CASE LAW NO. 18/2018/AL On the act of murder on-duty officials in the crime of “Murder”. Please note that this image is not related to the specific case being discussed.

CASE LAW NO. 18/2018/AL

On the act of murder on-duty officials in the crime of “Murder”

Approved by the Judicial Council of the Supreme People’s Court on October 17^th, 2018, and published under Decision No. 269/QD-CA on November 6^th, 2018, by the Chief Justice of the Supreme People’s Court.

Source of the Case Law:

Appellate Judgment No. 331/2018/HS-PT dated May 28^th, 2018, of the High People’s Court in Hà Nội regarding the case of “Murder” against the defendant: Phan Thành H, also known as Đ; born in 1995; permanent residence registered at Commune C, District D, Bình Định Province; currently residing at Village B, Commune C, District D, Bình Định Province.

– Victim: Mr. Nguyễn Anh Đ.

Location of the Case Law’s Content:

Paragraphs 1 and 3 of the “Court’s Opinion” section.

Summary of the Case Law:

– Case Background:

The defendant was stopped for a traffic violation but refused to comply with the traffic police officer’s instructions. Instead, the defendant deliberately drove into the officer, causing the officer to cling onto the vehicle’s rearview mirror. The defendant then continued driving at high speed, swerving dangerously close the median barrier to throw the officer off. The officer fell, hit the median barrier, and sustained severe injuries.

– Legal Resolution:

In this case, the defendant must bear criminal responsibility for the crime of “Murder” with the aggravating circumstance of “Murder of on-duty officials”.

Relevant Legal Provisions:

Point d, Clause 1, Article 93 of the 1999 Criminal Code (corresponding to Point d, Clause 1, Article 123 of the 2015 Criminal Code).

Keywords:

“Murder crime,” “Traffic police,” “Murder on-duty officials.”

CASE DETAILS

According to the indictment and the first-instance judgment of the People’s Court of Hà Tĩnh Province, the details of the case are summarized as follows:

1. Regarding the act of murder:

Following the plan of the Road and Railway Traffic Police Department of Hà Tĩnh Provincial Police (PC67), on June 30^th, 2017, the patrol team comprising officers: Võ Hoàng N, Nguyễn Anh Đ, Lê Hồ Việt A, and Dương Hoài N (led by Võ Hoàng N as the team leader) carried out the task of patrolling and handling traffic safety violations from Km468 to Km517 on National Highway 1A.

Officer Dương Hoài N was tasked with using the traffic speed monitoring device UX027957 to measure vehicle speed at Km11+450 on the Hà Tĩnh City bypass road, in Commune H, District I, Hà Tĩnh Province. Officers Võ Hoàng N, Nguyễn Anh Đ, and Lê Hồ Việt A were responsible for stopping, checking, and handling violating vehicles at Km488+650 on National Highway 1A, in Commune K, District L, Hà Tĩnh Province.

On June 30^th, 2017, Từ Công T and Phan Thành H were driving the tractor-trailer with license plate 77C-016.47, towing a semi-trailer with license plate 77R-001.37, traveling from south to north. Upon reaching Quảng Bình Province, Phan Thành H took over driving while Từ Công T slept in the cabin. At 15:28 on the same day, when Phan Thành H was driving to Km11+450 on the Hà Tĩnh City bypass road, Officer Dương Hoài N used the speed monitoring device and detected that the tractor-trailer driven by H was speeding at 66/60 km/h. He reported this and sent a violation image via mobile phone message to the patrol team stationed at Km488+700 on National Highway 1A for further handling.

At 16:05 on the same day, when the tractor-trailer with license plate 77C-016.47 driven by Phan Thành H reached Km488+650 on National Highway 1A in Commune K, District L, Hà Tĩnh Province, the patrol team from the Hà Tĩnh Provincial Police signaled the vehicle to stop. After Phan Thành H stopped the vehicle, Officer Nguyễn Anh Đ informed him of the violation, showed him the violation image, and requested his documents.

