Verdict No. 20/2018/HS-ST dated March 15, 2018 of blatant appropriation of property

PEOPLE’S COURT OF HAI PHONG CITY

VERDICT NO. 20/2018/HS-ST DATED MARCH 15, 2018 OF BLATANT APPROPRIATION OF PROPERTY

On March 15, 2018, at the office of People’s Court of Hai Phong City, the first instance trial was conducted to hear the case No. 04/2018/TLST-HS dated January 10, 2018 according to the Decision to Bring the Case to Trial No. 77/2018/QDXXST-HS dated February 26, 2018 against the defendant:

Le Van D, born on February 10, 1983 in Hai Duong. Registered permanent residence: HH Street, PT Town, KT District, Hai Duong Province; address: No. 18 HH Street, PT Town, KT District, Hai Duong Province; occupation: driver; educational level: 9/12; ethnicity: Kinh people; gender: male; religion: none; nationality: Vietnamese; his father: Mr. Le Van M and his mother: Nguyen Thi L; his wife is Vu Thi H; 02 children; previous administrative penalty: none, previous conviction: Verdict No. 16/2012/HSST dated June 5, 2012 of the People's Court of KT district, Hai Duong Province, he was sentenced to 30 months in prison for "Abuse of trust to appropriate property"; criminal record: 2 expunged convictions: the case No. 15/2005/HSST dated August 4, 200 of the People's Court of TK district, Hai Duong Province, he was sentenced to 18 months’ imprisonment for "Offences against regulations on control of road vehicles "; case No. 11/2015/HSST dated March 17, 2015 of the People's Court of KD District, Hung Yen Province, he was sentenced to 6 months for "Gambling" (already having had conviction expunged); giving himself up to the police on October 25, 2017, shortly-detained from October 26, 1974 to November 3, 1977 and then long-detained; present.

Aggrieved party:  Mr. S Rusleksachenko, born in 1980; nationality: Russia; address: CG building, DT208 AD, AD District, Hai Phong City; absent. Interpreter: Mrs. Vu Thi Kieu N1 – Immigration and Emigration Department – Public Security of Hai Phong City; absent.

Witnesses:

1. Mr. La Xuan T; absent.

2. Mr. Pham Van T1; absent.

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:

About 01:30 on October 25, 2017, Le Van D rode a motorbike with license plate 16M5-2648 with La Xuan T (born in 1991, residing in: Hamlet 1, LX Village, KL Commune, KT District, Hai Duong Province) riding pillion on Nguyen Van Linh road from Lach Tray overpass towards Niem bridge. When they came to intersection Nguyen Van Linh - Rao 2 bridge, they met Mr. S (born in 1980, a Russian citizen) who walked a motorbike in the same direction. D stopped his bike and helped S to push S’s bike. On arrival at 394 Nguyen Van Linh Street, Du Hang Kenh Ward, Le Chan District, Hai Phong City, T and D signaled Mr. S to stop to buy gasoline. Returning after buy gasoline, T and D did not see Mr. S anywhere, so they poured gasoline into the S’s bike and used their bike key to unlock the S’s bike but the key was unluckily broken. When S came back, discovering that the bike cannot start, Mr. S and D and T repaired it. While the bike was being repaired, Mr. S talked loud and expressed his anger. Mr. S took out his white Iphone 6S brand, turned on the phone flashlight and gave it to D for shining. Receiving the anger from Mr. S despite of the help to push the bike and repaired the bike, D intended to appropriate that phone. D turned off the flashlight, put the phone into his pocket, signaled T to jump on the bike and then D and T fled toward An Dong bridge. On the way, D told T that he took Mr. S’s cell phone.

About 11:00 on October 25, 2017, D brought the phone to the mobile store of Mr. Pham Van T1 living at 231, DN Street, CT Ward , NQ District, Hai Phong City to unlock the phone for the purpose of use or resale.

After losing the phone, Mr. S went to the office of Public Security of Du Hang Kenh Ward to report the case and provided the location of the phone.

On October 26, 2017, Le Van D came to the Investigation Agency to give himself up to the police and confess his crime as mentioned above. The Investigation Agency seized the Iphone 6S from the mobile store of Mr. Pham Van T1.

In the Property Valuation Conclusion No. 66/KL-DGTTHS dated October 27, 2017, the Property Valuation Council of Le Chan District concludes that: The phone is Apple branded, Iphone 6S type with the value of VND 4,000,000.

In the Indictment No. 03/CT-VKS-P3 dated January 8, 2018, the People’s Procuracy of Hai Phong City prosecuted the defendant for “Snatching of property” as prescribed in Point d Clause 2 Article 136 of Criminal Code 1999.

At the trial, the defendant D declared that: He recognized that the victim is a foreigner with the language barrier, at night and at a deserted place, the victim cannot chase to catch D, so he appropriated the property and blatantly went away.

