Precedent No. 30/2020/AL regarding the intentional act of driving a vehicle over the victim after causing an accident

1. What is a Precedent?

Precedents are 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 precedents for Courts to research and apply in adjudication. (Article 1 of Resolution 04/2019/NQ-HĐTP)

Selected precedents must meet the following criteria:

– Have value in clarifying legal provisions that are subject to different interpretations, analyzing and explaining legal issues and events, and indicating 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 value in guiding the consistent application of law in adjudication.

2. Precedent No. 30/2020/AL regarding the intentional act of driving a vehicle over the victim after causing an accident

2.1. Source of Precedent

Appellate Judgment No. 280/2019/HSPT dated May 16, 2019, of the High People’s Court in Hanoi regarding the “Murder” case against defendant Phan Dinh Q, born in 1980.

Location of precedent content:

Paragraphs 2, 3, 4, 5 of the “Court’s Opinion” section.

2.2. Overview of Precedent Content

– Precedent Situation:

After causing a traffic accident to the victim, the defendant stopped the vehicle, got out to check, saw the victim lying under the car, could not determine if the victim was alive or dead, and continued to drive the vehicle over the victim. The consequence was the victim’s death.

– Legal Solution:

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

Legal provisions related to the precedent:

Articles 93, 202 of the Criminal Code of Vietnam 1999 (corresponding to Articles 123, 260 of the Criminal Code of Vietnam 2015, amended and supplemented in 2017).

Keywords of the precedent:

“Traffic accident”; “driving a vehicle over the victim”; “Violation of regulations on road traffic vehicle control”; “Murder”.

CASE CONTENT:

According to the Indictment of the People’s Procuracy of Ha Tinh province, the Criminal First-Instance Judgment of the People’s Court of Ha Tinh province, and the proceedings at the trial, the content of the case is summarized as follows:

At approximately 4:00 PM on May 31, 2016, Phan Dinh Q, holding a Class C driver’s license, was driving a 6-ton truck (license plate 38C-073.05) on National Highway 1A, heading from commune D to commune T. Traveling in the same direction as Q was an electric motorbike (license plate 38MD1-218.54) driven by Hoang Duc P, who was on the pedestrian and non-motorized vehicle lane. When Q drove the car to Km 584 of National Highway 1A in commune T, district A (the intersection with commune T), Q suddenly turned right into the inter-commune road towards the People’s Committee of commune T. At the same time, Hoang Duc P also arrived. Because Q turned the vehicle without careful observation, Q’s car collided with the electric motorbike driven by P, causing the metal frame protecting the air tank on the right side of the car to collide with P’s electric motorbike, pulling P’s electric motorbike under the car. After the collision, Q immediately stopped the car, got out, and walked around to the passenger side of the car to check. He saw a person lying under the car, with their head facing the commune T welcome gate and their feet facing National Highway 1A, their right hand outstretched, and the rear passenger-side wheel of the car pressing on P’s shoulder and neck, with P’s left face touching the road. After seeing P lying in a trapped position in front of the rear wheels of the car, Q observed for nearly a minute, then got back into the car, engaged first gear, and continued to drive forward, and Q’s car ran over the victim’s head, causing the victim to suffer a skull fracture and die.

Regarding the criminal act of defendant Phan Dinh Q, the People’s Court of Ky Anh district, Ha Tinh province, had previously conducted a first-instance trial under the charge of “Violation of regulations on road traffic vehicle control” as prosecuted by the People’s Procuracy of Ky Anh district. However, based on the results of the interrogation at the trial, the first-instance trial panel of the People’s Court of Ky Anh district determined that Q’s criminal act was “Murder” and therefore returned the case file to the People’s Procuracy of Ky Anh district to transfer it to the provincial level for investigation, prosecution, and trial of Phan Dinh Q for “Murder,” because: After driving the car and causing an accident to Hoang Duc P, when Q got out to check, he saw victim P trapped under the car and lying in front of the car’s wheels, which was dangerous. However, Q did not preserve the scene or try to remove the victim from under the car for emergency aid. Instead, Q continued to drive the car forward and accepted that the car would run over the victim lying under it, resulting in Hoang Duc P’s head being crushed by the rear wheel of the car, causing a skull fracture and immediate death. It was determined that Phan Dinh Q had full cognitive capacity to understand that continuing to drive the car was very dangerous to the life of the victim under the car, as stated in many of the defendant’s testimonies during the investigation.

