Precedent No. 45/2021/AL was adopted by the Council of Justices of the Supreme People’s Court on November 25, 2021, and published under Decision No. 594/QD-CA dated December 31, 2021, by the Chief Justice of the Supreme People’s Court.
1. What is a precedent?
Precedents are arguments and rulings in legally effective judgments and decisions of the Courts on specific cases selected by the Council of Justices of the Supreme People’s Court and published by the Chief Justice of the Supreme People’s Court as precedents for Courts to study and apply in adjudication. (Article 1 of Resolution 04/2019/NQ-HĐTP)
A selected precedent must meet the following criteria:
– It contains values to clarify legal provisions that have different interpretations; analyzes and explains legal issues and events; and points out principles, handling directions, and legal norms to be applied in a specific case or demonstrates equity toward issues not yet specifically prescribed by law;
– It is exemplary;
– It has guiding value for the uniform application of law in adjudication.
2. Precedent No. 45/2021/AL on determining the defendant committed the crime of “Murder” in the case of “Attempted crime”
2.1. Source of the precedent
Appellate Criminal Judgment No. 395/2021/HS-PT dated September 24, 2021, of the High People’s Court in Hanoi regarding the criminal case of “Murder” against defendants Nguyễn Bá T, Phạm Hoàng T1, Phạm Quang V, and Nguyễn Đinh An K.
Location of the precedent content:
Paragraph 4 and Paragraph 5 of the “Court’s Assessment” section.
2.2. Summary of the precedent content
– Precedent situation:
The defendant intentionally committed acts aimed at depriving the victim of their life; the victim suffered health damage at a rate of 100%.
– Legal solution:
In this case, the Court must determine that the consequence of death did not occur; the defendant must bear criminal responsibility for the crime of “Murder” in the case of “Attempted crime”.
Legal provisions related to the precedent:
Article 15, Article 123 of the Criminal Code of Vietnam 2015 (amended and supplemented in 2017).
Keywords of the precedent:
“Deprive of life”; “Health damage rate of 100%”; “Attempted crime”; “Murder”.
CASE CONTENT:
According to the documents in the case file, the content of the case is summarized as follows:
Nguyễn Bá T, Phạm Quang V, Phạm Hoàng T1, and Nguyễn Đinh An K were social friends. In early 2018, Nguyễn Bá T had a romantic relationship with Ms. Lê Minh A1 (born 2002; residing in Cluster 41, Ô Ward, Đ District, Hanoi); by late 2018, the two broke up. Through inquiry, Nguyễn Bá T learned that Ms. Lê Minh A1 had started dating Mr. Hồng Quốc A (born 2002; residing at No. 9A, Lane 344, Alley 50/1, N Street, T Ward, L District, Hanoi), who was also an old friend in Nguyễn Bá T’s group, so T became angry and wanted to find and hit Mr. Hồng Quốc A for revenge.
At approximately 23:30 on January 5, 2019, after drinking alcohol, Nguyễn Bá T called Nguyễn Đinh An K to ask about Mr. Hồng Quốc A dating T’s ex-girlfriend, and at the same time, made an appointment to meet K at M market area in B Ward, H District, Hanoi to talk. At this time, Nguyễn Đinh An K was out with Nguyễn Hữu Nam S (born 2000), Vũ An K1, and an individual named “K2” (unidentified background) on 03 motorcycles near C Bridge. K received the call from Nguyễn Bá T, so he invited S, K1, and K2 to go to the M market area to meet Nguyễn Bá T.
