Verdict No. 23/2019/HS-ST dated april 16, 2019 on obtaining property by fraud

THE PEOPLE’S COURT OF DONG HOI CITY, QUANG BINH PROVINCE

VERDICT NO. 23/2019/HS-ST DATED APRIL 16, 2019 ON OBTAINING PROPERTY BY FRAUD

On April 16, 2019, at the head office of the People’s Court of Dong Hoi City, a first instance trial is conducted to hear the criminal case No. 06/2019/TLST-HS dated January 11, 2019 under the Decision to Bring the Case to Trial No. 07/2019/QDXXST-HS dated January 11, 2019; under the Decision to adjourn the hearing for the second time No. 04/2019/HSST-QD dated March 27, 2019 against:

Phan Dinh C; born in June 26, 1976 in: Nghe An. Current place of residence: Village 4, Commune BT, District YT, Nghe An Province; occupation: Business; educational level: 7/12; ethnicity: Kinh: gender: Female; religion: None; nationality: Vietnam; father: Phan Thanh C (dead), mother: Nguyen Thi A, born in: 1955; occupation: farmer; 4 siblings, C is the biggest child; wife: Vu Thi T, born in 1975; occupation: farmer; 3 children, the biggest child was born in 1995, the youngest child was born in 2009. Record: Raised by the family, quit studying at grade 7 and has lived in Nghe An. In 2001, he joined a guest worker program to Russia, returned home in 2008. In November 2015, he established the CVB single-member limited liability company (hereinafter referred to as Company CVB) and has held the position of Director of the company. On September 24, 2018, the Police Investigation Body of YT district, Nghe An province prosecuted the case, prosecuted the accused for "Obtain property by fraud", and then forwarded the case to the Police Investigation Body of Nghe An province for investigation within their competence. Previous convictions, previous administrative violations: None. The accused has been currently detained associated with another case at the Nghe An Provincial Police Detention Center.

* Aggrieved parties:

1. Mr. Hoang Ngoc L, born on October 6, 1969; address: Sub-zone 2, DL town, TH district, Quang Binh province; present.

2. Ms. Nguyen Thi H, born on September 8, 1969; address: Sub-Area 2, DL town, TH district, Quang Binh province; present.

3. Mr. Nguyen Thanh C, born on December 20, 1965; address: Neighborhood PQ, farm town VT, BT district, Quang Binh province; present.

4. Mr. Ho Huu N, born on May 10, 1979; address: Sub-area 5, QH town, QN district, Quang Binh province, present.

5. Mr. Hoang Ngoc T, born on December 20, 1951; address: Sub-zone 1, DL town, TH district, Quang Binh province; absent.

6. Mr. Luu Duc T, born on December 13, 1965; address: QT village, TT commune, BT district, Quang Binh province; present.

- Person with interests and obligations related to the case:

1. Mr. Nguyen The H, born on November 20, 1989; address: hamlet 4, commune LN, city H, Quang Binh province; absent.

THE CASE

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

Phan Dinh Chinh is the Director of Company CVB with its head office in hamlet 4, BT commune, YT district, Nghe An province. CVB Company has the business lines following the business registration at the Department of Planning and Investment of Nghe An province: Activities of centers, consulting agencies of job placement and brokerage; travel agency; tour operator; support services related to tourism promotion and organization; supply of temporary labor; supply and management of labor resources (supply and management of domestic labor sources; supply and management of labor sources to work abroad). On December 1, 2016, the Company was granted a certificate of registration of operation of its representative office by the Department of Planning and Investment of Quang Binh province in hamlet 4, LN commune, H city, Quang Binh province, with Nguyen The H as the head of the representative office.

