Judgment No. 845/2019/HSPT dated december 26, 2019 for illegal outward remittance and forgery of seals and documents of agencies and organizations

HANOI SUPERIOR PEOPLE’S COURT

JUDGMENT NO. 845/2019/HSPT DATED DECEMBER 26, 2019 FOR ILLEGAL OUTWARD REMITTANCE AND FORGERY OF SEALS AND DOCUMENTS OF AGENCIES AND ORGANIZATIONS

On December 26, 2019, in People’s Court of Quang Ninh Province, Hanoi Superior People’s Court held public appellate trial for accepted criminal case No. 813/2019/TLPT-HS dated October 14, 2019 against defendants Nguyen Van A, Nguyen Quoc H due to appeal of the defendants against First instance criminal judgment No. 89/2018/HSST dated September 6, 2019 of People’s Court of Quang Ninh Province.

Appealing defendants:

1/ Full name: Nguyen Van A - Alias: None; Born on: March 13, 1985 in S District, Hanoi; Permanent residence address: P Hamlet, M Commune, S District, Hanoi City; Nationality: Vietnamese; Ethnic group: Kinh; Religion: None; Gender: Male; Education level: Junior College level; Occupation: Freelance business; son of Mr. Nguyen Van D (deceased) and Mrs. Dinh Thi Th; married to Mrs. Nguyen Thi Ng, gave birth to a child in 2017; Criminal record: None; Arrested on April 7, 2018, replacing preventive measures with “bail” measures on August 3, 2018, currently bailing in residence. Present.

2/ Full name: Nguyen Quoc H - Alias: None; Born on May 31, 1983 in Hanoi; Permanent residence address: T Ward, H District, Hanoi City; Current address: T District, Hanoi City; Nationality: Vietnamese; Ethnic group: Kinh; Religion: None; Gender: Male; Education level: Higher education level; Occupation: Freelancer; son of Mr. Nguyen Van L and Mrs. Nguyen Thi T; married to Mrs. Pham Thi Phuong H, gave birth to a child in 2011; Criminal record: None; Arrested on October 19, 2018. Present.

In addition, the case also included defendants Nguyen Manh D and An The A who did not appeal and were not appealed, thus are not summoned by the Court.

THE CASE

According to the case file, the case can be summarized as follows: During the period from 2015 to January, 2018, in Hanoi City and Quang Ninh Province, Nguyen Van A, Nguyen Manh D, An The A and Nguyen Quoc H had forged, purchased and sold commercial instruments and illegally transported foreign currency across border to illegally generate revenues. Offences of the defendants are specified as follows:

1. Offence(s) of Nguyen Van A:

Approximately in 2015, Dinh Thi N (born: 1962, residing in T Ward, S City, Lang Son Province, a defendant tried in the first stage) contacted Nguyen Van A to purchase commercial instruments to legalize transfer of foreign currency abroad for customers of N. Due to knowledge about the fact that Nguyen Manh D and An The A were managing C2T Company, during the period from January, 2016 to August, 2016, Nguyen Van A asked D and The A borrow the company’s name to produce import export documents which were sold to N who would adopt procedures for illegally transfer money abroad for customers in Eximbank – Ba Dinh branch and Sacombank - Capital branch. A did not inform D and An The A during business with N.

In addition to selling commercial instruments for Dinh Thi N, during the period from 2015 to 2017, Nguyen Van A also sold commercial instruments of following companies: V, C2T, HUB and Cuong Thinh to Nguyen Manh D, An The A and Nguyen Quoc H (with respect to H, A only sold instruments of V Company) to enable these defendants to transfer money abroad for their customers.

In order to get commercial instruments of the companies above, A hired a person by the name of Thanh in Mong Cai (specific address is unknown) to forge customs documents which dictated import and export operations of these companies. As soon as customs documents were available, A transferred to N, D, The A and Hien.

