Verdict No. 34/2018/HS-PT dated August 29, 2018 on deliberate infliction of bodily harm upon another person

PEOPLE'S COURT OF YEN BAI PROVINCE

VERDICT NO. 34/2018/HS-PT DATED AUGUST 29, 2018 ON DELIBERATE INFLICTION OF BODILY HARM UPON ANOTHER PERSON

On August 29, 2018, at the Office of the People's Court of Yen Bai province, the People's Court of Yen Bai province opened the public appellate hearing of the criminal case No. 52/2018/TLPT-HS dated June 29, 2018 for the defendants Dang Van T and Ha Van B due to the appeal of Mrs. Do Thi L who is the legal representative of the aggrieved party in the first instance criminal verdict No. 06/2018/HS-ST dated May 23, 2018 of People’s Court of District Y, Yen Bai Province.

- Appellees:

1/ Defendant:  Dang Van T – Other name: None - Date of birth: February 8, 1981 in District Y; Registered place of permanent residence and current residence: Village Y1, Commune H, District Y, Yen Bai Province; Occupation: freelance; Education level:  09/12; Ethnicity: Kinh people; Religion: None. His father: Dang Van Ch - born in 1956, his mother: Tran Thi M - born in 1959; his wife: Luong Thi H1, born in 1984 (divorced) and his two children: the eldest child was born in 2004, the younger child was born in 2007. Previous convictions or administrative violations: None. The defendant was arrested and detained from November 26, 2017, currently detained in the remand centre of Public Security of Yen Bai Province (present at the court hearing).

2/ Defendant:  Ha Van B - Other name: None - Date of birth: July 23, 1990 in District Y; Registered place of permanent residence and current residence: Village N, Commune H, District Y, Yen Bai Province; Occupation: freelance; Education level: 12/12; Ethnicity: Tay people; Religion: None. His father: Ha Van N1 - born in 1966, his mother: Vu Thi Nh - born in 1968; his wife: Ha Thiet Th, born in 1994 and his two children: the eldest child was born in 2013 and the younger child was born in 2015. Previous convictions or administrative violations: None. The defendant was arrested and detained from November 26, 2017, currently detained in the remand centre of Public Security of Yen Bai Province (present at the court hearing).

- Aggrieved party:  Mr. Bui Van A, born in 1981 (died)

Place of residence: Village E, Commune H, District Y, Yen Bai Province.

- Legal representative of the aggrieved party who filed an appeal:  Mrs. Do Thi L – born in 1093. Place of residence: Village E, Commune H, District Y, Yen Bai Province. The wife of the aggrieved party. (Present).

- Protector of legitimate rights and interests (hereinafter referred to as protector) of Mrs. Do Thi L:  Mr. Dang Tat C - Lawyer of Dai An Law Office affiliated to Bar Association of Hanoi 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:

About 17 pm on November 25, 2017, Dang Van T was on the way from the wedding party at the house of Mr. Bui Van D to the house of his mother-in-law Ha Thi H2 in Village N, Commune H, District Y to pick up his son Dang Xuan Tr. On the way home, T met the cousin-in-law Ha Van B walking so he stopped to chat with him for a while before keep going home. When Dang Van T approached the intersection next to Mr. Pham Van D’s house gate in Village N, Commune H, the headlight of the car with the license plate No. 21A-033.61 owned by Mr. Bui Van A parked on the street flashed on his face. Mr. A was out of the car at that time but he had still used the high beam headlight which projected the light straight in Dang Van T. Being blinded by the light, T parked the motorbike in front of the car of Mr. A and said “Why did you get off the car without dimming the high beam”, Mr. A answered “I will not dim, I dare you to do it”, leading to a quarrel between them. Hearing the noise, Ha Van B returned and Mr. Pham Van D in the house near there dissuaded them from quarreling and pulled A into his house. Seeing T still cursing him, Mr. A returned and punched in the left eye of T. Sitting on the motorbike, T intended to jump off and hit Mr. A, then Mr. D pushed T in time. While Mr. D was pushing T, Ha Van B showed up, seeing T (his cousin) being beaten by Mr. A, B rushed to grab Mr. A’s collar and threw two consecutive punches on the head and face of Mr. A by his right hand, making Mr. A dizzy and collapse. Seeing Mr. A being beaten, Mr. D helped him to sit up, Dang Van T moved forward and kept throwing 3 more punches on the head and face of Mr. A. At that time, Mr. Pham Van D and his family tried to stop the fighting. Sensing abnormal symptoms and unconsciousness of Mr. A, they rushed Mr. A to the Health Station of Commune H for first aid and then sent him to Polyclinic Hospital of Yen Bai Hospital for emergency aid but Mr. A died thereafter. Dang Van T and Ha Van B went home after beating Mr. A up and were arrested on November 26, 2017.

