Precedent No. 59/2023/AL was adopted by the Judicial Council of the Supreme People’s Court on February 01, 02, and 03, 2023, and was 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 and decisions of the Courts regarding specific cases selected by the Judicial Council 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-HDTP)
A selected precedent must meet the following criteria:
– It contains value in clarifying legal provisions that have different interpretations, analyzing and explaining legal issues and events, and pointing out principles, handling directions, and legal norms to be applied in a specific case, or expressing fairness toward issues for which there are no specific legal provisions;
– It is exemplary;
– It serves as a guide for the uniform application of the law in adjudication.
2. Precedent No. 59/2023/AL on indirect intentional fault in the “Murder” case
2.1. Source of the precedent
Appellate Judgment No. 50/2020/HS-PT dated December 10, 2020, of the People’s Court of Yen Bai Province regarding the “Murder” case against defendants Trieu Van M and Dang Van T.
Location of the precedent content:
Paragraphs 3, 4, and 5 of the “Court’s Assessment” section.
2.2. Overview of the precedent content
– Precedent situation:
The defendant used a dangerous weapon to attack the victim. The victim fled on a motorcycle; the defendant continued to pursue, causing the victim to flee at high speed out of fear. The defendant only stopped the pursuit when the victim had an accident. The victim died on the way to the emergency room.
– Legal solution:
In this case, the defendant must bear criminal responsibility for the crime of “Murder” with indirect intentional fault.
Legal provisions related to the precedent:
Article 123 of the Criminal Code of Vietnam 2015 (amended and supplemented in 2017).
Keywords of the precedent:
“Murder”; “Indirect intentional fault”; “Operating a motorcycle to flee”; “Victim involved in an accident”.
CASE CONTENT:
According to the documents in the case file and the proceedings at the trial, the content of the case is summarized as follows:
On the evening of September 6, 2019, Trieu Van M and Dang Van T attended a wedding in K Village, T Commune, Y District, Yen Bai Province. At the wedding, M saw Nguyen Ngoc V going with Nguyen Thị L (born in 2004, residing in T Village, N Commune, B District, Yen Bai Province). Because M had previously been beaten by youths when hanging out in C Commune, upon seeing V (who was from C Commune) arriving, M invited T: “Hey, let’s beat up V later.” Since T had previously invited V for a drink but V declined, T felt disrespected and agreed, saying, “Keep an eye on him; let me know when he leaves.” At about 8:00 PM the same day, Nguyen Ngoc V rode a motorcycle carrying Nguyen Thi L home along the inter-village road. T and M also took their motorcycles, each riding one, to follow and attack V. T asked M, “Do you have the gear?” M replied, “Yes,” and M asked T, “Do you have gear?” T replied, “Yes.” M and T chased V for about 500 meters before overtaking him. At a deserted stretch of road in D Village, T Commune, Y District, M and T stopped to block V’s motorcycle. T opened the trunk and took out a shoulder bag containing a baton (a three-section metal baton with a black handle, maximum length of 64 cm when extended, 24 cm when retracted, 2.5 cm in diameter, and a circular tip 1.5 cm in diameter) and put it on. When V and L got off the motorcycle, M said, “Why are you leaving so soon?” while T said, “Last night I invited you for a drink and you didn’t drink; do you look down on me?” V replied, “Last night you guys beat me.” As soon as V finished speaking, M rushed in and punched V several times in the face, and they grappled and fought on the road. M sat on top of V and punched him in the face, while T rushed in and kicked V’s leg twice. V managed to get up and punch M in the face, so M grabbed V and pushed him into the embankment area next to the road. T took the baton out of the bag and struck V once on the left upper arm. At that time, M also took out a baton he was carrying (a three-section metal baton with a black handle, maximum length of 31 cm when extended, 1.0 cm in diameter) and struck V once in the chest. M hit him again from left to right, top to bottom, across V’s face, and then struck V three more times, dropping the baton there. Being in pain from the beating, V fled back toward the wedding. M chased and grabbed V’s shirt to pull him back, but V broke free. T then ran close and used the iron baton to strike V once more on the back before V escaped. T and M returned to their motorcycles, started them, and turned on the lights to continue searching. Meanwhile, Ms. L was also searching and found V lying by the roadside about 100 meters from where he was beaten. V told L, “I’m so tired, I’m exhausted.” Seeing the headlights of T and M’s motorcycles passing by, V stood up on his own, and L assisted him back to the road, where he walked toward his motorcycle. At the same time, T and M turned their motorcycles around and discovered V had started his motorcycle and driven about 2 meters with L. T and M accelerated to chase them. Seeing this, V also accelerated to flee. During the chase, T still held the iron baton while M shouted loudly, “F*** you guys, stop!” After chasing for about 100 meters, T fell off his motorcycle; M continued the pursuit alone. When reaching a downhill section where V was riding at high speed, Ms. L patted V on the shoulder and reminded him, “Slow down,” but V said nothing and did not decelerate. Upon reaching a three-way intersection (1,300 meters from where T and M had beaten him) in Village 4, T Commune, Y District, V failed to handle the situation and crashed into the garden of Mr. Pham Van H’s house. M saw this, turned his motorcycle back, met T riding toward him, and said, “V crashed,” then both went home. Nguyen Ngoc V was taken to the emergency room by local residents but died shortly thereafter.
