Precedent No. 64/2023/AL on the determination of sentencing brackets and the “organized” aggravating sentencing factor in the crime of “Kidnapping for the purpose of appropriating property”

Precedent No. 64/2023/AL was adopted by the Council of Justices of the Supreme People’s Court on August 18, 2023, and published under Decision No. 364/QD-CA dated October 01, 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 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 that clarify legal provisions which have different interpretations; analyzes and explains legal issues and events and points out principles, guidelines for handling, and legal norms to be applied in a specific case, or demonstrates equity towards issues not yet specifically prescribed by law;

– It possesses standard characteristics;

– It has guiding value for the uniform application of the law in adjudication.

2. Precedent No. 64/2023/AL on the determination of sentencing brackets and the “organized” aggravating sentencing factor in the crime of “Kidnapping for the purpose of appropriating property”

2.1. Source of the Precedent

Cassation Decision No. 15/2022/HS-GDT dated October 4, 2022, of the Council of Justices of the Supreme People’s Court regarding the criminal case of “Kidnapping for the purpose of appropriating property” against defendant Tran Van N and accomplices.

Location of the precedent content:

Paragraphs 7, 8, 12, 13, and 14 of the “Court’s Assessment” section.

2.2. Overview of the Precedent Content

– Precedent Situation 1:

The defendant planned and prepared crime-committing tools and means to kidnap the victim for the purpose of appropriating property but had not yet appropriated the property.

– Legal Solution 1:

In this case, the defendant must be held criminally liable for the crime of “Kidnapping for the purpose of appropriating property”. The Court must base the sentencing bracket on the value of the property the defendant intended to appropriate.

– Precedent Situation 2:

Among the defendants, there is a leader/initiator who directly invited other defendants to participate in the detention of the victim to appropriate property, planned, and assigned tasks to other defendants; there is close collusion between the defendants, who performed the acts consistently under the direction of the leading defendant.

– Legal Solution 2:

In this case, the defendants must be held criminally liable for the crime of “Kidnapping for the purpose of appropriating property” with the aggravating sentencing factor of being “organized” as prescribed in Point a, Clause 2, Article 169 of the 2015 Criminal Code (amended and supplemented in 2017).

Legal provisions related to the precedent:

The Criminal Code of Vietnam 2015 (amended and supplemented in 2017).

Keywords of the precedent:

“Crime of kidnapping for the purpose of appropriating property”; “Sentencing bracket determination”; “Organized”.

CASE CONTENT:

Around August 2018, Tran Van N lent Luu Manh T 150,000,000 VND, but despite multiple demands, T did not repay and fled to Ho Chi Minh City. Therefore, N came up with the intention to lure T to Hanoi to detain him for debt collection. N borrowed Nguyen Dieu L’s Zalo account, impersonated L to make friends, talk, and set a date with T to go out in District A, Vinh Phuc province on the afternoon of January 15, 2019.

On January 12, 2019, N invited L, Nguyen Quang T1, Nguyen Van D, and Phan Van Q to participate in detaining T to collect the debt; L, T1, D, and Q agreed. N prepared 03 telescopic batons (each about 60cm long), 01 tear gas spray, 01 electric lighter, and 01 pair of handcuffs.

At about 2:30 PM on January 15, 2019, N told D to hire a taxi from Trinh Anh T2 to transport N, L, D, Q, and T1 to Noi Bai Airport. In the car, N discussed the method of detaining T with L, D, Q, and T1; thus, T2 clearly knew that these individuals were going to the airport to detain T for debt collection. In the car, L received a phone call from T informing her that he would arrive at Noi Bai Airport at 7:00 PM that same day.

Around 3:00 PM on January 15, 2019, T2 drove N, L, D, Q, and T1 to Noi Bai Airport and rented 02 rest rooms near the airport. Here, N and D informed T2 of the plan to detain T, specifically: L would hire another taxi to pick up T first, while T2 would wait and follow behind; when the taxi carrying L and T stopped, T2 would park behind for everyone to run up and detain T. T2 agreed.

