Precedent No. 01/2016/AL in Vietnam

Precedent No. 01/2016/AL

Adopted by the Council of Judges of the Supreme People’s Court of Vietnam on April 06, 2016, and published according to Decision No. 220/QD-CA dated April 06, 2016, by the Chief Justice of the Supreme People’s Court of Vietnam.

Source of the Precedent:

Cassation Decision No. 04/2014/HS-GDT dated April 16, 2014, of the Council of Judges of the Supreme People’s Court regarding the case “Murder” against the defendant: Dong Xuan Phuong, born in 1975; residing at house number 11/73, Dinh Tien Hoang Street, Hoang Van Thu Ward, Hong Bang District, Hai Phong City; construction worker; son of Mr. Dong Xuan Chi and Mrs. Duong Thi Thong; arrested on June 22, 2007;

Victim: Nguyen Van Soi, born in 1971 (deceased).

Synopsis of the Precedent:

In a case involving accomplices, if it can be demonstrated that the mastermind's subjective intent was merely to hire someone to inflict injuries on the victim without the intention of causing death (the mastermind only requested injuries to the victim’s legs and arms, not to vital body parts that could result in death); the perpetrator also acted in accordance with the mastermind’s request; and the victim's death was beyond the mastermind’s subjective intention, then the mastermind should be held criminally liable for “Intentionally causing injury” with the aggravating circumstance of “causing injury leading to death”.

Legal Provisions Related to the Precedent:

- Points m, n Clause 1 Article 93 of the 1999 Penal Code;

- Clause 3 Article 104 of the 1999 Penal Code.

Keywords of the Precedent:

“Murder”; “Intentionally causing injury”; “Causing damage to the health of others”; “Crimes against life and health”; “Hiring others to inflict injuries”.

CASE DETAILS

Around 3:00 PM on June 21, 2007, the Long Bien District Police, Hanoi received a report of an incident where the victim was found dead at the concrete girder casting area of Thanh Tri bridge construction site located in Group 12, Thach Ban Ward, Long Bien District; the victim was Mr. Nguyen Van Soi (a construction engineer at Joint Stock Company 204 under Bach Dang Construction Corporation). After investigation and verification, the Long Bien District Police urgently arrested Dong Xuan Phuong.

The investigation determined that Mr. Soi and Dong Xuan Phuong worked together at Joint Stock Company 204 under Bach Dang Construction Corporation (responsible for the construction of Thanh Tri bridge). Around February 2007, Phuong got drunk during working hours and was photographed by Soi using a mobile phone, which was reported to the leadership, causing Phuong to hold a grudge against Soi.

On June 14, 2007, Dong Xuan Phuong phoned his friend Doan Duc Lan, born in 1975 (residing at house number 11 C98 Trai Chuoi, Hong Bang District, Hai Phong City) to discuss the aforementioned conflict and hired Lan to retaliate against Soi. Lan replied that he would refer someone else to carry out the task. On the evening of June 17, 2007, Phuong traveled from Hanoi to Hai Phong to meet Lan and Lan’s friend Hoang Ngoc Manh, born in 1982 (also known as Thang; residing in So Dau Ward, Hong Bang District, Hai Phong City). Phuong recounted the conflict and hired Lan and Manh to assault Soi by stabbing the victim’s legs and arms to cause injuries. Phuong asked about the price, and Manh and Lan said it was up to him, so Phuong gave Manh VND 1,500,000. Lan and Manh agreed.

At around 8:00 PM on June 20, 2007, Hoang Ngoc Manh, accompanied by Nam (a friend of Manh with an unknown address), traveled to Hanoi to meet Dong Xuan Phuong and agreed to assault Soi on June 21, 2007. Phuong then handed Manh an additional VND 500,000 for lodging. Around 9:00 AM on June 21, 2007, Phuong led Manh and Nam to the road where Soi would pass to go to a meeting early that afternoon and then returned to the Company. At around 11:00 AM, Manh went to a café at the intersection of National Highway 5 – 1B (owned by Ms. Pham Thi Mien) and rented her mobile phone to call Dong Xuan Phuong to ask for a description of the target and to obtain Soi's mobile phone number; Phuong complied with the request. Around 1:00 PM, Manh again rented Ms. Mien’s mobile phone to call Phuong, confirming that he had identified Soi and would act alone as Nam had left without notice. Phuong agreed.