The Scene Investigation Report, made at 5:35 PM on May 31, 2016, in commune T, district A, Ha Tinh province, states:

The scene occurred at Km 548 of National Highway 1A, at the intersection with the road turning into the welcome gate of commune T, district A, Ha Tinh province. Milestone No. 548 of National Highway 1A was taken as a fixed reference point, and the edge of National Highway 1A from South to North was taken as a fixed axis.

Measuring perpendicularly across the fixed reference point from North to South, the tire scuff mark was found at 76.8m. The black tire scuff mark was a straight line, 3.0m long, 0.2m wide, oriented from South to North. From the tire scuff mark to the right edge of the road shoulder was 1.0m, and the end of the tire scuff mark coincided with the right edge of the road shoulder.

Measuring from the end of the tire scuff mark from South to North to the center of the electric motorbike’s rear axle was 1.0m. The electric motorbike lay tilted to the right on the asphalt road within the intersection of National Highway 1A and the road to the People’s Committee of commune T, with its front facing Northeast and its rear facing Southwest. From the center of the electric motorbike’s rear axle to the right edge of the road shoulder was 1.3m, and from the center of the electric motorbike’s front axle to the right edge of the road shoulder was 2.1m.

The center of the electric motorbike’s front axle coincided with the center of the front driver-side axle of Q’s car. The car was positioned at the right edge of the road leading to the People’s Committee of commune T, with its front facing East and its rear facing West. From the center of the front driver-side axle to the right edge of the road shoulder was 38.6m, and from the center of the rear driver-side axle to the right edge of the road shoulder was 35.5m. Measuring from the center of the front driver-side axle of Q’s car from North to South to the center of the broken plastic piece was 0.4m. The broken black plastic piece was 0.43m long and 0.37m wide, and from its center to the right edge of the road shoulder was 0.75m.

Measuring from the center of the broken plastic piece from South to North to the center of the bloodstain was 0.7m. The red bloodstain was 1.3m long and 0.5m wide, located on the asphalt road towards the People’s Committee of commune T. From the center of the bloodstain to the right edge of the road shoulder was 5.3m.

Measuring from the center of the bloodstain from South to North to the center of the victim’s head was 0.4m. The victim was lying on their back with their head facing East and feet facing West on the asphalt road towards the People’s Committee of commune T. From the center of the victim’s head to the right edge of the road shoulder was 5.1m, and from the center of the right heel to the right edge of the road shoulder was 3.7m.

– The Autopsy Report of Hoang Duc P, made at 5:45 PM on May 31, 2016, at Km 548 National Highway 1A, commune T, district A, reflected: Head and face deformed, skull fractured, brain tissue extruded from the skull, cervical vertebrae fractured; left clavicle fractured; abdomen and chest with multiple skin lacerations, abrasions, and bleeding; limbs, genitals, lower abdomen, back, and buttocks showed no injuries.

– Forensic Examination Report No. 74/TgT dated June 5, 2016, by the Forensic Center – Department of Health H concluded: The cause of death of Hoang Duc P was a skull fracture, with the left side of the skull flattened, and the head and face completely deformed. The victim died on the spot.

– The Vehicle Inspection Report for the car reflected: Tire scratches on the outer surface of the front passenger-side wheel, size 40×3.5cm; on the lower metal bar of the metal frame protecting the air tank and battery on the passenger side, 02 scrape marks were found, sizes 64x3cm and 53x3cm, oriented from front to back; the outer contact surface of the rear passenger-side tire had reddish-brown stains (suspected blood), size 32x23cm.