After calling Nguyễn Đinh An K, Nguyễn Bá T met Phạm Quang V on C Road and told V to come along for an errand. V and T rode a motorcycle to the top of L tunnel, Đ District, Hanoi, where they met Phạm Hoàng T1 along with Phan Tuấn A2 (born 2000) and other individuals named Đ, D, and 02 other young men (unidentified). Đ asked where T was going, and T said, “To find this dog” (meaning to find Hồng Quốc A) and asked Đ back: “Are you coming along?” Đ, T1, Tuấn A2, D, and the 02 other young men all agreed to go. Subsequently, Nguyễn Bá T along with Phạm Quang V, Phạm Hoàng T, Tuấn A2, Đ, D, and the 02 unidentified young men traveled by motorcycle from the top of L tunnel to the M market area. There, Nguyễn Bá T’s group met K, S, K1, and K2. In the group, only Nguyễn Đinh An K knew Mr. Hồng Quốc A’s house, so Nguyễn Bá T told K to lead the way. K asked back: “What’s going on?” T replied: “He’s my friend but he bit me, he ate my ex-girlfriend, lead me there to destroy him.” Nguyễn Bá T threatened that if K did not lead the way, he would consider K an enemy. Due to respect, Nguyễn Đinh An K agreed to lead T and the group to Mr. Hồng Quốc A’s house in L District. Before leaving, Nguyễn Bá T told everyone to stop for gas at the gas station on V Road, H District, so T could pay, and also told V to go get weapons, but K and V stopped him, so he didn’t. Afterward, Nguyễn Bá T along with K, V, T1, Tuấn A2, K1, S, K2, Đ, D, and the 02 unidentified young men traveled on about 05 motorcycles, in which Tuấn A2 and T1 rode a blue Wave motorcycle with license plate 29C1-613.93; K and the individual named “K2” rode a black Wave motorcycle with license plate 29B1-936.67… and went to T Ward, L District.
When Nguyễn Đinh An K brought the individuals to Mr. Hồng Quốc A’s house, Nguyễn Bá T called, but Mr. Hồng Quốc A did not come down; T threatened, “Do you believe five thousand worth of gas will burn your whole house?” so Mr. Hồng Quốc A was scared and came down to talk to T, while the other individuals waited outside the alley. During the conversation, Nguyễn Bá T said, “Do you know she is my girlfriend, how many times have you kissed her, have you done anything yet?” but Mr. Hồng Quốc A did not admit it, so T shouted, “Get the hell out of here.” At this point, Phạm Quang V went in to call Mr. Hồng Quốc A out to talk; when Mr. Quốc A went to the beginning of the alley, to the position where T1 was standing, Phạm Hoàng T1 said, “This guy looks handsome but went to steal someone’s girlfriend.” Hearing this, Mr. Hồng Quốc A bumped into Phạm Hoàng T1’s shoulder, and T1 used his foot to kick A’s leg twice. When Mr. Hồng Quốc A reached the beginning of the alley where the whole group was parked, Phạm Quang V told Mr. Hồng Quốc A to sit down. Phạm Hoàng T1 walked over and used his right foot to kick Mr. Hồng Quốc A’s knee once, then ran to get a stick and bricks to hit him, but Tuấn A2 intervened, so T1 threw the bricks and stick away. At this time, Nguyễn Bá T said: “Đ, pound him,” then Đ rushed in and used his foot to kick Mr. Hồng Quốc A, making the victim fall over. Phạm Quang V rushed in, pulled Mr. Hồng Quốc A up, and said, “Do you know what a prison strike is like?” then Mr. Quốc A brushed V’s hand away; V used his knee to thrust once into Mr. Quốc A’s hip. Mr. Hồng Quốc A backed away about 1m from the original position when Đ rushed in and kicked him once in the face, causing Mr. Quốc A to fall onto the road, lying in a position with both hands covering his head. Đ continued to use his feet to stomp 03 – 04 times on Mr. Hồng Quốc A’s head area. Seeing this, Phạm Hoàng T1 rushed in and used his foot to stomp once on Mr. Hồng Quốc A’s back. At the same time, Nguyễn Bá T walked out of the alley and said to Phạm Quang V, “Look, wood”; while pointing out to V a piece of wood measuring approximately (40×60)cm nearby. V picked up the piece of wood and swung it, hitting Mr. Hồng Quốc A’s head, splitting the wood in half. At this time, Nguyễn Đinh An K and K2 witnessed T’s group finishing the beating of Mr. Hồng Quốc A and got on their bikes to leave. Đ continued to pick up a broken piece of wood to hit Mr. Hồng Quốc A. While the victim was still lying on the road, Phạm Hoàng T1 rushed in and used his foot to stomp once on Mr. Hồng Quốc A’s face, to which Nguyễn Bá T said, “Are you killing him?”. After that, Phạm Quang V took his motorcycle to leave, reached the spot where Mr. Quốc A was lying, and said: “Stay still there, if I don’t see you lying there tomorrow, I’ll hit you again.” Nguyễn Bá T also said, “Are you dead yet?” but Mr. Hồng Quốc A only moved his body and could not say anything. Afterward, all the individuals got on their bikes and left; Mr. Hồng Quốc A was taken by nearby residents to V Hospital for emergency treatment.