Although CVB Company was not licensed by the Ministry of Labor, War Invalids and Social Affairs to provide services to send people to work abroad and the Company did not have any documents or contracts associated with any organization entitled to send workers to work abroad. During the time when the Department of Planning and Investment of Quang Binh Province did not issue the certificate of operation registration of the company's representative office in Quang Binh province, Phan Dinh C met many people, gave false information that Chinh's company may send people to work abroad to cheat to appropriate the deposits of 05 people, in particular:

The first time: In September 2016, Mr. Hoang Ngoc L and his wife, Nguyen Thi H, entered Phan Dinh C's company office in City H. Chinh introduced that the Company was launching a guest worker program to Korea, under the collaboration between the Ministry of Labor, War Invalids and Social Affairs of Vietnam and Ministry of Labor of Korea. Chinh guaranteed that they would be sent to Korea to work for the price of USD 16,000. On October 24, 2016, Mr. Hoang Ngoc L paid a deposit of VND 55,000,000 for C to carry out procedures to bring his son Hoang Ngoc H to work in Korea. Ms. H transferred VND 16,000,000 to C to cover the paperwork. On December 26, 2016, C wrote a receipt of deposit in full of VND 71,000,000, and promised that Mr. H would be sent abroad to work before April 2017. In June 2017, Chinh helped H to take the exam in Da Nang but it ended up that H was not on the list and Chinh appropriated such VND 71,000,000. Mr. Hoang Ngoc L requests C to compensate VND 71,000,000.

The second time: In October 2016, Phan Dinh C promised that Mr. Nguyen Thanh C will carry out procedures to send Mr. C’s daughter, Ms. Nguyen Thi Ngoc H, to work in the Federal Republic of D Nguyen Thi Ngoc H. On November 23, 2016, Chinh received the labor export dossier and pledged that until January 15, 2017, Ms. H would be able to be sent abroad to work at a total cost of USD 17,000. Chinh wrote a receipt and actually received a deposit of VND 22,000,000. In due time, Chinh continued to promise that on March 1, 2017, Ms. Huyen would be certainly sent abroad but that promise was broken and he appropriated such money for personal use. Mr. Nguyen Thanh C asks C to pay VND 22,000,000.

The third time: In October 2016, Phan Dinh C promised with Mr. Ho Huu N that the company was having a contract of foreign worker program to Republic S. On November 14, 2016, Chinh received the application, wrote a receipt and drafted a labor export contract to the Republic S for Mr. N for the price of VND 18,000, by May 14, 2017 Mr. Ni would be allowed to leave the country and he received a deposit of USD 1,000 (equivalent to 22,067,000 VND). From December 2016 to May 2017, C continued to promise but did not keep it and appropriated the deposit amount of Mr. N. Mr. N asks C to pay the amount of VND 22,067,000.

The fourth time: In November 2016, through the introduction of his younger brother, Hoang Ngoc L, Mr. Hoang Ngoc T asked Mr. L to bring his son, Hoang Ngoc T, to meet C at CVB Representative Office in LNi Commune, DH to complete the paperwork to work in Singapore. On December 26, 2016, Chinh wrote the commitment and deposit receipt of VND 15,000,000 paid by T, promising to bring him to Singapore to work for a cost of USD 6,000, but in January 2017 he did not keep his promise and then appropriated money for personal use. Mr. Hoang Ngoc T demands compensation of VND 15,000,000 from C.

The fifth time: In January 2017, Mr. Luu Duc T in BT district, Quang Binh province was introduced by Phan Dinh C as the Director of the Company capable of sending workers to work in some countries. Believing in C's introduction, in February 2017, Mr. T handed Nguyen The H - Chief of the representative office, in 2 times, deposit of 3,000 USD (equivalent to VND 66,637,500) and wrote a commitment to complete paperwork to send Mr. Toai’s son, Luu Duc A, to Korea for working at a total cost of USD 11,000. H gave USD 3,000 and documents to C. After promising to help A to pass the Korean language exam but failing to do so, C returned the amount of VND 12,000,000 to Mr. T, and appropriated VND 54,637,500. Mr. T asks C to compensate for the amount of VND 54,637,500.

After appropriating the amount of VND 184,704,500, C escaped from Quang Binh. The Investigation Security Agency of Quang Binh Province issued a search notice. On October 4, 2018, Chinh was arrested and detained by the Police Investigation Body of YT district, Nghe An province on charge of "Obtain property by fraud" in Nghe An province.

