Precedent No. 01/2016/AL

About the case of "Murder"

Approved by the Council of Judges of the Supreme People's Court on April 6, 2016 and promulgated under Decision No. 220/QD-CA dated April 6, 2016 of the Chief Justice of the Supreme People's Court.

Source of case law

Final judgment No. 04/2014/HD-GDT dated April 16, 2014 of the Council of Judges of the Supreme People's Court on the case of "Murder" against the defendant: Dong Xuan Phuong, born in 1975; residing at No. 11/73 Dinh Tien Hoang Street, Hoang Van Thu Ward, Hong Bang District, Hai Phong City; is a construction worker; son of Mr. Dong Xuan Chi and Ms. Duong Thi Thong; arrested on June 22, 2007

Victim: Nguyen Van Soi, born in 1971 (deceased)

Overview of case law

In a case with an accomplice, if it can be proven that the mastermind's subjective intention was to only hire someone else to injure the victim without the intention of taking their life (the mastermind only requested to injure the victim's legs and arms without requesting to attack vital parts of the body that could lead to death); the perpetrator also carried out the act in accordance with the mastermind's request; the victim's death was beyond the mastermind's subjective intention, then the mastermind must bear criminal responsibility for the crime of "Intentionally causing injury" with the sentencing circumstance being "causing injury leading to death".

Legal provisions relating to precedents

• Point m, n Clause 1 Article 93 of the 1999 Penal Code
• Clause 3, Article 104 of the 1999 Penal Code

Keywords of case law

“Murder”, “Intentionally causing injury”, “Causing harm to the health of others”, “Crimes against life and health”; “Hiring others to cause injury”

Contents of the case

At about 3:00 p.m. on June 21, 2007, Long Bien District Police, Hanoi City received a report that a crime had occurred, with a victim found dead at the concrete beam casting area of ​​Thanh Tri Bridge construction in Group 12, Thach Ban Ward, Long Bien District; the victim was Nguyen Van Soi (a construction engineer at Construction Joint Stock Company 204, a subsidiary of Bach Dang Construction Corporation). Through investigation and verification, Long Bien District Police urgently arrested Dong Xuan Phuong.

The investigation determined that Nguyen Van Soi and Dong Xuan Phuong both worked at Construction Joint Stock Company 204 under Bach Dang Construction Corporation (assigned to construct Thanh Tri Bridge). Around February 2007, Phuong got drunk during work hours, and was photographed by Soi using his cell phone, which was reported to the leadership, so Phuong intended to take revenge on Soi.

On June 14, 2007, Dong Xuan Phuong called his friend Doan Duc Lan, born in 1975 (residing at house number 11 C98 Trai Chuoi, Hong Bang district, Hai Phong city) to tell him about the above conflict and hired Lan to beat him in revenge. Lan said he would introduce someone else to do it. On the evening of June 17, 2007, Phuong returned from Hanoi to Hai Phong to meet Lan and Lan's friend Hoang Ngoc Manh, born in 1982 (also known as Thang; residing in So Dau ward, Hong Bang district, Hai Phong city) to tell him about the conflict and hiring Lan and Manh to beat Mr. Soi by stabbing the victim's legs and arms with a knife to cause injuries. Dong Xuan Phuong asked how much it cost, Manh and Lan said it was up to Phuong, so Phuong gave Manh 1,500,000 VND. Lan and Manh agreed.

At about 8:00 p.m. on June 20, 2007, Hoang Ngoc Manh went with Nam (Manh's friend; address unknown) to Hanoi to meet Dong Xuan Phuong and agreed to beat Soi on June 21, 2007; then Phuong gave Manh an additional 500,000 VND to rent a place to sleep. At about 9:00 a.m. on June 21, 2007, Phuong led Manh and Nam to the road Soi would take to attend a meeting early that afternoon; then returned to the Company. At about 11:00 a.m., Hoang Ngoc Manh went to a coffee shop at the intersection of Highway 5 - 1B (Ms. Pham Thi Mien's shop) to rent Ms. Mien's cell phone to call Dong Xuan Phuong and ask for a description of Soi's identification and to inform him of his cell phone number; Phuong did as Manh requested. At around 1:00 p.m., Manh rented Ms. Mien's cell phone to call Phuong to inform her that he had identified Mr. Soi and that Manh would do it alone because Nam had gone somewhere without informing her. Dong Xuan Phuong agreed.

