CASE LAW NO. 29/2019/AL On the Stolen Property in the Crime of “Robbery” (Please note that this image is not related to the specific case being discussed).

CASE LAW NO. 29/2019/AL

On the Stolen Property in the Crime of “Robbery”

Approved by the Judicial Council of the Supreme People’s Court on August 22^nd, 2019, and published under Decision No. 293/QĐ-CA dated September 9^th, 2019, by the Chief Justice of the Supreme People’s Court.

Source of the Case Law:

The Cassation Decision No. 20/2018/HS-GĐT dated October 15^th, 2018, of the Judicial Council of the Supreme People’s Court regarding the case of “Robbery” involving the defendant: Lê Xuân Q, born in 1993.

Location of the Case Law’s Content:

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

Summary of the Case Law:

– Case Background:

The defendant used force to attack the victim, rendering the victim unable to resist, with the intention of avoiding repayment of a sum of money the defendant was obligated to pay the victim.

– Legal Resolution:

In this case, the defendant must be criminally prosecuted for the crime of “Robbery.”

Relevant Legal Provisions:

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

Keywords:

“Robbery”; “Stolen Property”; “Sum of Money the Defendant Must Repay.”

CASE DETAILS

At approximately 10:00 PM on January 19^th, 2015, Lê Xuân Q, Trần Xuân L, Nguyễn Văn L, Trương Sỹ T, Hà Thị Thu H, and other individuals identified as H1 and Bin (whose backgrounds are unknown) went to sing at room 203 of the Karaoke M located in Ward H, District L, Đà Nẵng City, owned by Mr. Nguyễn Thành H.

Around 11:30 PM the same day, everyone left except for Q and Nguyễn Văn L, who stayed behind to settle the bill. Mr. Võ Minh T, who was assigned by Mr. Nguyễn Thành H to manage the establishment, checked room 203 and issued a payment slip totaling VND 408,000. Lê Xuân Q handed VND 208,000 and a mobile phone to Mr. Võ Minh T and stated he would return the next day to pay the remaining VND 200,000 and reclaim his phone, but Mr. Võ Minh T refused.

At that time, Trương Sỹ T returned to pick up Q and Nguyễn Văn L, at which point Q told the owner he would go get the money, leaving Nguyễn Văn L and Trương Sỹ T at the establishment. Q drove to meet Trần Xuân L and H1, informing Trần Xuân L to bring his phone to the Karaoke establishment as collateral for the remaining amount, but Trần Xuân L refused. Q then suggested to Trần Xuân L and H1 to return to Karaoke M to chase the employees out so that Nguyễn Văn L and Trương Sỹ T could escape without paying the VND 200,000 still owed. Trần Xuân L and H1 agreed.

Subsequently, Lê Xuân Q transported Trần Xuân L and H1 to a bush near the I Apartment Complex in Ward H, District L, Đà Nẵng City, and instructed them to retrieve two self-made machetes approximately 60 cm long, which Q had hidden there previously. Each of them grabbed a machete and then rode back to Karaoke M.

At around midnight on January 20^th, 2015, Lê Xuân Q drove to the front of Karaoke M and stopped, remaining on his vehicle, while H1 and Trần Xuân L, armed with machetes, stormed into the establishment. Upon seeing H1 and Trần Xuân L enter, Nguyễn Văn L and Trương Sỹ T fled home. T

rần Xuân L and H1 chased the employees, causing Mr. Đinh Đức T and Mr. Võ Minh T to hide in the restroom, Mr. Nguyễn Thành H to retreat to the second floor and lock the door, and Mr. Phan Thanh T, the establishment’s security guard, to escape onto the street. Trần Xuân L pursued to the cashier counter, where he found two black Hanet tablet computers in a drawer, which he concealed on his person before exiting, with H1 following him out and the two fleeing on Q’s vehicle.

On their way, H1 and Trần Xuân L discarded the two machetes along Nguyễn Sinh S Street (the weapons were not recovered). Upon reaching the F Apartment Complex, Trần Xuân L revealed the two tablets he had taken from Karaoke M, to which Q suggested returning them, but Trần Xuân L responded, “If we return them now, the police will catch us,” to which Lê Xuân Q replied, “I am not involved,” before going home to sleep.

