Precedent No. 57/2023/AL was adopted by the Council of Justices of the Supreme People’s Court on February 1, 2, and 3, 2023, and published under Decision No. 39/QD-CA dated February 24, 2023, by the Chief Justice of the Supreme People’s Court.
1. What is a precedent?
Precedents are arguments and rulings in legally effective judgments or decisions of the Courts regarding 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 has value in clarifying legal provisions that have different interpretations, analyzing and explaining legal issues and events, and pointing out principles, handling guidelines, and legal norms to be applied in a specific case or demonstrating fairness for issues not yet specifically regulated by law;
– It possesses standard characteristics;
– It has guidance value for the uniform application of law in adjudication.
2. Precedent No. 57/2023/AL on deceitful acts to approach assets in the crime of “Snatching assets”
2.1. Source of the precedent
Criminal Appellate Judgment No. 590/2020/HS-PT dated December 18, 2020, of the People’s Court of Ho Chi Minh City regarding the case of “Snatching assets” against defendant Nguyen Thanh Quoc B.
Location of the precedent’s content:
Paragraph 4 of the “Court’s Assessment” section.
2.2. Summary of the precedent’s content
– Precedent situation:
The defendant uses deceitful methods to have the asset manager transfer the asset to the defendant, then takes advantage of a lapse in attention to quickly escape.
– Legal solution:
In this case, the defendant must be held criminally liable for the crime of “Snatching assets”.
Legal provisions related to the precedent:
Article 171 Criminal Code of Vietnam 2015 (amended and supplemented in 2017).
Keywords of the precedent:
“Snatching assets”; “Deceitful methods to approach assets”.
CASE CONTENT:
According to the documents in the case file and the developments at the trial, the content of the case is summarized as follows:
Due to a lack of money for personal expenses, Nguyen Thanh Quoc B conceived the intention to snatch assets. B bought promotional SIM cards and created accounts on an online shopping application to order iPhone 11 phones. To commit the crime, B also prepared several wads of money (in each wad, B placed one real banknote on top and one real banknote on the bottom with denominations from 50,000 VND to 500,000 VND; in the middle of the wad, B placed hell money and tied it with a rubber band). When meeting the delivery person to receive the goods, B would take the prepared wads of money out of his crossbody bag to let the delivery person see, creating trust, and then put them back in the bag. After checking the goods, B would place the package on the front floorboard of his Honda Lead motorcycle (License Plate: 59L1-88433), then take out the prepared wad of money and give it to the delivery person. Taking advantage of the moment when the delivery person removed the rubber band to check the money, B would accelerate and drive away to appropriate the mobile phone.
The investigation results determined that Nguyen Thanh Quoc B committed 05 specific asset appropriation cases as follows:
Case 1: In early January 2020, Nguyen Thanh Quoc B used subscriber number 0563667801 to register a shopping account on e-commerce site L under the name Tran Thanh T1 and ordered an Apple iPhone 11, purple, 128GB capacity for 22,017,700 VND (Twenty-two million seventeen thousand seven hundred VND). The delivery address was 158/A49 P Street, Ward H, District T, Ho Chi Minh City.
Around 4:00 PM on January 11, 2020, B received a call from Mr. Pham Ngoc T (a delivery staff of Company S) tasked with delivering order code S60RT0000206084VN containing 01 (one) Apple iPhone 11, 128GB, purple, IMEI: 356571101877587. B rode a Honda Lead motorcycle (License Plate: 59L1-88433) to the above address to wait for Mr. T. After Mr. T arrived, B requested to check the package first, but Mr. T did not agree. Then, B told Mr. T to wait a moment for him to pick up a truck carrying goods for his family and then return. About 3 minutes later, B returned and agreed to receive the package. Mr. T handed the package to B, and at the same time, B handed a plastic bag containing money (B had arranged 02 real banknotes with a denomination of 200,000 VND on the top and bottom, with hell money in the middle) prepared beforehand to Mr. T for inspection. B had purchased this wad of hell money earlier. B tied the wad with a rubber band, wrapped it in a plastic bag, and used white tape to wrap multiple layers on the outside. While Mr. T was opening the plastic bag to take out the money for inspection, B unlocked the motorcycle and pretended to say he was going to the end of the alley to see if the truck had arrived. Before Mr. T could react, B quickly drove away and escaped.
