Judgment no. 71/2018/HS-ST dated september 20, 2018 on obtaining property by fraud

THE PEOPLE’S COURT OF GIAO THUY DISTRICT, NAM DINH PROVINCE

JUDGMENT NO. 71/2018/HS-ST DATED SEPTEMBER 20, 2018 ON OBTAINING PROPERTY BY FRAUD

On September 20, 2018, the first-instance trial was conducted in the public at the office of the People’s Court of Giao Thuy district, Nam Dinh province to hear the handled criminal case No. 72/HSST dated September 04, 2018 according to the Decision to bring the case to the trial No. 74/2018/QDXXST-HS dated September 07, 2018 against the following defendants:

1. Full name: Tran Van H – born in 1983 at T hamlet, B commune, G district, N province; registered permanent residence: T hamlet, B commune, G district, N province; occupation: Freelancer; educational level: 9/12; ethnic group: Kinh; gender: Name; religion: none; nationality: Vietnamese; parents: Mr. Tran Van H – born in 1958 and Mrs. Tran Thi X – born in 1961 – both of them are salt farmers at B commune, G district, N province; wife: Mrs. Vu Thi T – born in 1986 – salt farmer at B commune, G district, N province; 02 children: one born in 2007 and the other born in 2008; criminal records and previous convictions: None. The defendant has been held in detention from May 28, 2018. Currently, he is held in detention at the prison of the Police Department of Nam Dinh province.

2. Full name: Nguyen Thi H – born in 1984 at Q district, T province; registered permanent residence: T area, T town, T district, D province; occupation: Freelancer; educational level: 12/12; ethnic group: Kinh; gender: Female; religion: none; nationality: Vietnamese; father: Mr. Nguyen Van X – deceased; mother: Mrs. Nguyen Thi N – born in 1960, residing at D district, D province. Husband: Nguyen Van N – born in 1982, residing in T province; she has a child, born in 2009, living with his/her father. Currently, the defendant Nguyen Thi H is 8 months pregnant; criminal records and previous convictions: None. The defendant has been detained and held in detention since June 28, 2018. Currently, she is held in detention at the detention center of the Police Department of Nam Dinh province.

- Aggrieved persons:

1. Mr. Hoang Van G – born in 1973; address:  T hamlet, B commune, G district, N province.

2. Ms. Pham Thi A - born in 1991, address:  Hamlet 10, H commune, H district, N province.

- Person having duties and interests from the lawsuit:

1. Ms. Vu Thi T - born in 1986, address:  T hamlet, B commune, G district, N province.

- Witnesses:

1. Mrs. Nguyen Thi H - born in 1966, address:  Hamlet 10, H commune, H district, N province.

2. Mr. Hoang Van C – born in 1997; address:  T hamlet, B commune, G district, N province.

02 defendants, Ms. T and Mr. G are present at the court hearing; other participants in legal proceedings are absent.

CONTENTS OF THE CASE

According to documents in the case file and events at the trial, the contents of the case are summarized as follows: Tran Van H and Nguyen Thi H had got acquainted via Zalo social network in July, 2017. H had introduced himself to H in an interesting way that his family was very rich, he was a trader and had a paternal aunt running a fine arts company in Switzerland. Thus, he could help people move, live and work in Switzerland. Actually, H did not have a stable job and was unable to bring workers to Switzerland but H had agreed to help H when she said that she wanted to move and work in Switzerland because H thought that he would never meet H and they were only chatting for funs without any other purposes. By taking advantage of information provided by H, H had returned to her hometown and spread news that she would work in Switzerland with the aim of defrauding money of persons wishing to work abroad. When hearing the news that H would work in Switzerland, Mr. Hoang Van G, a neighbor of H, said that he wanted to work in Switzerland and asked her for help but H said that Mr. G was too old to work abroad and recommended Mr. G to let his child work abroad. After discussion with his family, Mr. G agreed to the recommendation of H. Then, H had contacted H and asked him for help in bring workers abroad. H had agreed because he wanted to save face. 