Forensic Autopsy Conclusion No. 79/TT dated September 13, 2019, by the Forensic Center of Yen Bai Province concluded:
– Cause of death of Nguyen Ngoc V: Complex fracture of the skull in the right temporal region.
– Mechanism of injury: Skull fracture in the right temporal region caused by a strong impact from a blunt object with a large contact area from a frontal direction.
Forensic Injury Conclusion No. 112/TgT dated October 14, 2019, by the Forensic Center of Yen Bai Province concluded:
– Abrasions on the right parietal region: 1%; Bruising at the corner of the right eye: 1%; Abrasions on the bridge of the nose + right cheek: 1%; Abrasions in the center of the chest below the sternoclavicular joint: 1%; Bruising on the right chest below the nipple: 0%; Bruising on the right elbow: 1%; Abrasions and bruising on the back of the right hand: 0%; Abrasions on the right thigh, knee, and back of the right foot: 0%.
– The percentage of bodily injury of Nguyen Ngoc V at the time of examination via photographs was: 05% (Five percent).
Scene examination results determined: The three-way intersection where Nguyen Ngoc V and Nguyen Thi L crashed is a three-way junction, two-way road without a median strip, 3.5m wide; the road surface had tire skid marks; there were scrape marks on the garden ground of Mr. Pham Van H’s house (adjacent to the road); there was a bloodstain of unclear shape (0.3×0.2m) on a tarp covering a dry tree stump (0.53×0.34m).
During the first-instance stage, the families of defendants Dang Van T and Trieu Van M voluntarily compensated the family of victim Nguyen Ngoc V the amount of 80,000,000 VND.
In the First-instance Criminal Judgment No. 22/2020/HS-ST dated September 16, 2020, the People’s Court of Tran Yen District, Yen Bai Province decided:
1. Regarding the charge: Declared defendants Dang Van T and Trieu Van M guilty of “Intentional infliction of injury”.
2. Regarding the penalty: Applied point a, Clause 4, Article 134; points b, s, Clause 1, Article 51; point d, Clause 1, Article 52 of the Criminal Code; sentenced defendant Dang Van T to 14 years in prison; the prison term starts from the date of temporary detention, November 8, 2019; sentenced defendant Trieu Van M to 14 years in prison; the prison term starts from the date of temporary detention, November 8, 2019.
3. Regarding civil liability: Applied Articles 584, 585, 589, 590, 591, 357, and Clause 2, Article 468 of the Civil Code; ordered defendants Trieu Van M and Dang Van T to jointly compensate Mr. Nguyen Van T1 and Ms. Trieu Thị L1 the amount of 6,340,000 VND. Defendant T’s share is 3,170,000 VND, and defendant M’s share is 3,170,000 VND.
Additionally, the first-instance judgment decided on the civil liability of the defendants toward Ms. Nguyen Thi L, handled physical evidence, court fees, and the right to appeal for the defendants; it also recommended the People’s Court of Yen Bai Province to request the Chief Justice of the High People’s Court to protest and annul the First-instance Criminal Judgment No. 22/2020/HS-ST dated September 16, 2020, for investigation, prosecution, and trial for the crime of Murder under Article 123 of the Criminal Code.
– On September 19, 2020, the legal representatives of victim Nguyen Ngoc V, Mr. Nguyen Van T1 and Ms. Trieu Thi L1, appealed, disagreeing with the charge and requesting an increase in compensation.