– The Vehicle Inspection Report for the electric motorbike reflected: The plastic footrest cover for the battery compartment was detached from its fasteners, broken and shattered; the left plastic fairing of the vehicle body was missing; the rear right fender was deformed, shifted from right to left, from the rear to the front of the vehicle; the rear axle was broken, deformed, with metal abrasion marks; the metal bar securing the rear fender was bent and deformed; the rear right shock absorber was bent, deformed, with abrasion on the outer surface of the spring; the outer right side of the rear wheel had tire scratches 30x5cm; the right plastic fairing of the vehicle body was scratched and abraded, size 47×3; the tip of the right brake lever was abraded.

– The Asset Valuation Report No. 19/HDDG dated July 29, 2016, by the Asset Valuation Council in criminal proceedings concluded: The total damage to P’s Philips 133S electric motorbike (license plate MD1 218.54) was 2,810,000 VND.

Exhibits include:

– 01 THACO brand truck (license plate 38C-073.05), blue, used.

– 01 Philips 133S electric motorbike (license plate MD1 218.54), used.

During the investigation, Mr. Hoang Manh H (father of victim Hoang Duc P) demanded that the defendant compensate a total of 199,245,000 VND. The defendant Q’s family had already compensated 70,000,000 VND.

In Criminal First-Instance Judgment No. 41/2018/HSST dated November 19, 2018, the People’s Court of Ha Tinh province declared: Phan Dinh Q guilty of “Murder”: Applying Clause 2, Article 93; Points b, Clause 1, Clause 2, Article 46 of the 1999 Penal Code, sentenced: Defendant Phan Dinh Q to 12 (twelve) years in prison. The term of imprisonment is calculated from the date of the defendant’s temporary detention, December 27, 2016.

* Regarding civil liability: Applying Article 42 of the 1999 Penal Code; Articles 307, 604, 605, 606, 610 of the Civil Code; Resolution No. 03/2006/NQ-HDTP dated July 8, 2006, of the Council of Justices of the Supreme People’s Court, ordered defendant Phan Dinh Q to compensate the victim’s family, represented by Mr. Hoang Manh H, with a total amount of 175,455,000 VND (minus 70,000,000 VND already compensated), remaining to compensate 105,455,000 VND (One hundred five million four hundred fifty-five thousand VND).

* Regarding the handling of exhibits: Applying Article 41 of the 1999 Penal Code; Clauses 1, 2, Article 106 of the 2015 Criminal Procedure Code.

– Recover the amount of 200,000,000 VND (Two hundred million VND) from the family of defendant Phan Dinh Q for selling the car (license plate: 38C-073.05), which was the instrument of the crime driven by Phan Dinh Q.

– Return to the family of Mr. Hoang Manh H (P’s father) 01 used Philips 133S electric motorbike (license plate: 38MD1-218.54).

Additionally, the first-instance court also ruled on court fees and informed the defendant, the victim’s legal representative, and those with rights and obligations related to the case of their right to appeal in accordance with legal provisions.

After the first-instance trial:

On November 26, 2018, defendant Phan Dinh Q appealed, claiming innocence, stating that the first-instance court’s conviction for “Murder” was incorrect, and that he only committed the crime of “Violation of regulations on road traffic vehicle control”.

On November 30, 2018, the victim’s legal representative appealed with the content: Requesting an increase in the prison sentence for the defendant, as the first-instance court’s sentence was too lenient.

On November 29, 2018, the parties with rights and obligations related to the case: Mr. Nguyen Tien A (defendant’s father-in-law) and Ms. Nguyen Thi D (defendant’s wife) filed an appeal: Requesting reconsideration of the recovery of 200 million VND as decided by the first-instance court.

On December 17, 2018, the Chief Procurator of the High People’s Procuracy in Hanoi issued Protest Decision No. 06/QD-VC1-HS: Requesting the High People’s Court in Hanoi to apply the aggravating circumstance of “hooliganism” stipulated in Point n, Clause 1, Article 93 of the 1999 Penal Code and increase the prison sentence for the defendant. At the trial, the Procurator instead proposed not to apply the “hooliganism” circumstance but to apply Point q “Committing a crime for a base motive” and increase the prison sentence for the defendant.

