CASE LAW DRAFT NO. 01/2024 On the application of the aggravating circumstance of criminal liability “intentionally carrying out a crime to the end” (Please note that this image is not related to the specific case being discussed).

CASE LAW DRAFT NO. 01/2024

On the application of the aggravating circumstance of criminal liability “intentionally carrying out a crime to the end”

Approved by the Judges’ Council of the Supreme People’s Court on [date] [month] 2024 and published under Decision No. [number]/QĐ-CA on [date] [month] 2024 by the Chief Justice of the Supreme People’s Court.

Source of the Case Law:

Criminal first-instance judgment No. 02/2020/HS-ST dated January 8, 2020, of the People’s Court of Cà Mau Province regarding the case “Murder” involving the defendant Phạm Văn D.

Location of the Case Law’s Content:

Paragraphs 3 and 8 of the “Court’s Opinion” section.

Summary of the Case Law:

– Factual Background:

The defendant used a dangerous weapon to attack a vital part of the victim’s body, causing the victim to fall into the sea. Subsequently, the defendant threatened others not to rescue the victim, who was in a life-threatening situation. There was no information about whether the victim was still alive or had died.

– Legal Resolution:

In this case, the Court must apply the aggravating circumstance of criminal liability “intentionally carrying out a crime to the end” against the defendant.

Relevant Legal Provisions:

Point e, Clause 1, Article 52, Article 123 of the 2015 Penal Code (amended and supplemented in 2017).

Keywords:

“Murder”; “No information on whether the victim is still alive or dead”; “intentionally carrying out a crime to the end”; “Not rescuing another person in a life-threatening situation”.

CASE DETAILS

According to the documents in the case file and the proceedings at the trial, the case details are summarized as follows:

At around 10:00 p.m. on March 14^th, 2019, the fishing boat BT 93679 TS named Xum Họp was anchored at coordinates 07001’N-104030’E in the waters of Cà Mau Province for the fishermen to rest. On the boat were 12 fishermen: Lưu Hồng V, Lê Hoàng G, Lâm Quốc T1, Nguyễn Văn P, Hồ Thanh T2, Lê Văn H1, Mai Văn T3, Phan Văn K1, Nguyễn Văn H2, Huỳnh Văn T4, Nguyễn Văn T (also known as K, K2), and Phạm Văn D.

At this time, T took T4’s phone charger to use, but T4 did not allow it, leading to an argument. T4 hit T with his hand, and T used a yellow-handled Thai knife to stab T4 twice, causing superficial skin injuries. T4 climbed from the upper cabin down to the lower cabin where D was sleeping. D asked what happened, and T4 said T had stabbed him with a knife. T4 then went to the kitchen to get a knife and threw it at T but missed. T4 shouted to D, “Beat him to death for me”. 

Hearing T4’s words, D agreed and went down to the engine room to get a 58 cm long, 3 cm diameter iron pipe, and went along the right side of the boat to the front. At this time, T4 took the knife (the one T4 had thrown at T earlier) in his right hand and moved towards T (heading towards the bow). Seeing T4 approaching with a knife, T also took a knife to defend himself, and both prepared to fight.

D came from the right side, stood behind T, and used both hands to raise the iron pipe and hit T once on the nape, causing T to fall into the sea. At this time, the fishermen on the boat saw T drifting naturally with the current and intended to jump in to rescue him, but D said, “Anyone who jumps in, I will beat them to death”, so no one dared to jump in to rescue T.

When Lưu Hồng V, the boat’s captain, found out, he shone a light to look for T, but due to the strong current, he could not find him. V reported to the boat owner, Đặng Văn N1, on land to report to Border Guard Station S1. Subsequently, the above-mentioned fishing boat reached the mainland and handed D over to the authorities for processing.

Through the search notifications on mass media and the results of working with the victim’s family, the body of the victim Nguyễn Văn T has not yet been found.