On January 8, 2019, and January 10, 2019, the Investigation Police Agency of L District Police arrested Nguyễn Đinh An K, Phạm Hoàng T1, and Phạm Quang V in an emergency case. After the incident occurred, Nguyễn Bá T fled until July 14, 2019, when he surrendered. The case was then transferred to the Investigation Police Agency of the Hanoi City Police for resolution according to their jurisdiction.
According to the Forensic Injury Assessment Conclusion No. 68/TTPY dated January 16, 2019, of the Forensic Center of H Health Department regarding victim Hồng Quốc A, it was determined: “…The victim Hồng Quốc A suffered a fracture of the main nasal bone, fluid accumulation in the maxillary and sphenoid sinuses on both sides; subdural hematoma in the left hemisphere, subarachnoid hemorrhage, cerebral edema erasing the boundaries of the cerebral gyri in both hemispheres, midline shift to the right. Brain system imbalance. Hematoma under the scalp of the right parietal. Swelling of the left frontotemporal; bruising and swelling of both forearms; swelling of the shoulder and back of the left hand. Conclusion: Mr. Hồng Quốc A suffered a traumatic brain injury, currently in a vegetative state. The degree of sequelae caused by traumatic brain injury cannot currently be evaluated; a supplementary assessment is requested upon discharge. It is likely the injuries were caused by blunt objects. The health damage rate is 100%.”
Civil liability: During the investigation phase of the case, Ms. Phạm Thanh T2 (legal representative of victim Hồng Quốc A) confirmed that the families of defendants Phạm Hoàng T1, Phạm Quang V, and Nguyễn Đinh An K had compensated her family with a total amount of 75,000,000 VND. Ms. T2 continued to request the defendants to compensate victim Hồng Quốc A when the case was brought to trial.
In the First Instance Criminal Judgment No. 150/2020/HSST dated May 18, 2020, the People’s Court of Hanoi City decided:
Declare defendants Nguyễn Bá T, Phạm Quang V, Phạm Hoàng T1, and Nguyễn Đinh An K guilty of “Murder”;
Apply point n clause 1 Article 123; point s clause 1 Article 51; point h, o clause 1 Article 52; Article 39; Article 48; Article 58 of the Penal Code for Nguyễn Bá T;
Apply point n clause 1 Article 123; point s clause 1, clause 2 Article 51; Article 38; Article 48; Article 58 of the Penal Code for Phạm Quang V;
Apply point n clause 1 Article 123; point s clause 1, clause 2 Article 51; Article 38; Article 48; Article 58; Article 91; Article 101 of the Penal Code for Phạm Hoàng T1;
Apply point n clause 1 Article 123; point s clause 1, clause 2 Article 51; Article 38; Article 48; Article 58 of the Penal Code for Nguyễn Đinh An K; penalize:
– Defendant Nguyễn Bá T to life imprisonment, the prison term calculated from July 14, 2019.
– Defendant Phạm Quang V to 20 (twenty) years in prison, the prison term calculated from January 10, 2019.
– Defendant Phạm Hoàng T1 to 12 (twelve) years in prison, the prison term calculated from January 08, 2019.
– Defendant Nguyễn Đinh An K to 11 (eleven) years in prison, the prison term calculated from January 08, 2019.
Regarding civil liability: Compel the defendants to compensate Mr. Hồng Quốc A, represented by Ms. Phạm Thanh T2, the amount of: 1,104,069,000 VND. Of which, shared as follows: Nguyễn Bá T: 400,000,000 VND; Phạm Quang V: 300,000,000 VND, having compensated 5,000,000 VND, still owes 295,000,000 VND; Phạm Hoàng T1: 250,000,000 VND, having compensated 65,000,000 VND, still owes 185,000,000 VND; Nguyễn Đinh An K: 154,069,000 VND, having compensated 5,000,000 VND, still owes 149,069,000 VND.
In addition, the First Instance Court also decided on late payment interest, disposal of evidence, court fees, and notification of the right to appeal in accordance with the law.
On May 25, 2020, defendant Nguyễn Đinh An K filed an appeal requesting a reduction in the penalty.
On May 26, 2020, defendant Nguyễn Bá T filed an appeal requesting a reduction in the penalty.
