Judgment No. 74/2018/HSPT dated february 12, 2018 on offense of forging seals and documents of organizations

THE PEOPLE’S COURT OF HO CHI MINH CITY

JUDGMENT NO. 74/2018/HSPT DATED FEBRUARY 12, 2018 ON OFFENSE OF FORGING SEALS AND DOCUMENTS OF ORGANIZATIONS

On February 12, 2018, at the headquarters of the People's Court of Ho Chi Minh City, the appellate trial is conducted to hear the appellate criminal case No. 663/2017/HSPT dated November 9, 2017 against the defendants Nguyen Anh K and Huynh Hoang H based on the defendants’ appeals against the first-instance criminal judgment No. 124/2017/HSST dated September 28, 2017 of the People's Court of District 3, Ho Chi Minh City.

Appellants:

1. Nguyen Anh K; gender: male; born in 1962 in Ho Chi Minh City; registered permanent residence: 221/5 Vo Van Tan, Ward 5, District 3, Ho Chi Minh City; Occupation: None; educational level: 10/12 father: Mr. Nguyen Quang T (died) and mother: Mrs. Tram Thi L (died); family circumstances: wife: Pham Thi D, 2 children, oldest child born in 1988, younger child born in 2004; Previous conviction, previous administrative violation: None. Arrest and detention: July 3, 2016;

Change of preventive measure: from detention to residential confinement: November 29, 2016;

The defendant is out on bail, appearing in court.

2. Hoang Ngoc H; Gender: male; born in 1971 in Ho Chi Minh City; registered permanent residence: 377/43H Cach Mang Thang 8 Street, Ward 12, District 10, Ho Chi Minh City; occupation: (freelance); educational level: 11/12; father: Mr. Hoang Van Q (died) and mother: Mrs. Pham Thi T (died); family background: wife: Nguyen Minh T, 2 children, the oldest child was born in 1998, the younger child was born in 2001;Previous conviction, previous administrative violation: (none); arrest and detention: 03/7/2016;

Change of preventive measure: from detention to residential confinement: November 29, 2016; The defendant is out on bail, appearing in court.

The defendants, who have no appeal, are not appealed or protested:

1. Nguyen Huu S; Gender: male; born in 1957.

2. Nguyen Quoc H (1); Gender: male; born in 1979.

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:

At around 16:45 on June 30, 2016, on arriving in front of the house number 221/5 Vo Van Tan Street, Ward 2, District 3, spotting that Hoang Ngoc H showed suspicious signs, the patrol of Police District 3 conducted a search. It was discovered that H had a sheet of A4 paper that reads "Certificate of revocation of vehicle registration and license plate number" (hereinafter referred to as “Certificate of Revocation”) for motorcycle number plate 53R4 - 8167, the name of the owner is Nguyen Anh K , stamped by District 3 Police and signed by Colonel Nguyen Van Chien.  Suspecting that the above papers are faked, the patrol team brought H and the evidence to the District 3 police headquarters for clarification.

Through a search at Hoang Ngoc H's house at 377/43H Cach Mang Thang 8 Street, Ward 12, District 10, the police seized:  63 sheets of A4 paper with the seal of the District 3 Police, Ho Chi Minh City and the signature of Colonel Nguyen Hoang Diep; 1 sheet of A4 paper with the stamp of the District 3 Police; 74 sheets of A4 paper with the seal of the District 3 Police, signed by Colonel Nguyen Van Chien; 63 sheets of A4 paper with the seal of District 3 Police but without signature "Colonel Nguyen Van Chien" and some other printing related items (case file p.112).

On the basis of H's testimony, District 3 Police invited Nguyen Huu S to District 3 Police headquarters to work and confiscated from S 2 "Certificate of Revocation" of the motorbike number plates No. 53V4-6996 and 53RB-0065 in the name of the owner Nguyen Anh K (case file p.308)

During the investigation, the Investigation Police Agency - District 3 Police also seized at Department H(1) in Ho Chi Minh City 357 "Certificate of Revocation" named Nguyen Anh K and Nguyen Van Thao, with the seal of District 3 Police, signature and name of the Deputy Chief of District 3 Police, Colonel Nguyen Van Chien (case file p.1187, 1409, 1438);

According to the expertise conclusion No. 893/KLGD-TT dated July 6, 2016 and the expertise conclusion No. 1299/KLGD-TT dated January 6, 2017, the Criminalistics Department of Ho Chi Minh City Police determined as follows:   The picture of the seal reads "Ho Chi Minh City Police - District 3 Police" and the signature with the names "Nguyen Van Chien" and "Nguyen Hoang Diep" on the seized documents are fake, which were forged by the method of coloring on imprints, printed signatures, color inkjet printing.

