Verdict No. 109/2018/HSST dated april 16, 2018 on espionage and extortion

THE PEOPLE’S COURT OF HO CHI MINH CITY

VERDICT NO. 109/2018/HSST DATED APRIL 16, 2018 ON ESPIONAGE AND EXTORTION

On April 16, 2018, at the head office of the People’s Court of Ho Chi Minh City, a first instance trial is conducted to hear the criminal case No. 105/2018/TLST-HS dated February 12, 2018 under the Decision to Bring the Case to Trial No. 1322/2018/QDXXST-HS dated March 27, 2018 against the defendant:

Nguyen Hoang D; gender: male; born in: 1985, in Ho Chi Minh City; registered permanent residence and address: Street N, Neighborhood C, Ward B, District G, Ho Chi Minh City; educational level: university; occupation: Former police officer (deprived of his military service); father: Mr. Nguyen Anh M (dead) and mother: Mrs. Hoang Thi S; family situation: not married, no child; previous convictions or previous administrative violations: none; detained on October 4, 2016 (present). - Defense lawyer: Nguyen Thanh C of Dong Phuong Limited Law Company of Ho Chi Minh City Bar Association is engaged to defend Nguyen Hoang D (present).

- Aggrieved party:

Mr. Duong Danh K, born in: 1965 (asking for absence in court).

Address: Apartment building S, Ward C, District N, Ho Chi Minh City.

- Person with interests and obligations related to the case: Ms. Nguyen Hoang P, born in: 1987 (present).

Address: Street M, Ward C, District G, Ho Chi Minh City.

THE CASE

The defendant is indicted for criminal offense below by the Supreme People’s Procuracy:

1. Extortion of VND 10,000,000 from Ms. Nguyen Hoang P and VND 10,000,000 from Mr. Duong Danh K.

Nguyen Hoang D, who is a former officer of Team C, Division B, Bureau of Technical Services affiliated to Ministry of Public Security, had been on leave from August 29, 2016 to September 26, 2016. At around 20:00 on September 18, 2016, Nguyen Hoang D went to the headquarters in Ho Chi Minh City, came to the office to get a blank CD in the file cabinet of Mr. Le Van K, Vice Leader of Team C, then accessed to Team C's local computer network and copied from Ms. Doan Thi T's computer the documents on the list of confidential documents (phone numbers, email addresses) currently under management of Bureau of Specialized Practices affiliated to the Ministry of Public Security in collaboration with the Bureau of Technical Services to bring them to Cambodia to gamble, if losing all the money, he would sell this document to gamble.

Around 06:00 on September 19, 2016, Nguyen Hoang D hid a CD in his body and rode his Airblade motorbike to Pham Minh S's pawn shop on Street H, Ward T, District M, Ho Chi Minh City and then pawned this motorbike to get VND 15,000,000 (fifteen million dong). Nguyen Hoang D took a van from MB border gate, TN province following the border trade road to LM casino in Cambodia to gamble and lost all VND 15,000,000. On the morning of September 21, 2016, Nguyen Hoang D used Ipad and his personal Faceboook account "Nguyen D" to send a message to Facebook account "Nguyen P" (Nguyen Hoang D's younger sister) to ask for VND 5,500,000 (five million five hundred thousand dong) and continued to gamble and lost all the money again.

At 3:27 am on September 22, 2016, Nguyen Hoang D used his iPad and his personal Facebook account to impersonate a "gangster" and send a message to Ms. Nguyen Hoang P, with the content: “Hi. Are you Nguyen Hoang D’s sister? Nguyen Hoang D currently owes us 10 million. If you want Nguyen Hoang D to return today, send the money to the account you sent yesterday. We promise to take Nguyen Hoang D home”. (the message has been translated into Vietnamese with tone marks and the accused confirmed it). Ms. Nguyen Hoang P considered that this was a message from Nguyen Hoang D who impersonated "a gangster". So, she did not send money and reported to the Bureau of Technical Services affiliated to Ministry of Public Security about the criminal offense of Nguyen Hoang D.