The next morning, Lê Xuân Q returned Trần Xuân L’s vehicle and then absconded. As for the two tablets, Trần Xuân L sold them to an unidentified man for VND 1,100,000 and spent all the money. The tablets were not recovered.

According to Valuation Report No. 33/KL-HĐĐG dated May 28^th, 2015, by the Asset Valuation Council, the remaining value of the two used Hanet 10S tablets was VND 12,000,000.

During the investigation, Ms. Phan Thị C (Trần Xuân L’s mother) compensated Mr. Nguyễn Minh T with VND 7,000,000. Mr. Nguyễn Minh T accepted the money and did not request further compensation.

In the First-instance Criminal Judgment No. 77/2015/HSST dated December 19^th, 2015, the People’s Court of Liên Chiểu District, Đà Nẵng City, pursuant to point d, clause 2, Article 133; points b, p, clause 1 and clause 2, Article 46; points g and n, clause 1, Article 48 of the 1999 Criminal Code, sentenced Lê Xuân Q to 07 (seven) years imprisonment for the crime of “Robbery.”

Additionally, the first-instance court sentenced Trần Xuân L to 06 years imprisonment for the crime of “Robbery,” decided on court fees, and the right to appeal according to the law.

On December 21^st, 2015, Lê Xuân Q appealed, asserting he did not commit “Robbery.” Trần Xuân L appealed for a reduced sentence.

In the Appellate Criminal Judgment No. 78/2016/HSPT dated April 20^th, 2016, the People’s Court of Đà Nẵng City, pursuant to point b, clause 2, Article 248; point c, clause 1, Article 249 of the 2003 Criminal Procedure Code, decided to amend the First-Instance Judgment: pursuant to clause 1, Article 314; point p, clause 1, Article 46; point g, clause 1, Article 48 of the Criminal Code, sentenced Lê Xuân Q to 03 (three) years imprisonment for “Misprision of a Crime”.

(Additionally, the appellate court reduced Trần Xuân L’s sentence to 05 years imprisonment for “Robbery.”)

At Decision No. 26/2017/KN-HS-VC2 dated April 11^th, 2017, the Chief Prosecutor of the High People’s Procuracy in Đà Nẵng lodged a cassation protest against the aforementioned Appellate Criminal Judgment, proposing that the High People’s Court in Đà Nẵng vacate the sentence part against Lê Xuân Q from the Appellate and First-Instance Judgments for re-investigation. In Decision No. 61/2017/QĐ-VC2 dated July 27^th, 2017, the Chief Prosecutor of the High People’s Procuracy in Đà Nẵng amended Decision No. 26/2017/KN-HS-VC2 dated April 11^th, 2017, requesting that the High People’s Court in Đà Nẵng vacate the conviction and sentence against Lê Xuân Q in the Appellate Judgment for a appellate retrial.

In Cassation Decision No. 38/2017/HS-GĐT dated September 18^th, 2017, the Judicial Committee of the High People’s Court in Đà Nẵng vacated the Appellate Criminal Judgment regarding the conviction and sentence against Lê Xuân Q for a appellate retrial.

In Decision No. 16/2018/KN-HS dated May 22^nd, 2018, the Chief Justice of the Supreme People’s Court appealed the Cassation Decision No. 38/2017/HS-GĐT dated September 18^th, 2017, of the Judicial Committee of the High People’s Court in Đà Nẵng, proposing that the Judicial Council of the Supreme People’s Court vacate the said Cassation Decision and amend Appellate Criminal Judgment No. 78/2016/HSPT dated April 20^th, 2016, of the People’s Court of Đà Nẵng City regarding the criminal liability of Lê Xuân Q.

At the cassation hearing, the representative of the Supreme People’s Procuracy concurred with the Cassation Decision by the Chief Justice of the Supreme People’s Court and proposed that the Judicial Council of the Supreme People’s Court vacate the Cassation Decision of the Judicial Committee of the High People’s Court in Đà Nẵng for a appellate retrial.

COURT’S OPINION:

[1] The confession of Lê Xuân Q aligns with the confession of Trần Xuân L and the statements of Mr. Võ Minh T and Mr. Nguyễn Thành H (the employee and the owner of Karaoke M respectively) concerning the case details. It is established that after some discussions, at around midnight on January 20^th, 2015, Lê Xuân Q, Trần Xuân L, and H1 brought two machetes to Karaoke M.