At around 2:16 p.m. the same day, Manh rented Ms. Mien's cell phone to call and arrange to meet Mr. Soi at the concrete beam casting area. When Mr. Soi arrived, Manh used a sharp knife that he had prepared in advance to stab him twice in the back of his right thigh, killing Mr. Soi.

In the Forensic Examination Report No. 146/PC21-PY dated July 17, 2007, the Criminal Techniques Department - Hanoi City Police concluded: the victim had 02 wounds on the back of the right thigh, the upper wound penetrated the thigh muscle 3cm. The lower wound severed the posterior femoral artery and vein, causing a lot of blood loss. Cause of death: irreversible acute hemorrhagic shock due to an arterial wound.

In addition, during the investigation, Dong Xuan Phuong also stated that in addition to the conflict between the defendant and Mr. Soi, the reason for hiring Mr. Soi to stab was also because he was provoked by Mr. Ngo Van Toan (Deputy of the Thanh Tri Bridge Project Management Board), because Mr. Toan had previously had a conflict with Mr. Soi. The investigation agency took Mr. Toan's statement, but Mr. Toan did not admit this. The investigation results did not provide any basis to conclude that Mr. Toan was involved in the case.

Doan Duc Lan and Hoang Ngoc Manh escaped. The Investigation Agency has issued a wanted notice and decided to temporarily suspend the investigation of the accused Doan Duc Lan and Hoang Ngoc Manh. When they are arrested, they will be dealt with later.

During the investigation, the officers and Construction Joint Stock Company 204 voluntarily donated and subsidized the victim's family a total of 123,000,000 VND, including funeral expenses of 63,000,000 VND and 03 savings books for Mr. Soi's family, with a total deposit of 60,000,000 VND.

In the First Instance Criminal Judgment No. 164/2008/HSST dated November 17, 2008, the People's Court of Hanoi City applied Point n, Clause 1, Article 93; Point p, Clause 1, Article 46 of the Penal Code; sentenced Dong Xuan Phuong to 17 years in prison for the crime of "Murder".

Force Dong Xuan Phuong to compensate the victim's family for mental damage of 32,400,000 VND and monthly support for the victim's 2 children and mother.

After the first instance trial, defendant Dong Xuan Phuong appealed to request a review of the case.

The legal representative of the victim, Ms. Nguyen Thi Thanh, appealed to request an increase in the penalty and compensation for the defendant.

In the Criminal Appeal Judgment No. 262/2009/HSPT dated May 5, 2009, the Supreme People's Court of Appeal in Hanoi, based on Clause 1, Article 250 of the Criminal Procedure Code, annulled the above-mentioned Criminal Judgment at first instance for re-investigation according to general procedures.

In the First Instance Criminal Judgment No. 167/2010/HSST dated March 31, 2010, the People's Court of Hanoi applied Point n, Clause 1, Article 93; Point p, Clause 1, Article 46 of the Penal Code; sentenced Dong Xuan Phuong to 17 years in prison for the crime of "Murder".

Force Dong Xuan Phuong to compensate for the following amounts: funeral expenses of 34,583,000 VND, mental damage to the victim's wife and children totaling 39,000,000 VND, and monthly allowances for the victim's mother and children.

After the first instance trial, on April 2, 2010, Dong Xuan Phuong appealed for a reduced sentence and requested a review of the case because Manh had not been arrested yet, so there was not enough evidence to confirm that Manh stabbed Soi to death.

On April 13, 2010, the victim's wife, Ms. Nguyen Thi Thanh, appealed, requesting an increase in the sentence and compensation for the defendant.