However, Phan Thành H insisted that his vehicle had not violated the speed limit and refused to present the documents, arguing with Officer Đ and the patrol team members on duty. Phan Thành H used his mobile phone displaying his vehicle’s speed image for comparison. Despite the patrol team’s explanation, Phan Thành H remained uncooperative, continued to argue, then returned to the vehicle and closed the door (with the engine still running).

At this time, Officer Lê Hồ Việt A was standing in front of the right side of the vehicle, while Officer Nguyễn Anh Đ was standing in front of the left side, about one meter from the front of the tractor-trailer, signaling Phan Thành H not to move the vehicle.

However, Phan Thành H did not comply and suddenly drove the vehicle directly at Officers Lê Hồ Việt A and Nguyễn Anh Đ standing in front of the vehicle to escape. Seeing this, Officer Lê Hồ Việt A jumped to the right side of the road and avoided it, but Officer Nguyễn Anh Đ could not evade in time and had to cling to the left rearview mirror on the hood of the vehicle.

Even though he saw Officer Nguyễn Anh Đ clinging to the rearview mirror, Phan Thành H continued to accelerate. When reaching Km488+250 on National Highway 1A (about 400 meters from the starting point), although there was no obstacle or vehicle in the same direction ahead, H suddenly swerved sharply to the left, directing the vehicle towards the rigid median barrier with the intention of throwing Officer Nguyễn Anh Đ off to escape. At this time, Officer Nguyễn Anh Đ was only holding onto the rearview mirror with both hands, with no foot support, and was flung off the vehicle, hitting the rigid median barrier, and falling onto the road.

After swerving suddenly and causing Officer Nguyễn Anh Đ to fall onto the road, Phan Thành H did not stop but continued to drive away, ignoring the patrol team’s signals to stop. At Km488 on National Highway 1A, the Hà Tĩnh Provincial Police used a specialized vehicle to block the road, forcing Phan Thành H to stop. However, he still did not comply, continued to argue with the officers on duty, then returned to the vehicle, closed the door, and did not cooperate.

He later drove the vehicle across the road, causing traffic congestion. The Police of District L coordinated with the Road Traffic Police Department of Hà Tĩnh Provincial Police to force Phan Thành H to move the vehicle to the roadside and took him to the Police Station of District L for processing.

Consequences: Officer Nguyễn Anh Đ was severely injured and taken to the General Hospital of Hồng Lĩnh Town, then transferred to Việt Đức Friendship Hospital for treatment. On July 10^th, 2017, he was transferred back to the General Hospital of Hà Tĩnh Province and discharged on July 18^th, 2017.

While Phan Thành H was carrying out the described actions, Trần Trung Đ, a passenger in Mai Linh taxi with license plate 37A-304.84, recorded the events on his mobile phone. Trần Trung Đ’s residence is listed as 102 M Street, N District, Hà Nội.

– According to the Forensic Examination Report on the injuries of Officer Nguyễn Anh Đ, No. 87 dated September 18^th, 2017, issued by the Forensic Center of Hà Tĩnh Province, the injuries were identified as follows:

+ Brain injury: Contusion of the left frontal lobe, fracture of the right parietal bone;

+ Scar on the top of the head measuring 2.5cm x 0.2cm; scar on the right temporal lobe measuring 1.5cm x 0.2cm;

+ X-ray: Image showing a fracture of the upper third of the left fibula with bone callus formation.

Conclusion: The current bodily injury rate caused by the injuries is 40%. (Exhibit 139, 140).

During the investigation, Phan Thành H claimed that the truck he was driving did not violate the speed limit, according to the VTR01 journey monitoring device installed on the truck with license plate 77C-016.47, which indicated that the truck was traveling below 60 km/h on the Hà Tĩnh City bypass road.