Regarding price of commercial instruments, amount of money illegally transferred abroad and illegal revenues, Nguyen Van A shall be responsible for:

In selling commercial instruments for Dinh Thi N: Most of statements of Nguyen Van A showed: A sold to N with the price of VND 1,000,000/USD 100,000 specified on the documents; N claimed to purchase documents of A with a price of VND 1,000,000 to VND 2,000,000/USD 100,000 specified on the documents. Both parties agreed to pay via Trinh Diem C (foster child of N). Based on bank statements: Total amount of money that A shall be criminally responsible for due to selling documents to N in order for N to illegally transfer money abroad is VND 737,426,181,677. Based on customs declarations in documents sold to N by A: Total number of money specified on the declarations is USD 80,134,448. Based on statement of N and A on price of documents among the 2 individuals, on the basis of benefits for the defendants, revenues of A shall be VND 801,344,000, in which, revenue generated from selling C2T documents bearing A’s signatures as Vice Director Nguyen Huu Q is VND 305,344,000 (rounded).

In selling commercial instruments for Nguyen Manh D and An The A. D and The A claimed to have paid A VND 50,000,000/USD 1 million specified on customs declarations of Company V. D paid A VND 38,000,000/USD 1 million specified on customs declarations of C2T, HUB and Cuong Thinh companies. During the period in which D and The A transferred money to Sam, since A had document sources, D voluntarily paid A 35% of the revenue generated from illegal outward remittance in addition to fees for the documents. Based on investigation files: Total amount of money illegally transported abroad that Nguyen Van A shall be criminally responsible for by selling documents to enable D and An The A to illegally transport money abroad is VND 1,528,226,253,108; total amount of money A received from selling documents to D and Anh is determined to be VND 2,681,000,000 (rounded), in which, VND 651,463,030 for Company V and VND 2,029,536,970 for other companies; amount of money A received from D and The A as commission for transporting cash abroad is VND 105,000,000.

In selling commercial instruments for Nguyen Quoc H: Investigation files: Total amount of money transported abroad that Nguyen Van A shall be responsible for by selling commercial instruments of Company V to H who sold to other individuals to illegally transported abroad is VND 27,176,438,677. With respect to the revenue, H claimed to have purchased documents from A with the price of VND 70 million/USD 1 million even though A claimed to have sold to H with the price of VND 20 million/USD 1 million specified on the declarations. Based on statements of H and A on document price, on the basis of benefits for the defendants, revenues of A shall be determined to be VND 23,631,685 (rounded).

Thus, total amount of money transported abroad that Nguyen Van A shall be criminally responsible for is VND 2,292,828,873,462; amount of money A received from selling documents of companies which A did not sign as vice director or director is VND 2,630,390,970.

Among the commercial instruments of 4 companies sold to N, D and The A by A as mentioned above, A forged certain documents of C2T Company (which were sold to N) and Company V (which were sold to D, The A and H) by directly signing blank A4 papers, imitating signatures of Dinh Van H1 and Nguyen Huu Q in sections of Director Dinh Van H1 and Vice Director Nguyen Huu Q and issuing round seal of C2T and V companies. A then passed onto Dinh Thi N, Nguyen Manh D, An The A and Nguyen Quoc H who used said papers as bank account opening request letters, power of attorney, remittance orders, foreign exchange request letters, remittance request letters, annexes, etc. serving money transfer of D, The A and N in banks.

2. Offence(s) of Nguyen Quoc H:

Nguyen Quoc H used to work in international payment department in head office of Hanoi Techcombank thus well understood Government regulations on international payment in import and export commercial affairs and acknowledged the fact that contract annexes can be exploited to transfer money abroad at request of customers in form of telegraphic transfer reimbursement (TTr). Thus, from 2015 to 2017, in Hanoi, Nguyen Quoc H acted as middleman to find and purchase commercial instruments of Company V via Nguyen Van A; TT and TC companies of Le Tien Th (born: 1984, permanent residence address: L Ward, L district, Hanoi City); TK Company of Nong Tung L (born: 1984, residence: Flat 806, C Block, Hoang Huy Apartment Building, 275 Nguyen Trai, Thanh Xuan Trung Ward, Thanh Xuan District, Hanoi City); Khai Nguyen Company of an individual named Quan (address unknown) to sell to Nguyen Manh D, Dau Thi Lan Anh (born: 1973; Address: Flat 2111B, Hoang Huy Apartment Building, 275 Nguyen Trai, Thanh Xuan Trung Ward, Thanh Xuan District, Hanoi City); Nguyen Thi Thanh Loan (owner of jewelry store at 65 Ha Trung, Hang Bong Ward, Hoan Kiem District, Hanoi City), Le Huu Son (born: 1975; address: Huong Son Commune, My Duc District, Hanoi City) to enable these individuals to legalize illegal outward remittance, H sold the documents to gain profits.

