Precedent No. 45/2021/AL

Precedent No. 45/2021/AL on determining the defendant guilty of the crime of "Murder" in the case of "Attempted Crime" was approved by the Council of Judges of the Supreme People's Court on November 25, 2021 and promulgated under Decision No. 594/QD-CA dated December 31, 2021 of the Chief Justice of the Supreme People's Court.

Source of case law:

Criminal Appeal Judgment No. 395/2021/HS-PT dated September 24, 2021 of the High People's Court in Hanoi on the criminal case of "Murder" against the defendants Nguyen Ba T, Pham Hoang T1, Pham Quang V, Nguyen Dinh An K.

Location of case law:

Paragraphs 4 and 5 of the “Court's Opinion” section.

- Case law:

The defendant intentionally committed the act with the aim of depriving the victim of his life, causing 100% damage to the victim's health.

- Legal solutions:

In this case, the Court must determine that the fatal consequence has not yet occurred, the defendant must bear criminal responsibility for the crime of "Murder" in the case of "Attempted Crime".

Legal provisions relating to precedents:

Article 15, Article 123 of the Penal Code 2015, amended and supplemented in 2017.

CASE CONTENT

According to the documents in the case file, the contents of the case are summarized as follows:

Nguyen Ba T, Pham Quang V, Pham Hoang T1 and Nguyen Dinh An K are social friends. In early 2018, Nguyen Ba T had a relationship with Ms. Le Minh A1 (born in 2002; residing at group 41, O ward, D district, Hanoi). By the end of 2018, the two broke up. Through investigation, Nguyen Ba T learned that Ms. Le Minh A1 had switched to loving Mr. Hong Quoc A (born in 2002; residing at house number 9A, lane 344, alley 50/1, N street, T ward, L district, Hanoi), who was also an old friend in Nguyen Ba T's group, so he was angry and wanted to find and beat Mr. Hong Quoc A to take revenge.

At about 11:30 p.m. on January 5, 2019, after drinking alcohol, Nguyen Ba T called Nguyen Dinh An K to ask about Hong Quoc A's love for T's lover, and at the same time asked K to go to the M market area in Ward B, District H, Hanoi to talk. At this time, Nguyen Dinh An K was hanging out with Nguyen Huu Nam S (born in 2000), Vu An K1 and a subject named "K2" (unknown background) on 3 motorbikes in the area near Bridge C. K received a phone call from Nguyen Ba T, so he invited S, K1 and K2 to go to the M market area to meet Nguyen Ba T.

After calling Nguyen Dinh An K, Nguyen Ba T met Pham Quang V in the area of ​​​​C street, so he told V to go with him for something. V and T rode their motorbikes to the roof of tunnel L, district D, Hanoi, and met Pham Hoang T1, Phan Tuan A2 (born in 2000) and the subjects D, D and 2 other young men (unknown background). D asked T where he was going, T said "To find this dog" (ie find Hong Quoc A) and asked D: "Are you going with me?" D and T1, Tuan A2, D and the other 2 young men all agreed to go with him.

Then, Nguyen Ba T, Pham Quang V, Pham Hoang T, Tuan A2, D, D and 2 young men of unknown origin traveled by motorbike from the roof of tunnel L to the market area M. Here, Nguyen Ba T's group met K, S, K1 and K2. In the group, only Nguyen Dinh An K knew Hong Quoc A's house, so Nguyen Ba T asked K to show the way. K asked again: "What happened?" T replied: "He played with me but he bit me, he ate my lover, you take me there to destroy him." Nguyen Ba T threatened that if K did not show the way, he would consider K an enemy.

Out of respect, Nguyen Dinh An K agreed to lead T and the group to Hong Quoc A's house in district L. Before leaving, Nguyen Ba T told everyone to fill up at the gas station on V street, district H so that T could pay, and also told V to get the weapon, but K and V stopped him so he stopped. After that, Nguyen Ba T, K, V, T1, Tuan A2, K1, S, K2, D, D and 02 young men of unknown origin rode about 05 motorbikes, in which Tuan A2 and T1 rode a blue Wave motorbike with license plate 29C1-613.93; K and the subject named "K2" rode a black Wave motorbike with license plate 29B1-936.67... and went to ward T, district L.

