Judgment no. 50/2021/HSST for Appropriation of property by computer network, telecommunications network or electronic devices

PEOPLE'S COURT OF THUA THIEN HUE PROVINCE

JUDGMENT NO. 50/2021/HSST DATED AUGUST 04, 2021 FOR APPROPRIATION OF PROPERTY BY COMPUTER NETWORK, TELECOMMUNICATIONS NETWORK OR ELECTRONIC DEVICES

On August 4, 2021, at the head office of the People’s Court of Thua Thien Hue province, a first instance trial was conducted to hear the criminal case No. 29/2021/TLST-HS dated May 7, 2021 under the Decision to bring the case to hearing No. 103/2021/QDXXST-ST dated June 25, 2021 against:

Truong Hoang D (aka: Boy), born on February 10, 1992 in Thua Thien Hue province; place of residence: 46/4 T street, Th ward, H city, Thua Thien Hue province; occupation: Driver; education level: 12/12; ethnicity: Kinh: gender: Male; religion: Buddhism; nationality: Vietnamese; father: Mr. Truong Dinh H and mother: Ms. Hoang Thi Bach K, wife and children: None; previous convictions and previous administrative violations: None; prior conduct: in April 2020, the defendant was prosecuted by the Investigation Police Department of Thua Thien Hue Provincial Police for the act of "Gambling"; the defendant was detained on November 13, 2020 until now; he appeared in court.

- Aggrieved parties:

1. Ms. Nguyen Ho Hoang A, born in: 1985, residing at: 401/20 B Street, Ward 13, District B, Ho Chi Minh City; not appeared in court.

2. Ms. Nguyen Thi Thu Th, born in: 1993, residing at: 5/42/512 N, Ward V, District L, Hai Phong city, not appeared in court.

3. Ms. Mai Thi Thu L, born in: 1996, residing at: 119/42 L, Ward 7, District 11, Ho Chi Minh City, not appeared in court.

4. Mr. Nguyen Trung H, born in: 2000, residing at: 15/29F Đ, ward N, Hai Phong city, not appeared in court.

5. Ms. Phan Thi Dieu L, born in: 1993, residing at: D27/K80 L, ward T, Bien Hoa city, Dong Nai province, not appeared in court.

6. Mr. Nguyen Thanh S, born in: 1987, residing at: 111/5 D, Quarter H, city T, Binh D province, not appeared in court.

7. Mr. Nguyen Thanh C, born in: 1988, residing at: V - 15B floor, Hanoi city, not appeared in court.

8. Mr. Nguyen Phuc Th, born in: 1992, residing at: Cao Xa, D, Hanoi, not appeared in court.

9. Mr. Vu The S, born in: 1984, residing at: Hamlet B, Commune Q, S, Hanoi city, not appeared in court.

- Person with relevant interests and obligations:

1. Mr. D Quang H, born in 1986, residing at: 4/4 C, Ph ward, H city, Thua Thien Hue province, is not appeared in court.

2. Ms. Vo Thi L, born in 1996, residing at: 2/52 P, Th ward, H town, Thua Thien Hue province, appeared in court.

3. Ms. Hoang Thi Bach K, born in 1964, residing at: 46/4 T, Th ward, Hue city, Thua Thien Hue province, not appeared in court.

