Judgment No. 647/2017/HS-PT dated december 11, 2017 on theft of property

SUPERIOR PEOPLE’S COURT OF HO CHI MINH CITY

JUDGMENT NO. 647/2017/HS-PT DATED DECEMBER 11, 2017 ON THEFT OF PROPERTY

On December 11, 2017, at the office of the People’s Court of Lam Dong, the Superior People’s Court of Ho Chi Minh City conducted an appellate trial to hear a criminal case against Nguyen Van Ph and Nguyen Dinh Thanh C for the crime of “theft of property” as there was an appeal against the First-instance Criminal Judgment No. 65/2016/HSST dated December 16, 2016 by the People’s Court of Lam Dong.

Appellants:

1. Nguyen Van Ph, date of birth: May 19, 1981; place of residence: neighborhood 1, TT village, TH commune, DL city, Lam Dong; nationality: Vietnamese; ethnic group: Kinh; religion: none; education level: 01/12; occupation: worker; parents: Mr. Nguyen Van L (deceased) and Mrs. Nguyen Thi L1; married with 2 children, the first born in 2008 and the second born in 2015; previous convictions, previous administrative violations: none; being out on bail (present).

2. Nguyen Dinh Thanh C, date of birth: April 02, 1957; place of residence: No. 42, neighborhood 2, PC village, TH commune, DL city, Lam Dong; nationality: Vietnamese; ethnic group: Kinh; religion: Buddhism; education level: 11/12; occupation: farmer; parents: Mr. Nguyen Dinh N (deceased) and Mrs. Phan Thi S (deceased); married with 08 children, the eldest born in 1979 and the youngest born in 1993; previous convictions, previous administrative violations: none; being out on bail (present).

(The Court did not summon the other defendant, Nguyen Thi T, and the aggrieved party, Thien Suong DL Co., Ltd., as they did not file an appeal)

THE CASE

Summary of the defendants’ offense according to the indictment of the People’s Procuracy of Lam Dong and Judgment of the People’s Court of Lam Dong:

TS DL single-member limited liability company (hereinafter referred to as “company”) with its office located in PC village, TH commune, DL city, Lam Dong was a wholly foreign-owned enterprise legally represented by Mr. Shen Yu M, Chinese (Taiwanese). As he usually took cows grazing near the company’s tea farm, Nguyen Dinh Thanh C met Nguyen Van Ph, a worker of the company. In May 2016, as he needed water pipes to water coffee plants and saw that there were many broken water pipes in the farm used to water tea plants, C told Ph:”Let me buy broken water pipes in the farm and I’ll give you some money for beer”. Ph agreed to C’s offer. At 10PM on June 30, 2016, needing money to go back to his hometown, PH used 01 firewood-cutting knife and went to zone C of the company’s tea farm to cut 12 water pipe sections made of black plastic with a total length of 480m and diameter of 27mm, and then hid these sections in C’s coffee farm. At 10PM on July 01, 2016, Phu continued to use the firewood-cutting knife to cut 03 water pipe sections made of black plastic with a length of 150m and diameter of 60mm. After that, Phu hid these sections in C's coffee farm and went home to sleep. At 1PM on July 04, 2016, Ph called C to inform him Ph had stolen the pipes and hidden them in C’s coffee farm and asked C to take a look. After visiting the coffee farm, Ph visited C and his wife to negotiate the selling of the stolen pipes. Ph told C's wife Nguyen Thi T that he stole the water pipes hidden in the coffee farm from the company's tea farm and agreed to sell them for VND 1. 400. 000. Although she was aware that these pipes were stolen, T agreed to buy them and paid Ph VND 1. 400. 000. After receiving the money, Ph took a coach to visit his family in An Giang and spent all of the abovementioned amount.

The appropriated property included 12 water pipe sections made of black PVC plastic with a diameter of 27mm and total length of 480m and 03 water pipe sections made of black PVC plastic with a diameter of 60mm and total length of 150m. The valuation panel of Da Lat city concluded 480m of 27mm diameter black PVC water pipes were worth VND 2. 692. 800 and 150m of 60mm diameter black PVC water pipes were worth VND 2. 475. 000. Total value of the appropriated property was VND 5. 167. 800.

Decision of the People’s Court of Lam Dong in the First-Instance Judgment No. 65/2016/HSST dated December 16, 2016:

Pronounce Nguyen Van Ph and Nguyen Dinh Thanh C guilty of “theft of property”. Pronounce Nguyen Thi T guilty of “use of property obtained by crime”.

Pursuant to Clause 1 Article 138; Points p and g Clause 1 and Clause 2 Article 46; and Point g Clause 1 Article 48 of the Criminal Code, sentence Nguyen Van Ph to 06 months in prison. The prison term commences from the date on which the defendant is detained.

Pursuant to Clause 1 Article 138; Points p, g and h Clause 1 and Clause 2 Article 46; and Point g Clause 1 Article 48 of the Criminal Code, sentence Nguyen Dinh Thanh C to 06 months in prison. The prison term commences from the date on which the defendant is detained.

Pursuant to Clause 1 Article 250; Points p, g and h Clause 1 and Clause 2 Article 46 of the Criminal Code, fine Nguyen Thi T VND 5.000.000, which shall be added to state fund.