Around 7:20 PM on January 15, 2019, L picked up T and hired a taxi heading towards District A, Vinh Phuc province. T2 drove N, D, Q, and T1 behind. In the car, N gave D and T1 each 01 telescopic baton and gave Q 01 tear gas spray. After traveling about 15 km, the taxi carrying L and T stopped, and T2’s car stopped behind. N, Q, D, and T1 got out and ran to T’s taxi. T1 took L to T2’s car. N opened the rear left door, D opened the rear right door, and Q opened the front passenger door of T’s taxi and sprayed tear gas into T’s face. N and D used the batons to hit T; N and Q used their hands to punch T’s face until T begged to repay the debt, then N, Q, and D stopped. N and D held T’s hands, and N provided handcuffs for D to lock one end to T’s right hand and the other end to the base of the driver’s seat. D used a shirt to cover T’s head and requested the driver to head towards Bac Ninh. Arriving in Bac Ninh, N told T1 to take T to be detained at T1’s scrap warehouse for one day. N moved to the car driven by T2 with T1 and L to lead the way; the taxi carrying Q, D, and T followed behind. Upon arrival, D told the taxi driver to drive straight into the warehouse; T2’s car parked outside while N and L entered the warehouse. About 5 minutes later, T2 drove home, and T1 closed the warehouse door. Q got out of the car carrying a backpack, while T remained handcuffed in the taxi. N took and deleted all messages and call history between T and L on T’s phone. Q checked T’s wallet and kept the wallet, ATM card, and ID card, while returning 2,700,000 VND to T. Subsequently, N, D, and Q took T out of the car and into the restroom. Q used handcuffs to lock T’s hands, used rope to tie both hands behind his back, used duct tape to wrap his hands, and gagged T’s mouth. N and D took a taxi back to N’s house, where N took a chain about 1.5m long, then went to buy food and returned to the warehouse. N paid the fare and drove the taxi away. L, N, T1, D, Q, and T ate at the warehouse. While eating, Q told T that if he repaid N, he would be released. After eating, Q and D moved T to the right corner of the warehouse, used duct tape to bind T’s legs and left hand, while the right hand remained locked with handcuffs and a chain to an iron pillar in the warehouse so that T could not escape or commit suicide. At about midnight on January 15, 2019, N, T1, and L left while D and Q stayed at the warehouse to guard T.

On the afternoon of January 16, 2019, N, T1, D, Q, and L gathered at the warehouse. N gave T a phone and forced him to call home, telling his family to transfer money into T’s account and withdraw it to repay N. At about 1:00 PM the same day, D called T2 to pick him up at the warehouse. N punched T’s right eye, gave him the phone, and forced him to call home, demanding the family transfer 150,000,000 VND into T’s account. T called his ex-wife, Ms. Dam Thi Phuong L1, telling her he was detained for debt and asking L1 to tell his parents to borrow money and transfer it into his account so he could be released. Because they were divorced, L1 did not follow T’s request. T called his paternal aunt, Ms. Luu Thi L2, saying he owed money, was captured, beaten, and tied up, and asked L2 to tell his parents to borrow money to save him. L2 went to the house to inform them, but T’s parents had no money to send. T called his friend, Hoang Thi L3, saying he owed money and was being held in Bac Ninh, asking L3 to transfer money so he could be released.

Around 2:00 PM on January 16, 2019, seeing that T’s family had not transferred the money, Q used a bamboo pipe to hit T. N grabbed a fire extinguisher and threw it towards T, then kicked T. That evening, L hired a taxi back to Hanoi; N borrowed a car and, together with D and T, took T to Q’s rented room. Q used a chain to tie T to the bed frame. D and T1 left.

Q kept T from January 17, 2019, until the morning of January 18, 2019. At Q’s rented room, T asked N to take photos of him being beaten and tied up to send to Ms. Hoang Thi L3 and to call Ms. Luu Thi H (T’s cousin) so that T’s family would believe and transfer money into T’s account to repay N. N told T to tell H that if the debt was not repaid, N would cut off T’s hand, so H agreed to arrange the ransom money to pay the debt for T.