However, the VTR01 device installed on the truck with license plate 77C-016.47, compliant with standard QCVN31:2001/GTVT issued by Circular No. 08/2011/TT-BGTVT dated March 8^th, 2011, has a margin of error of 5 km/h and updates the vehicle’s speed every 10 seconds. In contrast, the speed monitoring device with serial number UX027957, verified by the Verification Certificate No. V08.KD.525.16 dated September 29^th, 2016, from the Vietnam Institute of Metrology, has a measuring range of 8 – 320 km/h, an accuracy level of 2 km/h, and directly measures the speed of moving vehicles.

In this case, Phan Thành H was obliged to comply with the officer’s orders and present the required documents; if he disagreed with the handling results, he could file a complaint. However, due to the fear of being discovered using a fake driver’s license, Phan Thành H chose to disobey and committed the offense.

2. Regardingthe act of forging documents of agencies and organizations:

Around October 2016, Phan Thành H (holding a class C driver’s license) was employed by Từ Công T as an assistant driver for a trailer truck. During this time, Từ Công T noticed that H could drive the truck but was not old enough to be issued a class FC license. Around February 2017, Từ Công T took a photo of Phan Thành H and contacted an unknown person in Hải Phòng to make a fake class FC driver’s license with the number 520144004729, under the name Lưu Văn C, containing Phan Thành H’s photo for VND 2,500,000, which was then given to H to use for deceiving authorities during inspections.

On June 30^th, 2017, when working with the Police Investigation Agency of L District, Phan Thành H presented the fake class FC driver’s license under the name Lưu Văn C (born in 1991; residing in O Town, D District, Bình Định Province). Additionally, both Phan Thành H and Từ Công T falsely identified H as Lưu Văn C to deceive the investigation agency. Consequently, the Investigation Police Agency of L District issued procedural decisions against Phan Thành H under the false name Lưu Văn C.

The investigation also determined that at 16:50 on April 22^nd, 2017, at Km1060 + 400 QL1A in Quảng Ngãi Province, Phan Thành H, driving the truck with license plate 77C-103.69 and trailer 77R-014.65, committed the offense of “Changing lanes without signaling” and used the fake driver’s license number 520144004728, under the name Lưu Văn C, to deceive the Traffic Police Patrol of Quảng Ngãi Province.

– According to the Forensic Examination Report No. 10 dated July 5^th, 2017, from the Forensic Department of Hà Tĩnh Police: it was determined that the driver’s license number 520144004729 under the name Lưu Văn C, born on June 10^th, 1991, residing in O Town, D District, Bình Định Province, issued on November 18, 2015, is a fake (Exhibit 91).

The evidence collected includes:

– One FREIGHTLINER trailer truck, license plate 77C-016.47, model CL 120064S, red color, engine number 0933U0841843, chassis number 6CV36LX06844, and related documents;

– One fake plastic class FC driver’s license number 520144004729 under the name Lưu Văn C;

– One plastic class C driver’s license number 5201600087 under the name Phan Thành H, issued by Bình Định Province’s Department of Transport;

– One ID card number 215341305 under the name Phan Thành H, issued by Bình Định Provincial Police;

– One gold ARBUTUS touchscreen mobile phone, IMEI numbers 355052654004631, 355052654004649, used;

– One 8GB Kingston USB with DT101 G2 label, containing a 37-second video file: IMG-1245.MOV;

– One 8GB Apacer USB containing two video files: IMG-0507.MOV (2 minutes 58 seconds) and IMG-0509.MOV (3 minutes 4 seconds);

– One 8GB Kingston USB with DT101.G2 label, containing a 5-minute 10-second video file: IMG-1689.MOV.

The Police Investigation Agency of Hà Tĩnh Province returned the trailer truck with license plate 77C-016.47 and related documents to the owner, General Transportation and Trading Company T. The three USB drives are kept with the case file, while other evidence was transferred to the Hà Tĩnh Provincial Civil Judgment Enforcement Department for management.

