Judgment no. 93/2020/HS-ST dated 04/06/2020 on obtaining property by fraud

PEOPLE’S COURT OF HOAN KIEM DISTRICT, HANOI

JUDGMENT NO. 93/2020/HS-ST DATED 04/06/2020 ON OBTAINING PROPERTY BY FRAUD

On June 04, 2020, at the office of the People’s Court of Hoan Kiem District, Hanoi, a first-instance trial is conducted to hear the Criminal Case No. 41/2020/TLST-HS dated March 20, 2020 under the Decision to Bring the Case to Trial No. 41/2020/QDXXST-HS dated May 04, 2020 against:

Nguyen Anh P, born in 1960; residence: No. 06, Alley 68, N Street, D Ward, B District, H City; occupation: freelancer; education level: 10/10; ethnic group: Kinh; sex: male; religion: none; nationality: Vietnamese; father: Mr. Nguyen Quy C (deceased); mother: Mrs. Ta Thi T (deceased); wife: Le Thi Tuyet N and two children born in 1987 and 1991; previous convictions and previous administrative violations: none.

Record: on 22/11/2004, issued with Decision to Press Charges No. 55/KTBC by the investigating authority of the Ministry of Public Security for “Organizing others to flee abroad” provided in Article 275 of the 1999 Criminal Code in Viet Nam; on 09/12/2005, issued with Decision to Suspend Suspect Investigation No. 06/QD-VKSTC-V2 by the Supreme People’s Procuracy.

The defendant has been kept in temporary detention since 05/8/2019; is currently kept in temporary detention at Detention Center No. 1 - Hanoi Police; is present.

- Aggrieved person: Ms. Cao Thi L, born in 1976, residence: Village 7, S Commune, Y District, N Province, present.

- Person with relevant rights and obligations: Mrs. Le Thi Tuyet N, born in 1963, residence: No. 06, Alley 68, N Street, D Ward, B District, H City, present.

THE CASE

According to the documents contained in the case file and the progress at the trial, the contents of the case are summarized as follows:

On 08/7/2019, the investigating authority of the Ministry of Public Security received a denunciation from Cao Thi L, who was a suspect of the “Organizing others to flee abroad” case, which reported that Nguyen Anh P appropriated USD 10.000 to save L from criminal prosecution.

After receiving the denunciation, the investigating authority of the Ministry of Public Security carried out an investigation and verified that:

In 12/2018, Cao Thi L was called up by Vietnam Immigration Department - Ministry of Public Security for her connection with organizing Vietnamese citizens to flee abroad; fearing criminal prosecution, Cao Thi L, via a friend called Tran Thi T1 (born in 1977; residence: S Commune, Y District, N Province), asked Nguyen Anh P to save L from criminal prosecution. P agreed to help L and, according to their agreement, Lan must give P USD 10.000 for the job. On 20/12/2018, Cao Thi L met Nguyen Anh P at Spring Hotel at 145 Le Duan, Cua Nam Ward, Hoan Kiem District, Hanoi to give him USD 6000 and VND 50.000.000, which was witnessed by Tran Thi T1 and Tran Thi B (born in 1976; residence: No. 31H, H Ward, H District). L promised to transfer the remaining USD 2000 to Tran Thi T1 the following day, who would give it to P. On 21/12/2018, L asked Tran Thi B to withdraw VND 80.000.000 borrowed from Le Thi M (born in 1973; residence: S Commune, Y District, N Province) and gave it to Tran Thi T1, who would exchange it to USD and give to P. After exchanging to USD 2000 to give to P, T1 returned the remaining VND 30.000.000 to L. On 06/3/2019, Cao Thi L was called up by the investigating authority and charged with organizing others to flee abroad. Suspecting that P received the money but did not help her, L called P to demand him to return the money and requested to talk with him face to face multiple times but P kept saying he was too busy to meet her. On 17/7/2019, when Cao Thi L visited Nguyen Anh P with Tran Thi B, P said he could not help L and used L’s money for something else, which could not be recovered.

On 17/7/2019, Tran Thi B submitted a CD containing a recording of the talk between L, B and P on 17/7/2019, when L met P to get her money back, to the investigating authority. An examination confirmed that the male voice in the recording belonged to Nguyen Anh P (case file page number 400- 401).