On the same evening, B offered to sell the appropriated mobile phone on the Internet and left the phone number 0938355534 for buyers to contact. About 2 days later, an unidentified young man asked to buy the phone for 18,000,000 VND. B agreed and met this person in front of D Park, Ward A, District M to hand over the phone. Regarding SIM number 0563667801, B discarded it on the road (address unknown). B spent all the money on personal needs.
According to Asset Appraisal Conclusion No. 941/KL-HDDGT-TTHS dated May 27, 2020, of the Asset Appraisal Council in Criminal Proceedings of Tan Phu District, 01 (one) Apple iPhone 11, 128GB, purple, IMEI: 356571101877587 was valued at 22,310,000 VND.
Case 2: On January 20, 2020, Nguyen Thanh Quoc B used a Redmi phone to go to T.com to order 01 (one) iPhone 11 Pro Max, 256GB, Gold, for 37,990,000 VND. B provided buyer information as Hoang Anh T2, contact number 0563667873, and delivery location at No. 04 L Street, Ward N, District T. Around 1:30 PM on January 21, 2020, Mr. Nguyen Le Thanh D (delivery staff of T Joint Stock Company) brought 01 (one) iPhone 11 Pro Max, 256GB, Gold, IMEI: 353923106182211 from the store to deliver to B at No. 04 L Street and collect 37,990,000 VND. Upon arriving at the delivery point, Mr. D met B riding a Lead motorcycle (License Plate: 59L1-88433) in front of No. 4 L Street. B told Mr. D to move the motorcycle to address No. 07 L Street for delivery, giving the reason of clearing the way for a truck into the house. In front of house No. 07 L Street, D handed B 01 (one) iPhone 11 Pro Max box, 256GB, Gold, IMEI: 353923106182211, still sealed. Simultaneously, B handed D 01 (one) wad of 50,000 VND banknotes (including 150 notes) and told D to recount them. At this time, B placed the phone box on the front floorboard of the Lead motorcycle and unlocked it. Taking advantage of the moment when D was distracted while counting the money, B quickly accelerated and escaped. D chased on foot but could not catch him and reported the incident to the Phu Thanh Ward Police.
B sold the phone to Mr. Luu Thanh N (owner of N Phone Store, No. 31/15 U Street, Ward G, District T) for 31,500,000 VND. Since he did not have enough cash, N used his V Bank account No. 0721000616605 to transfer this amount to B’s C Bank account No. 10236697. B spent all this money on personal needs.
According to Asset Appraisal Conclusion No. 763/KL-HDDGT-TTHS dated April 29, 2020, of the Asset Appraisal Council in Criminal Proceedings of Tan Phu District: 01 (one) iPhone 11 Pro Max, 256GB was valued at 37,990,000 VND.
Case 3: On January 28, 2020, B used a Redmi phone to go to C.com.vn to order 01 (one) iPhone 11 Pro Max, 256GB, for 34,990,000 VND. B provided recipient information as Hoang Anh T2, contact number 0563667873, delivery address in front of house No. 04 L Street, Ward N, District T.
Around 2:40 PM on January 29, 2020, Mr. Tran Anh T3 (staff of C phone store) arrived at the delivery point No. 04 L Street, met B, and handed him 01 (one) iPhone 11 Pro Max box, 256GB, Green, IMEI: 353923106193341, still sealed, for inspection. B checked the box and asked T3 about how to use the phone and its condition. Then, B gave the reason of clearing the path for a truck and told T3 to move across the street to complete the transaction. B placed the phone box on the front floorboard of the motorcycle, unlocked it, sat on the motorcycle, and used his feet to push it while T3 guided the motorcycle by hand to No. 07 L Street. Here, B took 01 (one) wad of 50,000 VND banknotes (including 50 notes prepared beforehand) from his crossbody bag and handed it to T3 to check. While T3 was counting, B took out another wad (with one real 500,000 VND banknote on top, 100 hell money notes of 500,000 VND in the middle, and one real 100,000 VND banknote on the bottom), threw it towards T3, and quickly started the engine and accelerated away. T3 gave chase but could not catch him and reported the incident to the Phu Thanh Ward Police.
Afterward, B brought the snatched phone to N Phone Store, No. 31/15 U Street, Ward G, District T, and sold it to Mr. Luu Thanh N for 31,000,000 VND. Since he lacked cash, N used his V Bank account No. 0721000616605 to transfer the amount to B’s C Bank account No. 10236697. B spent all this money on personal needs.