* Evidence collected: 01 (one) 58 cm long, 3 cm diameter round metal pipe; 01 (one) metal knife, 33 cm long, with a 24 cm blade, widest point 6.5 cm; 01 (one) black Oppo phone, IMEI1: 863008038017553, IMEI2: 863008038017546; (the phone contains 01 SIM card).

According to Indictment No. 33/CT – VKS – P1 dated November 12^th, 2019, of the People’s Procuracy of Cà Mau Province, the defendant Phạm Văn D was prosecuted for “Murder” under Point n, Clause 1, Article 123 of the Penal Code.

At the trial:

– The representative of the Procuracy maintained the prosecution decision and proposed that the Trial Panel impose a sentence of 13 to 15 years imprisonment on the defendant and order compensation of 100 times the basic salary, totaling VND 149,000,000, to the victim’s family.

– The defendant’s counsel requested the Trial Panel consider mitigating circumstances: the defendant’s sincere confession and repentance; the defendant had no previous convictions or criminal record, was illiterate, and committed the crime in defense of T4. Additionally, the counsel asked to clarify the legal basis for determining that the victim had died to consider the compensation amount proposed by the Procuracy.

– The defendant admits all criminal acts as indicted and does not raise any objection, only requesting a reduction in penalty.

– The legal representative of the victim requests that the defendant be judged according to legal provisions and demands compensation for emotional damages as regulated.

COURT’S OPINION:

[1] Based on the case details and the documents presented at the hearing, the Trial Panel determines as follows:

[2] Regarding the procedural matters: It was found that the conduct of the investigation agency, the decisions of the Procuracy, and the actions taken by investigators and procurators throughout the investigation and prosecution process were conducted in accordance with jurisdictional mandates, procedural requirements, and the legal provisions stipulated in the Penal Procedure Code.

Both the defense counsel representing the defendant and the legal representative of the victim raised no objections or complaints concerning the conduct and decisions made by the prosecuting authority and the procurator. Consequently, it was concluded that the actions and decisions of the criminal proceedings-conducting authorities and the criminal proceedings-conducting individuals were lawful.

[3] Regarding the charge: The incident occurred around 10:00 p.m. on March 14th, 2019, aboard the fishing boat BT 93679 TS named Xum Họp, located at coordinates 07001’N-104030’E in the sea area of Cà Mau province. It was established that Phạm Văn D, knowing that Huỳnh Văn T4 had been injured by Nguyễn Văn T using a Thai knife, intervened to defend T4.

Subsequently, Phạm Văn D used an iron tube to strike T on the neck area once, causing T to fall into the sea. Phạm Văn D then proceeded to threaten other fishermen on the boat, preventing them from attempting a rescue. As of the present, T’s body has not been recovered.

[4] Observing that the defendant, instead of intervening in the misunderstanding between T4 and T, actively engaged in the altercation, wielding an iron tube as a dangerous weapon that struck a critical area of T’s body, causing T to fall into the sea, where his body remains unrecovered. This criminal act was witnessed by numerous fishermen aboard the boat.

Additionally, the investigative agency conducted a reenactment with the defendant on March 25^th, 2019, yielding results consistent with both the defendant’s testimony and the accounts provided by the fishermen present. Consequently, there exists ample evidence to establish that the defendant’s actions meet the criteria for the offense of “Murder”.

[5] Regarding the argument raised by the defendant’s counsel questioning the legal basis for determining the victim’s death and requesting further investigation for clarification, the Court issued Notification No. 13/2019/TB-TA on December 23^rd, 2019, urging the Procuracy to provide additional evidence confirming the victim T’s death, which was not pursued by the Procuracy.

It is evident that the defendant’s actions—striking victim T on the neck with an iron tube, causing him to fall into the sea, followed by threats such as “Anyone who jumps in, I will beat them to death”—were undertaken with blatant disregard for the resulting consequences, compounded by the fact that T’s body remains unrecovered. The family completed the declaration of presumed death procedures for victim T on October 24^th, 2019 (Exhibit 364).