In the process of acting as a middle man to trade commercial instruments, H opened account of TK Company in Pvcombank in person, made transactions and came into agreements with document buyers to enable them to open accounts of companies in multiple banks: Sacombank, TPBank, SHB, Eximbank, etc. of Hanoi. In addition, H claimed to have received information on beneficiaries (including account number, transfer amount, recipient address, etc.) in foreign countries from Nguyen Manh D then transferred to Nong Tung L to ask Lam to draft contract annexes in order to transfer money abroad.

Regarding prices of commercial instruments and benefits: H claimed to receive from VND 50 million to 70 million/USD 1 million/commercial instrument, sold to buyers and gained VND 3 million to 4 million/USD 1 million, from time to time.

Investigation revealed: During the period from 2015 to 2017, total amount of money illegally transported abroad from commercial instruments sold to buyers by H was VND 2,033,637,873,989. Amount of money illegally gained from illegal cross-border money transfer is VND 265,000,000 (rounded).

Apart from companies mentioned above, H also claimed to have purchased and used TG Company documents of Nguyen Van A to transfer an amount of money abroad. However, investigation files lacked evidence to determine criminal responsibility of A and H regarding this company.

At investigating authority and court, defendants An The A, Nguyen Manh D, Nguyen Quoc H and Nguyen Van A had fundamentally admitted all offences stated above.

In additional, Nguyen Van A stated: A agreed with Dinh Thi N to receive payment for documents via N’s foster child, Trinh Diem C. However, since A had not met Chi, A did not receive the money. With respect to Nguyen Manh D, A confirmed to have been paid by D to follow up with customs documents of C2T, HUB and V companies. Apart from these 3 companies, A also followed up with customs documents for 1 more company without remembering which. A was also paid by D with the fees generated from cross-border money transfer but A assumed that D subtracted from the debt that A still owed D. Thus A did not know about the payment rates stated by D and The A.

Via investigation and prosecution processes, defendants Nguyen Van A, Nguyen Manh D, Nguyen Quoc H and An The A asked their families voluntarily submit the illegal revenue, in which: A submitted VND 300,000,000; D and H submitted VND 100,000,000 each; The A submitted VND 10,000,000.

Pursuant to Criminal Judgment No. 89/2019/HSST dated September 6, 2019 of People’s Court of Quang Ninh Province: Hereby declare: Defendants Nguyen Van A, Nguyen Manh D, Nguyen Van H and An The A were guilty of “Illegal outward remittance”. Defendant Nguyen Van A was guilty of “Forgery of seals and documents of agencies and organizations”.

- Pursuant to Clause 3, Clause 4 Article 189; Points a, b, and c Clause 3 Article 341; Points b, s, and r Clause 1 and Clause 2 Article 51; Article 58, Clause 1 Article 54; Article 55 of the Criminal Code: Defendant Nguyen Van A is sentenced to 2 years of imprisonment for “Illegal outward remittance”; 2 years of imprisonment for “Forgery of seals and documents of agencies and organizations”. Defendant Nguyen Van A is enforced to a sentence of 4 years of imprisonment for 2 charges, imprisonment period shall begin from the date on which the defendant is arrested for sentence enforcement subtracting detention period from April 7, 2018 to August 3, 2018.

- Pursuant to Clause 3, Clause 4 Article 189; Points b and s Clause 1 and Clause 2 Article 51; Article 58; Clause 1 Article 54 of the Criminal Code in Viet Nam.

Defendant Nguyen Quoc H is sentenced to 24 months of imprisonment starting from October 19, 2018.

The First instance court also decided on charges and sentences for Nguyen Manh D and An The A.

In addition, the First instance court also decided on illegal revenue, exhibit disposal, court fees and declaration of appeal rights as per the law.