According to Asset Appraisal Conclusion No. 763/KL-HDDGT-TTHS dated April 29, 2020, of the Asset Appraisal Council in Criminal Proceedings of Tan Phu District, 01 (one) iPhone 11 Pro Max, 256GB was valued at 34,990,000 VND.
Case 4: On January 29, 2020, B used a Redmi phone to log into the online shopping application K to order 01 (one) iPhone 11 Pro Max, 256GB, for 35,990,000 VND. B provided recipient information as To Hoang G, contact number 0563667801, delivery address 46 T Street, Ward E, District T.
Around 2:00 PM on January 30, 2020, Mr. Tran Hue C went to the K company warehouse to pick up the order for 01 (one) iPhone 11 Pro Max, 256GB, Gold, IMEI: 353909101879836 to deliver to customer To Hoang G and collect 35,990,000 VND. At about 5:00 PM the same day, Mr. C arrived at 46 T Street. Mr. C called 0563667801 and met B. At this time, B told Mr. C to change the delivery location to 86 M Street, Ward E, District T (as B saw 46 T Street was crowded). When Mr. C arrived at 86 M Street, B rode his Lead motorcycle (License Plate: 59L1-88433) there. Mr. C handed B the package for inspection. B unpacked it and saw a sealed iPhone box matching his order. After checking, B confirmed it was the right product but said he did not have enough money and told Mr. C to wait for him to withdraw more cash, returning the box to Mr. C. B drove away for 5 minutes then returned. B sat on the Lead motorcycle, stopping in front of Mr. C’s motorcycle, so Mr. C brought the package to B for a final check. B put the phone box into a yellow plastic bag hanging on the front hook of the motorcycle. B opened his crossbody bag and took out 02 (two) wads of money prepared earlier: 01 wad of 27 real notes of 50,000 VND; 01 wad with one 500,000 VND real note on top, hell money in the middle, and one 500,000 VND real note at the bottom. B handed the 50,000 VND wad to Mr. C. While Mr. C was distracted counting, B quickly unlocked the motorcycle, started the engine, and escaped toward H Street. Mr. C chased but could not catch him and reported the incident to the Hiep Tan Ward Police.
B then sold the snatched phone to N Phone Store, No. 31/15 U Street, to Ms. Le Hoang L (store employee) for 31,000,000 VND. Ms. L used her T Bank account No. 19021002760019 to transfer 26,000,000 VND to B’s T Bank account No. 19033815560015 and gave B an additional 5,000,000 VND in cash. B spent all the money on personal needs.
According to Asset Appraisal Conclusion No. 763/KL-HDDGT-TTHS dated January 30, 2020, of the Asset Appraisal Council in Criminal Proceedings of Tan Phu District, 01 (one) iPhone 11 Pro Max, 256GB was valued at 35,990,000 VND.
Case 5: Around 4:00 PM on February 4, 2020, B used a Redmi phone to log into the online shopping application L and registered to buy 01 (one) iPhone 11 Pro Max, Green, 512GB for 44,001,000 VND. B provided buyer information as To Hoang G, contact number 0563667873, and delivery address No. 04 L Street, Ward N, District T.
At about 8:00 AM on February 5, 2020, Mr. Tran The V (delivery person) went to Company X to pick up 01 (one) package (order No. LRT0002895925, item Apple iPhone 11 Pro Max with 18W fast charger), cash on delivery was 44,001,000 VND to deliver to customer To Hoang G at No. 04 L Street. Mr. V called 0563667873, met B, and informed him that delivery would occur in the morning; B agreed. Around 10:50 AM the same day, V called B saying he arrived. B rode the Honda Lead motorcycle (License Plate: 59L1-88433) to No. 07 L Street and met V. At this time, B took 02 (two) wads of money from his bag (one with a 500,000 VND real note on top, hell money in the middle, and a 100,000 VND real note at the bottom; the other wad was real money in various denominations). B held them in his hand and put them back in the bag to let Mr. V see and gain his trust. Then, Mr. V handed the package to B and requested payment before inspection. B disagreed and demanded to check first, so Mr. V called the company for instructions. Taking advantage of the moment V was distracted, B placed the package on the motorcycle floorboard, unlocked it, and told Mr. V he was pushing the bike to the curb to continue. B sat on the bike, pushed it forward, then suddenly accelerated and escaped. Mr. V shouted and chased on foot but could not catch him. B drove through many streets; across from No. 1446 S Street, B stopped and tore off the L company packaging. Inside was 01 (one) iPhone 11 Pro Max box labeled: MWHR2VN/A; iPhone 11 Pro Max, Midnight Green, 512 GB, Serial No: FK1ZJ1G5N715; IMEI: 35392525102781896, still sealed by FPT.
