Precedent No. 29/2019/AL

On property seized in the crime of "Robbery"

Approved by the Council of Judges of the Supreme People 's Court on August 22, 2019 and promulgated under Decision No. 293 / QD -CA dated September 9, 2019 of the Chief Justice of the Supreme People's Court .

Source of case law:

Final judgment No. 20/2018/HS-GDT dated October 15, 2018 of the Council of Judges of the Supreme People's Court on the case of "Robbery" against the defendant: Le Xuan Q, born in 1993.

Location of case law:

Paragraph 1 of the “Court's Opinion” section.

Overview of the case law:

- Case law:

The defendant used force to attack the victim, causing the victim to be unable to resist, with the aim of not paying the amount of money that the defendant was obliged to pay to the victim.

- Legal solutions:

In this case, the defendant must be prosecuted for the crime of "Robbery".

Legal provisions relating to precedents:

Article 133 of the 1999 Penal Code (corresponding to Article 168 of the 2015 Penal Code).

Keywords of the case:

“Robbery”; “Property appropriated”; “Amount the defendant must pay”.

CASE DETAILS :

At about 10:00 p.m. on January 19, 2015, Le Xuan Q, Tran Xuan L, Nguyen Van L, Truong Sy T, Ha Thi Thu H and subjects H1, Bin (unknown background) went to sing at room 203 of Karaoke M in Ward H, District L, Da Nang City, owned by Nguyen Thanh H. At about 11:30 p.m. on the same day, everyone left first, Q and Nguyen Van L stayed to pay the bill. Vo Minh T was assigned by Nguyen Thanh H to manage the bar, check room 203 and write a payment receipt for 408,000 VND. Le Xuan Q gave 208,000 VND and a mobile phone to Vo Minh T and said he would come back the next day to pay the remaining 200,000 VND and redeem the phone, but Vo Minh T did not accept. At this time, Truong Sy T drove the car back to pick up Q and Nguyen Van L, then Q told the owner of the shop to let Q go back to get the money, while Nguyen Van L and Truong Sy T stayed. Q drove the car to meet Tran Xuan L and H1, Q told Tran Xuan L to bring Tran Xuan L's phone to the Karaoke bar to mortgage for the remaining amount, but Tran Xuan L did not agree. Q told Tran Xuan L and H1 to return to Karaoke bar M to beat up the staff in the bar so that Nguyen Van L and Truong Sy T could run away and not pay the remaining 200,000 VND. Tran Xuan L and H1 agreed.

Then, Le Xuan Q drove Tran Xuan L and H1 to the bushes near Apartment Complex I in Ward H, District L, Da Nang City and showed H1 and Tran Xuan L how to get 2 homemade machetes about 60 cm long that Q had kept before. Tran Xuan L and H1 each took 1 machete and got in the car to return to Karaoke M.

At about 00:00 on January 20, 2015, Le Xuan Q drove the car to the front of Karaoke M, stopped and sat in the car, while H1 and Tran Xuan L rushed into the shop with machetes. Seeing H1 and Tran Xuan L rush in, Nguyen Van L and Truong Sy T ran home. Tran Xuan L and H1 chased the employees in the shop with machetes, Dinh Duc T and Vo Minh T ran into the restroom, Nguyen Thanh H ran to the 2nd floor and closed the door, and Phan Thanh T, the shop's security guard, ran out into the street to hide. Tran Xuan L chased them to the cash register, stopped and discovered 2 black Hanet tablets in a drawer. Tran Xuan L took the 2 tablets and hid them on his person and then went out. H1 also went out and got into the car driven by Le Xuan Q and escaped. On the way, H1 and Tran Xuan L threw 2 machetes on the side of Nguyen Sinh S street (no evidence was recovered). WHEN the three arrived at Apartment F, Tran Xuan L showed them 2 tablets and said he got them from Karaoke M, then Q offered to return them, but Tran Xuan L said "If I return them now, I'm afraid the police will arrest me", hearing that, Le Xuan Q said "I'm not involved" and went home to sleep. The next morning, Le Xuan Q returned the motorbike to Tran Xuan L and fled. As for the 2 tablets, Tran Xuan L sold them to a man of unknown origin for 1,100,000 VND and spent them all. These two tablets were not recovered.