In the Criminal Appeal Judgment No. 475/2010/HSPT dated September 15, 2010, the Supreme People's Court of Appeal in Hanoi applied Points m and n, Clause 1, Article 93; Point p, Clause 1, Article 46 of the Penal Code; sentenced Dong Xuan Phuong to life imprisonment for the crime of "Murder"; forced Dong Xuan Phuong to compensate for mental damage of 43,800,000 VND and upheld other decisions on compensation for damages.

In Protest No. 13/KN-HS dated July 22, 2013, the Chief Justice of the Supreme People's Court requested the Council of Judges of the Supreme People's Court to review the above-mentioned criminal appellate judgment on the following parts: crime, punishment and criminal appellate court fees for Dong Xuan Phuong; and transfer the case file to the Supreme People's Court of Appeal in Hanoi for re-trial in accordance with the provisions of law.

At the trial, the representative of the Supreme People's Procuracy agreed with the Protest of the Chief Justice of the Supreme People's Court.

Court opinion

Based on the confessions of the defendant Dong Xuan Phuong during the investigation and at the first instance and appeal trials; the testimony and identification results of the witnesses about the subjects related to the case; the minutes of the crime scene investigation; the forensic examination report and other documents and evidence of the case; there is sufficient basis to conclude that due to conflicts in daily life, Dong Xuan Phuong hired Hoang Ngoc Manh and Doan Duc Lan to stab Nguyen Van Soi with a knife, with the purpose of causing injury to the victim in revenge. According to the documents in the case file; there is a basis to determine subjectively that Phuong only wanted to cause injury to Soi but did not want to take his life, nor did he want to hire Manh to randomly stab Soi and leave all the consequences to chance. Therefore, the defendant only requested to attack the legs and arms but did not request to attack the vital parts of the body, which are the locations that, if attacked, would most likely harm the victim's life. When committing the crime, Manh stabbed the victim twice in the thigh as requested by Phuong. Hoang Ngoc Manh's criminal act could hardly have foreseen the fatal consequences that could occur. The victim's death due to irreversible acute blood loss shock was beyond the will of Dong Xuan Phuong and his accomplices. Dong Xuan Phuong's actions fall under the category of intentionally causing injury leading to death, as stipulated in Clause 3, Article 104 of the Penal Code. The Court of First Instance and the Court of Appeal convicted Dong Xuan Phuong of "Murder" which was illegal.

For the above reasons, pursuant to Clause 3, Article 285 and Article 287 of the Criminal Procedure Code,

Decision

1. Annul the Criminal Appeal Judgment No. 475/2010/HSPT dated September 15, 2010 of the Court of Appeal of the Supreme People's Court in Hanoi regarding the following parts: crime, punishment and criminal appeal court fees against Dong Xuan Phuong; transfer the case file to the Court of Appeal of the Supreme People's Court in Hanoi for re-trial in accordance with the provisions of law.
2. Continue to detain Dong Xuan Phuong until the Supreme People's Court of Appeal in Hanoi re-accepts the case.
3. Other decisions of the above Criminal Appeal Judgment have come into legal effect.

Case law content

"According to the documents in the case file; there is a basis to determine subjectively that Phuong only wanted to injure Mr. Soi but did not want to take his life , nor did he want to hire Manh to randomly stab Mr. Soi and let the consequences happen. Therefore , the defendant only requested to attack the legs and arms but did not request to attack the vital parts of the body, which are the locations that, if attacked, would most likely harm the victim's life . When committing the crime, Manh stabbed the victim twice in the thigh as requested by Phuong. Hoang Ngoc Manh's criminal act was difficult to foresee the possible fatal consequences . The victim's death due to irreversible acute blood loss shock was beyond the will of Dong Xuan Phuong and his accomplices. Dong Xuan Phuong's actions fall under the category of intentionally causing injury leading to death, as stipulated in Clause 3, Article 104 of the Penal Code. The Court of First Instance The Court of Appeals 's conviction of Dong Xuan Phuong for "Murder" was unlawful."

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