Precedent No. 29/2019/AL on property appropriated in the crime of “Robbery”

1. What is a Precedent?

A precedent consists of arguments and rulings in legally effective judgments and decisions of the Court regarding a specific case, selected by the Council of Justices of the Supreme People’s Court and announced by the Chief Justice of the Supreme People’s Court as a precedent for Courts to study and apply in adjudication. (Article 1 of Resolution 04/2019/NQ-HĐTP)

Selected precedents must meet the following criteria:

– Have the value of clarifying legal provisions that are subject to different interpretations, analyzing and explaining legal issues and events, and indicating the principles, guidelines for handling, and legal norms to be applied in a specific case or demonstrating fairness for issues not yet specifically regulated by law;

– Be exemplary;

– Have the value of guiding the uniform application of law in adjudication.

2. Precedent No. 29/2019/AL on property appropriated in the crime of “Robbery”

2.1. Source of the Precedent

Supervisory Review Decision No. 20/2018/HS-GDT dated October 15, 2018, of the Council of Justices of the Supreme People’s Court regarding the “Robbery” case against the defendant: Le Xuan Q, born in 1993.

Location of the precedent’s content:

Paragraph 1 of the “Court’s Opinion” section.

2.2. Overview of the precedent’s content

– Precedent Situation:

The defendant used force to attack the victim, rendering the victim unable to resist, with the aim of not paying the amount of money the defendant was obligated to pay the victim.

– Legal Solution:

In this case, the defendant must be prosecuted for the crime of “Robbery”.

Legal provisions related to the precedent:

Article 133 the Penal Code of Vietnam 1999 (corresponding to Article 168 the Criminal Code of Vietnam 2015).

Keywords of the precedent:

“Robbery”; “Appropriated property”; “Amount the defendant must pay”.

CASE CONTENT:

Around 10:00 PM on January 19, 2015, Le Xuan Q, Tran Xuan L, Nguyen Van L, Truong Sy T, Ha Thi Thu H, and individuals H1, Bin (identities unknown) went to sing at room 203 of Karaoke M in H Ward, L District, Da Nang City, owned by Mr. Nguyen Thanh H. Around 11:30 PM on the same day, everyone left, and Q and Nguyen Van L stayed to pay the bill. Mr. Vo Minh T, assigned by Mr. Nguyen Thanh H to manage the quán, checked room 203 and wrote a bill for 408,000 VND. Le Xuan Q gave 208,000 VND and 01 mobile phone to Mr. Vo Minh T and said he would return the next day to pay the remaining 200,000 VND and redeem the phone, but Mr. Vo Minh T did not accept. At this time, Truong Sy T drove back to pick up Q and Nguyen Van L. Q told the owner that he would go home to get money, while Nguyen Van L and Truong Sy T would stay. Q drove to meet Tran Xuan L and H1. Q told Tran Xuan L to bring Tran Xuan L’s phone to the Karaoke quán as collateral for the remaining amount, but Tran Xuan L disagreed. Q told Tran Xuan L and H1 to return to Karaoke M to chase and beat the staff so that Nguyen Van L and Truong Sy T could escape and evade the remaining 200,000 VND. Tran Xuan L and H1 agreed.

After that, Le Xuan Q drove Tran Xuan L and H1 to a bush near Apartment Complex I in H Ward, L District, Da Nang City, and showed H1 and Tran Xuan L where to retrieve 02 self-made machetes, each about 60 cm long, that Q had hidden earlier. Tran Xuan L and H1 each took a machete and got back on the vehicle to return to Karaoke M.

Around 00:00 AM on January 20, 2015, Le Xuan Q drove to the front of Karaoke M, stopped, and remained in the vehicle, while H1 and Tran Xuan L, carrying machetes, stormed into the quán. Seeing H1 and Tran Xuan L rush in, Nguyen Van L and Truong Sy T fled home. Tran Xuan L and H1, holding machetes, chased the staff inside the quán. Mr. Dinh Duc T and Mr. Vo Minh T ran into the restroom, Mr. Nguyen Thanh H ran upstairs and locked the door, while Mr. Phan Thanh T, the quán’s security guard, ran out onto the street to hide. Tran Xuan L chased to the cashier counter, stopped, and found 02 black Hanet brand tablets in a drawer. Tran Xuan L took the 02 tablets, hid them on his person, and left. H1 also came out, and they got into the vehicle driven by Le Xuan Q to escape. On the way, H1 and Tran Xuan L discarded the 02 machetes along Nguyen Sinh S street (the evidence was not recovered). When all three arrived at Apartment Complex F, Tran Xuan L showed the 02 tablets and said he took them from Karaoke M. Q suggested returning them, but Tran Xuan L said, “If we return them now, I’m afraid the police will catch us.” Hearing this, Le Xuan Q said, “I’m not involved,” and went home to sleep. The next morning, Le Xuan Q returned the vehicle to Tran Xuan L and then fled. As for the 02 tablets, Tran Xuan L sold them to an unknown man for 1,100,000 VND and spent all the money. These two tablets were not recovered.

