On the act of intentionally driving a vehicle over the victim after a traffic accident

      Approved by the Council of Judges of the Supreme People's Court on February 5, 2020 and promulgated under Decision No. 50/QD-CA dated February 25, 2020 of the Chief Justice of the Supreme People's Court.

Source of case law:

      Appeal judgment No. 280/2019/HSPT dated May 16, 2019 of the High People's Court in Hanoi on the case of "Murder" against defendant Phan Dinh Q, born in 1980.

Location of case law:

      Paragraphs 2, 3, 4, 5 of the “Court's Opinion” section.

Overview of case law:

- Case law:

      After causing a traffic accident to the victim, the defendant stopped the car to check and saw the victim lying under the car. Unable to determine whether the victim was alive or dead, the defendant continued to drive the car over the victim. As a result, the victim died.

- Legal solutions:

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

Legal provisions relating to precedents:

      Articles 93 and 202 of the 1999 Penal Code (corresponding to Articles 123 and 260 of the 2015 Penal Code, amended and supplemented in 2017).

Keywords of the case:

      “Traffic accident”; “Driving a vehicle over a victim”; “Violating regulations on road vehicle control”; “Murder”.

CASE CONTENT:

      According to the Indictment of the People's Procuracy of Ha Tinh province, the First Instance Criminal Judgment of the People's Court of Ha Tinh province and the proceedings at the trial, the content of the case is summarized as follows:

       At about 4:00 p.m. on May 31, 2016, Phan Dinh Q, with a Class C driver's license, drove a truck (license plate 38C-073.05) with a load capacity of 6 tons on National Highway 1A, in the direction from Commune D to Commune T, traveling in the same direction as Q, an electric motorbike (license plate 38MĐ1-218.54) driven by Hoang Duc P was traveling on the road reserved for pedestrians and rudimentary vehicles. When Q drove the car to Km 584 National Highway 1A in Commune T, District A (intersection with Commune T), Q suddenly turned the car to the right onto the inter-commune road in the direction of the People's Committee of Commune T, at the same time Hoang Duc P also arrived. Because Q was changing direction, but did not observe carefully, Q's car collided with the electric motorbike driven by P, causing the metal frame protecting the air tank on the right side of the car to collide with P's electric motorbike, causing P's electric motorbike to be dragged under the car. After the collision, Q immediately stopped the car, jumped out of the car, and went around to the back of the passenger side of the car to check. He saw a person lying under the car, his head facing the T commune gate, his legs facing National Highway 1A, his right arm hanging out, the rear wheel on the passenger side of the car pressing on P's shoulder and neck, the left side of P's face in contact with the road surface. After seeing P having an accident lying in a position where she was crushed in front of the rear wheel of the car, Q stood and observed for about a minute, then got into the car and put it in first gear to continue moving forward, and Q's car ran over the victim's head, causing the victim to suffer a fractured skull and die.

       The criminal act of defendant Phan Dinh Q was previously tried by the People's Court of Ky Anh district, Ha Tinh province under the charge prosecuted by the People's Procuracy of Ky Anh district for the crime of "Violating regulations on controlling road vehicles". However, based on the results of the interrogation at the trial, the First Instance Trial Panel of the People's Court of Ky Anh District held that: Q's crime was "Murder", so it returned the case file to the People's Procuracy of Ky Anh District, to transfer the case file to the provincial level to investigate, prosecute and try Phan Dinh Q for the crime of "Murder", because: After driving the car, causing an accident for Hoang Duc P, when going down to check, seeing the victim P caught under the car and lying in front of the car wheel, which was dangerous, but Q did not keep the scene intact and tried to get the victim out of the car to take him to the emergency room, but Q continued to drive forward and allowed the car to run over the victim lying under the car and as a result, Hoang Duc P was run over by the rear wheel of the car, causing a fractured skull and died immediately. Considering, Phan Dinh Q had full capacity to perceive that Q's driving the car was very dangerous to the life of the victim lying under the car, as stated in many of the defendant's statements during the investigation of the case.

