CASE LAW DRAFT NO. 03/2024 On Deceptive Tactics in the Crime of “Theft of Property” (Please note that this image is not related to the specific case being discussed).

CASE LAW DRAFT NO. 03/2024

On Deceptive Tactics in the Crime of “Theft of Property”

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:

The Appellate Criminal Judgment No. 488/2021/HS-PT dated December 9^th, 2021, of the High People’s Court in Đà Nẵng regarding the case of “Theft of Property” against the defendant Hong Chun K.

Location of the Case Law’s Content:

Paragraphs 5, 6 and 7 of the “Court’s Opinion” section.

Summary of the Case Law:

– Factual Background:

This case involves the misappropriation of property where the owner was demonstrably negligent in its oversight. The owner failed to implement any measures for managing the property, including delegating its supervision to another party. The defendant, capitalizing on this lapse in responsibility, employed deceptive tactics. They provided false information that led others to believe they were a close associate of the property owner. This deception facilitated the transfer of the property to the defendant, enabling them to take control and potentially use the property for their own gain.

– Legal Resolution:

In this case, the Court must determine that the defendant’s actions constitute the crime of “Theft of Property”.

Relevant Legal Provisions:

Clause 1, Article 173 of the 2015 Penal Code (amended and supplemented in 2017).

Keywords:

“Theft of Property”; “Owner Not Overseeing or Managing Property”.

CASE DETAILS

Based on the documents in the case file and the cross-examination at the trial, the case details are summarized as follows:

At approximately 10:00 p.m. on February 19^th, 2021, Hong Chun K visited Bar A at 177 N, Ward N, District N, Đà Nẵng City, where he encountered Mr. Kang Chan J, a South Korean national, conversing with a friend outside the establishment. Hong Chun K greeted Mr. Kang Chan J and, upon observing Ms. Trần Thị Bích N inside the bar chatting with acquaintances, approached and signaled to take Mr. Kang Chan J’s handbag from the table. 

Ms. N mistakenly thought Hong Chun K was a friend of Mr. Kang Chan J and handed over the handbag, which was on the table, to Hong Chun K. When outside, Hong Chun K opened the handbag and found inside approximately VND 1,500,000VND (comprising 2 bills of VND 500,000, 1 bill of VND 200,000, 2 bills of VND 100,000, and some small denominations of VND 20,000, VND 10,000, and VND 5,000); 1 (one) black-and-blue Samsung S8 smartphone with a cracked screen; 1 (one) small wallet, and some papers.

Hong Chun K removed the phone and cash, discarding the remaining items on the sidewalk. Unable to unlock the phone for resale, Hong Chun K passed it to Mr. Nguyễn Văn H, a motorcycle taxi driver, and spent all the money taken.

The following morning, February 20^th, 2021, Mr. Kang Chan J discovered his handbag missing and promptly reported the theft to the police. Mr. Kang Chan J declared the stolen items included 1 (one) black handbag containing 1 (one) black-and-blue Samsung S8 smartphone, VND 4,000,000, and 1 (one) small Saint Laurent wallet.

Seized evidence included: VND 2,191,000 (Two million, one hundred ninety-one thousand Vietnamese dong); 1 (one) black-and-blue Samsung S8 smartphone (handed over by Mr. H); 1 (one) black handbag; and 2 (two) business cards with the name Kang Chan J.

According to the Valuation Report of the Asset Valuation Council in Criminal Proceedings of District N, Đà Nẵng City, the asset values are as follows:

– 1 (one) Samsung S8 smartphone valued at VND 3,200,000 (Three million, two hundred thousand Vietnamese dong);

– 1 (one) black handbag valued at VND 400,000 (Four hundred thousand Vietnamese dong);

– 1 (one) Saint Laurent wallet valued at VND 4,000,000 (Four million Vietnamese dong).

Total value: VND 7,600,000 (Seven million, six hundred thousand Vietnamese dong).

Subsequently, the People’s Procuracy of Đà Nẵng City initially prosecuted Hong Chun K under Indictment No. 84/CT-VKS-P2 dated July 19^th, 2021, for the crime of “Theft of Property” under Clause 1, Article 173 of the 2015 Penal Code (amended and supplemented in 2017).

