CASE LAW NO. 17/2018/AL On the Circumstance of “Thuggish Nature” in the Crime of “Murder” with Accomplices (Please note that this image is not related to the specific case being discussed)

CASE LAW NO. 17/2018/AL

On the Circumstance of “Thuggish Nature” in the Crime of “Murder” with Accomplices

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:

The Cassation Decision No. 07/2018/HS-GDT dated March 20^th, 2018, by the Council of Judges of the Supreme People’s Court in the case of “Murder” involving the defendant Nguyễn Văn H, born in 1977; residing at A Street, C Town, P District, Thừa Thiên Huế Province.

– Victim: Mr. Dương Quang Q.

Location of the Case Law’s Content:

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

Summary of the Case Law:

– Case Background:

In the case with accomplices, due to minor daily life conflicts, the accomplices conspired to intimidate the victim by assault him up.

While committing the crime, the principal perpetrator used a machete to continuously strike the victim’s head, face, legs, and arms; the fact that the victim did not die was beyond the principal perpetrator’s subjective intent.

The instigator was not present when the principal perpetrator committed the crime, did not know that the principal perpetrator used a machete to strike vital areas of the victim’s body, but allowed the consequences to happen.

– Legal Resolution:

In this case, the principal perpetrator must be criminally prosecuted for the crime of “Murder” with the aggravating circumstance of “Thuggish Nature.” The instigator is prosecuted for the crime of “Murder” but without the aggravating circumstance of “Thuggish Nature.”

Relevant Legal Provisions:

– Point n, Clause 1, Article 93 of the 1999 Criminal Code (corresponding to Point n, Clause 1, Article 123 of the 2015 Criminal Code);

– Clause 2, Article 93 of the 1999 Criminal Code (corresponding to Clause 2, Article 123 of the 2015 Criminal Code).

Keywords:

“Accomplice”; “Thuggish Nature”; “Vital Areas of the Body”; “Principal Perpetrator”; “Instigator”; “Murder.”

CASE DETAILS

Around 08:00 on January 13^th, 2015, due to a domestic conflict, a fight broke out between Mr. Dương Quang Q’s sons, Dương Quang T, Dương Quang R, and Dương Quang K, and Mr. Dương Quang H, Dương Quang L, and Nguyễn Văn H. Mr. Q’s sons used their hands and feet to punch and kick Mr. Dương Quang H, causing minor injuries to Mr. H. Seeing that his father-in-law, Mr. Dương Quang H, was assaulted by Mr. Q’s sons, Nguyễn Văn H called Trần Quang V (Mr. H’s son-in-law).

Upon learning that his father-in-law was assaulted, V traveled from Hà Tĩnh to Thừa Thiên Huế and enlisted Phạm Nhật T to accompany him in assault Mr. Q. V and T took two machetes from T’s house, placing them in a badminton racket bag.

At around 16:00 on January 19^th, 2015, V drove T to Lăng Cô Town and called H to join them for a drink. At the drinking spot, H told V, “Dad was badly beaten and still hurts now.” V asked H for Mr. Q’s address and how to recognize him. After H described, V told T, “We’ll go beat him after drinking,” to which H responded, “If you are going to beat him, just beat him enough to intimidate him.” H then left, while V and T continued drinking.

At approximately 17:45, while paying the bill, Trần Quang V told Phạm Nhật T, “I’ll go in to beat him; you keep the people away,” and T agreed. They then drove to Mr. Q’s house. After circling the house and finding that Mr. Q was not home, V stopped at a secluded spot, covered the motorcycle’s license plate with plastic, and drove to Lăng Cô Bridge to wait.

At around 18:00, V and T returned to Mr. Q’s house, seeing Mr. Q bending over to open the gate. V stopped, took a machete from the racket bag, and repeatedly struck Mr. Q’s head, face, back, legs, and arms, causing Mr. Q to collapse. As the surrounding residents noticed and rushed over, T wielded the machete to threaten and prevent them, allowing V to escape on the motorcycle.

When approaching Phú Gia Pass, V called H to inquire about Mr. Q’s condition. H asked, “Did you strike Mr. Q? He went to the hospital.” After talking to H, V called Dương Quang L, saying, “I just struck Mr. Q! Where are you? Come take these two machetes for me!” After receiving V’s call, L waited by the road for V and T. T handed L the badminton bag containing the two machetes for L to hide.