On May 28, 2020, defendant Phạm Quang V filed an appeal requesting a reduction in the penalty.
On May 29, 2020, the legal representative of the victim, Ms. Phạm Thanh T2, filed an appeal requesting an increase in the penalty for the defendants and argued that the view of applying clause 2 Article 123 of the Penal Code to defendant Nguyễn Đinh An K was incorrect; the amount of compensation was insignificant compared to the losses spent to treat Mr. Hồng Quốc A, requesting a review of the judgment.
In Protest Decision No. 05/KN-VTVKS dated May 26, 2020, the Director of the People’s Procuracy of Hanoi City protested the first-instance judgment, in the direction of increasing the penalty for defendant Phạm Quang V, applying clause 2 Article 123 of the Penal Code, and reducing the penalty for defendant Nguyễn Đinh An K.
At the appellate trial, the defendants maintained their appeals for reduced penalties; the legal representative for victim Hồng Quốc A withdrew the entire appeal; and requested reduced penalties for defendants Phạm Quang V, Nguyễn Đinh An K, and Phạm Hoàng T1.
The representative of the High People’s Procuracy in Hanoi withdrew the entire protest; requested that the penalty for defendant Nguyễn Bá T be maintained, and that the penalties for defendants Phạm Quang V, Nguyễn Đinh An K, and Phạm Hoàng T1 be reduced by approximately 6 to 12 months each because at the appellate trial, these defendants had a new mitigating circumstance, which was the compensation for damages.
The defense lawyer for defendant Nguyễn Bá T and the defendant both presented their difficult circumstances (the defendant has not known his father’s face since childhood; his mother is an informal laborer with low income; the defendant is illiterate and has no occupation); after committing the crime, the defendant was very remorseful and hoped to be considered for a reduced penalty.
The lawyer and defendant Phạm Hoàng T1 requested a review to reduce the penalty because when committing the crime, T1 was only 15 years and 4 months old, his family circumstance was difficult, his mother died early, and his grandfather was awarded the Resistance Medal; after the trial, he influenced his family to compensate an additional 35,000,000 VND.
The lawyer and defendant Phạm Quang V both presented that the defendant’s family was in difficult circumstances; the defendant influenced his grandmother to compensate the victim an additional 300,000,000 VND and presented the Fatherland Acknowledgement Certificate for Martyr Nguyễn Văn A, who was defendant V’s uncle, so they requested a penalty reduction.
Defendant Nguyễn Đinh An K apologized to the victim’s family for the criminal act and simultaneously influenced his family to fulfill the obligation of the judgment, compensating the victim 150,000,000 VND, requesting a penalty reduction.
The lawyer for defendant Nguyễn Đinh An K argued that prosecuting the defendant under clause 1 of Article 123 of the Penal Code was inappropriate and that Precedent 17 should be applied to try the defendant under clause 2 of the article; the withdrawal of the protest unfavorable to the defendant was not in accordance with Article 336 of the Criminal Procedure Code; the defendant had completed the civil compensation obligation, so a reduction was requested.
The representative of the Procuracy debated and maintained the aforementioned stance.
The legal representative for the victim confirmed that the families of defendants Phạm Quang V and Nguyễn Đinh An K had completed their civil compensation responsibilities according to the first-instance judgment; defendant Phạm Hoàng T1 compensated an additional 35,000,000 VND. At the appellate trial, all defendants apologized to the victim, expressed remorse for their crimes, and all had difficult circumstances, so the representative withdrew the appeal request and requested a reduction in the penalties for defendants Phạm Quang V, Nguyễn Đinh An K, and Phạm Hoàng T1.
COURT’S ASSESSMENT:
Based on the content of the case and the results of the debate at the trial, the Trial Panel assesses as follows:
[1] The procedure-conducting agencies at the first-instance stage performed according to their correct competence, sequence, and procedures as prescribed by the Criminal Procedure Code.
[2] At the appellate trial, the High People’s Procuracy in Hanoi withdrew the entire protest; the victim’s legal representative withdrew the appeal regarding increasing the penalties for the defendants, so the Trial Panel terminates the appellate trial for the aforementioned Protest and appeal in accordance with Article 342 and Article 348 of the Criminal Procedure Code.