On December 31, 2017, H had met H and then they fell in love with each other. After a period of cohabitation, H found that H's family was not rich and H himself could not bring workers to Switzerland as he introduced. In order to have money, H had discussed with H about the plan to cheat Mr. G of bringing his child to work abroad, and H agreed. On January 18, 2018, H had arranged an appointment between H and Mr. G. When meeting Mr. G, H had played the role of the person who takes charge of procedures for bringing Mr. G’s child to Switzerland. He had provided false information with the aim of making Mr. G trust him and told Mr. G to prepare an amount of VND 38,800,000 and Mr. G agreed. On January 25, 2018, H had carried Mr. G to a coffee shop located in Van Quan street, Ha Dong district, Hanoi City to meet H. At this coffee shop, Mr. G had given VND 25,000,000 to H. H had written a receipt for Mr. G and lied to Mr. G about his child’s travel to Switzerland at the beginning of March, 2018. H and H had jointly spent all money which they got by cheating Mr. G. On February 11, 2018, H had called Mr. G to request Mr. G to transfer an amount of VND 5,000,000 to him and Mr. G agreed and gave VND 5,000,000 to H on February 12, 2018 when Mr. G and H both were in Bach Long commune, Giao Thuy district. On February 18, 2018, H had visited H’s house with the aim of getting VND 5,000,000 given by Mr. G, and H had also visited Mr. G’s house. When Mr. G talked with H about his child’s employment abroad, and H had lied to Mr. G that his aunt was going to return to Vietnam and bring workers to Switzerland. Over the scheduled date said by H, Mr. G had tried to contact H and H many times to ask them about the employment in Switzerland of his child but H and H had always found a pretext for refusal to meet him. Because Mr. G thought that he was cheated by H and H, he had requested them to give back money but H had refused to return money to him and lied that such amounts of money had been spent on buying air ticket. Then, H had asked Nhan Van Trading and Tourist Co. Ltd. - Hanoi City for a payment receipt form, and he had filled in the receipt with information about payment of air ticket made by Mr. G and given it to Mr. G. Mr. G had denounced H and H to the Police Office of Giao Thuy district because he thought that he was cheated.

The investigation authority also found that: On February 14, 2018, H met Ms. Pham Thi A, born in 1991 at group 10, Hai Trung commune, Hai Hau district (who is H's cousin). Because H knew that Ms. A was unemployed, he has had an intention to cheat Ms. A out of money. H told Ms. A that she would work in Switzerland and induced Ms. A to go with her and Ms. A agreed. H and H planned to tell a lie to Ms. A. Ms. A trusted in them and gave H an amount of VND 20,300,000. The first payment of VND 2,300,000 was made in March, 2018 and one week later, Ms. A continued to give the remaining amount of VND 18,000,000 to H. H and H had jointly spent all amounts of money received. 

At the trial: Defendants declared and admitted their violations as mentioned above. 

The victim, Mr. Hoang Van G, stated: Because he wanted to let his son, Hoang Van Chien, work abroad, and he thought that the defendant H was his neighbor, he trusted in H when H said that she could bring workers to Switzerland and he gave money to defendants H and H two times with the sum of VND 30,000,000. He had denounced the case to the Police Office of Giao Thuy district because his son could not travel abroad on the planned date and he thought that he was cheated. The defendant H and Mrs. Thu (his wife) had repaid the amount of VND 30,000,000 to him. Thus, he had no requests for civil liabilities but requested the Trial panel to consider mitigating the punishment to be imposed on the defendant H.

The person having duties and interests from the lawsuit, Mrs. Vu Thi Thu, stated: She is the wife of the defendant H. She did not know that the defendants H and H had cheated Mr. G and Ms. A of out money. She knew the case only after she worked with the investigation authority. Regarding the amounts of money that two defendants had appropriated from Mr. G and Ms. A, she and the defendant H had repaid VND 30,000,000 to Mr. G and VND 20,300,000 to Ms. A. Now she submits no requests for the amounts paid to the victims.

At the Indictment No. 72/CTR dated September 04, 2018, the People’s Procuracy of Giao Thuy district prosecuted the defendants, Tran Van H and Nguyen Thi H, for “Obtaining property by fraud” in accordance with Point c Clause 2 Article 174 of the Criminal Code.

Conclusions and arguments given by the representative of the People’s Procuracy of Giao Thuy district exercising the right of prosecution: At the investigation authority and at this trial, the defendants declared and admitted that because they had no money, H and H had planned to defraud Mr. Hoang Van G of VND 30,000,000 (thirty million) in total and Ms. Pham Thi A of VND 20,300,000 (twenty million three hundred thousand) in total although they could not bring workers abroad. Total amount which the defendants obtained by defrauding two victims is VND 50,300,000 (fifty million three hundred thousand). Hence, the committed acts of the defendants constituted the "Obtaining property by fraud” crime. As a result, the Procuracy retained its decision to prosecute the defendants and requested the Trial panel to declare that the defendants Tran Van H and Nguyen Thi H committed the “Obtaining property by fraud” crime. The defendant Tran Van H must be sentenced to imprisonment of 24 – 30 months but given a suspended sentence pursuant to Point c Clause 2 Article 174, Points b, s Clause 1, Clause 2 Article 51, Article 65 of the Criminal Code; and the defendant Nguyen Thi H must be sentenced to imprisonment of 18 – 24 months but given a suspended sentence pursuant to Point c Clause 2 Article 174, Points n, s Clause 1, Clause 2 Article 51, Article 51, Article 65 of the Criminal Code. 