V then drove T to his house and continued drinking beer with T. L took the bag to Mr. Dương Quang H’s house for safekeeping. Mr. H then took the bag to Mr. Hồ T’s kitchen (Mr. H’s father-in-law) for concealment. Mr. Dương Quang Q was taken by the residents to the hospital in Đà Nẵng City and discharged on February 3^rd, 2015.

According to Forensic Examination Report No. 26-15/TgT dated January 28^th, 2015, by the Forensic Center of Thừa Thiên Huế Province: Mr. Dương Quang Q suffered multiple soft tissue injuries on the head, left shoulder, left elbow, and left thigh, leaving scars that do not affect function (3%); soft tissue injury on the face with minimal functional impact (8%); fractures of four front teeth (R1.1, 1.2, 1.3, 3.3), two small molars (1.4, 1.5), and two molars (1.6, 1.7) undergoing treatment, currently affecting 20% of opposing tooth function.

The report further notes a near-complete severance of the left hand that was surgically reattached, currently under treatment with undetermined functional sequelae (8%); severed second and third fingers of the left hand (25%); the overall bodily harm rate is 51%; the injuries were caused by a heavy sharp object.

In the First-Instance Criminal Judgment No. 20/2016/HSST dated May 23^rd, 2016, the People’s Court of Thừa Thiên Huế Province applied Point n, Clause 1, Article 93; Points b and p, Clause 1, Article 46; Article 47; Article 18; Clause 3, Article 52 of the 1999 Criminal Code, sentencing Nguyễn Văn H to 7 years imprisonment for “Murder.”

The first-instance court also ruled on the charges, Criminalties for other defendants, civil liability, evidence handling, court fees, and appeal rights as per the law.

After the first-instance trial, Nguyễn Văn H appealed to reconsider the charges and requested a reduced sentence.

In the Appellate Criminal Judgment No. 217/2016/HSPT dated August 2^nd, 2016, the High People’s Court in Đà Nẵng ruled: To accept Nguyễn Văn H’s appeal; applying Clause 2, Article 104; Points b and p, Clause 1, Article 46; Article 20; Article 53 of the 1999 Criminal Code, sentencing Nguyễn Văn H to 3 years imprisonment for “Intentionally Inflicting Injury.”

At the Cassation Appeal No. 13/2017/KN-HS, the Chief Justice of the Supreme People’s Court appealed against the Appellate Criminal Judgment No. 217/2016/HSPT of the High People’s Court in Đà Nẵng regarding the charges and punishment of Nguyễn Văn H; proposing that the Judicial Council of the Supreme People’s Court conduct a cassation trial to vacate the aforementioned Appellate Judgment in terms of the charges and punishment of Nguyễn Văn H and to conduct a new appellate trial for the case according to the law.

At the cassation trial, the representative of the Supreme People’s Procuracy concured with the appeal of the Chief Justice of the Supreme People’s Court.

COURT’S OPINION:

[1] According to the documents and evidence in the case file: After witnessing his father-in-law, Mr. Dương Quang H, being assaulted by the sons of Dương Quang Q, Nguyễn Văn H directly called Trần Quang V to inform him about the assault. During a drinking session with V and Phạm Nhật T on the evening of January 19^th, 2015, knowing that V and T intended to retaliate against Mr. Q, H said, “Dad was badly beaten and still hurts now,” which strengthened V’s determination to retaliate against Mr. Q.

H also provided V and T with the location and physical description of Mr. Q so that they could carry out the assault. When H heard V and T discussing their plan to assault Mr. Q, he did not discourage them but instead said, “If you’re going to beat him, just beat him enough to intimidate him,” indicating his agreement with the assault on Mr. Q. Afterward, H left. In reality, Trần Quang V used a machete to repeatedly slash Mr. Q on the head, face, legs, and arms, causing him to collapse. It was only due to timely intervention and emergency medical care that Mr. Q did not die, which was beyond V’s subjective intention.

After attacking Mr. Q, V made three consecutive phone calls to H to inquire about Mr. Q’s injuries. Although H did not know beforehand that V would use a machete to repeatedly slash vital areas on Mr. Q’s body, potentially killing him, H had agreed with V and T about assaulting Mr. Q and accepted the consequences. Therefore, the first-instance court’s conviction of Nguyễn Văn H as an accomplice with Trần Quang V and Phạm Nhật T for “Murder” is grounded.