When Nguyen Dinh An K brought the subjects to Hong Quoc A's house, Nguyen Ba T called but Hong Quoc A did not come down; T threatened "Do you believe that five thousand gasoline will burn down your whole house?" so Hong Quoc A was scared and went down to meet T to talk, while the other subjects went outside the alley to wait. During the conversation, Nguyen Ba T said "Do you know that she is my lover, how many times have you and she kissed, have you done anything to each other?" but Hong Quoc A did not admit it so T shouted "Get the hell out of here".

At this time, Pham Quang V went in and called Hong Quoc A to talk; when Quoc A went to the alley entrance, to where T1 was standing, Pham Hoang T1 said, "This guy looks so handsome, yet he goes to steal his girlfriend." Hearing that, Hong Quoc A nudged Pham Hoang T1 in the shoulder, but T1 kicked him twice in the leg.

When Hong Quoc A reached the alley where the group was parking, Pham Quang V told Hong Quoc A to sit down. Pham Hoang T1 walked over and used his right foot to kick Hong Quoc A once in the knee area, then ran to get a stick and a brick to hit him, but Tuan A2 stopped him, so T1 threw the brick and stick away. At this time, Nguyen Ba T said: "D hit him" then D rushed in and kicked Hong Quoc A, causing the victim to fall sideways.

Pham Quang V rushed in to pull Hong Quoc A up and said, "Do you know how to beat a prisoner?" Then Quoc A pushed V's hand away; V used his knee to hit Quoc A's hip once. Hong Quoc A retreated about 1 meter to his original position, then D rushed in and kicked him in the face, causing Quoc A to fall to the ground, lying with his hands covering his head. D continued to stomp Hong Quoc A's head 3-4 times.

Seeing that, Pham Hoang T1 rushed in and kicked Hong Quoc A once in the back. At the same time, Nguyen Ba T came out of the alley and said to Pham Quang V, "There's wood"; at the same time, he pointed to a piece of wood with an area of ​​about (40×60)cm nearby. V picked up the piece of wood and swung it to hit Hong Quoc A in the head, causing the piece of wood to split in two.

At this time, Nguyen Dinh An K and K2 witnessed T's group beat Hong Quoc A and then got in the car and left. D continued to pick up broken pieces of wood to hit Hong Quoc A. While the victim was still lying on the road, Pham Hoang T1 rushed forward and stomped on Hong Quoc A's face, then Nguyen Ba T said, "Did you kill him?"

After that, Pham Quang V took a motorbike to the place where Quoc A was lying and said: "You lie still there, tomorrow if I don't see you lying there I will beat you again". Nguyen Ba T also said "Are you dead yet?" but Hong Quoc A only moved his body and could not say anything. After that, all the subjects got on the motorbike and left, Hong Quoc A was taken to the emergency room at V Hospital by the people around.

On January 8, 2019 and January 10, 2019, the Investigation Police Agency of District L Police arrested Nguyen Dinh An K, Pham Hoang T1 and Pham Quang V in an emergency. After the incident, Nguyen Ba T fled until July 14, 2019, when he surrendered. The case was then transferred to the Investigation Police Agency of Hanoi City Police for handling according to its authority.

In the Conclusion of forensic injury assessment No. 68/TTPY dated January 16, 2019 of the Forensic Center of the Department of Health H for the victim Hong Quoc A, it was determined that: “…The victim Hong Quoc A had a fracture of the main nasal bone, bilateral maxillary sinus and sphenoid sinus effusion; left hemisphere subdural hematoma, subarachnoid hematoma, cerebral edema erasing the boundaries of the cerebral convolutions of both hemispheres, right midline. The brain system was asymmetrical. Hematoma under the right scalp. Swelling of the left temporal forehead; bruising and swelling of both forearms; swelling of the left shoulder and dorsum of the hand. Conclusion: Mr. Hong Quoc A suffered a traumatic brain injury and is currently in a vegetative state. The extent of sequelae caused by the traumatic brain injury has not yet been assessed. It is recommended that additional assessment be performed upon discharge from the hospital. It is likely that the injuries were caused by blunt objects. The rate of health damage is 100%”.