After the first instance trial on September 16, 2019, defendant Nguyen Van A filed for appeal in order to reduce the sentence, benefit from probation sentence and request for declaration of not guilty for “Forgery of seals and documents of agencies and organizations”.  

On September 19, 2019, defendant Nguyen Quoc H filed for reduced sentence and probation sentence.

At the appellate court, defendant H solicited the trial panel for probation sentence and re-education in local divisions. Defendant A changed the appeal request: The defendant no longer filed for innocence for the charge “Forgery of seals and documents of agencies and organizations” and instead solicited the trial panel to consider reducing the sentence to the lowest level.

After analyzing the case, severity and violations of the defendants, Representative of Supreme People’s Procuracy in Hanoi stated on settling the case as follows: The First instance court sentenced defendant Nguyen Van A  to “Illegal outward remittance” and “Forgery of seals and documents of agencies and organizations” pursuant to Clause 3, Clause 4 Article 189; Points a, b, and c Clause 3 Article 341 of the Criminal Code and “Forgery of seals and documents of agencies and organizations” pursuant to Clause 3, Clause 4 Article 189 of the Criminal Code on a well-grounded and legitimate basis, sentencing the right offender for the right offence. Considering appeal request of defendant A: At the appellate court, defendant A no longer appealed for innocence but admitted all offences as concluded in the first instance judgment. The defendant solicited the trial panel to consider partially reducing penalty imposed on the defendant. Considering defendant A is an individual with good record, multiple mitigating circumstances and no aggravating circumstances: at the appellate trial, defendant A presented invoices for the illegal revenue of VND 1 billion. This is another mitigating circumstance which shows repentance, remorse and urge to remediate consequences of the defendant. However, since the defendant is guilty of 2 charges simultaneously, pursuant to Resolution No. 02/2018 in Viet Nam dated May 15, 2018 of the Council of Justices of Supreme People’s Court, defendant A is ineligible for a probation sentence. Thus, the trial panel is requested to acknowledge and adopt Clause 2 Article 54 of the Criminal Code to partially reduce penalty imposed on defendant A.

Considering appeal request of Nguyen Quoc H: The defendant has a good record, testified with sincerity, showed remorse and submitted part of the illegal revenue prior to the first instance trial; at appellate trial, the defendant asks their family to submit the entire illegal revenue decided by the first instance judgment; the defendant’s family is meritorious to the revolution. The defendant has no aggravating circumstances, multiple mitigating circumstances and defined residence; by the time of the appellate trial, defendant H has been in detention for 14 months and 7 days; this period has helped the defendant to acknowledge severity and nature of the offence and show remorse; thus isolation from society is no longer considered necessary, re-education in local division is enough to reform the defendant into an upright individual and prevent overall crimes. The trial panel is requested to amend the first instance judgment to allow defendant H to benefit from a probation sentence.

JUDGMENT OF THE COURT

Based on documents and evidence publicly examined at the appellate court; based on discussion results that the court and on the basis of thorough and adequate consideration of evidence and opinions of procurators and defendants, the trial panel deems:

 [1] Regarding “Illegal outward remittance” charge of defendant Nguyen Van A: At investigating authority, the first instance trial and appellate trial, defendant Nguyen Van A stated: Due to acquaintance with Nguyen Manh D and An The A, after being contacted by Dinh Thi N for purchase of commercial instruments to legalize transportation of foreign exchange across border for customers of N, Nguyen Van A requested to produce import and export documents in the name of C2T Company managed by D and Anh which were sold to N for illegal outward remittance. A sold to N documents of C2T with an agreed price ranging from VND 800,000 to VND 1,000,000/USD 100,000. A claimed that during the period from April, 2016 to September 2016, A had provided approximately 40 commercial instruments of C2T Company for N then recollected some instruments, another statement claimed that A failed to remember specific number of commercial instruments of C2T Company sold to N. A did not inform D and The A about the amount of money that N had not paid A nor business between A and N. From September, 2016, An The A and D reclaimed C2T Company for self-management.