At the appellate trial, defendant Phan Dinh Q continued to claim innocence regarding the charge, stating that he did not commit murder but only “Violation of regulations on road traffic vehicle control,” because he did not commit murder, but sometimes he testified that after getting out to check, he saw the victim was already dead.

Representative of the High People’s Procuracy in Hanoi: After examining the legal basis of the first-instance judgment and clarifying through questioning at the trial, it was found that: The first-instance court’s conviction of defendant Q for “Murder” was entirely legally sound. The defendant’s denial of murder was merely an attempt to evade criminal responsibility for a more serious crime. The defendant’s criminal act had a base and despicable motive, as the defendant wanted the victim to be completely dead before continuing to drive. Therefore, it was proposed that the trial panel not apply Point n, Clause 1, Article 93 as stated in the protest, but rather apply Point q “Committing a crime for a base motive” and increase the prison sentence for defendant Q.

The defense counsel for defendant Phan Dinh Q, Lawyer Nguyen Van D, proposed: The appellate court should thoroughly and carefully consider the defendant’s criminal act, so as not to accept the protest of the Chief Procurator of the High People’s Procuracy in Hanoi and the first-instance court’s judgment regarding the charge, and thus not convict defendant Q of murder, but instead convict him of “Violation of regulations on road traffic vehicle control”.

The advocate for the victim: Lawyer Nguyen Khac T, from Law Office A of the Bar Association H, proposed that the appellate trial panel convict the defendant as per the first-instance judgment and accept the protest of the Chief Procurator of the High People’s Procuracy in Hanoi to increase the prison sentence for the defendant.

Based on the documents and evidence in the case file, based on the results of questioning and public debate at the trial, and on the basis of an objective and comprehensive review of all documents, evidence, the Procurator’s opinions, the defendant’s testimony and the defense counsel’s arguments, as well as the statements of the victim’s legal representative and the lawyer protecting the victim’s legal rights and interests, and other parties in the case.

COURT’S OPINION:

[1] During the investigation by the Police Investigation Agency of Ky Anh district and the Police Investigation Agency of Ha Tinh province, as well as the defendant’s testimony at the first-instance trial of the People’s Court of Ky Anh district and at the first-instance trial of the People’s Court of Ha Tinh province, defendant Phan Dinh Q admitted that he was the one who caused the death of Hoang Duc P at approximately 4:00 PM on May 31, 2016, at Km 584 National Highway 1A in commune T, district A, Ha Tinh province, when the defendant was driving a car turning onto the road towards the People’s Committee of commune T. Although defendant Q admitted this, he claimed that his criminal act only constituted “Violation of regulations on road traffic vehicle control” and not “Murder,” because: Although the defendant was the one who drove the car over P’s head, due to his confusion, he mistakenly engaged the wrong gear, and instead of reversing, he drove straight, and he did not intend for the victim to die.

[2] The appellate trial panel found: While driving the car, upon discovering a collision and traffic accident, Q stopped the car to get out and check. When Q saw a victim (later identified as Hoang Duc P) lying in front of the rear right wheels of the car, Q got back into the car and drove straight, causing the rear wheels of Q’s car to run over P’s head, killing P instantly.

[3] Based on the documents and evidence in the case file, such as the testimonies of witnesses including Ms. Duong Thi H, Mr. Nguyen Xuan H, Ms. Pham Thi T, Mr. Hoang Khanh C; as well as the scene diagram, autopsy report, forensic examination conclusion, and especially based on defendant Q’s own initial statements during the investigation, it was found that: During the investigation by the Police Investigation Agency of Ky Anh district, as well as at the trial of the People’s Court of Ky Anh district and at the first-instance trial of the People’s Court of Ha Tinh province, the defendant testified: “When I got out to check, I was not sure if the victim lying under the car was alive or dead, because at that time I had no basis to determine if the victim was dead or alive” (Page 75 of the record); defendant Q also testified that although he was aware that moving the car forward or backward would both be very dangerous, because if he reversed, the front wheels would certainly continue to run over the victim (Pages 64, 65, 69 of the record).

