Judgment No. 864/2017/HSPT dated december 19, 2017 on offense of forging seals and documents of organizations

THE SUPERIOR PEOPLE’S COURT IN HANOI

JUDGMENT NO. 864/2017/HSPT DATED DECEMBER 19, 2017 ON OFFENSE OF FORGING SEALS AND DOCUMENTS OF ORGANIZATIONS

On December 19, 2017, at the head office of Superior People’s Court in Ho Chi Minh City, an appellate trial is conducted to hear the criminal case No. 842/2017/HSPT dated November 7, 2017 against Nguyen Xuan N convicted of “Forging seals and documents of organizations” based on the appeal made by the defendant against the First Instance Criminal Judgment No. 102/2017/HSST dated September 11, 2017 of the People’s Court of Hanoi City.

*Appellant:

Nguyen Xuan N, born in 1966; residence: Village 3, Commune S, District Y, Province N; occupation: Director of NTT joint stock company at N; educational level: Grade 10/10; father: Mr. Nguyen Huu G and mother: Mrs. Tran T (both dead); wife: Mrs. Tran Thi H and 06 children; no criminal record or administrative violation; arrested, held in custody and detained from March 14, 2017 to March 23, 2017, subject to residential confinement; appearing in court. Defense counsel of the defendant: Lawyer Nguyen Van D and Pham P, Lawyer Office Z, affiliated to the Bar Association of Province N; not appearing in court.

FACTUAL AND PROCEDURAL BACKGROUND

According to documents in the case file and first instance criminal judgment of the People's Court of Hai Phong city, the content of the case is summarized as follows:

In 1983, for the first time, Nguyen Xuan N applied for issuance of identity card (ID card) and was issued with ID card number 181429437 by the Police of Province A in the name of Nguyen Xuan N, born on July 10, 1966, residing in Village 3, Commune S, District Y, Province A (now N).

In 1995, due to the need to leave abroad but N was borrowing money from a bank, in November 1995, N forged documents to apply for an ID card and was issued with ID No. 182161669 in the name of Nguyen Huu K, born on July 10, 1961, residing in Commune S, District Y, Province N; with the ID card in the name of Nguyen Huu K, N applied for replacement of three ID cards in 1997, 2004 and 2013. Further, Nguyen Xuan N used the ID card in the name of Nguyen Huu K to apply for 04 passports respectively, and used passports to leave Vietnam many times; Nguyen Xuan N also used this ID card to apply for household register, driver's license, business establishment license, and birth certificate for his children.

Next, around October 2010, Nguyen Xuan N hired someone to forge an ID card named Nguyen Xuan N, born on July 10, 1966, with permanent residence registered at Market O, Commune Q, District F, Hai Phong City and use this fake ID card to apply for a passport, and then used this passport to exit and enter 34 times and complete the procedure to be a branch representative of the NTT joint stock company in V.

Exhibits seized include: Exhibits seized include: 01 ID card named Nguyen Xuan N, born on July 10, 1966, registered permanent residence: Market O, Commune Q, District F, Hai Phong City; 01 high school diploma (copy) named Nguyen Xuan N, born on July 10, 1966, registered permanent residence: Commune S, District Y, Province N; application forms for ID cards and passports. During the investigation, the Investigation Police Agency solicits expert assessment and gives a finding that the handwriting in the application forms for ID cards, passports for the person named Nguyen Huu K, residing in Commune S, District Y, Provinces A and Nguyen Xuan N with registered permanent residence at Market O, Commune Q, District F, Hai Phong City and the defendant's handwriting are the same.

At the first instance criminal judgment No. 102/2017/HSST dated September 11, 2017, the People's Court of Hai Phong City entered a verdict: Declare defendant Nguyen Xuan N guilty of "Forging seals and documents of organizations" pursuant to Point b, Clause 2, Clause 4, Article 267, Point p, Clause 1, and Clause 2, Article 46 of the Criminal Code;

Sentence the defendant Nguyen Xuan N 03 (three) years’ imprisonment, the sentence period shall commence from the serving date and the defendant shall be given credit for days spent in confinement from March 14, 2017 to March 23, 2017;

The defendant is imposed a fine of VND 10,000,000.