However, during the trial preparation phase, the People’s Court of Đà Nẵng City determined that Hong Chun K’s actions constituted “Fraudulent Appropriation of Property” under Clause 1, Article 174 of the Penal Code. Therefore, on August 13^th, 2021, the People’s Court of Đà Nẵng City issued Decision No. 775/2021/HSST-QĐ, returning the case file for additional investigation to the People’s Procuracy of Đà Nẵng City to re-prosecute defendant Hong Chun K for the crime of “Fraudulent Appropriation of Property” under Clause 1, Article 174 of the Penal Code.

On September 9^th, 2021, the People’s Procuracy of Đà Nẵng City issued Document No. 229/VKS-P2 maintaining the Indictment No. 84/CT-VKS-P2 dated July 19^th, 2021, prosecuting defendant Hong Chun K for the crime of “Theft of Property” under Clause 1, Article 173 of the 2015 Penal Code (amended and supplemented in 2017).

Pursuant to Article 298 of the Penal Procedure Code, on September 13^th, 2021, the People’s Court of Đà Nẵng City issued Decision No. 94/2021/QĐXXST-HS to bring the case to trial against Hong Chun K for the crime of “Fraudulent Appropriation of Property” under Clause 1, Article 174 of the Penal Code.

In the First-instance Criminal Judgment No. 79/2021/HS-ST dated September 26^th, 2021, the People’s Court of Đà Nẵng City found Hong Chun K guilty of “Fraudulent Appropriation of Property” under Clause 1, Article 174 of the 2015 Penal Code (amended and supplemented in 2017).

Hong Chun K was sentenced to 12 months of imprisonment, with the term starting from the date of his temporary detention on April 2^nd, 2021.

Additionally, pursuant to Article 37 of the Penal Code, Hong Chun K was ordered to be expelled from the territory of the Socialist Republic of Vietnam upon completing his prison sentence.

The first-instance judgment also addressed civil liabilities, handling of exhibits, court fees, and the right to appeal in accordance with legal provisions.

On October 6^th, 2021, the Chief Procurator of the People’s Procuracy of Đà Nẵng City issued Appeal Decision No. 254/QĐ-VKS-P2, arguing that Hong Chun K’s actions constituted “Theft of Property” under Clause 1, Article 173 of the Penal Code, rather than “Fraudulent Appropriation of Property” as convicted by the first-instance court. The Chief Procurator proposed that the High People’s Court in Đà Nẵng amend the first-instance judgment to reflect this and maintain the sentence.

Subsequently, on October 11^th, 2021, Hong Chun K appealed for a reduced sentence.

During the appellate trial, the Procurator maintained the appeal, urging the court to accept Appeal Decision No. 254/QĐ-VKS-P2 and convict Hong Chun K of “Theft of Property” under Clause 1, Article 173 of the Penal Code.

Hong Chun K, in turn, maintained his appeal for a reduced sentence and admitted to the criminal act.

Based on the evidence and documents verified during the appellate trial, and considering the arguments from both the Procurator and the defendant,

COURT’S OPINION:

[1] On the night of February 19^th, 2021, Mr. K Chan J went to Bar A, at 177 Lê Quang Đạo, Ward M, District N, Đà Nẵng City with Ms. Trần Thị Bích N for dining and sat at a table with some acquaintances. Upon sitting down, Mr. Kang Chan J placed a black handbag (containing 1 Samsung S8 mobile phone; VND 4,000,000; 1 small wallet, and some personal papers) on his seat; next to him sat Ms. Trần Thị Bích N.

[2] While Mr. Kang Chan J stepped outside the bar to converse with a friend, Hong Chun K, the defendant, observed his absence and formulated an intent to appropriate Mr. Kang Chan J’s belongings. Hong Chun K entered Bar A, approached the table, and signaled for the handbag to be handed over. Mistaking Hong Chun K for a friend of Mr. Kang Chan J, Ms. Bích N complied and surrendered the handbag to him.

[3] The total value of the property appropriated by the defendant Hong Chun K from Mr. Kang Chan J was determined to be VND 11,600,000.