At about 1:00 AM on January 19, 2019, T2 drove Q, D, and T to the cemetery of Village X, Commune Y, District P. Q and D threatened to burn T. After that, T2 drove Q, D, and T to a karaoke bar in Village A, Commune Y1, District P. Q took T to room 701 and guarded him, while D and T2 left. Around 8:00 AM on January 19, 2019, D arrived to replace Q in guarding T. D forced T to call home to demand a transfer and checked T’s account, finding 38,928,049 VND, of which: the available balance was 23,928,049 VND, the amount Ms. Luu Thi H transferred at 10:12 AM on January 19, 2019, was 10,000,000 VND, and at 10:30 AM on January 19, 2019, was 5,000,000 VND.

At about 11:00 AM on January 19, 2019, D took T to the Police headquarters to surrender. Subsequently, T2, N, T1, and D also surrendered. On February 19, 2019, Q surrendered. On February 21, 2019, L surrendered.

In the First-Instance Criminal Judgment No. 49/2019/HSST dated October 08, 2019, the People’s Court of Bac Ninh province applied Point e, Clause 2, Article 169; Points b, s, Clause 1, Clause 2, Article 51 of the Criminal Code, and sentenced:

– Tran Van N to 42 months in prison for the crime of kidnapping for the purpose of appropriating property.

– Phan Van Q to 36 months in prison for the crime of kidnapping for the purpose of appropriating property.

– Nguyen Van D to 36 months in prison for the crime of kidnapping for the purpose of appropriating property.

– Nguyen Dieu L to 30 months in prison but suspended, with a probation period of 60 months from the date of the first-instance sentencing for the crime of kidnapping for the purpose of appropriating property.

– Nguyen Quang T1 to 30 months in prison but suspended, with a probation period of 60 months from the date of the first-instance sentencing for the crime of kidnapping for the purpose of appropriating property.

– Trinh Anh T2 to 30 months in prison but suspended, with a probation period of 60 months from the date of the first-instance sentencing for the crime of kidnapping for the purpose of appropriating property.

On October 21, 2019, Tran Van N, Phan Van Q, and Nguyen Van D appealed for a review of the charges, reduction of penalties, and suspended sentences.

In the Appellate Criminal Judgment No. 535/2020/HSPT dated October 30, 2020, the High People’s Court in Hanoi accepted the defendants’ appeals; applied Clause 1, Article 169, Points b, s, Clause 1, Clause 2, Article 51, and sentenced Tran Van N and Phan Van Q to 24 months in prison, Nguyen Van D to 24 months suspended sentence, Nguyen Dieu L, Nguyen Quang T1, and Trinh Anh T2 to 18 months suspended sentences, all for the crime of kidnapping for the purpose of appropriating property.

In Cassation Protest Decision No. 29/QD-VKSTC dated August 31, 2021, the Prosecutor General of the Supreme People’s Procuracy protested the Appellate Criminal Judgment No. 535/2020/HSPT dated October 30, 2020, of the High People’s Court in Hanoi regarding the criminal liability part for Tran Van N, Phan Van Q, Nguyen Van D, Nguyen Quang T1, Nguyen Dieu L, and Trinh Anh T2. It was requested that the Council of Justices of the Supreme People’s Court conduct a cassation trial to annul the aforementioned appellate judgment and the First-Instance Criminal Judgment No. 49/2019/HSST dated October 08, 2019, of the People’s Court of Bac Ninh province regarding the criminal liability part of the defendants to retry at the first-instance level towards applying Points a, e, Clause 2, Article 169 of the Criminal Code for all defendants, increasing penalties, and not granting suspended sentences to the masterminds, leaders, and active executors.

At the cassation trial, the representative of the Supreme People’s Procuracy requested the Council of Justices of the Supreme People’s Court to accept the protest of the Prosecutor General; annul the Appellate Criminal Judgment No. 535/2020/HSPT and the First-Instance Criminal Judgment No. 49/2019/HSST regarding the criminal liability of the defendants to retry towards applying Points a, e, Clause 2, Article 169 of the Criminal Code, increasing penalties, and not granting suspended sentences for the masterminds, leaders, and active executors.