Q stayed outside while Trần Xuân L and H1 wielded the machetes to chase the establishment’s employees, facilitating the escape of Nguyễn Văn L and Trương Sỹ T, with the intent of avoiding payment of the VND 200,000 owed for karaoke services. Therefore, the defendants’ actions of using force to attack the victim to aid their accomplices for the purpose of avoiding payment, which the defendants were obliged to pay, constitutes the crime of “Robbery”.

[2] Lê Xuân Q did not personally wield the machetes to chase the employees of Karaoke M, but he participated in the planning, prepared the weapons, and transported Trần Xuân L and H1 to Karaoke M to commit the crime, thus Q is an accomplice with Trần Xuân L and H1 in the act of robbery of VND 200,000. The first-instance court’s application of point d (use of weapons, instruments, or other dangerous means), clause 2, Article 133 of the 1999 Criminal Code to sentence Lê Xuân Q for “Robbery” is lawful.

[3] After the first-instance trial, Lê Xuân Q appealed, claiming he did not commit “Robbery.” The appellate court found that Q and Trần Xuân L did not commit “Robbery” for the VND 200,000 but did not declare Q innocent of “Robbery” nor dismiss the charges against him. Instead, it convicted Q of “Misprision of a Crime” for the act of stealing two tablet computers by Trần Xuân L. Thus, the appellate court convicted Q for an act that had not been investigated or prosecuted, violating the provisions of Article 196 of the 2003 Criminal Procedure Code regarding the limits of adjudication.

[4] The Cassation Decision of the Judicial Committee of the High People’s Court in Đà Nẵng determined that Lê Xuân Q did not commit the crime of “Misprision of a Crime,” thus recognizing that the appellate court’s conviction of Q for this crime was unfounded and required the vacatur of the conviction and sentence part for re-adjudication in the appellate court. However, the Cassation Decision did not guide the appellate court on which crime to adjudicate Lê Xuân Q for and did not determine whether the first-instance court’s judgment was justified, complicating the appellate court’s re-adjudication.

[5] Lê Xuân Q was detained on September 30^th, 2015, and on May 31th, 2016, he began serving his sentence at Bình Điền Prison. During his incarceration, neither Bình Điền Prison nor Lê Xuân Q received the Cassation Protest from the Chief Prosecutor of the High People’s Procuracy in Đà Nẵng, nor the Cassation Decision from the Judicial Committee of the High People’s Court in Đà Nẵng. The “Recipients” section of the protest and cassation decision did not indicate that they were sent to the prison or Q.

Consequently, Bình Điền Prison reduced Q’s sentence, and on February 10^th, 2018, Q completed the three-year prison term. Thus, the Judicial Committee of the High People’s Court in Đà Nẵng did not comply with the provisions of Article 288 of the 2003 Criminal Procedure Code regarding the delivery of the cassation decision.

[6] Regarding the sentence for Lê Xuân Q: The first-instance court’s conviction of Lê Xuân Q for the crime of “Robbery” was lawful. However, the sentence of seven years’ imprisonment for this crime was excessive given the nature and severity of Q’s criminal conduct. Upon re-adjudication, the People’s Court of Đà Nẵng City should comprehensively and objectively assess Q’s criminal actions, taking into account that Q has already served a three-year prison term according to Appellate Criminal Judgment No. 78/2016/HSPT dated April 20^th, 2016, to determine an appropriate sentence for Lê Xuân Q.

In light of the foregoing,

IT IS DECIDED:

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

1. Vacate the Cassation Decision No. 38/2017/HS-GĐT dated September 18^th, 2017, of the Judicial Committee of the High People’s Court in Đà Nẵng and Appellate Criminal Judgment No. 78/2016/HSPT dated April 20^th, 2016, of the People’s Court of Đà Nẵng City regarding the criminal liability of Lê Xuân Q.
2. Remand the case file to the People’s Court of Đà Nẵng City for a appellate retrial in accordance with the law.

CONTENT OF THE CASE LAW:

“[1] … the defendants’ actions of using force to attack the victim to aid their accomplices for the purpose of avoiding payment, which the defendants were obliged to pay, constitutes the crime of “Robbery”.”

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