During the trial, both the defendant and the victim’s legal representative identified Nguyễn Văn T from photos and correctly identified him. Consequently, the defendant’s aforementioned actions satisfy the elements of the offense of “Murder”, with the outcome of death solely influencing the penalty decision rather than affecting the determination of the criminal offense committed by the defendant.

[6] Thus, Indictment No. 33/CT – VKS – P1 dated November 12^th, 2019, issued by the People’s Procuracy of Cà Mau Province, formally charges defendant Phạm Văn D with the offense of “Murder” under point n, clause 1, Article 123 of the Penal Code, based on substantial grounds.

[7] Regarding criminal liability, the nature, severity, and consequences of D’s actions are deemed highly dangerous to society, constituting an exceptionally grave case. D’s criminal behavior has instilled psychological distress and fear within the community, disrupting local political security and social order. This conduct stems from D’s thuggish nature, disregard for legal norms, and preference for resolving disputes through violence.

When victim T fell into the sea, D actively obstructed efforts to rescue him, demonstrating a deliberate intent to see T perish. Therefore, imposing a stringent penalty is warranted to effectively isolate D from society for an extended period, ensuring deterrence, facilitating D’s rehabilitation, and safeguarding the broader community.

[8] Regarding the aggravating and mitigating circumstances of criminal liability, D’s deliberate act of threatening other fishermen to prevent the victim’s rescue constitutes intentionally carrying out a crime to the end, warranting the aggravating circumstance stipulated in point e, clause 1, Article 52 of the Penal Code. However, D has demonstrated sincerity in confession and remorse, and lacks a prior criminal record. Moreover, D is illiterate with limited legal awareness, qualifying for the mitigating circumstances outlined in point s, clause 1, Article 51 of the Penal Code.

[9] Regarding civil liability: The legal representative of the victim requests D to compensate for emotional damages as regulated by law. The Procuracy’s representative proposes to require D to compensate 100 times the base salary, amounting to VND 149,000,000. D agrees without dispute, so the Trial Panel finds that the Procuracy’s proposal is appropriate and accepts it.

[10] Regarding the handling of exhibits, the Court orders the return of one black Oppo phone to the legal representative of the victim. The remaining exhibits, deemed of no further use, shall be confiscated and destroyed entirely.

[11] In the case involving Huỳnh Văn T4, Lê Hoàng G, and Nguyễn Văn P, who were allegedly present when T4 called upon D to attack T, the investigation has stalled due to the absence of these individuals from the area. The Procuracy recommends that the Provincial Police, the investigative agency assigned to this case, continue their efforts to locate these individuals. Determining their roles, if any, as accomplices in this crime is crucial for further legal proceedings.

[12] The first-instance criminal court fees and the first-instance civil court fees must be borne by the defendant Phạm Văn D in accordance with legal provisions.

In light of the foregoing,

IT IS DECIDED:

Pursuant to point n, clause 1, Article 123; Article 38; Article 48; point e, clause 1, Article 52; point s, clause 1, Article 51 of the Penal Code; Article 106; clause 2, Article 135 and clause 2, Article 136 of the Penal Procedure Code; Article 584, 585, Article 591 of the Civil Code; Resolution No. 326/2016/UBTVQH14 dated December 30^th, 2016 of the National Assembly Standing Committee on court fees and charges,

1. Declaration: Defendant Phạm Văn D (alias: Nguyễn Văn D), is guilty ofthe crime of ‘Murder’.
2. Regarding criminal liability: The defendant Phạm Văn D is sentenced to 15 (fifteen) yearsimprisonment. The prison term shall be calculated from March 21^st, 2019.
3. Regarding civil liability: The defendant Phạm Văn Dis obligedto compensate the legal representative of the victim (represented by Mrs. Trần Thị Thúy N) for emotional damages in the amount of VND 149,000,000.

From the date of the execution request by the judgment creditor until the full execution of all amounts, if the execution is delayed, the judgment debtor must also bear interest on the amount to be executed at the rate specified in clause 2, Article 468 of the Civil Code 2015.