The investigation results show that:

Hoang Ngoc H and Nguyen Anh K have known each other since 2006 because K often goes to the place where H works to photocopy documents and papers. In about 2013, K told H that K needed a “Certificate of Revocation” to complete paperwork for exporting the old motorbike but could not do it; and K asked H to forge and give H an original of "Certificate of Revocation" stamped by District 3 Police and signed by Colonel Nguyen Van Chien, H agreed.   H took a picture of "Certificate of Revocation" given by K and used computer and Corel Draw software to redraw the signature and delete the original signature to get the seal image from the original.   After separating the signature and the seal, H used a color printer to print the seal of District 3 Police on A4 paper and then continue to print the signature on the A4 paper that already has the seal image printed.   H saved the done image files on the computer, when needed, K fills in new information and prints it.   K paid H VND 400,000 for a fake "Certificate of Revocation".

Nguyen Huu S and Nguyen Quoc H (1) are import-export staff of Mat Troi Transport Company.   Wanting selling abroad old and motorcycles sold in the market without origin but unable to obtain the “Certificate of Revocation” according to the regulations, S introduced K to H (1 ) and asked K to forge the "Certificate of Revocation”.   H (1) and K agreed with each other that K would forge a "Certificate of Revocation” for H (1) for VND 1,000,000/paper.

K has traded used Vespa cars and regularly completes paperwork for exporting used motorbikes abroad, so he is acquainted with S. S introduced K to H (1) and asked K to falsify the "Certificate of Revocation” for VND 1,000,000/paper.   K agreed.  After that, K asked H to falsify a "Certificate of Revocation” at the request of H (1), S for VND 400,000 /paper.

K repeatedly asked H to falsify "Certificates of Revocation” and handed them over to H (1) and S.

In the First Instance Criminal Verdict No. 124/2017/HSST dated September 28, 2017, the People’s Court of Ho Chi Minh City judged:

Declare the defendants Hoang Ngoc H, Nguyen Anh K guilty of "Forging stamps and documents of organizations";

Pursuant to point b Clause 2 Article 267; Article 20, Article 53; point p clause 1, clause 2 Article 46 of the Criminal Code 1999, which is amended in 2009.

Sentence Nguyen Anh K 2 years and 6 months’ imprisonment, the sentence period shall commence from the serving date and the defendant shall be given credit for days spent in confinement from July 3, 2016 to November 29, 2016.

Pursuant to point b clause 2 Article 267; Article 20; Article 53; Point p, Clause 1, Article 46 of the Criminal Code in Viet Nam,

Sentence Hoang Ngoc H 2 years and 6 months’ imprisonment, the sentence period shall commence from the serving date and the defendant shall be given credit for days spent in confinement from July 3, 2016 to November 29, 2016.

In addition, the judgment also sentences the defendant Nguyen Huu S to 1 year and 6 months in prison, but all suspended sentence, sentences the defendant Nguyen Quoc H (1) 2 years in prison, but all suspended; forces K to pay back VND 216,000,000 and H to pay back VND 144,000,000 of illicit profits; to handle exhibits, civil obligations and the right to appeal of the defendants.

On October 8, 2018, the defendant Hoang Ngoc H filed an appeal with the following content:  The defendant committed a crime for the first time, he has no previous criminal record, he made honest testimony, and has been doing honest business ever since; the defendant is the breadwinner in the family.  Therefore, the defendant pleads for a suspended sentence,

On October 8, 2018, defendant Nguyen Anh K made an appeal with the content:  The defendant has been only a broker between H (1) and H, the defendant has not committed any crime, his parents participated in a resistance war against the US and were awarded first-class resistance medal by the President of the State, he is the breadwinner in a family with young children.  Therefore, the defendant pleads for a suspended sentence.

During the time to prepare for appellate trial, defendant H voluntarily submitted an illicit profit amount of VND 144,000,000, and at the same time submitted additional documents as the Request for certification of having a good personality certified by the local authority and payment receipt enclosed.

At the appellate court hearing:

The defendants keep the content appealed.   Defendant H adds the content of the appeal as follows:  The defendant returned all illicit profits. In addition to this crime, the defendant has always abided by the legal policy.

The prosecutor expresses his opinion on the settlement of the case as follows:   The People's Court of District 3, Ho Chi Minh City sanctioning the defendant for "Forging seals, documents of agencies and organizations" according to Point b, Clause 2, Article 267 of the Criminal Code is grounded.   Although, there is a new fact that defendant H voluntarily surrendered all illicit profits and was confirmed by the local authority as having good personalities.   The sentence that the District 3 Court has imposed on the defendant is commensurate with the nature of the violation and the extenuating circumstances the defendant is entitled to.    Therefore, the Trial Panel is recommended not to accept the defendant's appeal.