According to Conclusion No. 33/KL-HDDG dated May 28, 2015 of the Asset Valuation Council, the remaining value of 02 used Hanet 10S tablets is 12,000,000 VND.

During the investigation, Ms. Phan Thi C (mother of Tran Xuan L) compensated Mr. Nguyen Minh T with 7,000,000 VND. Mr. Nguyen Minh T received the money and did not request further compensation.

In the First Instance Criminal Judgment No. 77/2015/HSST dated December 19, 2015, the People's Court of Lien Chieu District, Da Nang City applied Point d, Clause 2, Article 133; Points b, p, Clause 1 and Clause 2, Article 46; Points g and n, Clause 1, Article 48 of the 1999 Penal Code, sentencing Le Xuan Q to 07 (seven) years in prison for the crime of "Robbery".

In addition, the Court of First Instance also sentenced Tran Xuan L to 06 years in prison for the crime of "Robbery", decided on court costs and declared the right to appeal according to the law.

On December 21, 2015, Le Xuan Q appealed, stating that he did not commit the crime of “Robbery”. Tran Xuan L appealed for a reduction in sentence.

In the Criminal Appeal Judgment No. 78/2016/HSPT dated April 20, 2016, the People's Court of Da Nang City, based on Point b, Clause 2, Article 248; Point C, Clause 1, Article 249 of the 2003 Criminal Procedure Code, decided to amend the First Instance Judgment: Apply Clause 1, Article 314; Point p, Clause 1, Article 46; Point g, Clause 1, Article 48 of the Penal Code to sentence Le Xuan Q to 03 (three) years in prison for the crime of "Failure to report a crime" (In addition, the Court of Appeal also reduced the sentence for Tran Xuan L to 05 years in prison for the crime of "Robbery").

In Decision No. 26/2017/KN-HS-VC2 dated April 11, 2017, the Chief Prosecutor of the High People's Procuracy in Da Nang appealed the above-mentioned Criminal Appeal Judgment and requested the High People's Court in Da Nang to annul the penalty for Le Xuan Q of the Appeal Judgment and the First Instance Judgment for reinvestigation. In Decision No. 61/2017/QD-VC2 dated July 27, 2017, the Chief Prosecutor of the High People's Procuracy in Da Nang changed the Appeal Decision No. 26/2017/KN-HS-VC2 dated April 11, 2017 in the direction of requesting the High People's Court in Da Nang to annul the penalty and crime against Le Xuan Q in the Appeal Judgment for retrial.

In the Final Appeal Decision No. 38/2017/HS-GDT dated September 18, 2017, the Judicial Committee of the High People's Court in Da Nang decided to annul the Criminal Appeal Judgment on the crime and punishment of Le Xuan Q for re-trial.

In Decision No. 16/2018/KN-HS dated May 22, 2018, the Chief Justice of the Supreme People's Court appealed against the Final Appeal Decision No. 38/2017/HS-GDT dated September 18, 2017 of the Judicial Committee of the High People's Court in Da Nang and requested the Judicial Council of the Supreme People's Court to review the final appeal to annul the above Final Appeal Decision and amend the Criminal Appeal Judgment No. 78/2016/HSPT dated April 20, 2016 of the People's Court of Da Nang City regarding the criminal liability of Le Xuan Q.

At the cassation trial, the representative of the Supreme People's Procuracy agreed with the Chief Justice of the Supreme People's Court's decision to protest the cassation trial and requested the Council of Judges of the Supreme People's Court to decide to cancel the cassation trial decision of the Committee of Judges of the High People's Court in Da Nang to re-try the cassation trial.

COURT 'S OPINION :​

[1] Le Xuan Q's testimony is consistent with Tran Xuan L's testimony, consistent with the testimony of Mr. Vo Minh T, Mr. Nguyen Thanh H (employee and owner of Karaoke M) about the details of the case. There is a basis to determine that after discussing and agreeing, at about 00:00 on January 20, 2015, Le Xuan Q, Tran Xuan L and H1 brought 02 machetes to Karaoke M. Q stood outside, while Tran Xuan L and H1 held machetes and chased the staff of the bar to rescue Nguyen Van L and Truong Sy T in order to not pay 200,000 VND for Karaoke singing services that were previously owed. Thus, the defendants' acts of using force to attack the victim to free their accomplices, with the purpose of not paying the amount that the defendants were obliged to pay to the victim, have sufficient elements to constitute the crime of "Robbery".