In the forensic examination findings of the corpse No. 82/TT dated November 29, 2017 of the Center for Forensic Medicine of Yen Bai Province:

+ Key signs found through examination:

-  Bruised upper lip and lower lip.

-  Subdural haemorrhage, haemorrhage + hematomas of ventricles of the brain

-  Heart, liver, lung hyperemia.

+ Causes of death: Subdural hemorrhage, hemorrhage + hematomas of ventricles of the brain.

+ Mechanism of formation of injuries:

-  Bruised upper and lower lips were caused by a blunt instrument with a strong and direct force.

-  Subdural hemorrhage, hemorrhage + hematomas of ventricles of the brain caused by a blunt instrument with a strong and direct force on the head and the face.

First Instance Criminal Verdict No. 06/2018/HSST dated May 23, 2018 of People’s Court of District Y, Yen Bai Province judged:

Pursuant to Clause 3 Article 104; Points b, p Clause 1 Article 46 of the Criminal Code 1999 in Viet Nam.

1. Declare that Dang Van T and Ha Van B are guilty of “Deliberate infliction of bodily harm”.

2. Penalties:

2.1.) Dang Van T is sentenced to 5 years and 6 months in prison; the imprisonment term commences from the date of arrest and detention November 26, 2017.

2.2.) Ha Van B is sentenced to 5 years and 6 months in prison; the imprisonment term commences from the date of arrest and detention November 26, 2017.

3. Civil liability: Pursuant to Article 42 of the Criminal Code 1999; Point c, Clause 1 of Article 591; Article 357; Clause 2 of Article 468 of the Civil Code in Viet Nam:

3.1) Dang Van T is compelled to provide a regular child support to Bui Duc Q, who was born on October 17th, 2002 VND 350,000 per month. (Three hundred and fifty thousand dong) until Q becomes 18 years old or other changes; a regular child support to Bui Quang X, who was born on May 1, 2012 VND 350,000 per month.

 (Three hundred and fifty thousand dong) until X becomes 18 years old or other changes. The period of support commences from December 2017.

3.2) Ha Van B is compelled to provide regular child support to Bui Duc Q, who was born on December 17th, 2002 VND 350,000 per month. (Three hundred and fifty thousand dong) until Q becomes 18 years old or other changes; a regular child support to Bui Quang X, who was born on May 1, 2012 VND 350,000 per month. (Three hundred and fifty thousand dong) until X becomes 18 years old or other changes. The period of support commences from December 2017.

In addition, the First Instance Verdict also determines the delayed interest rate, court fees and the right to appeal to the defendants, the legal representative of the aggrieved party as prescribed by law.

On June 6, 2018, the legal representative of the aggrieved party Mrs. Do Thi L filed an appeal, claiming increased sentences on defendants and regular child support for Bui Duc Q and Bui Quang X.

At the appellate court hearing, Mrs. Do Thi L upheld the appeal, claiming increased sentences imposed on defendants and an increase in child support by VND 1,600,000 per month. Furthermore, the Trial Panel was asked to reconsider the charge in order to lay the charge of “murder” against the defendants.

The representative of the People’s Procuracy of Yen Bai Province expressed the views of the People’s Procuracy on the lawsuit settlement and proposed the Trial Panel: Pursuant to Point b, Clause 1 of Article 355; Point b, Clause 2 of Article 357 of the Criminal Procedure Code in Viet Nam. Accept a partial appeal of the legal representative of the aggrieved party. Amend the First Instance Criminal Verdict No. 06/2018/HSST dated May 23, 2018 of People’s Court of District Y, Yen Bai Province with an orientation as follows: Applying  extenuating circumstances under the provisions of Clause 2, Article 46 of the Criminal Code to defendants: Upholding the charge and sentences against the defendants. Increasing the civil liability for child support in the way that the defendants must support Bui Duc Q and Bui Quang X VND 800,000 to VND 1,000,000 per month. (Each defendant has to support from VND 400,000 to VND 500,000 for each child).

The legal representatives of the aggrieved party did not present any further argument.

The protector of legitimate rights and interests of the aggrieved party: Agreeing with the charge and extenuating circumstances; requesting the Trial Panel to apply extra aggravating circumstances to the defendants: “The offender is determined to commit the crime to the end” and “The crime is of a gangster-like nature”. Increase the sentences against the defendants to 10 to 12 years in prison. With regard to civil liability, the defendants have to provide child support of VND 1,600,000 per month.