On September 23, 24, 2016, Nguyen Hoang D sent a message to Mr. Doan Van H, officer of Team C, Bureau of Technical Services with the content: “Nguyen Hoang D is in Cambodia and owes VND 10,000,000, if you don't have the money to pay off the debt, he can't go home." September 24, 2016, Nguyen Hoang D called and texted Mr. Duong Danh K, Captain of Team C, Bureau of Technical Services affiliated to Ministry of Public Security with the content: “Nguyen Hoang D is in Cambodia and owes 10 million dong, if you don’t have money to repay the debt, Nguyen Hoang D will die, not come back to work”; Nguyen Hoang D required Mr. Duong Danh K to transfer VND 5,000,000 (five million) to Nguyen Hoang D to Nguyen Ngoc Kim L's account at the DA Bank. Concerning that Nguyen Hoang D illegally left the country and possibly carried confidential documents that would affect the team, Mr. Duong Danh K gave Mr. Doan Van H 5,000,000 dong to transfer it to Nguyen Hoang D. After receiving this sum of money, Nguyen Hoang D did not return to Vietnam but continued to gamble and lost all of it.

From September 25 to September 27, 2016, Nguyen Hoang D used the Ipad to take a photo of a CD, then texted and sent the CD image to Mr. Doan Van H and Nguyen Duy T, who are officials of Division B, the Bureau of Technical Services affiliated to Ministry of Public Security with the content: Nguyen Hoang D informed that the CD contains confidential documents of Division B and asked Mr. Doan Van H and Mr. Nguyen Duy T to report to Mr. Duong Danh K for the purpose of forcing Mr. Duong Danh K to continue to transfer to Nguyen Hoang D 5,000,000 VND, if not, Nguyen Hoang D will sell these confidential documents to the Embassy of State T in Cambodia and foreign organizations and individuals or post them on the Internet, will let all die with Nguyen Hoang D. At the same time, Nguyen Hoang D texted to Duong Danh K's mobile phone, with the content: Request Mr. Duong Danh K to keep transferring to Nguyen Hoang D 5,000,000 dong before 15:00 on September 25, 2016 to the account of Nguyen Ngoc Kim L; Nguyen Hoang D also informed Mr. Duong Danh K that Nguyen Hoang D had taken some photos of Mr. Duong Danh K's "Report", if not, Nguyen Hoang D will put these confidential documents on the Internet; or Nguyen Hoang D will transfer it to the Embassy of State T in Cambodia; Nguyen Hoang D threatened that if Nguyen Hoang D died, all would die. Mr. Duong Danh K did not transfer money as required by Nguyen Hoang D but reported it to the leader of the Division. At 13:00 on September 27, 2016, the Cambodia police arrested Nguyen Hoang D and handed him to the Bureau of Technical Services affiliated to Ministry of Public Security; afterwards, Nguyen Hoang D was sent home for self-criticism.

In the morning of September 29, 2016, Nguyen Hoang D went to Pham Minh S's pawn shop to sell the previously mortgaged motorbike for an additional VND 3,550,000 (three million five hundred and fifty thousand dong) and went on to the LM casino to gamble and also lost all the money.

2. Espionage committed by Nguyen Hoang D.

On September 20, 2016, September 22, 2016, September 29, 2016 and September 30, 2016, Nguyen Hoang D continuously used the phone and email address to call and send messages to sell documents that Nguyen Hoang D has gathered with the content: Currently, Nguyen Hoang D has confidential documents of the Ministry of Public Security of Vietnam for sale and requests to contact Nguyen Hoang D but he did not receive any response from the foreign Embassy. Then, on September 30, 2016, Nguyen Hoang D accessed to the Facebook network of foreign individuals and offered confidential documents of the Ministry of Public Security of Vietnam for sale but did not receive a response.