[4] The Đà Nẵng City Police Investigation Agency prosecuted Hong Chun K for “Theft of Property,” and the People’s Procuracy of Đà Nẵng City indicted him accordingly. However, in the First-instance Criminal Judgment No. 79/2021/HS-ST dated September 26^th, 2021, the People’s Court of Đà Nẵng City convicted Hong Chun K of “Fraudulent Appropriation of Property”. The Appellate Panel found that:

[5] According to Mr. Kang Chan J’s testimony, he left the handbag on his seat when he exited the bar and did not assign anyone to manage it: “When I stood up and went outside, the handbag was still on my seat… I did not say anything or ask N to manage my property…”

Ms. Bích N corroborated this, stating, “While dining here, Mr. Kang Chan J placed the handbag on the table inside the bar and went outside to talk with a friend. When he went outside, Mr. Kang Chan J did not entrust the handbag to me nor asked me to manage it…” and “A Korean man asked for the wallet and phone… I believed he was a friend of Mr. K, so I handed over the leather wallet to him”.

Witness testimonies confirmed that Mr. Kang Chan J did not delegate anyone to supervise his handbag.

[6] Therefore, Ms. Trần Thị Bích N and others at the table were not lawful custodians of Mr. Kang Chan J’s handbag. Despite Hong Chun K’s misleading actions and overt appropriation by inquiring about “the Korean man’s wallet and phone,” and affirmatively signaling to Ms. Bích N when asked about Mr. Kang Chan J’s handbag, Ms. Bích N was not the owner or custodian of Mr. Kang Chan J’s property. This was a ploy to execute Hong Chun K’s intent to appropriate the handbag, unbeknownst to its owner, Mr. Kang Chan J.

Therefore, the Appellate Panel concluded that Hong Chun K’s actions did not constitute “Fraudulent Appropriation of Property,” as determined by the first-instance court.

[7] The defendant, Hong Chun K, exploited Mr. Kang Chan J’s absence and the negligence of both the owner and custodian of the handbag to appropriate it. When Hong Chun K seized the handbag, Mr. Kang Chan J remained unaware until several hours later, stating, “6 hours after waking up, I realized my handbag was missing, I called N to ask…”.

Therefore, Hong Chun K surreptitiously deprived Mr. Kang Chan J, the owner and custodian, of his handbag, constituting theft. The decision of the Đà Nẵng City Police Investigation Agency to prosecute Hong Chun K for “Theft of Property” and the subsequent indictment by the People’s Procuracy of Đà Nẵng City for this crime are well-founded. The first-instance court’s conviction of Hong Chun K for “Fraudulent Appropriation of Property” was inconsistent with the nature of the criminal act and legally incorrect.

[8] Although the appellate court accepted the appeal, reclassified the offense, and adjudicated Hong Chun K for “Theft of Property,” his criminal record (provided by the Consulate General of South Korea) indicates a history of misconduct, demonstrating a disregard for the law, particularly in matters of appropriation.

Therefore, after assessing the severity of the offense and considering mitigating factors such as honest admission, remorse, the fact that it was a first-time offense, and the less serious nature of the case, the first-instance court’s decision to sentence Hong Chun K to 12 months in prison is both justified and lenient. Consequently, the appellate court rejects Hong Chun K’s appeal for a reduced sentence.

[9] Based on these findings, the appellate court upholds the appeal of the Chief Procurator of the People’s Procuracy of Đà Nẵng City and denies Hong Chun K’s appeal for a reduced sentence.

[10] Other aspects of the first-instance judgment that were not appealed or contested are not reviewed by the appellate court.

In light of the foregoing,

IT IS DECIDED:

Pursuant to point b, clause 1, Article 355 and point b, clause 1, Article 357 of the Penal Procedure Code.

1. The Appeal Decision No. 254/QĐ-VKS-P2, dated October 6^th, 2021, of the Chief Procurator of the People’s Procuracy of Đà Nẵng City is accepted. The first-instance judgment regarding the crime is amended accordingly.

The appeal of the defendant Hong Chun K is rejected.

2. Hong Chun K is declared guilty of the crime of “Theft of Property” under Clause 1, Article 173, and points b, s clause 1, Article 51 of the 2015 Penal Code (amended and supplemented in 2017).

The defendant is sentenced to 12 (twelve) months in prison, with the prison term counted from the date of temporary detention on April 2^nd, 2021.

Pursuant to Article 37 of the 2015 Penal Code (amended and supplemented in 2017), Hong Chun K is ordered to be expelled from the territory of the Socialist Republic of Vietnam upon completing the prison sentence.