For these acts, in Indictment No. 35/CTr-KSĐT dated October 13^th, 2017, the People’s Procuracy of Hà Tĩnh Province prosecuted Phan Thành H for “Murder” under point d, clause 1, Article 93 of the Criminal Code, and “Forgery of documents of agencies and organizations” under point b, clause 2, Article 267 of the Criminal Code. Từ Công T was prosecuted for “Forgery of documents of agencies and organizations” under point b, clause 2, Article 267 of the Criminal Code.

In First-instance Criminal Judgment No. 39/2017/HSST dated December 26^th, 2017, the People’s Court of Hà Tĩnh Province ruled:

1. Declare defendant Phan Thành H guilty of “Murder” and “Forgery of documents of agencies and organizations”; defendant Từ Công T guilty of “Forgery of documents of agencies and organizations”.

– Applying point d, clause 1, Article 93; clause 3, Article 52; point b, clause 2, Article 267; points b, p clause 1, clause 2, Article 46, Article 47 of the 1999 Criminal Code:

Sentencing defendant Phan Thành H to 8 (eight) years imprisonment for “Murder” and 2 (two) years imprisonment for “Forgery of documents of agencies and organizations.”

Applying clause 1, Article 50 of the Criminal Code, combining the sentences for the two offenses, Phan Thành H is required to serve a total of 10 (ten) years imprisonment. The prison term is calculated from the date of detention and custody (June 30^th, 2017).

– Applying point b, clause 2, Article 267 and clause 2, Article 46 of the 1999 Criminal Code, the court sentences the defendant Từ Công T to 2 (two) years imprisonment. The term of the prison sentence is calculated from the date the defendant starts serving the sentence.

In addition, the first-instance court also decided on the handling of exhibits, first instance criminal court fees, and notified the right to appeal according to the law.

On January 3^rd, 2018, the defendant Phan Thành H appealed for a reduction of the sentence; the defendant Từ Công T appealed for a reduction of the sentence and requested a suspended sentence.

At the trial, defendant Phan Thành H confessed to all charges of murder and forgery of documents of agencies and organizations as presented. H argued that the first-instance court’s sentence was excessive and requested the Trial Panel consider a reduction.

Defendant Từ Công T also confessed to the charges of forgery of of documents of agencies and organizations and argued for leniency based on several factors: it was his first offense, the crime was less serious, he showed sincere remorse, compensated for damages, and his family is facing difficult circumstances. T requested the Trial Panel to consider allowing him to serve his sentence within the local community.

The representative of the High People’s Procuracy in Hà Nội expressed his opinion on the resolution of the case as follows: There is sufficient evidence to conclude that the defendant Phan Thành H committed the crime of “Murder” and the crime of “Forgery of documents of agencies and organizations” as stipulated in point d, clause 1, Article 93; point b, clause 2, Article 267 of the Criminal Code.

For the defendant Từ Công T: He committed the crime of “Forgery of documents of agencies and organizations” as stipulated in point b, clause 2, Article 267 of the Criminal Procedure Code.

Considering the nature and severity of the crimes, the defendants’ personal circumstances, and mitigating factors, the representative of the High People’s Procuracy in Hà Nội proposed that the Trial Panel not accept the appeal of the defendant Phan Thành H, uphold the first-instance judgment; accept the appeal of the defendant Từ Công T, uphold the sentence but granting a suspended sentence, setting the probation period as prescribed by law.

The defense lawyer for Phan Thành H stated that he did not dispute the charges and the sentencing framework, but requested the Trial Panel to apply the mitigating circumstances under points b and p, clause 1, and clause 2, Article 46; Article 47 of the 1999 Criminal Code and reduce the sentence for the defendant Phan Thành H.

In the debate section, the representative of the High People’s Procuracy, the defendants and their counsel maintained their opinions.

COURT’S OPINION:

[1] The confessions of the defendants Phan Thành H and Từ Công T align with the testimonies of the victim, witnesses, forensic conclusions, and other documents and evidence in the case file. Therefore, there is sufficient basis to conclude: At about 16:05 on June 30^th, 2017, the defendant Phan Thành H was driving a tractor-trailer BKS: 77C-016.47 with a semi-trailer BKS: 77R-001.37. When he reached km 488 + 650 of National Highway 1A in the territory of K Commune, L District, Hà Tĩnh Province, he was stopped by the Traffic Police patrol team of the Hà Tĩnh Provincial Police Department for speeding (66/60 km/h).