In the morning of October 2, 2016, while Nguyen Hoang D was going to the LM Casino to withdraw 2,000,000 VND (two million dong) from the account of Nguyen Ngoc Kim L, which was lent to Nguyen Hoang D by Mr. Nguyen Van L - Officer of the Bureau of Politics Protection, General Department A, he was arrested by Cambodia Police and handed over to the Vietnam Police.

On the way, Nguyen Hoang D broke the CD and when he got back to the Bureau of Technical Services, he concealed the disk under the working desk of Mr. Vu Van D, Deputy Head of Division B, the Bureau of Technical Services.

The investigation results show that: The document that Nguyen Hoang D has arbitrarily copied onto the CD is a specialized document of the Ministry of Public Security. This document is "Secret" under the list of "State secrets" managed by the Bureau of Technical Services in the field of security and national defense; phone numbers 023720921, 012810928 and email "chinaemb_kh@mfa.gov.cn" that Nguyen Hoang D has contacted to provide "Confidential" documents are phone numbers and emails of foreign organizations set in Cambodia; the foreign individuals with whom Nguyen Hoang D has contacted in order to transfer the "Confidential" documents are individuals working for foreign organizations.

During the investigation process, Nguyen Hoang D sincerely pleaded guilty to the above offense. Nguyen Hoang D's family voluntarily compensated for Mr. Duong Danh K. The investigation body seized 2,000,000 VND in Nguyen Ngoc Kim L's account and returned it to Nguyen Van L.

In the Charging Document No. 67/CTr-VKSTC-V1 dated October 26, 2017 of the Supreme People's Procuracy, Nguyen Hoang D are prosecuted for: “Espionage” and “Extortion” pursuant to Point c, Clause 1, Article 80; Clause 1, Article 135 of the Criminal Code 1999 (amended in 2009).

At the trial, Nguyen Hoang D has confessed all the crimes as the content of the charge indicted, he only requests the Trial Panel to mitigate the penalty for him.

The representative of Ho Chi Minh City People's Procuracy concluded: Through the questioning results and the evidence, Nguyen Hoang D has committed the crimes: “Espionage” and “Extortion”. As for extortion, he appropriated VND 5,000,000 from Mr. Duong Danh K. Based on the above grounds, propose the Trial Panel to apply Point c, Clause 1, Article 80; Clause 1, Article 135; Points b and p, Clause 1 and Clause 2, Article 46 of the Criminal Code; Pursuant to Resolution 41 and the Criminal Code 2015 (amended in 2017), Point c, Clause 1, Article 110 and Clause 1, Article 170; Points b and s, Clause 1, Article 51 and Article 54 of the Criminal Code sentence Nguyen Hoang D to 12 and 13 years of imprisonment for "Espionage" and 1 to 2 years of imprisonment for "Extortion”. Summing up the penalties for the two above offenses to compel the accused to serve the general sentence of 13-15 years in prison.

Regarding the exhibits seized in the case, the Trial Panel is requested to consider and handle it as per the law according to the record of receipt of exhibits of the Civil Judgment Execution Department of Ho Chi Minh City.

Representation of Nguyen Thanh C, defense lawyer of the defendant:

The lawyer does not argue the count of the crime, but asks the Trial Panel to consider that the penalty imposed on the accused is too heavy.

Firstly, for "Espionage":  The lawyer asked the Trial Panel to consider the "confidentiality" of the documents that defendant Nguyen Hoang D had collected and said that defendant Nguyen Hoang D had taken them to sell in Cambodia to foreign parties, but for the purpose of not fighting against the State of Vietnam# but only in order to get money to satisfy his gambling needs. Nguyen Hoang D has not yet provided these documents to anyone.

Secondly, for “Extortion”:

The lawyer says that in this case, it is clear that the danger level in the crime of "Extortion" and that the starting amount3 is only 5,000,000 VND It is obvious that this behavior is also at the lowest level, so request the Trial Panel consider it in the process of penalty consideration.