According to Conclusion No. 33/KL-HDDG dated May 28, 2015, of the Property Valuation Council, the remaining value of the 02 used Hanet 10S tablets was 12,000,000 VND.

During the investigation, Ms. Phan Thi C (Tran Xuan L’s mother) compensated Mr. Nguyen Minh T with 7,000,000 VND. Mr. Nguyen Minh T accepted the money and did not request further compensation.

In Criminal Judgment No. 77/2015/HSST dated December 19, 2015, the People’s Court of Lien Chieu District, Da Nang City, applied point d, clause 2, Article 133; points b, p, clause 1 and clause 2, Article 46; points g and n, clause 1, Article 48 of the 1999 Penal Code, sentencing Le Xuan Q to 07 (seven) years in prison for the crime of “Robbery”.

Additionally, the first-instance Court also sentenced Tran Xuan L to 06 years in prison for the crime of “Robbery,” ruled on court fees, and declared the right to appeal as prescribed by law.

On December 21, 2015, Le Xuan Q appealed, claiming he did not commit the crime of “Robbery.” Tran Xuan L appealed for a reduced sentence.

In Criminal Appellate Judgment No. 78/2016/HSPT dated April 20, 2016, the People’s Court of Da Nang City, based on point b, clause 2, Article 248; point C, clause 1, Article 249 of the 2003 Criminal Procedure Code, decided to amend the first-instance Judgment: Applying clause 1, Article 314; point p, clause 1, Article 46; point g, clause 1, Article 48 of the Penal Code, sentencing Le Xuan Q to 03 (three) years in prison for the crime of “Failure to report a crime” (Additionally, the appellate Court also reduced Tran Xuan L’s sentence to 05 years in prison for the crime of “Robbery”).

In Decision No. 26/2017/KN-HS-VC2 dated April 11, 2017, the Chief Procurator of the High-level People’s Procuracy in Da Nang filed a supervisory review protest against the aforementioned Criminal Appellate Judgment and proposed that the High-level People’s Court in Da Nang annul the part of the sentence against Le Xuan Q in both the appellate and first-instance Judgments for reinvestigation. In Decision No. 61/2017/QĐ-VC2 dated July 27, 2017, the Chief Procurator of the High-level People’s Procuracy in Da Nang amended Supervisory Review Protest No. 26/2017/KN-HS-VC2 dated April 11, 2017, proposing that the High-level People’s Court in Da Nang annul the part of the sentence and the crime charged against Le Xuan Q in the appellate Judgment for re-appellate trial.

In Supervisory Review Decision No. 38/2017/HS-GDT dated September 18, 2017, the Judicial Committee of the High-level People’s Court in Da Nang decided to annul the Criminal Appellate Judgment regarding the crime charged and sentence against Le Xuan Q for re-appellate trial.

In Decision No. 16/2018/KN-HS dated May 22, 2018, the Chief Justice of the Supreme People’s Court protested Supervisory Review Decision No. 38/2017/HS-GDT dated September 18, 2017, of the Judicial Committee of the High-level People’s Court in Da Nang and proposed that the Council of Justices of the Supreme People’s Court conduct a supervisory review trial to annul the aforementioned Supervisory Review Decision and amend Criminal Appellate Judgment No. 78/2016/HSPT dated April 20, 2016, of the People’s Court of Da Nang City regarding Le Xuan Q’s criminal liability.

At the supervisory review hearing, the representative of the Supreme People’s Procuracy agreed with the Chief Justice of the Supreme People’s Court’s supervisory review protest and proposed that the Council of Justices of the Supreme People’s Court decide to annul the Supervisory Review Decision of the Judicial Committee of the High-level People’s Court in Da Nang for re-supervisory review trial.