[4] Defendant Phan Dinh Q’s testimony also showed: “When I got out to check, I saw the victim lying close to the front of the rear wheels of the car, the car’s wheels had not fully run over that person’s head. I only saw the victim lying motionless in front of the car’s rear right wheels” (Pages 61, 68, 85, 354, 356 of the record). Furthermore, defendant Q had many other statements: “Although I was aware that at that time, moving the car backward or forward would both run over the victim, and I understood that, I still accepted to let the car run over the victim” (Pages 58, 61, 64, 65, 69 of the record).

[5] Thus, although defendant Q appealed, claiming that his criminal act did not constitute “Murder,” the appellate trial panel had sufficient grounds to affirm: Defendant Q committed the crime of “Murder” as decided by the first-instance court of the People’s Court of Ha Tinh province, which is entirely legally sound. Defendant Q’s constant change of testimony and denial of having committed “Murder” was merely to evade criminal responsibility before the law for a more serious crime than “Violation of regulations on road traffic vehicle control”; therefore, the appellate court had no legal basis to accept the defendant’s appeal, but must uphold the charge of “Murder” against the defendant as decided by the first-instance court. The appellate court affirmed: defendant Q was not wrongly convicted of the charge as stated in his appeal and his testimony at the trial, as well as his lawyer’s defense at the first-instance and appellate trials.

[6] Considering the content of the appellate protest by the Chief Procurator of the High People’s Procuracy in Hanoi, the appellate trial panel found: The cause of the incident was the defendant’s lack of careful observation while driving the car, which led to an accident, causing P to be trapped under the defendant’s car. After discovering the collision with a road user, the defendant stopped the car to check. When he got out and saw a person lying right next to the car’s wheels, the defendant did not try to resolve the situation but instead continued to drive straight, even though the defendant had repeatedly admitted that both driving forward and reversing would be very dangerous. However, at that moment, the defendant still drove forward, resulting in Hoang Duc P being run over by the car, causing a skull fracture and immediate death.

[7] Considering the criminal act of defendant Phan Dinh Q, it does not fall under the category of “hooliganism” nor “barbaric” as stated in the protest and the Procurator’s view at the trial. Instead, the trial panel found that the defendant only committed a crime under Clause 2, Article 93 of the Penal Code, as decided by the first-instance court; therefore, there is no basis to accept the protest regarding the application of Clause 1, Article 93 of the Penal Code for the defendant’s trial. Regarding the request to increase the prison sentence for defendant Q, the trial panel found: After getting out of the car to check, seeing the rear right wheel of the car pressing close to the victim’s neck and nape, and although at this point the defendant had no basis to say that the victim was dead, the defendant still continued to drive, leading to the victim’s death after the car moved forward. Furthermore, during the investigation, the defendant was not honest in admitting guilt, demonstrating contempt for the law, while the victim was blameless, and at this moment, the danger to the victim’s life was very high, yet the defendant still drove over the victim, which is unacceptable for the defendant; the trial panel found full grounds to accept an increased prison sentence for the defendant, as this would be commensurate with the nature and extent of the defendant’s criminal act and would ensure general crime deterrence, because the 12 (twelve) year prison sentence imposed by the first-instance court on defendant Q was too lenient, causing public outrage in the local community where the incident occurred.

[8] Regarding the appeal by Ms. Nguyen Thi D (defendant’s wife), a party with rights and obligations related to the case, concerning the reconsideration of the 200 million VND obtained from selling the car, the appellate trial panel found: The first-instance court’s decision to recover the 200 million VND from selling the car (which was the instrument of the defendant’s crime) was legally correct; therefore, the appeal by Ms. Nguyen Thi D, a party with rights and obligations, is not accepted, and the first-instance judgment’s decision must be upheld.

[9] Other decisions of the first-instance judgment without appeal or protest have become legally effective from the expiration date of the appeal and protest period.

[10] The defendant’s appeal regarding the charge was not accepted, so he must bear the appellate criminal court fees.