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 the beginning of January 2020, Truong Hoang D became acquainted with D Quang H, the owner of an Internet shop called "Chien Than".  Here, D often conducted online transactions such as: Paying net surfing charges, buying phone top-up cards through money transfers on the basis of Internet-connected Websites to Mr. H, so he knew very well the accounts which Mr. H used for transactions, they were a Vietcombank account number 0161001733605 and Techcombank account number 19033251442017. Since he was a regular customer, D often asked Mr. H to withdraw money through the above accounts. At the end of January 2020, Truong Hoang D picked up 01 identity card named D Quang H, as the same name as Mr. H with whom D often dealt. Because he often helped Mr. H in online shopping, Truong Hoang D saw an increase in the demand for goods of foreign origin on e-commerce websites and the convenience of online payment. From that, it flashed upon him to commit a crime with the following tricks: D created a Facebook account named D Quang H himself with the purpose of creating posts to accept orders of the above goods to appropriate the victim's deposits nationwide. Truong Hoang D actively searched for pictures of goods and then posted them on Facebook D Quang H and sign up other virtual Facebooks to comment on products in order to create prestige for D Quang H's Facebook account, which was convenient for committing the crime. D registered two phone numbers: 0901130365 and 0901131080 to register for MoMo wallet of Online Mobile Services Joint Stock Company (M_Service) and borrowed Vietcombank account card of Ms. Vo Thi L (D's girlfriend) to withdraw money. D lied to L that it was his money earned from winning games. Because she is D's girlfriend, L trusted and agreed to give D her ATM card. Immediately after the victims transferred the deposits, if it was transferred to Mr. D Quang H's account, D lied to Mr. H that the money was transferred by his friend or girlfriend. Considering D as an acquaintance, Mr. H did not doubt anything and withdrew money and gave it to D. The creation of Facebook accounts and posts were mostly done at an Internet shop called "Chien Than" and from D i's phone. When D's phone was damaged, there were a few times that D borrowed a Samsung GlaxyJ4 phone from his mother, Mrs. Hoang Thi Bach K, to transact with the victims, but D lied to Mrs. K that he was calling and texting his friends. From March 2020 to June 2020, by the above tricks, Truong Hoang D performed the act of appropriating deposits of 09 people with a total amount of: VND 75,380,000 for personal spending. In specific:

The first case:  On March 2, 2020, through Facebook D Quang H, Truong Hoang D accepted an order to buy the Sanitas thermometer from Ms. Nguyen Ho Hoang A, born in: 1985, residing at: 401/20 Binh Loi Street, Ward 13, Binh Thanh District, Ho Chi Minh City. Ms. A has made 02 transfers to the account:

0161001733605 on 02/3/2020, 03/3/2020 and 01 transfer to the account:

19033251442017 on March 6, 2020, with a total amount of VND 15,560,000.

The second case: On March 4, 2020, through Facebook D Quang H, Truong Hoang D accepted an order to buy a German thermometer product brand SFT77 from Ms. Nguyen Thi Thu Th, born in: 1993, residing at: 5/42/512, Ward V, District L Hai Phong city. Ms. Th has transferred money twice to D Quang H's account: 0161001733605 on March 4 and 5, 2020, with a total deposit of: VND 11,800,000 VND.

The third case: On March 5, 2020, through Facebook D Quang H, Truong Hoang D accepted an order to buy cosmetics of foreign origin from Ms. Mai Thi Thu L, born in: 1996, residing at: 119/42 L, Ward 7, District 11, Ho Chi Minh City. Ms. L has made 01 transfer to the account: 0161001733605 of D Quang H on March 5, 2020 and 01 transfer to the account: 1012611198 of Vo Thi L, with a total deposit of VND 11,970,000 on March 9, 2020.

The fourth case:  On March 5, 2020, through Facebook D Quang H, Truong Hoang D accepted an order to buy a hat of GUCI brand from Mr. Nguyen Trung H, born in: 2000, residing at: 15/29F Da Nang, May To, Ngo Quyen, city Hai Phong city. Mr. H has made 01 transfer to D Quang H's account 0161001733605, with a deposit of VND 2,800,000 on March 18, 2020.

The fifth case: On April 11, 2020 and April 12, 2020, through Facebook D Quang H, Truong Hoang D accepted an order to buy backpacks, wallets, watches of all kinds originating in foreign countries from Ms. Phan Thi Dieu L, born in: 1993, residing at: D27/K80 Long Duc 1, Tam Phuoc ward, Bien Hoa city, Dong Nai. Ms. L has made 01 transfer to the account: 1012611198 on April 11, 2020 and has made 03 transfers to MoMo wallet phone number:

0901131080 Hai D account name on April 12 and 13, 2020, with a total deposit of VND 4,850,000.

The sixth case: On April 19, 2020, through Facebook D Quang H, Truong Hoang D accepted an order to buy a gift card product called Gift on the Google Play application from Mr. Nguyen Thanh S, born in: 1987, residing at: 111/5 DDX101, Quarter 8, Hiep An, Thu Dau Mot city, Binh D province. On the same day, Mr. S has made 01 transfer to MoMo wallet account: 0901130365 account name Le Huu Quang and 01 transfer to MoMo wallet phone number: 0901131080 account named Hai D, with a total amount of VND 1,630,000.

