CASE LAW NO. 19/2018/AL On Determining the Value of Embezzled Property in the Crime of “Embezzlement of Property”. (Please note that this image is not related to the specific case being discussed)

CASE LAW NO. 19/2018/AL

On Determining the Value of Embezzled Property in the Crime of “Embezzlement of Property”

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. 09/2015/HS-GDT dated April 23^rd, 2015, of the Criminal Court of the Supreme People’s Court regarding the case of “Embezzlement of Property” involving defendant Võ Thị Ánh N, born in 1981, residing at No. 17, A Street, B Ward, C City, Bình Định Province.

Other defendants in the case include Phan Thị Q, convicted of “Serious consequences due to negligence” and Võ Thị Kim T, convicted of “Serious damage to state property due to negligence.”

Location of the Case Law’s Content:

Paragraph 3 of the “Court’s Opinion” section.

Summary of the Case Law:

– Case Background:

The defendant exploited vulnerabilities in the bank’s internal controls to repeatedly withdraw and misappropriate funds from a bank branch account under their management. These funds were falsely recorded as payments to others but were, in fact, used for the defendant’s personal benefit.

During the investigation, a portion of the embezzled funds was recovered because the defendant had returned it.

– Legal Resolution:

In this case, the defendant must be held criminally liable for the crime of “Embezzlement of Property.”

The value of the property embezzled by the defendant must be determined to be the total amount of money that the defendant has processed to withdraw and misappropriate savings from the bank branch’s fund (including the amount that the defendant has repaid during the investigation).

Relevant Legal Provisions:

Point b, point p, Clause 1, Clause 2 of Article 46; Article 47; Article 60; point c, Clause 2 of Article 278 of the Criminal Code 1999 (corresponding to point b, point s, Clause 1, Clause 2 of Article 51; Article 54; Article 65, point c, Clause 2 of Article 353 of the Criminal Code 2015).

Keywords:

“Embezzlement of Property”; “Value of Embezzled Property”; “Partial Remediation of Consequences”; “Offenses against Property Rights.”

CASE DETAILS

Transaction Office D is a unit under the Branch of the Agricultural and Rural Development Bank of C City, established according to Decision No. 1667/QD/NHNN-TCCB dated March 2^nd, 2007, by the Director General of the Vietnam Bank for Agriculture and Rural Development, tasked with mobilizing savings deposits from residents.

From May 2008 to April 2010, Transaction Office D served as a shared transaction desk with the Treasury Department of Agricultural Bank C. It was staffed by two employees:

– Phan Thị Q, an accountant responsible for customer transactions, issuing receipts, managing cash journal entries, recording transactions on the computer system, issuing and managing savings books.

– Võ Thị Kim T, the cashier responsible for managing unsold savings books for customers and handling cash transactions.

Võ Thị Ánh N, a teller in the Accounting – Treasury Department of Agricultural Bank C, managed disbursements, transfers to walk-in customers, inward and outward transfers, capital mobilization transactions, and cash receipt and interest recording.

On April 12^th, 2010, the branch director of the Agricultural and Rural Development Bank of C City discovered misconduct by a teller at the branch and reported it to the Provincial State Bank Branch of Bình Định Province. On June 7^th, 2010, the branch director of the Agricultural and Rural Development Bank of Bình Định Province issued Dispatch No. 486/NHNNBD-HCNS requesting the investigative agency to clarify the withdrawal of savings from Transaction Office D for savings book NA 222040 in the name of Đặng Thị Bích D and savings book NA 1297720 in the name of Ngô Thanh V, causing damages to the bank totaling VND 774,403,300. The investigation determined:

– Phan Thị Q and Võ Thị Kim T directly withdrew funds from Transaction Office D’s funds for savings book NA 222040 under Đặng Thị Bích D’s name amounting to VND 200,100,000 and savings book NA 1297720 under Ngô Thanh V’s name amounting to VND 102,870,600, totaling VND 302,970,60 (200,100,000 + 102,870,600 = VND 302,970,600) without verifying the customers’ ID cards, leading to the bank’s financial losses.

– Võ Thị Ánh N directly processed withdrawal procedures and disbursed funds from the branch’s funds managed by her for savings book NA 1297720 under Ngô Thanh V’s name, totaling VND 471,432,700, including the following transactions:

  – On July 31^st, 2009, Võ Thị Ánh N withdrew VND 23,124,400, including VND 20,000,000 principal and VND 3,124,400 interest.

  – On November 3^rd, 2009, Võ Thị Ánh N withdrew VND 448,308,300, including VND 375,000,000 principal and VND 73,308,300 interest.

Regarding the withdrawal on November 3^rd, 2009, the investigative agency confirmed that Võ Thị Ánh N transferred VND 251,000,000 to an ATM account under Võ Thị T’s name (managed and used by Võ Thị Ánh N) and subsequently withdrew VND 251,000,000 from Ms. Võ Thị T’s ATM account multiple times for personal use.

The remaining amount from the disbursement for savings book NA 1297720 under Ngô Thanh V’s name, which Võ Thị Ánh N failed to prove the recipient, caused a financial loss to the bank of VND 220,432,700. During the investigation, Võ Thị Ánh N remedied this amount, leading the Provincial People’s Procuracy of Bình Định Province not to prosecute her for this offense.