[3] At the appellate trial, the defendants confessed to their acts as stated in the first-instance judgment; the confessions were consistent with each other, with witness statements, assessment conclusions, and other documents and evidence examined, providing sufficient grounds to conclude: At about 01:00 on January 6, 2019, due to jealousy toward Mr. Hồng Quốc A, Nguyễn Bá T told Nguyễn Đinh An K to lead the way and invited Phạm Quang V, Phạm Hoàng T1, and other individuals to Mr. Hồng Quốc A’s house in N Ward, L District, Hanoi. Upon arrival, Nguyễn Bá T directed T1, V, and other individuals to use hands, feet, and a wooden stick to continuously attack the victim, resulting in Mr. Hồng Quốc A suffering a fracture of the main nasal bone, fluid accumulation in the maxillary and sphenoid sinuses on both sides; subdural hematoma in the left hemisphere, subarachnoid hemorrhage, cerebral edema erasing the boundaries of the cerebral gyri in both hemispheres, midline shift to the right. Brain system imbalance. Hematoma under the scalp of the right parietal. Swelling of the left frontotemporal; bruising and swelling of both forearms; swelling of the shoulder and back of the left hand; traumatic brain injury, currently in a vegetative state; the health damage rate is 100%.
[4] The case involves accomplices, and the acts of the defendants were particularly dangerous; Nguyễn Bá T believed the victim stole his lover, so he invited other individuals to Mr. Hồng Quốc A’s house for revenge and clearly stated the purpose was to find the victim to “destroy him”. Phạm Quang V, Nguyễn Đinh An K, and Phạm Hoàng T1 had no conflict with the victim but still reached a consensus of will to perform according to Nguyễn Bá T’s direction. The defendants were aware of the dangerous nature and consequences of multiple people beating one person, jointly impacting vital positions on the body, which could cause the victim’s death, yet they still performed the acts. The acts of continuous attack, using hands and feet, hitting and punching the body and face; using a wooden stick to hit the victim’s head until the victim lay motionless; and before leaving, asking “are you killing him?”, “are you dead yet?…” clearly demonstrated a thuggish character and the subjective intent of the defendants to jointly and intentionally deprive the victim of his life. Therefore, the First Instance Court’s trial of Nguyễn Bá T, Phạm Quang V, Phạm Hoàng T1, and Nguyễn Đinh Anh K for the crime of “Murder” under point n clause 1 Article 123 of the Penal Code was well-founded.
[5] According to the Forensic Injury Assessment Conclusion No. 68/TTPY dated January 16, 2019, of the Forensic Center of H Health Department: “Mr. Hồng Quốc A suffered a traumatic brain injury, currently in a vegetative state… The health damage rate is 100%”. Thus, in this case, the defendants intentionally committed acts aimed at depriving the victim of his life, but the consequence of death did not occur, which falls under the case of an attempted crime as prescribed in Article 15 of the Penal Code.
[6] Regarding Nguyễn Bá T’s appeal: The defendant was the one who initiated, invited, and directed others to commit the crime. Although he did not directly hit the victim, Nguyễn Bá T directed Phạm Quang V, Phạm Hoàng T1, and several other individuals to beat Mr. Hồng Quốc A; incited Phạm Hoàng T1—a person under 18 years old—to commit a crime; the defendant has a bad background, and this crime constitutes a case of recidivism, so the first-instance level was correct in determining that Nguyễn Bá T held the main role in the case. Clause 3 Article 57 of the Penal Code (decision on penalties in the case of attempted crime) stipulates: “If the applied law provides for a maximum penalty of life imprisonment or death, the prison term applied shall not exceed 20 years”. Comparing the consequences of the defendant’s criminal acts as mentioned in paragraph [5], applying a life sentence to the defendant is inappropriate, so it is necessary to amend the first-instance judgment and reduce the penalty for Nguyễn Bá T. Although Nguyễn Bá T surrendered and showed remorse at the appellate trial, given the nature and severity of the crime, the defendant’s role, and the consequences caused, it is necessary to apply the maximum penalty of the aforementioned provision for the purpose of reforming and educating the defendant and for general deterrence and prevention.
