On November 20, 2024, at the headquarters of the People's Court of Binh Dinh province, the public appeal trial of the criminal case No. 164/2024/TLPT-HS dated October 25, 2024 against the defendant Pham Van H was held due to the defendant's appeal against the first instance criminal judgment No. 202/2024/HS-ST dated September 18, 2024 of the People's Court of Quy Nhon city, Binh Dinh province.
• The defendant has appealed:
Pham Van H, other name: T; born in 1976; in: Binh Dinh province; residence:
Group D, Quarter A, Ward T, City Q, Province . Binh Dinh; occupation: car repair; education level: 09/12; gender: Male; nationality: Vietnam; ethnicity: Kinh; religion: None; son: P (deceased); son of Mrs. Ho Thi V (deceased); siblings; 04 people; wife: Nguyen Thi Phuong D, born in 1979; has 02 children (older child 08 years old, younger child 04 years old); Criminal record: None; The defendant was subject to the preventive measure of "Prohibition from leaving the place of residence" from April 24, 2024 to present, the defendant was present at the trial.
In addition, there is also defendant Nguyen Pham Di K and other participants in the proceedings who did not appeal and were not appealed or protested by the Procuracy.
CASE CONTENT
According to the documents in the case file and the proceedings at the trial, the content of the case is summarized as follows:
Due to lack of money to spend, Nguyen Pham Di K took advantage of people's carelessness and repeatedly committed acts of secretly appropriating motorbikes in Q city, specifically:
The first time: at about 10:00 a.m. on January 14, 2024, K drove motorbike 77Y3-xxx (the motorbike of Ms. Pham Thi H1, K's biological mother) to stroll on the streets of city Q to look for stolen property. While on road T, reaching the Ao Ca B area, he saw a Yamaha motorbike, Sirius model number; paint color: silver blue; license plate number 77L1-xxxx; frame number RLCS5C6J0FY168090; engine number 5C6J168099 of Ms. Tran Thi Kieu H2 parked on the sidewalk in front of the house, with a key attached to the motorbike. K drove slowly to see if there was anyone watching, so he parked the motorbike on the side of the road, then went to Ms. H2's motorbike, turned on the key, started the motorbike and escaped. Then, K brought the motorbike to the repair shop "Th" at house number B, street D, town T, district T, Binh Dinh province and sold it to Mr. Do Tien Q for 2,000,000 VND. K spent all the money he got for personal use.
The Council for Asset Valuation in Criminal Proceedings of City Q concluded: Yamaha brand motorcycle, model number Sirius; paint color: blue-silver; license plate number 77L1- xxxx; frame number RLCS5C6J0FY168090; engine number 5C6J168099; used at the time of appropriation on January 14, 2024, has a value of 7,000,000 VND;
Second time: at about 1:00 p.m. on January 14, 2024, K hired a motorbike taxi from his house to the gas station on T street, then got off and walked to look for stolen property. When entering an alley on T street, K saw a SHMOTO motorbike; model number C110; paint color: red - black; license plate number 81S1-xxxx; frame number RRKWCH0UM8XY18595; engine number VTT14JL1P52FMH018595 of Mr. Do Ngoc T1 parked under a tree in front of his house, with a key attached to the motorbike. Seeing that no one was watching, K went to unlock it, started the motorbike and drove to the "Th" motorbike repair shop at house number B, D street, T town, T district, Binh Dinh province to sell it to Do Tien Q for 800,000 VND. K spent all the money he got for personal use.
The Council for Asset Valuation in Criminal Proceedings of City Q concluded: Motorcycle brand SHMOTO; model number C110; paint color: red - black; license plate number 81S1- xxxx; frame number RRKWCH0UM8XY18595; engine number VTT14JL1P52FMH018595;
used at the time of appropriation on January 14, 2024 with a value of VND 3,000,000.
Third time: at about 11:00 a.m. on January 15, 2024, K drove motorbike 77Y3-xxx on the streets of Q city. When entering alley B, T street, he discovered a Yamaha motorbike; model number C110; paint color: blue; license plate number 77H6-xxxx; frame number 06Y029103; engine number 2S01029103 of Mr. Nguyen Van T2 parked on the sidewalk, with a key attached to the motorbike. Seeing that no one was watching, K went to unlock it, started the engine and drove to the motorbike repair shop "H" on D street, Q city, met Mr. Pham Van H and said he wanted to sell the motorbike for 2,300,000 VND. Seeing that the motorbike had no papers and was being sold for a cheaper price than the market price, H suspected that it was a stolen motorbike. H continued to bargain down the price to 2,000,000 VND, but K still agreed to sell it, so H knew that the motorbike was stolen by K. Although he knew that it was a stolen motorbike, seeing that the motorbike was being sold at a cheap price, H still agreed to buy the motorbike for 2,000,000 VND for his own use. K spent all the money he got for personal use.