Civil liability: During the investigation phase of the case, Ms. Pham Thanh T2 (legal representative of the victim Hong Quoc A) confirmed that the family representatives of the defendants Pham Hoang T1, Pham Quang V and Nguyen Dinh An K had compensated her family with a total amount of 75,000,000 VND. Ms. T2 continued to request the defendants to compensate the victim Hong Quoc A when the case was brought to trial.

In the First Instance Criminal Judgment No. 150/2020/HSST dated May 18, 2020 of the Hanoi People's Court, it was decided:

Declare the defendants: Nguyen Ba T, Pham Quang V, Pham Hoang T1 and Nguyen Dinh An K guilty of the crime of "Murder";

Apply point n, clause 1, Article 123; point s, clause 1, Article 51; points h, o, clause 1, Article 52; Article 39; Article 48; Article 58 of the Penal Code to Nguyen Ba T;

Apply point n, clause 1, Article 123; point s, clause 1, clause 2, Article 51; Article 38; Article 48; Article 58 of the Penal Code to Pham Quang V;

Apply point n, clause 1, Article 123; point s, clause 1, clause 2, Article 51; Article 38; Article 48; Article 58; Article 91; Article 101 of the Penal Code to Pham Hoang T1;

Apply point n, clause 1, Article 123; point s, clause 1, clause 2, Article 51; Article 38; Article 48; Article 58 of the Penal Code to Nguyen Dinh An K; punish:

- Defendant Nguyen Ba T was sentenced to life in prison, the prison term calculated from July 14, 2019.

- Defendant Pham Quang V 20 (twenty) years in prison, prison term starting from January 10, 2019.

- Defendant Pham Hoang T1 12 (twelve) years in prison, prison term calculated from January 8, 2019.

- Defendant Nguyen Dinh An K 11 (eleven) years in prison, prison term calculated from January 8, 2019.

Regarding civil liability: The defendants are required to compensate Mr. Hong Quoc A, represented by Ms. Pham Thanh T2, the amount of: 1,104,069,000 VND. In which, divided by portion: Nguyen Ba T: 400,000,000 VND; Pham Quang V 300,000,000 VND, has compensated 5,000,000 VND, still has to compensate 295,000,000 VND; Pham Hoang T1 250,000,000 VND, has compensated 65,000,000 VND, still has to compensate 185,000,000 VND, Nguyen Dinh An K 154,069,000 VND, has compensated 5,000,000 VND, still has to compensate 149,069,000 VND.

In addition, the Court of First Instance also decides on late interest, handling of evidence, court fees and notice of the right to appeal in accordance with the provisions of law.

On May 25, 2020, defendant Nguyen Dinh An K filed an appeal for a reduced sentence.

On May 26, 2020, defendant Nguyen Ba T filed an appeal for a reduced sentence.

On May 28, 2020, defendant Pham Quang V filed an appeal for a reduced sentence.

On May 29, 2020, the legal representative of the victim, Ms. Pham Thanh T2, filed an appeal requesting an increase in the sentence for the defendants and argued that the view of applying Clause 2, Article 123 of the Penal Code to the defendant Nguyen Dinh An K was incorrect; the amount of compensation was insignificant compared to the loss spent to treat Mr. Hong Quoc A, and requested a review of the verdict.

In Appeal Decision No. 05/KN-VTVKS dated May 26, 2020, the Chief Prosecutor of Hanoi City People's Procuracy appealed the first instance judgment, in the direction of increasing the penalty for defendant Pham Quang V, applying Clause 2, Article 123 of the Penal Code, and reducing the penalty for defendant Nguyen Dinh An K.