COURT’S ASSESSMENT:

[1] Regarding the charges:

[2] During the investigation and at the first-instance and appellate trials, the defendants confessed to their entire criminal acts; the confessions of the defendants are consistent with the statements of the victim, witnesses, and other documents and evidence in the case file, providing sufficient basis to determine:

[3] Around August 2018, Mr. Luu Manh T borrowed 150,000,000 VND from Tran Van N. Because T did not repay despite multiple demands, quit his job, and fled to Ho Chi Minh City, N thought of a way to detain T to collect the debt. After discussion, defendants Phan Van Q, Nguyen Van D, Nguyen Dieu L, Nguyen Quang T1, and Trinh Anh T2 agreed to participate. The defendants used ropes to tie, beat, and detain T from about 7:20 PM on January 15, 2019, to about 11:00 AM on January 19, 2019, to exert pressure, aiming to force T to notify his family to transfer 150,000,000 VND into T’s account to repay N.

[4] The aforementioned acts of defendants N, Q, D, L, T1, and T2 satisfy all elements of the crime of kidnapping for the purpose of appropriating property as prescribed in Article 169 of the Criminal Code. The conviction of the defendants by the First-Instance and Appellate Courts under this charge is grounded and lawful.

[5] Regarding the penalties:

[6] Regarding the aggravating sentencing factor under Point e, Clause 2, Article 169 of the Criminal Code.

[7] In this case, the defendants performed acts of detaining, tying, locking up, and beating Mr. Luu Manh T to exert pressure so that T would have to call his family and relatives to transfer the 150,000,000 VND that T had borrowed from Tran Van N into T’s account to repay N before T could be released. Thus, the purpose of the chain of acts performed by the defendants was to appropriate 150,000,000 VND from T’s family. The fact that Ms. Luu Thi H (T’s cousin) had only transferred twice with a total of 15,000,000 VND into T’s account, and that there was 23,928,049 VND already in T’s account but the defendants had not yet forced T to withdraw this amount to give to them, does not change the original appropriation purpose of 150,000,000 VND of the defendants.

[8] Therefore, the defendants must bear criminal responsibility for the amount of 150,000,000 VND, which was the purpose of appropriation from the beginning of T’s detention. The defendants must be tried for the crime of “Kidnapping for the purpose of appropriating property” with the sentencing factor “appropriating property valued from 50,000,000 VND to under 200,000,000 VND” as prescribed in Point e, Clause 2, Article 169 of the Criminal Code.

[9] Regarding the Appellate Court’s argument that the defendants in this case should only be prosecuted under Clause 1, Article 169 of the Criminal Code on the grounds that the defendants had not yet appropriated the 150,000,000 VND from T’s family: the crime of “Kidnapping for the purpose of appropriating property” is a formal crime (crimes with formal constituents). Therefore, the time of completion of the crime is when the defendants performed the act of detaining Mr. Luu Manh T and exerting pressure so that T’s family would have to transfer the 150,000,000 VND as requested into T’s account for T to withdraw and repay N before being released. The completion of the crime does not depend on whether the defendants actually appropriated this 150,000,000 VND or not. The factor “appropriating property valued from 50,000,000 VND to under 200,000,000 VND” is an aggravating sentencing factor of Clause 1, Article 169, thus it still follows the formal constituent principle of Clause 1, whereby the “amount of appropriated property” for sentencing purposes must still be considered according to the appropriation purpose of the defendants when performing the detention of T. The Appellate Court’s view that the phrase “for the purpose of appropriating property” in Clause 1 and the phrase “appropriated amount” in Clause 2, Article 169 of the Criminal Code must be understood differently—whereby Clause 1 only requires the purpose of appropriation regardless of actual success, while Clause 2 requires actual appropriation—is groundless.

[10] The cassation protest of the Supreme People’s Procuracy, asserting that the defendants need to be tried with the aggravating sentencing factor “appropriating property valued from 50,000,000 VND to under 200,000,000 VND” under Point e, Clause 2, Article 169 of the Criminal Code, is grounded and lawful, and should be accepted.

