phone sim cards, Ngo Thi A handed it over to Otujieme Frank I, and then together committed the act of fraud and appropriated from Nguyen Thi H and Nguyen Thi N, in Quang Binh the amount of 149,000,000 VND, in specific:

In the first time, around the beginning of January 2020, Ms. Nguyen Thi H, through the social network Facebook, agreed to make friends with a foreign name account, which promised to give a gift and dollars (USD).  This account required Ha to provide her name, address and phone number for this person to send the gift.  Ms. Ha executed the above request.  After receiving information about Nguyen Thi H provided by William Blunt's account, Otujieme Frank I directed Ngo Thi A to use a mobile subscriber sim number 0386.865.580 to call Ms. Ha, claiming to be an international delivery worker. Ha was requested to pay 12,000,000 VND to account number 7501 0000 465 554 of BIDV Bank, owned by Vu Dinh H, for customs clearance of a gift box sent from abroad.  Ms. Nguyen Thi H paid 12,000,000 VND to the above account.  After that, Ms. Ha continued to receive a call, notifying that the authorities discovered a gift box with a large amount of foreign currency in USD, asking Ms. Ha to pay an additional VND 72,000,000 in fines and pay it into her account 1817 1026 1000 135 of Eximbank owned by Vu Dinh H.  According to the above request, on January 7, 2020, Ms. Ha paid 72,000,000 VND to account 1817 1026 1000 135 of Eximbank owned by Vu Dinh H.

In the second time, at the end of January 2020, Ms. Nguyen Thi N, residing in Dong Hoa commune, Tuyen Hoa district, Quang Binh province, through the social network Facebook, agreed to make friends with a foreign name account.  This account promised to give Ms. Nga a gift and dollars (USD), asking Ms. Nga to provide her name, address and phone number to receive them.  Ms. Nga provided the information requested above.  After receiving information about Ms. Nga, Ngo Thi A called Ms. Nga, claiming to be an international delivery worker, asking Ms. Nga to pay 17,000,000 VND to the account number 181710261000.135 of Eximbank owned by Vu Dinh H to pay customs clearance fees for a gift box sent from abroad.  After Ms. Nga paid the money as requested, Ngo Thi A continued to call Ms. Nga, informing that the authorities had found a lot of dollars (USD) in that gift box, asking Ms. Nga to pay an extra amount of 48,000,000 VND for the fine to receive the goods.  On January 31, 2020, Ms. Nguyen Thi N transferred the amount of 48,000,000 VND to the above account.

Receiving money from the victims, at first, Otujieme Frank I went directly to ATMs in Phnom Penh city, Cambodia to withdraw money, in dollar currency (USD), but due to the limited dollar withdrawal per day, Otujieme Frank I directed Ngo Thi A to find someone to change Vietnamese money into dollars (USD) to make withdrawals at ATMs in Vietnamese dong, then change it to dollars (USD).  According to the above direction, Ngo Thi A continued, through social networks, introduced herself as Tuong Vy, made friends with a married couple, Nguyen Ngoc Hue and Tran Nam Phong, to exchange Vietnamese money into US dollars. The appropriated money was kept by Otujieme Frank I and shared to both of them.

Indictment No. 11/VKSQB-P3 dated March 24, 2021, Quang Binh Province People's Procuracy prosecutes defendants Otujieme Frank I and Ngo Thi A on the crime of obtaining property by fraud under Points a and c, Clause 2, Article 174 of the Criminal Code 2015.

At the trial, the representative of the People's Procuracy of Quang Binh province expressed opinions and proposed that the Trial Panel impose a sentence of 36-42 months in prison on defendant Otujieme Frank I, and a sentence of 30-36 months in prison on defendant Ngo Thi A, forcing the two defendants to jointly compensate Ms. Nguyen Thi H an amount of VND 84,000,000, and compensate Ms. Nguyen Thi N an amount of VND 65,000,000.  Waive the fine as an additional penalty for the two defendants, as the two defendants currently have no assets.

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]. Defendants Otujieme Frank I and Ngo Thi A, in January 2020, coordinated with a number of unidentified people (Nigerian nationals, according to Otujieme Frank I's testimony) in using Facebook to make friends with Nguyen Thi H and Nguyen Thi N, tricking that they were abroad and would send gifts and dollars (USD) to these women; and then, Ngo Thi A, claiming to be an international delivery worker, called the women to ask for payment of customs clearance fees and fines due to the fact that the gift boxes contained many dollars (USD) in the accounts opened at Vietnamese banks and managed by Otujieme Frank I.  Nguyen Thi H and Nguyen Thi N believed in the above information, transferred the amount of 149,000,000 VND to their accounts, while the gift sending to them was not real.  Otujieme Frank I received this money to use it together with Ngo Thi A and divided it among others who, according to Otujieme Frank I, are Nigerian nationals, participating in the fraud to appropriate money from Ms. Nguyen Thi H and Ms. Nguyen Thi N. The aforementioned acts of the defendants Otujieme Frank I and Ngo Thi A are guilty of obtaining property by fraud under Points a and c, Clause 2, Article 174 of the Criminal Code 2015, as exactly stated by the Indictment No. 11/VKSQB- P3 dated March 24, 2021 of the People's Procuracy of Quang Binh province against the defendants.

[2] Regarding the aggravating circumstances for criminal liability:  The defendants Otujieme Frank I and Ngo Thi A have the same aggravating circumstance of penal liability, which is committing offense more than once specified at Point g, Clause 1, Article 52 of the Criminal Code.