After an examination of Nguyen Anh P’s house at No. 6, Alley 68, N Street, D Ward, B District, H City, 03 debt notes dated 22/01/2019, 04/3/2019 and 19/3/2019 from Vietinbank and 01 pink VIVO mobile phone with 02 SIM cards (case file page number 33- 34) were found and seized.

Official VND - USD rate of the State Bank of Vietnam on 20/12/2018 was 22.785 VND/USD (USD 6000 was equivalent to VND 136.710.000; case file page number 195).

At the investigating authority, Nguyen Anh P admitted to the abovementioned act. After receiving the money, P could not ask anyone for help and did not give the money to anyone to help L. P told Tran Thi T1 he could not help L and made 4 transfers totaling VND 83.000.000 to T1 to return the money to L. After giving the money to T1, P did not tell L and did not ask T1 whether she had given the money to L; they both agreed to say that the money had been used for L’s request and could not be recovered if L asked about the money (case file page number from 216 to 283; from 315 to 321).

Regarding Tran Thi T1, after verification with the government of Yen Thanh District, Nghe An Province, it was confirmed that Tran Thi T1 resided in Germany since late 12/2018 and was not present at her residence. The investigating authority of Hanoi Police has issued a search notice and collected relevant documents; after she is found, Tran Thi T1 will be investigated and handled according to regulations (case file page number 207 to 210).

Regarding the USD 2000 that L asked T1 to give to P and the VND 83.000.000 that P gave to T1 to return to L, as P and L stated they had not received the abovementioned amounts and T1 was absent from her residence, the investigating authority could not record a statement clarifying whether T1 had given the USD 2000 to P and VND 83.000.000 to L or not. Investigating documents did not provide sufficient grounds to determine that Nguyen Anh P had received USD 2000 from L and returned VND 83.000.000 to L.

Regarding the mobile phone confiscated from Nguyen Anh P, the investigation confirmed that the phone belonged to P and was used to contact Cao Thi L and Tran Thi T1.

Regarding civil compensation: on 12/11/2019, Le Thi Tuyet N, P’s wife, (born in 1963; residence: No. 6, Alley 68, N Street, D Ward, B District, H) gave VND 186.500.000 to the investigating authority to compensate for Nguyen Anh P’s act (case file page number 364-365,368).

In Indictment No. 37/CT-VKS dated 18/3/2020 by Hoan Kiem District People’s Procuracy, Nguyen Anh P was prosecuted for “Obtaining property by fraud” according to Point c Clause 2 Article 174 of the Criminal Code.

At the trial, the defendant admitted to all of his offence and requested the Trial Panel to consider reducing his sentence.

Representative of Hoan Kiem District People’s Procuracy upheld the charges and requested the Trial Panel to:

Pursuant to Point c Clause 2 Article 174; Points b and s Clause 1 Article 51; and Clause 2 Article 38 of the Criminal Code in Viet Nam, sentence Nguyen Anh P to from 05 years in prison to 05 years 06 months in prison. The prison term commences from 05/8/2019.

The defendant is a freelancer and has no stable job, thus, he may be exempt from additional penalties according to regulations in Clause 5 Article 174 of the Criminal Code.

Pursuant to Articles 584,585,586 and 589 of the 2015 Civil Code in Viet Nam; Articles 47 and 48 of the 2015 the Criminal Code; and Article 106 of the Criminal Procedure Code in Viet Nam, return VND 186.500.000 to Cao Thi L, which has been given by Le Thi Tuyet N, P's wife. Expropriate the pink VIVO mobile phone; dispose of 02 SIM cards.

JUDGMENT OF THE COURT

Based on the contents of the case, documents in the case file which have been argued at the trial, the Trial Panel finds that:

 [1] Procedural acts and decisions of the investigating authority of Hanoi Police, investigators, and procurator during the investigation, prosecution and hearing are intra vires and compliant with regulations of the Criminal Procedure Code. During the investigation and at the trial, the defendant has no opinion or complaint regarding the procedural acts and decisions of the presiding agency and presiding officers. Thus, procedural acts and decisions of the presiding agency and presiding officers are lawful.