B brought the snatched phone to N Phone Store to sell. Ms. Le Hoang L (employee) agreed to buy it for 33,500,000 VND. Ms. L transferred the amount from her T Bank account No. 19021002760019 to B’s T Bank account No. 19033815560015. B later surrendered this amount to the Tan Phu District Police Investigation Agency.
According to Asset Appraisal Conclusion No. 763/KL-HDDGT-TTHS dated April 29, 2020, of the Asset Appraisal Council in Criminal Proceedings of Tan Phu District, 01 (one) iPhone 11 Pro Max, Green, 512GB was valued at 43,990,000 VND.
In the Criminal First-instance Judgment No. 111/2020/HS-ST dated August 27, 2020, the People’s Court of Tan Phu District, Ho Chi Minh City decided:
Pursuant to points c and d, clause 2, Article 171; point b and s, clause 1, Article 51; point g, clause 1, Article 52 of the Criminal Code 2015.
Declare defendant Nguyen Thanh Quoc B guilty of the crime: “Snatching assets”.
Sentence defendant Nguyen Thanh Quoc B to 06 (six) years in prison. The prison term is calculated from February 6, 2020.
In addition, the judgment also ruled on civil liability, handling of evidence, court fees, and the right to appeal of the defendant and other participants in the proceedings.
On September 25, 2020, the Chief Procurator of the People’s Procuracy of Ho Chi Minh City issued Appellate Protest No. 46/QD-VKS-P7 against the first-instance judgment, requesting the court to sentence defendant Nguyen Thanh Quoc B for the crime of “Fraudulent appropriation of assets” under points b and c, clause 2, Article 174 of the Criminal Code 2015 (amended and supplemented in 2017).
At the appellate trial, the representative of the People’s Procuracy of Ho Chi Minh City, after analyzing the nature, level, and consequences of the criminal acts, stated that defendant B and the victims had engaged in the handover of money and receipt of assets after the defendant used deceitful methods, making the victims mistakenly believe the money handed over was real. The victims trusted the defendant and handed over the goods, which the defendant then appropriated (total value 175,270,000 VND). Furthermore, the defendant committed 05 consecutive cases of appropriation, had no job, and used the money from selling stolen assets as his main source of livelihood, which constitutes a professional crime. Therefore, the Procuracy requested to accept Appellate Protest No. 46/QD-VKS-P7, amend the first-instance judgment, and sentence defendant Nguyen Thanh Quoc B for “Fraudulent appropriation of assets” under points b and c, clause 2, Article 174 of the Criminal Code with the same sentence as the first-instance court.
The defendant did not defend himself and did not participate in the debate. Last words: The defendant asked for a reduction in punishment.
COURT’S ASSESSMENT:
[1] Based on the case content and documents in the file that were debated at the trial, the Trial Panel assesses as follows:
[2] Appellate Protest No. 46/QD-VKS-P7 dated September 25, 2020, by the Chief Procurator of the People’s Procuracy of Ho Chi Minh City was made within the legal time limit and is valid, thus falling under the jurisdiction of the Appellate Court.
[3] Based on the testimony of defendant Nguyen Thanh Quoc B at the appellate trial, along with documents and evidence in the file, there is a sufficient basis to determine: From early January 2020 to February 4, 2020, Nguyen Thanh Quoc B used promotional SIMs to create accounts on online sales applications, ordering high-value phone products to appropriate and sell for personal spending. To approach the assets, the defendant prepared wads of banknotes from 50,000 VND to 500,000 VND, but each wad only had 02 real banknotes on the top and bottom, with hell money in the middle, tied with rubber bands. During delivery, B would let the delivery person see these prepared wads to gain trust. After receiving and checking the goods, B handed the prepared wads to the victims; taking advantage of the moment when victims were removing the rubber bands to check/count the money, B accelerated and drove away with the assets. Through these methods, the defendant appropriated assets from 05 victims, valued at 175,270,000 VND.