At the appeal hearing, the defendants maintained their appeals for a reduction in their sentences; the legal representative for the victim Hong Quoc A withdrew all appeals; requested a reduction in the sentences for the defendants Pham Quang V, Nguyen Dinh An K and Pham Hoang T1.

The representative of the High People's Procuracy in Hanoi withdrew all appeals; proposed to maintain the sentence for defendant Nguyen Ba T, reduce the sentences for defendants Pham Quang V, Nguyen Dinh An K and Pham Hoang T1 - each defendant from about 6 to 12 months in prison because at the appeal hearing these defendants had a new mitigating circumstance of compensation for damages.

The defense attorney for defendant Nguyen Ba T and the defendant both presented difficult circumstances (the defendant has not known his father since childhood; his mother is a freelance worker with low income; the defendant is illiterate and has no job); after committing the crime, the defendant is very remorseful and hopes to have his sentence reduced.

Lawyer and defendant Pham Hoang T1 requested to consider reducing the sentence for the defendant because when he committed the crime, defendant T1 was only 15 years and 4 months old, his family was in difficult circumstances, his mother died early, his grandfather was awarded the Resistance Medal; after the trial, the family was influenced to pay an additional compensation of 35,000,000 VND.

Lawyer and defendant Pham Quang V both stated that the defendant's family was in difficult circumstances, the defendant influenced his grandmother to compensate the victim an additional 300,000,000 VND and presented a certificate of merit from martyr Nguyen Van A, defendant V's uncle, so they requested a reduction in the defendant's sentence.

Defendant Nguyen Dinh An K apologized to the victim's family for his criminal behavior and urged the family to fulfill their obligation to execute the judgment, compensate the victim 150,000,000 VND, and requested a reduction in sentence.

The defendant Nguyen Dinh An K's lawyer argued that the prosecution of the defendant under Clause 1 of Article 123 of the Penal Code was inappropriate and that it was necessary to apply Precedent 17 to try the defendant under Clause 2 of the article; the withdrawal of the protest against the defendant was not in accordance with the provisions of Article 336 of the Criminal Procedure Code, and the defendant had fulfilled his civil compensation obligations, so he requested a reduction in sentence for the defendant.

The representative of the Procuracy argued to maintain the above-mentioned viewpoint.

The legal representative for the victim confirmed that the families of the defendants Pham Quang V and Nguyen Dinh An K had fulfilled their civil compensation obligations according to the first instance judgment; defendant Pham Hoang T1 paid an additional 35,000,000 VND in compensation. At the appeal hearing, the defendants all apologized to the victim, repented of their crimes, and were all in difficult circumstances, so they withdrew their appeal requests and requested a reduction in the sentences for the defendants Pham Quang V, Nguyen Dinh An K, and Pham Hoang T1.

JUDGMENT OF THE COURT

Based on the content of the case, based on the results of the debate at the trial, the Trial Panel determined as follows:

[1] The agency conducting the proceedings at the first instance stage has properly exercised its authority, order and procedures as prescribed by the Criminal Procedure Code.

[2] At the appeal hearing, the High People's Procuracy in Hanoi withdrew the entire appeal; the legal representative for the victim withdrew the appeal regarding the increase in the sentence for the defendant, so the Trial Panel suspended the appeal hearing for the above-mentioned Protest and Appeal according to the provisions of Article 342 and Article 348 of the Criminal Procedure Code.

[3] At the appeal hearing, the defendants confessed to their actions as stated in the first instance judgment; the defendants' confessions were consistent with each other, consistent with the testimony of witnesses, the expert conclusion and other documents and evidence that had been examined, providing sufficient basis to conclude: At about 1:00 a.m. on January 6, 2019, because of jealousy of Mr. Hong Quoc A, Nguyen Ba T asked Nguyen Dinh An K to lead the way and invited Pham Quang V, Pham Hoang T1 and other subjects to go to Mr. Hong Quoc A's house in Ward N, District L, Hanoi.