[3]. Regarding the mitigating circumstances:  During the investigation and at the trial, the defendants expressed cooperative attitude. This is mitigating circumstances specified in point s clause 1 Article 51 of the Criminal Code. Particularly, defendant Ngo Thi A has a father who has made meritorious services to the country; specifically, he was awarded the first-class resistance medal by the President and was a wounded soldier in the war against the US, so Clause 2, Article 51 of the Criminal Code should be applied to relieve the defendant from further criminal liability.

[4]. Defendant Otujieme Frank I was the initiator, mastermind, who directly received, managed and distributed the money transferred by the aggrieved parties, so he should be the main responsible person in the case. Defendant Ngo Thi A, although being lured and dragged into the criminal activities of a foreign criminal group, has shown an active role and is an important and indispensable link to the fraud plan for appropriating the property of Ms. Nguyen Thi H, Ms. Nguyen Thi N in a smooth way.

[5]. With the act of appropriating the aggrieved parties’ amount of 149.000.000 VND, which is a high level based on the value of the appropriated property specified at point c, clause 2, Article 174 of the Criminal Code, together with the analysis in paragraphs [2], [3], [4], it is found necessary to punish the defendants with sentences ranging from 2 years and 6 months in prison to 3 years and 6 months in prison of the sentence bracket specified in Clause 2, Article 174 of the Criminal Code.  As for the fine as an additional penalty, it was deemed unnecessary to impose on the two defendants because the defendants currently do not have any assets to enforce.

[6] Regarding civil liability: According to the testimony of defendant Otujieme Frank I, he used the amount of 149,000,000 VND appropriated from Ms. Nguyen Thi H, Ms. Nguyen Thi N, together with Ngo Thi A and sent back to Nigeria and divided it among other Nigerians who participated in the fraud to appropriate the property in this case.  However, for other Nigerians who violated Vietnamese law according to the testimony of defendant Otujieme Frank I, the Vietnamese Police Investigation Agency did not have enough grounds to prosecute and investigate, so the two defendants Otujieme Frank I and Ngo Thi A must jointly compensate the aforementioned amount of VND 149,000,000 for the victims.  The defendants have the right, based on the laws of other countries in which the above persons are residing, to request the competent authorities to compel the above persons to return to the defendants the sum of money which the defendants have compensated on their behalf based on the judgment of the Court of Vietnam.  Because it is not possible to determine the specific share between Otujieme Frank I and Ngo Thi A for the amount of money the defendants appropriated from the victims, the defendants must bear the same level of compensation, each must compensate 74,500,000 VND.

[7] Regarding court fees:  It is necessary to force the defendants to pay 200,000 VND for first-instance criminal court fee and 3,725,000 VND for first-instance civil court fee to the State budget of Vietnam as prescribed at Points a and d Clauses 1 Article 23 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the National Assembly Standing Committee on court fees and court charges.

[8]. During the investigation, prosecution and trial, the Investigating Authority, Procuracy, Investigators and Procurators have strictly followed the provisions of the law on procedure.

For the foregoing reasons, 

DISPOSITION

1. Apply Point c, Clause 2, Article 174, Point g, Clause 1, Article 52, and Point s, Clause 1, Article 51 of the Criminal Code to defendants Otujieme Frank I and Ngo Thi A; particularly, defendant Ngo Thi A is entitled to additional clause 2, Article 51 of the Criminal Code; declare defendants Otujieme Frank I and Ngo Thi A guilty of obtaining property by fraud; sentence defendant Otujieme Frank I to 03 years and 6 months’ (three years and six months) imprisonment, sentence defendant Ngo Thi A to 02 years and 6 months’ (two years and six months) imprisonment, the term of imprisonment commences from the date on which the writ of execution takes effect, or determined by the decision on sentence combination with another judgment as prescribed in Clause 3, Article 56 of the Criminal Code.

2. Pursuant to Articles 288, 290, Clause 1, Article 584, Clause 1, Article 589 of the Civil Code 2015, Clause 1, Article 48 of the Criminal Code, force defendants Otujieme Frank I and Ngo Thi A to jointly compensate Ms. Nguyen Thi H an amount of VND 84,000,000, and compensate Ms. Nguyen Thi N an amount of VND 65,000,000; each defendant has to bear VND 74,500,000.

3. Pursuant to Points a and d Clauses 1 Article 23 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the National Assembly Standing Committee on court fees and court charges, force the defendants to pay 200,000 VND for first-instance criminal court fee and 3,725,000 VND for first-instance civil court fee to the State budget.

From the date of the judgment creditor's written request for judgment enforcement until the execution of all sums of money, the defendants must also pay interest on the remaining amount at the interest rate of specified in Clause 2 of Article 468 of the Civil Code (because this is a case where the parties do not have an agreement).

In case the judgment or court decision is enforced as per regulations in Article 2 of the Law on enforcements of civil judgments, 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 Article 6, 7, 7a, 7b and 9 of the Law on enforcement of civil judgments 2008, amended in 2014; and the effective period of judgment enforcement shall comply within provisions in Article 30 of the Law on enforcement of civil judgments.

The defendants appearing in court have the right to appeal this judgment within 15 days from the date of first instance judgment (October 8, 2021); the aggrieved parties and persons with related rights and obligations not appearing in court have the right to appeal against the judgment within 15 days from the date on which the judgment is duly served or posted up as prescribed by law./.