Regarding the amount of money illegally transported abroad and illegal revenue that defendant Nguyen Van A is responsible for: Even though defendant A claimed to have not received payments for documents from N, D, and H while N, D, and H claimed to have paid A. Based on statements of N, D, H, and relevant individuals and documents in the case files, A shall be responsible as follows:

Regarding selling commercial instruments to Dinh Thi A: A sold to N with the price of VND 1,000,000/USD 100,000 specified on the documents; N claimed to have purchased documents from A with a price ranging from VND 1,000,000 to VND 2,000,000/USD 100,000 specified on the documents. Both parties agreed to pay via Trinh Diem C (foster child of N). Based on bank statements: Total amount of money that A shall be criminally responsible for by selling documents to N in order for N to illegally transfer money abroad is VND 737,426,181,677. Based on the customs declarations in documents sold to N by A: Total amount of money specified on the declarations is USD 80,134,448, on the basis of benefits for the defendants, revenues of A shall be VND 801,344,000, in which, revenue generated from selling C2T documents bearing A’s signatures as Vice Director Nguyen Huu Q is VND 305,344,000 (rounded).

Regarding selling commercial instruments to Nguyen Manh D and An The A: Based on investigation files: Total amount of money illegally transported abroad that Nguyen Van A shall be criminally responsible for by selling documents to enable D and An The A to illegally transport money abroad is VND 1,528,226,253,108; total amount of money A received from selling documents to D and Anh is determined to be VND 2,681,000,000 (rounded), in which, VND 651,463,030 for Company V and VND 2,029,536,970 for other companies; amount of money A received from D and The A as commission for transporting cash abroad is VND 105,000,000.

- Regarding selling commercial instruments to Nguyen Quoc H: Investigation files revealed: Total amount of money transported abroad that Nguyen Van A shall be responsible for by selling commercial instruments of Company V to H who sold to other individuals to illegally transported money abroad is VND 27,176,438,677. With respect to the revenue, H claimed to have purchased documents from A with the price of VND 70 million/USD 1 million even though A claimed to have sold to H with the price of VND 20 million/USD 1 million specified on the declarations. Based on statements of H and A on document price, on the basis of benefits for the defendants, revenues of A shall be determined to be VND 23,631,685.

Thus, total amount of money illegally transported abroad that Nguyen Van A shall be criminally responsible for is VND 2,292,828,873,462; amount of money A received from selling documents of companies which A did not sign as vice director or director is VND 2,630,390,970.

 [2] Regarding “Forgery of seals and documents of agencies and organizations” of defendant Nguyen Van A: From 2015 to 2017, A hired a person named Thanh to produce customs documents showing import and export activities of V, C2T, HUB and Cuong Thinh companies. Then A sold commercial instruments of companies above to Nguyen Manh D, An The A and Nguyen Quoc H (A only sold documents of Company V to H) to allow defendants above to legalize outward remittance; regarding the money, D and An The A had subtracted from the debt that A owed D and An The A.

Among the commercial instruments of 4 companies sold to N, D and The A by A, A forged certain documents of C2T Company (which were sold to N) and Company V (which were sold to D, The A and H) by directly signing blank A4 papers, imitating signatures of Dinh Van H1 and Nguyen Huu Q in sections of Director Dinh Van H1 and Vice Director Nguyen Huu Q and issuing round seal of C2T and V companies. A then passed onto Dinh Thi N, Nguyen Manh D, An The A and Nguyen Quoc H who used said papers as bank account opening request letters, power of attorney, remittance orders, foreign exchange request letters, remittance request letters, annexes, etc. serving money transfer of D, The A and N in banks.

During investigation, prosecution and first instance trial, the defendant claimed that prosecution of People’s Procuracy of Quang Ninh Province against the defendant for “Illegal outward remittance” according to Clause 3 Article 189 of the Criminal Code is accurate and issued no further statements.