The defendant Phan Thành H did not comply because he believed he was not speeding, so he argued and drove the vehicle straight into Mr. Nguyễn Anh Đ and Mr. Lê Hồ Việt A, who were traffic police officers on duty standing in front of the vehicle. Mr. Lê Hồ Việt A jumped to the roadside to avoid it, while Mr. Nguyễn Anh Đ had to cling to the left rearview mirror. Phan Thành H continued to drive at high speed, then suddenly steered sharply to the left towards the median barrier to throw Mr. Nguyễn Anh Đ off the vehicle to escape.

As a result, Mr. Nguyễn Anh Đ fell from the vehicle, hit the hard median barrier, and fell onto the road. Phan Thành H ignored the consequences and continued to flee. Mr. Nguyễn Anh Đ suffered a traumatic brain injury, a broken leg, and 40% health impairment.

[2] Phan Thành H and Từ Công T also committed the following crimes: Defendant Từ Công T knew that defendant Phan Thành H did not have an FC class driver’s license and was not old enough to be issued an FC class driver’s license, but Từ Công T hired someone in Hải Phòng (whose name and address he did not know) to make a fake FC class driver’s license, number 520144004729 with Phan Thành H’s photo but under the name Lưu Văn C, for Phan Thành H to use to deceive authorities when driving on the road.

With the fake driver’s license provided by Từ Công T, Phan Thành H twice used it to deceive the traffic police of Quảng Ngãi Province and the L District police, Hà Tĩnh Province. Từ Công T was aware of Phan Thành H’s use of the fake driver’s license to deceive the authorities.

[3] Due to the aforementioned criminal acts, the first-instance court’s trial of the defendant Phan Thành H for the crime of “Murder” and the crime of “Forgery of documents of agencies and organizations” under point d, clause 1, Article 93 and point b, clause 2, Article 267 of the 1999 Criminal Code is well-founded and in accordance with the law.

[4] The trial of defendant Từ Công T for the crime of “Forgery of documents of agencies and organizations” under point b, clause 2, Article 267 of the 1999 Criminal Code is well-founded and in accordance with the law.

[5] Considering the appeals of defendants Phan Thành H and Từ Công T, the Trial Panel finds: Phan Thành H’s act of murder is a grave offense, directly endangering human life and negatively impacting public traffic order and safety.

[6] The forgery of documents of agencies and organizations by both defendants, Phan Thành H and Từ Công T, directly violates administrative order and necessitates strict legal action.

[7] Defendant Phan Thành H is a person of good character, with no previous criminal record; during the investigation and trial, he confessed sincerely, expressed remorse and repentance; voluntarily compensated the victim to remedy the consequences, with the victim’s request for a reduced sentence for the defendant; the defendant is in difficult circumstances, belonging to a poor household in the local area; the criminal acts committed by the defendant fall under the category of “unachieved crime”; furthermore, the defendant has an elderly grandfather who contributed to the revolution and enjoys benefits as a veteran.

Therefore, defendant Phan Thành H is eligible for mitigating circumstances under points b, p clause 1 and clause 2 of Article 46, Article 18 of the 1999 Criminal Code. Thus, there is a basis to reduce part of the sentence for the defendant for the crime of “Murder”, maintaining the sentence for the crime of “Forgery of documents of agencies, organizations”.

[8] Regarding defendant Từ Công T: He is a person of good character, with no previous criminal record. During the proceedings, he confessed sincerely, showed repentance; together with the family of defendant Phan Thành H, he compensated the victim to remedy the consequences; the defendant is in difficult circumstances as he is the sole provider in the family; the defendant has a clear place of residence. It is considered unnecessary to impose a prison sentence on the defendant; allowing the defendant to be reformed locally is sufficient for the defendant’s rehabilitation and serve as a general deterrence. Therefore, there is sufficient basis to accept the appeal of defendant Từ Công T.