4. Regarding the handling of exhibits:

The following exhibits will be returned to the legal representative of the victim, represented by Mrs. Trần Thị Thúy N:

– One (1) black Oppo phone with IMEI numbers: 863008038017553 and 863008038017546 (includes one SIM card).

The following exhibits will be confiscated and destroyed:

– One (1) round metal tube, 58cm long and 3cm in diameter.

– One (1) metal knife, 33cm long with a 24cm blade and a widest point of 6.5cm.

(These exhibits are currently under the management of the Civil Enforcement Division of Cà Mau Province according to the handover protocol dated November 12^th, 2019, between the investigative agency – Provincial Police C and the Civil Enforcement Division of Cà Mau Province)

5. Regarding court costs:

The defendant, Phạm Văn D, is responsible for the following court fees:

– VND 200,000 for the criminal trial of first instance.

– VND 7,450,000 for the civil trial of first instance.

In cases where the judgment is executed according to Article 2 of the Civil Execution Law, the person subject to civil execution, the person responsible for civil execution has the right to enforce the judgment under the provisions of Articles 6, 7, and 9 of the Civil Execution Law; the time limit for execution shall be implemented under the provisions of Article 30 of the Civil Execution Law.

The first-instance judgment is public, and the defendant, the legal representative of the victim, have the right to appeal within 15 days from the date of judgment.

CONTENT OF THE CASE LAW:

“[3] Regarding the charge: The incident occurred around 10:00 p.m. on March 14th, 2019, aboard the fishing boat BT 93679 TS named Xum Họp, located at coordinates 07001’N-104030’E in the sea area of Cà Mau province. It was established that Phạm Văn D, knowing that Huỳnh Văn T4 had been injured by Nguyễn Văn T using a Thai knife, intervened to defend T4.

Subsequently, Phạm Văn D used an iron tube to strike T on the neck area once, causing T to fall into the sea. Phạm Văn D then proceeded to threaten other fishermen on the boat, preventing them from attempting a rescue. As of the present, T’s body has not been recovered.

…

[8] Regarding the aggravating and mitigating circumstances of criminal liability, D’s deliberate act of threatening other fishermen to prevent the victim’s rescue constitutes intentionally carrying out a crime to the end, warranting the aggravating circumstance stipulated in point e, clause 1, Article 52 of the Penal Code…”

REASON FOR THE DRAFT’S PROPOSAL

(Criminal first-instance judgment No. 02/2020/HS-ST dated January 8^TH, 2020 of the People’s Court of Cà Mau Province regarding the case of ‘Murder’ against defendant Phạm Văn D).

According to the Vietnamese Dictionary by the Institute of Linguistics, Editor-in-Chief Professor Hoàng Phê, Hồng Đức Publishing House 2018: ‘Intentionally carrying out a crime to the end’ is understood as the perpetrator having a conscious determination to commit the crime to achieve their goal despite opposition or hindrance from others or obstacles during the commission of the crime.

The perpetrator may not have achieved their goal or caused consequences, but still bears liability for this circumstance.’ In addition, the 2023 Judges’ Handbook issued by the Supreme People’s Court in cooperation with KOICA also provides a similar overview of this behavior.

According to current legal provisions, the aggravating circumstance of criminal liability ‘Intentionally carrying out a crime to the end’ is stipulated in point e, clause 1, Article 52 of the Penal Code. Currently, there is no guiding document related to the application of this aggravating circumstance of criminal liability, thus understanding and applying this aggravating circumstance still varies greatly, primarily due to the perception and evaluation of the defendant’s criminal conduct in specific cases by judges.

In this case, after using a dangerous weapon to attack a critical area of the victim’s body, causing the victim to fall into the sea, the defendant engaged in behavior threatening others from rescuing the victim who was in life-threatening danger.

The court determined that the act of threatening others from rescuing the victim in life-threatening danger constitutes ‘Intentionally carrying out a crime to the end’, therefore applying this aggravating circumstance of criminal liability to the defendant is appropriate and clarifies the application of this aggravating circumstance in similar legal situations. Therefore, developing the case laws on this matter is necessary to guide the application of the law in cases with similar legal situations.”

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