Precedent No. 47/2021/AL

Precedent No. 47/2021/AL on determining the crime in cases where the defendant uses a dangerous weapon to stab the vital part of the victim's body 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:

Final judgment No. 15/2020/HS-GDT dated August 7, 2020 of the Council of Judges of the Supreme People's Court on the case of "Murder against defendant Nguyen Dinh D.

Location of case law:

Paragraph 2 of the “Court's Opinion” section.

Overview of case law:

- Case law:

The defendant used a knife, a dangerous weapon, to stab the victim's abdomen, a vital part of the human body. The victim did not die due to the defendant's subjective intention.

- Legal solutions:

In this case, the Court must determine that the defendant is criminally responsible for the crime of "Murder".

Legal provisions relating to precedents:

– Article 18; points a, n, clause 1, Article 93 of the 1999 Penal Code (corresponding to Article 15; points a, n, clause 1, Article 123 of the 2015 Penal Code).

Keywords of the case:

“Stab”; “Dangerous weapon”; “Abdominal area”; “Vital body area”; “Murder”.

CASE CONTENT

At about 7:00 p.m. on December 9, 2013, Nguyen Dinh D went to Ha Dang H's house in village L, commune T, district C, Hanoi to eat and drink with some other people, including Dang Hung T and Phung Xuan S. While eating and drinking, S and T had an argument. S called T out to the yard and slapped T. T apologized and then both went back in to continue drinking. About 10 minutes later, D went out, S and T followed him to the dike. S slapped T, causing T to fall to the ground. D saw that and ran to ask T if he was okay. T cried and said, " My parents didn't beat me, but they beat me. I killed them ." T ran to find something to hit S with. D ran after him, hugged T and said, " Are you drunk? Do you recognize me? " T replied, " Yes, brother Hai ." At this time, Mr. Cao Van C and Mr. Duong Van T1 came by motorbike. Mr. T1 stopped his motorbike to take out a cigarette to smoke. Mr. C said to S: " He is my nephew. If you beat him, I won't say anything ." D intervened and pushed T and S into Mr. H's house.

Hearing C talking to S like that, Đ got angry and went into H's yard to get a sharp knife and went to the dike where C and T1 were standing. Đ said: "Do you guys like to fight so much that you add fuel to the fire ?", C said: " I like to fight, I like to add fuel to the fire. Who are you to come here and act like a tiger ?", Đ pointed the knife at C's face and said: " Do you like to fight? " then stabbed C in the stomach. C ran away, Đ turned around, grabbed T1 by the collar and stabbed T1 once. T1 ran away, Đ and S chased after him. Đ caught up, grabbed T1 by the collar, S slapped T1 in the head and face, and kicked T1. Đ stabbed T1 many times with the knife, causing T1 to fall face down on the ground. D used a knife to stab T1 three more times, causing T1 to collapse. When they saw T1 lying unconscious, D and S ran away.

Cao Van C ran away for a while, then went into H's house to get a hoe and came back to see S. C raised the hoe handle to hit him, but S ran into H's house to report the fight. C continued running and saw D holding a knife. C raised the hoe handle and hit him. D raised his hand to block, but was hit in the head and left arm. D ran back to H's house to get his motorbike and go home. On the way, D threw the knife into the ditch. People took T1 and C to the emergency room, but T1 died. On December 10, 2013, D surrendered to the C District Police.

In the Forensic Autopsy Conclusion No. 8251/PC54 (PY) dated December 31, 2013, the Criminal Techniques Department of Hanoi City Police concluded: the cause of death of Mr. Duong Van T1 was shock due to acute blood loss and acute respiratory failure.

In the Forensic Injury Assessment Conclusion No. 203/TTPY dated May 6, 2014 of the Forensic Center of the Hanoi Department of Health, the conclusion of Mr. Cao Van C's injuries at the time of assessment: soft tissue wound scar, fracture of the left X rib, no pleural effusion or pneumothorax; most likely the injuries were caused by sharp objects; the health damage rate is 05%.

In the First Instance Criminal Judgment No. 47/2015/HSST dated February 5, 2015, the People's Court of Hanoi applied points a and n, Clause 1, Article 93; points p, Clause 1, Clause 2, Article 46 of the  1999 Penal Code, sentencing Nguyen Dinh D to death for the crime of "Murder".

On February 10, 2015, Nguyen Dinh D appealed for a reduction in sentence.

In the Criminal Appeal Judgment No. 01/2016/HSPT dated January 6, 2016, the High People's Court in Hanoi did not accept Nguyen Dinh D's appeal, applied points a and n, Clause 1, Article 93; points b and p, Clause 1, Clause 2, Article 46 of  the 1999 Penal Code, and sentenced Nguyen Dinh D to death for the crime of "Murder".