– On October 1, 2020, defendants Dang Van T and Trieu Van M appealed for a reduction in punishment.
– In Appellate Protest Decision No. 02/QD-VKSTY dated September 29, 2020, the Chief Procurator of the People’s Procuracy of Tran Yen District, Yen Bai Province, requested the appellate trial to reduce the penalty for defendant Dang Van T.
At the appellate trial, defendants Dang Van T and Trieu Van M both confessed to all acts committed as stated in the first-instance judgment. The defendants maintained their appeal for a reduced penalty and did not accept the increase in compensation.
The defense counsel for the defendants agreed with the charge and legal provisions applied by the first-instance Court but argued that the sentences were too high; requested the appellate level to reduce the punishment as the defendants had many mitigating circumstances.
The legal representative protecting the rights and interests of the victim expressed disagreement with the charge decided by the first-instance Court; requested the appellate level to try the defendants with life imprisonment for the crime of “Murder” under point n, Clause 1, Article 123 of the Criminal Code; requested an increase in damages, requiring the defendants to compensate the legal representatives of the victim a total of 421,000,000 VND, acknowledging the defendants’ families had paid 80,000,000 VND.
The Procurator presented an opinion that the first-instance judgment convicting Trieu Van M and Dang Van T of “Intentional infliction of injury” under point a, Clause 4, Article 134 of the Criminal Code was grounded. However, the first-instance judgment’s assessment that the roles of the defendants were identical was inaccurate, as defendant Dang Van T was only an invitee and performed the criminal acts with a less aggressive intensity than Trieu Van M. Therefore, the protest by the Chief Procurator of the People’s Procuracy of Tran Yen District requesting a reduction in T’s penalty was grounded for acceptance. Regarding Trieu Van M’s appeal for a reduction in penalty and the legal representative’s appeal to change the charge and increase the penalty, there were no grounds for acceptance.
Regarding civil liability: Recommended the appellate level to partially accept the victim’s legal representatives’ appeal, increasing the compensation for mental distress to 100,000,000 VND, while other compensation amounts resolved by the first-instance level were in accordance with the law and should be maintained. Recommended, based on point b, Clause 1, Article 355; point b, Clause 1, and point b, Clause 2, Article 357 of the Criminal Procedure Code, to accept the protest by the Chief Procurator of the People’s Procuracy of Tran Yen District and the appeal of defendant Dang Van T; reject the appeal of Trieu Van M; partially accept the appeal of the victim’s legal representatives, amending First-instance Criminal Judgment No. 22/2020/HS-ST dated September 16, 2020, toward reducing the penalty for Dang Van T and increasing the compensation for mental distress for the victim’s representatives.
The defendants, defense counsel, and the victim’s legal representatives maintained their stances during the debate. In their final statements, the defendants requested leniency.
COURT’S ASSESSMENT:
[1] Based on the case content and documents in the case file debated at the trial, the Trial Panel finds as follows:
[2] The protest by the Chief Procurator of the People’s Procuracy of Tran Yen District, and the appeals of the defendants and the victim’s legal representatives are in the correct form, within the statutory time limit, and meet the conditions for appellate resolution.
[3] The testimonies at the appellate trial of defendants Dang Van T and Trieu Van M are consistent with each other and with other documents and evidence in the case file, such as the testimony of Nguyen Thi L, forensic conclusions, scene examination records, and physical evidence seized, which provide sufficient grounds to determine: At about 8:00 PM on December 6, 2018, Dang Van T and Trieu Van M used their hands and feet to punch and kick, then used metal batons to strike Nguyen Ngoc V several times on the head, face, arms, ribs, and back. When V rode a motorcycle to flee, T and M used their motorcycles to continue chasing V to attack at speeds exceeding 50 km/h. T held an iron baton while M shouted loudly, “F*** you guys, stop!” Seeing this, V accelerated to flee. Upon reaching a three-way intersection in Village 4, T Commune, Y District, due to high speed and losing control, V drove off the road onto vacant land, crashed, and died on the way to the emergency room.