[4] Regarding Appellate Protest No. 46/QD-VKS-P7, the Trial Panel finds: Defendant Nguyen Thanh Quoc B used deceitful methods to let the victims see he had money, creating trust to approach the assets. At the time the defendant committed the appropriation, the parties were in the process of “delivery – payment”; the transfer of assets between the victims and the defendant was not complete, the defendant had not signed for the delivery, and the assets were still within the victims’ management range when the defendant accelerated and escaped. Therefore, Nguyen Thanh Quoc B’s actions constitute the crime of “Snatching assets”. First-instance Judgment No. 111/2020/HSST of the People’s Court of Tan Phu District applied clause 2, Article 171 of the Criminal Code 2015 (amended/supplemented in 2017) to sentence the defendant, which is grounded and lawful.
[5] However, considering defendant Nguyen Thanh Quoc B has no job, committed 05 consecutive cases of “Snatching assets”, and used the proceeds as his main source of livelihood, this falls under “Professional crime”. The First-instance Court’s failure to apply this circumstance when deciding the penalty was an omission. Therefore, the Appellate Trial Panel partially accepts Protest No. 46/QD-VKS-P7 regarding the application of the “Professional crime” circumstance under point b, clause 2, Article 171 of the Criminal Code. Regarding the circumstance of “using dangerous methods”, at the time of appropriation, the victim had only temporarily handed over the asset for the defendant to manage, after which the defendant accelerated to escape; this does not fall under “using dangerous methods” to snatch assets. Thus, the Appellate Trial Panel does not apply point d, clause 2, Article 171 of the Criminal Code.
[6] The sentence of 06 (six) years in prison for “Snatching assets” pronounced by the First-instance Court is appropriate for the nature, level, and consequences of the defendant’s acts; thus, the Appellate Trial Panel maintains the sentence.
[7] Other decisions of the first-instance judgment not subject to appeal or protest take effect from the expiry of the appeal/protest period.
[8] Defendant Nguyen Thanh Quoc B is not required to pay appellate criminal court fees as per the Criminal Procedure Code and Resolution No. 326/2016/UBTVQH14 of the National Assembly Standing Committee.
For these reasons,
DECIDES:
Pursuant to Article 345 and point b, clause 1, Article 355 of the Criminal Procedure Code: Partially accept Appellate Protest No. 46/QD-VKS-P7 dated September 25, 2020, of the Chief Procurator of the People’s Procuracy of Ho Chi Minh City and amend the first-instance judgment.
Pursuant to points b and c, clause 2, Article 171; points b and s, clause 1, Article 51; point g, clause 1, Article 52 of the Criminal Code 2015,
Sentence defendant Nguyen Thanh Quoc B to 06 (six) years in prison for the crime of “Snatching assets”.
The prison term is calculated from February 6, 2020.
Pursuant to Article 135 and Article 136 of the Criminal Procedure Code, and Resolution No. 326/2016/UBTVQH14 of the National Assembly Standing Committee.
Defendant Nguyen Thanh Quoc B is not required to pay appellate criminal court fees.
Other decisions of the first-instance judgment not subject to appeal or protest take effect from the expiry of the appeal/protest period.
The appellate judgment takes legal effect from the date of pronouncement.
PRECEDENT CONTENT:
“[4] Regarding Appellate Protest No. 46/QD-VKS-P7 dated September 25, 2020, by the Chief Procurator of the People’s Procuracy of Ho Chi Minh City, the Trial Panel finds: Defendant Nguyen Thanh Quoc B used deceitful methods to let the victims see he had money, creating trust to approach the assets. At the time the defendant committed the appropriation, the parties were in the process of delivery – payment; the transfer of assets between the victims and the defendant was not complete, the defendant had not signed for the delivery, and the assets were still within the victims’ management range when the defendant accelerated and escaped with the assets. Therefore, Nguyen Thanh Quoc B’s actions constitute the crime of “Snatching assets”. First-instance Judgment No. 111/2020/HSST dated August 27, 2020, of the People’s Court of Tan Phu District, Ho Chi Minh City applied clause 2, Article 171 of the Criminal Code 2015, amended and supplemented in 2017, to sentence defendant Nguyen Thanh Quoc B, which is grounded and lawful.”