In the Decision on appeal for review No. 16/QD-VKSTC dated November 29, 2019, the Chief Justice of the Supreme People's Procuracy decided to appeal the First Instance Criminal Judgment No. 47/2015/HSST dated February 5, 2015 of the Hanoi People's Court and the Appeal Criminal Judgment No. 01/2016/HSPT dated January 6, 2016 of the High People's Court in Hanoi against Nguyen Dinh D; requesting the Council of Judges of the Supreme People's Court to conduct a review trial, partially annul the above First Instance Criminal Judgment and Appeal Criminal Judgment regarding the crime and punishment against Nguyen Dinh D for reinvestigation.

At the appeal hearing, the representative of the Supreme People's Procuracy requested the Chief Justice of the Supreme People's Court to accept the appeal of the Chief Prosecutor of the Supreme People's Procuracy.

JUDGMENT OF THE COURT

[1] Regarding Nguyen Dinh D's behavior towards Mr. Cao Van C:

[2] Although Nguyen Dinh D and Cao Van C had no previous conflicts, from C's words  "I like to fight, I like to add fuel to the fire. Who are you to come here and act like a tiger ", D held a knife (a type of knife used to make bamboo and rattan products, with a wooden handle 11cm long, an iron blade 13.5cm long, a sharp, slightly curved tip, and a blade 2.5cm wide at its widest point) and pointed it at C's face, saying " Do you like to fight? ", then used the knife to stab C in the stomach, causing C to run away. Thus, just because C's words were challenging and provocative, D used a sharp knife, a dangerous weapon, to stab C in the stomach (left side of the ribcage), a vital area of ​​the human body. According to the expert conclusion, Mr. C suffered 5% injury and this was the injury at the time of the assessment (after nearly 5 months of the incident), not the injury at the time of the incident, so it does not accurately reflect Mr. C's injury and the nature and level of danger of the crime. The fact that Mr. C did not die was beyond D's subjective intention. Therefore, the above-mentioned act of D has sufficient elements to constitute the crime of "Murder", which is a case of attempted crime and has a hooligan nature.

[3] Nguyen Dinh D's behavior towards Mr. Duong Van T1:

[4] Mr. Duong Van T1 was the person accompanying Mr. Cao Van C. Mr. T1 had no previous conflict with Nguyen Dinh D. At the time of the incident, Mr. T1 did not have any challenging words or offensive behavior towards D. However, after stabbing Mr. Canh, Mr. Canh ran away. D turned around, grabbed Mr. T1 by the collar and stabbed Mr. T1 with a knife. T1 ran away. D chased after him and stabbed Mr. T1 many times with a knife, causing Mr. T1 to fall face down on the ground. D continued to stab Mr. T1 three times in the back until Mr. T1 lost consciousness. As a result, Mr. T1 died of acute blood loss shock and acute respiratory failure. D's act of murder against Mr. T1 is a case of hooliganism.

[5] As analyzed above, although there was no prior conflict, at the same time, D used a knife to stab the vital areas of 02 victims, killing 01 person and injuring 01 person. The Court of First Instance and the Court of Appeal convicted Nguyen Dinh D of "Murder" as prescribed in Point a  (killing many people)  and Point n (having a hooligan nature), Clause 1, Article 93 of the 1999 Penal Code, which is well-founded.

[6] Although, during the process of solving the case, Nguyen Dinh D confessed honestly and actively compensated the victim's family, D's criminal behavior was especially serious, showing hooliganism, aggression, determination, and disregard for the lives of others, so the Court of First Instance and the Court of Appeal sentenced Nguyen Dinh D to death for the crime of "Murder" in accordance with the law.

For the above reasons,

DECISION

Pursuant to Clause 4, Article 382, ​​Clause 1, Article 388, Article 389 of the Criminal Procedure Code:

1. Not accepting the appeal of the Chief Justice of the Supreme People's Procuracy.
2. Uphold the Criminal Appeal Judgment No. 01/2016/HSPT dated January 6, 2016 of the High People's Court in Hanoi on the crime and punishment of Nguyen Dinh D.

CONTENT OF PRECEDENT

“[2] Although Nguyen Dinh D and Cao Van C had no previous conflicts, from C's words "I like to fight, I like to add fuel to the fire. Who are you to come here and act like a tiger", D held a knife (a type of knife used to make bamboo and rattan products, with a wooden handle 11 cm long, an iron blade 13.5 cm long, a slightly curved sharp tip, and a blade 2.5 cm wide at its widest point) and pointed it at C's face, saying "Do you like to fight?" and then used the knife to stab C in the stomach, causing C to run away. Thus, just because C's words were challenging and provocative, D used a sharp knife, a dangerous weapon, to stab C in the abdomen (left side of the ribcage), a vital area of ​​the human body. According to the expert conclusion, Mr. C suffered 5% injury, and this was the injury at the time of the assessment (after nearly 5 months of the incident), not the injury at the time of the incident, so it does not accurately reflect Mr. C's injury and the nature and level of danger of the crime. The fact that Mr. C did not die was beyond D's subjective intention. Therefore, the above-mentioned act of D has sufficient elements to constitute the crime of "Murder", which is a case of attempted crime and has a hooligan nature."

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