[7] Regarding the appeal of defendant Phạm Quang V: Despite having no conflict with the victim, when Nguyễn Bá T invited him for revenge, Phạm Quang V agreed immediately. Upon arrival, when Đ kicked Mr. Hồng Quốc A, causing him to fall over, Phạm Quang V rushed in to pull the victim up and said, “Do you know what a prison strike is like?”; then V used his knee to thrust once into Mr. Hồng Quốc A’s hip, picked up a wooden stick and swung it, hitting the victim’s head area, splitting the stick in half. When leaving past the position where Mr. Hồng Quốc A lay, V said: “Stay still there, if I don’t see you lying there tomorrow, I’ll hit you again.” This chain of actions demonstrates Phạm Quang V’s role as an active perpetrator who directly attacked the victim and abandoned the victim when Mr. Hồng Quốc A lost his ability to self-defend, so such behavior needs to be severely punished. However, Phạm Quang V was an individual invited by Nguyễn Bá T; after the first-instance trial, the defendant’s family compensated an additional 305,000,000 VND to the victim’s family; the victim’s family representative requested a penalty reduction for the defendant; the family presented the Fatherland Acknowledgement Certificate for Martyr Nguyễn Văn A, who was defendant V’s uncle. Thus, Phạm Quang V is eligible for additional new mitigating circumstances prescribed in point b, clause 1 and clause 2 Article 51 of the Penal Code, providing grounds to accept the appeal and reduce part of the penalty for the defendant.
[8] Regarding Nguyễn Đinh An K’s appeal: Defendant K was the only one who knew Mr. Hồng Quốc A’s house; the results of the debate at the trial showed K was clearly aware that leading Nguyễn Bá T and many others to find the victim was for the purpose of beating him, but he still did it out of respect for defendant T (consistent with the testimonies of T and other defendants). Nguyễn Đinh An K did not participate in beating Mr. Hồng Quốc A but was present at the scene, witnessing many people brutally attacking the victim without intervening. The defendant’s behavior intentionally placed the victim in a life-threatening situation, showing an indifferent attitude toward the developments while the consequences could be foreseen; therefore, the first-instance level was correct in identifying Nguyễn Đinh An K as an accomplice with the other defendants with the same charge and penalty framework. Considering the situation and development of the defendant’s actions, it does not match the content of Precedent No. 17/2018/AL, so there are insufficient grounds to apply that precedent as proposed by the lawyer’s view. Considering the defendant had an assisting accomplice role; now expresses remorse, influenced his family to fully compensate according to the decision of the first-instance judgment (150,000,000 VND); and the victim’s family representative requested a penalty reduction for the defendant. Thus, Nguyễn Đinh An K is eligible for additional mitigating circumstances prescribed in point b, clause 1 and clause 2 Article 51 of the Penal Code, providing a basis to accept the appeal and allow the defendant to enjoy the lowest penalty below the penalty framework.
[9] Regarding Phạm Hoàng T1: When committing the crime, defendant Phạm Hoàng T1 was only 15 years and 4 months old; T1 was invited and incited by Nguyễn Bá T to commit the crime but was an active perpetrator. The defendant’s actions contributed to causing the consequence of Mr. Hồng Quốc A’s 100% health damage; therefore, the first-instance level’s application of a prison sentence, isolating the defendant from society for a period for reform and education, is well-founded. Although Phạm Hoàng T1 did not appeal, comparing the provisions in Article 91, Article 101, clause 3 Article 57 of the Penal Code, it is necessary to consider applying a maximum penalty of no more than 1/2 of the prison sentence prescribed by the article. The first-instance level’s sentencing of the defendant to 12 years in prison exceeds the scope of regulations for minors in clause 2 Article 101 of the Penal Code, so it needs to be adjusted accordingly. On the other hand, Phạm Hoàng T1 had an assisting role, and after the first-instance trial, the defendant’s family compensated the victim an additional 35,000,000 (thirty-five) million VND, so there are grounds to amend the first-instance judgment and reduce the penalty for the defendant.
[10] Regarding civil liability: Ms. Phạm Thanh T2 did not appeal regarding the civil compensation content, so the decision of the first-instance judgment regarding the civil liability part is maintained, but it is necessary to record the amount of money the defendants paid for their compensation obligations.
[11] Regarding court fees: Since the appeal was considered and accepted, the defendants do not have to bear appellate criminal court fees.