Dang Van T and Ha Van B declared their entire offense as declared at the investigating body and at the trial of first instance. The defendants did not argue with the representative of the People’s Procuracy. They disagreed with the protector of aggrieved party because: The defendants had committed crime after the aggrieved party initiated the attack in advance; prior to the attack, there was no feeling of hatred between them, so the defendants were not intentional to take the victim’s life. The Trial Panel is requested to consider compensation levels for civil liability because the defendants have low income and no stable sources of income. The defendants do not agree to the claim for support as required by the legal representative of the aggrieved party.

JUDGMENT OF TRIAL PANEL

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:

 [1] Regarding the legality of the appeal: The appeal of the legal representative of the aggrieved party was submitted within the statutory and valid time limit, so it was accepted by the Trial Panel to hear under the appellate process.

 [2] Regarding offenses: At the appellate hearing, the defendants pleaded guilty. The depositions of the defendants at the appellate trial shall be consistent with their depositions at the investigating bodies and at the first instance court hearing, in conformity with the evidences and documents available in the case file and testimonies of witnesses. Therefore, there are substantial grounds for determining that: On November 25, 2017, being flashed by Bui Van A's car light in the face, Dang Van T had quarrels, scolded Bui Van A and was beaten by Bui Van A. Seeing cousin Dang Van T being beaten by Bui Van A, Ha Van B used his right hand to grab A's collar and used his right hand to throw two punches on A’s head and face. When A collapsed, Dang Van T continued to throw 3 more punches on his head and face, making A comatose and he died on the way to emergency.

The defendants have full capacity for criminal responsibility and know that the act of beating someone is a violation of the law and are fully aware that punching in the face and on the head of another person with their fists will result in serious injury. The acts of the defendants were highly dangerous to society, directly infringed the lives and health of other people protected by law.

The acts of defendants are proximate cause that took the life of Bui Van A. However the defendants and the aggrieved party have not had any grudge or conflict, the acts of defendants were spontaneous, triggered by the attack of the aggrieved party.

The defendants’ objectives were to inflict injuries to the victim only, so the death of the aggrieved party was beyond the subjective consciousness and intention of the defendants. Therefore, the Court of First Instance’s adjudicating and declaring the defendants guilty of "deliberate infliction of bodily harm" as stipulated in Clause 3, Article 104 of the Criminal Code 1999 is appropriate, guilty person was rightly convicted.

 [3] With regard to sentences: The Court of First Instance was right when applying Clause 3 Article 104; Points b, p Clause 1 Article 46 of Criminal Code 1999 to consider the sentences to defendants according to their acts of throwing many punches in the victim's face and on the victim's head, causing the death of the aggrieved party due to subdural hemorrhage, hemorrhage and hematomas of ventricles of the brain and application of extenuating circumstances “The offender expresses cooperative attitude or contrition” and “The offender pays damages or relieves the consequences”. The defendants deliberately committed the same offense, but they have not discussed with each other and only received each other’s will to hit Mr. Bui Van A, so, it is considered as simple complicity, in which both of them are perpetrators who have the same role in the offence. The same sentence was given to both defendants is appropriate.

The First Instance Judgment and documents available all substantiate that the aggrieved party has had fault, but the First Instance Judgment has not applied extenuating circumstances as prescribed in Clause 2 Article 46 of Criminal Code 1999, so it is necessary to apply them. Although the defendants may benefit extenuating circumstances, but such a sentence of 5 years and 6 months seems to be corresponding to the nature and extent of dangerous act committed by the defendant. Therefore, the Appellate Trial Panel will not consider a decrease in sentence to defendants.

 [4] Considering the appeal for increase in sentence and child support filed by the legal representative of the aggrieved party:

When deciding the sentences to the defendants, the Court of First Instance considered aggravating circumstances and extenuating circumstances, faults and nature and extent of dangerous acts committed by the defendants, and nature and roles of defendants in complicity to @ the sentences. At the appellate court hearing, the defendants may benefit additional extenuating circumstances as prescribed in Clause 2 Article 46 of Criminal Code 1999, and incur no more aggravating circumstances. So, the Trial Panel finds no ground to increase the sentences to defendants. Therefore, this appeal is dismissed and the proposal of the representative of the People’s Procuracy of Yen Bai Province at the trial to uphold the sentences indicated in the First Instance Verdict No. 06/2018/HS-ST dated May 23, 2018 of People’s Court of District Y, Yen Bai Province.

With regard to the claim for increase in the child support: The Court of First Instance’s decision to compel the defendants to provide support is in accordance with Point c Clause 1 Article 591 of the Civil Code. However, the decision on a minimum support equal to a half of statutory pay rate pursuant to the Official Dispatch No. 24/1999/KHXX dated March 1999 is not appropriate. The monthly support must be based on the needs of the beneficiaries and financial capacity of the obligee.