At around 2:16 PM on the same day, Manh used Ms. Mien’s mobile phone to call and arrange to meet Soi at the concrete girder casting site. When Soi arrived, Manh used a previously prepared knife to stab twice into the back of Soi’s right thigh, causing his death.

According to Forensic Examination Report No. 146/PC21-PY dated July 17, 2007, from the Forensic Technical Department - Hanoi City Police, the victim sustained two wounds on the back of his right thigh. The upper wound penetrated 3 cm into the thigh muscle, while the lower wound cut the femoral artery and vein, causing massive blood loss. Cause of death: irreversible shock due to acute blood loss caused by artery injury.

Additionally, during the investigation, Dong Xuan Phuong also confessed that besides the conflict between himself and Soi, the assault was instigated by Mr. Ngo Van Toan (Deputy Head of the Thanh Tri bridge project management board), who had also previously had conflicts with Soi. The investigation agency took Toan’s statement, but he denied this allegation. The investigation result found no basis to conclude Toan’s involvement in the crime.

Doan Duc Lan and Hoang Ngoc Manh fled, and the investigation agency issued warrants and decided to temporarily suspend the investigation against Doan Duc Lan and Hoang Ngoc Manh until they are apprehended.

During the investigation, employees and Joint Stock Company 204 voluntarily contributed and provided a total of VND 123,000,000 in support to the victim's family, including VND 63,000,000 for funeral expenses and three savings books with a total deposit of VND 60,000,000 for Mr. Soi's family.

Beginning Criminal Judgment No. 164/2008/HSST dated November 17, 2008, of the Hanoi City People's Court applied points n clause 1 Article 93; point p clause 1 Article 46 of the Penal Code; sentenced Dong Xuan Phuong to 17 years in prison for “Murder”.

Phuong was ordered to compensate the victim's family for emotional damages amounting to VND 32,400,000 and provide monthly support for the victim's two children and mother.

After the first-instance trial, the defendant Dong Xuan Phuong appealed for reconsideration of the case.

The victim's legal representative, Ms. Nguyen Thi Thanh, appealed for a harsher sentence and increased compensation for the defendant.

Appellate Criminal Judgment No. 262/2009/HSPT dated May 05, 2009, of the Appellate Court of the Supreme People’s Court in Hanoi, based on clause 1 Article 250 of the Criminal Procedure Code, annulled the superior criminal judgment mentioned above for further investigation under general procedure.

At the Retrial Criminal Judgment No. 167/2010/HSST dated March 31, 2010, the Hanoi City’s People’s Court applied points n clause 1 Article 93; point p clause 1 Article 46 of the Penal Code; sentenced Dong Xuan Phuong to 17 years in prison for “Murder”.

Phuong was ordered to compensate for funeral expenses of VND 34,583,000, emotional damage for the victim’s wife and children totaling VND 39,000,000, and provide monthly support for the victim’s mother and children.

After the retrial, on April 02, 2010, Dong Xuan Phuong appealed for a reduced sentence and reconsideration of the case, claiming insufficient evidence that Manh stabbed Soi to death as Manh had not been apprehended.

On April 13, 2010, the victim's wife, Ms. Nguyen Thi Thanh, appealed for a harsher sentence and increased compensation for the defendant.

At Appellate Criminal Judgment No. 475/2010/HSPT dated September 15, 2010, the Appellate Court of the Supreme People’s Court in Hanoi applied points m, n clause 1 Article 93; point p clause 1 Article 46 of the Penal Code; sentenced Dong Xuan Phuong to life imprisonment for “Murder”; ordered Phuong to compensate for emotional damage with VND 43,800,000 and upheld other compensation decisions.