At the trial, after the questioning, the Procurator had the point of view as follows: Based on the defendant’s deposition at the trial and other proof available in the case file, the Procurator considers that his act does not meet all of constituents of the offence “Snatching of property”, thus, the Procurator, pursuant to Point c Clause 1 Article 266 of the Criminal Procedure Code 2015, changes the charge against the defendant, requests the Trial Panel to declare the defendant guilty of “Blatantly appropriation of property” as prescribed in Clause 1 Article 137 of Criminal Code 1999 (corresponding to Clause 1 Article 172 of Criminal Code 2015) for the following reasons: When perpetrating the appropriation of property, the defendant D was aware that the aggrieved party is a foreigner who is unable to speak Vietnamese, the incident occurred at night and at the deserted place, and his bike was broken; if the defendant appropriated the property, the aggrieved party was also unable to prevent that act, so the appropriation of the phone was perpetrated publicly without hiding. The appropriated property worth VND 4,000,000 according to the Property Valuation Conclusion.

Therefore, the Procurator requests the Trial Panel: Pursuant to Clause 1 Article 137; point; Point g Clause 1 of Article 48; Point p Clause 1, Clause 2 of Article 46 of the Criminal Code 1999 (corresponding to Clause 1 of Article 172, Point h Clause 1 of Article 52, Point s Clause 1 and Clause 2 of Article 51 of the Criminal Code 2015) to sentence

Le Van D to from 12 months to 18 months in prison. The defendant is exempt from a fine. The defendant has not opinion on the Prosecutor’s change of the charge against him and has no argument. The defendant showed repentance and desire to redeem his faults and said his last words, requesting mitigation of the penalty.

JUDGEMENT OF THE COURT

On the basis of the content of the case, based on the documents available in the case file, which have been litigated at the trial, the Trial Panel shall determine as follows:

- In terms of court procedures:

 [1] Acts and proceedings of the Investigating Agency of Public Security of Hai Phong City, investigators, the People's Procuracy of Hai Phong City, in the course of investigation and prosecution have strictly conformed to competence, order and procedures prescribed in the Criminal Procedure Code. During the investigation process and at the trial, the defendant did not have any comments or complaints about the acts and decisions of the presiding agencies and presiding persons. With regard to the change of charge against the defendant requested by the Procurator at the trial: According to the Indictment against the defendant Le Van D for "Snatching of property" under Point d, Clause 2, Article 136 of the Criminal Code 1999; at the trial, the Procurator concludes that the defendant has committed the offense of "Blatant appropriation of property" under Clause 1, Article 137 of the Criminal Code 1999 (lighter than the prosecuted sentence). The Procurator has justifiable grounds when changing the charge against the defendant with lighter penalty as prescribed in Point c Clause 1 Article 266 of the Criminal Procedure Code. Thus, the acts and proceedings of presiding agencies and presiding persons have strictly complied with the provisions of law.

- With regard to the charge:  Based on the depositions of the defendant, the aggrieved party, and the witness in the case file, in specific:

 [2] + Deposition of Le Van D (case file p.100-116): “While repairing the bike, the foreigner gave me a white Iphone 6 with the flashlight on and asked me to shine the flashlight for S to repair the bike. While shining the flashlight, I thought that I was helping him but he even showed anger to me, thus, I intended to appropriate the phone, and then silently turned off the flashlight, put it into the pocket and jumped on my bike near there, started the engine and then called T and chased away. Seeing me chasing away, T jumped on the bike, riding pillion with me.

Seeing that, the foreigner was only able to get up but not chased after us.”

 [3] + Deposition of the aggrieved party S (case file p. 63-66): “I gave him the phone for about 30 seconds and he took it and ran away, at that time, I was looking at the bike's electrical wire to reconnect it...Standing to the left of the bike, he held the phone and shone the flashlight for me to reconnect the wire, the other person was sitting on the other side of the bike. When I heard the sound of the bike engine, the other person stood up, jumped on their bike and then the bike ran away.”

 [4] + Deposition of the witness La Xuan T (case file p. 136-139): "…The foreigner gave his phone to D and asked D to shine the flashlight for him to repair the bike, after a while, I saw D jumping on his bike, started the bike, I also get on the bike#, the foreigner shouted for help..."