In First-instance Criminal Judgment No. 106/2013/HSST dated August 14^th, 2013, the People’s Court of C City, Bình Định Province, applied point c, Clause 2 of Article 278; points b, p, Clause 1, Clause 2 of Article 46; Article 47 of the Criminal Code to sentence Võ Thị Ánh N to 03 years imprisonment for the crime of “Embezzlement of Property.”

On August 27^th, 2013, Võ Thị Ánh N filed an appeal requesting a suspended sentence.

In Criminal Appellate Judgment No. 30/2014/HSPT dated February 24^th, 2014, the Provincial People’s Court of Bình Định, based on point b, Clause 2 of Article 248; point đ, Clause 2 of Article 249 of the Criminal Procedure Code, accepted Võ Thị Ánh N’s appeal for a suspended sentence, applying point c, Clause 2 of Article 278, points b, p, Clause 1, 2 of Article 46, Article 47, and Article 60 of the Criminal Code to sentence Võ Thị Ánh N to 03 years in prison for “Embezzlement of Property,” but suspended the sentence for a probation period of 05 years.

In the Cassation Decision No. 02/2015/KN-HS dated February 9^th, 2015, the Chief Justice of the Supreme People’s Court proposed that the Appellate Panel of the Criminal Court of the Supreme People’s Court vacate the Criminal Appellate Judgment No. 30/2014/HSPT dated February 24^th, 2014, and the First-instance Criminal Judgment No. 106/2013/HSST dated August 14^th, 2013, of the People’s Court of City C, Bình Định Province against Võ Thị Ánh N for further investigation in accordance with the law.

During the cassation trial, the representative of the Supreme People’s Procuracy proposed that Appellate Panel accept the appeal of the Chief Justice of the Supreme People’s Court.

COURT’S OPINION:

[1] Võ Thị Ánh N was not authorized by the Agriculture and Rural Development Bank to handle savings disbursements. However, taking advantage of vulnerabilities in the bank’s internal controls, Võ Thị Ánh N directly processed multiple procedures and disbursed savings from the branch’s funds managed by her for savings account NA 1297720 under the name of Ngô Thanh V, totaling VND 471,432,700. During the investigation, it was determined that there was no customer named Ngô Thanh V, and Võ Thị Ánh N herself failed to prove the identity of the recipient of these funds.

[2] After processing the disbursement for customer Ngô Thanh V, Võ Thị Ánh N transferred VND 251,000,000 from the bank’s funds managed by her to an ATM account under the name Võ Thị T, which she directly managed, opened, and used. She subsequently withdrew this amount several times to misappropriate funds from the Agriculture and Rural Development Bank. Both the court of first-instance and the appellate court sentenced Võ Thị Ánh N for the crime of “Embezzlement of Property” in the amount of VND 251,000,000, which was justified and in accordance with the law.

However, since the amount embezzled by Võ Thị Ánh N was VND 251,000,000, her criminal act falls under the provisions of clause a, paragraph 3, Article 278 of the Criminal Code “Embezzlement of property valued from two hundred million dong to under five hundred million dong”, which carries a prison sentence ranging from fifteen to twenty years.

The court of first-instance’s application of only Article 278, clause 2 of the Criminal Code to sentence Võ Thị Ánh N to three years imprisonment was too lenient and not in accordance with legal provisions. In the appellate trial, the appellate court failed to identify errors in the court of first-instance’s judgment, maintaining the same level of punishment and granting a suspended sentence to the defendant, which constituted a serious mistake and did not accurately assess the dangerous nature of the defendant’s criminal behavior.

[3] Regarding the remaining amount of 220,432,700 VND (471,432,700 – 251,000,000 = 220,432,700 VND) that Võ Thị Ánh N disbursed to savings account NA 1297720 under the name Ngô Thanh V, Võ Thị Ánh N has reimbursed the embezzled amount, and the Agriculture and Rural Development Bank of City C has recovered the entire amount lost. The People’s Procuracy of Bình Định Province had erred in deciding not to prosecute as the defendant had made amends, which constitutes a failure to prosecute criminals.

In light of the foregoing, pursuant to Article 279, clause 2; Article 285, clause 3; Article 287 of the Criminal Procedure Code,

DECISION:

1. Vacate the Appellate Criminal Judgment No. 30/2014/HSPT dated February 24^th, 2014, and the First-instance Criminal Judgment No. 106/2013/HSST dated August 14^th, 2013, of the People’s Court of City C, Bình Định Province against Võ Thị Ánh N for further investigation in accordance with the law.
2. Remand the case files to the Supreme People’s Procuracy for processing according to its jurisdiction.

Other decisions of the aforementioned judgments not challenged through the appellate review process by the Chief Justice remain legally effective.

CONTENT OF THE CASE LAW:

“[3] Regarding the remaining amount of 220,432,700 VND (471,432,700 – 251,000,000 = 220,432,700 VND) that Võ Thị Ánh N disbursed to savings account NA 1297720 under the name Ngô Thanh V, Võ Thị Ánh N has reimbursed the embezzled amount, and the Agriculture and Rural Development Bank of City C has recovered the entire amount lost. The People’s Procuracy of Bình Định Province had erred in deciding not to prosecute as the defendant had made amends, which constitutes a failure to prosecute criminals.”

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