[9] Other decisions of the first-instance judgment that are not appealed or protested remain legally effective from the expiration date of the appeal or protest period.

[10] Defendants Phan Thành H and Từ Công T are exempt from appellate court fees.

In light of the foregoing, according to point b clause 1; Article 355; point e clause 1 of Article 357 of the 2015 Criminal Procedure Code,

DECISION:

1. Accept a part of defendant Phan Thành H’s appeal, amend the first-instance judgment.

Applying point d clause 1 of Article 93; point b clause 2 of Article 267; Article 18; clause 3 of Article 52 (Crime of Murder); point b, p clause 1, clause 2 of Article 46; Article 47; clause 1 of Article 50 of the 1999 Criminal Code: Defendant Phan Thành H is sentenced to 07 (seven) years imprisonment for the crime of “Murder”; 02 (two) years imprisonment for the crime of “Forgery of documents of agencies and organizations”. The total combined sentence for both crimes is 09 (nine) years imprisonment. The term of imprisonment shall be calculated from June 30^th, 2017.

2. Accept the appeal of defendant Từ Công T, amend the first-instance judgment.

Applying point b clause 2 of Article 267; point b, p clause 1, clause 2 of Article 46; Article 60 of the 1999 Criminal Code: Defendant Từ Công T is sentenced to 02 (two) years imprisonment, suspended for the crime of “Forgery of documents of agencies, organizations”, with a probationary period of 04 (four) years from the date of the appellate judgment. Assigning defendant Từ Công T to the People’s Committee of O Town (D District, Bình Định Province) for supervision and rehabilitation during the probationary period. In the event of a change of residence, the defendant must adhere to the provisions of clause 1, Article 69 of the Law on Execution of Criminal Judgments.

3. Other decisions of the first-instance judgment that are not appealed or protested remain legally effective from the expiration date of the appeal or protest period.

The appellate judgment shall be legally effective from the date of its pronouncement.

CONTENT OF THE CASE LAW:

“[1] The confessions of the defendants Phan Thành H and Từ Công T align with the testimonies of the victim, witnesses, forensic conclusions, and other documents and evidence in the case file. Therefore, there is sufficient basis to conclude: At about 16:05 on June 30^th, 2017, the defendant Phan Thành H was driving a tractor-trailer BKS: 77C-016.47 with a semi-trailer BKS: 77R-001.37. When he reached km 488 + 650 of National Highway 1A in the territory of K Commune, L District, Hà Tĩnh Province, he was stopped by the Traffic Police patrol team of the Hà Tĩnh Provincial Police Department for speeding (66/60 km/h).

The defendant Phan Thành H did not comply because he believed he was not speeding, so he argued and drove the vehicle straight into Mr. Nguyễn Anh Đ and Mr. Lê Hồ Việt A, who were traffic police officers on duty standing in front of the vehicle. Mr. Lê Hồ Việt A jumped to the roadside to avoid it, while Mr. Nguyễn Anh Đ had to cling to the left rearview mirror. Phan Thành H continued to drive at high speed, then suddenly steered sharply to the left towards the median barrier to throw Mr. Nguyễn Anh Đ off the vehicle to escape.

As a result, Mr. Nguyễn Anh Đ fell from the vehicle, hit the hard median barrier, and fell onto the road. Phan Thành H ignored the consequences and continued to flee. Mr. Nguyễn Anh Đ suffered a traumatic brain injury, a broken leg, and 40% health impairment.

[3] Due to the aforementioned criminal acts, the first-instance court’s trial of the defendant Phan Thành H for the crime of “Murder” and the crime of “Forgery of documents of agencies and organizations” under point d, clause 1, Article 93 and point b, clause 2, Article 267 of the 1999 Criminal Code is well-founded and in accordance with the law.”

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