[11] For the above reasons and based on Articles 355, 356, and 357 of the Criminal Procedure Code,

DECISION:

The appeal regarding the charge by defendant Phan Dinh Q is rejected, as is the appeal by Ms. Nguyen Thi D, a party with rights and obligations; the appeal by the victim’s legal representative is accepted, and a part of the protest by the Chief Procurator of the High People’s Procuracy in Hanoi regarding the request to increase the prison sentence for defendant Q is accepted, to amend the first-instance judgment of the People’s Court of Ha Tinh province regarding the increase in the prison sentence for the defendant. Now declares:

Declares: Defendant Phan Dinh Q guilty of “Murder”:

Applying Clause 2, Article 93; Points b, Clauses 1, 2, Article 46 of the 1999 Penal Code, sentenced: Phan Dinh Q to 13 (thirteen) years and 6 (six) months in prison. The term of imprisonment for the defendant is calculated from the date of temporary arrest and detention, December 27, 2016.

Regarding the handling of exhibits: Applying Article 41 of the 1999 Penal Code; Clauses 1, 2, Article 106 of the 2015 Criminal Procedure Code, it is mandatory to recover the amount of 200 million VND, as the defendant’s wife and family sold the car, which was the instrument of Q’s crime.

Other decisions of the first-instance judgment without appeal or protest have become legally effective from the expiration date of the appeal and protest period.

Defendant Q must bear 200,000 VND in appellate criminal court fees.

The appellate criminal judgment is legally effective from the date of pronouncement, May 16, 2019.

PRECEDENT CONTENT

“[2] The appellate trial panel found: While driving the car, upon discovering a collision and traffic accident, Q stopped the car to get out and check. When Q saw a victim (later identified as Hoang Duc P) lying in front of the rear right wheels of the car, Q got back into the car and drove straight, causing the rear wheels of Q’s car to run over P’s head, killing P instantly.

[3] Based on the documents and evidence in the case file, such as the testimonies of witnesses including Ms. Duong Thi H, Mr. Nguyen Xuan H, Ms. Pham Thi T, Mr. Hoang Khanh C; as well as the scene diagram, autopsy report, forensic examination conclusion, and especially based on defendant Q’s own initial statements during the investigation, it was found that: During the investigation by the Police Investigation Agency of Ky Anh district, as well as at the trial of the People’s Court of Ky Anh district and at the first-instance trial of the People’s Court of Ha Tinh province, the defendant testified: “When I got out to check, I was not sure if the victim lying under the car was alive or dead, because at that time I had no basis to determine if the victim was dead or alive” (Page 75 of the record); defendant Q also testified that although he was aware that moving the car forward or backward would both be very dangerous, because if he reversed, the front wheels would certainly continue to run over the victim (Pages 64, 65, 69 of the record).

[4] Defendant Phan Dinh Q’s testimony also showed: “When I got out to check, I saw the victim lying close to the front of the rear wheels of the car, the car’s wheels had not fully run over that person’s head. I only saw the victim lying motionless in front of the car’s rear right wheels” (Pages 61, 68, 85, 354, 356 of the record). Furthermore, defendant Q had many other statements: “Although I was aware that at that time, moving the car backward or forward would both run over the victim, and I understood that, I still accepted to let the car run over the victim” (Pages 58, 61, 64, 65, 69 of the record).

[5] Thus, although defendant Q appealed, claiming that his criminal act did not constitute “Murder,” the appellate trial panel had sufficient grounds to affirm: Defendant Q committed the crime of “Murder” as decided by the first-instance court of the People’s Court of Ha Tinh province, which is entirely legally sound. Defendant Q’s constant change of testimony and denial of having committed “Murder” was merely to evade criminal responsibility before the law for a more serious crime than “Violation of regulations on road traffic vehicle control”; therefore, the appellate court had no legal basis to accept the defendant’s appeal, but must uphold the charge of “Murder” against the defendant as decided by the first-instance court. The appellate court affirmed: defendant Q was not wrongly convicted of the charge as stated in his appeal and his testimony at the trial, as well as his lawyer’s defense at the first-instance and appellate trials.”