The Council for Asset Valuation in Criminal Proceedings of City Q concluded: Yamaha brand motorcycle; model number C110; paint color: blue; license plate number 77H6-xxxx; frame number 06Y029103; engine number 2S01029103; used at the time of appropriation on January 15, 2024, with a value of VND 5,000,000. Fourth time: At about 4:00 p.m. on January 15, 2024, K drove motorcycle 77Y3-xxx on the streets of City Q. When arriving in front of house number AD, City Q, he discovered a Honda brand motorcycle parked on the sidewalk; model number Future; paint color: red - black; license plate number 77L1- xxxx; frame number RLHJC5340DY018206; Engine number JC54E1049865 of Mr. Nguyen Vuong T3 (Born in 1987), with a key attached to the vehicle. Seeing that there was no one around, K unlocked the vehicle, started the vehicle, drove to the "Muoi" motorbike repair shop at address A Đ, city Q, and sold it to Mr. Nguyen Van C for 2,700,000 VND. K spent all the money he got for personal use.
The Council for Asset Valuation in Criminal Proceedings of City Q concluded: Honda brand motorcycle; Future model number; paint color: red - black; license plate 77L1- xxxx; frame number RLHJC5340DY018206; engine number JC54E1049865; used at the time of appropriation on January 15, 2024, has a value of VND 9,000,000.
Evidence of the case: During the investigation, the T4 Police Investigation Agency temporarily detained and returned 01 Yamaha motorbike, model number Sirius; paint color: blue - silver; license plate 77L1-xxxx to the suspect Tran Thi Kieu H2; 01 SHMOTO motorbike, model number C110; paint color: red - black; license plate 81S1 -xxxx to the suspect Do Ngoc T1;
01 Honda motorbike; model number Future; paint color: red - black; license plate number 77L1 - xxxx for victim Nguyen Vuong T3; 01 Yamaha motorbike; model number C110; paint color: blue; license plate number 77H6-xxxx for victim Nguyen Van T2. Regarding civil matters: Victims Nguyen Van T2, Nguyen Vuong T3, Tran Thi Kieu H2, Do Ngoc T1 have received back the lost property and do not request any other compensation. Mr. Do Tien Q requested K to compensate the amount of 2,800,000 VND, Nguyen Van C requested K to compensate the amount of 2,700,000 VND.
In the First Instance Criminal Judgment No. 202/2024/HS-ST dated September 18, 2024 of the People's Court of Quy Nhon City, Binh Dinh Province, it was decided:
– Declare defendant Nguyen Pham Di K guilty of “Theft of property”.
– Declare that defendant Pham Van H committed the crime of “Receiving property obtained by another person through criminal means” Pursuant to Clause 1, Article 323, Points i and s, Clause 1, Article 51, Article 38, Article 54 of the Criminal Code (Applied to defendant Pham Van H) Sentence defendant Pham Van H to 04 (four) months in prison, the prison term calculated from the date the defendant is arrested to serve the sentence.
In addition, the first instance criminal judgment also decided on the punishment for defendant Nguyen Pham Di K, in civil matters, on handling of evidence, court fees and the right to appeal of the participants in the proceedings.
On September 20, 2024, the defendant filed an appeal requesting the Court of Appeal to consider reducing the sentence and allowing the defendant to receive a suspended sentence. At the trial, the representative of the People's Procuracy of Binh Dinh province expressed his views on resolving the case and requested the Appellate Trial Panel to base on Point b, Clause 1, Article 355, Point e, Clause 1, Article 357 of the Criminal Procedure Code to accept the appeal of the defendant Pham Van H, apply Article 65 of the Criminal Procedure Code, amend the first instance criminal judgment, maintain the same penalty level of the first instance judgment but grant a suspended sentence and set a probation period according to the provisions of law.
The defendant did not defend himself and did not argue.
Defendant H is the main breadwinner in the family, has young children, and served time in the military. Defendant knows his mistakes and asks the panel of judges to give him a suspended sentence so he can work to support his family.