For the reasons stated above,
DECISION
Based on Article 342; Article 348; point b clause 1 Article 355; point c clause 1, clause 3 Article 357 of the Criminal Procedure Code; Resolution No. 326/2016/UBTVQH14 dated December 30, 2016, of the National Assembly Standing Committee on court fees and charges;
Terminate the resolution according to appellate procedures for the protest by the Director of the People’s Procuracy of Hanoi City and the appeal by the victim’s legal representative;
Accept the appeals of the defendants, amend the first-instance judgment, and reduce the penalties for Nguyễn Bá T, Phạm Quang V, Phạm Hoàng T1, and Nguyễn Đinh An K;
Apply point n clause 1 Article 123; point s clause 1 Article 51; point h, o clause 1 Article 52; Article 15; Article 17; clause 3 Article 57; Article 58 of the Penal Code, penalize defendant Nguyễn Bá T to 20 (twenty) years in prison for the crime of “Murder”, the prison term calculated from July 14, 2019;
Apply point n clause 1 Article 123; point s, b clause 1, clause 2 Article 51; Article 38; Article 15; Article 17; clause 3 Article 57; Article 58 of the Penal Code, penalize defendant Phạm Quang V to 19 (nineteen) years in prison for the crime of “Murder”, the prison term calculated from January 10, 2019;
Apply point n clause 1 Article 123; point s, b clause 1, clause 2 Article 51; Article 15; Article 17; Article 38; Article 54; clause 3 Article 57; Article 58 of the Penal Code, penalize defendant Nguyễn Đinh An K to 10 (ten) years in prison for the crime of “Murder”, the prison term calculated from January 08, 2019;
Apply point n clause 1 Article 123; point s, b clause 1, clause 2 Article 51; Article 15; Article 17; Article 38; clause 3 Article 57; Article 58; Article 91; Article 101 of the Penal Code, penalize defendant Phạm Hoàng T1 to 9 (nine) years in prison for the crime of “Murder”, the prison term calculated from January 08, 2019.
Record that the defendants have compensated the victim according to the decision of the first-instance judgment, specifically: defendant Phạm Hoàng T1: 35,000,000 (Thirty-five million) VND (receipt No. 004211 dated October 9, 2020, at the Civil Judgment Enforcement Department of Hanoi City); defendant Nguyễn Đinh An K: 150,000,000 (One hundred and fifty million) VND; defendant Phạm Quang V: 300,000,000 (Three hundred million) VND. At the appellate trial, the defendants and the victim’s legal representative confirmed that defendants Nguyễn Đinh An K and Phạm Quang V had completed their civil responsibilities according to the first-instance judgment (the excess amount is voluntary from the defendants’ families, no refund requested).
Regarding appellate criminal court fees: The defendants do not have to bear appellate criminal court fees.
Other decisions of the first-instance judgment are legally effective from the date the time limit for appeal or protest expires.
The appellate criminal judgment is legally effective from the date of pronouncement./.
CONTENT OF THE PRECEDENT
“[4] The case involves accomplices, and the acts of the defendants were particularly dangerous; Nguyễn Bá T believed the victim stole his lover, so he invited other individuals to Mr. Hồng Quốc A’s house for revenge and clearly stated the purpose was to find the victim to “destroy him”. Phạm Quang V, Nguyễn Đinh An K, and Phạm Hoàng T1 had no conflict with the victim but still reached a consensus of will to perform according to Nguyễn Bá T’s direction. The defendants were aware of the dangerous nature and consequences of multiple people beating one person, jointly impacting vital positions on the body, which could cause the victim’s death, yet they still performed the acts. The acts of continuous attack, using hands and feet, hitting and punching the body and face; using a wooden stick to hit the victim’s head until the victim lay motionless; and before leaving, asking “are you killing him?”, “are you dead yet?…” clearly demonstrated a thuggish character and the subjective intent of the defendants to jointly and intentionally deprive the victim of his life. Therefore, the First Instance Court’s trial of Nguyễn Bá T, Phạm Quang V, Phạm Hoàng T1, and Nguyễn Đinh Anh K for the crime of “Murder” under point n clause 1 Article 123 of the Penal Code was well-founded.
[5] According to the Forensic Injury Assessment Conclusion No. 68/TTPY dated January 16, 2019, of the Forensic Center of H Health Department: “Mr. Hồng Quốc A suffered a traumatic brain injury, currently in a vegetative state… The health damage rate is 100%”. Thus, in this case, the defendants intentionally committed acts aimed at depriving the victim of his life, but the consequence of death did not occur, which falls under the case of an attempted crime as prescribed in Article 15 of the Penal Code.”