[4] The acts of defendants T and M using metal batons, which are dangerous weapons, to strike V multiple times in the head, face, and body, and subsequently using motorcycles to pursue V, were very dangerous. V, already in pain from the beating and still being pursued, threatened, and intimidated by the defendants, was forced by fear of further assault to operate his motorcycle at high speed on an inter-village concrete road with many consecutive curves and steep slopes in dark conditions, which was likely to cause a dangerous accident leading to death. The defendants must have been aware of this but still continued to pursue V for 1,300 meters until they saw V crash. With the aforementioned dangerous acts, there are sufficient grounds to determine that the defendants’ criminal acts were very aggressive, proving that subjectively the defendants did not desire the fatal consequence, but they consciously accepted the possibility of the death occurring, and in fact, V died.
[5] Thus, there are sufficient grounds to conclude that defendants T and M committed the crime of “Murder” with indirect intentional fault. The first-instance level’s investigation, prosecution, and trial of the defendants for “Intentional infliction of injury” were inaccurate. Therefore, it is necessary to annul the first-instance judgment to initiate prosecution and investigation for a more serious crime than the one declared in the first-instance judgment, pursuant to point a, Clause 1, Article 358 of the Criminal Procedure Code.
[6] During the first-instance trial stage, the People’s Court of Tran Yen District returned the file for supplementary investigation as there were grounds to show the acts committed by the accused constituted “Murder,” but the People’s Procuracy of Tran Yen District maintained the prosecution for “Intentional infliction of injury.” Thus, the People’s Court of Tran Yen District adjudicated within its jurisdiction and recommended a protest regarding the charge in the judgment. Therefore, the first-instance Court is not at fault for the appellate Court’s annulment of the first-instance judgment.
[7] Since the first-instance judgment is annulled for re-investigation, the contents of the appeal and protest regarding the penalty and civil liability will be considered and resolved during the re-investigation, prosecution, and re-trial of the case.
[8] The defendants and the legal representatives of the victim are not liable for appellate court fees.
For these reasons;
DECISION:
Pursuant to point c, Clause 1, Clause 2, Article 355; point a, Clause 1, Article 358 of the Criminal Procedure Code,
1. Annul First-instance Criminal Judgment No. 22/2020/HS-ST dated September 16, 2020, of the People’s Court of Tran Yen District, Yen Bai Province, for re-investigation.
Transfer the case file to the People’s Procuracy of Yen Bai Province for resolution in accordance with the law.
2. Regarding court fees: Pursuant to point f, Clause 2, Article 23 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016, of the National Assembly Standing Committee on court fees and charges, the defendants and the legal representatives of the victim are not liable for appellate court fees.
The appellate criminal judgment takes effect from the date of pronouncement.
PRECEDENT CONTENT
“[3] The testimonies at the appellate trial of defendants Dang Van T and Trieu Van M are consistent with each other and with other documents and evidence in the case file, such as the testimony of Nguyen Thi L, forensic conclusions, scene examination records, and physical evidence seized, which provide sufficient grounds to determine: At about 8:00 PM on December 6, 2018, Dang Van T and Trieu Van M used their hands and feet to punch and kick, then used metal batons to strike Nguyen Ngoc V several times on the head, face, arms, ribs, and back. When V rode a motorcycle to flee, T and M used their motorcycles to continue chasing V to attack at speeds exceeding 50 km/h. T held an iron baton while M shouted loudly, “F*** you guys, stop!” Seeing this, V accelerated to flee. Upon reaching a three-way intersection in Village 4, T Commune, Y District, due to high speed and losing control, V drove off the road onto vacant land, crashed, and died on the way to the emergency room.
[4] The acts of defendants T and M using metal batons, which are dangerous weapons, to strike V multiple times in the head, face, and body, and subsequently using motorcycles to pursue V, were very dangerous. V, already in pain from the beating and still being pursued, threatened, and intimidated by the defendants, was forced by fear of further assault to operate his motorcycle at high speed on an inter-village concrete road with many consecutive curves and steep slopes in dark conditions, which was likely to cause a dangerous accident leading to death. The defendants must have been aware of this but still continued to pursue V for 1,300 meters until they saw V crash. With the aforementioned dangerous acts, there are sufficient grounds to determine that the defendants’ criminal acts were very aggressive, proving that subjectively the defendants did not desire the fatal consequence, but they consciously accepted the possibility of the death occurring, and in fact, V died.
[5] Thus, there are sufficient grounds to conclude that defendants T and M committed the crime of “Murder” with indirect intentional fault…”.