JUDGMENT OF THE COURT
Based on the content of the case, based on the documents in the case file that were examined and debated at the trial, the Trial Panel finds as follows:
[1] Regarding the proceedings: Defendant Pham Van H appealed within the statutory time limit, so the Trial Panel should consider it.
[2] At the appeal hearing, defendant Pham Van H confessed to all of his crimes, consistent with the statements of the victim, the person with related rights and obligations, the witness, and consistent with other documents and evidence in the case file. Therefore, the Trial Panel has sufficient grounds to determine:
At about 11:00 a.m. on January 15, 2024, defendant Nguyen Pham Di K drove motorbike 77Y3-xxx on the streets of Q city. When entering alley B, T street, he discovered a Yamaha motorbike; model number C110; paint color: blue;
License plate 77H6-xxxx; frame number 06Y029103; engine number 2S01029103 of Mr. Nguyen Van T2 was parked on the sidewalk, with the key attached to the motorbike. Seeing that no one was watching, defendant Nguyen Pham Di K secretly stole it and sold it to defendant Pham Van H at a repair shop on D street, Q city for 2,000,000 VND. The defendant clearly knew that the property was stolen by defendant K. Although there was no prior promise, he knew that the motorbike had no papers that defendant K had stolen and sold to the defendant.
Defendant H is a person with full health, education, and capacity to perceive and control his behavior. The defendant clearly knows that the property he bought was obtained by someone else through crime. Therefore, the trial of defendant H by the court of first instance for the crime of "Receiving property obtained by someone else through crime" as prescribed in Clause 1, Article 323 of the Penal Code is well-founded, correct person, correct crime, and correct law.
[3] Considering the defendant's appeal for a suspended sentence: The Trial Panel found that, based on the aggravating and mitigating circumstances of criminal responsibility, the defendant Pham Van H did not have aggravating circumstances but had many mitigating circumstances as prescribed in Point i, s, Clause 1, Article 51, Article 54 of the Penal Code, but the court of first instance imposed a sentence of 4 months in prison on the defendant, which was too harsh. Because, during the investigation and at the trial, the defendant honestly confessed, repented and reformed; the first offense was a less serious case; the criminal property was recovered by the investigation agency and returned to the victim. Furthermore, at the appeal hearing, the defendant provided new details: The defendant was the main breadwinner in the family, and had served time in the military as prescribed in Clause 2, Article 51 of the Penal Code. Therefore, it is necessary to apply Clause 1, Article 323, points i, s, Clause 1, 2, Article 51, Article 54 of the Penal Code.
From the above circumstances and evidence, the Trial Panel accepts the defendant's appeal to partially reduce the defendant's sentence, which is sufficient for deterrence, education and general prevention, and to amend the first instance criminal judgment.
[4] Regarding criminal appeal fees: Defendant Pham Van H does not have to pay criminal appeal fees.
[5] Other decisions of the first-instance criminal judgment, without appeal or protest, shall take effect from the date of expiration of the appeal or protest period.
[6] The request of the People's Procuracy of Binh Dinh province is not consistent with the assessment of the Trial Council, so it is not accepted by the Trial Council.
For the above reasons;
DECISION
Pursuant to Point b, Clause 1, Article 355, Point c, Clause 1, Article 357 of the Criminal Procedure Code.
Pursuant to Clause 1, Article 323; Points i and s, Clauses 1 and 2, Article 51; Article 54 of the Penal Code.
Pursuant to Clause 2, Article 135, Clause 2, Article 136 of the Criminal Procedure Code and Point h, Clause 2, Article 23 of Resolution No. 326/2016/PL-UBTVQH14 dated December 30, 2016 of the Standing Committee of the National Assembly stipulating the levels of collection, exemption, reduction, collection, payment and management of court fees and charges.
1. Accept the appeal of the defendant: Pham Van H. Amend the penalty level of the First Instance Criminal Judgment No. 202/2024/HS-ST dated September 18, 2024 of the People's Court of Quy Nhon City, Binh Dinh Province.
2. Statement: Defendant Pham Van H committed the crime of "Receiving property obtained by another person through criminal acts".
– Sentence Defendant Pham Van H to 03 (three) months in prison. The term of imprisonment is calculated from the date of arrest to serve the sentence.
3. Regarding criminal appeal court fees: Defendant Pham Van H does not have to pay criminal appeal court fees.
4. Other decisions of the first instance criminal judgment, without appeal or protest, shall take effect from the date of expiration of the appeal or protest period.
5. The criminal appeal judgment takes legal effect from the date of judgment.