Upon arrival, Nguyen Ba T directed T1, V and other subjects to use their hands, feet and wooden sticks to continuously attack the victim, resulting in Hong Quoc A suffering a broken nasal bone, bilateral maxillary sinus and sphenoid sinus effusions; left hemisphere subdural hematoma, subarachnoid hematoma, cerebral edema, erasing the boundaries of the cerebral convolutions of both hemispheres, and the right midline. The brain system was unbalanced. Hematoma under the right scalp. Swelling of the left temporal forehead; bruises and swelling of both forearms; swelling of the left shoulder and back of the hand; traumatic brain injury, currently vegetative; health damage rate is 100%.

[4] The case had accomplices, the defendants' actions were especially dangerous; Nguyen Ba T thought that the victim had robbed his lover, so he invited other subjects to Hong Quoc A's house to take revenge and clearly stated the purpose of finding the victim to "destroy him". Pham Quang V, Nguyen Dinh An K and Pham Hoang T1 had no conflict with the victim but still unanimously agreed to carry out the instructions of Nguyen Ba T. The defendants were aware of the dangerous nature and consequences of many people beating one person, affecting important areas of the body, with the possibility of causing the victim's death, but still carried it out.

The act of continuously attacking, using hands and feet, hitting, punching the victim's body and face; using a wooden stick to hit the victim's head until the victim lay motionless; before leaving, asking "did you kill him?", "are you dead yet?..." clearly shows the hooligan nature and subjective consciousness of the defendants, who all intentionally took the victim's life. Therefore, the Court of First Instance's judgment that Nguyen Ba T, Pham Quang V, Pham Hoang T1, and Nguyen Dinh Anh K were convicted of "Murder" under Point n, Clause 1, Article 123 of the Penal Code was well-founded.

[5] According to the Forensic Injury Assessment Conclusion No. 68/TTPY dated January 16, 2019 of the Forensic Center of the Department of Health H: "Mr. Hong Quoc A suffered a traumatic brain injury and is currently in a vegetative state... The rate of health damage is 100%". Thus, in this case, the defendants intentionally committed an act to deprive the victim of his life, but the fatal consequence did not occur, which is a case of an incomplete crime as prescribed in Article 15 of the Penal Code.

[6] Regarding Nguyen Ba T's appeal: The defendant was the one who initiated, enticed, and commanded others to commit the crime. Although he did not directly beat the victim, Nguyen Ba T directed Pham Quang V, Pham Hoang T1, and several other subjects to beat Hong Quoc A; incited Pham Hoang T1, a person under 18 years old, to commit the crime; the defendant had a bad personal history, and this time he committed the crime as a recidivist, so the court of first instance determined that Nguyen Ba T had a major role in the case, which was correct.

Clause 3, Article 57 of the Penal Code (determining the penalty in case of attempted crime) stipulates: “If the applicable law stipulates the highest penalty of life imprisonment or death penalty, the penalty of imprisonment not exceeding 20 years shall be applied”. Comparing the consequences of the defendant's criminal act as stated in paragraph [5], the application of life imprisonment to the defendant is inappropriate, so it is necessary to amend the first instance judgment and reduce the penalty for Nguyen Ba T.

Although Nguyen Ba T. was the subject who turned himself in and showed remorse at the appeal hearing, given the nature and extent of the crime, the defendant's role and the consequences caused, it is necessary to apply the maximum penalty of the above regulation to reform and educate the defendant and to serve as a general deterrent and prevention.

[7] Considering the appeal of defendant Pham Quang V: Although there was no conflict with the victim, Nguyen Ba T invited him to take revenge and Pham Quang V immediately agreed. When he arrived, when D kicked Hong Quoc A to the ground, Pham Quang V rushed in and pulled the victim up and said, "Do you know how to beat a prisoner?"; then V used his knee to hit Hong Quoc A's hip, picked up a wooden stick and swung it to hit the victim's head, causing the wooden stick to split in two.