 [2] At the trial, Nguyen Anh P admitted to the acts stated in the indictment. Considering that the defendant’s statement at the trial matches the statement given at the investigating authority and statements of the aggrieved person and witnesses as well as other documents and exhibits of the case,

there are sufficient grounds to conclude that: Nguyen Anh P was a freelancer; he did not have the power to exempt Cao Thi L from criminal prosecution and could not ask anyone for help but still accepted her request and promised to save her from criminal prosecution. On 20/12/2018, Nguyen Anh P appropriated USD 6000 from Cao Thi L (according to exchange rate on 20/12/2018, 22.785VND/USD x 6000 USD = 136.710.000 VND) and VND 50.000.000, VND 186.710.000 in total, at Spring Hotel at No. 145 Le Duan, Cua Nam Ward, Hoan Kiem District, Hanoi.

Nguyen Anh P committed the crime of “Obtaining property by fraud” provided in Point c Clause 2 Article 174 of the Criminal Code.

The indictment of Hoan Kiem District People’s Procuracy, which prosecutes the defendant for the abovementioned crime according to the abovementioned regulations, has sufficient grounds and is lawful.

As the defendant’s acts pose a threat to the society and violate ownership of property of other people; and the defendant has been prosecuted for organizing others to flee abroad, it is necessary to impose a prison sentence upon the defendant for deterrence.

The defendant is a freelancer and has no stable job, thus, he may be exempt from additional penalties according to regulations in Clause 5 Article 174 of the Criminal Code.

 [3] Regarding aggravating circumstances: the defendant has been prosecuted according to Point c Clause 2 Article 174 of the Criminal Code and does not have any aggravating circumstance according to Clause 1 Article 52 of the 2015 Criminal Code.

 [4] Regarding mitigating circumstances: at the investigating authority and the trial, the defendant confessed earnestly and showed remorse; the defendant asked his family to fully return the amount of money that he appropriated to the aggrieved person; at the trial, Cao Thi L requested for his sentence to be reduced; the defendant used to join the army; the defendant’s family provided meritorious services for revolutions; the defendant’s father was awarded a resistance war medal; the defendant’s maternal grandfather and two uncles were martyrs; these circumstances may mitigate the defendant’s sentence.

 [5] Regarding civil liabilities: the amount of VND 186.500.000 given by Le Thi Tuyet N, P’s wife, voluntarily to the investigating authority is compensation on behalf of the defendant; at the trial, Cao Thi L says that she is having cancer treatment and asks to receive the VND 186.500.000; she does not ask for any other compensation; as this amount of money was appropriated from the aggrieved person by the offender, it will be returned to the aggrieved person.

 [6] Regarding the exhibits: expropriate the pink VIVO mobile phone with imei 1: 863689038974057 and imei 2: 863689038974040 seized from the defendant as it is related to his offence; dispose of the 2 old SIM cards.

[7] Regarding court fees: the defendant shall incur the first-instance criminal court fee according to regulations.

Based on the abovementioned facts and matters,

HEREBY DECIDES

1. Declare Nguyen Anh P guilty of “Obtaining property by fraud”:

2. Pursuant to Point c Clause 2 Article 174; Points b and s Clause 1 and Clause 2 Article 51 and Article 38 of the Criminal Code:

Sentence Nguyen Anh P to 36 (thirty-six) months in prison. The prison term commences from 05/8/2019.

3. Pursuant to Article 47 of the 2015 Criminal Code and Article 106 of the 2015 Criminal Procedure Code:

+ Expropriate to state budget: 01 used pink VIVO mobile phone with cracked screen and imei 1: 1863689038974057 and imei 2: 863689038974040. At the time of handover, the phone could not start, thus, it was impossible to inspect its quality and condition.

+ Confiscate and dispose of 02 old mobile phone SIM cards with unknown quality and condition and the numbers 89840...91063 and 89840...50127 written on them.

+ Return VND 186.500.000 (one hundred eighty six million five hundred thousand) to Ms. Cao Thi L.

The abovementioned amount and exhibits are currently retained at Hoan Kiem District civil judgment enforcement authority and in the account of Hoan Kiem District civil judgment enforcement authority according to Receipt No. 05567 dated 30/3/2020 and Exhibit Handover Record dated 27/4/2020.

4. Pursuant to Clause 2 Article 136 of the 2015 Criminal Procedure Code and 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: compel Nguyen Anh P to pay a first-instance criminal court fee of VND 200.000.

5. Regarding right to appeal: pursuant to Articles 331 and 333 of the 2015 Criminal Procedure Code, the defendant, aggrieved persons and persons with relevant rights and obligations have the right to appeal against this Judgment within 15 days after the date of pronouncement.