 [5] At the trial, the defendant Le Van D confessed his offense as stated in the Indictment, in conformity with the depositions of the defendant, the aggrieved party, witnesses at the Investigating Agency, the Property Valuation Conclusion and in compatibility with other documents and evidence in the case file, in specific: At 01:30 on October 25, 2017, Mr. S (a Russian citizen) was riding a motorbike towards the intersection Nguyen Van Linh and Rao 2 Bridge when the bike was run out of gasoline and he must walked it. At that time, Le Van D was riding a motorbike, carrying La Xuan T riding the pillion. The, they met Mr. S, regardless of the language barrier; D was able to understand that Mr. S’s was out of gasoline. D and T found a place to buy gasoline; D and T bought VND 20,000 of gasoline at the address 83 TNH from Nguyen Quoc A (Mr. A works as a motorbike repairman and gasoline retailer) and then came back but did not see S anywhere, they only saw the motorbike on the sidewalk. D poured gasoline into the bike and then used his key to unlock the bike but the key was unluckily broken, when Mr. S returned (S also walked to find a place to buy gasoline but failed so he returned to his bike). The key was broken, the only solution then was to remove the electrical wires for direct connection, Mr. S took out his phone, gave it to D and asked D to shine the flashlight for S to connect electrical wires. While fixing the bike, Mr. S said loud and showed his anger, thus D intended to appropriate the phone. D turned off the flashlight, put the phone into his pocket, and jumped on his bike, signaled to T and started the engine. T then jumped on the bike and D rode the bike away.

 [6] In this case, after receiving the phone from the aggrieved party, the defendant D was very calm, turned off the light, put the phone into his pocket, started the engine and rode the bike away, so his act is not considered as using dangerous trick. In addition, the defendant did not act immediately to appropriate the property and quickly escape, so his act does not constitute the offense “Snatching of property". On the other hand, at the trial, the defendant admitted that he was aware that the aggrieved party is a foreigner who is unable to speak Vietnamese, the incident occurred at night and at the deserted place, and the aggrieved party’s bike was broken; if the defendant appropriated the property, the aggrieved party was also unable to prevent that act, so the appropriation of the phone was perpetrated publicly without hiding. The appropriated property worth VND 4,000,000 according to the Property Valuation Conclusion. Therefore, the defendant’s act has enough elements to constitute the offense "Blatant appropriation of property” under Article 137 of Criminal Code. So, the conclusion of the Procurator at the trial is well-grounded and in accordance with the law.

 [7] The nature of the case is less serious, but the defendant's act has infringed upon the foreigner's ownership; adversely affected the social order, social management and resulted in many offenses and other social problems. Therefore, he should be strictly penalized as per the law.

- With regard to determination of sentence bracket:

 [8] The defendant blatantly put the phone into his pocket, got on the bike and chased away as believed that the aggrieved party was unable to chase after him; the appropriated property worth VND 4,000,000. The defendant does not fall under any aggravating circumstances, therefore, only Clause 1 Article 137 of Criminal Code 1999 (corresponding to Clause 1 Article 172 of Criminal Code 2015) will apply.

- With regard to the aggravating circumstances and mitigating circumstances:

 [9] The defendant D has had many previous convictions; among them, there is a conviction for "Abuse of trust to appropriate property” (The case No. 16/2012/HSST dated June 15, 2012 of the People’s Court of KT District, Hai Duong Province) which has not been expunged, this time, the defendant deliberately committed the offense as identified as “recidivism” - this is an aggravating circumstance as prescribed in Point g Clause 1 Article 48 of Criminal Code 1999.

 [10] After committing the offense, the defendant gave himself up to the police, expressed cooperative attitude and showed repentance and desire to redeem his faults. These are the mitigating circumstances as prescribed in Point p Clause 1, Clause 2 Article 46 of Criminal Code 1999. Based on the above analysis, the sentence level for the defendant must be higher than the starting level of the sentence bracket to educate the defendant and general prevention. Since the defendant is a freelance driver, unstable income, has 2 young children, so it is not necessary to impose a fine on him.

 [11] – With regard to civil matters:  Mr. S has received the property and has not asked for anything else, so the Trial Panel does not consider further.

 [12] - With regard to court fees: The defendant has to pay a court fee as per the law. 

Pursuant to documents and evidence mentioned above:

HEREBY DECIDES

- Pursuant to Clause 1 Article 137; Point g Clause 1 of Article 48; Point p Clause 1, Clause 2 Article 46 of the Criminal Code 1999 in Viet Nam (corresponding to Clause 1 of Article 172, Point h Clause 1 of Article 52, Point s Clause 1 and Clause 2 of Article 51 of the Criminal Code 2015 in Viet Nam): Le Van D is sentenced to 15 (fifteen) months in prison for “Blatant appropriation of property”. The prison term commences from October 26, 2017. 

- With reference to court fees:  Pursuant to Article 136 of the Criminal Procedure Code in Viet Nam and the Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 on court fees and charges, exemption, reduction, collection, transfer, management and use thereof: The defendant has to pay VND 200,000 (Two hundred thousand dong) of first instance criminal court fee.

- With reference to right to appeal:  The defendant present at the trial has the right to appeal the Verdict within 15 days from the date of pronouncement. The defendant absent from the trial has the right to appeal the Verdict within 15 days from the date on which the Verdict is received or posted at premises of local authority.