When passing by the place where Hong Quoc A was lying, V said: "You lie still there, if tomorrow I don't see you lying there, I will beat you again". The above series of actions shows that Pham Quang V's role is to actively and directly attack the victim, when Hong Quoc A lost the ability to defend himself, he left the victim alone, so that action needs to be severely punished.

However, Pham Quang V was the subject that Nguyen Ba T enticed; after the first instance trial, the defendant's family compensated the victim's family an additional 305,000,000 VND; the victim's family representative asked for a reduction in the defendant's sentence; the family presented a certificate of merit from the Fatherland of Martyr Nguyen Van A, the defendant V's uncle. Thus, Pham Quang V was given the additional mitigating circumstances stipulated in Point b, Clause 1 and Clause 2, Article 51 of the Penal Code, so there was a basis to accept the appeal and reduce part of the defendant's sentence.

[8] Regarding the appeal of Nguyen Dinh An K: Defendant K is the only person who knows the house of Hong Quoc A; the results of the debate at the trial showed that K knew clearly about leading Nguyen Ba T and many others to find the victim to beat him but still did it out of respect for defendant T (consistent with the statements of T and other defendants). Nguyen Dinh An K did not participate in beating Hong Quoc A but was present at the scene, witnessed many people brutally attacking the victim without stopping.

The defendant's behavior intentionally put the victim in a life-threatening situation, and he acted indifferently while he could foresee the possible consequences, so the court of first instance determined that Nguyen Dinh An K was an accomplice with other defendants with the same crime and penalty. Considering the situation and the defendant's behavior, it is not consistent with the content of Precedent No. 17/2018/AL, so there is not enough basis to apply the above Precedent as proposed by the lawyer.

Considering that the defendant played the role of an accomplice; now repentant, influencing the family to fully compensate according to the decision of the first instance judgment (150,000,000 VND); the representative of the victim's family requested a reduction in the defendant's sentence. Thus, Nguyen Dinh An K is entitled to additional mitigating circumstances as stipulated in Point b, Clause 1 and Clause 2, Article 51 of the Penal Code, so there is a basis to accept the appeal, giving the defendant the lowest sentence under the penalty framework.

[9] Regarding Pham Hoang T1: When committing the crime, defendant Pham Hoang T1 was only 15 years and 4 months old; T1 was enticed and incited by Nguyen Ba T to commit the crime but was an active participant. The defendant's actions contributed to the consequences of causing Hong Quoc A to suffer 100% health damage, so the court of first instance's imposition of a prison sentence, isolating the defendant from society for a period of time for reform and education, is well-founded.

Although Pham Hoang T1 did not appeal, comparing the provisions of Article 91, Article 101, Clause 3, Article 57 of the Penal Code, it is necessary to consider applying a maximum penalty of no more than half of the prison term prescribed by law. The court of first instance sentenced the defendant to 12 years in prison, which exceeds the scope prescribed for minors in Clause 2, Article 101 of the Penal Code, so it needs to be adjusted accordingly.

On the other hand, Pham Hoang T1 played a supporting role. After the first instance trial, the defendant's family compensated the victim an additional 35,000,000 (thirty-five) million VND, so there is a basis to amend the first instance judgment and reduce the defendant's sentence.

[10] Regarding civil liability: Ms. Pham Thanh T2 did not appeal the content of civil compensation, so the decision of the first instance judgment on civil liability should be upheld, but the amount of money the defendants paid to fulfill their compensation obligations should be recorded.

[11] Regarding court fees: Because the appeal was considered accepted, the defendants do not have to pay criminal appeal court fees.