COURT’S OPINION:

[1] Le Xuan Q’s testimony is consistent with Tran Xuan L’s testimony, and with the testimonies of Mr. Vo Minh T and Mr. Nguyen Thanh H (staff and owner of Karaoke M) regarding the details of the case. There is a basis to determine that after unified discussion, around 00:00 AM on January 20, 2015, Le Xuan Q, along with Tran Xuan L and H1, brought 02 machetes to Karaoke M. Q stood outside, while Tran Xuan L and H1, holding machetes, chased the quán’s staff to rescue Nguyen Van L and Truong Sy T, with the aim of not paying the 200,000 VND karaoke service fee owed previously. Thus, the defendants’ act of using force to attack the victim to free their accomplices, with the aim of not paying the amount of money the defendant was obligated to pay the victim, constitutes all elements of the crime of “Robbery”.

[2] Le Xuan Q did not directly hold a machete to chase the staff of Karaoke M, but Q conspired, prepared weapons, and drove Tran Xuan L and H1 to Karaoke M to commit the crime. Therefore, Q is an accomplice with Tran Xuan L and H1 in the act of robbing 200,000 VND. The first-instance Court’s application of point d (using weapons, means, or other dangerous tricks), clause 2, Article 133 of the 1999 Penal Code to sentence Le Xuan Q for the crime of “Robbery” is in accordance with the law.

[3] After the first-instance trial, Le Xuan Q appealed, claiming he did not commit the crime of “Robbery.” The appellate Court determined that Q and Tran Xuan L did not commit the crime of “Robbery” regarding the 200,000 VND, but instead of declaring Q not guilty of “Robbery” and dismissing the case against Q, it convicted Q of “Failure to report a crime” for Tran Xuan L’s act of robbing two tablets. Thus, the appellate Court’s conviction of Q for an act that had not been investigated or prosecuted violates the provisions of Article 196 of the 2003 Criminal Procedure Code regarding the limits of adjudication.

[4] The supervisory review decision of the Judicial Committee of the High-level People’s Court in Da Nang determined that Le Xuan Q did not commit the crime of “Failure to report a crime,” and thus concluded that the appellate Court’s conviction of Q for this crime was unfounded, requiring the annulment of the crime charged and sentence for re-appellate trial. However, the supervisory review decision did not provide guidance to the appellate Court on which crime Le Xuan Q should be tried for, nor did it comment on whether the first-instance judgment’s decision was well-founded, causing difficulties for the appellate Court when re-adjudicating.

[5] Le Xuan Q was arrested on September 30, 2015, and began serving his sentence at Binh Dien Prison on May 31, 2016. During his imprisonment, Binh Dien Prison and Le Xuan Q did not receive the supervisory review protest from the Chief Procurator of the High-level People’s Procuracy in Da Nang, nor the supervisory review decision from the Judicial Committee of the High-level People’s Court in Da Nang. The “Recipients” section of the protest and supervisory review decision did not indicate that they were sent to the Prison and Q. Therefore, Binh Dien Prison reduced Q’s sentence, and on February 10, 2018, Q completed his 03-year prison sentence. Thus, the Judicial Committee of the High-level People’s Court in Da Nang did not correctly implement the provisions of Article 288 of the 2003 Criminal Procedure Code regarding the delivery of supervisory review decisions.

[6] Regarding Le Xuan Q’s sentence: The first-instance Court’s conviction of Le Xuan Q for the crime of “Robbery” was lawful, but sentencing Q to 07 years in prison for this crime is severe compared to the nature and dangerousness of Q’s criminal act. When re-adjudicating the appeal, the People’s Court of Da Nang City needs to comprehensively and objectively review Q’s criminal act, and also consider that Q has completed a 03-year prison sentence according to Appellate Judgment No. 78/2016/HSPT dated April 20, 2016, to determine an appropriate sentence for Le Xuan Q.

For the above reasons,

DECISION:

Based on Article 382, clause 3, Article 388, and Article 391 of the 2015 Criminal Procedure Code:

1. Annul Supervisory Review Decision No. 38/2017/HS-GDT dated September 18, 2017, of the Judicial Committee of the High-level People’s Court in Da Nang and Criminal Appellate Judgment No. 78/2016/HSPT dated April 20, 2016, of the People’s Court of Da Nang City regarding Le Xuan Q’s criminal liability.

2. Transfer the case file to the People’s Court of Da Nang City for re-appellate trial in accordance with the law.

CONTENT OF THE PRECEDENT

“[1] … the defendants’ act of using force to attack the victim to free their accomplices, with the aim of not paying the amount of money the defendant was obligated to pay the victim, constitutes all elements of the crime of “Robbery””.