Thereby, in case of Nguyen Hoang D, the lawyer proposes the Trial Panel to consider applying Clause 2, Article 80 of the Criminal Code 1999 (amended in 2009), which is still valid in this case as well as the Resolution No. 41/2017/QH14 in Viet Nam to allow defendant Nguyen Hoang D to receive extenuating circumstances at points b, h, i, s, and x for Clause 1, Article 51 of the Criminal Code 2015 (amended in 2017), consider the circumstances, acts and the danger level of criminal acts of Nguyen Hoang in order to impose on Nguyen Hoang D a moderate penalty to give him opportunity to rebuild his life.

The representative of Ho Chi Minh City People's Procuracy, in his/her argument, reserves all the points of impeachment and additional arguments on the nature of the documents that Nguyen Hoang D collected as follows: Based on the expertise conclusion as to the documents, they have been identified as "classified" documents of the State in the police force and also prescribed in Decision No. 13/2010/QD-TTg dated February 12, 2010 by the Prime Minister. Therefore, based on the confidential extent of the documents, the Supreme People's Procuracy is grounded to prosecute the defendant under Point c, Clause 1, Article 80,. thanks to the coordination between the Vietnam Police and the Cambodia Police, his crime was prevented in time and he could not promptly distribute the documents to foreigners.

In the final words, the defendant asked the Trial Panel to reconsider his crime, the defendant felt very regretful for his sins, he lost all his future because of a moment of lack of thought. He was very fortunate that he was stopped in time by the authorities; if not, the defendant would keep his wrongdoing. He wants nothing but the leniency of the Communist Party and the State to give him an opportunity to rebuild his life soon.

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 procurators, defendant, defense lawyer, victims, persons with related rights and obligations. to the case;

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, the Trial Panel shall determine as follows:

 [1] Regarding the procedural acts  and decisions of the Investigation Security Agency of the Ministry of Public Security, Investigators, the Supreme People’s Procuracy and Procurators in the course of investigation and prosecution, they have complied with procedures and taken actions intra vires as prescribed by the Criminal Procedure Code. However, the initial investigation and prosecution process has the following errors:

- Nguyen Hoang D was investigated by the Investigation Security Agency of the Ministry of Public Security and the Supreme People's Procuracy and prosecuted for charge of "Espionage" under Point c, Clause 1, Article 80 of the Criminal Code 1999 in Viet Nam, with the highest penalty is death. Therefore, pursuant to the provisions of Article 57 of the Criminal Procedure Code 2003 in Viet Nam and Article 76 of the 2015 Criminal Procedure Code, a lawyer is required during the investigation and prosecution period. But the investigation body, the Procuracy has not appointed a lawyer to the defendant. This failure is not in compliance with legal proceedings. The court returned the case file for additional investigation and the Supreme People's Procuracy appointed a lawyer for Nguyen Hoang D. These are errors that presiding authorities related to investigation and prosecution should draw experience.

At the trial, the defense lawyer for the defendant presents documents and evidence in accordance with the provisions of law; the defendant pleads guilty of the offense and has no complaint.

 [2] Considering that Nguyen Hoang D, because of gambling, had lost all his money, he committed acts of threatening, intimidating Mr. Duong Danh K's spirit to steal money, at the same time, the defendant had contacted with foreign individuals and organizations in order to provide police agencies' professional documents on the list of "confidential" documents that the defendants have copied onto CDs from stolen information stored in computers of the police office where he has worked in order to sell these documents to foreign organizations and agencies for money to gamble. He was arrested when these documents had been not sold. Thus, there are sufficient grounds to conclude that Nguyen Hoang D has committed the crimes of "Espionage" and "Extortion”. Crime and punishment are specified in Article 80; Article 135 of the Criminal Code 1999 (amended in 2009) The defendant has committed acts of using threatening or intimidating messages against Mr. Duong Danh K for the purpose of appropriating property and actually seized Mr. Duong Danh K's VND 5,000,000, this act falls into the cases specified in Clause 1, Article 135 of the Criminal Code. In particular, the defendant has collected documents on the list of classified documents to provide for foreign organizations and agencies in the cases prescribed at Point c, Clause 1, Article 80 of the Criminal Code. For acts of extorting money from Ms. Nguyen Hoang P, as indicated by the Charging Document; through questioning and evidence verification at the trial, Ms. Nguyen Hoang P affirms that when receiving the defendant's messages, Ms. Nguyen Hoang P was not threatened or intimidated mentally because she knew that the they were entirely made-up stories, thus, she did not transfer money at the request of Nguyen Hoang D; this act is not sufficient to conclude that the defendant threatened, intimidated the spirit of Ms. Nguyen Hoang P in order to appropriate property. So, it is required to re-determine the procedural position of Nguyen Hoang P in the proceedings as the one with related obligations and rights.