In Appeal No. 13/KN-HS dated July 22, 2013, the Chief Justice of the Supreme People’s Court requested the Council of Judges of the Supreme People’s Court review the cassation procedure and overturn Appellate Criminal Judgment No. 475/2010/HSPT dated September 15, 2010, concerning the charges, sentence, and appellate trial costs for Dong Xuan Phuong; and transfer the case file to the Appellate Court of the Supreme People’s Court in Hanoi for retrial according to the law.

At the hearing, the representative of the Supreme People’s Procuracy agreed with the Chief Justice’s appeal.

The Council of Judges of the Supreme People’s Court determined:

Based on Dong Xuan Phuong’s confessions during the investigation and at the first-instance and appellate trials; the testimonies and identification results of witnesses regarding those involved in the case; the crime scene examination report; the forensic examination report, and other evidence and documents of the case; there is sufficient basis to conclude that due to personal conflicts, Dong Xuan Phuong hired Hoang Ngoc Manh and Doan Duc Lan to stab Mr. Nguyen Van Soi with the intent to cause injuries as revenge. According to the case file documents, it is established that Phuong's subjective intent was solely to cause injuries to Mr. Soi without intending to take his life or hiring Manh to stab him recklessly, indifferent to any consequences. Therefore, the accused only requested attacks on the legs and arms without asking for attacks on vital parts of the body that could likely be life-threatening if assaulted. When committing the crime, Manh stabbed twice into the victim’s thighs as per Phuong’s request. Manh's criminal actions are unforeseeable in causing death. The victim's death due to irreversible shock from acute blood loss was beyond Dong Xuan Phuong and his accomplices' intent. Dong Xuan Phuong’s conduct falls under the case of intentionally causing injury leading to death, as prescribed in clause 3 Article 104 of the Penal Code. The lower and appellate courts’ ruling of “Murder” against Dong Xuan Phuong was against the law.

For the above reasons, pursuant to clause 3 Article 285 and Article 287 of the Criminal Procedure Code,

DECISION

1. Annul Appellate Criminal Judgment No. 475/2010/HSPT dated September 15, 2010, of the Appellate Court of the Supreme People’s Court in Hanoi regarding the charges, sentences, and appellate trial costs for Dong Xuan Phuong; transfer the case file to the Appellate Court of the Supreme People’s Court in Hanoi for retrial according to the law.

2. Continue to detain Dong Xuan Phuong until the Appellate Court of the Supreme People’s Court in Hanoi re-hears the case.

3. Other decisions of the appellate judgment mentioned above remain in effect.

CONTENT OF THE PRECEDENT

“According to the case file documents, it is established that Phuong's subjective intent was solely to cause injuries to Mr. Soi without intending to take his life or hiring Manh to stab him recklessly, indifferent to any consequences. Therefore, the accused only requested attacks on the legs and arms without asking for attacks on vital parts of the body that could likely be life-threatening if assaulted. When committing the crime, Manh stabbed twice into the victim’s thighs as per Phuong’s request. Manh's criminal actions are unforeseeable in causing death. The victim's death due to irreversible shock from acute blood loss was beyond Dong Xuan Phuong and his accomplices' intent. Dong Xuan Phuong’s conduct falls under the case of intentionally causing injury leading to death, as prescribed in clause 3 Article 104 of the Penal Code. The lower and appellate courts’ ruling of “Murder” against Dong Xuan Phuong was against the law.”

TABLE OF CONTENTS:

1. Precedent No. 01/2016/AL case “Murder”

2. Precedent No. 02/2016/AL case “Dispute over return of property”

3. Precedent No. 03/2016/AL case “Divorce”

4. Precedent No. 04/2016/AL case “Dispute over land use right transfer contract”

5. Precedent No. 05/2016/AL case “Inheritance dispute”

6. Precedent No. 06/2016/AL case “Inheritance dispute”

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