According to the minutes of income verification, the defendants earn an average of VND 150,000 per day, equivalent to VND 4,500,000 per month. It is beyond the financial capacity of the defendant to provide monthly support of VND 1,600,000 for a child. Therefore, the Trial Panel decides to establish a fixed monthly support of VND 1,000,000 for Bui Duc Q and Bui Quang X liable by the defendants (each defendant must provide a monthly support of VND 500,000) until the children reach 18 years old or otherwise.

From the foregoing consideration, the Trial Panel deems it necessary to accept the appeal of the legal representative of the aggrieved party to raise the amount of support and change the support method to amend the civil liability in terms of support of the First Instance Verdict No. 06/2018/HS-ST dated May 23, 2018 of People’s Court of District Y, Yen Bai Province.

 [5] At the court hearing, Mrs. Do Thi L made a further request in the appeal, proposing the Trial Panel to consider changing the charge to “Murder”. The further appeal filed by Mrs. L is not accepted by the Trial Panel because it worsens the situation of the defendants and has no justifiable ground.

Opinions of the legal representative of Mrs. Do Thi L on application of criminal liability as the result of “The offender is determined to commit the crime to the end” and “The crime is of a gangster-like nature has no justifiable ground because: According to the testimonies of witnesses and defendants, Mr. Pham Van D dissuaded T and the victim from fighting when they had not picked a fight. When Mr. D was dissuading, the aggrieved party hit T in advance (case file p.2002-203).  So, the defendant T’s reattacking the aggrieved party does not fall under the case that the offender deliberately commits the crime despite being dissuaded. The defendant Ha Van B’s attacking the aggrieved party when seeing the aggrieved party hitting T (his cousin) in advance to save T from being attacked, so it cannot be considered as a gangster-like nature act. Therefore, the appeal of the protector of rights and legitimate interests of Mrs. Do Thi L is rejected by the Trial Panel.

 [6] The defendants and legal representative of the aggrieved party are not liable to the appellate criminal court fees. The legal representative of the aggrieved party is not liable to the appellate civil court fees.

Other decisions of the First Instance Verdict do not have any appeal, so the Trial Panel disregards them and they remain legally effective from the expiry of time limit for the appeal.

Pursuant to documents and evidence mentioned above:

HEREBY DECIDES

Pursuant to Point b, Clause 1 of Article 355; Point b, Clause 2 of Article 357 of the Criminal Procedure Code;

Accept partial appeal of the legal representative of the aggrieved party, Mrs. Do Thi L. Amend the decision on amount and method of child support in the First Instance Verdict No. 06/2018/HS-ST dated May 23, 2018 of People’s Court of District Y, Yen Bai Province as follows:

1. With regard to crime: Declare that Dang Van T and Ha Van B are guilty of “Deliberate infliction of bodily harm”.

2. With regard to sentences:

- Pursuant to Clause 3, Article 104; Points b, p Clause 1, Clause 2 Article 46; Article 53 of Criminal Code 1999, Dang Van T is sentenced to 5 years and 6 months in prison. The prison term commences from the date of arrest and detention on November 26, 2017.

- Pursuant to Clause 3, Article 104; Points b, p Clause 1, Clause 2 Article 46; Article 53 of Criminal Code 1999, Ha Van B is sentenced to 5 years and 6 months in prison. The prison term commences from the date of arrest and detention on November 26, 2017.

3. With regard to civil liability:  Pursuant to Article 42 of the Criminal Code 1999; Point c, Clause 1 of Article 591; Article 357; Clause 2 of Article 468; Article 578 of the Civil Code.

Dang Van T and Ha Van B each is compelled to provide a support for Bui Duc Q, born on October 17, 2002, VND 500,000 per month and a support for Bui Quang X, born on May 1, 2012, VND 500,000 per month. The support duration commences from December 2017 until they reach 18 years old or otherwise.

After the Verdict takes legal effect, from the day on which the legal representative of the aggrieved party, Mrs. Do Thi L requests to execute the sentence, if defendants Dang Van T, Ha Van B have not provided the supports as mentioned above, they shall also be liable to the interest amount of the judgment debt with the interest rate specified in Clause 2 of Article 468 of the Civil Code.

4. With regard to court fees:  The defendants Dang Van T, Ha Van B and legal representative of the aggrieved party are not liable to the appellate criminal court fees. The legal representative of the aggrieved party is not liable to the appellate civil court fees.

Other decisions of the First Instance Verdict which do not have any appeal will remain legally effective from the expiry of time limit for the appeal.

The civil judgment creditor and civil judgment debtor are lawfully allowed to reach an agreement on judgment enforcement, request judgment enforcement, be subject to voluntary execution or coercive judgment enforcement in compliance with regulations in Article 6, 7 and 9 of the Law on enforcement of civil judgments, and the effective period of judgment enforcement shall comply within provisions in Article 30 of the Law on enforcement of civil judgments in Viet Nam.