Because the defendant commits two crimes at the same time, pursuant to Article 50 of the Criminal Code, it is required to combine a common penalty for the defendant.

However, when considering the penalty, the Trial Panel deems that the defendant showed cooperative attitude and repentance, does not have prior criminal record and has no previous conviction; the consequences of the case were prevented in a timely manner, the documents collected by the defendants were not distributed, so the consequences of the case should be considered somewhat limited. As for extortion act, the amount of money appropriated by the defendant has not been great value, has been fully compensated for the victim, the defendant's family is a traditional family in the police sector, the defendant's parents are all awarded many medals in national defense, so applying points b (in the case of extortion), p, Clause 1 and Clause 2, Article 46; Article 47. The Criminal Code for considering a relief of punishment for a defendant at the proposal of the defense lawyer.

Regarding civil liability:

- The victim, Mr. Duong Danh K, received a refund of VND 5,000,000 from the family of Nguyen Hoang D for compensation and gives no further request; Ms. Nguyen Hoang P has no request.

 [3] Handling exhibits of the case:

- 01 (one) Nokia mobile phone; 01 (one) mobile phone with an Iphone brand; 01 (one) Ipad (broken screen) and 01 (one) hard drive which are assets related to the offense and should be confiscated to the state fund.

- 01 (one) sim card and 01 (one) CD (broken disc) are assets related to criminal acts, which are no longer valid and therefore confiscated.

Therefore,

HEREBY DECIDE

Declare Nguyen Hoang D guilty of “Espionage” and “Extortion”.

1/ Pursuant to Article 7 of the Criminal Code 2015 in Viet Nam; Point c, Clause 1, Article 80; Clause 1, Article 135; Article 33; Article 45; Points b and p, Clause 1 and Clause 2, Article 46; Article 47 and Article 50 of the Criminal Code 1999 (amended in 2009) in Viet Nam.

Sentence Nguyen Hoang D 07 (seven) years in prison for: “Espionage” and 01 (one) year in prison for: “Extortion”. The common penalty for two said offenses imposed on Nguyen Hoang D is: 08 (eight) years in prison.

The prison term commences from October 24, 2017.

2/ Pursuant to Article 41 of the 1999 Criminal Code (amended and supplemented in 2009) and based on Clause 2, Article 106 of the Criminal Procedure Code 2015 in Viet Nam.

- Confiscation to the state fund: 01 (one) Nokia mobile phone; 01 (one) mobile phone with an Iphone brand; 01 (one) Ipad (broken screen) and 01 (one) hard drive.

- Confiscation and destruction: 01 (one) sim card and 01 (one) CD (broken disc). (According to the Record of Exhibit Delivery No. 45/18 of November 2, 2017 of Civil Judgment Execution Department of Ho Chi Minh City)

The defendant has to pay VND  200,000 of first instance criminal fee..

The defendant, victims and persons with interests and obligations related to the cases are entitled to appeal against the verdict within 15 days from the date of pronouncement of sentence. The litigant absent from the trial is entitled to appeal against the verdict within 15 days from the date on which the copy of the sentence is received or posted.