For the above reasons,

DECISION

Pursuant to Article 342; Article 348; Point b, Clause 1, Article 355; Point c, Clause 1, Clause 3, Article 357 of the Criminal Procedure Code, Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the Standing Committee of the National Assembly on court fees and charges;

Suspend the appeal procedure for the appeal of the Chief Prosecutor of Hanoi City People's Procuracy and the appeal of the legal representative of the victim;

Accept the appeal of the defendants, amend the first instance judgment, reduce the sentence for Nguyen Ba T, Pham Quang V, Pham Hoang T1, Nguyen Dinh An K;

Applying point n, clause 1, Article 123; point s, clause 1, Article 51; points h, o, clause 1, Article 52; Article 15; Article 17; clause 3, Article 57; Article 58 of the Penal Code, sentence defendant Nguyen Ba T to 20 (twenty) years in prison for the crime of "Murder", the prison term is calculated from July 14, 2019;

Applying point n, clause 1, Article 123; points s, b, clause 1, clause 2, Article 51; Article 38; Article 15; Article 17; clause 3, Article 57; Article 58 of the Penal Code, sentence defendant Pham Quang V to 19 (nineteen) years in prison for the crime of "Murder", the prison term is calculated from January 10, 2019;

Applying point n, clause 1, Article 123; points s, b, clause 1, clause 2, Article 51; Article 15; Article 17; Article 38; Article 54; clause 3, Article 57; Article 58 of the Penal Code, sentence defendant Nguyen Dinh An K to 10 (ten) years in prison for the crime of "Murder", the prison term is calculated from January 8, 2019;

Applying point n, clause 1, Article 123; points s, b, clause 1, clause 2, Article 51; Article 15; Article 17; Article 38; clause 3, Article 57; Article 58; Article 91; Article 101 of the Penal Code, sentence defendant Pham Hoang T1 to 9 (nine) years in prison for the crime of "Murder", the prison term is calculated from January 8, 2019.

Acknowledge that the defendants have compensated the victims according to the decision of the first instance judgment, the specific amounts: defendant Pham Hoang T1 35,000,000 (Thirty-five million) VND (receipt No. 004211 dated October 9, 2020 at the Hanoi City Civil Judgment Enforcement Department); defendant Nguyen Dinh An K 150,000,000 (One hundred and fifty million) VND; defendant Pham Quang V 300,000,000 (Three hundred million) VND. At the appeal hearing, the defendants and the legal representatives for the victims confirmed that defendants Nguyen Dinh An K and Pham Quang V had fulfilled their civil responsibilities according to the first instance judgment (the excess amount, the defendant's family voluntarily paid, did not request to return).

Regarding criminal appeal fees: Defendants are not required to pay criminal appeal fees.

Other decisions of the first instance judgment take legal effect from the date of expiration of the appeal and protest period.

The criminal appeal judgment takes legal effect from the date of judgment./.

CONTENT OF PRECEDENT

“[4] The case had accomplices, the defendants’ actions were especially dangerous; Nguyen Ba T thought that the victim had robbed his lover, so he invited other people to Hong Quoc A’s house to take revenge and clearly stated his purpose of finding the victim to “destroy him”. Pham Quang V, Nguyen Dinh An K and Pham Hoang T1 had no conflict with the victim but still agreed to carry out the instructions of Nguyen Ba T. The defendants were aware of the dangerous nature and consequences of many people beating one person, affecting important parts of the body, with the possibility of causing the victim’s death, but still carried it out.

The act of continuously attacking, using hands and feet, hitting, punching the victim's body and face; using a wooden stick to hit the victim's head until the victim lay motionless; before leaving, asking "did you kill him?", "are you dead yet?..." clearly shows the hooligan nature and subjective consciousness of the defendants, who all intentionally took the victim's life. Therefore, the Court of First Instance's judgment that Nguyen Ba T, Pham Quang V, Pham Hoang T1, and Nguyen Dinh Anh K were convicted of "Murder" under Point n, Clause 1, Article 123 of the Penal Code was well-founded.

[5] According to the Forensic Injury Assessment Conclusion No. 68/TTPY dated January 16, 2019 of the Forensic Center of the Department of Health H: "Mr. Hong Quoc A suffered a traumatic brain injury and is currently in a vegetative state... The rate of health damage is 100%". Thus, in this case, the defendants intentionally committed an act to deprive the victim of his life, but the fatal consequence did not occur, which is a case of an incomplete crime as prescribed in Article 15 of the Penal Code."

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