The seventh case: On April 28, 2020, through Facebook D Quang H, Truong Hoang D accepted an order to buy a 32GB AppleTV 4K TV from Ms. Nguyen Thanh C, born in: 1988, residing at: Vinhhomes GreenBay Building G3 - Floor 15B Luong The Vinh, Hanoi city. On the same day, Mr. C has made 02 transfers to D Quang H's account: 0161001733605, with a deposit of VND 3,600,000.

The eighth case: On April 26, 2020, through Facebook D Quang H, Truong Hoang D knew very well that Nguyen Phuc Th, born in: 1992, residing at: Cao Xa, Duc Thuong, Hoai Duc, Hanoi was selling Zing cards on Google play platform. Thinh accepted to transfer the value of the Zing cards with the value of VND 800,000 and took a photo to determine the value of the card through a BIVB bank account named Nguyen Phuc Th and gave the card codes to Truong Hoang D. D appropriated the value of above Zing cards for personal use.

The ninth case: On May 3, 2020, through Facebook D Quang H, Truong Hoang D accepted payment for goods of foreign origin on two Websites: audiogon.com and Website http:// ebay.com for Mr. Vu The S, born in: 1984, residing at: Bac Thuong Hamlet, Quang Tien Commune, Soc Son, Hanoi. Mr. Sung has made 02 transfers to D Quang H account on May 3, 2020 and has made 03 transfers to MoMo Wallet phone number: 0901131080 Hai D account name, on May 4, 2020, with a total value of: VND 22,370,000 VND. 

- Exhibits of the case:

01 Samsung GlaxyJ4 phone with imei number 1: 352987107748875, imei number 2:

352988107748873. The Police Investigation Body of Thua Thien Hue province issued a Decision on returning exhibit to the owner, Mrs. Hoang Thi Bach K.

- Regarding civil matters:

Aggrieved parties: Nguyen Ho Hoang A, Mai Thi Thu L, Nguyen Thanh S were returned the entire amount appropriated and did not make further request regarding civil matters.

The aggrieved parties asked Truong Hoang D to return the money, including: Nguyen Thi Thu Th asked to return VND 11,800,000, Nguyen Trung H asked to return VND 2,800,000, Phan Dieu Linh asked to return VND 4,850,000, Nguyen Thanh C asked to return VND 3,600,000, Vu The S asked to return VND 22,370,000, Nguyen Phuc Th asked to return VND 800,000. At Indictment No. 20/CT-VKS-P2 dated May 7, 2021, the People's Procuracy of Thua Thien Hue province prosecuted Truong Hoang D for “Appropriation of property by computer network, telecommunications network or electronic devices” as prescribed in points b, c, dd, clause 2, Article 290 of the Criminal Code 2015.

At the trial, the representative of the People's Procuracy of Thua Thien Hue province requested the Trial Panel to apply b, c, dd, Clause 2, Article 290; Point b, c, Clause 1, Clause 2, Article 51 of the Criminal Code to declare Truong Hoang D guilty of “Appropriation of property by computer network, telecommunications network or electronic devices” and sentence him to 3 years, 6 months to 4 years in prison.

- Regarding civil liability: Apply Articles 584, 585, 586 and 589 of the 2015 Civil Code, force defendant Truong Hoang D to pay the remaining appropriated amount to the aggrieved parties.

At the trial, Truong Hoang D has confessed all the crimes as the content of the charge indicted, he only requests the Trial Panel to mitigate the penalty for him.

JUDGEMENT OF THE COURT

 [1] Regarding the procedural acts and decisions of the police investigation body of Thua Thien Hue province, investigators, People’s Procuracy of Thua Thien Hue province, procurators, in the course of investigation and prosecution, they have complied with jurisdiction and procedures as prescribed in the Criminal Procedure Code.