Deem at the first instance court and the appellate court today, defendant Nguyen Van A admits the count “Forgery of seals and documents of agencies and organizations” according to Points a, b, and c Clause 3 Article 341 of the Criminal Code. Admission of the defendant conforms to Assessment conclusion No. 5956,5957, 5959, 5960, 5961/C09-P5, dated January 10, 2019 of National Institute of Criminal Sciences;  Assessment conclusion No. 02/GDTL dated January 31, 2018 of Department of Criminal Techniques of Police authority of Quang Ninh Province;  Assessment conclusion No.1109/C09-P5 dated March 21, 2019, 1110/C09-P5 dated March 21, 2019  and 1111/C09-P5 dated March 21, 2019 of National Institute of Criminal Sciences;  Assessment conclusion No. 36/GDTL dated January 31, 2018 of Department of Criminal Techniques of Police authority of Quang Ninh Province, etc. included in the case files.

Thus, total number of documents which Nguyen Van A provided imitated signatures of Nguyen Huu Q for C2T Company, signatures of Dinh Van H1 in Company V, issued red seals and seals of directors or vice directors and sold to Dinh Thi N, Nguyen Manh D and Nguyen Quoc H to legalize procedures for outward remittance is 418 documents; total revenue generated from selling documents bearing forged signatures of C2T and V companies is VND 980,584,715.

At the appellate court today, defendant A is conscious and admits “Forgery of seals and documents of agencies and organizations”; the defendant does not appeal for innocence but claims that the first instance trial was justified in prosecuting the defendant for the 2 charges above and instead solicits for reduced sentences for both charges.

 [3] Regarding offences of defendant Nguyen Quoc H, the trial panel considers: During investigation process, the first instance trial and the appellate trial, defendant Nguyen Quoc H admits: at the end of 2015, H acquainted Dau Thi Lan Anh and knew that Lan Anh needed commercial instruments to illegally transport money across border. H provided Lan Anh with commercial instruments of TT, TC and Khai Nguyen companies. H purchased commercial instruments of TT and TC companies from Thanh and Khai Nguyen Company from Quan. Documents of TT and TC companies were provided at the beginning of 2016 and documents of Khai Nguyen Company were provided in April and May, 2016. Documents were sold to Lan Anh at a price of VND 50 million/USD 1 million, bought from Thanh at a price of VND 40 million/USD 1 million and from Quan at a price of VND 3 million to 4 million each.

In selling commercial instruments to Nguyen Thi Thanh Loan (who is the owner of a jewelry store at 65 Hanoi, Hang Bong Ward, Hoan Kiem District, Hanoi City): the defendant sold commercial instruments of Khai Nguyen Company at a price of VND 50 million to 60 million/USD 1 million.

Selling commercial instruments with Nguyen Van A: At the beginning of 2015, Son wanted to purchase commercial instruments to transport foreign currency abroad. H requested to purchase commercial instruments of TG Company from Nguyen Van A, however, commercial instruments of this company only permit cross-border transportation of a single item. Then A provided commercial of Company V to H and Son to enable them to transport money across border.

While acting as the middleman, H directly traded and agreed to allow the buyers to open accounts of companies in banks. In addition, H claimed to have received information on beneficiaries (including account number, transfer amount, recipient address, etc.) in foreign countries from Nguyen Manh D then transferred to Nong Tung L to ask Lam to draft contract annexes in order to transfer money abroad.

Thus, during the period from 2015 to 2017, total amount of money illegally transported abroad from commercial instruments sold to buyers by H was VND 2,033,637,873,989. Amount of money illegally gained from illegal cross-border money transfer is VND 265,000,000.

People’s Procuracy of Quang Ninh Province prosecutes and the first instance court sentences the defendant Nguyen Quoc H for “Illegal outward remittance” according to Clause 3 Article 189 of the Criminal Code on a well-grounded basis.

 [4] Considering nature and severity of the offences, roles and criminal responsibilities of defendants A and H in the case with multiple accomplices, the appellate trial panel agrees with the first instance trial as follows: Admission of the defendants conforms to exhibits and evidence in the case files: statements of individuals with relevant rights and obligations, statements of defendants that were trialed in the first stage namely defendants Dau Thi Lanh Anh and Dinh Thi N, statements of witnesses, retrieved transfer documents and other documents examined at court. Thus, it is well-grounded to conclude that: During 2015 to the beginning of 2018, in Quang Ninh and Hanoi, defendants Nguyen Van A, Nguyen Manh D, An The A and Nguyen Quoc H collaborated to purchase commercial instruments and illegally transfer Vietnam Dong (which is converted into US Dollar) outside from Vietnam via bank systems in Vietnam.