In addition, the First-Instance Judgment also decided the civil liabilities, court fees and right to appeal as per the law.

On December 20, 2016, Nguyen Dinh Thanh C filed an appeal for a suspended sentence.

On December 29, 2016, Nguyen Van Ph filed an appeal for a suspended sentence.

At the trial, Ph withdrew all of his appeal. C admitted to the crime of “theft of property” stated in the First-Instance Judgment with the total amount of loss sustained by Thien Suong Co., Ltd. due to his offense being VND 5. 167. 800. C filed an appeal as he had had no previous conviction or administrative violation, he and his family fully complied with guidelines and policies of the Communist Party and the State; and, after committing his crime, he expressed a cooperative attitude and showed his repentance and desire to redeem his faults. Request the Trial Panel to mitigate his penalty and grant him a suspended sentence.

The representative of the Superior People’s Procuracy of Ho Chi Minh City expressed the following views: As Nguyen Van Ph voluntarily withdrew all of his appeal, it was necessary to terminate the appellate trial for Ph's appeal according to Article 238 of the Criminal Procedure Code. As for C, at the trial, he admitted to his offense. The first-instance trial court had considered the mitigating circumstances. Although the appropriated property was not of great value, C initiated the crime and the aggrieved party was a wholly foreign-owned enterprise, so C shall be imposed a penalty corresponding to his offense. Thus, request the Trial Panel to apply Article 238; and Point a Clause 2 Article 248 of the Criminal Procedure Code to terminate the appellate trial for Ph’s appeal and reject C’s appeal, and uphold the First-Instance Judgment.

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,

JUDGMENT OF THE COURT

Nguyen Van Ph and Nguyen Dinh Thanh C filed their appeals in accordance with regulations in Articles 231, 233 and 234 of the Criminal Procedure Code, thus, the case may be reconsidered under the procedure for appeals

Regarding PH’s appeal, it was found that, at the trial, Ph withdrew all of his appeal. As he did this of his own volition, the Trial Panel terminated the appellate trial for Ph’s appeal according to Article 238 of the Criminal Procedure Code.

Regarding Cong’s appeal: through public debate and questioning at the trial, C admitted to have initiated the theft of water pipes of TS Co., Ltd. Upon comparison with documents and exhibits in the case file, there were sufficient grounds for the Trial Panel to confirm that C was guilty of “Theft of property” according to regulations in Clause 1 Article 138 of the 1999 Criminal Code, amended in 2009. C initiated the crime and enabled Ph to steal. This act posed a threat to the society and infringed upon the ownership of a wholly foreign-owned enterprise, exerting a negative impact on the foreign investment environment in Vietnam and local public order and social security.

Considering C’ appeal, it was found that the mitigating circumstances C presented had already been taken into consideration by the first-instance court upon penalty decision. That the People's Court of Lam Dong pronounced C guilty of "Theft of property" according to regulations in Clause 1 Article 138 of the 1999 Criminal Code in Viet Nam, amended in 2009, and sentenced C to 06 months in prison had valid grounds with due consideration taken of the mitigating circumstances.

Therefore, the Trial Panel rejected C’s appeal and upheld the First-Instance Judgment at the request of the Procurator at the trial. 

Ph withdrew his petition so he is exempt from appellate criminal court fees. C shall incur appellate criminal court fees as per the law. The contents of the First-Instance Judgment not subject to any petition or appeal shall come into force from the date on which the time to petition/appeal expires.

Based on the abovementioned facts and matters,

HEREBY DECIDES

Pursuant to Article 238; Point a Clause 2 Article 248 of the Criminal Procedure Code in Viet Nam; Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 by the Standing Committee of the National Assembly on rates, exemption, reduction, collection, payment, management and use of Court fees and charges.

1. Terminate the appellate trial for the appeal of Nguyen Van Ph.

2. Reject the appeal of Nguyen Dinh Thanh C.

3. Uphold the First-Instance Judgment No. 65/2016/HSST dated December 16, 2016 by the People’s Court of Lam Dong.

4. Pronounce Nguyen Van Ph and Nguyen Dinh Thanh C guilty of “theft of property”.

Pursuant to Clause 1 Article 138; Points p and g Clause 1 and Clause 2 Article 46; and Point g Clause 1 Article 48 of the 1999 Criminal Code (amended in 2009), sentence Nguyen Van Ph to 06 months in prison. The prison term commences from the date on which the defendant is detained.

Pursuant to Clause 1 Article 138; Points p and g Clause 1 and Clause 2 Article 46; and Point g Clause 1 Article 48 of the 1999 Criminal Code (amended in 2009), sentence Nguyen Dinh Thanh C to 06 months in prison. The prison term commences from the date on which the defendant is detained.

5. Regarding appellate criminal court fees: Nguyen Van Ph is exempt from appellate criminal court fees. Nguyen Dinh Thanh C shall incur VND 200. 000 (two hundred thousand).

The contents of the First-Instance Judgment not subject to any petition or appeal shall come into force from the date on which the time to petition/appeal expires.

This Appellate Judgment takes effect from the date of pronouncement (December 11, 2017).