 [2] Based on the defendant's plea of guilty in the course of investigation, prosecution and at the first instance trial; the statements of the aggrieved parties, the persons with related interests and obligations and the witnesses and other documents and evidence in the file case; there are sufficient grounds to conclude:

From March 2020 to September 2020, Truong Hoang D himself created a Facebook account named D Quang H to create posts for accepting orders of foreign-origin goods; and buy and sell Zing cards to appropriate deposits of 09 victims nationwide, in specific:

 [2.1] On March 2, 2020, Truong Hoang D accepted an order to buy a Sanitas thermometer from Ms. Nguyen Ho Hoang A. Ms. A has made 02 transfers to the account: 0161001733605 on 02/3/2020, 03/3/2020 and 01 transfer to the account:  19033251442017 on March 6, 2020. D appropriated the amount of VND 15,560,000.

 [2.2] On March 4, 2020, Truong Hoang D accepted an order of a German thermometer product brand SFT77 from Ms. Nguyen Thi Thu Th. Ms. Th has made 02 transfers to D Quang H's account: 0161001733605 of D Quang H on March 4 and 5, 2020, D appropriated a deposit of: VND 11,800,000.

 [2.3] On March 5, 2020, Truong Hoang D accepted an order of cosmetics of foreign origin from Ms. Mai Thi Thu L. On March 5, 2020, Ms. L has made 01 transfer to account:  0161001733605 of D Quang H and on March 9, 2020 she has made 01 transfer to the account:  1012611198 of Vo Thi L, D appropriated a deposit of VND 11,970,000.

 [2.4] On March 5, 2020, Truong Hoang D accepted an order of a GUCI brand hat from Mr. Nguyen Trung H. On March 18, 2020, Mr. H has made 01 transfer to D Quang H's account 0161001733605, with a deposit of VND 2,800,000.

 [2.5] On April 11, 2020 and April 12, 2020, Truong Hoang D accepted an order of backpacks, purses, watches of all kinds originating in foreign countries from Ms. Phan Thi Dieu L. Ms. L has made 01 transfer to the account: 1012611198 on April 11, 2020 and has made 03 transfers to MoMo wallet phone number:  0901131080 account named Hai D on April 12 and 13, 2020, D appropriated a deposit of VND 4,850,000.

 [2.6] On April 19, 2020 Truong Hoang D accepted to buy a gift card product called Gift on the Google Play application platform for Mr. Nguyen Thanh S. On the same day, Mr. S has made 01 transfer to the Momo wallet account: 0901130365 account name Le Huu Quang and 01 transfer to MoMo wallet phone number: 0901131080 account named Hai D. D appropriated the amount of VND 1,630,000.

 [2.7] On April 28, 2020, Truong Hoang D accepted an order of a 32GB AppleTV 4K TV from Mr. Nguyen Thanh C. On the same day, Mr. C has made 02 transfers to the account: 0161001733605 of D Quang H, D appropriated a deposit of VND 3.600.000.

 [2.8] On April 26, 2020, Truong Hoang D knew that Nguyen Phuc Th was selling Zing card packages on the Google play platform. Thinh accepted to transfer the value of the Zing card for VND 800,000. D appropriated the above value of Zing cards for personal use.

 [2.9] On May 3, 2020, Truong Hoang D accepted payment for goods of foreign origin for Mr. Vu The S. Mr. S has made 02 transfers to D Quang H's account on May 3, 2020 and has made 03 transfers to MoMo Wallet, phone number:  0901131080 account named Hai D on May 4, 2020. D appropriated the amount of VND 22,370,000.

The total amount of money appropriated by D is VND 75,380,000 (Seventy five million three hundred and eighty thousand dong).

 [3] Truong Hoang D himself created a Facebook account named D Quang H to create posts for accepting orders of foreign-origin goods, and buying and selling Zing cards, but in fact D did not have goods to deliver, only to appropriate the property of those wishing to purchase the goods; D has made 09 attempts to appropriate 75,380,000 VND of 09 aggrieved parties; during the time of committing the crime, D did not have a job, the money D appropriated was used for his living expenses. The above act of Truong Hoang D has enough grounds for the Trial Panel to conclude: Truong Hoang D has committed the crime of “Appropriation of property by computer network, telecommunications network or electronic devices” specified at Points b, c and dd Clause 2 Article 290 of the Criminal Code.