While speaking final words, both defendants petitioned the Trial panel to consider mitigating factors and give community sentence to them.

JUDGMENT OF THE COURT

Based on the contents of the case, documents in the case file which had been examined and verified during the questioning and arguing process at the trial, the Trial panel finds that:

 [1] Regarding legal proceedings and relevant decisions of the investigation authority affiliated to the Police Office of Giao Thuy district, investigators, the People’s Procuracy of Giao Thuy district, and procurators during the investigation and prosecution, and of members of the Trial panel and the Court Clerk recording the Court’s proceedings in writing: they have strictly complied with relevant regulations on the authority, order and procedures laid down in the Criminal Procedure Code. During the investigation and at the trial, both defendants neither provided opposing opinions nor complained about acts and decisions of the presiding agencies and presiding officers. Thus, all actions and decisions of presiding agencies and presiding officers are lawful.

 [2] Regarding the crime: Statements provided by the defendants at the trial matched those provided at the investigation authority, and documents in the case file. To be specific: Tran Van H and Nguyen Thi H had got acquainted via the Zalo social network in July, 2017. H had introduced himself that he could help people work in Switzerland. Based on the information provided by H, H had returned to her hometown and spread news that she would work in Switzerland with the aim of defrauding money of persons wishing to work abroad. After a period of communication, two parties fell in love and cohabited with each other. In order to have money for their life of pleasure, Tran Van H and Nguyen Thi H had discussed and told lie to Mr. Hoang Van G who wanted to let his son work abroad although H was unable to bring workers abroad. The defendants had appropriated VND 30,000,000 of Mr. G. By using the same trickery, the defendants had appropriated VND 20,300,000 of Ms. Pham Thi A. Total amount which the defendants obtained by defrauding two victims is VND 50,300,000 (fifty million three hundred thousand). For this reason, the defendants committed the "Obtaining property by fraud" crime which is elaborated in Point c Clause 2 Article 174 of the Criminal Code.

 [3] The crime committed by the defendants is considered a danger to society; it not only infringes the property ownership of citizens but also negatively impacts social order. Both defendants are young but lazy to earn their living. In order to have money for their life of pleasure, they defrauded people of property resulting in the commission of the crime. Hence, each defendant must be given a sentence suitable to the nature and danger of the committed crime so as to punish and educate the defendants as well as serve the prevention and fight against crimes.

 [4] When deciding the sentencing for the defendants, the Trial panel has considered the following aggravating and mitigating factors:

Regarding aggravating factors: Both defendants are affected by none of the aggravating factors defined in Clause 1 Article 52 of the Criminal Code.

Regarding mitigating factors: The defendants have expressed cooperative attitude and contrition at both the investigation authority and the trial. Thus, the defendants have a mitigating factor as defined in Point s Clause 1 Article 51 of the Criminal Code. The defendant Tran Van H and his family has voluntarily compensated for damage, relieved the consequences, and petitioned for the mitigation of the punishment, so the defendant H is also eligible for the mitigating factors defined in Point b Clause 1 and Clause 2 Article 51 of the Criminal Code. The defendant Nguyen Thi H is pregnant and according to the Official Dispatch No. 478 dated September 14, 2018 of the detention center of the Police Department of Nam Dinh province where she is held in detention, the defendant H is suffering from asthma, hypotension and anaemia (estimated date of confinement: 2 – 3 weeks later). The detention center requested the People’s Court of Gia Thuy district to consider apply other procedural methods so as to show humanity and leniency towards a pregnant woman. Thus, the defendant H is eligible for mitigating factors prescribed in Point n Clause 1 and Clause 2 Article 51 of the Criminal Code.

Regarding the position and role of each defendant in the crime: The defendant H and the defendant H are considered accomplices of the case; the defendant H developed the trickery plan, and the defendant H is the person who directly commits the crime. Thus, the defendant H must be given a sentence which is more severe the one served by the defendant H. Based on the above-mentioned analysis, the Trial panel finds that both defendants have mitigating factors and good records, and want to mend their ways. It is not necessary to impose custodial sentences on the defendants. The defendants should be given suspended sentences as proposed by the Procuracy.