[11] Regarding the aggravating sentencing factor under Point a, Clause 2, Article 169 of the Criminal Code:

[12] In this case, defendant Tran Van N was the initiator; directly invited other defendants (Q, D, L, T1, T2) to participate in the detention of Mr. Luu Manh T to appropriate the 150,000,000 VND that T borrowed from N; directly prepared crime-committing tools and means such as handcuffs, ropes, tear gas…; was the person who planned and assigned tasks to other defendants, from using L’s Zalo account to impersonate her and lure T from Ho Chi Minh City to Hanoi, choosing the pickup location (Noi Bai Airport), assigning L to pick up T, choosing the location and time for the taxi carrying L and T to stop so that the car carrying N and accomplices could approach and detain T, choosing the detention location, and assigning people to guard T… therefore, N was the organizer, leader, and mastermind. Other defendants were executors and active helpers for N in the plan to detain T to exert pressure so T’s family would transfer money as requested into T’s account to appropriate and offset the debt. There was close collusion between N and the other defendants, and the other defendants all performed consistently under N’s direction. The acts of detaining, tying, locking up, and beating T to appropriate 150,000,000 VND from T’s family lasted from January 12, 2019, to January 19, 2019. Therefore, the acts of the defendants show signs of being “organized” as prescribed in Point a, Clause 2, Article 169 of the Criminal Code.

[13] The fact that the First-Instance Court only tried the defendants with the aggravating sentencing factor “appropriating property valued from 50,000,000 VND to under 200,000,000 VND” under Point e, Clause 2, Article 169 of the Criminal Code without considering the “organized” factor as analyzed above was an omission.

[14] The cassation protest of the Supreme People’s Procuracy requesting the additional application of the “organized” aggravating sentencing factor under Point a, Clause 2, Article 169 of the Criminal Code is grounded and should be accepted.

[15] Regarding the penalties:

[16] Roles of the defendants in the case:

[17] Defendant Tran Van N was the initiator, playing the role of mastermind and leader.

[18] Defendants Phan Van Q and Nguyen Van D, when invited by N to participate in detaining T for debt collection, actively assisted N; Q and D also performed acts of detaining, tying, beating, and threatening the victim, thus holding the second role after N.

[19] Defendants Nguyen Quang T1 and Trinh Anh T2 held the third role in the case. Although Trinh Anh T2 was not part of the prior discussions, at the rest room near Noi Bai Airport, when N discussed the detention of T, T2 agreed and drove the car under N’s direction.

[20] Defendant Nguyen Dieu L performed the act of lending N her Zalo account to make friends and lure T from Ho Chi Minh City to Hanoi; participated in picking up and bringing T to the meeting point as planned. However, when N’s group detained T, L left for Hanoi and did not participate further. Therefore, L held the lowest role in the case.

[21] Regarding the aggravating and mitigating factors of the defendants:

[22] Aggravating factors: The defendants have no aggravating factors.

[23] Mitigating factors: All defendants surrendered, truthfully confessed their crimes, and showed remorse; the defendants compensated the victim with 20,000,000 VND, and the victim submitted an application for sentence reduction for all defendants. Therefore, the defendants are entitled to mitigating factors prescribed in Points b, s, Clause 1, and Clause 2, Article 51 of the Criminal Code.

[24] Defendants L, Q, T1, and T2 have parents or grandparents who were awarded resistance war medals/orders, thus Clause 2, Article 51 of the Criminal Code is additionally applied.

[25] At the appellate stage, defendant Nguyen Van D had an additional mitigating factor: credited with reporting 02 cases of robbery and theft, as recognized by the Police of District P, Bac Ninh province. Defendant Tran Van N submitted additional documents showing he is worshiping a martyr, his grandparents received many medals/orders; he also provided information for the investigation agency to arrest a subject for illegal drug trafficking and was confirmed by the local authorities for active voluntary participation in the Covid-19 prevention movement.

[26] Regarding personal background: Defendants N, Q, D, and L all have good personal backgrounds. Although T1 and T2 had been tried before, their criminal records were automatically expunged quite a long time before committing the crime in this case.

[27] Regarding the sentencing decision:

[28] From the aforementioned analyses, the Council of Justices finds that:

[29] The criminal acts of defendants N, Q, D, L, T1, and T2 in this case must be considered for criminal liability under Points a, e, Clause 2, Article 169 of the Criminal Code.

[30] The First-Instance Court’s trial of the defendants with only 01 aggravating factor under Point e, Clause 2, Article 169, and applying Article 54 of the Criminal Code to sentence the defendants below the minimum level of the sentencing bracket (from 05 to 12 years) was not strict enough.

[31] The Appellate Court’s amendment of the first-instance judgment, trying the defendants under Clause 1, Article 169 of the Criminal Code and reducing penalties for all defendants, was groundless.