 [4] Considering the nature of the defendant’s criminal act, the Trial Panel found that: The defendant's act is dangerous to society, it not only has infringed on other people's property rights but also has adversely affected the order and security in local areas, causing grievances among the people.

 [5] Regarding the aggravating and mitigating circumstances:

The defendant has not committed any aggravating circumstances of penal liability but is entitled to the mitigating circumstances: expressed cooperative attitude; had his family pay partial damages; the aggrieved parties have petitioned for defendant’s commutation of sentence, which is specified at Points b and s Clause 1 and Clause 2 Article 51 of the Criminal Code.

 [6] Considering the defendant's prior conduct, it was found that: Truong Hoang D did not have a criminal record, but in addition to this case, Truong Hoang D was also prosecuted and tried for gambling act, showing that his sense of compliance with law is poor, so it is necessary to isolate him from social life for a while to have a deterrent and general preventive effect.

 [7] Regarding exhibit handling: The Trial Panel does not have to deal with it.

 [8] Regarding civil liability:

After committing the crime and the investigation process, Truong Hoang D influenced the family to compensate Ms. Nguyen Ho Hoang A VND 15,560,000, Ms. Mai Thi Thu L VND 11,970,000, Mr. Nguyen Thanh S VND 1,630,000. These people have no further requests.

Considering that the claim of the remaining aggrieved parties to force Truong Hoang D to return the remaining money that D appropriated from them is well-founded, in accordance with Articles 584, 585, 586 and 589 of the Code Civil, so it should be accepted, in specific: Returning to Ms. Nguyen Thi Thu Th VND 11,800,000, to Mr. Nguyen Trung H VND 2,800,000, to Ms. Phan Dieu Linh VND 4,850,000, to Mr. Nguyen Thanh C VND 3,600. 000, for Mr. Vu The S VND 22,370,000, for Mr. Nguyen Phuc Th VND 800,000.

 [9] Regarding court fee: The defendant must bear first instance criminal court fee and civil court fee as prescribed by law.

For the foregoing reasons;

DISPOSITION

- Pursuant to points b, c, dd clause 2 Article 290; points b, s clause 1 and Article 2 Article 51 of the Criminal Code:

- Declare: Defendant Truong Hoang D (also known as Boy) guilty of: “Appropriation of property by computer network, telecommunications network or electronic devices”.

- Sentence defendant Truong Hoang D to 03 (three) years in prison, the term of imprisonment commences from the date of detention on November 13, 2020.

- Regarding civil liability: Pursuant to Articles 584, 585, 586 and 589 of the Civil Code, force defendant Truong Hoang D to return to the following aggrieved parties:

+ Return Ms. Nguyen Thi Thu Th VND 11,800,000.

+ Return Mr. Nguyen Trung H VND 2,800,000.

+ Return Ms. Phan Dieu L VND 4,850,000.

+ Return Mr. Nguyen Thanh C VND 3,600,000.

+ Return Mr. Vu The S VND 22,370,000.

+ Return Mr. Nguyen Phuc Th VND 800,000.

From the date the judgment creditor has a written request for judgment enforcement, if the judgment debtor has not yet fully paid the aforesaid amount, the judgment debtor shall also have to bear an additional amount of interest every month at the rate of interest specified in Article 357; Clause 2, Article 468 of the Civil Code corresponding to the amount and time that has not yet been enforced.

- With reference to court fees: Pursuant to Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the National Assembly Standing Committee, stipulating the court fees and charges, collection, exemption, reduction, management, and use thereof, force Truong Hoang D to pay VND 200,000 for first-instance criminal court fee and VND 2,311,000 for civil court fee.

In case the judgment or court decision is enforced as per regulations in Article 2 of the Law on enforcement of civil judgments, amended by the Law on amendments to the Law on enforcement 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 Articles 6, 7 and 9 of the Law on enforcement of civil judgments and Articles 7a, 7b of the Law on amendments to 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.

The first-instance judgment shall be publicly announced to the defendant, and the persons with related interests and obligations appearing in court. They have the right to appeal within 15 days from the date of pronouncement. The aggrieved party or person with related rights and obligations who did not appear in court have the right to appeal within 15 days from the date on which the judgment is received.