In addition, the first-instance criminal judgment also decides the handling of exhibits, interest charged on delayed judgment execution, court fees and the right to appeal in accordance with law.

On September 18, 2017, the defendant Nguyen Xuan N made an appeal for commutation of sentence and applied for a suspended sentence.

At the appellate trial, the defendant Nguyen Xuan N kept asking for the commutation of sentence and applying for suspended sentence for the following reasons: The defendant has helped the Investigation Security Agency of Police of Province N detecting and arresting suspects that have organized for others to flee abroad (certified by Deputy Head of Investigation Security Agency of Police of Province N); the Party Committee, the People's Committee of Commune S, District Y, Province N further request the Trial Panel to place him a suspended sentence. In addition, after the first instance trial, the defendant has paid VND 200,000 of first-instance criminal court fee and the fine of VND 10,000,000.

The representative of the Superior People's Procuracy in Hanoi summarizes the content of the case, the disposition of the first-instance judgment, assesses the criminal act, the aggravating and mitigating circumstances of the defendant, and further evaluate new facts provided at the trial such as: The defendant has helped the Investigation Security Agency of Police of Province N detecting and arresting suspects that have organized for others to flee abroad (certified by Deputy Head of Investigation Security Agency of Police of Province N); the Party Committee, the People's Committee of Commune S, District Y, Province N further request the Trial Panel to place him a suspended sentence; besides, after the first instance trial, the defendant has paid VND 200,000 of first-instance criminal court fee and the fine of VND 10,000,000. However, these new circumstances do not fundamentally change the nature of the case, so the Procuracy suggests the Trial Panel to apply Point a, Clause 2, Article 248 of the Criminal Procedure Code to reject the defendant's appeal and affirm the first instance judgment.

Based on the evidence and documents verified at the trial; the results of the oral argument at the trial on the basis of fully and comprehensively examining evidences and opinions of procurator and the defendant.

JUDGEMENT OF THE COURT

 [1] At the appellate court hearing today, defendant Nguyen Xuan N pleads guilty as stated in the first-instance judgment and admits that the first-instance judgment was justly entered without miscarriage of justice; the defendant's statement at the court hearing is consistent with the defendant's testimony at the investigation agency, at the first instance court session, with the evidence taken and completely consistent with other evidence in the case file that the investigating agency has collected. Thus, the Court finds just cause to determine:

The defendant's real name is Nguyen Xuan N, he was born on July 10, 1966; his registered permanent residence is Commune S, District Y, Province N; in 1983, the defendant was issued with ID card number 181429437 by Police of Province A.

In 1995, the defendant established the NTT limited company in N and borrowed money from the bank so the defendant was not allowed to exit Vietnam. In order to leave the country, in 1995, the defendant applied for issuance of an ID card bearing the name of the defendant's brother, Nguyen Huu K, born on July 10, 1961 (the defendant's brother died at a young age). The police of Province N granted the defendant such an ID card and since then, the defendant has used the name Nguyen Huu K.

Through three applications for replacement of ID cards in 1997, 2004, and 2013, the defendant still used the name Nguyen Huu K; passport, household register, driver's license, birth certificate of the defendant's children, as well as the establishment of the defendant's company are all in the name of Nguyen Huu K and the defendant used this ID card to apply for replacement of passport 04 times, then use the issued passport for many entries and exits.

On November 8, 2016, the Investigation Department of the Ministry of Public Security discovered that Nguyen Xuan N has used fake papers, so the case was transferred to the investigation and security agency for clarification. During the investigation, the Investigation Security Agency worked with the Police of Province N and the Ministry of Public Security and reach a consensus that the case was discovered at Hai Phong City Police, so it falls under the jurisdiction of Hai Phong City Police.

Due to the criminal act as mentioned above, the Court of First Instance declared the defendant Nguyen Xuan N guilty of "Forging the seals and documents of organizations" according to the provisions of Clauses 2 and 4, Article 267 of the Criminal Code. This verdict was fair without miscarriage of justice. The defendant's behavior is dangerous to society, directly violates the administrative order of regulatory agencies, causes disorder in residential areas, so it is absolutely necessary to adjudicate the defendant, meeting the requirements for crime prevention in the current context.