       The minutes of the scene investigation at 5:35 p.m. on May 31, 2016 at T commune, A district, Ha Tinh province, stated:

       The scene occurred at Km 548 QL1A, the intersection with the turnoff to the gate of T commune, A district, Ha Tinh province. Take milestone number 548 QL1A as a fixed landmark, the edge of the road on National Highway 1A in the direction from South to North as a fixed axis.

       Measure perpendicularly through the fixed marker from North to South, to the tire mark point is 76.8m. The tire mark is black, in the form of a straight line 3.0m long, 0.2m wide, oriented from South to North. From the tire mark point to the right curb edge is 1.0m, the end point of the tire mark coincides with the right curb edge.

       Measure from the end of the tire mark in the direction from South to North to the center of the rear wheel axle of the electric motorbike is 1.0m. The electric motorbike tilts to the right on the asphalt road in the intersection area between National Highway 1A and the road to the People's Committee of Commune T, the front of the vehicle turns to the Northeast, the rear of the vehicle turns to the Southwest, from the center of the rear wheel axle of the electric motorbike to the right curb is 1.3m, from the center of the front wheel axle of the electric motorbike to the right curb is 2.1m. The center of the front wheel axle of the electric motorbike coincides with the center of the front wheel axle on the driver's side of Q's car. The car is on the right side of the road to the People's Committee of Commune T, the front of the vehicle turns to the East, the rear of the vehicle turns to the West. From the center of the front wheel axle on the driver's side to the edge of the curb on the driver's side to the right curb is 38.6m, from the center of the rear wheel axle of the car on the driver's side to the edge of the curb on the right is 35.5m. Measure from the center of the front axle on the driver's side of Q's car in the direction from North to South to the center of the broken plastic piece is 0.4m. The black broken plastic piece is 0.43m long; 0.37m wide, from the center of the broken plastic piece to the edge of the right curb is 0.75m.

       Measure from the center of the broken plastic piece in the direction from South to North to the center of the blood stain is 0.7m. The blood stain is red, 1.3m long and 0.5m wide, located on the asphalt road in the direction of the People's Committee of T commune. From the center of the blood stain to the right edge of the road is 5.3m.

       Measure from the center of the blood stain in the direction from South to North to the center of the victim's head is 0.4m. The victim is lying on his back with his head facing East, feet facing West, lying on the asphalt road towards the People's Committee of T commune. From the center of the victim's head to the right curb is 5.1m, from the center of the right heel to the right curb is 3.7m.

• The autopsy report of Hoang Duc P was made at 5:45 p.m. on May 31, 2016 at Km 548 QL 1A, T commune, A district, reflecting: Head and face deformed, skull fracture, brain tissue out of the skull, broken cervical vertebrae; left clavicle fracture; abdomen and chest with many lacerations, abrasions and bleeding; limbs, genitals, lower abdomen, back, and buttocks were not injured.
• In the Minutes of appraisal No. 74/TgT dated June 5, 2016 of the Forensic Center
• The H Department of Health concluded: The cause of death of Hoang Duc P was due to a fractured skull, a flattened skull on the left side of the head, and a completely deformed head and face. The victim died on the spot.
  • The vehicle inspection report reflects: Scratches on the outer surface of the front wheel on the passenger side, measuring 40x3.5cm; on the metal bar below the metal frame protecting the air tank and battery on the passenger side, 2 scratches measuring 64x3cm and 53x3cm were found from front to back; the contact surface of the outer tire and the rear wheel on the passenger side was covered with reddish-brown dirt (suspected blood), measuring 32x23cm.
  • The inspection report of the electric motorbike reflects: The plastic footrest cover covering the battery has come off the positioning pins and is broken; the left plastic cover on the body is missing; the right rear fender is deformed, shifting from right to left, from the rear of the vehicle to the front of the vehicle; the rear axle is broken, deformed, with metal abrasion marks; the metal bar fixing the rear tire fender is warped and deformed; the right rear shock absorber is warped, deformed, and the outer surface of the spring is worn; the outer surface of the right rear wheel has a 30x5cm tire scratch; the right plastic cover on the body is scratched and worn, measuring 47x3; the tip of the right brake lever is worn.