Nguyen Van A also forged documents in commercial instruments sold to defendants Nguyen Manh D, An The A and Dinh Thi N to enable these individuals to illegally transfer money across border.

Actions of the defendants are dangerous for society, illegal outward remittance violates monetary management policies of the Government; forgery of seals and documents of agencies and organizations of Nguyen Van A violates management, administration and credibility of agencies and organizations. The defendants are well-educated and well-aware of the law but violated the law for personal gain. Thus, the trial panel considers stringent penalties corresponding to nature, severity of the violations and roles of each defendant necessary for educational and general preventive purposes.

Defendant Nguyen Van A forged commercial documents and sold to multiple people to legalize illegal outward remittance (which include defendants in the same case and Dinh Thi N trialed in the first stage) and benefited the most thus shall be responsible as an accomplice for “Illegal outward remittance”. In addition, A is also independently responsible for “Forgery of documents of agencies and organizations” thus shall be the main culprit and subject to a higher sentence than the remaining defendants.

 [5] Regarding aggravating circumstances and mitigating circumstances.

 [5.1] Regarding defendant Nguyen Van A: The defendant has good record and no aggravating circumstances; testify in a sincere manner, at the appellate court, the defendant admits all offences concluded by the first instance judgment and presents invoices of illegal revenue of VND 1 billion under Invoice No. 0001336 dated December 26, 2019 of the Department of Civil Judgment Enforcement of Quang Ninh Province. The followings are mitigating circumstances specified under Points b and s Clause 1 Article 51 of the Criminal Code: defendant Nguyen Van A confesses forgery of seals and documents of agencies and organizations thus adopt Point r Clause 1 Article 51 of the Criminal Code; in addition, defendant Nguyen Van A also confesses illegal outward remittance; adopt Clause 2 Article 51 of the Criminal Code. The defendant has multiple mitigating circumstances and no aggravating circumstances, show remorse and submits illegal revenue thus accept part of the appeal request of defendant Nguyen Van A or request of Supreme People’s Procuracy in Hanoi, adopt Clause 1, Clause 2 Article 54 of the Criminal Code when considering partially reducing sentences of defendant A for “Illegal outward remittance”; defendant Nguyen Van A must also consolidate sentences according to Article 55 of the Criminal Code.

 [5.2] Regarding defendant Nguyen Quoc H, the trial panel deems: after the first instance trial, relatives of Nguyen Quoc H submitted the missing VND 165 according to decisions of the first instance judgment under Invoice No. 0008298 dated October 18, 2019 in Department of Civil Judgment Enforcement of Quang Ninh Province.

The defendant has specific residence and good record prior to the violation; parents who are people with meritorious services to the revolution; no aggravating circumstances and at least 2 mitigating circumstances specified under Points b and s Clause 1 and multiple mitigating circumstances specified under Clause 2 Article 51 of the Criminal Code. Thus, adoption of Article 54 of the Criminal Code to decide the lowest sentence frame of Clause 3 Article 189 of the Criminal code and sentence according to Clause 2 Article 189 of the Criminal Code is well-grounded; On the other hand, until the date of the appellate trial today, defendant H has been in detention for 14 months and 7 days; the detention period has been effective in letting the defendant to be aware and show remorse for his violations thus defendant H will have the possibility to rectify without negatively affecting the prevention and fight against crimes as stated under Article 2 of Resolution No. 02/2018 dated May 15, 2018 of the Council of Justices of Supreme People’s Court guiding implementation of Article 65 of the Criminal Code.

With considered details, defendant H is no longer required to comply with imprisonment sentence but locally rectify according to Article 65 of the Criminal Code under supervision of government and family. Thereby, show leniency of the Government in criminal policies for people with remorse, enable these individuals to train and become helpful individuals for their families and the community.

From statements above, the trial panel accepts appeal request of defendant H as well as arguments of representatives of the Procuracy to allow H to benefit from probation sentence.

Since defendant H is under detention, pursuant to Clause 4 Article 328 of the Criminal Proceeding Code in Viet Nam to grant Nguyen Quoc H freedom immediately at court since the defendant is not detained for any other offence.