However, the first-instance court’s conviction of Nguyễn Văn H under Point n, Clause 1, Article 93 of the 1999 Criminal Code with the aggravating circumstance “Thuggish Nature” is incorrect, because: In this case, Trần Quang V and Phạm Nhật T were the ones directly committing the assault on Mr. Q; due to minor conflicts in daily life with Mr. Q’s sons, V and T used machetes to slash multiple times at vital areas on Mr. Q’s body, hence only the criminal acts of V and T had “Thuggish Nature” characteristics.

Nguyễn Văn H did not directly participate in assaulting Mr. Q but assisted V and T in assaulting Mr. Q, so H’s criminal act did not have “Thuggish Nature” characteristics and only falls under Clause 2, Article 93 of the 1999 Criminal Code.

[2] The appellate court reasoned: The act of Trần Quang V using a machete to slash the head and face of Dương Quang Q exceeded the intent of Nguyễn Văn H, thus H should not bear criminal responsibility for “Murder” but only for the actual consequences caused to Mr. Q. Therefore, the appellate court amended the first-instance court’s judgment, changing the charge against H from “Murder” to “Intentional infliction of bodily harm,” which was a significant legal error.

Additionally, the appellate court overemphasized the mitigating circumstances already considered by the first-instance court, resulting in a sentence of 03 years imprisonment for Nguyễn Văn H, which does not accurately reflect the severity and societal danger of the crime committed by the defendant, nor does it serve as an effective deterrent and preventive measure.

In light of the foregoing,

DECISION:

Pursuant to Clause 3, Article 388, and Article 391 of the Criminal Procedure Code;

Vacate the Appellate Criminal Judgment No. 2107/2016/HSPT of the High People’s Court in Đà Nẵng regarding the charges and punishment of Nguyễn Văn H, and remand the case file to the High People’s Court in Đà Nẵng for a new appellate trial in accordance with the law.

CONTENT OF THE CASE LAW:

[1] According to the documents and evidence in the case file: After witnessing his father-in-law, Mr. Dương Quang H, being assaulted by the sons of Dương Quang Q, Nguyễn Văn H directly called Trần Quang V to inform him about the assault. During a drinking session with V and Phạm Nhật T on the evening of January 19^th, 2015, knowing that V and T intended to retaliate against Mr. Q, H said, “Dad was badly beaten and still hurts now,” which strengthened V’s determination to retaliate against Mr. Q.

H also provided V and T with the location and physical description of Mr. Q so that they could carry out the assault. When H heard V and T discussing their plan to assault Mr. Q, he did not discourage them but instead said, “If you’re going to beat him, just beat him enough to intimidate him,” indicating his agreement with the assault on Mr. Q. Afterward, H left. In reality, Trần Quang V used a machete to repeatedly slash Mr. Q on the head, face, legs, and arms, causing him to collapse. It was only due to timely intervention and emergency medical care that Mr. Q did not die, which was beyond V’s subjective intention.

After attacking Mr. Q, V made three consecutive phone calls to H to inquire about Mr. Q’s injuries. Although H did not know beforehand that V would use a machete to repeatedly slash vital areas on Mr. Q’s body, potentially killing him, H had agreed with V and T about assaulting Mr. Q and accepted the consequences. Therefore, the first-instance court’s conviction of Nguyễn Văn H as an accomplice with Trần Quang V and Phạm Nhật T for “Murder” is grounded.

However, the first-instance court’s conviction of Nguyễn Văn H under Point n, Clause 1, Article 93 of the 1999 Criminal Code with the aggravating circumstance “Thuggish Nature” is incorrect, because: In this case, Trần Quang V and Phạm Nhật T were the ones directly committing the assault on Mr. Q; due to minor conflicts in daily life with Mr. Q’s sons, V and T used machetes to slash multiple times at vital areas on Mr. Q’s body, hence only the criminal acts of V and T had “Thuggish Nature” characteristics.

Nguyễn Văn H did not directly participate in assaulting Mr. Q but assisted V and T in assaulting Mr. Q, so H’s criminal act did not have “Thuggish Nature” characteristics and only falls under Clause 2, Article 93 of the 1999 Criminal Code.

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