During investigation process, the investigation body seized commitments; receipts provided by the aggrieved parties and kept them in the case files. The Expertise Conclusion No. 289 dated April 1, 2018 and No. 399 dated April 24, 2018 of the Criminalistics Department of Quang Binh Police Department concluded that the words on commitments, receipts of money, paper receipts and stamps on seized documents are written, signed by Phan Dinh C as the representative of Company CVB, the seals stamped on the documents are the same.

In the Charging Document No. 08/CT-VKSĐH-KT dated January 9, 2019, the People's Procuracy of Dong Hoi city prosecuted Phan Dinh C to the People's Court of Dong Hoi City for the crime of "Obtain property by fraud" as prescribed at Point e, Clause 2, Article 139 of the 1999 Penal Code.

At the trial, the representative of Dong Hoi City People's Procuracy spoke arraignment, demonstrated and analyzed the nature of the extent of the offense committed by the defendant. Uphold the prosecution decision, request the Trial Panel to judge Phan Dinh C following the entire the Charging Document and consider aggravating and mitigating circumstances for penal liability: Propose the Trial Panel:

To apply Point e, Clause 2 of Article 139; Point p, Clause 1, Article 46; sub-point 1, Point g, Clause 1, Article 48, Article 33 of the Criminal Code 1999 to sentence Phan Dinh C to from 4 to 5 years in prison.

* Regarding civil liability:

The aggrieved parties claim compensation of property that the defendant defrauded but not yet returned. Pursuant to Article 42 of the Criminal Code 1999, Articles 584, 585, and 589 of the 2015 Civil Code in Viet Nam, force Phan Dinh C to pay damages to aggrieved parties, in particular: VND 71,000,000 for Hoang Ngoc L, VND 22,000,000 for Nguyen Thanh C, VND 22,067,000 for Ho Huu N, VND 15,000,000 for Hoang Ngoc T, VND 54,637,500 for Luu Duc T.

- Criminal court fee, first instance civil court fee:  Pursuant to Article 136 of the Criminal Procedure Code 2015 in Viet Nam; Article 21, 23 of Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 on court fees and charges, exemption, reduction, management and use thereof, Section I, II of schedule of court charges and fees: Phan Dinh C has to pay such fee as prescribed.

During the interrogation at the trial, Phan Dinh C admitted all of his crimes in accordance with the Charging Document and requested the Trial panel to consider reducing the penalty for him.

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, aggrieved parties.

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 body of Dong Hoi Police, Investigators, the People’s Procuracy of Dong Hoi city 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. In the course of investigation and at the trial, the defendant and other participants in legal proceedings do not have any opinion or complaint about the procedure and decision of the presiding agencies and presiding officers.

[2] Phan Dinh C claimed to commit the crime in accordance with the Charging Document as prosecuted and the defendant's testimony at the investigation body. The defendant's confession is consistent with statements of the aggrieved parties, the persons with related rights and obligations, and the offense progress. The Trial Panel has sufficient grounds to determine:

From October 2016 to February 2017 in city H, Phan Dinh C with the trick of setting up a company's representative office in Quang Binh, giving false information about the possibility of sending people to work abroad in order to defraud 05 people of VND 184,704,500. Therefore, Phan Dinh Ch shall be criminally responsible for the crime of "Obtain property by fraud" stipulated at Point e, Clause 2, Article 139 of the Criminal Code 1999 in Viet Nam, just as the Procurator Office prosecuted.

[3] Considering the nature, extent of consequences of the acts, aggravating and mitigating circumstances and record of the defendant, it is noted that:

The defendant's offense has directly infringed upon the property rights of another person protected by law, affected the work of the victims, caused disturbance of the peace in city H, and caused confusion in the people. Defendant C is an adult, has social awareness, and has health to work to support himself and his family. But by nature that he likes to benefit from the labor of others without having to work. and he was fully aware of his actions against the law but he still disregarded the consequences. The defendant committed the offense with intentional errors, causing bad public clamor among the people, requiring strict penalty for addressing the defendant' criminal acts. Therefore, the defendant must be strictly judged to isolate him from society for a while so that he can recognize his mistake and rectify it.