 [5] Regarding civil liabilities: During the investigation, Tran Van H and his family had repaid an amount of VND 30,000,000 to Mr. Hoang Van G and an amount of VND 20,300,000 to Ms. Pham Thi A. Both Mr. G and Ms. A have fully received the amounts of money defrauded by the defendants H and H, and have no other requests. Thus, no civil liabilities need to be considered.

 [6] Regarding exhibits:  Two cell phones used by H and H for communication have been lost. Thus, no exhibits need to be handled.

With regard to Ms. Cao Thi H who is the Director of Nhan Van Trading and Tourist Co. Ltd., she had provided H with a blank payment receipt but she did not know that H would use that receipt to defraud people of money. Thus, no matter needs to be handled.

 [7] Regarding the court fees: The defendants of the case must pay the first-instance criminal court fees in accordance with Article 136 of the Criminal Procedure Code, the Resolution No. 326/2016 dated December 30, 2016 of the 14th session of the Standing Committee of the National Assembly on court fees and charges, collection, exemption, reduction

 [8] Regarding the rights to appeal against the judgment: The defendants, the aggrieved persons and persons having duties and interests from the case shall have the rights to appeal against the judgment in accordance with Article 331 and Article 333 of the Criminal Procedure Code, transfer, management and use thereof..

For the said reasons,

THE COURT DECIDES

1. To declare that: The defendants Tran Van H and Nguyen Thi H committed the "Obtaining property by fraud” crime. 
- Pursuant to Point c Clause 2 Article 174, Points b, s Clause 1 and Clause 2 Article 51, Article 65 of the Criminal Code, Article 328 of the Criminal Procedure Code, the defendant Tran Van H is sentenced to the imprisonment of 30 (thirty) months but is given the suspended sentence with the probation period of 05 years commencing from the date of the judgment (The defendant has been held in detention since May 28, 2018). It is declared that the defendant Tran Van H is discharged immediately at the trial if he is not held in detention for another crime. 

- Pursuant to Point c Clause 2 Article 174, Points n, s Clause 1 and Clause 2 Article 51, Article 65 of the Criminal Code, Article 328 of the Criminal Procedure Code, the defendant Nguyen Thi H is sentenced to the imprisonment of 24 (twenty four) months but is given the suspended sentence with the probation period of 48 months commencing from the date of the judgment (The defendant has been detained and held in detention since June 28, 2018). It is declared that the defendant Nguyen Thi H is discharged immediately at the trial if she is not held in detention for another crime. 

The People’s Committee of Bach Long commune, Giao Thuy district, Nam Dinh province shall take charge of supervising and educating the defendant Tran Van H during the probation period; The defendant Nguyen Thi H shall be supervised and educated by the People’s Committee of Tua Chua town, Tua Chua district, Dien Bien province, during the probation period. If the person serving a suspended sentence changes his/her residence, the regulations enshrined in Clause 1 Article 69 of the Law on enforcement of criminal judgments. During the probation period, if the person serving the suspended sentence deliberately fails to fulfill his/her obligations twice or more as prescribed by the Law on enforcement of criminal judgments, the Court might require him/her to serve the suspended imprisonment sentence. 

2. The court fees: Pursuant to Clause 2 Article 136 of the Criminal Procedure Code, the Resolution No. 326/2016 dated December 30, 2016 of the 14th session of the Standing Committee of the National Assembly on court fees and charges, collection, exemption, reduction, transfer, management and use thereof, the defendants Tran Van H and Nguyen Thi H each must pay VND 200,000 (two hundred thousand) of the first-instance criminal court fees. 

3. Regarding the rights to appeal against the judgment: pursuant to Article 331 and Article 333 of the Criminal Procedure Code, the defendants, the aggrieved persons and persons having duties and interests present at the trial shall have the rights to appeal against the judgment within 15 days from the date of judgment announcement; The aggrieved persons and persons having duties and interests absent from the trial shall have the rights to appeal against the judgment within 15 days from the date on which they receive the judgment. 

In case the judgment is enforced according to Article 2 of the Law on enforcement of civil criminal judgments, the defendant is entitled to voluntarily serve the sentence or is subject to the coercive judgment enforcement. The effective period of the judgment enforcement shall comply with the provisions of Article 30 of the Law on enforcement of civil judgments.