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 and consideration of the opinion of the procurator and the defendants, the Trial Panel shall determine as follows:

[1]. During the investigation, prosecution and adjudication, the Police Investigation of the District 3 Police, Investigators, People's Procuracy of District 3, Ho Chi Minh City, Procurators, District 3 People's Court, Ho Chi Minh City have complied with their competence, procedures as provided for by the Criminal Procedure Code.   In the course of investigation and at the trial, the defendant gives no opinion or complaint about the actions and decisions of the presiding agencies and presiding officers.  Therefore, the procedural acts and decisions of the presiding authorities and presiding officers have been made legally.

[2]. At the appellate trial, the defendants admitted the criminal acts as the content of the indictment and the first instance judgment.   The defendant's confession is consistent with the evidence and documents included in the case file.  Therefore, the Panel finds just cause to determine the action of the crime that the indictment and the first instance judgment described and judged to be true.

[3] The defendant’s offense conduct is dangerous to society and infringes the State’s activities in administrative management.  The defendants, who have full criminal liability capacity, know that their actions violate the law, but due to their self-interest motives, lack of sense of respect for the law, they intentionally violated the law.  In light with the provisions of the law, there are sufficient grounds to conclude that the defendants have committed "forging seals and documents of agencies and organizations" according to Point b, Clause 2, Article 267 of the Criminal Code.   The offense and citation of law judged by the Court of First Instance is right as per the law.

[4]. In this case, defendant K initiated the forging "Certificate of Revocation”.  When he knew that S and H (1) wanted to get the certificate of revocation to do export procedures, K introduced himself as a long-time motorbike dealer getting acquainted with many police officers, so he could make a paper for S and H (1), the agreed price of counterfeiting each paper is VND 1,000,000.   K provided the sample and hired H to forge "Certificate of Revocation" for the price of VND 400,000.   The danger level of his offense is somewhat higher than that of H. K benefits the most and has not yet paid back the illicit profits.  K has no previous criminal conviction, expressed cooperative attitude and showed his repentance, the defendant's parents are people with meritorious services to the revolution, so the Court of First Instance was right when applying Point p, Clause 1 and Clause 2, Article 46 of the Criminal Code to alleviate the criminal liability of the defendant.   The sentence that the Court has imposed on K is commensurate with the nature of the violation and the extenuating circumstances K is entitled to.  At the appellate trial, there are no new extenuating circumstances.   It was seen that there was no valid reason to accept the appeal of K.

[5]. H was the penetrator of the offense as required by K. H has no previous criminal conviction, expressed cooperative attitude and showed his repentance, so the Court of First Instance was right when applying Point p, Clause 1 and Clause 2, Article 46 of the Criminal Code to alleviate the criminal liability of the defendant.  In the process of preparing for the appellate trial, the defendant voluntarily surrendered the entire amount of illicit profits of VND 144,000,000.  This is a newly arising circumstance and is considered an extenuating circumstance.    The defendant has a fixed residence, has been confirmed by the local government so far that he has not violated any other law.   The defendant has a minor child.   In this case, the defendant was also detained for nearly 5 months, while being released on bail, he has complied with the request of the presiding agencies, showing the ability to self-reform.   Therefore, it is necessary for the defendant to enjoy the leniency policy and to enjoy the suspended sentence.

For the foregoing reasons,

DISPOSITION

Pursuant to point b clause 1 Article 355 of the Criminal Procedure Code 2015 in Viet Nam,

1. Correct the First Instance Criminal Judgment No. 124/2017/HSST dated September 28, 2017 of the People’s Court of Ho Chi Minh City.

Declare the defendants Hoang Ngoc H, Nguyen Anh K guilty of "Forging stamps and documents of organizations";

Pursuant to point b clause 2 Article 267, point p clause 1, clause 2 Article 46 of the Criminal Code 1999 (amended 2009) in Viet Nam,

Sentence Nguyen Anh K 2 years and 6 months’ imprisonment, the sentence period shall commence from the serving date and the defendant shall be given credit for days spent in confinement from July 3, 2016 to November 29, 2016.

Pursuant to point b clause 2 Article 267, point p clause 1, clause 2 Article 46 of the Criminal Code 1999 (amended 2009),

Sentence Hoang Ngoc H 2 years and 6 months’ imprisonment, but all suspended, 5 years of probation period from the date of the appellate judgment.

Assign defendant H to the People's Committee of Ward 12, District 10, Ho Chi Minh City to supervise and educate during probation, in case defendant H changes his residence, Clause 1 Article 69 of the Law on Execution of Criminal Judgments in Viet Nam shall apply.

2. Defendant Nguyen Anh K must bear VND 200,000 of appellate criminal court fee; defendant Hoang Ngoc H is not subject to appellate criminal court fee.

3. Other decision parts of first instance judgment having no appeal or protest take legal effect after the expiry of the time limit for appeal or protest.

4. The appellate judgment takes legal effect from the date of pronouncement.

(The defendant's suspended sentence/probation order has been explained)./