However, after deliberation, the Trial Panel also considers that: the defendant also expressed cooperative attitude and showed his repentance and desire to redeem his faults during the investigation process and at the trial. Therefore, it is advisable to apply Point p, Clause 1, Article 46 of the Criminal Code 1999 to partially reduce the penalty for Phan Dinh C.

In the case, Nguyen The H is the head of the representative office of CVB Company in Quang Binh province. During that time, Hieu only carried out procedures, received applications and did not know the defraudment purpose of Phan Dinh C, so he was not considered criminal liability.

 4] Regarding civil liability: The aggrieved parties claim compensation of property that the defendant defrauded but not yet returned. The trial panel finds that the aggrieved parties’ requests are completely legal and compliant with the provisions of law. Pursuant to Article 42 of the Criminal Code 1999, Articles 584, 585, and 589 of the 2015 Civil Code, Phan Dinh C is forced to pay damages to aggrieved parties, in particular: VND 71,000,000 for Hoang Ngoc L, VND 22,000,000 for Nguyen Thanh C, VND 22,067,000 for Ho Huu N, VND 15,000,000 for Hoang Ngoc T, VND 54,637,500 for Luu Duc T.

[5] Regarding first instance criminal fee: Pursuant to Article 136 of the Criminal Procedure Code 2015; Article 21, 23 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 on court fees and charges, exemption, reduction, management and use thereof:

Phan Dinh Chinh has to pay VND 200,000 to the state fund. Therefore,

HEREBY DECIDE

1. Regarding count of crime:

Declare: Phan Dinh C is guilty of “Obtain property by fraud”.

2. Regarding applicable law: Point e, Clause 2 of Article 139; Point p, Clause 1, Article 46; sub-point 1, Point g, Clause 1, Article 48, Article 33 of the Criminal Code 1999

3. Regarding penalty:

Sentence Phan Dinh C to 4 years in prison. The prison term commences from the date of detention for sentence execution.

4. Regarding civil liability:

Pursuant to Article 42 of the Criminal Code 1999, Articles 584, 585, and 589 of the 2015 Civil Code, force Phan Dinh C to pay damages to aggrieved parties, in particular:

VND 71,000,000 for Hoang Ngoc L, VND 22,000,000 for Nguyen Thanh C, VND 22,067,000 for Ho Huu N, VND 15,000,000 for Hoang Ngoc T, VND 54,637,500 for Luu Duc T. In total, Phan Dinh C must pay damages to the aggrieved parties totaling VND 184,704,500.

5. Regarding first instance criminal fee:

Pursuant to Article 136 of the Criminal Procedure Code 2015; Article 21, 23 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 on court fees and charges, exemption, reduction, management and use thereof:

Phan Dinh Chinh has to pay VND 200,000 to the state fund.

The first instance civil court fee payable by Phan Dinh C is VND 9,255,225. From the effective date of the verdict (for cases where the verdict execution agencies have the right to take initiative in verdict execution) or from the date on which the verdict creditor makes a request for the verdict execution (for money to be paid to the verdict debtor) until the verdict execution is complete, the verdict debtors must bear the interest of the remaining verdict amount every month with the interest rate prescribed in Clause 2, Article 468 of the Civil Code 2015.

In case the verdict or court decision is enforced as per regulations in Article 2 of the Law on enforcements of civil verdicts 6, the verdict creditor and verdict debtor are lawfully allowed to reach an agreement on verdict enforcement, request verdict enforcement, be subject to voluntary execution or coercive verdict enforcement in compliance with regulations in Article 7, 9 and 30 of the Law on enforcement of civil verdicts. The effective period of verdict enforcement shall comply within provisions in Article 30 of the Law on enforcement of civil verdicts in Viet Nam.

The defendant and aggrieved parties present at the trial have the right to appeal this verdict within 15 days from the date of first instance verdict (April 16, 2019). Those who are absent from the trial have the right to appeal against the verdict within 15 days from the date on which the copy of the verdict is received or duly served.