• In the Asset Valuation Record No. 19/HDĐG dated July 29, 2016 of the Asset Valuation Council in criminal proceedings, it was concluded that the total damage to the Philips 133S electric motorbike (license plate MĐ1 218.54) of P was 2,810,000 VND.

      Evidence includes:

• 01 truck (license plate 38C-073.05) THACO brand, blue, used vehicle.
• 01 Philips 133S electric motorbike (license plate MĐ1 218.54), used vehicle.

     During the investigation of the case, Mr. Hoang Manh H (father of the victim Hoang Duc P), requested the defendant to compensate a total of 199,245,000 VND. The defendant Q's family has compensated 70,000,000 VND.

      In the First Instance Criminal Judgment No. 41/2018/HSST dated November 19, 2018, the People's Court of Ha Tinh province declared: Phan Dinh Q committed the crime of "Murder": Applying Clause 2, Article 93; Point b, Clause 1, Clause 2, Article 46 of the 1999 Penal Code, sentenced: Defendant Phan Dinh Q to 12 (twelve) years in prison. The term of serving the prison sentence is calculated from the date the defendant was arrested and detained on December 27, 2016.

• Regarding civil liability: Applying Article 42 of the 1999 Penal Code; Articles 307, 604, 605, 606, 610 of the Civil Code; Resolution No. 03/2006/NQ-HDTP dated July 8, 2006 of the Council of Judges of the Supreme People's Court, the defendant Phan Dinh Q must compensate the family of the victim represented by Mr. Hoang Manh H with a total amount of 175,455,000 VND (minus 70,000,000 VND already compensated), and must continue to compensate 105,455,000 VND (One hundred and five million four hundred and fifty-five thousand VND).
• Regarding the handling of evidence: Apply Article 41 of the 1999 Penal Code; Clause 1, Clause 2, Article 106 of the 2015 Criminal Procedure Code.
  • Recover the amount of 200,000,000 VND (Two hundred million VND) from the family of defendant Phan Dinh Q who sold the car (license plate: 38C-073.05) which was the means of crime in the case driven by Phan Dinh Q.
  • Return to Mr. Hoang Manh H's family (P's father) 01 used Philips 133S electric motorbike (license plate: 38MD1- 218.54).

      In addition, the Court of First Instance also decides on court fees and notifies the defendant, the legal representative of the victim, and persons with related rights and obligations in the case of the right to appeal in accordance with the law.

      After the first instance trial:

      On November 26, 2018, defendant Phan Dinh Q appealed, claiming that the Court of First Instance had not convicted him of the crime of "Murder", but that he had only committed the crime of "Violating regulations on controlling road vehicles".

      On November 30, 2018, the legal representative of the victim appealed with the following content: Requesting to increase the prison sentence for the defendant, because the Court of First Instance sentenced the defendant to a sentence that was too light.

      On November 29, 2018, the people with related rights and obligations in the case: Mr. Nguyen Tien A (defendant's father-in-law) and Ms. Nguyen Thi D (defendant's wife) filed an appeal: Requesting to review the collection of 200 million VND as decided by the Court of First Instance.

      On December 17, 2018, the Chief Prosecutor of the High People's Procuracy in Hanoi issued Decision No. 06/QD-VC1-HS: Requesting the High People's Court in Hanoi to apply the crime circumstance of hooliganism as prescribed in Point n, Clause 1, Article 93 of the 1999 Penal Code and increase the prison sentence for the defendant. At the trial, the Prosecutor again proposed not to apply the hooliganism circumstance but to apply Point q "Committing a crime for a base motive" and increase the prison sentence for the defendant.

      At the appeal hearing, defendant Phan Dinh Q continued to plead innocent about the charges, the defendant said that he did not commit murder, but only committed the crime of "Violating regulations on controlling road vehicles", because he did not commit murder, but sometimes the defendant stated that after going down to see, he saw that the victim was dead.