[32] Since after the first-instance trial, the defendants appealed for a reduction of penalties, the appellate trial cannot be retried in a way that increases penalties to the detriment of the defendants. Therefore, it is necessary to accept the protest of the Supreme People’s Procuracy, annul both the appellate and first-instance judgments for a first-instance retrial to comprehensively and objectively consider the dangerous nature of the defendants’ crimes, and then decide on appropriate penalties based on the position and role of each defendant.

For these reasons,

DECISION:

Pursuant to Article 382, Clause 3, Article 388, Article 391, and Article 394 of the 2015 Code of Criminal Procedure.

1. Accept the Cassation Protest Decision No. 29/QD-VKSTC dated August 31, 2021, of the Prosecutor General of the Supreme People’s Procuracy.

2. Annul the Appellate Criminal Judgment No. 535/2020/HSPT dated October 30, 2020, of the High People’s Court in Hanoi and the First-Instance Criminal Judgment No. 49/2019/HSST dated October 08, 2019, of the People’s Court of Bac Ninh province regarding the criminal liability part for Tran Van N, Phan Van Q, Nguyen Van D, Nguyen Quang T1, Nguyen Dieu L, and Trinh Anh T2.

3. Transfer the case file to the People’s Court of Bac Ninh province for a first-instance retrial in accordance with the law.

PRECEDENT CONTENT

“[7] In this case, the defendants performed acts of detaining, tying, locking up, and beating Mr. Luu Manh T to exert pressure so that T would have to call his family and relatives to transfer the 150,000,000 VND that T had borrowed from Tran Van N into T’s account to repay N before T could be released. Thus, the purpose of the chain of acts performed by the defendants was to appropriate 150,000,000 VND from T’s family. The fact that Ms. Luu Thi H (T’s cousin) had only transferred twice with a total of 15,000,000 VND into T’s account, and that there was 23,928,049 VND already in T’s account but the defendants had not yet forced T to withdraw this amount to give to them, does not change the original appropriation purpose of 150,000,000 VND of the defendants.

[8] Therefore, the defendants must bear criminal responsibility for the amount of 150,000,000 VND, which was the purpose of appropriation from the beginning of T’s detention. The defendants must be tried for the crime of “Kidnapping for the purpose of appropriating property” with the sentencing factor “appropriating property valued from 50,000,000 VND to under 200,000,000 VND” as prescribed in Point e, Clause 2, Article 169 of the Criminal Code.”

“[12] In this case, defendant Tran Van N was the initiator; directly invited other defendants (Q, D, L, T1, T2) to participate in the detention of Mr. Luu Manh T to appropriate the 150,000,000 VND that T borrowed from N; directly prepared crime-committing tools and means such as handcuffs, ropes, tear gas…; was the person who planned and assigned tasks to other defendants, from using L’s Zalo account to impersonate her and lure T from Ho Chi Minh City to Hanoi, choosing the pickup location (Noi Bai Airport), assigning L to pick up T, choosing the location and time for the taxi carrying L and T to stop so that the car carrying N and accomplices could approach and detain T, choosing the detention location, and assigning people to guard T… therefore, N was the organizer, leader, and mastermind. Other defendants were executors and active helpers for N in the plan to detain T to exert pressure so T’s family would transfer money as requested into T’s account to appropriate and offset the debt. There was close collusion between N and the other defendants, and the other defendants all performed consistently under N’s direction. The acts of detaining, tying, locking up, and beating T to appropriate 150,000,000 VND from T’s family lasted from January 12, 2019, to January 19, 2019. Therefore, the acts of the defendants show signs of being “organized” as prescribed in Point a, Clause 2, Article 169 of the Criminal Code.

[13] The fact that the First-Instance Court only tried the defendants with the aggravating sentencing factor “appropriating property valued from 50,000,000 VND to under 200,000,000 VND” under Point e, Clause 2, Article 169 of the Criminal Code without considering the “organized” factor as analyzed above was an omission.

[14] The cassation protest of the Supreme People’s Procuracy requesting the additional application of the “organized” aggravating sentencing factor under Point a, Clause 2, Article 169 of the Criminal Code is grounded and should be accepted.”