[2] Le Xuan Q did not directly chase the employees of Karaoke M with a machete, but Q discussed, prepared weapons, and drove Tran Xuan L and H1 to Karaoke M to commit the crime, so Q was an accomplice with Tran Xuan L and H1 in the act of robbery of 200,000 VND. The Court of First Instance applied point d (using weapons, means or other dangerous tricks) Clause 2 Article 133 of the 1999 Penal Code to punish Le Xuan Q for the crime of "Robbery" which is correct by law.

[3] After the first instance trial, Le Xuan Q appealed, claiming that he did not commit the crime of “Robbery”. The appellate court found that Q and Tran Xuan L did not commit the crime of “Robbery” for the amount of 200,000 VND, but did not declare Q not guilty of “Robbery” and suspended the trial against Q, but instead sentenced Q for the crime of “Failure to report a crime” for the act of robbing two tablets from Tran Xuan L. Thus, the appellate court sentenced Q for an act that had not been investigated or prosecuted, violating the provisions of Article 196 of the 2003 Criminal Procedure Code on the limits of the trial.

[4] The final decision of the Judicial Committee of the High People's Court in Da Nang determined that Le Xuan Q did not commit the crime of "Failure to report a crime", thereby concluding that the Court of Appeal's conviction of Q for this crime was unfounded, and that the crime and sentence should be overturned for a retrial. However, the final decision did not guide the Court of Appeal to try Le Xuan Q for which crime, and did not determine whether the decision of the first instance judgment was well-founded or not, which made it difficult for the Court of Appeal to retry.

[5] Le Xuan Q was detained from September 30, 2015, until May 31, 2016, serving his sentence at Binh Dien Prison. During the time of serving his sentence, Binh Dien Prison and Le Xuan Q did not receive the Appeal of the Chief Prosecutor of the High People's Procuracy in Da Nang nor the Appeal of the High People's Court in Da Nang. The "Recipients" section of the Appeal and the Appeal of the High People's Court in Da Nang did not indicate that they were sent to the Prison and Q. Therefore, Binh Dien Prison reduced Q's sentence and on February 10, 2018, Q completed his 3-year prison sentence. Thus, the Appeal of the High People's Court in Da Nang did not comply with the provisions of Article 288 of the 2003 Criminal Procedure Code on the delivery of the Appeal decision.

[6] Regarding the level of punishment for Le Xuan Q: The Court of First Instance convicted Le Xuan Q of the crime of “Robbery” in accordance with the law, but sentencing Q to 7 years in prison for this crime is too severe compared to the nature and level of danger caused by Q’s crime. When re-examining the appeal, the People’s Court of Da Nang City needs to review and evaluate Q’s crime comprehensively and objectively, and at the same time consider the fact that Q has completed serving a sentence of 3 years in prison according to the decision of the Appeal Judgment No. 78/2016/HSPT dated April 20, 2016 to decide on the appropriate level of punishment for Le Xuan Q.

For the above reasons,

DECISION:

Pursuant to Article 382, ​​Clause 3, Article 388, Article 391 of the 2015 Criminal Procedure Code:

1. Annul the Final Appeal Decision No. 38/2017/HS-GDT dated September 18, 2017 of the Judicial Committee of the High People's Court in Da Nang and the Criminal Appeal Judgment No. 78/2016/HSPT dated April 20, 2016 of the People's Court of Da Nang City regarding the criminal liability of Le Xuan Q.
2. Transfer the case file to the People's Court of Da Nang City for re-trial in accordance with the provisions of law.

CONTENT OF PRECEDENT

“[1] ... the defendants' acts of using force to attack the victim to free their accomplices, with the aim of not paying the amount of money that the defendants were obliged to pay to the victim, have sufficient elements to constitute the crime of "Robbery of property ".

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