      Representative of the High People's Procuracy in Hanoi: After examining the legal basis of the first-instance judgment and clarifying the questioning at the trial, it is found that: The first-instance court's conviction of defendant Q for the crime of "Murder" is completely based on the law, the defendant did not admit to the crime of murder only to evade criminal responsibility for a more serious crime. The defendant's criminal act is of a despicable nature and motive, because the defendant wanted the victim to die completely before the defendant continued driving. Therefore, it is requested that the Trial Panel not apply Point n, Clause 1, Article 93 as the content of the appeal, but should apply Point q, Clause 1, Article 93 of the Penal Code to try the defendant and request that the Trial Panel of the Court of Appeal accept the content of the appeal, to increase the prison sentence for defendant Q.

      Defendant Phan Dinh Q's defense attorney: Lawyer Nguyen Van D proposed: The Court of Appeal should thoroughly and carefully consider the defendant's criminal behavior, in order to not accept the appeal of the Chief Prosecutor of the High People's Procuracy in Hanoi and decide on the verdict on the crime of the Court of First Instance, in order to not convict defendant Q of murder, but convict the defendant of "Violating regulations on controlling road vehicles".

      Defender of the victim's rights: Lawyer Nguyen Khac T, Law Office A, Bar Association H, requested the Appellate Court to sentence the defendant as in the first instance judgment and accept the appeal of the Chief Prosecutor of the High People's Procuracy in Hanoi to increase the prison sentence for the defendant.

      Based on the documents and evidence in the case file, based on the results of the public questioning and debate at the trial, on the basis of objective and comprehensive consideration of the documents, evidence, opinions of the Prosecutor, the defendant's testimony and the defense of the defendant's lawyer, as well as the statements of the legal representative of the victim and the lawyer protecting the rights and legitimate interests of the victim and other parties in the case.

JUDGMENT OF THE COURT:

• During the investigation of the case by the Ky Anh District Police Investigation Agency and the Ha Tinh Provincial Police Investigation Agency, as well as the defendant's testimony at the first instance trial of the Ky Anh District People's Court and at the first instance trial of the Ha Tinh Provincial People's Court, the defendant Phan Dinh Q admitted that he was the one who caused the death of Hoang Duc P at about 4:00 p.m. on May 31, 2016 at Km 584 National Highway 1A in the area of ​​T Commune, A District, Ha Tinh Province when he was driving a car turning into the road in the direction of the T Commune People's Committee. Although the defendant Q admitted this, the defendant claimed that his crime was only the crime of "Violating regulations on driving road vehicles" and not the crime of "Murder", because: Although the defendant was the one driving the car that ran over P's head, because the defendant was flustered, he put the car in the wrong gear when he should have put it in reverse. The defendant drove straight, the defendant did not want the victim to die.
• The appellate court found that: While driving a car and discovering a collision and traffic accident, Q stopped the car to check. When Q saw a victim (later known to be Hoang Duc P) lying in front of the rear wheel of the car on the right side, Q got in the car and drove straight, so the rear wheel of Q's car ran over P's head, killing him on the spot.
• Based on the documents and evidence in the case file, such as the testimony of witnesses including: Ms. Duong Thi H, Mr. Nguyen Xuan H, Ms. Pham Thi T, Mr. Hoang Khanh C; as well as the scene diagram, the autopsy report, the forensic examination conclusion and especially based on the testimony of the defendant Q at the initial stage of the investigation of the case, it can be seen that: During the investigation of the case by the Investigation Police Agency of Ky Anh District Police, as well as at the trial of the People's Court of Ky Anh District and at the first instance trial of the People's Court of Ha Tinh Province, the defendant stated: "When I went down to check, I was not sure whether the victim lying under the car was alive or dead, because in fact at that time I did not have the basis to determine whether the victim was dead or alive" (Minute 75); Defendant Q also stated that although at that time he was aware that moving the car forward or backing up was very dangerous, because if he backed up the car, the front wheel would continue to run over the victim (Records 64, 65, 69).
• Defendant Phan Dinh Q's testimony also stated: When I went down to check, I saw the victim lying close to the front of the rear wheel of the car, the car wheel had not yet completely crushed the person's head, the defendant only saw the victim lying motionless in front of the car wheel on the right rear wheel (Records 61, 68, 85, 354, 356). In addition, defendant Q also had many other statements: Although the defendant was aware that at that time, moving the car back or forward would still run over the victim and I was aware of that, but I still accepted that the car would run over the victim (Records 58, 61, 64, 65, 69).
• Thus, although defendant Q appealed that: The defendant's criminal act did not constitute the crime of "Murder", the Appellate Court has sufficient grounds to affirm that: Defendant Q committed the crime of "Murder" as decided by the Court of First Instance of the People's Court of Ha Tinh Province, which is completely based on law. The fact that defendant Q constantly changed his testimony and did not admit to committing the crime of "Murder" is only to evade criminal responsibility before the law for a more serious crime than the crime of "Violating regulations on controlling road vehicles"; therefore, the Appellate Court has no legal basis to accept the content of the defendant's appeal, but must maintain the charge of "Murder" against the defendant as decided by the Court of First Instance. The Court of Appeal affirmed: Defendant Q was not wrongly convicted of a crime as stated in the defendant's appeal and testimony at the trial, as well as the defense of the defendant's lawyer at the first instance and appeal trials.
• Considering the appeal of the Chief Prosecutor of the High People's Procuracy in Hanoi, the Appellate Trial Panel found that: The cause of the case was due to the defendant's lack of attention while driving the car, causing an accident, causing P to be dragged under the defendant's car. After discovering that he had collided with a traffic participant, the defendant stopped the car to check. When he got out to check, he saw someone lying right next to the car's wheel, so he did not try to handle it but instead drove the car straight on, although the defendant had repeatedly admitted that whether he drove straight or in reverse, it was very dangerous, but at that time he kept driving forward, resulting in Hoang Duc P being run over by the car, breaking his skull and dying on the spot.
• Considering that the criminal act of the defendant Phan Dinh Q does not fall under the nature of hooliganism and does not fall under the nature of a barbaric crime as stated in the appeal, as well as the opinion of the Prosecutor at the trial, the Trial Panel finds that the defendant only committed a crime under Clause 2, Article 93 of the Penal Code, as decided by the Court of First Instance; therefore, there is no basis to accept the content of the appeal regarding the application of Clause 1, Article 93 of the Penal Code to try the defendant. Regarding the content of the proposal to increase the prison sentence for the defendant Q, the Trial Panel finds that: After getting out of the car to check, the right rear wheel of the car was pressed against the neck and nape of the victim, and although at this time the defendant had no basis to say that the victim was dead, the defendant still drove the car forward, leading to the victim's death after the car moved forward. Furthermore, during the investigation of the case, the defendant did not honestly admit his guilt, which showed contempt for the law, while the victim was not at fault and at this time the danger to the victim's life was at a very dangerous level, but the defendant still drove over the victim, which was unacceptable to the defendant; the Trial Panel found that there was every basis to accept an increased prison sentence for the defendant, only then would it be commensurate with the nature and extent of the defendant's criminal acts and ensure deterrence against general crime because the sentence that the Court of First Instance imposed on the defendant Q, 12 (twelve) years in prison, was still too light, causing outrage among the local people where the case occurred.
• Regarding the appeal of the person with related rights and obligations in the case of Ms. Nguyen Thi D (defendant's wife) regarding the review of the amount of 200 million VND, which was obtained from the sale of the car, the Appellate Court found that: The Court of First Instance's decision to recover the amount of 200 million VND from the sale of the car (the vehicle used by the defendant to commit the crime) was in accordance with the law; therefore, the appeal of the person with related rights and obligations, Ms. Nguyen Thi D, is not accepted, but must be maintained as the decision of the first instance judgment.
• Other decisions of the first instance judgment that are not appealed or protested shall take legal effect from the date of expiration of the appeal or protest period.
• The defendant appealed the charge was not accepted, so he must pay the criminal appeal fees.
• For the above reasons and based on Articles 355, 356 and 357 of the Criminal Procedure Code,

DECISION:

      Not accepting the appeal on the charge of defendant Phan Dinh Q, as well as not accepting the appeal of the person with related rights and obligations, Ms. Nguyen Thi D; Accepting the appeal of the legal representative of the victim and accepting part of the protest of the Chief Prosecutor of the High People's Procuracy in Hanoi on the content of the proposal to increase the prison sentence for defendant Q, to amend the first instance judgment of the People's Court of Ha Tinh province on the part of increasing the prison sentence for the defendant. Now declare:

      Statement: Defendant Phan Dinh Q committed the crime of “Murder”:

      Applying Clause 2, Article 93; Point b, Clause 1, 2, Article 46 of the 1999 Penal Code, sentence: Phan Dinh Q to 13 (thirteen) years and 6 (six) months in prison. The term of imprisonment of the defendant is calculated from the date of temporary detention, December 27, 2016.

      Regarding the handling of evidence: Applying Article 41 of the 1999 Penal Code; Clauses 1 and 2 of Article 106 of the 2015 Criminal Procedure Code, it is required to recover the amount of 200 million VND, because the defendant's wife and the defendant's family sold the car that was the means by which Q committed the crime.

      Other decisions of the first instance judgment that are not appealed or protested shall take legal effect from the date of expiration of the appeal or protest period.

      Defendant Q must pay 200,000 VND in criminal appeal fees.

      The criminal appeal judgment takes legal effect from the date of sentencing, May 16, 2019.

CONTENT OF PRECEDENT

      “[2] The appellate court found that: While driving a car and discovering a collision and traffic accident, Q stopped the car to get out and check. When Q saw a victim (later known to be Hoang Duc P) lying in front of the rear wheel of the car on the right side, Q got in the car and drove straight, so the rear wheel of Q's car ran over P's head, killing him on the spot.

• Based on the documents and evidence in the case file, such as the testimony of witnesses including: Ms. Duong Thi H, Mr. Nguyen Xuan H, Ms. Pham Thi T, Mr. Hoang Khanh C; as well as the scene diagram, the autopsy report, the forensic examination conclusion and especially based on the testimony of the defendant Q at the initial stage of the investigation of the case, it can be seen that: During the investigation of the case by the Investigation Police Agency of Ky Anh District Police, as well as at the trial of the People's Court of Ky Anh District and at the first instance trial of the People's Court of Ha Tinh Province, the defendant stated: "When I went down to check, I was not sure whether the victim lying under the car was alive or dead, because in fact at that time I did not have the basis to determine whether the victim was dead or alive" (Minute 75); Defendant Q also stated that although at that time he was aware that moving the car forward or backing up was very dangerous, because if he backed up the car, the front wheel would continue to run over the victim (Records 64, 65, 69).
• Defendant Phan Dinh Q's testimony also stated: When I went down to check, I saw the victim lying close to the front of the rear wheel of the car, the car wheel had not yet completely crushed the person's head, the defendant only saw the victim lying motionless in front of the car wheel on the right rear wheel (Records 61, 68, 85, 354, 356). In addition, defendant Q also had many other statements: Although the defendant was aware that at that time, moving the car back or forward would still run over the victim and I was aware of that, but I still accepted that the car would run over the victim (Records 58, 61, 64, 65, 69).
• Thus, although defendant Q appealed that: The defendant's criminal act did not constitute the crime of "Murder", the Appellate Court has sufficient grounds to affirm that: Defendant Q committed the crime of "Murder" as decided by the Court of First Instance of the People's Court of Ha Tinh Province, which is completely based on law. The fact that defendant Q constantly changed his testimony and did not admit to committing the crime of "Murder" is only to evade criminal responsibility before the law for a more serious crime than the crime of "Violating regulations on controlling road vehicles"; therefore, the Appellate Court has no legal basis to accept the content of the defendant's appeal, but must maintain the charge of "Murder" against the defendant as decided by the Court of First Instance. The Court of Appeal affirmed: Defendant Q was not wrongly convicted of a crime as stated in the defendant's appeal and testimony at the trial, as well as the defense of the defendant's lawyer at the first instance and appeal trials."

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