 [2] Considering the appeal of the defendant, the Trial Panel finds:

The defendant is not subject to aggravating circumstances; is eligible for mitigating circumstances since he sincerely expressed cooperative attitude and showed his repentance, the defendant's father participated in the revolution war and was awarded medals; he himself is a working-class citizen, never violated the law before, he is currently an chief executive of a small manufacturing company (producing adobe bricks), providing employment for many local people; the defendant's purpose of using the fake papers was only for development of the defendant's company and studying, without any other bad motive.

With the above facts, the First-Instance Trial Panel was right when applied mitigating circumstances specified in Point p, Clause 1, and Clause 2, Article 46 of the Criminal Code to the defendant. However, at the trial today, the defendant presents new facts, showing that the defendant has helped the Investigation Security Agency of Police of Province N detecting and arresting suspects that have organized for others to flee abroad (certified by Deputy Head of Investigation Security Agency of Police of Province N); the Party Committee, the People's Committee of Commune S, District Y, Province N further request the Trial Panel to place him a suspended sentence; besides, after the first instance trial, the defendant has paid VND 200,000 of first-instance criminal court fee and the fine of VND 10,000,000. These are mitigating circumstances specified at Point q, Clause 1, and Clause 2, Article 46 of the Criminal Code.

On the other hand, the defendant's small manufacturing company is now provide employment for some local workers, if the defendant is imprisoned, the defendant's company will go bankrupt and affect their life. Besides, the defendant's offense was partially attributed to the loose management of administrative authorities at that time.

Therefore, the Trial Panel, after comprehensively considering the nature and level of danger to society, the consequences of the defendant's criminal acts and the fact that the defendant is the breadwinner in a family with wife and 06 children, finds that the imprisonment is not necessary.

The Trial Panel finds just cause to impose a suspended imprisonment sentence, with a probation period under supervision of local administration where the defendant resides. This satisfies the requirements both of retribution, deterrence and humanity of the socialist law, and further enable the defendant to rehabilitate to become a beneficial citizen for the family and society.

Summarizing the above analysis, the Appellate Trial Panel finds that, due to new circumstances, the defendant's appeal should be accepted. 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. Since the appeal is accepted, the defendant shall not be liable to the appellate criminal court fee.

Therefore,

Pursuant to point b clause 2 Article 248, point dd clause 1 Article 249 of the Criminal Procedure Code in Viet Nam, the Law on fees and charges; Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the National Assembly Standing Committee, stipulating the court fees and charges, collection, exemption, reduction, management, and use thereof,  Resolution No. 01/2013/NQ-HDTP in Viet Nam dated November 6, 2013 of the Council of Judges of the Supreme People's Court guiding the application of Article 60 of the Criminal Code on suspended sentences.

DISPOSITION

 [1]. Accept a part of the appeal of the defendant Nguyen Xuan N; correct first-instance criminal judgment;

Declare the defendant Nguyen Xuan N guilty of "Forging stamps and documents of organizations";

Pursuant to point b clause 2, clause 4 Article 267; point p, q clause 1, clause 2 Article 46, Article 60 of the Criminal Code. Sentence Nguyen Xuan N to 03 (three) years in prison, all suspended, and 05 (five) years of probation from the date of pronouncement of first instance judgment;

Assign the defendant Nguyen Xuan N to the People's Committee of Commune S, District Y, Province N to supervise and educate during probation period.

Where the probationer changes his/her place of residence, Clause 1 Article 69 of the Law on Criminal Execution in Viet Nam shall apply.

 [2] Confirm that the defendant Nguyen Xuan N has fully paid VND 200,000 of first-instance criminal court fee and has fully paid the fine of VND 10,000,000 (according to the receipt number AA/2014/0001596 dated December 13, 2017 of the Department of Civil Judgment Enforcement in Hai Phong City), in compliance with the first instance criminal judgment No. 102/2017/HSST dated September 11, 2017 of the People's Court of Hai Phong City.

 [3] Defendant Nguyen Xuan N is not required to pay the appellate criminal court fee.

 [4] 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.

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