 [6] Court fee: Defendants shall not incur first instance court fee as per the law.

For all reasons above,

HEREBY DECIDES

Based on Point b Clause 1, Clause 2 Article 355 and Points c and e Clause 1 Article 357 of the Criminal Proceeding Code;

[1] Accept part of the appeal request of defendant Nguyen Van A; Accept appeal of defendant Nguyen Quoc H; amend First instance criminal judgment No. 89/2019/HSST dated September 6, 2019 of the People’s Court of Quang Ninh Province against defendant Nguyen Van A and Nguyen Quoc H as follows:

Adopt: Clause 3, Clause 4 Article 189; Points a, b, and c Clause 3 Article 341; Points b, s, and r Clause 1 and Clause 2 Article 51; Article 58; Clause 1, Clause 2 Article 54; Article 55 of the Criminal Code.

Defendant Nguyen Van A is sentenced to 1 year of imprisonment for “Illegal outward remittance”; 2 years of imprisonment for “Forgery of seals and documents of agencies and organizations”. Total sentence that defendant Nguyen Van A must comply for 2 charges is 3 years of imprisonment, imprisonment period starts from the date on which the defendant enforces the judgment subtracting from the detention period from April 7, 2018 to August 3, 2018.

Adopt Clause 3 and Clause 4 Article 189; Points b and s Clause 1 and Clause 2 Article 51; Article 58; Clause 1 Article 54 and Article 65 of the Criminal Code.

Defendant Nguyen Quoc H is sentenced to 24 years of imprisonment for “Illegal outward remittance” but is granted probation sentence with probation period of 48 months from the date on which appellate judgment is declared, December 26, 2019.

Defendant Nguyen Quoc H is assigned to People's Committee of Tan Mai Ward, H District, Hanoi City for education supervision during the probation period; Family of the defendant is responsible for cooperating with local government in supervising Nguyen Quoc H.

In case defendant Nguyen Quoc H changes place of residence, comply with regulations an law on complying with criminal judgments. During probation period, Nguyen Quoc H must exercise obligations stated by the Law on Enforcement of Criminal Judgments in Viet Nam, more than 2 instances of intentional violation of the obligations may enable the Court of compels Nguyen Quoc H to serve the imprisonment sentence of this judgment.

 [2] Pursuant to Clause 4 Article 328 of the Criminal Proceeding Code: Grant Nguyen Quoc H freedom immediately at court since the defendant is not detained for any other offence.

 [3] Regarding the illegal revenue:

- Defendant Nguyen Quoc H has adequately submitted VND 265,000,000 of illegal revenue according to the first instance judgment (VND 100,000,000 submitted before the first instance trial and VND 165,000,000 under Invoice No. 0008298 dated October 18, 2019 in Department of Civil Judgment Enforcement of Quang Ninh Province).

- Defendant Nguyen Van A is compelled to submit VND 3,610,975,685, subtracted from the submitted amount of VND 300,000,000 (prior to the first instance trial) and VND 1,000,000,000 under Invoice No. 0001336 dated December 26, 2019 of the Department of Civil Judgment Enforcement of Quang Ninh Province; defendant At must also submit VND 2,310,975,685.

 [4] Regarding court fee: Defendants Nguyen Van A and Nguyen Quoc H shall not incur fees for appellate criminal court.

 [5] Other decisions of the first instance judgment shall enter into effect from the date on which appeal period expires.

Criminal appellate judgment is legally effective from the date of declaration./


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Judgment No. 845/2019/HSPT dated december 26, 2019 for illegal outward remittance and forgery of seals and documents of agencies and organizations

Số hiệu:845/2019/HSPT
Cấp xét xử:Phúc thẩm
Agency issued: Tòa án nhân dân cấp cao
Field:Hình sự
Date issued: 26/12/2019
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    E-mail: info@lawnet.vn
Parent company: THU VIEN PHAP LUAT Ltd
Editorial Director: Mr. Bui Tuong Vu - Tel. (028) 7302 2286
P.702A , Centre Point, 106 Nguyen Van Troi, Ward 8, Phu Nhuan District, HCM City;