3. Other decisions of the first-instance judgment concerning civil liability, handling of exhibits, and court fees that were not appealed or contested remain legally effective from the end of the appeal period.

The Appellate Criminal Judgment is legally effective from the date of pronouncement.

CONTENT OF THE CASE LAW:

“[5] According to Mr. Kang Chan J’s testimony, he left the handbag on his seat when he exited the bar and did not assign anyone to manage it: “When I stood up and went outside, the handbag was still on my seat… I did not say anything or ask N to manage my property…”

Ms. Bích N corroborated this, stating, “While dining here, Mr. Kang Chan J placed the handbag on the table inside the bar and went outside to talk with a friend. When he went outside, Mr. Kang Chan J did not entrust the handbag to me nor asked me to manage it…” and “A Korean man asked for the wallet and phone… I believed he was a friend of Mr. K, so I handed over the leather wallet to him”.

Witness testimonies confirmed that Mr. Kang Chan J did not delegate anyone to supervise his handbag.

[6] Therefore, Ms. Trần Thị Bích N and others at the table were not lawful custodians of Mr. Kang Chan J’s handbag. Despite Hong Chun K’s misleading actions and overt appropriation by inquiring about “the Korean man’s wallet and phone,” and affirmatively signaling to Ms. Bích N when asked about Mr. Kang Chan J’s handbag, Ms. Bích N was not the owner or custodian of Mr. Kang Chan J’s property. This was a ploy to execute Hong Chun K’s intent to appropriate the handbag, unbeknownst to its owner, Mr. Kang Chan J.

Therefore, the Appellate Panel concluded that Hong Chun K’s actions did not constitute “Fraudulent Appropriation of Property,” as determined by the first-instance court.

[7] The defendant, Hong Chun K, exploited Mr. Kang Chan J’s absence and the negligence of both the owner and custodian of the handbag to appropriate it. When Hong Chun K seized the handbag, Mr. Kang Chan J remained unaware until several hours later, stating, “6 hours after waking up, I realized my handbag was missing, I called N to ask…”.

Therefore, Hong Chun K surreptitiously deprived Mr. Kang Chan J, the owner and custodian, of his handbag, constituting theft. The decision of the Đà Nẵng City Police Investigation Agency to prosecute Hong Chun K for “Theft of Property” and the subsequent indictment by the People’s Procuracy of Đà Nẵng City for this crime are well-founded. The first-instance court’s conviction of Hong Chun K for “Fraudulent Appropriation of Property” was inconsistent with the nature of the criminal act and legally incorrect.”

REASON FOR THE DRAFT’S PROPOSAL

(The Appellate Criminal Judgment No. 488/2021/HS-PT dated December 9^th, 2021, of the High People’s Court in Đà Nẵng in the case of “Theft of Property” against the defendant Hong Chun K.)

The act of theft fundamentally involves the clandestine appropriation of another person’s property. However, in practice, defendants employ various methods to achieve this objective.

In this particular case, the defendant exploited the property owner’s lack of supervision and failure to designate anyone to oversee or manage the property. Employing deceptive tactics, the defendant misled others into believing they were acquainted with the property owner, thereby facilitating the appropriation of the victim’s belongings. This deceitful behavior has sparked differing interpretations among judicial bodies regarding the classification of the defendant’s offense.

Initially, the Procuracy charged the defendant with “Theft of Property”. However, the first-instance court adjudicated the offense as “Fraudulent Appropriation of Property”. Subsequently, the Procuracy appealed this judgment. The appellate court concluded that the defendant’s deceptive tactic—posing as an acquaintance of the property owner—enabled the unlawful appropriation of the victim’s property.

This tactic targeted individuals who neither owned the property nor were authorized by the owner to oversee it. Importantly, the property owner remained unaware of the defendant’s deceitful actions, underscoring the stealthy nature of the defendant’s theft.

Based on these findings, the appellate court determined that the defendant committed the crime of “Theft of Property”, aligning the adjudication with the nature of the defendant’s criminal conduct and legal principles.

Therefore, the development of case law on this matter is crucial to ensure consistent application of the law in classifying defendants’ offenses in similar legal contexts.

If you need more consulting, please Contact Us at TNHH NT International Law Firm (ntpartnerlawfirm.com)

You can also download the .docx version here.